|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Ford, 394
Supreme Judicial Court of Massachusetts,
Middlesex.
Argued
Decided
Pamela L. Hunt, Asst. Dist. Atty., for the
Commonwealth.
Maureen B. Brodoff,
Before HENNESSEY, C.J.,
and WILKINS, LIACOS, ABRAMS and LYNCH, JJ.
WILKINS, Justice.
The
defendant was convicted of unlawfully carrying a firearm under his control in a
motor vehicle in violation[394
Following
his conviction at a bench trial in the District Court, the defendant appealed
to the District Court jury session and filed a motion to suppress the rifle
(and other items), alleging that the intrusion into the trunk of the motor
vehicle violated his rights under the Fourteenth Amendment to the Constitution
of the United States (and under the Fourth Amendment) and under art. 14 of the
Declaration of Rights of the Constitution of the Commonwealth. That motion was denied. He was found guilty by a jury and appealed to
the
We summarize
the facts found by the motion judge and presented by Officer Chase in his
testimony at the hearing on the motion to suppress. In the early hours of December 4, 1981,
Officer Chase was on routine patrol in Watertown. He saw the defendant operating a motor
vehicle and, aware that there was an arrest warrant outstanding against the
defendant, stopped the vehicle. The
defendant, who was alone, produced a license but no registration. He told Officer Chase that he was waiting for
title on the vehicle before registering it.
Officer Chase arrested the defendant and took him to the police station,
where Officer Chase learned from the Registry of Motor Vehicles[394 Mass. 423] that the vehicle was
unregistered. He decided to remove the
vehicle from the street where, because of the coincidence of where it had been
stopped, it was parked in a restricted area.
A private tow truck was called, and the officer returned to the motor
vehicle.
Because he
knew that personal property had been stolen from vehicles that had been
towed and stored by the private tow company, the officer reached into the
vehicle to secure its contents. As he
removed the ignition key from the defendant's key ring, Officer Chase noticed
eight‑track tapes on the seat and on the floor of the passenger side of
the vehicle. He opened the locked trunk
in order to place the tapes in the trunk and saw the rifle. Officer Chase testified that the Watertown
police department did not have any specific procedure for securing property
found in a vehicle that was about to be towed, but that, unless it was
particularly valuable, most officers placed personal property seen in a
vehicle's passenger compartment in the trunk, left the ignition key with the
car, and took all other keys to the station.
The motion
judge concluded that Officer Chase did not intend to search the vehicle, that
he did not expect to find contraband, that he had a legitimate reason for
opening the trunk, and that the rifle was in plain view. He accordingly denied the motion to suppress.
[1][2][3][4][5]
1. The Commonwealth argues that there was no search in the constitutional sense
because Officer Chase was not looking for anything when he opened the trunk of
the motor vehicle. See State v. Tully, 166 Conn. 126, 131‑133,
348 A.2d 603 (1974); Model Code of Pre‑Arraignment
Procedure § SS 210.1(1) (Official Draft 1975).
We reject this argument and agree with the Appeals Court that, whatever
a police officer's intentions may be, when he intrudes into an area in which a
person has a reasonable expectation of privacy, it is a search for
constitutional purposes. "In our
view the sounder course is to recognize that the Fourth Amendment [and art. 14
govern] all intrusions by agents of the public upon personal security, and to
make the scope of the particular intrusion, in light of all the exigencies of
the case, a central element in the analysis of reasonableness.... [394
Mass. 424] This seems preferable to
an approach which attributes too much significance to an overly technical
definition of 'search.' " Terry v. Ohio, 392 U.S. 1, 17‑18 n.
