Opinion
No. PLCR2007-00138.
August 25, 2009.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTIONS TO SUPPRESS
INTRODUCTION
The defendant, Robert Silva ("Silva"), is charged with murder in the first degree in violation of G.L. c. 265, § 1 and armed robbery in violation of G.L. c. 265, § 17. He has filed five motions to suppress evidence as follows:
First Motion to Suppress Evidence: Warrantless Search on June 9, 2004;
Second Motion to Suppress Evidence: Warrant Search of Plymouth County Correctional Institution ("PCCI"), Long Pond Road, Plymouth, Massachusetts on June 11, 2004;
Third Motion to Suppress Evidence: Warrant Search of the Wareham District Court, 2200 Cranberry Highway, Wareham, Massachusetts on June 11, 2004;
Fourth Motion to Suppress: The Defendant's Statements from September 29, 2006; and
Fifth Motion to Suppress: The Franks Motion.
Silva argues that the evidence at issue in each of these motions should be suppressed based upon his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article 12 of the Massachusetts Declaration of Rights, G.L. c. 276, §§ 1-3D, the Common Law of Massachusetts, andMiranda v. Arizona, 284 U.S. 436 (1966).
An evidentiary hearing on these motions was held before the court on May 29, 2009, June 3, 2009, and June 4, 2009. At the hearing, the following witnesses testified: Officers Paul Somers, James White, Jr., Brian Whalen, John Girard, and Chief Thomas Joyce of the Wareham Police Department, Trooper Robert W. Dateo and Captain Scott Berna of the Massachusetts State Police, PCCI Correction Officers Sampson and Corbin, Captain Scott Peterson of the Plymouth County Sheriff's Department, and Dr. James C. Beck, M.A., Ph.D.
For the reasons discussed below, the defendant's First Motion to Suppress Evidence is ALLOWED as to the inventory search at the Wareham Police Department, but DENIED as to the results of Chief Joyce's initial search per G.L. c. 111B, § 8; the Second Motion to Suppress Evidence is DENIED; the Third Motion to Suppress Evidence is DENIED; the Fourth Motion to Suppress Evidence is ALLOWED; and the Fifth Motion to Suppress Evidence is DENIED.
FINDINGS OF FACT
The court makes the following findings of fact based upon the testimony of the witnesses and exhibits introduced at the hearing on the five Motions to Suppress and the reasonable inferences drawn from that evidence.
I. The Defendant's Arrest on June 9, 2004
On June 9, 2004, at about 6:30 p.m., off-duty Police Chief Thomas A. Joyce ("Chief Joyce") of the Wareham Police Department was driving his truck on Riverside Drive in Onset when he saw a black man walking up a trail and onto the side of the road. He watched the man, later identified as the defendant, unsuccessfully try to enter a pick-up truck. Chief Joyce knew that the owner of the pick-up truck was another resident of Onset and not this man. Chief Joyce drove within three feet of the defendant and saw that he was wearing a dark colored tee shirt and was carrying a backpack. He did not notice any blood or injuries or torn clothing on the defendant at this time. Chief Joyce drove about ten feet beyond the defendant, stopped in the roadway and watched the defendant. Silva unsuccessfully attempted to enter two more cars along the side of the road. Chief Joyce also knew the owners of these cars and therefore knew that the defendant did not own them. At this time, Chief Joyce called the Wareham Police Station and asked for a cruiser to come to his location.
Around the same time, Chief Joyce saw the defendant walk up the stairs to a house owned by Mr. DeCosta, an Onset resident. Chief Joyce watched as the defendant spoke to Mr. DeCosta in his raised yard, which is about twenty feet above the street. He heard Mr. DeCosta say, "No, I can't give you a ride." The defendant then walked away from Mr. DeCosta and, attempting to exit the raised yard, fell over a wall and onto the ground. The defendant stood up and started walking toward Chief Joyce. He now had blood on his face. He was obviously drunk. The defendant approached Chief Joyce's truck and asked him for a ride to the 7-Eleven store. The defendant's speech was so slurred that Chief Joyce could hardly understand him. The defendant stated that his girlfriend had kicked him out of the house. He was aggressive and his fists were clenched. Chief Joyce exited his truck and placed the defendant on the side of the truck. He put the defendant's backpack on the roof of his truck.
