NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-687
COMMONWEALTH
vs.
GIOVANNI BURGOS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After the defendant, Giovanni Burgos, was charged with
failing to identify himself to a police officer, various firearm
and drug-related offenses, and a motor vehicle infraction, he
moved to suppress evidence seized from the vehicle that he was
driving at the time of his arrest. The defendant argued that
the officers failed to follow the written Massachusetts State
Police inventory and towing policies and that the Commonwealth
failed to meet its burden of proving that the warrantless search
of the defendant's car was lawful. After an evidentiary
hearing, the motion to suppress was denied.1
1The defendant filed an application to the single justice of the Supreme Judicial Court seeking leave to pursue an Thereafter, the defendant entered into a conditional plea
agreement, pursuant to Mass. R. Crim. P. 12 (b) (6), as
appearing in 482 Mass. 1501 (2019), pleading guilty to
possession of a firearm without a firearm identification (FID)
card, in violation of G. L. c. 269, § 10 (h) (1); possession of
ammunition without an FID card, in violation of G. L. c. 269,
§ 10 (h) (1); possession of a class B controlled substance, in
violation of G. L. c. 94C, § 34; and possession of a class A
controlled substance, in violation of G. L. c. 94C, § 34, while
reserving his right to appeal from the denial of his motion to
suppress.2 We reverse.
Background. We summarize the facts as they could have been
found by the motion judge after an evidentiary hearing on the
motion to suppress, reserving certain facts for later
discussion. See Commonwealth v. Lewis, 106 Mass. App. Ct. 343,
344 (2025).
On July 24, 2020, at approximately 8 P.M., Massachusetts
State Police Sergeant Scott Davis stopped a vehicle travelling
above the speed limit on Interstate 391. Upon request, the
defendant, who was driving the vehicle and was the sole
interlocutory appeal from the motion judge's order. The application was denied.
2 The Commonwealth entered a nolle prosequi on four other counts, and the defendant was found not responsible on one other count.
2 occupant, gave Sergeant Davis the vehicle's registration and
verbally provided the name "George Cologne," a date of birth,
and an address, telling Sergeant Davis that "he didn't have any
ID on him." When Sergeant Davis reviewed the registry-generated
picture of George Cologne on his laptop in his cruiser, he
thought that there were "some discrepancies between what the
[defendant] looked like and the picture." As a result, Sergeant
Davis called the barracks "for another car, just for another set
of eyes."
While Sergeant Davis waited for another trooper to arrive,
he asked the defendant questions about Cologne's criminal
history to attempt to confirm his identity. Despite Cologne's
significant criminal history, the defendant denied ever having
been arrested. The defendant also stated that he had never had
a restraining order issued against him, but when informed by
Sergeant Davis that Cologne had an active order against him, the
defendant claimed to recall the order but incorrectly named the
plaintiff. Trooper Daniel Dziminski and a trooper in training
arrived on the scene. Sergeant Davis showed them the registry-
generated photograph of Cologne, and all of the officers agreed
that the defendant did not resemble Cologne. The troopers
placed the defendant under arrest for failure to identify
himself and brought him to the police cruiser.
3 Because the vehicle driven by the defendant was parked in
the breakdown lane of the interstate and the defendant was the
only person in the car, the troopers decided to have it towed
pursuant to the Department of State Police General Order TRF-09
(towing policy). Prior to towing, the troopers saw and searched
a bag located on the front passenger seat which contained
narcotics and a firearm.
At the motion to suppress, the defendant argued that the
Commonwealth failed to meet its burden to prove that the search
of the vehicle was a lawful inventory search because the
troopers failed to follow the written towing policy or the
Department of State Police General Order TRF-10 (inventory
policy). We agree.
Discussion. "In reviewing a decision on a motion to
suppress, we accept the judge's subsidiary findings of fact
absent clear error but conduct an independent review of his [or
her] ultimate findings and conclusions of law" (quotation and
citation omitted). Commonwealth v. Goncalves-Mendez, 484 Mass.
