I. The Judge Did Not Err (A) In Finding A Causal Connection Between The Violation Of The Defendant's Miranda Rights And The Seizure Of His Sneakers, And (B) In Rejecting The Commonwealth's Claim That The Police Would Have Inevitably Discovered The Sneakers Through Lawful Means
In this case, the motion judge found that the police effectively placed the defendant in custody when they questioned him in his home. The judge further found that, “[a]lthough some cautionary statement was made to the defendant, none of the three officers could testify that Miranda warnings were given to the defendant at his residence.” On appeal, the Commonwealth does not contest either of these findings. The judge went on to find that the questioning that followed was unlawful and that the seizure of the sneakers and clothing from the defendant's bedroom “resulted from the defendant's illegally obtained statements and also must be suppressed.” [R. App. 20]. The Commonwealth contends that the judge erred in suppressing these items. In particular, the Commonwealth argues that the police went into the defendant's bedroom not because of the illegal questioning, but as a result of a statement that he volunteered during the course of the custodial interview. The Commonwealth also argues that the evidence would have been inevitably discovered within minutes of the illegal action and that it should therefore be deemed admissible. The defendant contends, however, that the evidence seized from the defendant's bedroom was causally connected to the illegal questioning, and the discovery of that evidence was by no means inevitable. The judge properly suppressed the clothing and sneakers.
A. The Seizure Of The Defendant's Clothing And Sneakers Is Directly Traceable To The Illegal Questioning
The Supreme Court and the Supreme Judicial Court have recognized an exclusionary rule which “prevents the introduction of evidence obtained 'as a result' of custodial interrogation where the police have not advised the defendant of his rights against self-incrimination and the defendant has not voluntary waived those rights.” Commonwealth v. Hine, 393 Mass. 564, 569 (1984). See Miranda v. Arizona, 384 U.S. 436, 479 (1966). Not only does the illegality render the suspect's statements inadmissible, but the exclusionary rule applies to the “fruit” of that illegality. The test for determining whether evidence is the “fruit” of a constitutional violation is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun v. United States, 371 U.S. 471, 488 (1963).
In this case, the motion judge found, and the Commonwealth does not contest, that the police interrogated the defendant without providing proper Miranda warnings. Further, the discovery of evidence immediately followed the illegal interrogation. See Commonwealth v. Midi, 46 Mass. App. Ct. 591, 595-596 (1999). Contrast Commonwealth v. Sylvia, 380 Mass. 180, 184 (1980) (lapse of one and one-half hours between illegality and obtaining of evidence sufficient to dissipate taint); Commonwealth v. Fielding, 371 Mass. 97, 114 (1976) (same, three hours).
Somewhat incredulously, the Commonwealth contends that, notwithstanding the close temporal nexus, the discovery of the sneakers and clothing is not traceable to the illegal questioning and therefore should not have been excluded as the fruit of the poisonous tree. The Commonwealth explains that “[t]he only question put to the defendant during the brief encounter in the living room was whether he had heard about an incident occurring the night before on Purchase Street.” The defendant denied any knowledge of this incident “and then made a non-responsive remark about playing with paintball guns.” One of the officers asked him if he owned a paintball gun. “The defendant said he had recently sold his gun but still had the original box.” He offered to retrieve the box, at which point, the officers followed him into his room. [Commonwealth's brief at 8].
Contrary to the Commonwealth's contention, the defendant's remarks were directly responsive to the officers' questions. See Commonwealth v. Haas, 373 Mass. 545, 552 (1977). Initially, Detective Perry asked the defendant if he had heard or knew what had happened at Rockland and Purchase Streets the night before. [Tr. 1, 34]. This question asked for both specific information-i.e., whether the defendant knew of the incident-and general information-i.e., any relevant or incriminating information the defendant might have. The defendant gave Detective Perry a specific answer to his question, telling him that he did not know what had happened. He also placed himself at the scene and explained the presence of beer bottles and paint ball remnants. [Tr. 1, 34]. When Detective Fredericks asked the defendant a follow-up question-whether he had a paint ball gun-the defendant again responded directly to that question. He stated that he had sold his gun but still had the box. “Any suggestion that [his answer] was offered spontaneously is not supported by the record.” Id.