Around that time, Officer John Girard ("Officer Girard"), who knew the defendant because of previous encounters he had with the police, arrived in a marked cruiser. Officer Girard and Chief Joyce decided to place the defendant into protective custody because he was a danger to himself. When they tried to cuff the defendant he resisted. They put him in the rear seat of Officer Girard's cruiser. At this point, Chief Joyce opened the defendant's backpack to search for weapons. The outside of the backpack was soft but Chief Joyce could not ascertain the contents by feeling it. Inside of the backpack he saw a second backpack. He searched the zippered pockets inside of the fist backpack and found a license and cigarette lighter, but no cash. Although he examined the items inside, Chief Joyce did not consider this an official inventory of the backpack because he did not have a form on which to record the contents. Officer Girard then placed the defendant's backpack in the front seat of the cruiser. The defendant did not cause any problems in the cruiser. During the trip to the police station, Officer Girard learned that there were warrants for Silva's arrest outstanding.
When they arrived at the police station, Officer Girard had trouble understanding the defendant because he was so intoxicated. The defendant was given a Breathalyzer test, which registered .24. At the station, the defendant's backpack was inventoried in the defendant's presence by Wareham Police Officer Charles Pillsbury ("Officer Pillsbury"), per the Wareham Police Department's inventory policy. The defendant's backpack was camouflage in color. Inside was the second backpack, as well as a black Red Sox hat and miscellaneous items, including lower legs from zip-off jeans, an insulated beverage holder, a Massachusetts ID photo ID, and a black cigarette lighter. The defendant's backpack and its contents were placed into a holding bin. Chief Joyce subsequently went back to the station to prepare a report that day, although he was still off-duty. When he arrived at the police station, the defendant was already in his cell.
The maximum period that the police are allowed to hold someone in protective custody is twelve hours. However, the police had learned that there were outstanding warrants for the defendant. Rather than being released he was, therefore, taken to the Wareham District Court. The police followed the standard procedure of sending a defendant's belongings to court with him and turning them over to a court officer. The defendant was held by a judge on a warrant and transported to PCCI. The defendant's backpack, however, remained in a storage facility at Wareham District Court and was not sent with him to PCCI.
II. The Homicide of Thomas Loftus and the Confession of Eric Pimental
The body of Thomas Loftus ("Loftus") was found on June 10, 2004, at about 11:45 a.m. in Onset, near where Chief Joyce had encountered the defendant the previous day. The medical examiner viewed the body and determined that the cause of death was blunt chest trauma and that the manner of death was homicide. He also determined that the death had occurred about twenty-four hours earlier, around 3:15 p.m. on June 9, 2004.
The investigation of this homicide led police to believe that Eric Pimental ("Pimental") and Silva were involved in the crime. Pimental was interviewed by the police on June 11, 2004 and, after waiving his Miranda rights, made incriminating statements. Pimental said the time of death was June 9, 2004, at 2:00 p.m. Pimental first stated that he was with Silva on June 9 when they came across a man, Loftus, who was "mumbling, ranting and raving." When Pimental approached him, Loftus allegedly tried to punch Pimental. Pimental claims that he then blacked out and therefore could not remember what happened after this point.
When Trooper Robert Dateo ("Trooper Dateo") asked Pimental to relate the story again he gave a slightly different version of events. Pimental first related his activities earlier in the day on June 9. Then, Pimental claimed that when he approached Loftus he did not try to punch him but did tell Pimental not to talk to him. Pimental said that he immediately tried to walk away in case he blacked out because when he blacks out he was capable of hurting someone. He then stated that he did indeed black out at that point.
When asked for his version of events a third time, Pimental again stated that Loftus told him not to talk to him and that he kept walking. He stated that the man then tried to punch him and at this point he blacked out.
