Opinion
No. 96-0417
February 12, 1997
MEMORANDUM OF DECISION UPON DEFENDANT'S MOTION TO SUPPRESS
INTRODUCTION
Defendant has moved to suppress evidence obtained by the police as a consequence of the stop of defendant's motor vehicle on Cemetery Road in Dudley, Massachusetts on June 10, 1996. Defendant contends that the stop was unlawful and that both the several searches and seizures and the statements he uttered after the stop are excludable products of the stop. More particularly, defendant seeks suppression of:
(1.) An amount of money obtained from his person at the scene of the stop;
(2.) Controlled substances and packaging material obtained from his vehicle at the scene of the stop;
(3.) Oral statements made by him in response to custodial interrogation at the scene of the stop; and
(4.) Controlled substances and other evidentiary items obtained during a search of defendant's residence at Apartment 35, 11 Wysocki Drive, Dudley, Massachusetts.
The motion was heard on various dates in November and December, 1996. Based upon the evidence adduced at said hearings, I enter the following.
FINDINGS OF FACT
1. In late December, 1992, the office of the District Attorney for the Middle District was informed of defendant's arraignment in Uxbridge District Court upon a fugitive from justice complaint based upon a New York warrant. The office promptly initiated inquiries of the appropriate authorities and confirmed the existence of the warrant and that the party sought was one "Trujillo." The District Attorney immediately established communications with the New York officials and repeatedly requested that New York take custody of defendant. The New York officials were disinclined to travel to Uxbridge to pick up the defendant. The fugitive complaint was, accordingly, dismissed on January 12, 1993 and defendant was released from Massachusetts custody.
2. In May and June, 1996, Webster police officers had become suspicious at the pattern of defendant's vehicle's presence at certain bars in the area. Having heard of the possibility of a New York warrant seeking defendant's arrest, the Webster authorities sought confirmation from New York, but the New York officials were not cooperative. The Webster police, therefore, took no further action with respect to the warrant. They did, however, inform Dudley Police Officer Savage of their suspicions. The Webster officers commenced no active investigation of defendant's doings at the bars and merely passed on their suspicions to their Dudley colleagues.
3. The New York warrant remained active at least through November 19, 1996.
4. On June 10, 1996, Officer Savage was seated in his stationary cruiser on Oxford Avenue in Dudley. The cruiser was positioned in a northerly direction.
5. Oxford Avenue is a two lane public way; its north and south lanes are separated by a single, solid yellow line. The speed limit at the cruiser's location was 30 M.P.H., but, just past the cruiser to the north, the speed limit increased to 40 M.P.H. Traffic was light.
6. At approximately 10:15 p.m., a gray van drove past the cruiser. The van was proceeding north on Oxford Avenue and its speed was slower than might be expected in the circumstances. Its path was in the middle of the road. Savage could not see inside the van. Noting the van's mid-road course, he pulled onto Oxford Avenue and followed the van at an interval of about three car lengths. Savage did not activate his blue lights or his siren.
7. The van's speed remained steady at about 30 M.P.H., but it weaved from the center of the road to the right extreme, back to the center and again to the right extreme. It passed over the yellow center line and into the south bound lane on at least two occasions. The swerving action of the van between center and right occurred four times in six-tenths of a mile on Oxford Avenue.
8. The van made a right turn from Oxford Avenue onto Cemetery Road, a two lane, winding, public way with no artificial lighting. The operator (hereinafter, the defendant) did not employ any turn signals.
9. Savage followed the van onto Cemetery Road and turned on his blue lights. The van promptly pulled to the right and stopped. The cruiser stopped in a position to the left rear of the van. The cruiser's top flashing lights and its wig-wag headlights remained on. Savage, by radio, reported the van's license plate number and location to his dispatcher.
10. With flashlight in hand, Savage approached the left side of the van. He asked the defendant whether he understood English; the response was "no problem with English — I speak English." Savage then requested that the defendant produce his license and registration. The defendant complied and, as the transfer occurred, Savage noted a "faint odor of alcohol." The defendant had consumed at least two beers that day, one at 4:00 p.m. and one at 7:00 p.m. Ordering the defendant to remain seated, Savage returned to his cruiser and transmitted to his dispatcher the license and registration information. The license recited a Worcester, Massachusetts address; the registration recited a Webster, Massachusetts address. Each document bore defendant's name and the middle initials "T I." Savage remained in his cruiser as he awaited a response from the dispatcher.
