Opinion
16-P-262
04-26-2017
COMMONWEALTH v. Vanessa GOMEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Vanessa Gomez, was convicted of carrying a firearm without a license, G. L. c. 269, § 10(a ), and of carrying a loaded firearm without a license, G. L. c. 269, § 10(n ). She challenges the denial of her motions to suppress admissions made and items found during a roadside stop. We affirm.
The defendant was also charged with possession of ammunition, G. L. c. 269, § 10(h )(1), but was found not guilty on that charge.
Background. We summarize the judge's factual findings based on the testimony at the motion hearing. On March 14, 2014, Officer Brendan Bosse of the Boston police department was on patrol on Talbot Avenue in the Dorchester section of Boston when he saw a car partially blocking traffic. He ran the car's license plate number and learned that its owner had a suspended license. After seeing the car make a turn without signaling, he pulled it over. Officer Bosse learned that Verenisa Valdez was the owner and confirmed that she was driving the car with a suspended license; after determining that neither of the two passengers had driver's licenses, he asked all three to get out of the car so the car could be towed. Officer Dario Fancelli joined Officer Bosse, and they performed an inventory search of the car. They found a bullet in the center console compartment.
At this point Officer Fancelli approached the defendant, the front-seat passenger. She was standing to the side of the car with the other passenger and two police officers. Officer Fancelli asked, "Can I look in your bag?" The motion judge found that his tone was conversational in nature and that the other officers were four to five feet away talking about what to do with the car. The defendant said "yes" and handed him the bag, in which he saw a gun. The officers then took the defendant into custody.
The driver was also arrested and charged. See Commonwealth vs. Valdez, Mass. App. Ct., No. 16-P-263 (April 26, 2017).
Discussion. When reviewing a ruling on a motion to suppress, we "conduct an independent review of [the judge's] ultimate findings and conclusions of law." Commonwealth v. Scott, 440 Mass. 642, 646 (2004) (quotation omitted). "[W]e accept the motion judge's subsidiary findings unless there is clear error, and we give substantial deference to the judge's ultimate findings." Commonwealth v. Davis, 41 Mass. App. Ct. 793, 795 (1996).
1. Custody. The defendant contends that she was subject to a custodial interrogation when Officer Fancelli asked, "Can I look in your bag?" See Miranda v. Arizona, 384 U.S. 436, 444 (1966). "[T]he requirements of Miranda... are not triggered unless the interrogation is custodial, and a defendant's failure to receive or understand Miranda warnings, or police failure to honor Miranda rights, does not result in suppression of a voluntary statement made in a noncustodial setting." Commonwealth v. Libby, 472 Mass. 37, 40 (2015) (quotation and citation omitted).
Miranda safeguards do not apply until the "suspect's freedom of action is curtailed to a ‘degree associated with formal arrest.’ " Commonwealth v. Kirwan, 448 Mass. 304, 309 (2007), quoting from Berkemer v. McCarty, 468 U.S. 420, 440 (1984). To determine whether the defendant was in custody for Miranda purposes, we must ask "whether, considering all the circumstances, a reasonable person in the defendant's position would have believed that he was in custody." Commonwealth v. Groome, 435 Mass. 201, 211 (2001) (quotation omitted). We consider "several factors," including:
"(1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that that person is a suspect; (3) the nature of the interrogation, including whether the interview was aggressive or, instead, informal and influenced in its contours by the person being interviewed; and (4) whether, at the time the incriminating statement was made, the person was free to end the interview by leaving the locus of the interrogation or by asking the interrogator to leave, as evidenced by whether the interview terminated with an arrest."
Id. at 211-212. "There is no specific formula for weighing the relevant factors, ... [and] [r]arely is any single factor conclusive." Commonwealth v. Sneed, 440 Mass. 216, 220 (2003) (quotation omitted).
The questioning occurred on a public sidewalk, not a "police-dominated atmosphere." See Commonwealth v. Cawthron, 90 Mass. App. Ct. 828, 838-839 (2017), quoting from Commonwealth v. Shine, 398 Mass. 641, 648 (1986). The judge did not find and the record does not indicate that the officers conveyed that they suspected the defendant of a crime. Nor does the record show any indication that the nature of the questioning was aggressive or accusatory. The "interrogation was brief," and the defendant's "detention was minimal and similar to a Terry-type stop." Kirwan, 448 Mass. at 312. The judge found "[t]here was no indication that these officers in any way prevented Ms. Gomez ... from leaving the scene." The officers controlled the scene to perform the inventory search and secure the car, and did not curtail the defendant's freedom to the degree associated with formal arrest. See ibid. See also Cawthron, supra. There was no error.
2. Voluntariness. "[T]he defendant bears the initial burden to produce evidence tending to show her statement was not voluntary." Commonwealth v. Hilton, 450 Mass. 173, 177 (2007). See Commonwealth v. Tremblay, 460 Mass. 199, 206 (2011). The burden then shifts to the Commonwealth to prove beyond a reasonable doubt that the defendant's statement was voluntary. Commonwealth v. Bell, 473 Mass. 131, 141 (2015). Here, the defendant contends that she did not consent to the search, but rather acquiesced to a claim of lawful authority.
"A statement is voluntary if it is the product of a rational intellect and a free will." Ibid. "[T]he Commonwealth must show ‘consent unfettered by coercion, express or implied, and also something more than mere "acquiescence to a claim of lawful authority." ’ " Commonwealth v. Sanna, 424 Mass. 92, 97 (1997), quoting from Commonwealth v. Voisine, 414 Mass. 772, 783 (1993). "The test for voluntariness ... is ‘whether, in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was overborne to the extent that the [statement] was not the result of a free and voluntary act.’ " Commonwealth v. Lopes, 455 Mass. 147, 167 (2009), quoting from Commonwealth v. Selby, 420 Mass. 656, 663 (1995). Under the "totality of the circumstances" test, we must "consider all of the relevant circumstances surrounding the statement and the individual characteristics and conduct of the defendant." Hilton, 450 Mass. at 177.
The defendant stood with her sister, the other passenger, on a public sidewalk. She was not physically restrained, and she was not told she could not leave. Officer Fancelli asked the defendant in a conversational tone if he could look in her bag. The fact that two officers stood talking some four to five feet away from the defendant does not require a finding as a matter of law that "the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act." Ibid. (quotation omitted). See Commonwealth v. Shine, 398 Mass. at 649.
The defendant also emphasizes the fact that the police did not inform her of her right to refuse consent. However, "knowledge of a right to refuse is not a prerequisite of a voluntary consent." Commonwealth v. Santos, 465 Mass. 689, 698 (2013), quoting from Schneckloth v. Bustamonte, 412 U.S. 218, 234 (1973). The judge's "findings [were] warranted by the evidence, and we shall not disturb them." Commonwealth v. Shine, supra at 649.
"The presence of one or more factors suggesting a statement may have been made involuntarily is not always sufficient to render the statements involuntary." Commonwealth v. Tremblay, 460 Mass. at 207, quoting from Commonwealth v. Selby, 420 Mass. at 664.
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Judgments affirmed.