COMMONWEALTH vs. DENNIS R. FORD.

WILKINS, J. The defendant was convicted of unlawfully carrying a firearm under his control in a motor vehicle in violation

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of G. L. c. 269, Section 10 (a). Officer William Chase of the Watertown police department found the firearm in plain view when he opened the motor vehicle's locked trunk to place eight-track tapes in it for safekeeping. He had seen the tapes in the passenger compartment of the motor vehicle which the defendant had been operating when Chase arrested him on an outstanding warrant.

Following his conviction at a bench trial in a District Court, the defendant appealed to the District Court jury session and filed a motion to suppress the rifle (and other items), alleging that the intrusion into the trunk of the motor vehicle violated his rights under the Fourteenth Amendment to the Constitution of the United States (and under the Fourth Amendment) and under art. 14 of the Declaration of Rights of the Constitution of the Commonwealth. That motion was denied. He was found guilty by a jury and appealed to the Appeals Court. The Appeals Court reversed the conviction, holding that the intrusion into the trunk was a search for constitutional purposes and that the intrusion, which it characterized as a "storage search," was unreasonable because it was not made pursuant to standard police procedures. Commonwealth v. Ford, 17 Mass. App. Ct. 505, 507-509 (1984). The Appeals Court left open the question whether the search would have been reasonable if it had been conducted pursuant to standard procedures. Id. at 509. We agree with the Appeals Court's conclusions, but base our decision explicitly on State constitutional grounds.

We summarize the facts found by the motion judge and presented by Officer Chase in his testimony at the hearing on the motion to suppress. In the early hours of December 4, 1981, Officer Chase was on routine patrol in Watertown. He saw the defendant operating a motor vehicle and, aware that there was an arrest warrant outstanding against the defendant, stopped the vehicle. The defendant, who was alone, produced a license but no registration. He told Officer Chase that he was waiting for title on the vehicle before registering it. Officer Chase arrested the defendant and took him to the police station, where Officer Chase learned from the Registry of Motor Vehicles

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that the vehicle was unregistered. He decided to remove the vehicle from the street where, because of the coincidence of where it had been stopped, it was parked in a restricted area. A private tow truck was called, and the officer returned to the motor vehicle.

Because he knew that personal property had been stolen from vehicles that had been towed and stored by the private tow company, the officer reached into the vehicle to secure its contents. As he removed the ignition key from the defendant's key ring, Office Chase noticed eight-track tapes on the seat and on the floor of the passenger side of the vehicle. He opened the locked trunk in order to place the tapes in the trunk and saw the rifle. Office Chase testified that the Watertown police department did not have any specific procedure for securing property found in a vehicle that was about to be towed, but that, unless it was particularly valuable, most officers placed personal property seen in a vehicle's passenger compartment in the trunk, left the ignition key with the car, and took all other keys to the station.

The motion judge concluded that Officer Chase did not intend to search the vehicle, that he did not expect to find contraband, that he had a legitimate reason for opening the trunk, and that the rifle was in plain view. He accordingly denied the motion to suppress.

1. The Commonwealth argues that there was no search in the constitutional sense because Officer Chase was not looking for anything when he opened the trunk of the motor vehicle. See State v. Tully, 166 Conn. 126, 131-133 (1974); Model Code of Pre-Arraignment Procedure Section SS 210.1 (1) (1975). We reject this argument and agree with the Appeals Court that, whatever a police officer's intentions may be, when he intrudes into an area in which a person had a reasonable expectation of privacy, it is a search for constitutional purposes. "In our view the sounder course is to recognize that the Fourth Amendment [and art. 14 govern] all intrusions by agents of the public upon personal security, and to make the scope of the particular intrusion, in light of all the exigencies of the case, a central element in the analysis of reasonableness.

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. . . This seems preferable to an approach which attributes too much significance to an overly technical definition of `search.' " Terry v. Ohio, 392 U.S. 1, 17-18 n.15 (1968). Thus a search occurs whenever "an expectation of privacy that society is prepared to consider reasonable" is infringed. United States v. Jacobsen, 466 U.S. 109, 122 (1984). We think there was a search for the purposes of the Fourth Amendment. Commonwealth v. Ford, 17 Mass. App. Ct. at 507, and authorities cited. We hold, in any event, that it was a search for the purposes of art. 14 of the Declaration of Rights. The officer's state of mind may be significant in determining whether the search was reasonable or unreasonable, but it is not significant in determining whether there was a search in this case. [Note 1]

