Commonwealth v. Giovanni Burgos.

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

25-P-687

COMMONWEALTH

vs.

GIOVANNI BURGOS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After the defendant, Giovanni Burgos, was charged with

failing to identify himself to a police officer, various firearm

and drug-related offenses, and a motor vehicle infraction, he

moved to suppress evidence seized from the vehicle that he was

driving at the time of his arrest. The defendant argued that

the officers failed to follow the written Massachusetts State

Police inventory and towing policies and that the Commonwealth

failed to meet its burden of proving that the warrantless search

of the defendant's car was lawful. After an evidentiary

hearing, the motion to suppress was denied.1

1The defendant filed an application to the single justice
of the Supreme Judicial Court seeking leave to pursue an
Thereafter, the defendant entered into a conditional plea

agreement, pursuant to Mass. R. Crim. P. 12 (b) (6), as

appearing in 482 Mass. 1501 (2019), pleading guilty to

possession of a firearm without a firearm identification (FID)

card, in violation of G. L. c. 269, § 10 (h) (1); possession of

ammunition without an FID card, in violation of G. L. c. 269,

§ 10 (h) (1); possession of a class B controlled substance, in

violation of G. L. c. 94C, § 34; and possession of a class A

controlled substance, in violation of G. L. c. 94C, § 34, while

reserving his right to appeal from the denial of his motion to

suppress.2 We reverse.

Background. We summarize the facts as they could have been

found by the motion judge after an evidentiary hearing on the

motion to suppress, reserving certain facts for later

discussion. See Commonwealth v. Lewis, 106 Mass. App. Ct. 343,

344 (2025).

On July 24, 2020, at approximately 8 P.M., Massachusetts

State Police Sergeant Scott Davis stopped a vehicle travelling

above the speed limit on Interstate 391. Upon request, the

defendant, who was driving the vehicle and was the sole

interlocutory appeal from the motion judge's order. The
application was denied.

2 The Commonwealth entered a nolle prosequi on four other
counts, and the defendant was found not responsible on one other
count.

2
occupant, gave Sergeant Davis the vehicle's registration and

verbally provided the name "George Cologne," a date of birth,

and an address, telling Sergeant Davis that "he didn't have any

ID on him." When Sergeant Davis reviewed the registry-generated

picture of George Cologne on his laptop in his cruiser, he

thought that there were "some discrepancies between what the

[defendant] looked like and the picture." As a result, Sergeant

Davis called the barracks "for another car, just for another set

of eyes."

While Sergeant Davis waited for another trooper to arrive,

he asked the defendant questions about Cologne's criminal

history to attempt to confirm his identity. Despite Cologne's

significant criminal history, the defendant denied ever having

been arrested. The defendant also stated that he had never had

a restraining order issued against him, but when informed by

Sergeant Davis that Cologne had an active order against him, the

defendant claimed to recall the order but incorrectly named the

plaintiff. Trooper Daniel Dziminski and a trooper in training

arrived on the scene. Sergeant Davis showed them the registry-

generated photograph of Cologne, and all of the officers agreed

that the defendant did not resemble Cologne. The troopers

placed the defendant under arrest for failure to identify

himself and brought him to the police cruiser.

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Because the vehicle driven by the defendant was parked in

the breakdown lane of the interstate and the defendant was the

only person in the car, the troopers decided to have it towed

pursuant to the Department of State Police General Order TRF-09

(towing policy). Prior to towing, the troopers saw and searched

a bag located on the front passenger seat which contained

narcotics and a firearm.

At the motion to suppress, the defendant argued that the

Commonwealth failed to meet its burden to prove that the search

of the vehicle was a lawful inventory search because the

troopers failed to follow the written towing policy or the

Department of State Police General Order TRF-10 (inventory

policy). We agree.

Discussion. "In reviewing a decision on a motion to

suppress, we accept the judge's subsidiary findings of fact

absent clear error but conduct an independent review of his [or

her] ultimate findings and conclusions of law" (quotation and

citation omitted). Commonwealth v. Goncalves-Mendez, 484 Mass.

80, 83 (2020). In this case, the judge denied the motion in a

margin order which, in its entirety, read, "the Court credits

the officers['] testimony, defendant's motion is denied." This

margin order does not contain sufficient information to allow us

to determine what findings of fact were made.

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1. Towing. The Commonwealth argues that the warrantless

search of the vehicle was proper as an inventory search.

Therefore, we begin our analysis by determining whether the

troopers' decision to tow the car was reasonable and that there

were no lawful, practical alternatives to impoundment. See

Commonwealth v. Oliveira, 474 Mass. 10, 15 (2016).

After a driver is arrested, a vehicle may be impounded for

one of four 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).

Id. at 13. If the vehicle is impounded for one of these

legitimate purposes, we must determine whether the seizure was

reasonably necessary under the circumstances. See id. In this

case, the vehicle, parked in the breakdown lane of an interstate

highway in the dark, was a safety hazard to other drivers. With

no passenger available to take possession of the vehicle, the

impoundment was reasonably necessary. See Commonwealth v.