11. The dispatcher soon came on the air with the following reply, in substance, to Savage:
(a.) There are "possible warrants" from New York accusing the operator of "dangerous drug" offenses.
(b.) We are awaiting confirmation on the warrants.
(c.) The name on the warrant is "Leonardo Trujillo."
(d.) The date of birth and social security account number on the license match those on the warrant.
12. Another cruiser, having monitored the transmissions between Savage and the dispatcher, arrived at the scene. Its occupant was Dudley Officer Stevens who was in uniform. Savage and Stevens met at the rear of Savage's cruiser. Savage told Stevens that Savage had learned, two months earlier, that the Webster, Massachusetts police were "interested" in the defendant whom they suspected of involvement with controlled substances.
13. The two officers approached the van; Savage to the passenger side, Stevens to the driver's side. Savage shone his flashlight through the right side windows of the van to determine whether there were other occupants of the vehicle. He saw none.
14. Stevens ordered the defendant to exit from the vehicle and to step to the rear of the van. The order was based upon the dispatcher's report of "possible warrants" and the officer's concern for his safety born of his experiences in 500 prior drug-related arrests of which about 85% involved cocaine. Stevens then addressed the operator in substance as follows:
Stevens: Are you aware that there are warrants in your name, in the name of Trujillo?
Operator: Yes, I often use my middle name of "Trujillo" in New York, but I think they have been cleared up. Also, there are some Uxbridge matters relating to the warrants.
Stevens: May we look in your van?
Operator: Sure, go ahead, there is nothing in there.
Stevens: You don't have to let us search. We will stop if you say so.
Operator: I understand. Go ahead.
Savage stood beside the defendant while Stevens searched the van.
15. Noting a "bulge" in the right front pocket of defendant's pants, Savage asked the operator, "What is it?" The defendant responded, "Money." Savage patted the bulge and said, "Take it out." The defendant complied and extracted a one inch thick wad of bills. Savage said, "What else?" The defendant pulled out two more wads of bills, each a bit smaller than the first, and explained that he had recently sold a car, although he possessed no documentation relative to the sale. The three wads totaled about seventeen hundred dollars. The pat-frisk and discovery of the currency by Officer Savage occurred subsequent to the defendant's acquiescence to the search of the van by Officer Stevens.
His patting of the "bulge" did not cause Officer Savage to be concerned that defendant possessed a weapon.
16. While Savage spoke with the defendant, Stevens entered and searched the van. His search was systematic; at first he sought weapons and then he surveyed the entire contents of the van. He noticed a bed in the back of the van and a brown paper bag on top of the bed. The bag was "sandwich-sized"; its top was open, and there was a "heft" to it when Stevens touched the bag. He peered into the open top and saw that the bottom two thirds of the bag was filled with "clear baggies." Stevens extracted the baggies from the brown bag and saw, remaining in the bag, a white powder. His experience led him to the conclusion that the powder was cocaine.
17. Stevens placed the defendant under arrest for trafficking in cocaine and asked the defendant why he had consented to the search of the van; the defendant responded, "I was just taking a shot, a chance." Stevens then advised the defendant, as he sat in the back of the cruiser, of his Miranda rights. The defendant said both that he understood them and that he was willing to speak with the police.
18. Notwithstanding that English is the defendant's second language and that he speaks it with a heavy accent, defendant fully understood his Miranda rights and his right not to consent to the search of the van. His waiver of the former and his consent to the latter were knowing, intelligent, and voluntary.
19. Stevens then inquired of the defendant whether or not he lived in Dudley. His response was, "Yes, 11 Wysocki Drive, Apartment 35." Stevens again informed the defendant of the Miranda rights and, to Stevens' further question, "Will you allow us to search that apartment," the defendant replied, "Yes, there is nothing there."
20. The existence of the New York warrants for the defendant's arrest was confirmed by the dispatcher at 10:54 p.m. Thereafter, the officers departed the Cemetery Road scene and transported the defendant to the 11 Wysocki Drive residence.