2. We turn then to the question of the reasonableness of the intrusion. The parties have discussed by analogy cases involving inventory searches. In South Dakota v. Opperman, 428 U.S. 364 (1976), the Supreme Court of the United States upheld the seizure of contraband found in the course of an inventory search, pursuant to standard police procedures, of the unlocked glove compartment of a locked, impounded motor vehicle. The Court stated generally that "inventories pursuant to standard police procedures are reasonable," id. at 372, and noted, in discussing Cady v. Dombrowski, 413 U.S. 433, 436 (1973), that "the protective search was carried out in accordance with standard procedures in the local police department, . . . a factor tending to ensure that the intrusion would be limited

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in scope to the extent necessary to carry out the caretaking function," South Dakota v. Opperman, supra at 374-375 (emphasis in original). Similarly, in his concurring opinion in the Opperman case, Justice Powell emphasized that, when "[i]nventory searches are conducted in accordance with established police department rules or policy," officers cannot "make a discretionary determination to search" and "there is no significant danger of hindsight justification." Id. at 383 (Powell, J., concurring). We have also noted the importance of standard police procedures when an inventory search is conducted, Commonwealth v. Wilson, 389 Mass. 115, 117 (1983); Commonwealth v. Matchett, 386 Mass. 492, 510 (1982), and have suggested that a particular inventory search of a vehicle's trunk conducted in accordance with standard police procedures may have been resonable under the Fourth Amendment. See Commonwealth v. Hason, 387 Mass. 169, 178 (1982). [Note 2]

We need not decide whether the same principles apply to storage searches and inventory searches. There are, however, differences between the two procedures. [Note 3] Nor need we decide

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whether the motion judge was correct in concluding that the particular circumstances of the storage search of the trunk were reasonable. We agree instead with the Appeals Court that, to be lawful, any such search must at least be conducted according to standard procedures established by the police department. Because there is no basis on this record in this case for finding that the storage search in this case was conducted pursuant to standard procedures established by the Watertown police department, we conclude that the search was unreasonable.

There may be some question whether an inventory or storage search of the locked trunk of a vehicle impounded on a public way must be conducted pursuant to standard police procedures in order to meet the requirements of the Fourth Amendment. We, therefore, state, as a separate, adequate, and independent ground, that such a search must at least be made pursuant to such procedures in order to satisfy art. 14 of the Declaration of Rights.

We are thus holding that art. 14 of the Declaration of Rights requires the exclusion of evidence seized during a storage search not conducted pursuant to standard police procedures. We have recently considered claims of exclusion based on art. 14 but in the circumstances did not have to decide whether violations of art. 14 required the exclusion of evidence. See Commonwealth v. Upton, ante 363, 365-366 (1985). Cf. Selectmen of Framingham v. Municipal Court of the City of Boston, 373 Mass. 783, 787-788 (1977) (civil case; evidence excluded as a matter of Massachusetts law). We have consistently noted in recent years the possibility that art. 14 affords more substantive protection to criminal defendants than prevails under the Constitution of the United States. Commonwealth v. Upton, supra at 373, and cases cited. In Commonwealth v. Sheppard, ante 381, 391 (1985), we concluded on the facts that a violation of art. 14 did not require exclusion of evidence. This case, however, involves circumstances in which art. 14

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requires exclusion of evidence. We suspect the Supreme Court of the United States would reach the same conclusion under the Fourth Amendment.

A warrantless search conducted without consent, without probable cause, and without exigent circumstances justifying the intrusion (such as protection against potential danger), but conducted pursuant to standard procedures, will have a greater chance of meeting constitutional requirements than an ad hoc practice such as is involved in this case. A search pursuant to standard procedures will eliminate any element of discretion in the decision to conduct an inventory or a storage search. We do not decide, however, or imply that, if a storage search is conducted pursuant to standard police procedures, evidence seized in the search will be admissible. [Note 4]

3. The motion to suppress should have been allowed. The judgment is reversed, and the verdict set aside. It may be that the defendant is entitled to entry of a judgment of not guilty. The case is remanded to the District Court for consideration of that question.

So ordered.

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LYNCH, J. (dissenting). This case presents the question whether the only evidence of a crime should be suppressed because a "storage search" was conducted in the absence of standardized police procedures for doing so. After deciding that the Fourth Amendment to the United States Constitution requires suppression, the majority goes on to create for the first time an exclusionary rule under art. 14 of the Declaration of Rights to the Constitution of the Commonwealth. I do not agree that the Fourth Amendment mandates suppression here, and I would not create an exclusionary rule under art. 14 to exceed the protections already provided by the Fourth Amendment. Accordingly, I dissent.

