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Commonwealth v. Rostad, 410
Supreme Judicial Court of Massachusetts, Hampshire.
Argued
Decided
Nancy Gertner,
Ariane D. Vuono,
Asst. Dist. Atty., for Com.
Before LIACOS, C.J., and WILKINS, NOLAN, O'CONNOR and GREANEY,
JJ.
O'CONNOR, Justice.
The
defendant is under indictment for several drug offenses. She moved to suppress drugs, taken from her
handbag by a police officer at the Belchertown police station without a
warrant, and drugs and drug‑related equipment subsequently taken from her
automobile by a State trooper pursuant to a search warrant. After an evidentiary hearing, a judge of the
Superior Court denied the motion to suppress.
A single justice of this court allowed the defendant's application for
interlocutory appeal. We now reverse the
order denying the defendant's motion.
[410
According
to the judge's findings, the Belchertown police had a written policy for the
transportation and custody of arrested persons which stated in relevant part
that "[t]he officer‑in‑charge or an officer designated by him
shall search the arrestee and make an inventory of all items collected. The arrestee shall be asked to sign the
inventory list." An officer
unzipped and opened the defendant's handbag and inventoried its contents, which
included bags and packets containing drugs.
The officer reported the discovery to the State police and they obtained
a warrant to search the defendant's automobile.
In the automobile, they found drugs, documents, and a set of weights for
a balance scale.
In Commonwealth v. Bishop, 402 Mass. 449,
523 N.E.2d 779 (1988), decided before the arrest and searches in this case, we
affirmed the order of a Superior Court judge suppressing the contents of a
zippered gym bag which had been located on the open bed of a truck that the
police had impounded. We held that
"art. 14 of the Declaration of Rights requires the exclusion of evidence
seized during [an inventory] search not conducted pursuant to standard
police procedures." Id. at 451, 523 N.E.2d 779, quoting Commonwealth v. Ford, 394 Mass. 421,
426, 476 N.E.2d 560 (1985). We also held
that, because there was no standard State police policy specifically focused on
"whether and under what circumstances closed containers should be opened
and the contents inventoried," the gym bag contents were correctly [410
Mass. 620] Id. at 451‑452, 476
N.E.2d 560. In addition, we announced
that, after Bishop (Bishop was decided on June 6, 1988),
inventory searches would not be considered valid except when conducted pursuant
to standard police procedures that were written. Id. at 451, 476 N.E.2d 560.
[1][2][3]
The motion judge in the present case was well aware of our decision in Bishop and discussed it at some
length. He concluded, however, that the
"requirement of specificity" enunciated in Bishop with respect to written procedures applicable to a closed
container on the bed of a truck was not intended by this court to apply to a
wallet or handbag which are normally carried on the person and are primarily
designed to hold valuables. The judge's
reasoning, with much of which we agree, was as follows: "The legitimate aims of a custodial
search include the safeguarding of the prisoner's property, protection of the
police against charges of theft, and keeping out of the jail any thing
dangerous to the prison administration.
Such searches must, however, be carefully circumscribed by law because,
as an exception to the ordinary constitutional requirements, they may be
conducted without warrant or probable cause.
Hence such a search must follow a standard or routine procedure adopted
and recognized by the police force; it
may not extend beyond the custodial necessities which are its sole
justification; and it may not be allowed
to become a cover or pretext for an investigative search. Commonwealth v. Sullo, [26 Mass.App.Ct. 766,
532 N.E.2d 1219 (1989) ]. Since the
decision in Commonwealth v. Bishop,
supra, such standard police procedures must be in writing and, at least in
the case of automobile inventory searches, must specify whether and under what
circumstances closed containers should be opened and their contents
inventoried.
