by Douglas Ankney

The Supreme Judicial Court of Massachusetts ruled that, where officers are aware that a passenger could lawfully assume control of a vehicle, it is improper to impound the vehicle upon the arrest of the driver without first offering the option to the driver.

Two Boston police officers observed a Honda Accord with what appeared to be a defective taillight. A check of the vehicle’s registration number revealed that its owner, Wilson Goncalves-Mendez, had an outstanding misdemeanor default warrant. The officers stopped the vehicle and verified Goncalves-Mendez was the driver.

There was a passenger in the front seat who complied with one officer’s request for identification. Computer checks revealed the passenger had no outstanding warrants, his license was valid, and he was not a suspect in any other crimes. Furthermore, the passenger did not appear to be under the influence of any intoxicating substances.

One of the officers informed Goncalves-Mendez he was under arrest because of the default warrant and that his vehicle would be towed. Per departmental policy, the vehicle was searched and inventoried in preparation for impoundment. During the search, a firearm was discovered under the driver’s seat, and Goncalves-Mendez said it was his. He was charged with multiple firearms violations.

He moved to suppress the evidence seized during the inventory search and his subsequent statement on the ground that the search was unlawful. A municipal court judge granted Goncalves-Mendez’s motion, and the Commonwealth appealed. The appeal was ultimately transferred to the Massachusetts Supreme Judicial Court.

The Court observed that “[t]he Commonwealth bears the burden of proving that a warrantless inventory search is lawful.” Commonwealth v. Oliveira, 47 N.E.3d 395 (Mass. 2016). For an inventory search to be lawful, the Court explained the “[i]mpoundment must be undertaken for a legitimate, noninvestigative purpose, and must be ‘reasonably necessary based on the totality of the circumstances.’” Id.

The Court stated that “[t]he propriety of an impoundment turns on whether police could have concluded that they had no lawful, practical alternative.” It examined precedents where impoundment was found reasonable notwithstanding the presence of a passenger and concluded that in each case the passenger was not lawfully able to assume custody of the vehicle, e.g., the passenger was inebriated, didn’t have a driver’s license, had outstanding warrants, etc.

The Court noted that it has previously held that “police officer were required to honor an owner’s or authorized driver’s requested alternative to impoundment where doing so was ‘lawful and practical.’” Id. And the Court has ruled an inventory search of personal belongings was unreasonable where police were independently aware of an alternative to seizing them. Commonwealth v. Abdallah, 54 N.E.3d 1100 (Mass. 2016).

Finally, the Court observed that departmental policy provides that one alternative to impoundment when a driver is arrested is to “leave [the vehicle] with a person having apparent authority to assume control over it.” Boston Police Department Rules and Procedures, Rule 103 § 31.

The Commonwealth conceded that transferring custody to the passenger was a reasonable alternative to impounding the vehicle and one that the officers would have been required to honor had Goncalves-Mendez requested it. But the Commonwealth argued that, pursuant to the Court’s jurisprudence, the burden was on Goncalves- Mendez to suggest the alternative. In rejecting that argument, the Court pointed out that it had never held the police could disregard a readily apparent alternative merely because a defendant didn’t request it. The Court concluded that officers cannot determine if impoundment is reasonably necessary unless they first ask the driver if he or she wishes to exercise the option of having a passenger assume lawful custody of the vehicle. The Court instructed that because this duty articulated in this case is not dictated by precedent, “it shall apply prospectively.”

In the instant case, the impoundment was not reasonably necessary, which meant the search was unreasonable, and the evidence uncovered was unlawfully obtained. Accordingly, the Court affirmed the Municipal Court’s order granting the motion to suppress. See: Commonwealth v. Goncalves-Mendez, 4138 N.E.3d 1038 (Mass. 2020). 

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