21. At approximately 11:10 p.m., the officers and the defendant arrived at Apartment 35, 11 Wysocki Drive. Stevens was in possession of the defendant's house keys, having obtained them in a search incident to the arrest on Cemetery Road. Defendant identified the key that would open the door to Apartment 35. The premises of Apartment 35 contained one bedroom in which was situated one bed. A search of the apartment produced cocaine, papers (or "crib notes") with names and money amounts inscribed thereon, other documents referencing a "Village Way" address in Webster and a pager. When confronted with the cocaine, defendant responded, "I forgot it was there." The response was made about ten minutes after defendant had received his Miranda warnings on Cemetery Road.
DISCUSSION
I. THE STOP OF MOTOR VEHICLE
A police officer witnessing a traffic violation always has justification to conduct an initial inquiry for a license and registration. Commonwealth v. Johnson, 413 Mass. 598 (1992) (stop justified based upon speeding and driving so as to endanger); Commonwealth v. Bacon, 381 Mass. 642, 644 (1980) (and cases cited) (stop justified when police observe traffic violation); Commonwealth v. Santiago, 30 Mass. App. Ct. 207, 210, rev. denied 409 Mass. 1105 (1991) (stop justified based upon speeding and erratic driving). Even seemingly innocuous moving violations may justify a stop and inquiry. Commonwealth v. Lantigua, 38 Mass. App. Ct. 526, 526-528 (1995) (police justified in stopping vehicle after observing failure to stop for stop sign). See also Commonwealth v. Torres, 424 Mass. 153, 157 (1997) (vehicle may be properly stopped for speeding); Commonwealth v. Heughan, 40 Mass. App. Ct. 102, 104-105, rev. denied 422 Mass. 1107 (1996) (same).
When a vehicle has been stopped for a moving violation, a police officer may request that the driver produce his license and registration. See Bacon, 381 Mass. at 644; Lantigua, 38 Mass. App. Ct. at 527-528. Once a driver produces a valid license and registration, however, police inquiry must end unless there are further grounds for inferring that the driver was involved in the commission of a crime or engaged in suspicious conduct. Torres, 424 Mass. at 158; Commonwealth v. King, 389 Mass. 233, 243-244 (1983).
In the present case, Gonzalez produced a license bearing a Worcester address and a vehicle registration bearing a Webster address. Although not inherently suspicious, the dichotomous addresses justified further inquiry by Savage, and his election to transmit the information on the license and registration to police dispatch and await a response was not unreasonable. Indeed it was, in the circumstances, fully consonant with proper police procedure.
When Savage received from his dispatcher the information with respect to the "possible warrants" from New York for "dangerous drug" offenses and the congruity of the date of birth and social security number on the license with those on the warrant, Savage could reasonably infer that Gonzalez had been involved in the commission of a New York crime for which an active apprehension order was outstanding. Furthermore, the information from Stevens that the Webster police were "interested" in the defendant because they suspected him of being engaged locally in unlawful activities involving controlled substances intensified the need for further attention. At a minimum, Savage had reasonable cause to investigate further while he awaited confirmation of the warrant.
The defendant argues that all statements and evidence seized as a result of the traffic stop should be suppressed because New York violated Gonzalez's due process rights by permitting the warrant to remain outstanding. That conclusion proceeds from the premise that New York had no intention of pursuing the warrant as demonstrated by its omission to pick up the defendant when he was held on that warrant in December, 1992. The defendant contends that, if the warrant had not thus been left pending, the Dudley police would have had no basis for further inquiring of Gonzalez once he produced a valid license and registration. The absence of a justifying basis, he maintains, vitiates his consent to search his van and his apartment and renders those warrantless searches invalid.
The defendant points, however, to no authority supporting his contention that a demanding state has an obligation to remove warrants from its computer system after it has omitted to take custody of the individual named in the warrant. Furthermore, to accept Gonzalez's view is to accept the argument that a single omission constitutes an irreversible decision not to prosecute and illegitimizes the warrant. This court is aware of one case, Commonwealth v. Hecox, 35 Mass. App. Ct. 277 (1993), in which outdated and inaccurate computer information did serve as a basis for suppression of evidence. Hecox is nevertheless distinguishable because, at bar, no computer error occurred in New York nor was the reflection of the existence of the New York warrant in the Massachusetts computers inaccurate.
