In Commonwealth v. Lek, Lang Lek was convicted of gun possession after two Lowell Police officers pulled him over for a minor traffic violation so that they could “investigate” and “suppress gang activity.” After searching the vehicle, which belonged to Mr. Lek’s girlfriend, the officers found a gun in the glove compartment. Mr. Lek appealed his conviction, arguing that the gun should have been suppressed because it was recovered during an illegal search. The Massachusetts Appeals Court agreed with Mr. Lek, deeming the search unlawful because the officers used an inventory search as a pretext for investigation. In its decision, the Appeals Court also articulated broad concerns about the threat of racial profiling and “arbitrary action” when the police are given “unbridled discretion” to conduct investigatory traffic stops.
On the evening of November 21, 2015, two Lowell police officers in the Gang Unit were engaged in “gang suppression activities”—driving around Lowell, in plain clothes and an unmarked cruiser, with the express purpose of targeting motorists for pretextual traffic stops in order to “investigate” potential gang activity. Pretextual traffic stops, which are legal under state and federal law, occur when a police officer pulls someone over for a traffic violation with the actual purpose of investigating “unrelated criminal activity.”
After the officers allegedly saw Mr. Lek “fail to make a complete stop” at a stop sign, the two officers followed Mr. Lek in their unmarked cruiser for several minutes and then pulled him over. One of the officers, Detective Juan Sandoval, exited the cruiser and approached Mr. Lek’s driver’s side window. He observed that Mr. Lek was wearing red, and immediately decided that Mr. Lek was gang-affiliated based solely on the color of his clothing. When Mr. Lek handed the detective his license and registration, the court found credible Detective Sandoval’s testimony that he “reasonably believed” that the person in the license picture was not Mr. Lek. With this “reasonable belief” that Mr. Lek had engaged in conduct legally classified as criminal (i.e., refusing to give the police proper identification and allegedly using another person’s license), the cops had probable cause to place Mr. Lek under arrest.
Although Detective Sandoval then ordered Mr. Lek to exit the car and sit on the curb, he did not tell Mr. Lek that he was under arrest or that the car would be towed, impounded, and searched. Detective Sandoval searched the car, and he found a gun in the glove compartment. Mr. Lek was handcuffed and arrested, and the car was towed and impounded. At trial, Mr. Lek was convicted for possession of a firearm. He appealed his conviction, arguing that the gun should have been suppressed as the fruits of an unlawful search. The Commonwealth defended the search as a lawful inventory search conducted as a standard procedure pursuant to the Lowell Police Department’s written impoundment and inventory search policy.
Impoundment and Inventory Search
When someone is arrested while driving, the car may be taken into custody at a police facility for “safekeeping,” a process which is known as impoundment. In Massachusetts, impoundment is only appropriate where it is undertaken for a “legitimate, non-investigative purpose” and is “reasonably necessary” given the circumstances. If the owner or an authorized driver of the car requests an alternative to impoundment, Massachusetts law requires that the police honor this request so long as it is “lawful and practical.” However, the police have no legal obligation to tell a motorist that they are being arrested and that their car will be impounded and searched. Once a car has been impounded, the police are legally authorized to conduct an inventory search, a thorough search of the car and a subsequent inventory of the car’s contents. Because an inventory search is supposed to be a standard procedure and not an investigatory tool, the police do not need any suspicion that any person in the car engaged in illegal activity to conduct an inventory search.
Vesting the police with the authority and discretion to seize cars and conduct suspicionless searches raise serious concerns about the police violating an individual’s constitutional right to be free from unreasonable searches and seizures by improperly using an inventory search as a “pretext for investigation.” To limit police discretion and protect the constitutional rights of motorists, Massachusetts courts have imposed various restrictions on inventory searches. The legally permissible purposes for an inventory search are limited to the following: “safeguarding the car or its contents, protecting the police against unfounded charges of misappropriation, protecting the public against the possibility that the car might contain weapons or other dangerous instrumentalities that might fall into the hands of vandals, or a combination of such reasons.” Furthermore, an inventory search is only lawful if it is conducted for a non-investigatory purpose: police officers may not use an inventory search as a pretext for investigation, and an inventory search is not lawful if the officers were, under the guise of following standard procedure, “concealing an investigatory police motive.” In Massachusetts, police departments are also required to create and disseminate written policies that set forth how and when inventory searches can be conducted “to eliminate officer discretion with respect to the manner of the search.”
