MA recognizes lesser intrusive measures to impoundment; inventory here unreasonable

Lesser intrusive measures to impoundment were available and rejected by the police, and that made the inventory unreasonable. Defendant offered to have somebody come and immediately get the car, and he should have been able to. Commonwealth v. Oliveira, 2016 Mass. LEXIS 188 (March 28, 2016):

We have no litmus test to gauge whether the alternative offered by the owner or authorized driver was lawful and practical and therefore an alternative the police reasonably should have allowed instead of impoundment; the determination depends on the totality of the circumstances. We have, however, made clear that the police have no obligation to locate or telephone the registered owner to determine his or her wishes, Eddington, 459 Mass. at 109, or to wait with the vehicle until a licensed driver can be located, Ellerbe, 430 Mass. at 776.

In this case, we agree with the judge that the decision of the police to impound the vehicle was unreasonable. The police did not question that Violet was authorized by his girl friend to drive the vehicle, and it was properly registered to her. Under the circumstances, Violet’s request that the police leave the vehicle where he parked it until his girl friend could retrieve it was lawful and practical.

The Commonwealth contends that the police need only consider the request for an alternate disposition of the vehicle where the owner of the vehicle is present and proposes the alternate disposition. Such a per se rule would undermine the nature of the impoundment decision, which requires the police to act reasonably and “necessitates a case-by-case analysis that takes into account the numerous and varied situations in which decisions to impound are made.” Eddington, 459 Mass. at 109 n.12. Here, the police did not question Violet’s assertion that he was authorized by the owner of the vehicle to drive it, and there were no circumstances that reasonably should have caused them to question that assertion. The fact that the owner of the vehicle was not present when the driver was arrested is not sufficient by itself to justify impoundment of the vehicle and the consequent inventory search. See id. at 111 n.14.

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