"In
this case the Belchertown police did have a written policy mandating a search
of all arrestees and the making of an inventory of all items collected. The policy did not specifically indicate the
procedure to be followed in the case of closed containers carried by the
arrestee upon his or her person. I
cannot believe, however, that the requirement of specificity[410 Mass. 621] extends to such containers
as wallets (see Commonwealth v. Wilson,
389 Mass. 115, 448 N.E.2d 1130 [1983] ), shoulder bags (see Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct.
2605, 77 L.Ed.2d 65 [1983] ) or handbags carried by the arrestee. Such containers are the ones most likely to
contain those types of property that most require being inventoried‑‑such
items, for example as cash, credit cards, keys and jewelry‑‑because
they are the type of property most susceptible to loss or theft. Authority to search such containers is
therefore implicit in an injunction to search the person of an arrestee and
inventory all items collected. There is
a distinction for inventory purposes between a gym bag left in the bed of a
pickup truck by its owner, and a handbag carried into the police station by a
female arrestee.
"In
this case, for example, if the police simply took the defendant's handbag from
her without making an inventory of its contents, they ran the risk of being
later accused of stealing some of those contents. If, on the other hand, they did not take her
handbag from her when they locked her up, they ran the risk of permitting the
introduction of contraband or even weapons into the jail or other place of
detention. The written policy that had
been adopted was designed to avoid that type of dilemma. This was not a case in which the police tried
to use an inventory search as a pretext for an investigative search. They were attempting to comply with the
dictates of the written policy of their department for the very reasons that
the policy was adopted. To rule, as the
defendant suggests, that the policy was defective because it failed to
explicitly state the obvious would be to frustrate what had been a good
faith (and I believe successful) effort to comply fully with constitutional
requirements. I do not believe that such
a ruling is mandated by constitutional principles (state or federal) or by the
decided cases."
We agree
with the judge's statement of the purposes of a custodial search and that such
searches, as an exception to the ordinary constitutional requirements of
probable cause and a warrant, must be carefully circumscribed by law with the
result that they must follow standard police procedures. In addition, as we said in Commonwealth v. Bishop, supra, 402
Mass. at [410 Mass. 622] 451, 523 N.E.2d 779, those procedures
must be written. Nothing we said in Bishop was intended to suggest that
that requirement did not extend to searches of the person. The court's language was not so limited. As we recently said in Commonwealth v. Garcia, 409 Mass. 675, 684‑685, 569 N.E.2d
385 (1991), citing Bishop, "[w]e
have made it clear that, if police open a closed container during an inventory
search in the absence of a specific written procedure requiring them to do so,
then any evidence they discover in the container must be suppressed."
[4]
"The underlying rationale for allowing an inventory exception to the
Fourth Amendment warrant rule is that police officers are not vested with
discretion to determine the scope of an inventory search."
Colorado v. Bertine, 479 U.S. 367, 376,
107 S.Ct. 738, 743, 93 L.Ed.2d 739 (1987) (Blackmun, J., concurring), citing South Dakota v. Opperman, 428 U.S. 364,
382‑383, 96 S.Ct. 3092, 3103‑3104, 49
L.Ed.2d 1000 (1976) (Powell, J., concurring).
See Commonwealth v. Ford, 394
Mass. 421, 425, 476 N.E.2d 560 (1985).
The underlying rationale for allowing an inventory exception to art. 14
of the Massachusetts Declaration of Rights is the same. In light of that rationale, we do not agree
that the written policy of the Belchertown police, that "[t]he officer‑in‑charge
or an officer designated by him shall search the arrestee and make an inventory
of all items collected," was specific or "obvious" enough. More precisely, perhaps, we do not agree that
the policy was explicit enough to guard against the possibility that police
officers would exercise discretion with respect to whether to open closed
wallets and handbags as part of their inventory search. It may be true, as the judge observed, that
"[a]uthority to search such containers is ...
implicit in an injunction to search the person of an arrestee and inventory all
items collected," but we think that an injunction in such general terms is
not entirely clear and therefore unacceptably invites the exercise of police
officer discretion. Nothing we said in Commonwealth v. Garcia, supra, relied
on by the dissenting Justice, suggests a different result. There, we held that a written procedure requiring
inventory of a motor vehicle is sufficient to direct the police to enter not
only the vehicle's passenger compartment but also its trunk compartment. Id.
