On January 26, 2010 the Massachusetts appeals court in COMMONWEALTH vs. GERALD EDDINGTON 76 Mass.App.Ct. 173 (2010) overturned a lower court ruling that an impoundment of a vehicle by police was unwarranted and subsequently suppressed evidence found threrein.
The court stated “2. Discussion. The Commonwealth contends that the motion judge erred by finding the impoundment of the vehicle, and thus the subsequent inventory search, unlawful. [FN2] In the case of *176 an inventory search, “the propriety of the impoundment of the vehicle is a threshold issue in determining the lawfulness of the inventory search.” Commonwealth v. Garcia, 409 Mass. 675, 678 (1991).
Police impoundment of a stopped vehicle is an appropriate response to a risk of theft or vandalism considered “together with the need to protect the police from false claims of loss,” where “specific evidence . . . point[s] to a ‘danger that the vehicle left unattended’ . . . might ‘be vandalized or stolen.’ “Commonwealth v. Ellerbe, 430 Mass. 769, 775 (2000) (Ellerbe), quoting from Commonwealth v. Dunn, 34 Mass. App. Ct. 702, 704 (1993) (Dunn). SeeCommonwealth v. Daley, 423 Mass. 747, 750 (1996) (“The impoundment of a vehicle for noninvestigatory reasons is generally justified if supported by public safety concerns or by the danger of theft or vandalism to a vehicle left unattended”).
The defendants argue that Commonwealth v. Brinson, 440 Mass. 609, 614 (2003) (Brinson), means that the police officers’ testimony about the car being parked in a high-crime area is not sufficient to support a conclusion that there is an adequate risk of theft or vandalism without more specific information about the vulnerability of cars parked there to theft or vandalism. In Brinson, the Supreme Judicial Court dealt with circumstances where the police did not direct the driver to stop the car, but instead sought to impound a car that an arrestee had, prior to his arrest, lawfully parked at a distant location in a commercial parking lot that “was open to the public without limitation.” Ibid. “There were no parking restrictions from which it could be determined that the car had been illegally parked, and there had been no request by the lot owner to tow the car.” Id. at 614-615. The court first explained that, in the absence of a request from a property owner or manager to have the car removed, seizure “is inappropriate, at least when the offense for which the arrest is made is so minor that the defendant’s prompt release can be anticipated.” Id. at 613, quoting from 3 LaFave, Search and Seizure § 7.3(c), at 521 (3d ed. 1996). The court then examined whether there was any reason not to adhere to that ordinary rule, *177 noting that “[c]ourts have upheld the impoundment of a car from the lot associated with the arrest location when accompanied by such circumstances as threats of vandalism, parking restrictions, police liability concerns, or the inability of the defendant or another later to move the car.” Brinson, supra at 613. The court determined that “the record contains no evidence of threat of vandalism to justify impoundment.” Id. at 614. Despite “testimony that the commercial lot was a common drug traffic area, there was no evidence that the police had specific knowledge that unattended cars would be especially vulnerable to theft or vandalism.” Ibid. [FN3]
he Brinson decision did not alter the long-standing rule that impoundment of a car pulled over may be justified by specific evidence of a danger that the car left unattended might be vandalized or stolen when that danger is combined with a need to protect the police from false claims of loss. Ellerbe,supra at 775. Brinson, which applied that rule, demonstrates that whether the specific evidence of a risk of theft or vandalism is sufficient to render an impoundment reasonable and therefore permissible under the Fourth Amendment to the United States Constitution is something that must be determined on a case-by-case basis in light of all the facts and circumstances. See Brinson, supra at 614 (relying on Ellerbe, supra, and distinguishing Ellerbe, supra, andDunn, supra, on their facts).
In this case, there was specific evidence available to the officers at the time of their decision pointing to a danger of theft or vandalism if the vehicle were left unattended. The vehicle was parked at the side of the road in a location dictated not by driver choice but by the circumstances of the stop. The location of the stop was a “high-crime” area. The driver, Eddington, had a suspended driver’s license; even if he were to have been released promptly, hewould not have been able to move the car. The vehicle was owned by a third party, unknown to the officers, who *178 was not present at the scene, and no one else at the scene was authorized to drive or move the vehicle. Cf. Commonwealth v. Caceres, 413 Mass. 749, 752 & n.3 (1992). Given the hour, it was impractical to contact the owner, and the police therefore were not constitutionally required to do so. SeeCommonwealth v. Henley, 63 Mass. App. Ct. 1, 5-6 (2005). Absent impoundment, the car thus would have been left unattended on a public street in a high-crime area for an indefinite period of time.
This evidence demonstrates a sufficient risk that the car might be vandalized or stolen so that, when combined with the risk of false claims for loss against the police, the impoundment of the car, pursuant to a constitutionally adequate police policy, was reasonable and thus permissible under the Fourth Amendment. [FN4] See United States v. Ramos-Morales, 981 F.2d 625, 626-627 (1st Cir. 1992) (Breyer, J.), cert. denied, 508 U.S. 926 (1993) (finding impoundment permissible where car parked legally on residential street that agents reasonably thought not to be in the defendant’s neighborhood). See also United States v. Staller, 616 F.2d 1284, 1290 (5th Cir.), cert. denied, 449 U.S. 869 (1980), cited with approval in Ellerbe, 430 Mass. at 775 (impoundment reasonable where car was lawfully parked in a mall parking lot because “the officers were aware that a car parked overnight in a mall parking lot runs an appreciable risk of vandalism or theft. The likelihood of such harm would increase with every passing day”); United States v.Kornegay, 885 F.2d 713, 716 (10th Cir. 1989), cert. denied, 495 U.S. 935 (1990), cited with approval in Brinson, 440 Mass. at 613 (finding impoundment of a car lawfully parked in a parking lot reasonable despite the absence of a request for removal from the lot owner where the public nature of the vehicle’s location created potential for vandalism, the driver would not return soon, and no one at the scene of arrest was available to take custody of the vehicle). [FN5] The motion to suppress in this case should have been denied. [FN6]
Its clear that the defendants attorney sought to expand the impact of Brinson beyond the simple and rare instance that it represented. The case is an excellent example and outlines the rationale for towing vehicles subsequent to arrests and why an inventory should be conducted in each instance where appropriate.
Attorney Ronald. A. Sellon