In Commonwealth v. Lek, the Massachusetts Appeals Court issued a major decision earlier this month that curtails the ability of the police to make pretextual stops, find a reason to arrest the driver, and then search his car.
Many people are surprised to learn that police are allowed to make pretextual vehicle stops in most if not all jurisdictions. A pretextual vehicle stop is a stop where the officer looks for a minor traffic violation to justify the stop, but the real motivation for the stop was something other than the traffic violation. For example, in this case, the officer believed the driver was a gang member or the car was associated with gang activity, and wanted to make the stop to see where it might lead.
Common sense tells me that if you teach police officers that its ok to stop a vehicle for a pretextual reason, you embolden police officers to make stops for "driving while black" - stops based on the race or ethnicity of the driver. Traffic stop data from around the country reveals disproportionately-high rates of traffic stops of black drivers. Even in jurisdictions that allow pretextual stops, the Equal Protection Clause forbids a pretextual vehicle stop where the real reason is the driver's race. Commonwealth v. Long, 485 Mass. 711, 726-730 (2020). But who's going to admit that?
When police arrest a person, and arrange for a vehicle tow, police officers conduct what they call an "inventory search" - a search of the vehicle in order to make a list of the driver's personal property. This is supposed to protect the police and tow company from false claims of theft, and protect the driver from theft. Inventory searches are subject to rules and limitations, and indeed, Ted Lothstein has won an appeal in the New Hampshire Supreme Court where the police conducted an unconstitutional inventory search.
A core limitation on inventory searches under Massachusetts (and New Hampshire) law: They are supposed to be conducted in a good faith effort to protect the driver's property, and not be just another part of the criminal investigation. Accordingly, the Court in Lek held that if a stop was pretextual, and the officer's real motivation was to conduct a criminal investigation, than a post-arrest so-called "inventory search" will be invalidated. Result: evidence found in trunk, an illegal firearm, was suppressed.
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