1. Fourth Amendment. It is not at all clear, as the majority implies, that the Fourth Amendment requires the suppression of evidence in every inventory or storage search where standard police procedures are nonexistent or not followed. In inventory search situations, the Supreme Court has steadfastly avoided applying strict tests, but instead has consistently focused on the "reasonableness" of the search under all of the circumstances. See, e.g., South Dakota v. Opperman, 428 U.S. 364, 372-373 (1976); Cooper v. California, 386 U.S. 58, 59 (1967). It has expressly rejected the creation of any "detailed formula" to decide these cases. Cady v. Dombrowski, 413 U.S. 433, 448 (1973). While the Supreme Court has held that police procedures are "a factor" in deciding if an inventory search is reasonable (South Dakota v. Opperman, supra at 375), it has never held that inventory searches are per se unreasonable if not conducted pursuant to those procedures. It is therefore not illogical to conclude that "the reasonableness of a particular inventory search may be obvious even in the absence of direct evidence concerning a police department's standard procedures." United States v. Prescott, 599 F.2d 103, 106 (5th Cir. 1979). Such a view is even more persuasive in a case such as this, "where valuables in plain view might have provided an incentive for theft." United States v. Hellman, 556 F.2d 442, 444 n.4 (9th Cir. 1977). By deciding that storage searches not necessarily conducted in accordance with procedures established by the local department are always

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unreasonable, [Note Dissent-1] the majority ignores the Supreme Court's admonition that "[t]he test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts." South Dakota v. Opperman, supra at 373, quoting Coolidge v. New Hampshire, 403 U.S. 443, 510 (1971) (opinion of Black, J.). Instead, we are to balance the defendant's rights and the benefits of exclusion against legitimate government interests and the costs of exclusion. See United States v. Leon, 468 U.S. 897, 908-909 (1984); Illinois v. Lafayette, 462 U.S. 640, 644 n.1 (1983).

Examining the reasonableness of the officer's action in the circumstances of this case leads me to conclude that suppression is not required by the Fourth Amendment. It is not disputed that the motor vehicle was lawfully impounded, and it seems clear that probable cause was not required to impound the vehicle or to conduct a storage search. See South Dakota v. Opperman, supra at 370 n.5. The officer's uncontradicted testimony was that, although no "specific procedure" existed, "the general procedure . . . used by most officers is to securing [sic] any personal property that might be found inside of the passenger compartment to secure it in the trunk of the vehicle." [Note Dissent-2] The motion judge specifically found that the officer had acted in good faith, [Note Dissent-3] and the defendant has not contested that finding.

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No general, exploratory rummaging took place. See Commonwealth v. Sheppard, 387 Mass. 488, 523 (1982) (Lynch, J., dissenting) (Sheppard I), rev'd, 468 U.S. 981 (1984).

The majority attempts to distinguish a storage search from an inventory search, implying that a storage search is somehow more intrusive and less justified. But the distinctions cited by the majority are irrelevant. In both cases, the police act to protect another's property while it is in police custody and to protect themselves against claims of loss or theft. [Note Dissent-4] South Dakota v. Opperman, supra at 369. The storage search in this case resulted when valuables in plain view were placed in a locked trunk for security. Unlike an inventory search, the officer did not open the glove compartment or look under the seats. Unlike an inventory search, the officer was not even looking for anything when he opened the trunk. Although the majority apparently bases its decision on prevention of "a discretionary determination to search," there is no evidence supporting a conclusion that the officer did so in this case, or that the search was conducted as a pretext. Id. at 383 (Powell, J., concurring). See Commonwealth v. Matchett, 386 Mass. 492, 511 (1982). To say that in these circumstances the storage search was more intrusive than an inventory search simply ignores reality. And the fact that less intrusive alternatives may have been available does not necessarily or invariably obviate the reasonableness of the action. Illinois v. Lafayette, supra at 647-648.

Furthermore, as a matter of policy, there is no justification for exclusion in this case. Two principles are generally cited to justify application of the exclusionary rule -- the deterrence of police misconduct and the protection of "judicial integrity." See 1 W. LaFave, Search and Seizure Section 1.1, at 17 (1978). The majority takes issue only with the lack of standardized, written procedures, not with the reasonableness of the officer's actions in this case. Logically, then, applying the exclusionary rule here serves no substantial deterrent function. United States v. Leon, supra at 907 n.6. If there is any doubt, the majority

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also does not question the officer's good faith; nor could it, given the judge's explicit, uncontradicted findings on that issue. Since exclusion can have no deterrent effect when police act in good faith, reasonably held (id. at 3419; Commonwealth v. Nine Hundred & Ninety-two Dollars, 383 Mass. 764, 771 [1981]), deterrence is no ground for exclusion here. The majority seeks to deter the possibility of future abuse that might conceivably result from a lack of written, standardized procedures. While that may be a laudable policy goal, it has no application to the facts of this case.

