|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Sullo, 26 Mass.App.Ct. 766 (1989)
Appeals Court of Massachusetts,
Middlesex.
No. 87‑1345.
Argued
Decided
Rosemary D. Mellor, Asst. Dist. Atty., for the Com.
William R. Marino,
Before BROWN, KAPLAN, and KASS, JJ.
KAPLAN, Justice.
Sergeant
James Conley of the
As a
result of these searches, Sullo was charged with violation of the gaming law,
G. L. c. 271, § 17. He moved at a jury‑of‑six
session in District Court to suppress the items seized. His motion succeeded with respect to the
material seized from the car; that
search was held "pretextual," and the Commonwealth did not attempt an
appeal. Sullo's motion failed regarding
the personal inventory search. After
trial and conviction of the gaming offense, Sullo appeals, bringing up for
review the refusal to suppress information derived from certain business cards
seized during the inventory search. We
hold this was error, which infects the judgment of conviction.
To return
to the details of the inventory search at the police station, from the
defendant's right front pocket came bills in the amount of $2,200 and from his
left front pocket bills totalling $5,250.
Also brought out was a vinyl or plastic business card holder wrapped
with an elastic band. Conley removed the
elastic, opened the case, took out thirty business cards and a piece of paper
folded to the size of a business card, and perused each of the cards and the
paper. On fifteen of the cards and on
the paper, Conley testified, "there are initials, there are pluses,
minuses, and there are figures."
Conley said [26 Mass.App.Ct.
768] he recognized the writings as
"cuff sheets" in a gambling operation. (FN2)
The cards and the paper were seized and sequestered.
[1] The
scrutiny of the writings is defended by the Commonwealth as a legitimate part
of an inventory search. A search of that
category is carefully circumscribed by law because, as an exception to the
ordinary constitutional requirements, the search may be conducted without
warrant or probable cause. First, the
search must follow a standard or routine procedure adopted and recognized by
the police force. Second, it may not
extend beyond the custodial necessities which are its sole justification. Third, it may not become a cover or pretext
for an investigative search. We believe
the present search was illegal by reference to each and all of these canons.
1. Conley
testified that he "inventoried according to procedure," meaning
thereby that he took or received the items from Sullo's person, made note of
them, and placed them in envelopes or the like for safekeeping. The procedure, such as it was, was unwritten,
and thus almost inevitably vague.
(FN3) But quite apart from that,
the procedure was defective because it gave no guidance on the treatment of
papers taken from an arrestee, a class of property with particular claims to
privacy. In Commonwealth v. Bishop, 402 Mass. 449, 451, 523 N.E.2d 779 (1988),
the (written) police standard for search of motor vehicles was held
insufficient because it did not deal with the extent of lawful search
of a "container" found in a vehicle.
The (unwritten) [26
Mass.App.Ct. 769] procedure in the
present case suffered from just as serious a lacuna. (FN4)
2.
Conley's sifting and perusal of the backs of the business cards, yielding
information, was not a proper part of an inventory search because it did not
respond to the fair custodial purposes as described below (including,
prominently, the flushing out of weapons and contraband).
[2] The
question of the permissible extent of police examination of an arrestee's
papers arose during the early analysis by the American Law Institute, on
principle, of inventory (custodial) searches.
In the Model Code of Pre‑Arraignment Procedure (approved by the
Institute in 1975), we find the following (at 530): "The legitimate aims of a custodial
search have been described as including the safeguarding of the prisoner's
property, protection of the police against charges of theft, and keeping out of
the jail any things dangerous to prison administration. Generally speaking, none of these purposes
will justify reading the accused's papers, except for the limited purposes
specified in Subsection (2) [of § SS 230.6]." The subsection (at 146) states in part: "Documents or other records may be read
or otherwise examined only to the extent necessary for such purposes
[custodial], including identity checking and ensuring the arrestee's physical
well‑being."
In South Dakota v. Opperman, 428 U.S. 364,
96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) (5‑4 decision), the Court validated
the warrantless search pursuant to standard procedure of the unlocked glove
compartment of an impounded motor vehicle.
