Opinion
No. WOCR2006-02470.
October 29, 2007. Marissa A. Furnari, Administrative Judicial Secretary, Lawrence Superior Court, Essex County.
FINDINGS OF FACT, RULINGS OF LAW AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE AND STATEMENTS
The defendant stands indicted for Armed Assault With Intent to Murder, Victim Over Sixty; Assault and Battery With a Dangerous Weapon, Victim Over Sixty; two counts of Armed Robbery; and Assault and Battery, relating to two separate robbery incidents that occurred in Worcester in July, 2006. He has moved to suppress physical evidence seized from his person without a warrant and incriminating statements he made to Worcester police officers, asserting that the warrantless search was unlawful and that the statements were the fruit of illegal police activity. Because I find that the police had probable cause to arrest the defendant when he was initially stopped and searched, and that the defendant's statements to the police were voluntary and not the result of any illegal police conduct, as more fully discussed below, the defendant's motion to suppress is DENIED.
Findings of Fact
I make the following findings of fact based on the credible evidence adduced at the hearing and the reasonable inferences I draw therefrom.
1. On July 3, 2006, an armed robbery and stabbing occurred on Millbury Street near a Honey Farms convenience store in Worcester. On July 12, 2006, a second armed robbery occurred at the same Honey Farms. In the first incident, one Anthony Ruchala reported that he was accosted and stabbed by two individuals — a tall black male and a short black male — just outside the door of Honey Farms. He was robbed in the parking lot of a bank located next door. He then returned to Honey Farms to call the police. In the second incident, a black male brandishing a knife took money and cigarettes from the Honey Farms clerk.
2. Police obtained a digital surveillance video of the second incident from Honey Farms. Two still photographs were generated from images on the video. The Worcester Police Department Detective Bureau issued a one-page flier (Exhibit 1) displaying photocopies of these images. The flier says: "Need ID. Subject is wanted in connection to two stabbings and robberies in the Millbury St area. Any info contact Detectives Sullivan, Tanona, or Heffernan . . . Not For Release Outside of Law Enforcement."
3. The images displayed on the flier show (1) a profile view of the head, shoulders and chest of a black male wearing a dark shirt and dark ball cap; and (2) a slightly angled, frontal view of the face and neck of a black male wearing a dark ball cap. The image quality is poor. Worcester detectives passed the flier around in an attempt to secure an identification of a suspect.
4. Lieutenant Michael McKiernan (Lt. McKiernan or McKiernan), a 13-year veteran of the Worcester Police Department, watched a disk containing the Honey Farms digital surveillance video on the Worcester Police Department's enhanced, color video system. He observed an above-average quality image of the suspect's face. The suspect was a black male of average height. The quality of the images on the video is superior to the quality of the images depicted on the flier.
5. On the evening of July 18 into the early morning of July 19, within five days after he had watched the surveillance video, Lt. McKiernan encountered an informant whom he knew. This informant had provided information to McKiernan a few weeks earlier which proved to be accurate regarding the whereabouts of an individual for whom McKiernan had a warrant; McKiernan had been able to locate the wanted individual. The informant reported that he had seen the photo the detectives were passing around in connection with the robbery. He said that the person in the photograph was named Marcel, and could be found at the Three G's Pub on Millbury and Seaver Streets, wearing a white tank top and carrying a black T-shirt.
6. Five minutes later, McKiernan and Officer Kellen Smith went to the pub. It is located in a high crime area. The bartender told them that that Marcel had left the pub five minute earlier. The officers went outside the pub and saw the defendant across the street. He was wearing a black T-shirt. McKiernan had never seen the defendant before that night.
7. The area was very well lit, and McKiernan could see clearly. He had the police flier with him, and he recognized the defendant as the person pictured in the flier.
8. The officers got into their cruisers and stopped the defendant about 20 yards away and asked if they could talk with him. McKiernan felt that the defendant's appearance closely matched the photographic images from the Honey Farms disk.
9. The defendant was very nervous, but cooperative. He identified himself as "Tyrone Davis." He said that he had no identification on him. This made McKiernan suspicious. A check was run on that name and came back with no record.
10. McKiernan saw what he believed was a wallet in the defendants pants pocket. Suspecting that it might contain identification, he pulled it out. It was a wallet, and it contained a non-photo, health identification card for Marcel Oliver.