15, 88 S.Ct. 1868, 1878 n. 15, 20 L.Ed.2d 889
(1968). Thus a search occurs whenever
"an expectation of privacy that society is prepared to consider reasonable
is infringed." United States v. Jacobsen, 466 U.S. 109,
104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984). We think there was a search for the purposes
of the Fourth Amendment. Commonwealth v. Ford, 17 Mass.App. at 507, 459 N.E.2d 1242, and authorities
cited. We hold, in any event, that it
was a search for the purposes of art. 14 of the Declaration of Rights. The officer's state of mind may be
significant in determining whether the search was reasonable or unreasonable,
but it is not significant in determining whether there was a search in this case. (FN1)
2. We turn
then to the question of the reasonableness of the intrusion. The parties have discussed by analogy cases
involving inventory searches. In South Dakota v. Opperman,
428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976),
the Supreme Court of the United States upheld the seizure of contraband found
in the course of an inventory search, pursuant to standard police procedures,
of the unlocked glove compartment of a locked, impounded motor vehicle. The Court stated generally that "inventories
pursuant to standard police procedures are reasonable," id. at 372, 96 S.Ct.
at 3098, and noted, in discussing Cady v.
Dombrowski, 413 U.S. 433, 436, 93 S.Ct. 2523, 2525, 37 L.Ed.2d 706 (1973), that "the
protective search was carried out in accordance with standard procedures in the local police department, ... a factor
tending to ensure that the intrusion would be limited [394 Mass. 425] in
scope to the extent necessary to carry out the caretaking function," South Dakota v. Opperman,
supra 428 U.S. at 374‑375, 96 S.Ct. at 3100
(emphasis in original). Similarly, in
his concurring opinion in the Opperman case, Justice Powell emphasized that, when
"[i]nventory searches
are conducted in accordance with established police department rules or
policy," officers cannot "make a discretionary determination to
search" and "there is no significant danger of hindsight
justification." Id. at 383, 96 S.Ct.
at 3104 (Powell, J., concurring). We
have also noted the importance of standard police procedures when an inventory
search is conducted, Commonwealth v.
Wilson, 389 Mass. 115, 117, 448 N.E.2d 1130 (1983); Commonwealth v. Matchett, 386 Mass. 492, 510, 436 N.E.2d 400 (1982),
and have suggested that a particular inventory search of a vehicle's trunk
conducted in accordance with standard police procedures may have been
reasonable under the Fourth Amendment.
See Commonwealth v. Hason, 387 Mass. 169, 178, 439 N.E.2d 251 (1982). (FN2)
[6][7] We
need not decide whether the same principles apply to storage searches and
inventory searches. There are, however,
differences between the two procedures.
(FN3) Nor need we decide [394 Mass. 426] whether the motion judge was correct in concluding that the
particular circumstances of the storage search of the trunk were reasonable. We agree instead with the Appeals Court that,
to be lawful, any such search must at least be conducted according to standard
procedures established by the police department. Because there is no basis on this record in
this case for finding that the storage search in this case was conducted
pursuant to standard procedures established by the Watertown police department,
we conclude that the search was unreasonable.
There may
be some question whether an inventory or storage search of the locked trunk of
a vehicle impounded on a public way must be conducted pursuant to standard
police procedures in order to meet the requirements of the Fourth
Amendment. We, therefore, state, as a
separate, adequate, and independent ground, that such a search must at least be
made pursuant to such procedures in order to satisfy art. 14 of the Declaration
of Rights.
[8] We are
thus holding that art. 14 of the Declaration of Rights requires the exclusion of evidence seized during a storage
search not conducted pursuant to standard police procedures. We have recently considered claims of
exclusion based on art. 14 but in the circumstances did not have to decide
whether violations of art. 14 required the exclusion of evidence. See
Commonwealth v. Upton, 394 Mass. 363, 364, 476 N.E.2d 548 (1985). Cf.
Selectmen of Framingham v. Municipal Court of the City of Boston, 373 Mass.
783, 787‑788, 369 N.E.2d 1145 (1977) (civil case; evidence excluded as a matter of
Massachusetts law). We have consistently
noted in recent years the possibility that art. 14 affords more substantive
protection to criminal defendants than prevails under the Constitution of the
United States. Commonwealth v. Upton, supra 394 Mass. at
373, 476 N.E.2d 548 and cases cited. In Commonwealth v. Sheppard, 394 Mass.