Likewise, exclusion here would do nothing to advance judicial integrity. Considerations of judicial integrity presuppose a wilful constitutional violation. See United States v. Peltier, 422 U.S. 531, 538 (1975); Selectmen of Framingham v. Municipal Court of the City of Boston, 373 Mass. 783, 787 (1977); Carey v. Zayre of Beverly Inc., 367 Mass. 125, 130 (1975). There is no evidence of such a wilful violation in this case.

Given that "the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office" (South Dakota v. Opperman, supra at 367), I would hold that, in the circumstances of this case, the officer's action was reasonable and does not require suppression under the Fourth Amendment.

2. Article 14. Recognizing that its decision under the Fourth Amendment is open to "some question," the majority seeks firmer ground for the foundation of its opinion, and finds it in art. 14. With nary a hint of the policies justifying its action, the court creates an exclusionary rule under art. 14 for the first time in the history of the Commonwealth. The court finds in that has been specifically rejected when asserted. See, e.g., Commonwealth v. Sheppard, ante 381, 391 (1985) (Sheppard II); Commonwealth v. Wilkins, 243 Mass. 356, 359 (1923); Commonwealth v. Dana, 2 Met. 329, 334 (1841). With considerable thought, this court recently declined, for various reasons, to create an exclusionary rule under art. 14 in both Commonwealth v. Upton, ante 363 (1985) (Upton II), and Sheppard II, supra. In fact, in Upton II, supra at 365, the court reiterated

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that it "has never accepted the concept of an exclusionary rule under the State Constitution when a search violated the requirements of art. 14." Today the majority does accept such a concept, treated in but two footnotes of the defendant's brief. [Note Dissent-5]

By merely stating in conclusory language that "[t]his case . . . involves circumstances in which art. 14 requires exclusion of evidence" (ante at 426-427) the court gives no guide for determining when exclusion is appropriate. The majority has thus created a standard that is "unacceptably shapeless." Upton II, supra at 373, quoting Commonwealth v. Upton, 390 Mass. 562, 574 (1983) (criticizing the "totality of the circumstances" test for probable cause). Compare State v. Opperman, 247 N.W.2d 673, 674-675 (S.D. 1976) (to be "reasonable" under South Dakota Constitution, inventory searches must be conducted without investigative motive and limited to articles in plain view).

Furthermore, the majority fails to apply the very standards adopted by this court in Sheppard II. In that case, the court held that exclusion was not required because there was no prejudice to the defendant, defining prejudice in terms of the substantiality of the asserted violation. Id. at 391 & n.8. In determining substantiality, we are to consider particularly the extent of the deviation from lawful conduct, the extent to which the violation was wilful, the extent to which privacy was invaded, the extent to which exclusion will tend to prevent violations of the law, and the extent to which the violation prejudiced the defendant's ability to defend himself. See Sheppard II, supra at 391 n.8; Sheppard I, supra at 507-508 n.20. The conspicuous absence of any analysis along the lines suggested in Sheppard II is not surprising, since it is manifestly clear that none of the principles in that analysis would justify exclusion here. The majority has cited what it considers to be significant distinctions between this case and Sheppard II, but it

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has not provided any new standards for deciding cases which it considers distinguishable. Moreover, nothing in the majority opinion explains why the test so recently adopted in Sheppard II, where the court similarly faced the question whether a search was "unreasonable" within the meaning of art. 14, would be inappropriate in these circumstances. [Note Dissent-6]

As I have already indicated, the twin principles generally said to justify an exclusionary rule -- deterrence and judicial integrity -- are not advanced by exclusion here. Moreover, I believe it is unwise to create an exclusionary rule under art. 14, and I see no justification in this case to create a rule that goes beyond protection already afforded by the Fourth Amendment.

