Commonwealth v. Holley
79 Mass.App.Ct. 542 (2011)
Appeals Court of Massachusetts
May 17, 2011
Motion to suppress statements, motion to suppress physical evidence, Miranda rights, voluntary waiver of Miranda rights, evidentiary hearing, unconstitutional search or seizure, use of trickery by the interrogator.
Trial Court granted defendant's motion to suppress his statements during a police interview, and, without an evidentiary hearing, denied defendant's motion to suppress physical evidence. The Commonwealth appealed from an order suppressing certain statements of the defendant, and the defendant cross-appealed from an order denying his motion to suppress evidence seized in a search. The Appeals Court consolidated the appeals and held that:
(1) defendant's waiver of Miranda rights, before police interview at police station, was knowing, voluntary, and intelligent;
(2) assuming that state trooper's comments falsely suggested to defendant that he had been identified by two sources as being near the victim's apartment on the night of the murder, defendant's confession was voluntary; and
(3) defendant did not establish a reasonable expectation of privacy as to box in common basement area of multiunit apartment building to which defendant's girlfriend moved after defendant's arrest.
The Appeals Court reversed the Trial Court’s decision allowing the motion to suppress the defendant's statements made at the police station interview on April 21, 2005, and issued a new order denying the motion in its entirety. The order entered December 15, 2009, denying the defendant's motion to suppress evidence obtained at the Flint Street address was affirmed.
Facts:
The case involves an indictment for murder in the first degree, in which the defendant was charged with the homicide of Suzy Goulart. On April 16, 2005, following a report of a fire at Pleasant View apartments, number 21D, Fall River police discovered Goulart's dead body on the kitchen floor. She had suffered more than fifty stab and cutting wounds.
The police arrested and interviewed the defendant on April 21, 2005 at the police station. The interview was recorded with audio-visual equipment. Commonwealth v. DiGiambattista, 442 Mass. 423, 447–449, 813 N.E.2d 516 (2004).
The defendant asserted in his suppression motion that the statements made during the interview were subject to exclusion on two grounds: (1) the Miranda warnings were inadequate, and (2) the statements were involuntary because the police had engaged in trickery by suggesting that witnesses had seen the defendant near the apartment of the murder victim.
On October 22, 2008, police executed a search warrant at 37 Flint Street in Fall River, the place where the defendant’s girlfriend had moved following the defendant's arrest. During the execution of the warrant, the police entered a common basement area in the apartment building. There the police found and opened a box left by the girlfriend, and from within this box he police seized a pair of sneakers that appeared to be the Adidas brand identified by the FBI as likely matching the size and tread of bloody footprints found at the murder scene.
Issue 1: Was defendant's waiver of Miranda rights before police interview at police station knowing, voluntary, and intelligent?
The judge suppressed defendant’s statements given during the interview dated April 21, 2005 on the basis that Miranda rights were spoken too quickly by State Trooper Eric Swenson and, were difficult to discern “in real time”, therefore, the defendant's Miranda waiver was not made knowingly and intelligently. The judge also commented that the oral warnings did not contain the so-called “fifth” warning that the defendant may stop answering questions at any time.
However, failure to give the fifth warning orally does not warrant suppression here—this is especially true in light of the inclusion of the extra fifth warning on the written waiver. “We do not require that [a] defendant be informed of his right to terminate questioning, a so-called ‘fifth’ Miranda warning.” Commonwealth v. Silanskas, 433 Mass. 678, 688 n. 11, 746 N.E.2d 445 (2001).
Notwithstanding that the trooper spoke at a rapid pace, defendant's waiver of Miranda rights, before police interview at police station, was knowing, voluntary, and intelligent, though state trooper spoke at rapid pace as defendant acknowledged three times that he understood the oral warnings. First, immediately following trooper's recitation defendant nodded in the affirmative when asked whether he understood the Miranda rights that just had been delivered orally, second, after trooper indicated that if defendant understood his Miranda rights but still was willing to speak to the interviewing officers he should sign a written Miranda waiver form, defendant acknowledged that he understood and signed the waiver form, and third, defendant stated, while signing the waiver form, “I know how it goes,” which comment could be considered in light of defendant's prior involvement in criminal investigations and the prosecution process. U.S.C.A. Const.Amend. 5. A defendant's experience with and in the criminal justice system is a factor to consider in weighing whether the defendant understands Miranda warnings, waives them, and gives a statement knowingly, intelligently, and voluntarily quoting from Commonwealth v. Mandile, 397 Mass. 410, 413, 492 N.E.2d 74 (1986). Given the foregoing, The Appeals Court concluded that the defendant's waiver of his Miranda rights was a knowing, voluntary, and intelligent act.
Issue 2: Did state trooper's falsely suggested comments to defendant that he had been identified by two sources as being near the victim's apartment on the night of the murder gave rise to such trickery or deception as to have overborne defendant's free will.
While the use of false statements during interrogation is a relevant factor on both waiver and voluntariness, such trickery does not necessarily compel suppression of the statement. Rather, the interrogator's use of trickery is to be considered as part of the totality of the circumstances, the test that is used to determine the validity of a waiver and the voluntariness of any statement. Where the use of a false statement is the only factor pointing in the direction of involuntariness, it will not ordinarily result in suppression, but that if the circumstances contain additional indicia suggesting involuntariness, suppression will be required.” Commonwealth v. DiGiambattista, 442 Mass. at 432–433, 813 N.E.2d 516.