Henley, 63 Mass. App. Ct. 1, 5-6 (2005) (where "a motor vehicle

was stopped in the breakdown lane of an interstate highway at

2:00 A.M. without an authorized operator present and able to

remove it from the roadway[,] . . . . the police had no

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discretion to exercise because the situation posed a safety

hazard that made towing the only practical available

alternative"). See also Commonwealth v. Eddington, 459 Mass.

102, 109-110 (2011) (vehicle was reasonably impounded where

driver was under arrest, passenger was intoxicated and "not

known to be authorized to drive" car, and "police were not

constitutionally obligated to contact" owner who was not

present).

The defendant argues that the Commonwealth failed to prove

that the impoundment was reasonably necessary because the

officers did not inform the defendant that the vehicle was being

towed and failed to follow the portion of the towing policy that

requires officers to "inquire if there is a preference for a

particular tow company" and to "honor[]" that preference. We

disagree. While in certain circumstances it is best practice

for officers to inform an authorized driver that a vehicle is

being towed and give the driver an opportunity to provide an

alternative to having the car towed, this practice presumes the

presence of an authorized driver and applies only "where police

are aware that a passenger could lawfully assume custody." See

Goncalves-Mendez, 484 Mass. at 85 n.8; see also Commonwealth v.

Lek, 99 Mass. App. Ct. 199, 204 (2021) ("Our courts . . . have

not said that officers must ask a driver who is being arrested

whether he would like to direct the officer to dispose of the

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vehicle in some lawful manner other than impoundment"). Here,

because the defendant was not the owner of the car and had

provided false identifying information, the police could not

determine whether the defendant was an authorized driver and

therefore were not obligated to inform him that the car would be

towed, or to ask whether he had a preferred towing company. See

Commonwealth v. Ferrara, 496 Mass. 483, 486 (2025) ("no

affirmative duty on law enforcement to offer alternatives to

impoundment"). Also, no passenger was present. Under these

circumstances, it was reasonable for the officers to conclude

that no lawful, practical alternative to towing was available,

and the towing of the vehicle was reasonably necessary.

2. Inventory search. We now turn to whether the inventory

search of the vehicle was lawful. An inventory search can serve

"three separate legitimate purposes, . . . . to protect the

vehicle and its contents from the threat of theft or vandalism;

to protect the police and the tow company from false claims; and

to protect the public from dangerous items that might have been

left in a vehicle". Commonwealth v. Davis, 481 Mass. 210, 218

(2019). "Unlike other types of searches, an inventory search is

administrative, and the decision to conduct an inventory search

must not be for investigatory purposes; the decision must be

objectively reasonable, and the search must be conducted

according to standard written procedures." Id. at 219. The

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State Police inventory policy requires officers to complete an

inventory of "[t]he interior of the vehicle; [t]he glove

compartment and trunk (unless they are locked and there is no

key available); and [t]he exterior of the vehicle for missing or

damaged parts." Further, the policy requires that the officers

complete and file an inventory form to document the contents of

the vehicle. At the motion to suppress, the Commonwealth has

the burden to prove that the inventory search was done for a

legitimate purpose and not for an investigatory purpose. See

Commonwealth v. Rosario-Santiago, 96 Mass. App. Ct. 166, 175

(2019). The defendant contends that insufficient evidence was

presented to prove that the officers conducted an inventory

search and the search was, therefore, unlawful. We agree.

Both Sergeant Davis and Trooper Dziminski testified in

conclusory fashion that an inventory search was performed.

However, the only testimony detailing the specifics of the

search indicated that Sergeant Davis "started on the passenger

side" and that Trooper Dziminiski "started inventorying on the

driver's side." Thereafter, Sergeant Davis opened a bag "on the

front passenger seat" and found various narcotics inside. He

handed the bag to Trooper Dziminski who discovered that it also

contained a firearm. Notably, neither trooper testified to

searching any other areas of the vehicle. Moreover, Trooper

Dziminski testified that there was no documentation of damage to

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the car prior to towing, nor was the inventory search form filed

as was required by the inventory policy. While performing the

inventory search prior to impoundment was the appropriate course

of action pursuant to the policy, we conclude that the

Commonwealth did not produce sufficient facts to support a

determination that an inventory search, in fact, occurred.

Accordingly, we decline to affirm the judge's ruling. See

Commonwealth v. Buckley, 478 Mass. 861, 872 (2018) ("the burden

rests with the Commonwealth to demonstrate that the search 'was

conducted for some legitimate police purpose other than a search

for evidence.'. . . From the start, then, consideration of an

officer's 'purpose' for conducting the search is relevant to an

assessment of the lawfulness of the search itself").3

3 The failure to file the forms required by the inventory
policy is not an independent basis for suppression; however, the
officers' general assertions that an inventory search occurred
is insufficient to support the conclusion. See Commonwealth v.
Torres, 85 Mass. App. Ct. 51, 55 (2014) ("if the Commonwealth is
able to demonstrate that its search was both justified and
otherwise properly executed, then excluding the evidence based
on after-the-fact procedural deficiencies would not serve the
purpose for which the exclusionary rule was established").

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Accordingly, the order denying the motion to suppress is

reversed and the matter is remanded for further proceedings.

So ordered.

By the Court (Rubin,
Desmond & Allen, JJ.4),

Clerk

Entered: May 22, 2026.

4 The panelists are listed in order of seniority.

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