Finally, when asked a forth time, Pimental told Trooper Dateo that Silva approached Loftus and tried to talk to him and that the unknown man attacked both he and Silva. Pimental stated that he and Silva then both fought with him. After the fight was over Silva allegedly went back to apologize to Loftus. Detective Wayne Sylvester ("Detective Sylvester"), who was also present for the interrogation, told Pimental that he knew Silva and therefore doubted that Silva went to apologize. Pimental then stated that indeed Silva did not apologize, but went back and hit and kicked Loftus again. He further stated that Silva then picked up Loftus' wallet, took money from it and threw it into the woods.
Pimental also described what Silva was wearing on June 9 as a green "Vokal" shirt, black shorts and sneakers. Trooper Dateo believed that defendant still had these clothes on when he was taken to PCCI and applied for a warrant to obtain them. The warrant was issued on June 11, 2004, at 6:15 a.m. by an Assistant Clerk at the Wareham Police Station. State Police Detective Captain Scott Berna ("Captain Berna") and Detective Sylvester of the Wareham Police Department were also present when the warrant was issued. On June 11, 2004 Captain Berna called Captain Scott Peterson ("Captain Peterson") of the Sheriff Department's Office of Criminal Investigation to notify PCCI that a search warrant had been secured and police were coming to PCCI to execute it. Captain Berna then traveled to PCCI to execute the warrant. In the meantime, Captain Peterson notified the property department to get the defendant's property together. Correction Officer Sampson was directed to go to the defendant's unit and get his sneakers.
The District Attorney argued that the defendant was limited to the "four corners" of the search warrant. A limited evidentiary hearing was permitted because of the "return of service" issue.
He was then a sergeant.
A detainee's sneakers can be taken from him at any time at the discretion of the PCCI authorities and keeping them is deemed a privilege. However, detainees are ordinarily allowed to keep them because the prison sneakers are not of good quality and probably would not fit as well as the detainee's own sneakers. Once a detainee is allowed to keep his sneakers, they are ordinarily not taken from him unless they contain contraband or they create some other issue. Otherwise, an inmate is issued a prison uniform and all his clothing is put into a property bag with the detainee's name on it. The property bags are stored in a storage area similar to the way clothing is stored at a dry cleaner. The family can either pick up the bag or it can be mailed at the detainee's expense. It must be picked up within thirty days, except for court clothes.
When police take a detainee's property at PCCI pursuant to a search warrant, the detainee is generally not given notice unless the police are seeking a DNA/Buccal swab. In this case, the defendant was not present when his property was turned over to Captain Berna and he was not given a copy of the search warrant. Rather, a PCCI correction officer met Captain Berna in the main entrance lobby and gave him the bag containing the defendant's belongings. Captain Berna gave the correction officer a copy of the search warrant at the same time.
At times, for liability purposes, a copy of the search warrant is put into a detainee's folder. Sometimes, police give the search warrant directly to the legal department and sometimes they give it to the correction officer. In this case, the legal department eventually received a copy of the search warrant.
Although he took possession of the bag containing the defendant's clothing on June 11, 2004, Captain Berna did not open it and did not feel that he was executing the search warrant because he did not open the bag or otherwise examine its contents. He did not feel that it was his responsibility to prepare the inventory report since he did not do an actual search. He simply returned to his office at the Middleborough State Police Barracks ("the Barracks") and locked the bag in his office.
On June 14, 2004, Trooper Dateo opened the bag containing the defendant's clothing at the Barracks. Captain Berna was also present at this time. "The Return of Officer Serving Search Warrant" notes that the bag contained blue jeans, black shorts, blue t-shirt, pair of sneakers and pair of socks (green). The Return states, "I swear that this inventory is a true and detailed account of all the property taken by me on this search warrant." It is signed by Trooper Dateo as the person making the search on June 14, 2004 at 09:00 hours. The Return was sworn to before the court clerk on June 17, 2004. Trooper Dateo believed that he had made the search at the Barracks on June 14, 2004. He felt that this was the date that the search warrant was executed because this is the first time that a law enforcement officer looked into the bag containing the defendant's belongings.