80, 83 (2020). In this case, the judge denied the motion in a
margin order which, in its entirety, read, "the Court credits
the officers['] testimony, defendant's motion is denied." This
margin order does not contain sufficient information to allow us
to determine what findings of fact were made.
4 1. Towing. The Commonwealth argues that the warrantless
search of the vehicle was proper as an inventory search.
Therefore, we begin our analysis by determining whether the
troopers' decision to tow the car was reasonable and that there
were no lawful, practical alternatives to impoundment. See
Commonwealth v. Oliveira, 474 Mass. 10, 15 (2016).
After a driver is arrested, a vehicle may be impounded for
one of four purposes:
"to protect the vehicle and its contents from theft or vandalism; to protect the public from dangerous items that might be in the vehicle; to protect public safety where the vehicle, as parked, creates a dangerous condition; or where the vehicle is parked on private property without the permission of the property owner as a result of a police stop, to spare the owner the burden of having to cause the vehicle to be towed" (citations omitted).
Id. at 13. If the vehicle is impounded for one of these
legitimate purposes, we must determine whether the seizure was
reasonably necessary under the circumstances. See id. In this
case, the vehicle, parked in the breakdown lane of an interstate
highway in the dark, was a safety hazard to other drivers. With
no passenger available to take possession of the vehicle, the
impoundment was reasonably necessary. See Commonwealth v.
Henley, 63 Mass. App. Ct. 1, 5-6 (2005) (where "a motor vehicle
was stopped in the breakdown lane of an interstate highway at
2:00 A.M. without an authorized operator present and able to
remove it from the roadway[,] . . . . the police had no
5 discretion to exercise because the situation posed a safety
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-687
COMMONWEALTH
vs.
GIOVANNI BURGOS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After the defendant, Giovanni Burgos, was charged with
failing to identify himself to a police officer, various firearm
and drug-related offenses, and a motor vehicle infraction, he
moved to suppress evidence seized from the vehicle that he was
driving at the time of his arrest. The defendant argued that
the officers failed to follow the written Massachusetts State
Police inventory and towing policies and that the Commonwealth
failed to meet its burden of proving that the warrantless search
of the defendant's car was lawful. After an evidentiary
hearing, the motion to suppress was denied.1
1The defendant filed an application to the single justice of the Supreme Judicial Court seeking leave to pursue an Thereafter, the defendant entered into a conditional plea
agreement, pursuant to Mass. R. Crim. P. 12 (b) (6), as
appearing in 482 Mass. 1501 (2019), pleading guilty to
possession of a firearm without a firearm identification (FID)
card, in violation of G. L. c. 269, § 10 (h) (1); possession of
ammunition without an FID card, in violation of G. L. c. 269,
§ 10 (h) (1); possession of a class B controlled substance, in
violation of G. L. c. 94C, § 34; and possession of a class A
controlled substance, in violation of G. L. c. 94C, § 34, while
reserving his right to appeal from the denial of his motion to
suppress.2 We reverse.
Background. We summarize the facts as they could have been
found by the motion judge after an evidentiary hearing on the
motion to suppress, reserving certain facts for later
discussion. See Commonwealth v. Lewis, 106 Mass. App. Ct. 343,
344 (2025).
On July 24, 2020, at approximately 8 P.M., Massachusetts
State Police Sergeant Scott Davis stopped a vehicle travelling
above the speed limit on Interstate 391. Upon request, the
defendant, who was driving the vehicle and was the sole
interlocutory appeal from the motion judge's order. The application was denied.
2 The Commonwealth entered a nolle prosequi on four other counts, and the defendant was found not responsible on one other count.
2 occupant, gave Sergeant Davis the vehicle's registration and
verbally provided the name "George Cologne," a date of birth,
and an address, telling Sergeant Davis that "he didn't have any
ID on him." When Sergeant Davis reviewed the registry-generated
picture of George Cologne on his laptop in his cruiser, he
thought that there were "some discrepancies between what the
[defendant] looked like and the picture." As a result, Sergeant
Davis called the barracks "for another car, just for another set
of eyes."
