In Commonwealth v. Ubilez, a Massachusetts Court of Appeals affirmed the defendant’s convictions of receiving stolen property with a value greater than $250 and a related offense.  It ruled that the judge properly denied the defendant’s motion to suppress evidence seized in the course of a warrantless search of a van driven by the defendant. The basic facts were as follows: The victim’s purse and cell phone were stolen at a fast-food restaurant, and the perpetrators left in a van. The victim used a GPS device to track her phone and then travelled to that location. There she saw the perpetrators’ van and wrote down its license plate number. Upon receiving that information from the victim, the police ran a license plate check and ascertained that the van’s registration had been revoked. Later, the police observed the van in transit, pulled it over, and arrested the driver (the defendant). The van was towed to the police station, where its contents were inventoried pursuant to the written police department policy. Among the items found during the inventory was the victim’s purse.

In its decision, the Court of Appeals rejected the defendant’s contention that although the police had probable cause to stop the van, the “discovery of the items in the van was not inevitable under the two-step analysis announced in Commonwealth v. O’Connor.” The Court explained that under Massachusetts statutes, “an unregistered vehicle cannot be operated, nor can it be allowed to remain on any way. Because the van was unregistered, ‘the officers could not permit the continued unlawful operation of the vehicle on the public roadways, nor could they leave the vehicle unattended on the shoulder of a busy main road.’  As a practical matter, therefore, it was inevitable that the van would be impounded and its contents inventoried once it had been stopped.”

Also in this decision, the Court agreed with the defendant’s argument that the search of the van was not justified as a search incident to arrest for operating a motor vehicle with a revoked registration. The Court noted that “operating a motor vehicle with a revoked or suspended registration is a misdemeanor for which there is no statutory authority to arrest.”  However, under common law principles, “a police officer may make a warrantless arrest for such a misdemeanor … where it ‘(1) involves a breach of the peace, (2) is committed in the presence or view of the officer … and (3) is still continuing at the time of the arrest or only interrupted, so that the offence and the arrest form parts of one transaction.’” The Court concluded that in this case “the defendant’s operation of the van without a valid registration did not constitute a breach of the peace,” where there was no evidence that the van was driven erratically or negligently “or that it in any other way had a disturbing effect on the public.”


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