COMMONWEALTH v. JONES (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Melvin Jones, was indicted on a charge of possession of phencyclidine (PCP) with the intent to distribute. See G. L. c. 94C, § 32A (a). Following a jury trial, he was found guilty of the lesser included offense of possession of a class B substance. See G. L. c. 94C, § 34. On appeal, the defendant contends that the motion judge erred in denying his motion to suppress the evidence found in an inventory search of his car. We affirm.

Background. We recite the facts as found by the motion judge, supplemented by uncontroverted evidence from the suppression hearing that is consistent with her findings. See Commonwealth v. Alexis, 481 Mass. 91, 93 (2018).

At around 1:30 a.m. on June 23, 2017, two police officers were patrolling the downtown Main Street area of Springfield. When the officers passed the defendant's car, the officers' mobile plate reader issued an alert. The officers confirmed that the plate belonged to a stolen vehicle. The officers stopped the defendant's car. After learning that the defendant's license was suspended, and the car was unregistered, the officers arrested the defendant and made arrangements to tow the unregistered vehicle. Another officer responded to the scene and assisted in the inventory search of the car.

When the officer opened the center console, he saw a soda can, the top of which had been altered. There was a gap under the top of the soda can, and a plastic bottle cap was visible through the top of the can. He also smelled a strong chemical odor. Based on his training and experience, the officer knew that an altered can was a device typically used to store drugs. He showed the soda can to the arresting officers, and unscrewed the top. In it were small baggies containing a black substance.² They also found a small scale and multiple plastic sandwich bags in the back seat of the car.

Discussion. In reviewing a ruling on a motion to suppress, “we adopt the motion judge's subsidiary findings of fact absent clear error, but we independently determine the correctness of the judge's application of constitutional principles to the facts as found.” Commonwealth v. Larose, 483 Mass. 323, 326 (2019), quoting Commonwealth v. Buckley, 478 Mass. 861, 864 (2018).

An inventory search of a car is permitted to protect the car and its contents “from the threat of theft or vandalism; to protect the police and the tow company from false claims; and to protect the public from dangerous items that might have been left in a vehicle.” Commonwealth v. Davis, 481 Mass. 210, 218 (2019). The search must be reasonable and must be conducted in accordance with a written inventory policy. See Commonwealth v. Alvarado, 420 Mass. 542, 553 (1995). Cf. Commonwealth v. Mauricio, 477 Mass. 588, 595 (2017).

Once it became apparent that the car was going to be towed, the department's inventory policy required that the officers conduct an inventory search.³ The motion judge found that the officers followed the Springfield Police Department inventory policy, and concluded that the policy authorized the search of locked or closed containers, such as the center console.⁴ See Commonwealth v. White, 469 Mass. 96, 101 (2014) (inventory policy permitted opening of closed container). Contrast Commonwealth v. Vanya V., 75 Mass. App. Ct. 370, 374-375 (2009) (inventory policy “insufficiently precise” with respect to locked versus closed containers). In addition, the officer was authorized, under the inventory policy, to locate the source of the chemical odor to determine whether there were any dangerous substances in the car.⁵

The defendant contends that the inventory search of the automobile was transformed into an investigatory search because the officers suspected the can was a hide, and harbored an investigatory purpose or objective when they examined it. This argument appears to be premised on the assertion that the can was innocent in appearance, and that further examination impermissibly expanded the scope of the search for investigatory purposes. See, e.g., White, 469 Mass. at 101. However, the judge made a fully supported factual finding that the officers saw (upon opening the console) that the can had been altered, and that something was inside it. Under the inventory policy, the officers were obligated to inventory its contents. See Commonwealth v. Matchett, 386 Mass. 492, 510 (1982) (officer suspicion of criminal activity “should not vitiate his obligation to conduct the inventory” [quotation omitted] ). Moreover, the officers' knowledge that an altered soda can may be used to hide drugs does not mean that the search exceeded the bounds of a proper inventory search. “[T]he fact that the [officer] might also have had suspicions that the defendant was involved in drug trafficking does not invalidate the validity of the inventory search, otherwise justified and properly conducted.” Commonwealth v. Rosario-Santiago, 96 Mass. App. Ct. 166, 176 (2019). The inventory search here was properly conducted, and did not metamorphose into an investigatory search.

Judgment affirmed.

FOOTNOTES

2.   The substance was later determined to be PCP.

3.   There is no challenge to the propriety of the tow order. The inventory policy states, “[w]henever a motor vehicle is ordered towed by a department member, that member shall assume the responsibility for inventorying and safeguarding the contents of the vehicle.”

4.   “The scope of this inventory shall include any locked or closed containers within the vehicle that can be opened without damage as well as any locked portions of the vehicle itself that can be accessed without causing damage (e.g. glovebox, trunk, suitcases, boxes etc.)”

5.   Among the stated purposes of the inventory policy is to “protect departmental personnel and the public against injury from dangerous substances or items that may be in the vehicle.”