On June 11, 2004, at 9:35 a.m., the same morning he had applied for the PCCI search warrant, Trooper Dateo applied for a second search warrant, with the assistance of Captain Berna. Captain Berna did not review Officer Pillsbury's findings from the inventory search of Silva's backpack prior to applying for the search warrant. Indeed, he cannot recall ever seeing such a document. This second search warrant Silva's backpack and other belongings in the possession of the Chief Court Officer of the Wareham District Court. The search warrant was issued by an Assistant Clerk in the Clerk's Office of the Wareham District Court. Trooper Dateo is unsure whether he executed the search warrant on Friday, June 11, 2004 or Monday, June 14, 2004. His best recollection is that something happened on June 11, 2004, perhaps that the person in charge was not present, that prevented him from serving it that day, so he had to return on June 14, 2004. Trooper Dateo believes that he went downstairs to a secure facility in the court house with Detective Sylvester and either the Chief Court Officer or another court officer brought the backpack to him. He did not give a copy of the search warrant to the defendant, but he did give a copy to the court officer. Trooper Dateo looked briefly inside the backpack at the courthouse and he saw mail. He thinks he then went outside to his cruiser without searching the backpack anymore inside the courthouse. He recalls looking more thoroughly inside the backpack in his cruiser with Detective Sylvester.
The inventory list on the "Return of Officer Serving Search Warrant" includes a black JanSport backpack, a camouflage backpack and other items. It states that the inventory was made in the presence of Detective Sylvester and Trooper Dateo. At the bottom, the Return states, "I swear that this inventory is a true and detailed account of all the property taken by me on this search warrant." The search warrant return states that the search took place on June 14, 2004, at 1500 hours, but Trooper Dateo cannot remember if this was the exact time of the search. He believes the date and time he put on the search warrant return was the time he did the full inventory of the contents on June 14, 2004, at around 3:00 p.m. at the Barracks, and not when he first looked into the backpack in the courthouse or when he looked at it more closely in the cruiser. He does not believe he saw any of the defendant's personal letters in the backpacks. He thinks he saw a mail advertisement with Loftus' name on it. The Return was sworn and subscribed to before the court clerk on June 17, 2004. Trooper Dateo has no independent memory of making the return of service to the clerk and swearing to it.
III. The Defendant's Arrest on September 29, 2006
On September 29, 2006 Wareham Police Officer Paul Somers ("Officer Somers") was working the midnight to 8:00 a.m. shift. He was in a marked police cruiser and in uniform. Sometime around 1:30 a.m. he was dispatched to the Cape Cod Express building after receiving a report that a black man was in the building unlawfully and refused to leave. The Cape Cod Express building is a large warehouse off of an industrial road where trucks load and unload.
Another Wareham Police Officer, Officer James White ("Officer White"), arrived at the building just before Officer Somers. When he arrived, Officer Somers saw the defendant and knew him. He and the defendant have had about ten interactions, some of which Officer Somers describes as very difficult and some of which led to Silva's arrest. On about five occasions, Officer Somers saw Silva on the street and he was intoxicated. The defendant was now intoxicated and smelled of alcohol. He was standing within five to ten feet of Officer White. He was unsteady and had trouble standing on his own. The defendant said to Officer Somers, "lock me up Somers." Officer Somers asked him why he was in the Cape Cod Express building. The defendant responded that he was drunk and that he wanted to go to jail.
Officer Somers decided to place the defendant into protective custody for his own safety. He brought the defendant, in handcuffs, to his cruiser and put him in the rear seat. In the cruiser, the defendant spoke continually, changing subjects from one topic to another. Some of his statements were irrational and erratic. During the ride to the police station he stated to Officer Somers that he should be locked up for life because he was there at Onset, and that he felt guilty because his friend Eric was in jail and he was not. This statement was made spontaneously and not in response to questioning by Officer Somers. The defendant repeated this statement more than once in the cruiser and again at the police station. Although his speech was slurred and was sometimes hard to understand, Officer White understood him. At some point Officer Somers realized that the defendant was talking about a homicide that had occurred sometime earlier in Onset for which the defendant's friend, Pimental, had already been charged. Officer Somers had no direct involvement with the Onset investigation but the defendant's statements were consistent with what he knew of Loftus' death. When he realized what the defendant was talking about, Officer Somers told him that he would have someone talk with him later.
