An evidentiary hearing is necessary only when the defendant has alleged facts that, if true, would establish (1) that evidence was obtained through a search or seizure for which the Commonwealth must prove probable cause, reasonable suspicion, or consent to search; and (2) that the defendant has standing to challenge the constitutionality of the search or seizure. Cf. Commonwealth v. Costa, 65 Mass. App. Ct. 227, 228 n.l (2005). Second, the affidavit required under rule 13 (a) (2) must be sufficiently detailed to give fair notice to the prosecution of the particular search or seizure that the defendant is challenging, so that the prosecution may determine which witnesses it should call and what evidence it should offer to meet its burden of proving probable cause, reasonable suspicion, or consent.
2. Discussion. "[W]e accept the judge's subsidiary findings of fact absent clear error 'but conduct an independent review of [her] ultimate findings and conclusions of law.'"Commonwealth v. Costa, 65 Mass. App. Ct. 227, 229-230 (2005), quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004). "[0]ur duty is to make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found."
See 4 LaFave, Search and Seizure § 8.2(j), at 116-117 (4th ed. 2004)." Commonwealth v. Costa, 65 Mass. App. Ct. 227, 233 n. 8 (2005) After an interval of about ten minutes, during which there was no conversation between the defendant and York or Hall, York informed the defendant that his vehicle was at the police station and asked the defendant if he would consent to a search of his vehicle.
Commonwealth v. Pina, 406 Mass. 540, 542, 549 N.E.2d 106, cert. denied, 498 U.S. 832, 111 S.Ct. 96, 112 L.Ed.2d 67 (1990). As the motion judge noted, quoting Commonwealth v. Costa, 65 Mass. App. Ct. 227, 231-232, 838 N.E.2d 592 (2005), "[a] Miranda-like warning is not a necessary prerequisite to a valid consent [to search] under the Fourth Amendment [to the United States Constitution] or under art. 14 [of the Massachusetts Declaration of Rights]." Even if the question of voluntariness were to be considered, there was no error.
Commonwealth v. Bennett, 424 Mass. 64, 69–70, 674 N.E.2d 237 (1997), citing Commonwealth v. Crocker, 384 Mass. 353, 358 n. 6, 424 N.E.2d 524 (1981). See Commonwealth v. Johnson, supra at 54, 958 N.E.2d 25;Commonwealth v. Hoilett, 430 Mass. 369, 376, 719 N.E.2d 488 (1999), quoting Commonwealth v. Mello, 420 Mass. 375, 398, 649 N.E.2d 1106 (1995); Commonwealth v. Costa, 65 Mass.App.Ct. 227, 235, 838 N.E.2d 592 (2005), quoting Commonwealth v. Valliere, 437 Mass. 366, 371–372, 772 N.E.2d 27 (2002). In such cases, where an appellate court has vacated the lesser included offense (and its lesser punishment) without remand, the decision has had little effect on the sentencing scheme devised by the trial judge.
The defendant concedes that Miranda warnings are not required in these specific circumstances. See Commonwealth v. Costa, 65 Mass.App.Ct. 227, 231–232, 838 N.E.2d 592 (2005). Nonetheless, he argues that without Miranda warnings he was not aware that he could withhold his consent.
'No reasonable view of the evidence would permit the jury to find' that the defendant engaged in sexual intercourse with the victim without her consent, but not by force. Commonwealth v. Costa, 65 Mass. App. Ct. 227, 235 (2005). On assault with intent to rape, the judge sufficiently conveyed the element of specific intent.
Contrast G.L. c. 269, § 10 ( a ) and ( n ) (conviction of unlawful possession of loaded firearm shall be further punished by sentence that shall begin from and after expiration of sentence for possession of firearm without license to carry); Commonwealth v. Alvarez, 413 Mass. 224, 231–232, 596 N.E.2d 325 (1992) (Legislature specifically authorized imposition of two consecutive sentences for violation of “school zone” statute and lesser included offense of possession of cocaine with intent to distribute). See Commonwealth v. Valliere, supra at 371–372, 772 N.E.2d 27; Commonwealth v. Costa, 65 Mass.App.Ct. 227, 235, 838 N.E.2d 592 (2005). Because the defendant's sentence for unlawful possession of ammunition under G.L. c. 269, § 10 ( h ), did not increase the amount of time that he would spend incarcerated, see note 9, supra, we need not remand this matter for resentencing.
See Commonwealth v. Rosario, 422 Mass. 48, 56 (1996). As the Commonwealth further observes, a request for consent to search does not constitute 'interrogation,' and a suspect's grant of consent does not constitute a 'statement,' within the meaning of the Fifth Amendment to the United States Constitution. See, e.g., Commonwealth v. Costa, 65 Mass. App. Ct. 227, 233 & n.8 (2005). At oral argument counsel for the defendant acknowledged that the defendant's argument would require extending the Rosario rule to a setting in which it has not previously been applied; we decline the invitation.
Conviction for unlawful possession of a firearm under G. L. c. 269, § 10(a), constitutes a lesser included offense of a conviction under G. L. c. 269, § 10(m), for unlawful possession of a large capacity weapon. Commonwealth v. Costa, 65 Mass. App. Ct. 227, 235 (2005) ('The only difference between the two violations is the 'capacity' of the firearm'). The case is remanded to the trial judge to choose which count of the indictment to dismiss.