COMMONWEALTH vs. ATREYO CROWLEY-CHESTER.

BERRY, J. The defendant was charged with carrying a firearm without a license, in violation of G. L. c. 269, § 10(a), and possession of a firearm or ammunition without a firearm identification (FID) card, in violation of G. L. c. 269, § 10(h). After an evidentiary hearing, a District Court judge allowed the defendant's motion to suppress the loaded firearm recovered by police during an inventory search following the impoundment of the Honda

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automobile in which the defendant had been a passenger. [Note 1]

Suppression was based on the judge's finding that the impoundment and inventory of the Honda were not necessary. However, the governing standard is not one of necessity; rather the standard is whether the police actions in impounding and conducting an inventory search of a motor vehicle are reasonably undertaken based on the specific facts and circumstances presented. For the reasons that follow, we conclude that the impoundment, towing, and inventory of the automobile were reasonable, constitutionally appropriate, and compliant with the written police impoundment policy. Accordingly, we reverse the order allowing the motion to suppress.

1. Background. We summarize the findings of the motion judge, supplemented with undisputed facts adduced at the suppression hearing. Commonwealth v. Isaiah I., 448 Mass. 334 , 337 (2007), S.C., 450 Mass. 818 (2008). On March 15, 2011, Springfield police Officers Longo and Canini were on routine patrol on William Street in Springfield. At approximately 3:00 A.M., the officers observed a dark-colored Honda automobile legally parked next to a vacant lot with its engine running and its lights off. Given the late hour, the running engine, and an area known to the officers to have a high crime rate, the police officers shined the police cruiser's spotlight toward the inside of the Honda and saw that it contained two occupants. As the officers illuminated the vehicle's interior, the defendant passenger slouched down in his seat.

The officers got out of their cruiser and approached the Honda, shining flashlights into the parked car as they approached. Officer Longo saw the defendant quickly move his left hand between the center console and his left leg in an apparent attempt to conceal a dark-colored object in his hand. (Later, it was established that the dark object in the defendant's hand was a glove.)

Officer Canini ordered both the driver and the defendant to show their hands and remain still. The two did not comply with the show-hands command. As Officer Canini continued to approach the driver's side of the Honda, he saw in plain view a silver folding-blade knife in the center cup holder. Officer Canini ordered the driver and the defendant to step out of the vehicle. As the driver did so, he put his right hand into his jacket pocket. Officer Canini told him to remove his hand from the pocket. As

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the driver did that, a white, rock-like substance fell to the ground. Based on his experience, Officer Canini recognized the substance to be "consistent with crack cocaine." The driver was placed under arrest. The officers seized the knife.

Following his arrest, the driver requested that the officers allow the defendant to drive the Honda from the site. However, a computerized check revealed that the defendant did not have a driver's license. Given the foregoing state of affairs, the officers decided the car should be towed from the scene. Pursuant to the Springfield police department's written policy concerning the impoundment and towing of a motor vehicle, an inventory search of the Honda and its contents was conducted. See generally Commonwealth v. Bishop, 402 Mass. 449 , 451 (1988). [Note 2]

On the floor behind the passenger's seat, Officer Longo found

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gloves, a ski mask, a hooded sweatshirt, and a pair of sunglasses. [Note 3] In the trunk, the police found a backpack with the defendant's name, "Atreyo," inscribed on it. Under the written police inventory policy, the backpack was opened by the police, and within the backpack were found a loaded handgun, another hooded sweatshirt, gloves, and a pay stub with the defendant's name on it.

On appeal, the Commonwealth's principal points in opposition to the suppression order are that (1) the motion judge applied the incorrect standard of legal necessity in suppressing the firearm found following the Honda's impoundment and the inventory search, and (2) the judge incorrectly relied on, and deferred to, the limited analysis of the police action entries in a six-month computerized dispatch log (CAD). [Note 4] (The CAD document itself was in evidence.) The motion judge's reliance, the Commonwealth submits, was misplaced because the defense analyst's summary of the CAD was substantially incomplete and did not fully account for a number of crime-related entries in the CAD -- which included a series of calls to the police station, with follow-ups of police dispatches and police reports involving not only serious criminal activities generally, but also, in particular, involving criminal and suspicious activities with motor vehicles. [Note 5]

2. Propriety of the impoundment and inventory search. "On a motion to suppress evidence seized during a warrantless search,