The controlling fact is that a valid warrant remained in New York and was faithfully mirrored in the Massachusetts records. That New York authorities refused to take custody of Gonzalez in December of 1992 does not abrogate the validity of its warrant. Furthermore, as will be discussed below, I find that the officers' actions upon learning of the possibility of an outstanding warrant were reasonable, justified, and proportional to their suspicions.
This court regrets that the New York authorities were not more willing to sample the hospitality of Uxbridge in 1992-1993 or to purge their warrant management system of dormant detention directives. New York's failing does not, however, ascend to a constitutional deprivation nor does it infect the otherwise lawful attentions of the Dudley police.
II. THE EXIT ORDER TO THE DEFENDANT
When a motor vehicle is, as here, justifiably stopped, police officers may take reasonable precautions for their own safety and protection. Commonwealth v. Ferrara, 376 Mass. 502, 505 (1978). Ordering the driver and other occupants to exit the vehicle is one such permissible precaution. Id.; Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977). While an exit order made after a threshold inquiry is subject to close scrutiny, see Commonwealth v. Loughlin, 385 Mass. 60, 62 and n. 2 (1982), the order at bar does, under the totality of its circumstances, survive that scrutiny.
Stevens was entitled to rely on his experiences in 500 prior drug-related arrests as giving rise to his concern for his and Savage's safety. Cf. Commonwealth v. Silva, 366 Mass. 402, 406-407 (1974) (police entitled to rely on and apply experience to facts known to them about defendant-driver and passenger); Commonwealth v. Va Meng Joe, 40 Mass. App. Ct. 499, 510 n. 13 (1996) (and cases cited) (police can rely on experience with drugs and weapons in evaluating present situation); Commonwealth v. Garcia, 34 Mass. App. Ct. 645, 651 (1993) (police may rely on "training and experience to draw inferences and make deductions that might well elude an untrained person."). With Gonzalez inside his van, Stevens and Savage were deprived of the sense of safety that Ferrara and Mimms envisioned that they should enjoy. Stevens' exit order, while awaiting for dispatch to confirm or dispel the existence of a New York warrant, was reasonable and justified in the totality of the circumstances.
Among the "circumstances" that justified the exit order were the remote and dark location of the stop, defendant's erratic conduct when driving, his odor of alcohol, the suspicions of the Webster police conveyed to the Dudley officers and, of course, the "possible warrants for dangerous drugs" indications from New York. While no one of those circumstances might furnish the requisite justification, their entirety provided a firm underpinning for the exit order. Contrast, Torres, 424 Mass. at 162-163 (no additional circumstances existed that would justify further police action after the license and registration examinations proved unexceptional).
III. THE WARRANTLESS SEARCH OF DEFENDANT'S VAN
Law enforcement officers may conduct a search without probable cause and without a search warrant if they have the consent of a person authorized to give consent to the search. See Commonwealth v. Berry, 420 Mass. 95, 104 (1995); Commonwealth v. Voisine, 414 Mass. 772, 783 (1993); Commonwealth v. Robinson, 399 Mass. 209, 217 (1987). A search with consent is reasonable and legal only to the extent that the individual has consented. Commonwealth v. Brown, 32 Mass. App. Ct. 649, 652 (1993). If the Commonwealth is relying on consent as the basis for a warrantless search, it must be able to demonstrate that the defendant gave his consent voluntarily and not as a result of his being coerced or of his acquiescence to a claim of lawful authority. Voisine, 414 Mass. at 783; Robinson, 399 Mass. at 217.
The court considers the circumstances of each case when determining whether consent is voluntary. Commonwealth v. Aguiar, 370 Mass. 490, 496 (1976). Whether the individual subject to the search knows that he has the right to refuse to consent to the search is one factor courts consider in determining voluntariness. See Commonwealth v. Cantalupo, 380 Mass. 173, 178 (1980). In the present case, Gonzalez twice gave his consent to search the van. After the defendant responded affirmatively to Stevens' initial request to look in the van, Stevens told the defendant that he did not have to let the police search and that they would stop if defendant so requested. The defendant indicated that he understood his right to refuse and repeated his consent to the search of his van.
Under the totality of the circumstances, I find that the defendant's consent was voluntarily given and was not the result of any coercion or acquiescence to authority. Stevens' further cautioning of Gonzalez and Gonzalez's repeated consent support that conclusion. The defendant argues that his ability to understand his right to refuse consent was impaired by the fact that English is his second language. The argument is meritless because, as found supra, defendant fully understood his rights and voluntarily consented to the search. The cocaine seized from the van is, therefore, admissible.