381, 391, 476 N.E.2d 541 (1985), we concluded on the facts that a violation of
art. 14 did not require exclusion of evidence.
This case, however, involves circumstances in which art. 14 [394 Mass. 427] requires exclusion of evidence.
We suspect the Supreme Court of the United States would reach the same
conclusion under the Fourth Amendment.
A warrantless search conducted without consent, without
probable cause, and without exigent circumstances justifying the intrusion
(such as protection against potential danger), but conducted pursuant to
standard procedures, will have a greater chance of meeting constitutional
requirements than an ad hoc practice such as is involved in this case. A search pursuant to standard procedures will
eliminate any element of discretion in the decision to conduct an inventory or
a storage search. We do not decide,
however, or imply that, if a storage search is conducted pursuant to standard
police procedures, evidence seized in the search will be admissible. (FN4)
3. The
motion to suppress should have been allowed.
The judgment is reversed, and the verdict set aside. It may be that the defendant is entitled to
entry of a judgment of not guilty. The
case is remanded to the District Court for consideration of that question.
So ordered.
[394 Mass. 428] LYNCH, Justice (dissenting).
This case
presents the question whether the only evidence of a crime should be suppressed
because a "storage search" was conducted in the absence of
standardized police procedures for doing so.
After deciding that the Fourth Amendment to the United States
Constitution requires suppression, the majority goes on to create for the first
time an exclusionary rule under art. 14 of the Declaration of Rights to the
Constitution of the Commonwealth. I do
not agree that the Fourth Amendment mandates suppression here, and I would not
create an exclusionary rule under art. 14 to exceed the protections already
provided by the Fourth Amendment.
Accordingly, I dissent.
1. Fourth Amendment. It is not at all clear, as the majority
implies, that the Fourth Amendment requires the suppression of evidence in
every inventory or storage search where standard police procedures are
nonexistent or not followed. In
inventory search situations, the Supreme Court has steadfastly avoided applying
strict tests, but instead has consistently focused on the
"reasonableness" of the search under all of the circumstances. See, e.g.,
South Dakota v. Opperman, 428 U.S. 364, 372‑373,
96 S.Ct. 3092, 3098‑3099, 49 L.Ed.2d 1000
(1976);
Cooper v. California, 386 U.S. 58, 59, 87 S.Ct.
788, 789, 17 L.Ed.2d 730 (1967). It has
expressly rejected the creation of any "detailed formula" to decide
these cases. Cady v. Dombrowski,
413 U.S. 433, 448, 93 S.Ct. 2523, 2531, 37 L.Ed.2d
706 (1973). While the Supreme Court has
held that police procedures are "a factor" in deciding if an
inventory search is reasonable (South
Dakota v. Opperman, supra 428 U.S. at 375, 96 S.Ct. at 3100), it has never held that inventory searches
are per se unreasonable if not conducted pursuant to those procedures. It is therefore not illogical to conclude
that "the reasonableness of a particular inventory search may be obvious
even in the absence of direct evidence concerning a police department's standard
procedures." United States v. Prescott, 599 F.2d 103,
106 (5th Cir.1979). Such a view is even
more persuasive in a case such as this, "where valuables in plain view
might have provided an incentive for theft." United States v. Hellman, 556 F.2d 442, 444 n. 4 (9th Cir.1977). By deciding that storage searches not
necessarily conducted in accordance with procedures established by the local
department are always unreasonable,[394 Mass. 429] (FN1) the majority ignores
the Supreme Court's admonition that "[t]he test of reasonableness cannot
be fixed by per se rules; each case must be decided on its own
facts." South Dakota v. Opperman,
supra 428 U.S. at 373, 96 S.Ct. at 3099, quoting
Coolidge v. New Hampshire, 403 U.S. 443, 510, 91 S.Ct.