Even if the defendant's statements had been made spontaneously during the unlawful interrogation, the Commonwealth has not cited a single case creating an exception to the fruit of the poisonous tree doctrine for comments not strictly responsive to a question.
Finally, while the Commonwealth purports to challenge this finding as a ruling of law or an application of constitutional principles subject to challenge on appeal, in essence, the Commonwealth contests the judge's factual findings. In particular, the Commonwealth challenges the finding that the defendant's answers were responsive to the officers' questions. [R. App. 17]. As noted above, the judge found a causal connection between the Miranda violation and the discovery of the sneakers and clothing, and the record amply supports the judge's finding.
“It is the burden of the government to prove that the taint was attenuated enough to allow admission of the evidence derived from prior illegality.” Commonwealth v. Midi, 46 Mass. App. Ct. at 595. Not only did the Commonwealth fail to do so in this case, but on the facts properly found by the motion judge, the Commonwealth cannot make such a showing. The order suppressing the sneakers and clothing should be affirmed.
B. The Judge Properly Rejected The Commonwealth's Inevitable Discovery Argument
The Commonwealth contends that the officers would have inevitably found the bloodstained sneakers within minutes of their unlawful seizure under circumstances not requiring a warrant. Specifically, the Commonwealth argues that since the defendant was wearing only his underwear, he had to put on some clothes before accompanying the officers to the police station. According to the Commonwealth, all of his clothing was in his bedroom, and the officers were entitled to accompany him into that room in order to maintain custody of him. However, the motion judge found that the discovery of the sneakers through legitimate means was by no means certain and was indeed somewhat unlikely. Further, the circumstances suggest that the officers acted in bad faith in an effort to obtain incriminating evidence. The Commonwealth's reliance on the “inevitable discovery” doctrine is misplaced, and the judge properly rejected that argument.
Under the Massachusetts version of the so-called “inevitable discovery” rule, evidence obtained through illegal conduct may be admitted if the Commonwealth meets a stringent two-part test. First, the Commonwealth must “demonstrate by a preponderance standard that discovery of the evidence by lawful means was certain as a practical matter[.]” Commonwealth v. Sbordone, 424 Mass. 802, 810 (1997); Commonwealth v. Perrot, 407 Mass. 539, 546-547 (1990); Commonwealth v. O'Connor, 406 Mass. 112, 117 (1989); Commonwealth v. DiMarzio, 52 Mass. App. Ct. 756, ___ (2001). Second, the Commonwealth must show that the officers did not act in bad faith to accelerate the discovery of evidence, and the particular constitutional violation is not so severe as to require suppression. Id.
In the present circumstances, the Commonwealth cannot meet the first part of this test. As the judge correctly noted, “[a]s a factual matter, the Commonwealth has not sustained its burden of showing that the defendant was likely to have been taken into custody and transported to the police station, nor has the Commonwealth shown that it was reasonable, therefore, for a police officer to accompany the defendant to his bedroom to get dressed.” [R. App. 23-24]. The record amply supports that finding. According to Trooper Blais, when they first spoke with the defendant, Detective Perry advised him that there was an outstanding warrant and that he was going to have to come down to the police station to rectify the situation. [Tr. 1, 139]. However, the officers did not advise the defendant that he would have to accompany them to the station-as opposed to reporting there on his own-until after they had seized his sneakers and clothes. [Tr. 1, 148].