While Sergeant Davis waited for another trooper to arrive,
he asked the defendant questions about Cologne's criminal
history to attempt to confirm his identity. Despite Cologne's
significant criminal history, the defendant denied ever having
been arrested. The defendant also stated that he had never had
a restraining order issued against him, but when informed by
Sergeant Davis that Cologne had an active order against him, the
defendant claimed to recall the order but incorrectly named the
plaintiff. Trooper Daniel Dziminski and a trooper in training
arrived on the scene. Sergeant Davis showed them the registry-
generated photograph of Cologne, and all of the officers agreed
that the defendant did not resemble Cologne. The troopers
placed the defendant under arrest for failure to identify
himself and brought him to the police cruiser.
3 Because the vehicle driven by the defendant was parked in
the breakdown lane of the interstate and the defendant was the
only person in the car, the troopers decided to have it towed
pursuant to the Department of State Police General Order TRF-09
(towing policy). Prior to towing, the troopers saw and searched
a bag located on the front passenger seat which contained
narcotics and a firearm.
At the motion to suppress, the defendant argued that the
Commonwealth failed to meet its burden to prove that the search
of the vehicle was a lawful inventory search because the
troopers failed to follow the written towing policy or the
Department of State Police General Order TRF-10 (inventory
policy). We agree.
Discussion. "In reviewing a decision on a motion to
suppress, we accept the judge's subsidiary findings of fact
absent clear error but conduct an independent review of his [or
her] ultimate findings and conclusions of law" (quotation and
citation omitted). Commonwealth v. Goncalves-Mendez, 484 Mass.
80, 83 (2020). In this case, the judge denied the motion in a
margin order which, in its entirety, read, "the Court credits
the officers['] testimony, defendant's motion is denied." This
margin order does not contain sufficient information to allow us
to determine what findings of fact were made.
4 1. Towing. The Commonwealth argues that the warrantless
search of the vehicle was proper as an inventory search.
Therefore, we begin our analysis by determining whether the
troopers' decision to tow the car was reasonable and that there
were no lawful, practical alternatives to impoundment. See
Commonwealth v. Oliveira, 474 Mass. 10, 15 (2016).
After a driver is arrested, a vehicle may be impounded for
one of four purposes:
"to protect the vehicle and its contents from theft or vandalism; to protect the public from dangerous items that might be in the vehicle; to protect public safety where the vehicle, as parked, creates a dangerous condition; or where the vehicle is parked on private property without the permission of the property owner as a result of a police stop, to spare the owner the burden of having to cause the vehicle to be towed" (citations omitted).
Id. at 13. If the vehicle is impounded for one of these
legitimate purposes, we must determine whether the seizure was
reasonably necessary under the circumstances. See id. In this
case, the vehicle, parked in the breakdown lane of an interstate
highway in the dark, was a safety hazard to other drivers. With
no passenger available to take possession of the vehicle, the
impoundment was reasonably necessary. See Commonwealth v.
Henley, 63 Mass. App. Ct. 1, 5-6 (2005) (where "a motor vehicle
was stopped in the breakdown lane of an interstate highway at
2:00 A.M. without an authorized operator present and able to
remove it from the roadway[,] . . . . the police had no
5 discretion to exercise because the situation posed a safety
hazard that made towing the only practical available
alternative"). See also Commonwealth v. Eddington, 459 Mass.
102, 109-110 (2011) (vehicle was reasonably impounded where
driver was under arrest, passenger was intoxicated and "not
known to be authorized to drive" car, and "police were not
constitutionally obligated to contact" owner who was not
present).
The defendant argues that the Commonwealth failed to prove
that the impoundment was reasonably necessary because the
officers did not inform the defendant that the vehicle was being
towed and failed to follow the portion of the towing policy that
requires officers to "inquire if there is a preference for a
particular tow company" and to "honor[]" that preference. We
disagree. While in certain circumstances it is best practice
for officers to inform an authorized driver that a vehicle is
being towed and give the driver an opportunity to provide an
alternative to having the car towed, this practice presumes the
presence of an authorized driver and applies only "where police
are aware that a passenger could lawfully assume custody." See
Goncalves-Mendez, 484 Mass. at 85 n.8; see also Commonwealth v.
