In an unpublished opinion the appeals court recently ruled in
COMMONWEALTH vs. EARL M. WITHERSPOON 08-P-1081 MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 that police improperly towed and inventoried a motor vehicle that was parked in a private lot after arresting the owner.
The court stated “After a bench trial, the defendant was convicted of shoplifting, in violation of G. L. c. 266, § 30A/D; possessing ammunition without a FID card, inviolation of G. L. c. 269, § 10; leaving a firearm in a vehicle, in violation of G. L. c. 140, § 141C; carrying a firearm without a license, in violation of G. L. c. 269, § 10(a); and possessing a Class D substance (marijuana), in violation of G. L. c. 94C, § 34. He appeals. We affirm in part and reverse in part.
The defendant was seen at the Walmart store in Chicopee using a knife or razor to cut open the package of a DVD player, which he then placed under his shirt. Store security gave this information to local police, who apprehended the defendant before he left the store. A search of the defendant’s pockets revealed a knife, a firearm shell, and a folded piece of cardboard containing green vegetable-like matter. The defendant was informed that he was under arrest for unlicensed possession of ammunition, shoplifting by concealment, and possession of marijuana.
The defendant’s car was parked in the store’s lot. It was not illegally parked, nor was it obstructing traffic. No one from Walmart requested that the car be removed. The police nonetheless took the position that the car needed to be towed for safekeeping and so informed the defendant. He responded, ‘Whatever, okay.’ The police then searched the car and found some partially-smoked marijuana cigarettes in the ashtray, a folded dollar bill containing powdered cocaine in the armrest, a loaded handgun under the driver’s seat, and a canvas bag containing five shotgun shells in the trunk.
Motion to suppress. It rests with the Commonwealth to prove that a warrantless search falls within one of the narrow exceptions to the warrant requirement. Commonwealth v. Phillips, 413 Mass. 50, 55 (1992). Here, the Commonwealth contends that the search fell within two such exceptions: first, it argues that the defendant consented to the impoundment and search of his vehicle; second, it argues that the police conducted a permissible inventory search. The claims fail.
We now turn to the Commonwealth’s contention that the police conducted a valid inventory search. ‘A lawful inventory search is contingent on the propriety of the impoundment of the car.’ Commonwealth v. Brinson, 440 Mass. 609, 612 (2003), citing Commonwealth v. Garcia, 409 Mass. 675, 678 (1991). A car lawfully parked in a privately owned commercial establishment’s parking lot cannot be impounded unless there is evidence that the ‘car presented a hazard or was likely to be stolen or vandalized.’ Brinson, 440 Mass. at 617. Impoundment ‘is generally justified if supported by public safety concerns or by the danger of theft or vandalism to a vehicle if left unattended.’ Commonwealth v. Daley, 423 Mass. 747, 750 (1996). Alternatively, impoundment may be justified if the owner of the lot requests that the car be removed, or if the owner of the car consents to its removal. Brinson, supra. The Chicopee police department’s written motor vehicle inventory policy is consistent with our law in that it provides that an ‘inventory shall not be conducted . . . [where t]he vehicle is not to be removed and does not impede traffic flow and is not illegally parked.’
Here, the car was lawfully parked in the store’s lot. It was not obstructing traffic or creating a hazard of any kind. Store personnel did not ask that the car be removed. There was nothing to indicate that the defendant, who at that time was under arrest only for relatively minor offenses, would not be able to return to remove his car later that day. But even if that were not the case, there was no prohibition against leaving the car in the lot overnight. Against this, the Commonwealth points only to the possibility of vandalism, based on a single incident approximately two years earlier during the construction of the store, when a car left overnight had been vandalized. In the absence of evidence showing any current risk or evidence that the defendant would need to leave the car overnight, this single dated act of vandalism was not enough to justify impounding the car.
The record also does not support a finding that the defendant consented to the removal of his car. As noted above, we understand the defendant’s response of ‘whatever, okay’ to be mere acquiescence. Although the motion judge found that the defendant consented to have his car towed, she did so based on several unsupported factual findings. Specifically, the judge found that the defendant told the officer that his wife ‘could not come to Chicopee to pick up their car – just tow it.’ In fact, the officer never testified that the defendant said ‘just tow it’ or words to that effect. Likewise, the judge found that ‘the Defendant gave the police his keys,’ a finding that both parties agree is erroneous. Similarly, although a car may be impounded if the owner of the lot requests that the police remove it, G. L. c. 266, § 120D, the parties agree that the judge’s finding that such a request was made was erroneous. No one from Walmart asked that the car be removed from the lot or said that it could not remain there overnight.
Because the defendant did not consent to the search of his car, and because the circumstances did not justify impounding his car, the motion to suppress should have been allowed with respect to all items located in the defendant’s car.
Because we conclude for other reasons that the motion to suppress should have been allowed, we need not reach the defendant’s argument that this unorthodox procedure resulted in a miscarriage of justice. We note, however, that evidence should not be taken in this manner and that the information obtained should not have been relied on in any way by the judge in ruling on the motion to suppress.
For the reasons set out above, we reverse the order denying the defendant’s motion to suppress the items found in his car. We reverse the judgments on the counts of the complaint charging leaving a firearm in a vehicle, carrying a firearm without a license, and possessing marijuana, and set aside the findings of guilty on those counts. The judgment on the count of the complaint charging possession of ammunition without a FID card (count one) is affirmed.”
Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel’s decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. That said, I disagree with the finding in the case, and Comm v. Delong 60 Mass. App. Ct. 528 (2004) would support that. In Delong the Appeals court found that police CAN tow from a private parking lot.
Attorney Ronald A. Sellon