Justice Powell, joining in the Court's opinion and expressing additional
views, discussed the limits on these searches fixed by their intrinsic
purposes. Coming to the scrutiny of
writings encountered in these searches, Justice Powell said (at 380 n. 7, 96
S.Ct. at 3102): "As part of their
inventory search the police may discover materials such as letters or [26 Mass.App.Ct. 770] checkbooks that 'touch upon intimate
areas of an individual's personal affairs,' and 'reveal much about a person's
activities, associations, and beliefs.' California Bankers Assn. v. Shultz, 416
U.S. 21, 78‑79, 94 S.Ct. 1494, 1525‑1526, 39 L.Ed.2d 812 (1974)
(Powell, J., concurring). See also Fisher v. United States, 425 U.S. 391,
401 n. 7, 96 S.Ct. 1569, 1576 n. 7, 48 L.Ed.2d 39 (1976). In this case the police found, inter alia, 'miscellaneous papers,' a
checkbook, an installment loan book, and a social security status card. Record 77.
There is, however, no evidence in the record that in carrying out their
established inventory duties the Vermillion police do other than search for and
remove for storage such property without examining its contents." It is believed that the whole Court would
have agreed with this negative indication regarding the examination of papers. (See note 5, infra.)
We need to
put to one side propositions that are not involved in order to reach the
particular point that is in issue. For
the present analysis we need not dispute that the police, before committing a
person to a cell, may take up and inventory and retain in custody all the items
he has on his person, including even those drawn from a container; we need not quarrel with an inventory of the
contents of a wallet, see Commonwealth v.
Wilson, 389 Mass. 115, 117, 448 N.E.2d 1130 (1983), or of a shoulder bag,
see Illinois v. Lafayette, 462 U.S.
640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983).
Similarly we can assume that the police may handle a collection of
papers or the like so as to draw out money or a thin packet of drugs that may
have been interleaved. We can even
assume arguendo that the police are not required to blind themselves to
information appearing on a paper or card that declares its nature to anyone at
sight, such as a driver's license or credit card. What the police may not do is hunt for
information by sifting and reading materials taken from an arrestee which do
not so declare themselves: here is the
vice aimed at by the A.L.I. and the passage from Opperman. As such scrutiny
serves none of the practical, lawful objectives of an inventory search
preceding incarceration, it is proscribed by the constitutional provisions
unless done under warrant on probable cause.
(FN5)
[26 Mass.App.Ct. 771] Opinions approaching the particular
point are not numerous. In State v. Rodewald, 376 N.W.2d 416, 421‑422
(Minn.1985), Amdahl, C.J., showed awareness that, while riffling through cards
to get at any concealed drugs might be legal procedure, information obtained by
a sedulous reading of the cards should be excluded as evidence, consistently
with Justice Powell's statement in Opperman.
Opinions in People v. Hamilton,
74 Ill.2d 457, 467‑469, 24 Ill.Dec. 849, 386 N.E.2d 53 (1979), Boone v. State, 39 Md.App. 20, 30‑32,
383 A.2d 412 (1978), State v. Mangold,
82 N.J. 575, 591‑592, 414 A.2d 1312 (1980) (Pashman, J., concurring), and People v. Roman, 53 N.Y.2d 39, 41, 439
N.Y.S.2d 894, 422 N.E.2d 554 (1981), all referring to the Opperman passage, appear sympathetic to the view we express
here; and decisions of the courts of
Alaska and Hawaii take positions referable to their State constitutions that
would lead to the support of that view.
See Reeves v. State, 599 P.2d
727 (Alaska 1979); Lyle v. State, 600 P.2d 1357 (Alaska
1979);
State v. Kaluna, 55 Haw. 361, 520 P.2d 51 (1974). A few California cases may now be looking the
other way: perhaps they (incorrectly)
recognize no limits on the use of information culled from papers; perhaps the papers involved were thought to
have declared themselves to any person who handled them in the course of
inventory. See People v. Hovey, 44 Cal.3d 543, 570‑571, 244 Cal.Rptr. 121,
749 P.2d 776 (1988); People v. Hamilton, 46 Cal.3d 123, 137‑138,
249 Cal.Rptr. 320, 756 P.2d 1348 (1988); People v. Dominquez, 201 Cal.App.3d 345,
247 Cal.Rptr.81 (1988).
[3] [26 Mass.App.Ct. 772] 3. In making an inventory‑‑taking
from the person, noting what is received, and placing it in safekeeping‑‑the
police are to act more or less mechanically, according to a set routine, for to
allow then a range of discretion in going about a warrantless search would be
to invite conduct which by design or otherwise would subvert constitutional
requirements. The police officer herein
was not merely following a routine; he
was using discretion in exploring a lead.