IV. THE PAT-FRISK
The police may conduct a limited pat-down search of an individual for weapons if the officer reasonably believes that his safety or the safety of others is in danger. Terry v. Ohio, 392 U.S. 1, 27 (1968); Commonwealth v. Silva, 366 Mass. 402, 406-408 (1974). When a pat-down search is conducted, the court must determine whether the scope of the search was justified under the totality of the circumstances. Commonwealth v. Mercado, 422 Mass. 367, 369 (1996) and cases cited. In making this determination, courts look to the proportionality between the degree of intrusiveness and the degree of suspicion which prompted the intrusion. Commonwealth v. Borges, 395 Mass. 788, 794 (1985), citing Commonwealth v. Bottari, 395 Mass. 777, 781 (1985).
A bulge in a person's clothing may indicate the existence of a weapon and thus may entitle a police officer to pat-down a person's outer garments as a protective measure. See Mimms, 434 U.S. at 112. While Stevens searched the van, Savage stood by the defendant and noticed a bulge in the right front pocket of the defendant's pants. Based upon the totality of the circumstances, I find that Savage could have reasonably believed at that point that he may have been in danger and that the defendant may have a weapon in his pocket. Savage was therefore justified in inquiring of the defendant about the bulge. Notwithstanding Gonzalez's response that the bulge was money, I find that Savage, who need not have believed Gonzalez's response, was justified in patting the bulge and telling the defendant to "take it out." See Id. Concededly, the post-pat extraction order was not based upon the officer's concern that defendant was armed, but, having already patted the "bulge," Savage's subsequent order to "take it out" was not a substantial escalation of police intrusion into defendant's zone of privacy, nor was it a significantly more invasive insult to defendant's personal integrity.
Eventhough Gonzalez did in fact extract a first wad of money from his pocket, Savage's further inquiry as to the remaining contents of Gonzalez's pocket was also constitutionally sound. In the circumstances, the request to disclose the remainder of the "bulge" did not constitute an unreasonable compromise of defendant's privacy. The request by Savage was met by defendant's unprotesting delivery of two more wads of money. The process by which the police obtained the currency was not, in the circumstances, disproportionate to legitimate police interests or otherwise unreasonable.
Assuming, arguendo that, after patting the bulge, Savage was no longer concerned that defendant had a weapon and was thus deprived of a justification for his request that Gonzalez "take it out," I conclude, alternatively, that the three wads of currency would shortly have been discovered pursuant to a search incident to defendant's lawful arrest. Once Stevens discovered the cocaine in defendant's van, the police had probable cause to arrest Gonzalez. When an officer makes an arrest, he may search the individual to remove any weapons and to seize fruits, instrumentalities, contraband, and other evidence connected to the crime for which the individual is being arrested. See G.L.c. 279, § 1 ("A search conducted incident to an arrest may be made only for the purposes of seizing fruits, instrumentalities, contraband and other evidence of the crime for which the arrest has been made, in order to prevent its destruction or concealment. . . ."). Thus, the seizure of the three wads of currency was a near certainty because a search of defendant incident to his arrest was imminent.
The fact that such a search incident to defendant's arrest occurred before the arrest itself is immaterial. See Commonwealth v. Santiago, 410 Mass. 737, 742 (1991); Commonwealth v. Brillante, 399 Mass. 152, 154-155 n. 5 (1987), citing United States v. Elsoffer, 671 F.2d 1294, 1298 n. 8 (11th Cir. 1982). Provided that probable cause exists at the time of the search, and independent of the results of the search, the arrest need not precede it. Brillante, 399 Mass. at 154-155 n. 5, citing Elsoffer, 671 F.2d at 1298 n. 8.