11. McKiernan then patted the defendant down for more information and for weapons, and found a Massachusetts Driver's License for Anthony Ruchala. That name meant nothing to McKiernan at that time. The defendant stated that he had picked the wallet up a few minutes earlier.
12. McKiernan then called the station to check on the name Anthony Ruchala. He learned that Ruchala was the individual who had been robbed and stabbed outside the Honey Farms store on July 3.
13. McKiernan believed that the defendant was a good suspect in the Honey Farms robberies, but did not feel he had a reason to arrest him at that time.
14. McKiernan asked Officer Smith to read Miranda warnings to the defendant. Smith advised the defendant of his Miranda rights by reading to him from a card. He informed the defendant that he must understand his rights; that he had the right to remain silent; that anything he said could be used against him; that he had the right to counsel; that counsel would be appointed for him if he could not afford to retain counsel; and that if he chose to speak to police he could stop at any time. The defendant responded that he understood. He denied involvement in the robbery of Ruchala and stated that he had nothing to hide.
15. No testimony was elicited at the hearing regarding any questioning of the defendant or any statements made to him upon the discovery of the wallet. I find, however, that police must have apprised the defendant of the nature of their investigation in order to provide some context for his denial of involvement in the robbery.
16. McKiernan then contacted Detective Daniel Sullivan (Det. Sullivan or Sullivan), who was investigating the Honey Farms robberies. The defendant was asked if he would go to the station to be interviewed, and he agreed. He was handcuffed pursuant to departmental policy and brought to the station.
17. At the station, the defendant was taken up to the detective's area where his cuffs were removed and he was given water. He told Smith: "I'm not going to lie, I'll tell you the truth, I did it." He also stated that he had been using [narcotics] a lot, and that he did the robbery because he needed money. He stated that he wanted help. The defendant volunteered these statements; they were not made in response to any questions.
18. McKiernan heard the defendant tell Officer Smith that he had robbed the Honey Farms store. McKiernan was with the defendant for less than a half hour. He did not place the defendant formally under arrest.
19. Det. Sullivan had been assigned to investigate the Honey Farms robberies. On July 19th, he was off duty, but was called into the station by McKiernan. Sullivan obtained permission from his supervisor, Sergeant Mark Richardson, and then he and Detective Lee Boynton (Det. Boynton or Boynton) interviewed the defendant. The interview was videotaped (Exhibit 3).
20. Prior to conducting the interview, Sullivan advised the defendant of his Miranda rights and had the defendant signed a Miranda form (Exhibit 2). The defendant acknowledged that he understood each individual right. He stated that he was under the care of a doctor for mental health issues and that he had taken Prozac earlier in the day, and that he had smoked crack cocaine about an hour before the police stopped him and had also consumed 2 beers that day. Detective Sullivan asked the defendant if he was alright, and the defendant said that he was just upset with himself. He was cooperative and responsive through the interview. Sullivan discussed both Honey Farms robbery incidents with the defendant, who admitted to his involvement in both, but denied stabbing Ruchala.
Rulings of Law
I. Suppression of Wallet and License A. Probable Cause to Arrest
Probable cause to arrest exists where the facts and circumstances known to police at the time of the arrest would warrant a person of reasonable caution in believing that the suspect committed or was committing a crime. Commonwealth v. VaMeng Joe, 425 Mass. 99, 102 (1997);Commonwealth v. Storey, 378 Mass. 312, 321 (1979). The probable cause standard is considerably less exacting than a requirement of sufficient evidence to warrant a finding of guilty. Commonwealth v. O'Dell, 392 Mass. 445, 451 (1984). In determining whether police have probable cause to arrest, the court must evaluate the information known to the police as a whole, and may draw permissible inferences from that information.Commonwealth v. Grammo, 8 Mass. App. Ct. 447, 450 (1979). The Supreme Judicial Court has held that probable cause to arrest exists where a police officer recognizes a person from a surveillance camera photograph that recorded that person engaging in criminal activity. Commonwealth v.Boswell, 374 Mass. 263, 267 (1978). The facts of Boswell are virtually indistinguishable from those here. In Boswell, three women robbed a store, and the store's surveillance camera captured photographs of the robbers. The photographs were shown to the store's saleswoman who stated that they were good representations of the robbers. Approximately one week later, an unidentified informant called the police and provided the names and addresses of the three purported robbers. Several officers then went to one of the addresses and knocked on the door. When the occupant answered, an investigating officer recognized her as one of the robbers from the surveillance photographs and arrested her. The court held that once the officer identified the suspect based on his review of the surveillance photographs, the police had probable cause to arrest her.Id. at 267.
