Appeals court weighs whether officer’s bag-search during traffic stop exceeded inventory limits

The Massachusetts Appeals Court heard argument over whether a search of a passenger’s fanny pack during a traffic stop was a permissible inventory search or an impermissible investigatory search. Defense counsel Kevin DeMello argued officers moved beyond a mechanical inventory when an officer asked “what’s in it?” and then opened the bag without giving the passenger a realistic chance to remove it from the vehicle.

DeMello described a pre-dawn stop at about 2 a.m. in which an officer, alone on the scene, pulled a vehicle with a headlight out, discovered mismatched plates and incomplete identification, and ordered both occupants from the car. The passenger said the fanny pack found on the passenger-side floor was his; the officer asked what was inside the bag and the passenger effectively permitted the officer to look inside. DeMello argued the question and the early line of questioning were investigatory in character—citing Torres and Ortiz analogies—and that the record supports suppression because the officer’s inquiry amounted to a search for evidence rather than the neutral inventory the department policy contemplates.

The Commonwealth’s attorney, Adam Zaunson, told the panel the officer was conducting an inventory of property to be impounded and that policy requires officers to open closed but unlocked containers and inventory their contents. Zaunson said asking “what’s in the bag?” is a reasonable safety question before an officer places a hand into an unlocked container, especially in a middle-of-the-night stop, and that the available body-camera video and the officer’s actions show the officer was performing a routine administrative inventory rather than an investigatory search.

The judges questioned whether the department’s written inventory policy in effect at the time required the officer to ask occupants whether they wanted to remove property or whether it placed the onus on the owner to request their property back, a distinction the parties said had changed between older and newer policy versions. The panel also explored whether a reasonable-officer safety concern at 2 a.m., with an officer temporarily alone and a vehicle to be towed, could justify asking about contents before handing the item back or completing an inventory.

After extensive questioning of both sides about whether the passenger had a realistic opportunity to keep the bag and whether the officer’s questions created an investigatory context, the panel submitted the matter. No decision was issued from the bench.