While the judge went no further in his analysis, other facts and inferences in the record support his conclusion. For example, the defendant certainly could have asked his brother, who was in the bedroom, to retrieve his clothing for him. C.f. Commonwealth v. Lee, 383 Mass. 507, 509 (1981) (defendant asked one of the arresting officers to retrieve clothing from his closet). Further, while the defendant did take clothing from his bedroom, it is not clear that that room was the only place where his clothing was located. In fact, he retrieved a pair of sneakers from the bathroom. [Tr. 1, 38]. Moreover, even if the police planned to transport him to the station, it is not clear they would have or could have accompanied him into the bedroom. The default warrant was for a misdemeanor-characterized by one of the officers as “no major thing”-and certainly not a crime of violence. As the motion judge noted, even if they suspected his involvement in the murder, the defendant was not alleged to have used or possessed a weapon. [R. App. 21-22]. Contrast Commonwealth v. Lee, 383 Mass. at 509-510 (defendant suspected of shotgun murder). The officers had no reason to fear that, if permitted to retrieve clothing by himself, he would pose any threat to their safety. See Commonwealth v. Dubois, 44 Mass. App. Ct. 294, 296 (1998).
In these circumstances, the Commonwealth failed to demonstrate that discovery of the evidence was certain as a practical matter. Commonwealth v. O'Connor, 406 Mass. at 117. Contrast Commonwealth v. Sbordone, 424 Mass. at 810 (police had three search warrants and would certainly have seized challenged documents). Even if it was likely that the evidence would be found through lawful means, a probability that the evidence would be found “is insufficient to satisfy the demanding test for inevitability.” Id. Whether likely or unlikely, in the present case, “the over-all situation as to its eventual discovery was characterized by a measure of doubt and uncertainty.” Commonwealth v. Perrot, 407 Mass. at 548.
Even if the Commonwealth could meet the first part of the test, it clearly fails the second part. In this case, the officers had little interest in the arrest warrant, but used it as a means to enter the defendant's apartment and gather evidence in the murder case. In fact, after entering the apartment, they never questioned him about that warrant, instead focusing their efforts entirely on the murder investigation. The judge correctly found that the police lacked probable cause to believe that the defendant was involved in the killing at the time they appeared at his apartment. In effect, they used the warrant as a pretext to question the defendant about the unrelated charge and to search his residence for evidence in circumstances where they could not have obtained a search warrant. See Commonwealth v. Perrot, 407 Mass. at 547; Commonwealth v. Benoit, 382 Mass. 210, 217-220 (1981). Especially where they questioned the defendant without giving him proper Miranda warnings, the record supports a finding that the police acted in bad faith in an effort to accelerate discovery of evidence on the murder case.
The judge did not err in rejecting the Commonwealth's inevitable discovery argument. See Commonwealth v. Perrot, 407 Mass. at 546-547; Commonwealth v. O'Connor, 406 Mass. at 117.
II. The Judge Properly Found The Defendant's Statement “I Don't Think I Want To Talk To You Anymore Without A Lawyer” To Be An Expression Of His Unwillingness To Continue Talking Without A Lawyer
As noted above, the police interrogated the defendant at the police station after his arrest. The defendant waived his Miranda rights and made a statement. After about twenty minutes, the detectives informed the defendant that they did not believe he was telling the truth. Thereupon, the defendant stated, “I don't think I want to talk to you anymore without a lawyer.” The detectives told him that they would give him an opportunity to think about it and left the room. A few minutes later, they returned to the room and informed the defendant that he was being charged with murder. “When told of that, the defendant became visibly upset, was breathing heavily with tears in his eyes, and rhetorically asked, 'he died?'” [R. App. 19]. “The detectives then initiated further questioning by asking the defendant if he wanted to talk to them.” [R. App. 25]. The Commonwealth argues that the motion judge erred in finding the defendant's statement to be an unambiguous request to terminate the questioning and for a lawyer. To the contrary, the Commonwealth characterizes the defendant's statement as so ambiguous that the police were entitled to ignore it. [Commonwealth's brief at 14-15]. The defendant contends, however, that his statement could not have been more clear. The judge properly found that the defendant unambiguously invoked his right to silence and to have counsel present before answering any further questions. The judge committed no error in suppressing the statements that followed that invocation.
