MA: State bears the burden of showing there is no investigatory purpose for an inventory

The state of Massachusetts bears the burden of showing there is no investigatory purpose for an inventory. Commonwealth v. Lek, 2021 Mass. App. LEXIS 19 (Feb. 11, 2021):

The burden remains on the Commonwealth to demonstrate that Detective Sandoval’s investigatory purpose did not, in fact, infect the subsequent inventory search. The motion judge did not make an explicit finding on this question. But on the record before us, the Commonwealth has not met its burden to show that the decision of Detective Sandoval to begin searching the vehicle before informing the defendant it would be impounded was not motivated by an investigatory purpose. Detective Sandoval admitted to an investigatory purpose at the outset, and he took no actions, prior to initiating the search, that objectively indicated that his purpose had changed. Indeed, if the only purpose of the search were the protective ones that are permissible, there would be no reason not to give the defendant the opportunity to suggest another way to dispose of the vehicle prior to commencing the search.

In this case, where the initial traffic stop was a pretext for investigating certain preselected individuals as part of a police operation to suppress gang activity, where the interaction with the defendant confirmed that the defendant was in fact affiliated with a gang, and Detective Sandoval deliberately failed to inform the defendant that he was under arrest or that his vehicle was being impounded prior to searching it, the Commonwealth cannot meet its burden to show that that search — even if otherwise permissible — was not tainted with an investigatory purpose. The motion to suppress should, therefore, have been allowed.

In light of our conclusion, we need not decide whether searching the vehicle prior to the arrest was permissible under the Lowell Police Department’s written policy that states that a vehicle may be towed only upon “arrest.” We also need not address further the Lowell Police Department’s policy described by Detective Sandoval for using the tool of pretextual traffic stops for unrelated law enforcement purposes. Detective Sandoval was not asked and did not explain on what basis vehicles were chosen for scrutiny, so that they could be stopped when they inevitably engaged in some minor motor vehicle infraction. We echo the concerns, though, of the Supreme Judicial Court in its recent decision in Long, 485 Mass. at 726-730, and note that a policy of unbridled discretion is an obvious invitation to arbitrary action and, particularly when the few things known about a vehicle seen on the street can include the driver’s race, it would obviously be a matter of concern were such a policy adopted, at least without strict and explicit criteria for its use.

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