2022, 2060, 29 L.Ed.2d 564 (1971) (opinion of Black, J.). Instead, we are to balance the defendant's
rights and the benefits of exclusion against legitimate government interests
and the costs of exclusion. See United States v. Leon, 468 U.S. 897,
104 S.Ct. 3405, 3412‑3413, 82 L.Ed.2d 677
(1984);
Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct.
2605, 2608 n. 1, 77 L.Ed.2d 65 (1983).
Examining
the reasonableness of the officer's action under the circumstances of this case
leads me to conclude that suppression is not required by the Fourth
Amendment. It is not disputed that the
motor vehicle was lawfully impounded, and it seems clear that probable cause
was not required to impound the vehicle or to conduct a storage search. See
South Dakota v. Opperman, supra 428 U.S. at 370
n. 5, 96 S.Ct. at 3097 n. 5. The officer's uncontradicted
testimony was that although no "specific procedure" existed,
"the general procedure ... used by most officers is to securing [sic ] any personal property that might
be found inside of the passenger compartment to secure it in the trunk of the
vehicle." (FN2) The motion judge specifically found that the
officer had acted in good faith, (FN3) and the defendant has not contested that
finding.
[394 Mass. 430] No
general, exploratory rummaging took place.
See Commonwealth v. Sheppard,
387 Mass. 488, 523, 441 N.E.2d 725 (1982) (Lynch, J., dissenting) (Sheppard I ), rev'd,
468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984).
The
majority attempts to distinguish a storage search from an inventory search,
implying that a storage search is somehow more intrusive and less
justified. But the distinctions cited by
the majority are irrelevant. In both
cases, the police act to protect another's property while it is in police
custody and to protect themselves against claims of loss or theft. (FN4) South Dakota v. Opperman,
supra 428 U.S. at 369, 96 S.Ct. at 3097. The storage search in this case resulted
when valuables in plain view were placed in a locked trunk for security. Unlike an inventory search, the officer did
not open the glove compartment or look under the seats. Unlike an inventory search, the officer was
not even looking for anything when he opened the trunk. Although the majority apparently bases its
decision on prevention of "a discretionary determination to search,"
there is no evidence supporting a conclusion that the officer did so in this
case, or that the search was conducted as a pretext. Id. at 383, 96 S.Ct. at 3104 (Powell, J., concurring). See
Commonwealth v. Matchett, 386 Mass. 492, 511, 436
N.E.2d 400 (1982). To say that in these
circumstances the storage search was more intrusive than an inventory search
simply ignores reality. And the fact
that less intrusive alternatives may have been available does not necessarily
or invariably obviate the reasonableness of the action. Illinois v. Lafayette, supra
103 S.Ct. at 2610.
Furthermore,
as a matter of policy, there is no justification for exclusion in this
case. Two principles are generally cited
to justify application of the exclusionary rule‑‑the deterrence of
police misconduct and the protection of "judicial integrity." See 1 W. LaFave,
Search and Seizure § 1.1, at 17 (1978).
The majority takes issue only with the lack of standardized, written
procedures, not with the reasonableness of the officer's actions in this
case. Logically, then, applying the
exclusionary rule here serves no substantial deterrent function.
United States v. Leon, supra 104 S.Ct. at
3413 n. 6. If there is any doubt, the
majority [394 Mass. 431] also does not question the officer's
good faith; nor could it, given the
judge's explicit, uncontradicted findings on that
issue. Since exclusion can have no
deterrent effect when police act in good faith, reasonably held (id. 104 S.Ct.
at 3419; Commonwealth v. Nine Hundred and Ninety‑two
Dollars, 383 Mass. 764, 771, 422 N.E.2d 767 [1981] ), deterrence is no
ground for exclusion here. The majority
seeks to deter the possibility of future abuse that might conceivably result
from a lack of written, standardized procedures. While that may be a laudable policy goal, it
has no application to the facts of this case.
