Massachusetts Appeals Court Says Driving with a Suspended Registration is not an Arrestable Offense

In an interesting opinion delivered today, the Massachusetts Appeals Court ruled that driving with a suspended registration is ordinarily not a crime for which the driver can be arrested.  The name of the case is Commonwealth v. Ubilez

On January 7, 2010, the victim called the police to report her cell phone had been stolen and she had been able to track the phone (using a GPS system) to a van being driven by the defendant.  The police found the van as it was being driven on Mall Road in Burlington.  An officer discovered the van’s registration was suspended and performed a motor vehicle stop.  Several police officers converged on the scene and completely overreacted to the situation by ordering the defendant and the two occupants to exit the van at gunpoint.  The defendant did so without resisting and was handcuffed.  An officer looked inside the van and saw two purses, one of which matched the description of the victim’s purse.  The police conducted a full search of the van and found all kinds of stolen items.  The defendant was charged with receiving stolen property, possessing a burglarious instrument, receiving a stolen credit card, forgery, uttering, and operating a motor vehicle with a suspended registration.  Most of the charges resulted from the stolen items found by the police during the warrantless search of the defendant’s van.

The defendant filed a motion to suppress the evidence taken from his van, arguing the police lacked authority to search without a warrant.  The Commonwealth asserted the search was proper as a search incident to the defendant’s arrest and, in any event, the evidence would have been inevitably discovered.  A district court judge denied the motion and following his convictions, the defendant appealed.

The Appeals Court affirmed the district court’s denial of the defendant’s motion to suppress, holding that even if the police officers’ search of the van was unlawful, the evidence contained therein would have inevitably been discovered and was therefore properly admitted at trial.  The inevitable discovery rule is exactly what it sounds like – if the Commonwealth can prove that unlawfully-obtained evidence would have been found anyway (by lawful means), then the evidence can be used against the defendant.  In this case, the defendant’s van was properly stopped because the registration was suspended.  There is a law in Massachusetts that says a vehicle cannot be driven, or even parked, on a public way with a suspended registration.  Therefore, the defendant’s van had to be towed away.  The Burlington Police Department has a policy (as do all police departments) that allows officers to inventory the items contained in towed vehicles.  These policies are theoretically designed to protect the property owner from theft and vandalism, but in practice police officers use inventory policies as an excuse to search cars without warrants.  Because the defendant’s van was going to be towed and searched (pursuant to the inventory policy), all of the items contained inside would have been discovered regardless of the officers’ search at the scene (which was probably unconstitutional).

The Commonwealth also argued the search of the defendant’s van was proper as “incident to arrest.”  When the police make an arrest, they are permitted to search the area immediately around the defendant to ensure: (1) there are no weapons available to the defendant; and (2) the defendant cannot destroy evidence related to the crime for which he is being arrested.  The Appeals Court rejected the Commonwealth’s rationale because at the time of the search the defendant was handcuffed and separated from the van (meaning he couldn’t grab for a weapon) and the police were not searching for evidence related to the crime for which he was being arrested (driving with a suspended registration).  The Appeals Court then considered, for the first time, whether the crime of driving with a suspended registration is an arrestable offense.  There is no statute that authorizes a police officer to make an arrest for this crime (which is a misdemeanor).  Absent statutory authority, a police officer can arrest someone for a misdemeanor if three elements are satisfied: (1) the crime involves a breach of the peace; (2) the crime is committed in the presence of the officer; and (3) the crime is ongoing at the time of the arrest.  In this case (and presumably in most cases), simple operation with a suspended registration does not amount to a breach of the peace.  There was nothing about the defendant’s operation that would have disturbed the public.  Therefore, without an aggravating factor (such as reckless operation), a police officer lacks the authority to arrest a driver for operating a motor vehicle with a suspended registration.

In most cases involving warrantless searches, defendants should file motions to suppress.  If you have been arrested or charged with a crime resulting from a police search, consult an experienced criminal defense attorney immediately to explore your options.