Commonwealth v. Rostad

Nolan, J.

(dissenting). In Commonwealth v. Garcia, 409 Mass. 675 (1991), decided after Commonwealth v. Bishop, 402 Mass. 449 (1988), this court was faced with an inventory search of an automobile. In that case, the written policy governing such searches was silent with respect to the duty of the officer to open the trunk, directing only that police were to conduct “an inventory of the contents” of the vehicle. We held that, “[although [the written] procedures ... do not specifically mention opening the trunk, they do impose on the police the responsibility for safeguarding the contents of the vehicle, and they direct that an inventory be taken of the contents of the vehicle. These procedures do not leave police with improper discretion as to whether to open the trunk.” Commonwealth v. Garcia, supra at 684 .

In so holding we recognized that a directive to inventory the contents of an automobile logically includes the contents of the automobile’s trunk. The legitimate aims of an inventory search, “the protection of the vehicle and its contents; *624 the protection of the police . . . from false charges; and the protection of the public from the dangerous items which might be in the vehicle,” necessitated opening the trunk of the vehicle. Id. at 682 .

Similarly, I would hold that a written directive to inventory “all items” on a person taken into custody must include an inspection of those closed containers, such as wallets or handbags, which are most likely to contain valuable items, items most at risk of being stolen and which are the most likely objects of false theft claims against a police department. A more detailed written policy may be necessary for opening other types of closed containers, which are less likely to contain valuables, but a search which did not open a closed handbag in order to inventory the contents would not accomplish any of the legitimate goals which justify a war-rantless intrusion.

Notwithstanding Bishop , I would hold that opening the handbag was reasonable, even in the absence of explicit written authorization to do so. 1 Therefore, the search of the handbag did not violate art. 14 of the Massachusetts Declaration of Rights. I dissent.

Whether the same can be said of opening the various closed containers located in the handbag is an altogether different matter. The motion judge made the following findings of facts, most of which are ignored in the court’s decision. “Officer Antonovitz unzipped and opened the defendant’s handbag and inventoried its contents in her presence. When he began to do so another officer asked her if she had any illegal substances in it, and she replied ‘Yeah pot’. . . . From the handbag, he removed an eyeglass case containing a baggy with brown vegetable matter in it; 5 paper packets of a type used for packaging narcotics for sale; a bag with a bag of white powder in it which proved to be cocaine; a small matchbox containing hashish; several items of paraphernalia associated with the use of cocaine; and $600.00 in cash.” Because the court addresses only the broad issue whether the initial opening and search of the handbag were proper, I too confine myself to that issue.