Likewise,
exclusion here would do nothing to advance judicial integrity. Considerations of judicial integrity
presuppose a wilful constitutional violation. See
United States v. Peltier, 422 U.S. 531, 538, 95 S.Ct. 2313, 2318, 45 L.Ed.2d 374 (1975);
Selectmen of Framingham v. Municipal Court of the City of Boston,
373 Mass. 783, 787, 369 N.E.2d 1145 (1977); Carey v. Zayre of
Beverly, Inc., 367 Mass. 125, 130, 324 N.E.2d 619 (1975). There is no evidence of such a wilful violation in this case.
Given that
"the expectation of privacy with respect to one's automobile is
significantly less than that relating to one's home or office" (South Dakota v. Opperman,
supra 428 U.S. at 367, 96 S.Ct. at 3096), I would
hold that, in the circumstances of this case, the officer's action was
reasonable and does not require suppression under the Fourth Amendment.
2. Article 14. Recognizing that its decision under the
Fourth Amendment is open to "some question," the majority seeks
firmer ground for the foundation of its opinion, and finds it in art. 14. With nary a hint of the policies justifying
its action, the court creates an exclusionary rule under art. 14 for the first
time in the history of the Commonwealth.
The court finds in art. 14 a rule that has remained undiscovered since
1780 and that has been specifically rejected when asserted. See, e.g.,
Commonwealth v. Sheppard, 394 Mass. 381, 388, 476 N.E.2d 541 (1985) (Sheppard II ); Commonwealth v. Wilkins,
243 Mass. 356, 359, 138 N.E. 11 (1923); Commonwealth v. Dana, 2 Met. 329, 334
(1841). With considerable thought, this
court recently declined, for various reasons, to create an
exclusionary rule under art. 14 in both
Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548 (1985) (Upton II ), and Sheppard II, supra. In
fact, in Upton II, supra at 365, 476
N.E.2d 548, the court reiterated[394
Mass. 432] that it "has never accepted the concept
of an exclusionary rule under the State Constitution when a search violated the
requirements of art. 14." Today
the majority does accept such a concept, treated in but two footnotes of the
defendant's brief. (FN5)
By merely
stating in conclusory language that "[t]his case
... involves circumstances in which art. 14 requires exclusion of
evidence" (ante at 564), the
court gives no guide for determining when exclusion is appropriate. The majority has thus created a standard that
is "unacceptably shapeless." Upton II, supra at 373, 476 N.E.2d 548,
quoting Commonwealth v. Upton, 390
Mass. 562, 574, 458 N.E.2d 717 (1983) (criticizing the "totality of the
circumstances" test for probable cause).
Compare State v. Opperman, 247 N.W.2d 673, 674‑675 (S.D.1976) (to
be "reasonable" under South Dakota Constitution, inventory searches
must be conducted without investigative motive and limited to articles in plain
view).
Furthermore,
the majority fails to apply the very standards adopted by this court in Sheppard II. In that case, the court held that exclusion
was not required because there was no prejudice to the defendant, defining
prejudice in terms of the substantiality of the asserted violation. Id.
394 Mass. at 391 & n. 8, 476 N.E.2d 548.
In determining substantiality, we are to consider particularly the
extent of the deviation from lawful conduct, the extent to which the violation
was wilful, the extent to which privacy was invaded,
the extent to which exclusion will tend to prevent violations of the law, and
the extent to which the violation prejudiced the defendant's ability to defend
himself. See Sheppard II, supra at 390 n. 8, 476 N.E.2d 548;
Sheppard I, supra 387 Mass. at 507‑508 n. 20, 441 N.E.2d
725. The conspicuous absence of any
analysis along the lines suggested in
Sheppard II is not surprising, since it is manifestly clear that none of
the principles in that analysis would justify exclusion here. The majority has cited what it considers to
be significant distinctions between this case and Sheppard II, but it [394
Mass. 433] has not provided any new
standards for deciding cases which it considers distinguishable. Moreover, nothing in the majority opinion
explains why the test so recently adopted in
Sheppard II, where the court similarly faced the question whether a search
was "unreasonable" within the meaning of art. 14, would be
inappropriate in these circumstances.
(FN6)
As I have
already indicated, the twin principles generally said to justify an
exclusionary rule‑‑deterrence and judicial integrity‑‑are
not advanced by exclusion here.
