A motorist with an expired registration was stopped by Boston police.
The unregistered SUV belonged to the driver’s girlfriend.
Police asked the man to step out of the car.
He repeatedly asked officers if he was in trouble.
Each time officers said no.
While the man was on the phone with the SUV’s owner (i.e., his girlfriend), officers went into the vehicle to “inventory” its contents in preparation for its impoundment.
This “inventory” uncovered a firearm under the SUV’s driver seat.
Officers charged the motorist with illegally possessing a firearm.
His attorney filed a motion to suppress the firearm.
According to the defense attorney, the police did not follow their department’s impoundment procedures, and they never considered an alternative to towing the vehicle.
During the motion hearing, a Boston officer testified that his supervisor requires all unregistered vehicles to be towed regardless of the circumstance.
The motion judge agreed that the tow was illegitimate.
Consequently, the judge suppressed the firearm found during the tow inventory.
The Commonwealth appealed the ruling and today the Appeals Court issued a slip opinion upholding the lower court’s decision.
Although there is no affirmative duty on law enforcement to offer alternatives to the impoundment process…it stands to reason that the police must allow for motorists to have an opportunity to provide the police with a reasonable alternative to impoundment Here, the police never informed the defendant that they were going to impound or tow the SUV. In fact, even after the defendant asked if he had done anything wrong, the police responded that he had not, and then immediately began to search the SUV. The officers’ conduct afforded the unarrested defendant, whom the police knew was on the phone with the owner of the car, no opportunity to suggest an alternative to impoundment prior to the SUV being searched. The evidence shows that the police never considered whether any alternative to impoundment existed, as they believed impoundment was necessary. Accordingly, on the facts before us, it was unreasonable 14 for the police officers to determine that they had no lawful, practical alternative to impoundment and we therefore conclude that the impoundment was not reasonably necessary.
The full text of the slip opinion is attached below.