A. The Standards
Any invocation of a suspect's right to remain silent or right to counsel must be scrupulously honored. Michigan v. Mosley, 423 U.S. 96, 103-104 (1975); Edwards v. Arizona, 451 U.S. 477, 484-485 (1981). See Commonwealth v. Sicari, 434 Mass. 732, 745-746 (2001); Commonwealth v. Raymond, 424 Mass. 382, 394 (1997). Once a suspect in custody has invoked his right to terminate an interview or to deal with the police only with the aid of counsel, the police may not ask him any further questions unless the suspect himself initiates further communication. Id. at 110 n.2 (White, J., concurring); Edwards v. Arizona, 451 U.S. at 484-485; Commonwealth v. Contos, 435 Mass. 19, 30 (2001); Commonwealth v. Sicari, 434 Mass. at 746; Commonwealth v. Rankins, 429 Mass. 470, 473 (1999); Commonwealth v. Judge, 420 Mass. 433, 448 (1995). See Minnick v. Mississippi, 498 U.S. 146, 153 (1990); Michigan v. Harvey, 494 U.S. 344, 350 (1990); Smith v. Illinois, 469 U.S. 91, 95 (1984). “The Commonwealth has the burden of proving beyond a reasonable doubt that subsequent events indicated a voluntary, knowing, and intelligent waiver of the right to have counsel present and of the right to remain silent.” Commonwealth v. Rankins, 429 Mass. at 473; Commonwealth v. Judge, 420 Mass. at 450-451.
Of course, “[f]or the rule of Miranda regarding the termination of questions to apply, there must be either an expressed unwillingness to continue or an affirmative request for an attorney.” Commonwealth v. Sicari, 434 Mass. at 746, quoting Commonwealth v. Selby, 420 Mass. 656, 662 (1995) and Commonwealth v. Roberts, 407 Mass. 731, 734 (1990). While the defendant “need not 'speak with the discrimination of an Oxford don'” he must articulate his desire to terminate the questioning or to have counsel present sufficiently clearly to alert a reasonable police officer to his wishes. Davis v. United States, 512 U.S. 452, 459 (1994). See Id.
On review of a motion to suppress, appellate courts may not disturb the judge's findings of fact unless they are clearly erroneous. Reviewing courts should also accord deference to the judge's legal conclusions, although the application of constitutional principles to the facts found should be independently reviewed. Commonwealth v. Sicari, 434 Mass. at 746-747.
B. The Defendant Clearly And Unambiguously Invoked His Rights
In this case, the record amply supports the judge's finding that the defendant clearly and unmistakably invoked both his right to counsel and his right to terminate the interrogation. He specifically mentioned both rights, and his invocation immediately followed an accusation by the police that he had not told the truth in denying his involvement in the killing.
The Commonwealth contends that the statement “I don't think I want to talk to you anymore without a lawyer” is both ambiguous and equivocal. In essence, the Commonwealth argues that the defendant's use of the word “think” (“I don't think I want to talk to you anymore without a lawyer”) adds an element of uncertainty. However, as the Supreme Judicial Court recently noted, “'[i]n normal parlance, this ... phraseology is an acceptable and reasonable way to frame a request.'” Commonwealth v. Contos, 435 Mass. at 29, quoting State v. Dumas, 750 A.2d 420, 425 (R.I. 2000). Thus, prefacing a request with the term “I think” or other similar terms does not give the police license to ignore the request as ambiguous. Compare Id. (the phrase, "I think I'm going to get a lawyer," was an unambiguous invocation of the defendant's right to counsel); Shedelbower v. Estelle, 885 F.2d 570, 571-573 (9th Cir. 1989) (deeming "You know, I'm scared now. I think I should call an attorney" a clear invocation of the defendant's right to counsel); McDaniel v. Commonwealth, 518 S.E. 2d 851, 853-854 (Va. App. 1999) (“I think I would rather have an attorney here to speak for me“ deemed unequivocal and unambiguous invocation of right to counsel).