Appeals Court’s Holding and Analysis
Because Detective Sandoval had neither a warrant nor probable cause to search the car, the Appeals Court focused primarily on whether the officer conducted a lawful inventory search. In Massachusetts, when the police conduct a warantless inventory search without probable cause, the government bears the burden of proving that the search was conducted for a “legitimate, non-investigative purpose.”
The Appeals Court was troubled by the fact that Detective Sandoval ordered Mr. Lek to step out of his car but failed to tell him that he was under arrest and that the car would be impounded: “[w]ithout saying anything, [the officer] simply began searching [Mr. Lek’s] vehicle.” Under the Lowell Police Department’s policy, police officers who intend to impound a car pursuant to an arrest must inform the car’s owner that the car will be impounded and searched. Detective Sandoval testified that he deliberately did not tell Mr. Lek that the car would be impounded and searched because Mr. Lek was not the car’s owner, and thus it was “his discretionary decision not to give [Mr. Lek] the opportunity to request an alternative disposition of the vehicle.” The government argued that this was permissible under the Lowell Police Department’s policy and Massachusetts law. The Appeals Court acknowledged that police officers do not have a legal duty to tell someone that they will be arrested and their car impounded prior to conducting an inventory search. Although the court emphasized that an individual’s right to “lawful and practical” alternative disposition of their car lacks substance without imposing this corresponding duty on the police, the court declined to create such a legal duty.
After concluding that Detective Sandoval made a deliberate decision to search the car without notifying Mr. Lek of its impoundment, the Appeals Court determined that the Commonwealth did not meet its burden of proving that the “investigatory purpose” for the original traffic stop did not “infect the subsequent inventory search.” In Mr. Lek’s case, the police and the Commonwealth admitted that the traffic stop preceding Mr. Lek’s arrest was pretextual and motivated by an investigatory police purpose. The Appeals Court determined that Detective Sandoval had an “investigatory purpose at the outset” of his interaction with Mr. Lek, and he did not take any action that “objectively indicated that his purpose had changed” before searching the car. The court specifically cited to the following facts in support of its holding:
- the pretextual traffic stop was part of “a police operation to suppress gang activity” by investigating “certain preselected individuals;”
- Mr. Lek’s interaction with the police “confirmed” that he was gang affiliated (the Court apparently accepted Detective Sandoval’s determination that Mr. Lek was gang affiliated based solely on the color of his clothing); and
- the detective “deliberately failed” to tell Mr. Lek that he was being arrested and that the car was being impounded before the search.
The Court also noted that, if Detective Sandoval’s search had really been non-investigatory in nature, then there would have been “no reason” not to provide Mr. Lek with the opportunity to request an alternative to impoundment before searching the car. The Appeals Court thus concluded that the gun should have been suppressed as the fruits of an unlawful search and set aside Mr. Lek’s conviction for gun possession.
The court correctly found that the search of Mr. Lek’s car was investigatory in nature; the fact that the police impounded the car did not convert the search into a lawful inventory search. The court recognized that there was something concerning about the detective’s failure to provide Mr. Lek with an opportunity to request an alternative to impoundment, and even noted that if police are not required to notify motorists of their right to request alternatives to impoundment the right to such alternatives is meaningless. The court refused, however, to take the logical step of holding that the right to request alternatives to impoundment requires police to notify motorists of that right. While the decision in Lek is an important reminder to the police that they cannot conduct investigatory searches under the guise of impoundment inventory searches, the court should have gone further to ensure motorists’ rights.
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