Assuming that state trooper's comments falsely suggested to defendant that he had been identified by two sources as being near the victim's apartment on the night of the murder, defendant's confession was voluntary; trooper's comments did not give rise to such trickery or deception as to have overborne defendant's free will, and defendant had been given Miranda warnings and had acknowledged that he understood the warnings. U.S.C.A. Const.Amend. 5. “A statement is voluntary if it is the product of a ‘rational intellect’ and a ‘free will.’ ” Commonwealth v. Selby, 420 Mass. 656, 662, 651 N.E.2d 843 (1995), quoting from Commonwealth v. Davis, 403 Mass. 575, 581, 531 N.E.2d 577 (1988).
Despite false statement about suspect's handprint being found at crime scene, Miranda waiver and confession both voluntary where “all other relevant factors specific to the instant case indicate a voluntary waiver was made” and trickery was only factor suggesting involuntariness; Commonwealth v. Edwards, 420 Mass. 666, 671, 651 N.E.2d 398 (1995) (confession admissible where nothing other than use of trickery would suggest involuntariness). Thus, the first Superior Court judge erred in allowing the defendant's motion to suppress statements from the April 21, 2005, interview.
Issue 3: Was the search or seizure enacted by the police at girlfriend’s apartment unconstitutional enabling the judge to conduct an evidentiary hearing and suppress the evidence seized?
On October 22, 2008 police executed a warrant at 37 Flint Street in Fall River, the place where the girlfriend had moved following the defendant's arrest. During the execution of the warrant, the police entered a common basement area in the apartment building. There the police found and opened a box left by the girlfriend of the defendant, and from within this box the police seized a pair of sneakers that appeared to be the Adidas brand identified by the FBI as likely matching the size and tread of bloody footprints found at the murder scene. The girlfriend signed a consent form for the basement search, but not specifically for the box itself. The defendant challenged the validity of the consent, and the major part of the defendant's brief is directed to the need for an evidentiary hearing concerning the privacy issue vis-à-vis the basement area. The defendant contends that the second Superior Court judge erred in not holding an evidentiary hearing on his motion to suppress evidence obtained in the Flint Street search. Such an evidentiary hearing was not warranted for two reasons. First, the affidavits filed in support of the motion to suppress were not sufficient to prompt an evidentiary hearing. Neither the affidavit of the defendant, nor that of his girlfriend, Reis, set forth facts that would demonstrate a reasonable expectation of privacy in the unsecured box held in the common basement area of the Flint Street multi-unit apartment building.
Second, the motion judge held a lengthy nonevidentiary hearing on the suppression issues, and heard argument of counsel concerning the dual issues of standing and expectation of privacy. “A defendant has standing if [he] has a possessory interest ... in the property seized.” Commonwealth v. Williams, 453 Mass. 203, 208, 900 N.E.2d 871 (2009). See Commonwealth v. Genest, 371 Mass. 834, 836, 359 N.E.2d 950 (1977). The defendant had such a possessory interest in the Adidas sneakers, at least sufficient to have standing. Commonwealth v. Deeran, 364 Mass. 193, 195, 302 N.E.2d 912 (1973) Based on the information presented, the judge ruled that the defendant had standing, but “still must show that there was a search in the constitutional sense, that is, that someone had a reasonable expectation of privacy in the place searched, because only then would probable cause, reasonable suspicion, or consent be required to justify the search.” But that the defendant's motion was not supportable because there was no reasonable expectation of privacy in the common basement area searched. Furthermore, the girlfriend's affidavit acknowledges that the door to the basement was not locked, and that all tenants of the Flint Street apartment building had common access to, and use of, the basement. See Commonwealth v. Williams, 453 Mass. 203, 208–209, 900 N.E.2d 871 (2009), wherein the court held that, while the defendant had standing, he nonetheless lacked a reasonable expectation of privacy in the common basement shared by other tenants. Thus, suppression was not warranted in Williams because “any subjective expectation of privacy the defendant may have had was not objectively reasonable.” Ibid. The same result obtains in this case.
Issue 4: Was there a procedural error in that the motion judge indicated at the original nonevidentiary hearing that, if the judge determined that the defendant had standing, then the judge may conduct an evidentiary hearing?
The defendant reads this remark as a guarantee—which it was not—that an evidentiary hearing would be held after the nonevidentiary suppression hearing. Thereafter, the judge entered an order denying suppression and ruling that the defendant had standing, but no reasonable expectation of privacy. In denying the motion filed by the defendant, the judge issued another ruling, stating that the expectation of privacy issue was “encompassed” in the standing issue—both of which issues were addressed by counsel at the nonevidentiary suppression hearing, and resolved by the order denying suppression. The defendant's claim that his expectation of privacy was not addressed at the nonevidentiary hearing was not supported. Thus, there was no error in the motion judge's denial of the defendant's motion to suppress evidence obtained at the Flint Street address.
For the foregoing reasons, the order entered December 17, 2008, allowing the motion to suppress as to the defendant's statements made on April 21, 2005, at the police station interview is reversed, and a new entered denying the motion in its entirety. The order entered December 15, 2009, denying the defendant's motion to suppress evidence obtained at the Flint Street address is affirmed.
Judgement affirmed in part- reversed in part.
Prepared by SF