The Commonwealth claims that in several cases, “[c]learer statements than the one at bar have been held to be ambiguous.” [Commonwealth's brief at 15]. However, an examination of the cases cited fails to support the Commonwealth's contention.
In Commonwealth v. Pennellatore, 392 Mass. 382, 387 (1984), after a booking officer commented on the seriousness of the charges, the defendant responded, “I guess I'll have to have a lawyer for this.” However, the comment did not occur during an interrogation, the defendant never expressed a desire not to talk to the police, the defendant refused the officer's urging that he use the telephone to call someone for assistance, and he ultimately agreed to speak with homicide detectives. Id.
In Commonwealth v. Corriveau, 396 Mass. 319, 331 (1985), the defendant stated during police questioning, “[i]t's beginning to sound like I need a lawyer.” Unlike the present case, the defendant did not ask to terminate the interview. Moreover, after the defendant's comment, one of the interviewers advised the defendant, “You may use the telephone to call a lawyer and you may leave at any time if you wish to do so.” The defendant responded, “I don't want to leave and I don't want a lawyer.” Id.
Unlike the present case, statements in Davis, supra, and Diaz v. Senkowski, 76 F.3d 61, 64 (2d Cir. 1996) in which the defendants stated, “Maybe I should talk to a lawyer” do reflect some ambivalence on the part of the defendant. See Commonwealth v. Contos, 435 Mass. at 29-30. Further, unlike the present case, neither statement references terminating the interview. Again, the record simply does not support the Commonwealth's claim that the statement is clearer than in the present case.
In addition to the language used by the defendant, courts have looked at the particular circumstances giving rise to the invocation of rights. In the present circumstances, the Commonwealth's insistence on precision in the defendant's language is particularly shocking. The defendant was seventeen years old. He was in custody, he was handcuffed to a wall in a police interrogation room, he was without the assistance of an adult, and the police were accusing him of extremely serious charges. Contrast Commonwealth v. Corriveau, 396 Mass. at 331 (defendant, who was a sophisticated businessman, was told he could leave any time). The fact that he did not articulate his desires in the precise language that the police wished to hear is not at all surprising, nor should he be penalized for his choice of words.
Should this court choose to view the statement as ambiguous in some manner, any further questioning should have been limited to clarifying the defendant's intentions. While the Supreme Court has not required such clarifying questioning where the defendant purports to invoke the right to counsel, the five justices in the majority in Davis suggested that in most instances the police should clarify such ambiguity. Davis v. United States, 512 U.S. at 461. The Commonwealth concedes that in the present case, such clarifying questions would have been good police practice. [Commonwealth's brief at 15]. In the present circumstances, any questioning-if permitted-should have been limited to clarifying the defendant's desires.
The defendant contends that under any reading of the challenged phrase, he clearly and unequivocally invoked his right to terminate the interview and to obtain counsel. Not only has the Commonwealth failed to show that the judge misapplied constitutional principles to the facts he found, but it would have been error had he found the defendant's invocation of his rights to have been ambiguous. Commonwealth v. Contos, 435 Mass. at 29-30. The judge properly suppressed the defendant's final statement at the police station.
III. Conclusion
Based on the authorities cited and the reasons aforesaid, the defendant requests that the judgment of the trial court allowing his motion to suppress be affirmed.
Respectfully submitted,
Mario Barros
By his attorneys,
Dana A. Curhan, Esq.
B.B.O. # 544250
101 Arch Street
Suite 305
Boston, MA 02110
(617) 261-3800
Thomas M. Quinn, III
B.B.O. # 553179
280 New Boston Road
Fall River, MA 02720
(508) 673-1116