Moreover, I believe it is unwise to create an exclusionary rule under
art. 14, and I see no justification in this case to create a rule that goes
beyond protection already afforded by the Fourth Amendment.
The Fourth
Amendment's exclusionary rule is "a judicially created remedy," not a
constitutional right of the accused. United States v. Calandra,
414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561
(1974).
United States v. Leon, 468 U.S. 897, 104 S.Ct.
3405, 3412, 82 L.Ed.2d 677 (1984). This
court has expressly accepted that approach under art. 14. Sheppard II, supra 394
Mass. at 391, 476 N.E.2d 541. See Commonwealth v. Nine Hundred and Ninety‑two
Dollars, 383 Mass. 764, 770‑772, 422 N.E.2d 767 (1981). Whether or not exclusion is required under
art. 14
presents a broad issue of policy, to be decided by an analysis of
whether exclusion is appropriate in light of the principles which have
traditionally involved the exercise of our power to remedy the violation of
constitutional rights.
The
Supreme Court, in its wisdom, created the Federal exclusionary rule in Weeks v. United States, 232 U.S. 383,
34 S.Ct. 341, 58 L.Ed. 652
(1914), and extended its application to State court proceedings in Mapp v. Ohio,
367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081
(1961). In the more than seventy years
of its Federal existence, and the twenty years of its application to the
States, the rule has become more, not less, confusing to administer on both the
law enforcement and judicial[394
Mass. 434] levels.
I am not convinced that departures from judicially acceptable police
practice which nevertheless meet Fourth Amendment standards could not be
remedied more effectively in other ways than by creation of a State exclusionary
rule. See, e.g., Berry v. Commonwealth, 393 Mass. 793, 798, 473 N.E.2d 1115 (1985)
("Common law principles may provide greater protections than either the
State or the Federal Constitution requires"). The experience of the Federal rule should be
sufficient to encourage us to consider other paths before striking out on a
course whose pitfalls are only too apparent.
The
primary justification for an exclusionary rule is the deterrence of police
misconduct. United States v. Calandra,
supra 414 U.S. at 347, 94 S.Ct. at 619. Mapp v. Ohio, supra 367 U.S. at 656, 81 S.Ct. at 1692. Sheppard I, supra 387 Mass. at 502, 441
N.E.2d 725. 1 W. LaFave,
Search and Seizure § 1.1, at 17 (1978).
But there is little or no evidence that the exclusionary rule effectively
serves this purpose. See, e.g., Oaks,
Studying the Exclusionary Rule in Search and Seizure, 37 U.Ch.L.Rev.
665 (1970). See also Harris, The Return
to Common Sense: A Response to "The
Incredible Shrinking Fourth Amendment," 22 Am.Crim.L.Rev.
25, 42‑44 (1984). On the other
hand, it is remarkably efficient, in cases where it applies, at keeping
relevant and highly probative evidence from being considered by the trier of fact.
Furthermore, even assuming that there may be cases where it is appropriate
to exclude evidence under art. 14 (see
Upton I, supra 390 Mass. at 580 n. 1, 458 N.E.2d 717 [Lynch, J.,
dissenting] ), I have already discussed why this case is not one of them.
The
exclusionary rule is also said to be the defender of "judicial integrity." 1 W. LaFave, supra.
This justification was designed in an effort to prevent courts from
becoming "accomplices in the willful
disobedience of a Constitution they are sworn to uphold" (emphasis added).
Elkins v. United States, 364 U.S. 206, 223, 80 S.Ct.
