By Douglas I. Louison of Louison, Costello, Condon & Pfaff, LLP
A trial court judge denied the a criminal defendant’s motion to suppress evidence that was collected while a police officer was searching a car for ownership information prior to towing the car. The Commonwealth argued that the police found the evidence during a lawful search for the registration documents, which were needed to tow the car, and that the evidence was in plain view.
The Massachusetts Appeals Court overruled the trial court’s denial of the suppression motion. Starting with the presumption that all warrantless searches are illegal unless they fit into a few narrow exceptions, the Court held that plain view alone is not enough to justify the warrantless seizure of evidence, and there are three prerequisites that must be established before the plain view doctrine comes into play. First, the police must be “lawfully in a position from which the view and object (to be seized).” Commonwealth v. Santana, 420 Mass 205, 211 (1995). Second, the object must be patently illegal, such as contraband, and not mere evidence for which extrinsic context is necessary to determine the object’s criminal nature. Commonwealth v. Silva, 61 Mass. Ap. Ct. at 31. Thirdly, the police must have come across the object inadvertently. Id.
The Commonwealth needed to prove that there was a constitutionally adequate written police policy providing the justification for an intrusion. Commonwealth v. Bishop, 402 Mass. 449, 4519 (1988). There was no evidence of a policy and if there were one it would allow searches every time an impoundment occurred. The court held that an impoundment of a car and an inventory search of a car are not synonymous.
The Court reversed the denial of the motion to suppress the evidence because there was no written policy and thus no ability for the Court to scrutinize the policy and procedures encompassed and no way to judge the constitutionality of such policy. Additionally, while impoundment was proper, the search was not. The court held that the search was unnecessary for the impoundment and towing of the car.
Commonwealth v. Silva, 61 Mass. Ap. Ct. at 31.