Similarly, here, Lt. McKiernan watched the surveillance video of the Honey Farms robberies; determined that it was "above average quality;" was directed to the area of the Three G's Pub by a known informant; saw the defendant outside the Three G's Pub; recognized him from the photograph obtained from the surveillance video; and believed that the defendant's appearance closely matched the photographic images from the video. Missing here is any evidence that the surveillance video was shown to either of the robbery victims. However, where the video recorded the actual incident, the court can reasonably infer that McKiernan essentially stood in the shoes of an eyewitness to the crime. As such, he was in a position to make the identification. Furthermore, Lt. McKiernan's identification confirmed the circumstantial information obtained from the informant, the officers' conversation with the Three G's Pub bartender, and the officers' observation of the defendant on the street outside the pub, wearing clothing similar to that described by the informant. Accordingly, I find that Lt. McKiernan had probable cause to arrest the defendant when he stopped him outside the pub.
The information provided by the informant satisfies the reliability prong of the Aguillar-Spinelli test based on the past history of this known informant. While there is no evidence regarding the informant's basis of knowledge, this deficiency is not fatal, since the informant's information was corroborated by McKiernan's independent identification, providing probable cause for the arrest.
B. Search Incident to Lawful Arrest
Because, as discussed above, Lt. McKeirnan had probable cause to arrest the defendant when he recognized him from the photograph obtained from the surveillance video, he could properly search the defendant incident to arrest for the fruits, instrumentalities, and other evidence of the crime for which the arrest was made, as well as for weapons which could be used to resist arrest. Commonwealth v. Prophete, 443 Mass. 548, 552 (2005); § 1.G.L. c.276, § 1. Lt. McKeirnan specifically pulled what he believed was a wallet out of the defendant's pants to search for identification. Given the informant's statement that "Marcel" committed the Honey Farms robberies, such identification could have, and indeed did, provide further corroborative evidence of the defendant's involvement in the crime. McKiernan conducted the subsequent search, which led to the discovery of Anthony Ruchala's driver's license, for the explicit purpose of uncovering more information, and removing any weapons. The search is not invalidated because it preceded a formal arrest. See Commonwealth v. Johnson, 413 Mass. 598, 602 (1992) (search incident to lawful arrest can precede a formal arrest, provided that probable cause to arrest exists at the time the search is made). Because the officer's conduct satisfies the requirements of a search incident to a lawful arrest, the defendant's motion to suppress the wallet and the license must fail.
Additionally, I find that the defendant was placed in custody at the scene immediately following the search when he agreed to go to the police station to be interviewed, notwithstanding the absence of formal words of arrest, and notwithstanding McKiernan's description of this interchange as a request for the defendant's cooperation. The defendant was advised of his Miranda rights, and then handcuffed. A reasonable person in the defendant's position would not have felt free to leave at that point.Commonwealth v. Sneed, 440 Mass. 216, 220 (2003). Nor would it be reasonable that the police would have allowed the defendant to leave once they had discovered the additional evidence on his person linking him to the robbery of Ruchala. See Commonwealth v. Morse, 427 Mass. 117, 123-128 (1998) (defendant in custody where investigation is focused on the defendant, and the police made their suspicions of the defendant known to the point where a reasonable person in the defendant's shoes would not feel free to leave the place of questioning).
II. Suppression of the Defendant's Statements
In his motion and supporting memorandum, the defendant contends that his statements should be suppressed because they are the fruits of an unlawful search. In light of the court's findings of probable cause to arrest, discussed above, that argument is unavailing. However, the defendant testified at the motion hearing and raised the issue of the validity of his Miranda waiver and the voluntariness of his statements. He asserted that he was high and drunk when he was initially stopped, and that the effects of these substances were "kicking in" while he was at the station. The defendant also described his use of alcohol and narcotics during the recorded interview.