1437, 1447, 4 L.Ed.2d 1669 (1960). See Selectmen of Framingham v. Municipal Court
of the City of Boston, 373 Mass. 783, 787, 369 N.E.2d 1145 (1977). Considering that judicial integrity in this
Commonwealth could also be preserved in other, less doctrinaire ways (for
example, using our general superintendence power under G.L.
c. 211, § 3), it becomes a very slender reed on which to base such a pervasive
rule. Perhaps that is why the court in [394 Mass. 435] Sheppard I, supra 387 Mass. at 502, 441
N.E.2d 725, stated that "judicial integrity fails as a substantial,
independent support for the rule [of exclusion]." Even granting its precarious foundation as
support for an exclusionary rule, it is clear that "the imperative of
judicial integrity, in this particular instance," is not at stake, since
no wilful violation occurred. Sheppard I, supra at 518,
441 N.E.2d 725 (Liacos, J., concurring).
I agree
with the majority's strong hint that police departments should quickly adopt
written procedures governing storage and inventory searches, to avoid these
questions in the future. However, the
majority invites unnecessary litigation by refusing to state that a storage
search conducted pursuant to reasonable, standardized, and written procedures
will be upheld, thus failing to identify clearly just what it is about storage
searches in general or this search in particular that offends art. 14. Presumably, the court's implicit admonition
to police departments requiring such procedures is intended to be more than an
academic exercise. Nevertheless, the
opinion leaves open to doubt whether any
storage
or inventory search will be considered compatible with art. 14. (FN7)
I do not believe that, presented with such a case, this court would go
so far.
3. Conclusion. In sum, I see no sufficient justification
for creating an exclusionary rule under art. 14 that goes beyond the reach of
the Fourth Amendment. If the Fourth
Amendment does not protect against some form of improper police conduct,
another remedy can be found that is less likely to extract the enormous social
cost and confusion engendered by an exclusionary rule. No harsh or oppressive results would follow
from such a decision, since Fourth Amendment protections would still be
available. I merely reject an extension
of a rule which makes a defendant's desire to conceal contraband a legitimate
privacy expectation. Cf. United States v. Jacobsen, 466 U.S.
109, 104 S.Ct. 1652, 1661‑1662, 80 L.Ed.2d 85[394 Mass. 436] (1984). Therefore, I would resolve this case solely
under the Fourth Amendment. Since I
believe the majority has erroneously construed the protection provided by that
amendment, I would reverse the decision of the Appeals Court and affirm the judge's
denial of the motion to suppress.
(FN1.) This case does not involve an entry
into an impounded vehicle either to secure the vehicle or to secure property in
plain view with the resulting discovery of other property in plain view within
the passenger compartment. In such a
case, that other property could be seized reasonably and its admission in
evidence would be proper. See Harris v. United States, 390 U.S. 234,
236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968)
(evidence in plain view seized in securing an impounded vehicle, admissible); State
v. Tully, 166 Conn. 126, 136‑137, 348 A.2d 603 (1974) (evidence found
in plain view on entering a vehicle with a broken window to remove personal
property for safekeeping, admissible).
If, for example, Officer Chase had found a rifle in plain view inside
the passenger compartment of the vehicle when he entered it to remove keys and
subsequently to secure the tapes, the seizure of the rifle would have been
constitutionally proper. In the case
before us, however, we are concerned with an intrusion into a locked trunk.
(FN2.)
The question whether an inventory search of a locked trunk is constitutionally
permissible has not expressly been answered by the Supreme Court of the United
States and has been variously answered by other courts. See
South Dakota v. Opperman, supra, 428 U.S. at 385
n. 1, 96 S.Ct. at 3105 n. 1 (Marshall, J.,
dissenting). Compare United States v. Wilson, 636 F.2d 1161, 1163‑1165 (8th
Cir.1980) (may not inventory trunk), with
United States v. Edwards, 577 F.2d 883, 893‑894 & n. 23 (5th
Cir.), cert. denied, 439 U.S. 968, 99 S.Ct. 458, 58
L.Ed.2d 427 (1978), and United States v.
Martin, 566 F.2d 1143, 1145 (10th Cir.1977) (allowing trunk inventories
when made pursuant to standard procedures).
