Mass. Supreme Court hears Ferrera appeal over inventory search, Guardado rule and defaced-firearm instructions

The Massachusetts Supreme Judicial Court heard oral argument Wednesday in Commonwealth v. Eric A. Ferrera, a criminal appeal that raises separate questions about (1) whether police must ask a nonarrested passenger to remove personal property before conducting an inventory search after impoundment of a moped and (2) the impact of the Guardado decision and related jury instructions on a charge involving a firearm with a defaced serial number.

Adela Apodu, attorney for Ferrera, told the court that “a new trial is appropriate” because of what she characterized as legally erroneous handling of the inventory search and preserved that point in the trial court’s motion to suppress. Apodu argued the law split inventory-search questions into two prongs — the lawfulness of impoundment and, if impoundment is lawful, the separate question of how officers must treat property inside the vehicle. She said appellate decisions such as Niccolo and Abdullah require an affirmative duty for officers to ask occupants whether they have personal belongings they want before making an inventory, when there is no apparent danger or contraband.

“We don’t have any evidence here that there was any issue about contraband or any public danger,” Apodu said, arguing the backpack under the moped seat should have been offered to the passenger who was free to go. She emphasized that the trial record contains a motion to suppress addressing the backpack specifically and that the court should treat the issue as preserved for appeal.

Arna Hansen, arguing for the Commonwealth of Massachusetts, urged the justices to uphold the suppression ruling’s denial and to treat the inventory search as consistent with department policy. Hansen said the purpose of inventory policies is to safeguard belongings, protect police from accusations of loss or theft and protect the public from dangerous items, and that the Eastwater Bridgewater Police Department’s policy followed those goals.

Hansen acknowledged the case law distinguishing the decision to impound a vehicle from an inventory of its contents but argued the officer reasonably impounded the moped because it could be started without a key and its compartments could not be secured. She also argued the line of cases the defense cites does not obligate officers to catalog and offer every visible personal item to an occupant before inventorying: absent a request from an occupant or an available licensed third party to remove the vehicle, an affirmative duty to ask does not exist, she said.

Justices pressed both advocates on factual points in the trial record. One justice observed that the trial testimony (the court record, counsel agreed, includes a sergeant’s testimony) indicated the officer picked up the backpack, “felt something hard inside of it,” and, based on training and experience, believed it to be a firearm; the officer then opened the backpack and found a SIG Sauer P320. Defense counsel said she would provide the relevant transcript pages and reiterated that if the record shows only that the bag felt “heavier than normal” rather than that the officer positively identified a firearm by touch, the constitutional analysis would differ.

Hansen also addressed the related Guardado issue, saying Guardado changed the burden in firearm-license prosecutions by requiring proof of licensure going forward and creating what she called a “loophole” for convictions that were not yet final: certain defendants convicted under the old rule can challenge convictions on appeal. She asked the court to “get rid of that exception” for a class of convicted felons who, the Commonwealth contends, are prohibited by statute from obtaining licenses and therefore cannot prevail even under Guardado. Defense counsel responded that the trial record lacks proof of a prior felony in the jury trial because the Commonwealth did not present that evidence when it was not yet required to do so.

The court also examined how the jury was instructed on the defaced-firearm charge. Hansen pointed the justices to the jury instruction language in the trial transcript: “You heard some evidence in this case suggesting the defendant possessed a firearm with a defaced serial number. If you find that fact to be proven, you are permitted to accept it also as proof the defendant was a person who removed, defaced, altered, obliterated, or mutilated the serial … on that firearm,” a passage Hansen said represented an alternate theory the Commonwealth presented to the jury.

Several justices asked for the trial transcripts that include the sergeant’s testimony and the charge conference to confirm precisely what was presented and instructed. Both parties agreed to provide portions of the trial record to the court for its review.

The justices did not announce a decision at argument. The case returned to the court’s conference calendar for deliberation.