Commonwealth v. Stacey L. Ascolillo.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1011

COMMONWEALTH

vs.

STACEY L. ASCOLILLO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a police officer stopped the defendant's van and

determined she did not have a valid driver's license, pursuant

to the police tow and inventory policy in effect at the time,

the officer impounded the van and its contents. After the

resulting inventory search revealed weapons and contraband, the

defendant was charged with firearms and drug possession

violations, as well as operating with a suspended license. A

judge of the District Court denied the defendant's motion to

suppress.1 We affirm.

1The defendant then admitted to sufficient facts while
reserving appellate review of the denial of her motion to
suppress. See Mass. R. Crim. P. 12 (b) (6), as appearing in 482
Mass. 1501 (2019).
Background. The defendant was stopped on Main Street in

North Reading while driving a van with a broken tail light. The

police officer determined that the defendant's Massachusetts

driver's license was suspended. Another officer asked the

defendant's passenger for identification. He refused.

The van was parked in an area with no breakdown lane and

was "obstructing a busy road." To the east of the travel lane,

there was a shopping plaza with many parking spots; an entrance

to the shopping plaza was a few hundred yards north of the van's

location.

The North Reading police department motor vehicle tow and

inventory policy in effect at the time provided, as relevant

here:

"Officers shall remove, or cause to be removed, any vehicle
located upon any designated way when: . . . [t]he vehicle
is improperly parked or standing (in accordance with 720
CMR 9.04); [or] [t]he operator of the vehicle is not
properly licensed, there are no properly licensed
occupants, and the vehicle would be left unattended."

Motor Vehicle Tow and Inventory Policy, § IV (2010), North

Reading police department.

The first officer told the defendant that because her

license was suspended, he could not let her drive the van, and

that he needed to impound, inventory, and tow it. He allowed

the defendant and her passenger to retrieve items from the van

and to call a friend to come pick them up. The officer did not

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tell the defendant that she could provide alternatives to

impounding and towing the van. When the friend came to pick up

the defendant the van had not yet been towed. The defendant did

not ask the officer whether the friend or someone else could

remove the van for her. During an inventory search, officers

found ammunition, knives and bats, and various pills in a pill

bottle labeled with a name other than the defendant's.

Discussion. When we review a ruling on a motion to

suppress, "we adopt the motion judge's factual findings absent

clear error" and "independently determine whether the judge

correctly applied constitutional principles to the facts as

found." Commonwealth v. Isaiah I., 450 Mass. 818, 821 (2008).

"Under both the United States and Massachusetts

Constitutions, an inventory search is lawful only if, first, the

seizure (or impoundment) of the vehicle was reasonable; and,

second, the search of the vehicle that follows its seizure was

conducted in accord with standard police written procedures"

(citations omitted). Commonwealth v. Oliveira, 474 Mass. 10, 13

(2016). "[T]he Commonwealth bears the burden of proving the

constitutionality of both" the impoundment and inventory search.

Commonwealth v. Ehiabhi, 478 Mass. 154, 164-165 (2017). Here,

given the defendant's challenge on appeal, we need only address

the first issue, the propriety of the impoundment.

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The "nature of the impoundment decision . . . 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.'" Oliveira,

474 Mass. at 16, quoting Commonwealth v. Eddington, 459 Mass.

102, 109 n.12 (2011).

"[A] vehicle may be seized for one of at least four
legitimate purposes: to protect the vehicle and its
contents from theft or vandalism; to protect the public
from dangerous items that might be in the vehicle; to
protect public safety where the vehicle, as parked, creates
a dangerous condition; or where the vehicle is parked on
private property without the permission of the property
owner as a result of a police stop, to spare the owner the
burden of having to cause the vehicle to be towed"
(citations omitted).

Oliveira, 474 Mass. at 13.

"If the vehicle was seized for a legitimate purpose, we

look next to whether the seizure was reasonably necessary based

on the totality of the evidence," including "whether the vehicle

reasonably could have been left in the place it was parked and

therefore need not have been seized" (citation omitted).

Oliveira, supra at 14. Where a stop results in the driver's not

being able to move the car personally, "the police are

responsible both for the location of the vehicle and for

depriving the vehicle of its driver, and therefore might be held

responsible if the vehicle's location created a risk to public

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safety or left the vehicle vulnerable to vandalism or theft"

(citation omitted). Id.

"Where the vehicle reasonably could not have been left in
the place it was parked, we consider whether the owner of
the vehicle or a person clearly authorized by the owner to
drive the vehicle was present and lawfully able to drive
the vehicle away, that is, whether the vehicle was properly
registered and the person was licensed to drive and neither
under arrest nor under the influence of drugs or alcohol.
Where the owner or authorized driver, for whatever reason,
was unable to drive the vehicle away, we consider whether
the owner or authorized driver offered the police a lawful
and practical alternative to impoundment of the vehicle."

Id. at 14-15.

The defendant maintains that suppression was required

because the officers had a duty to ask her if she could provide

a reasonable alternative before impounding the vehicle. In this

context, the "determinations are fact driven, with the

overriding concern being the guiding touchstone of

'reasonableness.'" Eddington, 459 Mass. at 108, citing

Commonwealth v. Ellerbe, 430 Mass. 769, 776 (2000).