Sufficient evidence was introduced, during the hearing on the motion, to permit the conclusion that, at the time of the extraction order, probable cause existed to arrest defendant. Stevens found the cocaine in defendant's van during the time that Savage patted the "bulge" and ordered defendant to "take it out." It is well settled that when police officers are working in a cooperative effort, the knowledge of one officer can be imputed to the other officers. See Commonwealth v. Gullick, 386 Mass. 278, 283-284 (1982) (evaluation of existence of probable cause will consider basis of collective information of all police officers working on case); Commonwealth v. Hawkins, 361 Mass. 384, 386-387 and n. 3 (1972), quoting Commonwealth v. Ballou, 350 Mass. 751, 757 (1966) (noting "elementary rule of composite knowledge of police officers engaged in cooperative effort, where the knowledge of one may be the knowledge of all."); Commonwealth v. McDermott, 347 Mass. 246 (1964) (same). At bar, Stevens' probable cause can be imputed to Savage, who had been assisting Stevens in the inquiry. At the time of the search, Stevens had probable cause to arrest Gonzalez, independent of the three wads of money found by Savage. Thus, the search by Savage did not violate Gonzalez's federal or state constitutional rights.
Massachusetts has recognized the validity of the "inevitable discovery" doctrine in circumstances where to apply it would not undermine the policy behind the requirement of a warrant. Commonwealth v. O'Connor, 406 Mass. 112, 115 (1989). "Inevitable discovery" must be shown by the facts to be "certain as a practical matter." Id. at 117. Contrast, Commonwealth v. Ferguson, 410 Mass. 611, 615-616 (1991) ("inevitable discovery" inapplicable where "defendant was neither in custody at the time of the search nor was custody inevitable."). Bad faith on the part of the police, however, will not be rewarded under the inevitable discovery doctrine. Id. at 118. At bar, certainty is manifest and bad faith is not suggested by the evidence. The doctrine is fully applicable to the instant extraction order.
Gonzalez's arrest was imminent once Stevens discovered the cocaine in the van. A search incident to that arrest would properly have been conducted at that point. The three wads of money would certainly, as a practical matter, have been discovered pursuant to that search. Therefore, I conclude that suppression of the money is not warranted under the circumstances because the money would inevitably have been discovered by the police officers effecting a search incident to arrest.
V. MOTION TO SUPPRESS STATEMENTS
The United States and Massachusetts constitutions protect criminal defendants against the use of their involuntary statements as evidence against them. Miranda v. Arizona, 384 U.S. 436, 467-479 (1966); Commonwealth v. Murray, 359 Mass. 541, 545-546 (1971). The analysis used in reviewing a defendant's motion to suppress pre-trial statements by reason of involuntariness has two components. First, the court must decide whether, in the circumstances, Miranda warnings were required. Second, if the warnings were required, the court must consider three factors: (1) whether the warnings were effectively communicated; (2) whether the defendant made a voluntary and knowing waiver of the Miranda rights; and (3) whether the defendant made the statements voluntarily, that is, without being intimidated or coerced. Commonwealth v. Koney, 421 Mass. 295, 304 (1995) (despite defendant's intoxication, statements were product of a "rational mind"); Commonwealth v. Williams, 388 Mass. 846, 850-856 (1983); Commonwealth v. Tavares, 385 Mass. 140, 145, cert. denied, 457 U.S. 1137 (1982).
If the Miranda advisement requirements have not been met, a defendant's statement or confession is deemed involuntary as a matter of law and must be suppressed. Commonwealth v. Smith, 412 Mass. 823, 829-837 (1992); Tavares, 385 Mass. at 145; Commonwealth v. Ayala, 29 Mass. App. Ct. 592, 597-598 (1990). Likewise, if the court finds that the defendant did not knowingly, willingly, and intelligently waive his Miranda rights or that the statements were made involuntarily, then the statements must be suppressed. Tavares, 385 Mass. at 145. The Commonwealth bears the burden of proving the voluntariness of both the waiver and of the statements; that burden must be borne beyond a reasonable doubt. Smith, 412 Mass. at 837; Commonwealth v. Day, 387 Mass. 915, 920-921 (1983).
Miranda warnings are required only when there is "custodial interrogation", that is, when a person has been questioned by law enforcement officers after being taken into custody or otherwise deprived of his freedom of action in a significant way. Commonwealth v. Bryant, 390 Mass. 729, 736-737 (1984); Miranda v. Arizona, 384 U.S. 436, 443-444 (1966). A person is deemed to be in "custody" if he is formally under arrest or subject to a "restraint on freedom of movement of the degree associated with a formal arrest." New York v. Quarles, 467 U.S. 649 (1984). The test is objective: whether a reasonable person would conclude, based upon the officer's statements and acts, that the defendant was not free to leave. Bryant, 390 Mass. at 739 n. 11.
