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Walking around with illegal drugs? You might want to put them in a locked bag

At least, until police departments update their writen policies for taking inventory of the property of newly arrested suspects under a Massachusetts Appeals Court decision handed down today.

The court today threw out delinquency charges against a Marblehead teenager because the pot, digital scale and plastic bags he was found carrying were in a locked bank bag he didn't give police permission to open and because the Marblehead police department's inventory policies were too vague on the issue of what to do about such containers (note: The Essex County DA's office could appeal the ruling to the Supreme Judicial Court).

Ironically, the case started because a Marblehead cop was trying to do a good deed: When he found the kid wandering around the grounds of the high school after midnight, he offered to drive him home rather than arrest him for trespassing.

But before he let him in the cruiser, he said he would pat frisk him for weapons. But when the officer felt a hard object in a backpack under his sweatshirt, he felt a hard object - at which point the kid "freaked out" and began flailing at him. The officer had to call for back up to subdue the kid, whom they then charged with trespassing and resisting arrest. Officers found several items in the backpack, including a cellphone, keys and the bank bag:

The juvenile was taken to the station, where he was asked to give permission to open the locked bank bag. He did not respond. Officer Gallo tried unsuccessfully to open the bag with the three keys that had been removed from the juvenile's pockets. Officer Gallo and the lieutenant on duty asked the juvenile's mother and her boyfriend (who had come to the station with her) for permission to open the bag. The boyfriend consented, but the mother said nothing. Officer Gallo then used a pocket knife to cut the stitching of the bag and opened it. Inside were (1) a digital scale, (2) a plastic bag containing twelve smaller plastic baggies, each containing marijuana, (3) a plastic bag containing two buds of marijuana, (4) some empty plastic baggies, and (5) ninety-one dollars in cash.

In reversing the delinquency ruling (the juvenile equivalent of a guilty finding), the court knocked the Marblehead PD's written policy:

First, it did not spell out what to do with locked containers as opposed to those that are simply closed. As a subset of this, the policy also did not spell out what should be done with a locked container for which the officers have the key and a locked container for which they do not. Second, accepting the Commonwealth's position that the bank bag was "opened" pursuant to the policy requires stretching the meaning of "open" to a degree that would allow officers to choose among a limitless range of options, including (as here) destruction.

We have found no case that would permit an officer to break into or damage a locked container in order to conduct an inventory search. The purpose of an inventory is to protect the property of the owner and to protect officers from claims by the owner that the property was damaged. Permitting an officer to destroy or break into a locked container runs counter to the very purpose of the inventory exception.

Complete decision.

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Comments

Would it have killed them to get the search warrant? Any judge in the city would have given them one.

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No judge would have issued a search warrant for that bag. Search warrants need to be predicated on probable cause that whatever is searched will yield evidence of a crime. There was no probable cause to search the bag. The kid was arrested for trespassing and resisting arrest. If that's probable cause to search locked containers of personal property then God help us all.

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The boyfriend of the mother consented to the search of the bank bag... how is that legal?

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