MA: Inventory proved to be pretext for investigative search; suppressed

The DEA directed the state officer to stop defendant for a traffic offense to find an excuse for a vehicle impoundment and inventory. Here, it was failure to signal, and the officer testified he wouldn’t have stopped somebody for that. Then, the DL was suspended, but the officer added that they never made a custodial arrest for that. Here they did because the DEA asked for it. Also, there was a drug dog immediately on the scene following, too. The stop and search are suppressed because the entire basis was to use inventory as a pretext for an investigative search. Commonwealth v. Ortiz, 2015 Mass. App. LEXIS 172 (Oct. 26, 2015):

Even if otherwise valid, an inventory search must be “conducted for some legitimate police purpose other than a search for evidence.” Commonwealth v. Benoit, 382 Mass. 210, 219, 415 N.E.2d 818 (1981). See Commonwealth v. White, 469 Mass. 96, 102, 12 N.E.3d 348 (2014) (“The investigative use of these pills transformed a lawful inventory seizure of the pills into an unlawful investigatory search of the pills”); Commonwealth v. Woodman, 11 Mass. App. Ct. 965, 966, 417 N.E.2d 469 (1981).

“The distinction between an inventory search and an investigatory search is found in the objective of each. The objective of an investigatory search is to gather evidence, whereas an inventory search is conducted for the purposes of ‘safeguarding the car or its contents, protecting the police against unfounded charges of misappropriation, protecting the public against the possibility that the car might contain weapons or other dangerous instrumentalities that might fall into the hands of vandals, or a combination of such reasons.’” Commonwealth v. Baptiste, 65 Mass. App. Ct. 511, 516, 841 N.E.2d 734 (2006), quoting from Commonwealth v. Muckle, 61 Mass. App. Ct. 678, 682-683, 814 N.E.2d 7 (2004). “[T]he fact that the searching officer may have harbored a suspicion that evidence of criminal activity might be uncovered as a result of the search should not vitiate his obligation to conduct the inventory.” Commonwealth v. Tisserand, 5 Mass. App. Ct. 383, 386-387, 363 N.E.2d 530 (1977). However, “an inventory search [will] not be upheld if … there [is] a ‘suggestion … that this standard procedure’ [is] a pretext concealing an investigatory police motive . …” Ibid., quoting from South Dakota v. Opperman, 428 U.S. 364, 376, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976).

Here, DEA agents suspected the defendant of transporting cocaine and prearranged for the defendant’s arrest on minor motor vehicle infractions. Trooper Hannigan was directed to make a valid motor vehicle stop and then arrest the defendant for the sole purpose of impounding and searching the defendant’s vehicle and its contents pursuant to State police inventory policy. The motion judge credited Trooper Hannigan’s testimony that he would not have stopped the defendant simply for failing to signal, nor would he have exercised his discretion to arrest the defendant had it not been for the directive that he make an arrest so as to employ the inventory policy to search the backpack for drugs.6 See G. L. c. 90, § 21, as appearing in St. 1985, c. 794, § 1, providing that an officer “may arrest” a person who operates a motor vehicle after his license has been suspended. The conduct of the police is assessed by an objective standard. When viewed objectively, the search here was an investigative search and not an inventory search. Accordingly, we see no error in the judge’s finding that the inventory search here was simply a pretext for using the inventory policy to conduct an investigatory search of the backpack for evidence of drug activity without a warrant. Viewed in this context the warrantless search of the backpack was unconstitutional. Compare Commonwealth v. Benoit, 382 Mass. at 219 (“The record clearly reveals that the only purpose for the [search of the suitcase] … was to seize evidence”).