Courts have considered numerous factors in making such a determination, to wit, the place of the interrogation; whether the investigation has focused on the defendant and whether there was probable cause to arrest him; the nature (aggressive or informal) of the interrogation; and whether the defendant had the ability to end the interrogation either by leaving or by asking the law enforcement officers to leave. Bryant, 390 Mass. at 737 (citations omitted). That a suspect is in an arguably coercive environment, such as a police station, is not as determinative as the defendant's belief that he or she was free to leave. See Commonwealth v. Buckley, 410 Mass. 209, 216-217 (1991) (applying Bryant factors, court found defendant was not in custody and voluntarily made statements). A temporary detention pursuant to a routine traffic stop, however, is not custodial. Commonwealth v. Ayre, 31 Mass. App. Ct. 17, 20, rev. denied 411 Mass. 1101 (1991).
The term "interrogation" in the Miranda context refers not only to express questioning, but also to any words or actions on the part of the police, other than those normally attendant to arrest and custody, that the police should know are reasonably likely to elicit an incriminating response from the suspect. Rhode Island v. Innis, 446 U.S. 291, 301 (1980). Contrast, United States v. Taylor, 985 F.2d 3, 7-8 (1st Cir. 1993) (defendant's statements held not to be product of custodial interrogation where she spontaneously initiated conversation with police officer).
The test for determining whether interrogation has taken place focuses on the defendant's perceptions. Commonwealth v. Rubio, 27 Mass. App. Ct. 506, 512, rev. denied, 405 Mass. 1205 (1989), quoting Innis, 446 U.S. at 301. While this necessarily comprehends some subjectivity, the test is essentially whether an ordinary person in the defendant's position would "infer that the [officer's speech or conduct was] designed to elicit an incriminating response." Rubio, 27 Mass. App. Ct. at 512 (citations omitted).
If there has been no interrogation or if the defendant is not in custody, no Miranda warnings are required. In the present case, Gonzalez made statements both before and after he was advised of his Miranda rights. Our inquiry becomes whether any or all of his statements were obtained in violation of his Miranda rights, and, if so, whether any violations taint subsequent statements made after intervening, otherwise valid, Miranda warnings.
Once Stevens found what he believed to be cocaine in the back of the van and placed Gonzalez under arrest, Gonzalez was, indisputably, in "custody" for Miranda purposes. Furthermore, Stevens' questioning of the defendant regarding the reason he consented to a search of his van was, equally indisputably, "interrogation" within Miranda. Miranda warnings were, therefore, required prior to Stevens' interrogation immediately following the search of Gonzalez's van. As no Miranda warnings were given prior to that interrogation, the defendant's response with respect to the reasons he consented to the van search was obtained in violation of his federal and state constitutional rights and must, accordingly, be suppressed.
Thereafter, Gonzalez was placed in the back of the police cruiser and was advised of his Miranda rights. The defendant indicated that he understood his rights and that he was willing to talk to the police. After the defendant gave his address in response to Stevens' inquiry as to whether he lived in Dudley, Gonzalez was again advised of his Miranda rights. Subsequent interrogation by the police resulted in Gonzalez's consent to the search of his apartment, his denial that any controlled substances would be found there and, after the apartment search, his admission that he had forgotten about certain substances in the apartment.
In order for any post-Miranda statements to be admissible, the court must find that the defendant waived his rights voluntarily, knowingly, and intelligently, and that the defendant made the statements as a result of a voluntary decision and not as the product of coercion. Commonwealth v. Mahnke, 368 Mass. 662, 680 (1975), cert. denied 425 U.S. 959 (1976). There is no bright line test for voluntariness. Commonwealth v. Fernette, 398 Mass. 658, 662 (1986). The court must consider the totality of the circumstances to determine voluntariness. Commonwealth v. Berg, 37 Mass. App. Ct. 200, 203-204 (1994); Tavares, 385 Mass. at 146.