Lek, 99 Mass. App. Ct. 199, 204 (2021) ("Our courts . . . have
not said that officers must ask a driver who is being arrested
whether he would like to direct the officer to dispose of the
6 vehicle in some lawful manner other than impoundment"). Here,
because the defendant was not the owner of the car and had
provided false identifying information, the police could not
determine whether the defendant was an authorized driver and
therefore were not obligated to inform him that the car would be
towed, or to ask whether he had a preferred towing company. See
Commonwealth v. Ferrara, 496 Mass. 483, 486 (2025) ("no
affirmative duty on law enforcement to offer alternatives to
impoundment"). Also, no passenger was present. Under these
circumstances, it was reasonable for the officers to conclude
that no lawful, practical alternative to towing was available,
and the towing of the vehicle was reasonably necessary.
2. Inventory search. We now turn to whether the inventory
search of the vehicle was lawful. An inventory search can serve
"three separate legitimate purposes, . . . . to protect the
vehicle and its contents from the threat of theft or vandalism;
to protect the police and the tow company from false claims; and
to protect the public from dangerous items that might have been
left in a vehicle". Commonwealth v. Davis, 481 Mass. 210, 218
(2019). "Unlike other types of searches, an inventory search is
administrative, and the decision to conduct an inventory search
must not be for investigatory purposes; the decision must be
objectively reasonable, and the search must be conducted
according to standard written procedures." Id. at 219. The
7 State Police inventory policy requires officers to complete an
inventory of "[t]he interior of the vehicle; [t]he glove
compartment and trunk (unless they are locked and there is no
key available); and [t]he exterior of the vehicle for missing or
damaged parts." Further, the policy requires that the officers
complete and file an inventory form to document the contents of
the vehicle. At the motion to suppress, the Commonwealth has
the burden to prove that the inventory search was done for a
legitimate purpose and not for an investigatory purpose. See
Commonwealth v. Rosario-Santiago, 96 Mass. App. Ct. 166, 175
(2019). The defendant contends that insufficient evidence was
presented to prove that the officers conducted an inventory
search and the search was, therefore, unlawful. We agree.
Both Sergeant Davis and Trooper Dziminski testified in
conclusory fashion that an inventory search was performed.
However, the only testimony detailing the specifics of the
search indicated that Sergeant Davis "started on the passenger
side" and that Trooper Dziminiski "started inventorying on the
driver's side." Thereafter, Sergeant Davis opened a bag "on the
front passenger seat" and found various narcotics inside. He
handed the bag to Trooper Dziminski who discovered that it also
contained a firearm. Notably, neither trooper testified to
searching any other areas of the vehicle. Moreover, Trooper
Dziminski testified that there was no documentation of damage to
8 the car prior to towing, nor was the inventory search form filed
as was required by the inventory policy. While performing the
inventory search prior to impoundment was the appropriate course
of action pursuant to the policy, we conclude that the
Commonwealth did not produce sufficient facts to support a
determination that an inventory search, in fact, occurred.
Accordingly, we decline to affirm the judge's ruling. See
Commonwealth v. Buckley, 478 Mass. 861, 872 (2018) ("the burden
rests with the Commonwealth to demonstrate that the search 'was
conducted for some legitimate police purpose other than a search
for evidence.'. . . From the start, then, consideration of an
officer's 'purpose' for conducting the search is relevant to an
assessment of the lawfulness of the search itself").3
3 The failure to file the forms required by the inventory policy is not an independent basis for suppression; however, the officers' general assertions that an inventory search occurred is insufficient to support the conclusion. See Commonwealth v. Torres, 85 Mass. App. Ct. 51, 55 (2014) ("if the Commonwealth is able to demonstrate that its search was both justified and otherwise properly executed, then excluding the evidence based on after-the-fact procedural deficiencies would not serve the purpose for which the exclusionary rule was established").
9 Accordingly, the order denying the motion to suppress is
reversed and the matter is remanded for further proceedings.
So ordered.
By the Court (Rubin, Desmond & Allen, JJ.4),
Clerk
Entered: May 22, 2026.
4 The panelists are listed in order of seniority.