outlining requirements of plain view doctrine: lawful vantage point; immediately apparent incriminating character; and inadvertent discovery
How later courts described this case
- outlining requirements of plain view doctrine: lawful vantage point; immediately apparent incriminating character; and inadvertent discovery
- outlining requirements of plain view doctrine: *481 lawful vantage point; immediately apparent incriminating character; and inadvertent discovery
- "a handcuffed suspect locked inside a patrol car poses little risk of attack"
- "We are not aware of any legal precedent ... that would hold constitutionally supportable ... a police policy for automobile entries and searches to gather ownership documents precedent to towing of a car ...."
Written by the judges who cited it.
The opinion
Brown, J.
(concurring). Although I am in substantial agreement with the reasoning of the majority, I write separately because I think this case may be decided on different grounds. In my opinion, this case is controlled in material respects by Commonwealth v. Pacheco, 51 Mass. App. Ct. 736, 742 (2001), in that, to me, this is just another instance in which the police impermissibly used a questionable inventory procedure as a pretext to conceal an investigatory motive. See Commonwealth v. Sullo, 26 Mass. App. Ct. 766, 772 (1989).
In addition, I note that the judge’s legal conclusions are not supported by the record. In these circumstances, and in light of the allocation of evidentiary burdens here (see Commonwealth v. Antobenedetto, 366 Mass. 51, 57 [1974]), the search of the automobile cannot be justified as an inventory search, or on any other proper basis. See Commonwealth v. Peters, 48 Mass. App. Ct. 15, 20-21 (1999). In short, suppression of the evidence seized from the automobile is appropriate because the Commonwealth did not proffer sufficient evidence from which to conclude that the inventory policy satisfied constitutional requirements or that police conduct in these particular circumstances conformed to the policy in any event.
This case provides a good example of the peril inherent in failing to introduce a copy of a written inventory search procedure where the government seeks to justify a warrantless search on that basis. While it might be possible for the Commonwealth to support its burden of proof without such evidence in a particular case, it is unlikely as a general matter that the requisite inquiry into the scope and application of such a procedure may be made on the basis of oral testimony alone. See Commonwealth v. Ellerbe, 430 Mass. 769 , 774-777 & n.10 (2000) (reference to text of written guidelines crucial to analysis). The Commonwealth is put on notice that in future cases, absent an explanation for the omission, the failure to *40 introduce a written copy of an inventory search procedure, standing alone, may provide a basis for concluding that a search was unlawful. See Commonwealth v. Peters, 48 Mass. App. Ct. at 20 & n.6.