409 Mass. at 684, 569 N.E.2d 385.
However, we were careful [410
Mass. 623] to say that "[o]ur conclusion that a procedure directing an officer to
inventory the contents of a vehicle is sufficient to direct him to open the
trunk does not extend to the opening of a closed container." Id. So too, a procedure directing an officer to
"search the arrestee and make an inventory of all items collected"
does not extend to the opening of a closed container.
We hold
that art. 14 requires the exclusion of the drugs seized in the inventory search
of the defendant's handbag. Also, we
hold that the evidence seized from the defendant's automobile must be
suppressed because it is the fruit of the unlawful search of the handbag. The Commonwealth has not argued that, even if
the search of the handbag was unlawful, the search of the automobile was
valid. We reverse the order denying the
defendant's motion to suppress and remand this case to the Superior Court for
further proceedings.
So ordered.
NOLAN,
Justice (dissenting).
In Commonwealth v. Garcia, 409 Mass. 675,
569 N.E.2d 385 (1991), decided after
Commonwealth v. Bishop, 402 Mass. 449, 523 N.E.2d 779 (1988), this court
was faced with an inventory search of an automobile. In that case, the written policy governing
such searches was silent with respect to the duty of the officer to open the
trunk, directing only that police were to conduct "an inventory of the
contents" of the vehicle. We held
that, "[a]lthough [the written] procedures do
not specifically mention opening the trunk, they do impose on the police the
responsibility for safeguarding the contents of the vehicle, and they direct
that an inventory be taken of the contents of the vehicle. These procedures do not leave police with
improper discretion as to whether to open the trunk." Commonwealth v. Garcia, supra,
409 Mass. at 684, 569 N.E.2d 385.
In so
holding we recognized that a directive to inventory the contents of an
automobile logically includes the contents of the automobile's trunk. The legitimate aims of an inventory search,
"the protection of the vehicle and its contents; [410 Mass. 624] the protection of the police ... from
false charges; and the protection of the
public from dangerous items which might be in the vehicle," necessitated
opening the trunk of the vehicle. Id. at 682, 569 N.E.2d 385.
Similarly,
I would hold that a written directive to inventory "all items" on a
person taken into custody must include an inspection of those closed
containers, such as wallets or handbags, which are most likely to contain
valuable items, items most at risk of being stolen and which are the most
likely objects of false theft claims against a police department. A more detailed written policy may be
necessary for opening other types of closed containers, which are less likely
to contain valuables, but a search which did not open a closed handbag in order
to inventory the contents would not accomplish any of the legitimate goals
which justify a warrantless intrusion.
Notwithstanding Bishop, I would hold that opening the
handbag was reasonable, even in the absence of explicit written authorization
to do so. (FN1) Therefore, the search of the handbag did not
violate art. 14 of the Massachusetts Declaration of Rights. I dissent.
(FN1.) Whether the same can be said of opening
the various closed containers located in the handbag is an altogether different
matter. The motion judge made the
following findings of facts, most of which are ignored in the court's
decision. "Officer Antonovitz unzipped and opened the defendant's handbag and
inventoried its contents in her presence.
When he began to do so another officer asked her if she had any illegal
substances in it, and she replied 'Yeah pot'.... From the handbag, he removed an eyeglass
case containing a baggy with brown vegetable matter in it; 5 paper packets of a type used for packaging
narcotics for sale; a bag with a bag of
white powder in it which proved to be cocaine;
a small matchbox containing hashish;
several items of paraphernalia associated with the use of cocaine; and $600.00 in cash." Because the court addresses only the broad
issue whether the initial opening and search of the handbag was proper, I too
confine myself to that issue.