The contention that defendant's post-Miranda statements were involuntary by reason of a "cat-out-of-the-bag" theory, see Commonwealth v. Mahnke, 368 Mass. 662, 686, cert. denied, 425 U.S. 959 (1975), is, in the circumstances at bar, without merit. The "cat" rule requires exclusion of a post-Miranda statement if the defendant, in making that statement, was "motivated by the belief that, after a prior coerced statement, his effort to withhold further information would be futile and he had nothing to lose by repetition or amplification of the earlier statements." Mahnke, 368 Mass. at 686. See also Commonwealth v. Smith, 412 Mass. 823 (1992). No such belief by defendant can be discerned in the evidence adduced at the hearing of the instant motion.
Although a defendant's illegally obtained pre-Miranda statement is presumed to have tainted any later obtained post-Miranda statements, Smith, 412 Mass. at 836, the presumption can be overcome if the Commonwealth shows that, in addition to subsequent administration of Miranda rights, other circumstances exist that tend to dissipate the tainting effect of the earlier statement. Id. In the case at bar, the Commonwealth has shown that Gonzalez was advised of his Miranda rights twice before any further questioning by the police or statements by him. Additionally, the Commonwealth has demonstrated that defendant acknowledged his understanding of those warnings.
For example, the presumption may be overcome by showing either (1) a break in the chain of events between the pre- and post-Miranda statements sufficiently protected the latter from the taint of the former, or (2) the illegally obtained statement, the pre-Miranda statement, "did not incriminate the defendant, or, as it is more colloquially put, the cat was not out of the bag." Commonwealth v. Osachuk, 418 Mass. 229, 235 (1994).
Gonzalez's response immediately following the administration of his Miranda warnings was not incriminating. Telling the officers his address cannot, in logic, be said to have been motivated in any way by a belief that, because of his earlier statement, "his effort to withhold further information would be futile and [that] he had nothing to lose by . . . amplification of the earlier statements." Mahnke, 368 Mass. at 686. In fact, his contemporaneous statement denying that there was any contraband in his apartment rebuts the contention, essential to the "cat" theory, that he felt he had nothing to hide after his pre-Miranda statement was made to the police.
I find that, under the totality of the circumstances, the Commonwealth has met its burden of proving beyond reasonable doubt defendant's knowing, voluntary, and intelligent waiver of Miranda and of demonstrating, again beyond reasonable doubt, that the defendant made his post-Miranda statements voluntarily. Gonzalez had the benefit of his Miranda warnings not just once, but twice. On each occasion, he indicated, either expressly or by implication, that he understood those rights and agreed to speak to the police. His post-Miranda statements are not, under the circumstances, subject to suppression by reason of the "cat-out-of-the-bag" doctrine. Therefore, I find that any statements made by the defendant after he was first advised of his Miranda rights are admissible.
VI. WARRANTLESS SEARCH OF 11 WYSOCKI DRIVE, APARTMENT 35
The analytical process for testing the voluntariness of the defendant's consent to search his apartment at 11 Wysocki Drive is identical to that employed to gauge the voluntariness of his consent to search his van. See part III, supra.
Gonzalez was advised of his Miranda rights twice before he gave consent to search his apartment. Stevens asked only whether the defendant would allow them to search the apartment. The question was in no measure coercive and nothing indicates that Gonzalez, in consenting, was merely acquiescing to legal authority. Furthermore, defendant's attempt at exculpation evidences his awareness that his statement of consent to the police might have adverse consequences. See Commonwealth v. Vazquez, 387 Mass. 96, 100 (1982). His ready appreciation of the potentially prejudicial product of his consent is very suggestive that his resolve to give that consent was attended by the voluntariness required by the law.
As noted supra, there is no merit, given defendant's facility with the English language, to defendant's claim that he did not comprehend the officer's request to search his apartment.
Having found that the defendant understood his Miranda rights and, further, understood that he had the right to refuse to consent to either the search of his van or his apartment or both, I find that the defendant's consent to search his apartment at 11 Wysocki Drive was voluntarily and freely given and was not the product of coercion or of acquiescence to authority. Therefore, any evidence seized as a result of that search is admissible.
ORDER
For the foregoing reasons, it is ORDERED that the defendant's motion to suppress evidence seized from his van be DENIED, that his motion to suppress his statements be ALLOWED in part and DENIED in part consistent with this opinion, and that his motion to suppress evidence seized from his apartment be DENIED.
_____________________________ Daniel F. Toomey Justice of the Superior Court
DATED: February, 1997.