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such as an inventory search as was done here, it is the Commonwealth's burden to establish that the evidence was lawfully obtained." Commonwealth v. Eddington, 459 Mass. 102 , 108 (2011) (Eddington). "[T]he propriety of the impoundment of the vehicle is a threshold issue in determining the lawfulness of the inventory search." Commonwealth v. Garcia, 409 Mass. 675 , 678 (1991). With respect to the impoundment and inventory search, under a written police policy, "an officer's judgment in the matter is to be tested by what reasonably appeared to him at the time" (emphasis added). Eddington, supra at 110-111, quoting from Commonwealth v. Sanchez, 40 Mass. App. Ct. 411 , 415 (1996). "The decisions demonstrate that our determinations are fact driven, with the overriding concern being the guiding touchstone of '[r]easonableness.'" Eddington, supra at 108, quoting from Commonwealth v. Ellerbe, 430 Mass. 769 , 776 (2000) (applying reasonableness standard). Commonwealth v. Bienvenu, 63 Mass. App. Ct. 632 , 634 (2005) (same). As these cases establish, it is the reasonableness of the police action which is central. Contrary to the suppression ordered in this case, necessity is not the appropriate governing standard for evaluating the propriety of an impoundment and inventory.

With respect to the reasonableness of a vehicle impoundment, there are two rationales that may justify an impoundment and subsequent inventory. One rationale for impoundment and inventory of a motor vehicle involves public safety. The second rationale for impoundment and inventory involves the risk of property damage to a vehicle left parked on a street and possible claims against the police for potential damage to it if left unattended. "The impoundment of a vehicle for noninvestigatory reasons is generally justified if supported by public safety concerns or by the danger of theft or vandalism to a vehicle left unattended" (emphasis added). Commonwealth v. Brinson, 440 Mass. 609 , 612 (2003) (Brinson), quoting from Commonwealth v. Daley, 423 Mass. 747 , 750 (1996). Both of these justifications apply here.

First, we turn to the public safety rationale. [Note 6] The factual complex including the police sighting of the Honda parked with the

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engine running in a high crime area; the defendant's slouching down when the cruiser spotlight was directed at the Honda; the defendant's additional furtive movements in trying to hide a dark item (a glove) behind the center console; the occupants' refusal to comply with the police order to show hands; the plain sighting of the knife in the center cup holder; the dropping of crack cocaine from the driver's pocket; and the driver's request to have the unlicensed defendant drive the Honda away, yielded a reasonable basis for the police to be concerned, as a matter of public safety, that weapons and drugs (in addition to the discovered knife) might be contained within the Honda. See Commonwealth v. Dunn, 34 Mass. App. Ct. 702 , 703-704 (1993) (impoundment justifiable if supported by reason of public safety); Commonwealth v. Allen, 76 Mass. App. Ct. 21 , 24 (2009). [Note 7]

The inventory of the Honda included opening the backpack found in its trunk. This action was compliant with the Springfield police inventory policy which encompasses "locked or closed containers within the vehicle." See note 2, supra. The "protection of the public from the dangerous items which might be in the vehicle" includes the interior of a locked trunk that is "certainly not invulnerable to vandalism or theft." Commonwealth v. Garcia,

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409 Mass. at 682.

We next turn to the second rationale for impoundment and inventory which pertains to the threat of potential vandalism or damage to a vehicle, such as this Honda, were it to be left vacant and parked on William Street in this high crime area. The CAD record, which was admitted in evidence as a documentary exhibit at the suppression hearing, [Note 8] shows that, in just one six-month period of time, there were documented police reports of such offenses as vandalism, burglary, and suspicious vehicles moving about. Indeed, a close examination of the CAD (contrary to the expert's characterization of a "sprinkling" of serious offenses [Note 9]) reflects an area beset with burglaries, theft, and motor vehicle offenses. Indeed, in just the six-month period covered by the CAD, the police responses and reports involve general criminal offenses, including but not limited to seven incidents involving the breaking and entering of a residence; four reports of larcenies; one armed robbery; and one incident of vandalism. Further and, in particular, as to motor vehicles, the CAD reflects two police responses involving the breaking and entering of motor vehicles, two reports of suspicious motor vehicles, and eight incidents called into the police station which are referred therein generically as traffic control, but which required, and received, a police response to the subject area.

In addition to a fuller review of the actual entries in the CAD criminal activity report and police responses thereto, to be factored is Officer Longo's testimony at the suppression hearing that, at the time of the Honda's impoundment, he was personally aware of a number of crimes that had taken place in the area, including car break-ins and stolen motor vehicles -- happenings which the officer cited as providing a reasonable basis for impounding the Honda, rather than leaving it abandoned on William Street.

Thus, under the standard set forth in Commonwealth v. Ellerbe, 430 Mass. at 776, there were reasonable police concerns about potential theft or vandalism to the Honda if left unattended. See Brinson, supra at 617. Based on the foregoing, we conclude that both the public safety and vandalism/property damage rationales supported the impoundment of the Honda and its inventory search

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pursuant to the written Springfield police policy. Accordingly, the order allowing the motion to suppress is reversed. A new order shall enter denying the motion.

So ordered.