Whether police were justified in impounding and searching a vehicle when the driver was arrested at 4:15AM in a “high crime area” and the car’s owner could not be contacted.

Officers saw the defendants leave an after-hours party at a residential home at 4:15 AM, carry open bottles of beer into a car, and drive away. (Remarkably, parties at that home “frequently involved criminal activities, and the police response thereto, including fighting, shootings, two murders, public drinking outside the residence, and illegal parking problems.”) The officers stopped the car and learned that the driver had a suspended license and no registration and that neither defendant owned the car. They arrested the driver for driving with a suspended license. Knowing the neighborhood to be a “high crime area,” and unwilling to contact the owner at that late hour, they decided to have the car towed to protect it from theft or vandalism. Performing an inventory search, they discovered a firearm under the passenger seat. Both defendants were charged with various firearms offenses.

The trial judge suppressed the firearm on the grounds that the the impoundment of the car was unjustified. The judge noted that he personally was familiar with the area, which was a neighborhood of single- and two-family homes with substantial on-street parking by the residents.

The Commonwealth filed an interlocutory appeal, and the Appeals Court reversed. The SJC granted the defendants’ application for further appellate review.

The question presented by the parties is whether the evidence established a likelihood of theft or vandalism of the vehicle justifying protective impoundment. The defendants argue that under Commonwealth v. Brinson, 440 Mass. 609, 614 (2003), a car may not be impounded merely because it is in a high crime area, if it is legally parked and there is no specific evidence of threat of theft or vandalism. The Appeals Court distinguished Brinson because the car in that case belonged to the defendant, and here the owner was an unknown third party whose interests must be protected; the Court essentially held that impoundment of a legally parked car in a high crime area was reasonable where no attempt could be made to reach the owner until the following morning. The Commonwealth additionally argues that the nearby house party, with its colorful criminal history, was an additional specific threat, and that the judge improperly considered his personal knowledge of the area in coming to a decision. 

Search and seizure cases are in some ways the least predictable, calling for the Justices’ personal evaluation of the sensibilities of the community. However, it is difficult to see why the Court would have granted FAR unless at least some of the Justices are skeptical that being parked in a “high crime area” justifies protective impoundment. It is possible that the Court will take this opportunity to limit some of the power of those three words.