The lead was provided by the stacks of money found on Sullo's person; speculation about the origins of the money
brought about the close inspection of the markings on the backs of the
cards. But here the constitutions, State
and Federal, came into play to require a showing of probable cause and exigent
circumstances if a warrant was to be forgone.
The distinction is between an inventory search and an investigative
search, a search for evidence. The judge
below, although stating that standard procedure was followed, quite clearly
gave up the true purport of the officer's conduct when he emphasized that
"[t]he appearance of a defendant at a booking desk at approximately 3:00
A.M. ... and possessing approximately $7,500 in cash is not a usual
occurrence" and then justified his ruling that the treatment
of the cards was legal by pointing to "the totality of the
circumstances." These are the
telltale signs of an investigative search:
here "the procedure was a pretext concealing an investigatory
police motive." Commonwealth v. Matchett, 386 Mass. 492,
510, 436 N.E.2d 400 (1982). (FN6)
The
Commonwealth has not carried its burden of establishing that this was a lawful
inventory search. Upon the facts, we
reach our own conclusion concerning the constitutional question.
For error
in the denial of the motion to suppress, the judgment is reversed, and the
verdict is set aside.
SO
ORDERED.
(FN1.) The judge's findings of fact upon the
motion to suppress are here supplemented by uncontested details. See
Commonwealth v. Oreto, 20 Mass.App.Ct. 581, 582, 482 N.E.2d 329 (1985).
(FN2.)
Conley had very little experience with gambling offenses and did not qualify as
an expert on gambling techniques or paraphernalia. A Commonwealth expert testified at trial that
a "cuff list" or "bottom sheet" is a "list of account
designations for a gambling operation which list the amounts that are owed to
the bettors by the operation and the figures would be reflected in a plus or
minus figure."
(FN3.)
In Commonwealth v. Ford, 394 Mass.
421, 426, 476 N.E.2d 560 (1985), search of an automobile was held invalid
because the Watertown police had no standard procedure for such searches. The Watertown police later adopted a written
procedure for those searches but not for pre‑incarceration inventory
searches like the one at bar. By the
later decision in Commonwealth v. Bishop,
402 Mass. 449, 451, 523 N.E.2d 779 (1988), a procedure, to count thereafter as
standard, must be in writing.
(FN4.)
The card holder at bar, enclosed by an elastic band, is a kind of
"container." The question of
the legality of breaching a container in a search of an impounded motor vehicle
was reserved in the Bishop case (402
Mass. at 451 & n. 1, 523 N.E.2d 779).
The question is perhaps more acute in the case of a container taken in
the course of an inventory search of an arrested person. In the present opinion we skirt the whole
issue of the legality of opening containers, as the appeal may be decided on
other grounds.
(FN5.)
Professor LaFave has the following comment:
"It is to be doubted, however, whether inventory justifies scrutiny
of particular items beyond that necessary to identify them in an inventory
list, and thus a close or complete reading of documents or letters beyond that
necessary to determine their general character would be improper. In
South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 ...
(1976), upholding inventory of impounded vehicles, Justice Powell, who provided
the deciding vote, indicated he would not approve of the close examination of
'materials such as letters or checkbooks that "touch upon intimate areas
of an individual's personal affairs." '
It is possible nonetheless that in merely sorting out these papers
during inventory something incriminating will catch the eye of the inventory
officer. See, e.g., People v. Perel, 34 N.Y.2d 462, 358 N.Y.S.2d 383, 315 N.E.2d 452
... (1974), (officer saw on a slip of paper the name of a woman who had
obtained an abortion); State v. Mordeszewski, 68 Wis.2d 649, 229
N.W.2d 642 ... (1975) (defendant objects officer should not have read papers in
his wallet; court responds headline of
newspaper clipping about recent rape merely 'caught his eye' as he scanned the
half inch thick packet of papers in defendant's wallet)." 2 LaFave, Searches & Seizures § 5.3(a),
at 482 n. 30 (2d ed.1987).
(FN6.)
General Laws c. 127, § 3 (record keeping of money and other property taken from
prisoners) provides no basis for investigatory searches, nor does it palliate
the other violations described in this opinion.