In support of her claim that it was unreasonable to impound

her van without first asking her for alternatives, the defendant

relies on Commonwealth v. Abdallah, 475 Mass. 47 (2016) and

Commonwealth v. Nicoleau, 90 Mass. App. Ct. 518 (2016). Neither

case mandates the outcome the defendant seeks, although neither

prohibits it. In Abdallah, the Supreme Judicial Court affirmed

the suppression of a bag that the defendant had been carrying

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when arrested outside of his hotel room, when the hotel had

agreed to secure all other items from the defendant's hotel room

at the front desk. Abdallah, 475 Mass. at 49. The court

determined that, in the circumstances, the seizure of the bag

was justified neither by public safety concerns nor to protect

the public or the contents of the bag. Id. at 52. Looking at

"the totality of the circumstances," the court recognized that

"at the time of the defendant's arrest, the officers made

arrangements with the hotel to provide safekeeping for all of

his other belongings," and "obtained permission from the hotel

clerk for the defendant's vehicle to remain in the hotel parking

lot until it could be retrieved by one of the defendant's

relatives." Id. at 52-53. From these actions, the court

concluded that "the officers believed it was reasonable to leave

the defendant's personal possessions in the custody of the

hotel." Id. at 53. Given that the officer knew about this

reasonable alternative and "took affirmative steps to arrange

for the hotel to secure the defendant's other possessions," the

court concluded that it was "unreasonable to seize the bag."

Id.

In Nicoleau, the defendant was arrested after parking his

unlicensed, unregistered car in front of his home. Nicoleau, 90

Mass. App. Ct. at 519. Before impounding the car, the officers

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removed a music player from the car and gave it to the

defendant's grandmother, who was on the scene. Id. They gave

the grandmother the defendant's keys as well. The police also

removed a backpack from the back seat of the car but, instead of

giving it to the grandmother, opened it and discovered a knife

inside. Id. Affirming the suppression of the knife, we

concluded that "[t]he seizure of an item that is not itself

suspected to be dangerous, in circumstances where there is a

responsible third party available to take possession of it, is

inconsistent with the purposes underlying an inventory search"

(citation omitted). Id. at 522. We reasoned that Abdallah, 475

Mass. at 52-53, "requires an inquiry into whether the officers

in this case had a reasonable practical alternative to seizing

the backpack and conducting an inventory search of its

interior." Nicoleau, 90 Mass. App. Ct. at 522. "Having made

the decision to give the music player to the defendant's

grandmother, the police did not have the discretion to seize and

inventory the defendant's backpack, which also could have been

turned over to the grandmother." Id. at 523.

As the Supreme Judicial Court has explained, "[w]e have

never held that police may disregard a readily apparent

alternative to impoundment simply because a defendant does not

request that a passenger be allowed to leave with the vehicle."

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See Commonwealth v. Goncalves-Mendez, 484 Mass. 80, 85 (2020).

Here, by contrast to Abdallah and Nicoleau, there was no

"readily apparent alternative" to impoundment. When asked, the

defendant's passenger refused to provide any identification to

the officers. Because proving that he was licensed to drive

would have involved identifying himself, we conclude that having

the passenger take possession of the vehicle was not a

reasonable alternative to impoundment. See Goncalves-Mendez,

484 Mass. at 85.

Neither Massachusetts appellate court has yet taken the

step the defendant urges us to take. In addition to requiring

officers to offer that a licensed passenger may take custody of

the vehicle, the Supreme Judicial Court has "held that police

officers were required to honor an owner's or authorized

driver's requested alternative to impoundment where doing so was

'lawful and practical'" (emphasis added). Goncalves-Mendez, 484

Mass. at 83. Although the friend arrived to pick up the

defendant and her passenger, the defendant did not request that

the friend be allowed to move the van.

The Supreme Judicial Court has also "concluded that an

inventory search of a defendant's personal belongings was

unreasonable where police were independently aware of an

alternative to seizing them." Goncalves-Mendez, 484 Mass. at

8
83-84, citing Abdallah, 475 Mass. at 51-52. Unlike the hotel

clerk in Abdallah and the grandmother in Nicoleau, the

defendant's friend was not a known alternative to seizing the

van; that friend arrived in another vehicle and "reasonableness"

did not require that the police brainstorm how that friend might

safely move the van while also managing the vehicle in which

they arrived. Finally, although "the better practice is to

'inform the driver that the vehicle will be taken to a police

facility or private storage facility for safekeeping unless the

driver directs the officer to dispose of it in some lawful

manner,'" the Supreme Judicial Court has not yet said that

reasonableness requires it. Goncalves-Mendez, 484 Mass. at 85

n.8, quoting Eddington, 459 Mass. at 112. Given the precision

with which that court has articulated the rules in this area, we

think that if the rule is extended to include a requirement that

the driver must be informed, it must be announced by that court.

We decline the invitation to extend the rule here.

Here, the defendant could not drive. The van was in an

unsafe location on the side of a busy road. The police were not

aware that the passenger could lawfully drive the van. The

friend arrived in another vehicle in which the defendant and

passenger were to be taken from the scene, after the police had

made the decision to impound the defendant's van. In the

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circumstances, while it would have been "better practice" to

inform the defendant that she had options other than

impoundment, such a discussion was not required. Accordingly,

we affirm the denial of the motion to suppress.

Order denying motion to
suppress affirmed.

By the Court (Rubin, Grant &
Hershfang, JJ.2),

Clerk

Entered: September 11, 2024.

2 The panelists are listed in order of seniority.

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