Some State courts have dealt with the question of trunk inventories
under their own Constitutions and have arrived at different conclusions. Compare
State v. Sawyer, 174 Mont. 512, 517‑518, 571 P.2d 1131 (1977) (no
trunk inventories), State v. Opperman, 247 N.W.2d 673, 675 (S.D.1976) (safeguarding
permitted only of articles in plain view), and State v. Goff, 272 S.E.2d 457, 460, 462 n. 7 (W.Va.1980) (no trunk
inventories), with State v. Fortune,
236 Kan. 248, 256‑258, 689 P.2d 1196 (1984), and State v. Prober, 98 Wis.2d 345, 351, 353‑355,
297 N.W.2d 1 (1980) (inventory search of trunks permissible). There is no need to decide in this case
whether the Fourth Amendment or art. 14 prohibits generally an inventory or
storage search of a vehicle's trunk.
(FN3.)
One difference, as we have noted, is the purpose of the police officer's
intrusion. Additionally, the need to
open a locked trunk differs in the two situations. In this case, there was no need to open the
locked trunk in order to secure the tapes, and thus that intrusion may well
have been less reasonable than in a case in which the opening of a locked trunk
is necessary to conduct an inventory search.
The defendant's key ring had to be taken to the police station, and it
is unclear on this record why the tapes could not have gone along with the key
ring.
(FN4.)
The dissent surprisingly faults the court for not espousing standards on which
its decision is based. We have indicated
standards and the basis for exclusion of the evidence in this case. This was a warrantless
search. Searches pursuant to a search
warrant present different questions concerning the exclusion of evidence. Here, there was neither probable cause to
search nor any special circumstances, such as an emergency, to justify a warrantless search without probable cause. However the dissent may view the matter, the
fact remains that in an inventory search a vehicle's trunk has to be opened and
in a storage search it does not. If a
storage search is to be constitutionally reasonable, action pursuant to
established police procedures seems appropriately required. We see no reason to "decide" a case
not before us, and thus we leave open the question of the constitutionality of
a storage search conducted pursuant to established police procedures.
(FN1.)
I respectfully suggest that insubstantial departures from such regulations will
not be grounds for suppression under either the Fourth Amendment or art.
14. See United States v. Hellman, 556 F.2d 442,
446 (9th Cir.1977) (Sneed, J., concurring); Commonwealth v. Sheppard, 394 Mass. 381,
391, 476 N.E.2d 541 (1985) (Sheppard II
).
(FN2.) The officer testified finding valuables
roughly fifty times in the past, and that "[t]he overwhelming majority of
the time ... I have secured them in the trunk of the car." He did acknowledge that there were occasions
when he felt "that the value of the item warranted bringing it directly to
the station" (one example was a mink coat).
(FN3.) The judge stated: "I conclude that the police officer was
attempting to secure the property of the owner of the vehicle and in doing so
he opened the trunk. I further conclude
that he inadvertently observed the presence of the firearm.... I further conclude from the testimony of the
police officer that when he entered the trunk he did not intend to search the
vehicle, that he was not under any impression at that time that he would in
fact find contraband...."
(FN4.) There was uncontradicted
testimony that the Watertown police had past complaints about property stolen
from vehicles in the lot where the defendant's automobile was impounded.
(FN5.) Compare our treatment in Sheppard II and Upton II, where on remand from the Supreme Court we invited
additional briefs directly addressing this issue and heard further argument.
(FN6.) It is true that, as the majority notes,
there was no warrant in this case. Nor
were exigent circumstances involved.
However, proper inventory and storage searches, by definition, presume a
lack of investigative intent. For that
reason, neither a warrant nor exigent circumstances have, until today, been
deemed necessary to conduct these routine, administrative functions. See
South Dakota v. Opperman, supra 428 U.S. at 370
n. 5, 96 S.Ct. at 3097 n. 5.
(FN7.) The majority identifies lack of
consent, lack of probable cause (and the concomitant lack of a warrant), and
lack of exigent circumstances as problems with storage searches. But few knowledgeable defendants will consent
to searches of any kind, while probable cause and exigent circumstances will
rarely be present, given the nature of the search. These same considerations hold true for
inventory searches.