The validity of a Miranda waiver and the voluntariness of statements are distinct, though often related, issues. Commonwealth v. Garcia, 379 Mass. 422, 428 (1980). When properly raised, the government bears the burden of proving each beyond a reasonable doubt. Commonwealth v.Williams, 388 Mass. 846, 851 n. 2(1983). A Miranda waiver is valid where it is made voluntarily, knowingly, and intelligently. Commonwealth v.Hooks, 375 Mass. 284, 288 (1978); see also Commonwealth v. Hilton, 443 Mass. 597, 606 (2005) (waiver of rights is made knowingly and intelligently when defendant is fully aware of the nature of the right being abandoned, and the consequences of the decision to abandon it, at the time of the interrogation). Several other factors, including but not limited to the suspect's mental illness, emotional state, and intoxication from alcohol and/or drugs, should also be considered when determining whether a suspect's waiver was knowing and intelligent.Commonwealth v. Zagrodny, 443 Mass. 93, 99 (2004) (mental illness);Commonwealth v. Magee, 423 Mass. 381, 387 (1996) (emotional state); Commonwealth v. Day, 387 Mass. 915, 918; 920 (drugs and alcohol). Statements are voluntary when they "were made freely and voluntarily when considering the `totality of the circumstances.'"Garcia, 379 Mass. At 428.
A. Admissions Made to Officer Smith
As discussed above, I find that the defendant was in custody when he was taken to the police station. However, the defendant does not allege that his initial admissions to Smith at the station were the product of interrogation, and no evidence was adduced at the hearing to suggest that the statements were elicited by questioning or its functional equivalent. Because these admissions were not the product of interrogation, Miranda warnings were not required. See Commonwealth v.Brum, 438 Mass. 103, 115 (2002). Nevertheless, the defendant had recently been fully and properly advised of Miranda warnings at the scene. Nothing about the defendant's volunteered statements suggests that they were anything other than freely and voluntarily given under the circumstances presented here. Furthermore, as discussed in detail below, the defendant's demeanor, as shown in the formal interview that took place shortly after, confirms the voluntariness of his earlier admissions.
B. Admissions Made During Formal Interview
Det. Sullivan apprised the defendant of each Miranda warning individually, and the defendant stated that he understood each individual right and signed a Miranda form. Further, the defendant was cooperative and responsive throughout the interview. In light of the defendant's affirmative acknowledgment of his rights, and his willing responses to the detectives' questions, it is plain that he understood his rights, and fair to infer that the waiver was valid. SeeCommonwealth v. Ortiz, 435 Mass. 569, 576-577 (2002) (voluntariness of a waiver can be inferred from the actions and words of the suspect indicating an understanding of his rights and a willingness to give a statement); Commonwealth v. Roy, 2 Mass. App. Ct. 14, 19-21 (1974) (when suspect affirmatively acknowledges that he understands his rights and proceeds to answer questions, a valid waiver may be inferred).
Further, the defendant's mental health, emotional state, and use of drugs and alcohol did not impair his ability to effectuate a valid waiver or to give a voluntary statement. Although the defendant reported that he was under the care of a doctor for mental health problems, he was cooperative and responsive, and nothing about his demeanor, as shown on the recorded interview, indicates that his mental processes were impaired either by mental illness or by his earlier use of drugs and alcohol. Day, 387 Mass. at 918 and n. 6; 920 (defendant's use of drugs and alcohol did not invalidate his waiver where he was calm, coherent, and appeared to be sober). Further, he had taken his prescribed medication earlier in the day. See Zagarondy, 443 Mass. at 99-102 (mental impairment did not impede defendant's waiver of Miranda rights because he was calm and alert at the time he made the statements, his confessions were coherent, and he had taken medication for his bi-polar disorder); Commonwealth v. Cifizzari, 19 Mass. App. Ct. 981, 983 (1985) (defendant's mental illness did not negate his ability to waive his Miranda rights). Moreover, Det. Sullivan specifically asked the defendant if he was alright, and the defendant responded that he was just upset with himself.
In summary, Det. Sullivan fully apprised the defendant of his Miranda rights before questioning began. The defendant's conduct indicates that he understood his rights and the consequences of his statements, and that his waiver and all of his admissions were voluntary beyond a reasonable doubt. Accordingly, the defendant's statements will not be suppressed.
ORDER
For the foregoing reasons, it is hereby ORDERED that defendant's Motion to Suppress Evidence and Statements is DENIED.