The Fourth Amendment's exclusionary rule is "a judicially created remedy," not a constitutional right of the accused. United States v. Calandra, 414 U.S. 338, 348 (1974). United States v. Leon, 468 U.S. 897, 906 (1984). This court has expressly accepted that approach under art. 14. Sheppard II, supra at 391. See Commonwealth v. Nine Hundred & Ninety-two Dollars, 383 Mass. 764, 770-772 (1981). Whether or not exclusion is required under art. 14 presents a broad issue of policy, to be decided by an analysis of whether exclusion is appropriate in light of the principles which have traditionally involved the exercise of our power to remedy the violation of constitutional rights.

The Supreme Court, in its wisdom, created the Federal exclusionary rule in Weeks v. United States, 232 U.S. 383 (1914), and extended its application to State court proceedings in Mapp v. Ohio, 367 U.S. 643 (1961). In the more than seventy years of its Federal existence, and the twenty years of its application to the States, the rule has become more, not less, confusing to administer on both the law enforcement and judicial

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levels. I am not convinced that departures from judicially acceptable police practice which nevertheless meet Fourth Amendment standards could not be remedied more effectively in other ways than by creation of a State exclusionary rule. See, e.g., Berry v. Commonwealth, 393 Mass. 793, 798 (1985) ("Common law principles may provide greater protections than either the State or the Federal Constitution requires"). The experience of the Federal rule should be sufficient to encourage us to consider other paths before striking out on a course whose pitfalls are only too apparent.

The primary justification for an exclusionary rule is the deterrence of police misconduct. United States v. Calandra, supra at 347. Mapp v. Ohio, supra at 656. Sheppard I, supra at 502. 1 W. LaFave, Search and Seizure Section 1.1, at 17 (1978). But there is little or no evidence that the exclusionary rule effectively serves this purpose. See, e.g., Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Ch. L. Rev. 665 (1970). See also Harris, The Return to Common Sense: A Response to "The Incredible Shrinking Fourth Amendment," 22 Am. Crim. L. Rev. 25, 42-44 (1984). On the other hand, it is remarkably efficient, in cases where it applies, at keeping relevant and highly probative evidence from being considered by the trier of fact. Furthermore, even assuming that there may be cases where it is appropriate to exclude evidence under art. 14 (see Upton I, supra at 580 n.1 [Lynch, J., dissenting]), I have already discussed why this case is not one of them.

The exclusionary rule is also said to be the defender of "judicial integrity." 1 W. LaFave, supra. This justification was designed in an effort to prevent courts from becoming "accomplices in the willful disobedience of a Constitution they are sworn to uphold" (emphasis added). Elkins v. United States, 364 U.S. 206, 223 (1960). See Selectmen of Framingham v. Municipal Court of the City of Boston, 373 Mass. 783, 787 (1977). Considering that judicial integrity in this Commonwealth could also be preserved in other, less doctrinaire ways (for example, using our general superintendence power under G. L. c. 211, Section 3), it becomes a very slender reed on which to base such a pervasive rule. Perhaps that is why the court in

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Sheppard I, supra at 502, stated that "judicial integrity fails as a substantial, independent support for the rule [of exclusion]." Even granting its precarious foundation as support for an exclusionary rule, it is clear that "the imperative of judicial integrity, in this particular instance," is not at stake, since no wilful violation occurred. Sheppard I, supra at 518 (Liacos, J., concurring).

I agree with the majority's strong hint that police departments should quickly adopt written procedures governing storage and inventory searches, to avoid these questions in the future. However, the majority invites unnecessary litigation by refusing to state that a storage search conducted pursuant to reasonable, standardized, and written procedures will be upheld, thus failing to identify clearly just what it is about storage searches in general or this search in particular that offends art. 14. Presumably, the court's implicit admonition to police departments requiring such procedures is intended to be more than an academic exercise. Nevertheless, the opinion leaves open to doubt whether any storage or inventory search will be considered compatible with art. 14. [Note Dissent-7] I do not believe that, presented with such a case, this court would go so far.

3. Conclusion. In sum, I see no sufficient justification for creating an exclusionary rule under art. 14 that goes beyond the reach of the Fourth Amendment. If the Fourth Amendment does not protect against some form of improper police conduct, another remedy can be found that is less likely to extract the enormous social cost and confusion engendered by an exclusionary rule. No harsh or oppressive results would follow from such a decision, since Fourth Amendment protections would still be available. I merely reject an extension of a rule which makes a defendant's desire to conceal contraband a legitimate privacy expectation. Cf. United States v. Jacobson, 466 U.S.

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109, 122-124 (1984). Therefore, I would resolve this case solely under the Fourth Amendment. Since I believe the majority has erroneously construed the protection provided by that amendment, I would reverse the decision of the Appeals Court and affirm the judge's denial of the motion to suppress.