At one point during the ride, when the cruiser turned a corner, the defendant fell over in the back seat because he was so intoxicated. The defendant had to be assisted from the cruiser to the booking area at the Wareham Police Station because he was stumbling. He never got sick or lost control of his bodily functions, but Officer Somers felt he was totally intoxicated.
At the police station, Silva was handcuffed to a pole while Officer White booked him. He was held in protective custody and also charged with Trespassing. In his booking photograph, the defendant is leaning severely to the side instead of being centered as normally occurs.
About a year earlier, Officer Somers helped another officer get the defendant into a cruiser after a foot-chase. Silva was intoxicated at that time. On another occasion, in April 2004, Silva and another man broke into a house. They ran out when the police arrived. The police soon caught Silva and a struggle occurred during which Silva tried to get off Officer Somers' handgun before he was handcuffed. Officer Somers does not know if Silva was intoxicated at that time.
Because of such earlier difficult dealings with the defendant, both Officer Somers and Officer Brian Whalen ("Officer Whalen"), the dispatch officer, came in and out of the booking room in case the defendant caused trouble. At various times when he was out of the room, Officer Somers could hear the defendant speaking angrily to Officer White. Officer White also had about six to ten previous interactions with the defendant. He had arrested Silva in the past for both alcohol intoxication and for criminal matters. On each occasion he was under the influence of alcohol or drugs. On two previous occasions, Officer White had to wrestle with the defendant and he had seen other officers wrestle with him.
During the booking process, which took about ten minutes, the defendant behaved erratically. He rambled on about various things then would stop and say to lock him up and that he was there at Onset over and over. His mood changed rapidly from sad to aggressive and angry and wanting to fight to calm and then to sad again. The police repeatedly told him to sit down, but the defendant kept jumping up and assuming an attack position. At one point he had to be restrained when he tried to get into the dispatch area. As noted above, Officer White had experienced this same belligerent behavior from the defendant in the past and felt he was acting in his usual way. Because the defendant was so intoxicated, he was not advised of his Miranda rights.
During the booking process Silva stated that he wanted to die. Officer White asked him why he was upset. The defendant said that he could not live with the guilt of killing someone anymore. Officer White asked him what he was talking about. The defendant said he was there in Onset and that he should be in jail forever with "his boy." Officer White initially did not know what he was talking about and asked him who "his boy" was. The defendant replied he was talking about Pimental. Although he had not personally been involved in the investigation, Officer White knew that the defendant had been a suspect in the Loftus murder investigation and asked if what he was talking about had anything to do with Loftus. When Officer White understood what the defendant was talking about, he ended the conversation and told him that someone would talk to him in the morning, when he was no longer intoxicated. The defendant then jumped up into a fighting stance and started yelling and screaming. At this point he said, "can't you see I am trying to confess to a murder."
When Officer While was asking the defendant these questions he did not know what defendant would say and did not feel that he was investigating.
When the booking process was completed, the defendant did not willingly enter his jail cell. Three officers had to bring him there because of his erratic behavior. After getting the defendant into a jail cell, Officer White told his Sergeant about the statements that he had made. The Sergeant said he would have someone speak with the defendant in the morning. Officer White had no further contact with the defendant that evening.
The next morning, Officer White heard the dispatcher yelling for help at about 8:30 a.m. because the defendant was hanging by the strings taken from his sweat pants. Silva had not been placed on suicide watch, but there were cameras pointed toward each cell. Officer Dion tried to cut him down and the defendant tried to push him away. The defendant exhibited the same erratic and violent behavior as the previous evening.
None of the police officers involved in the defendant's arrest on September 29 prepared a report that evening which set forth the defendant's statements about what occurred in Onset. They eventually prepared reports over a month later, at the request of Sargent Erkhart and Detective Sylvester. In Officer Whalen's report he stated that during the booking the defendant was highly intoxicated and his mood changed frequently. Officer Whalen observed the defendant speaking irrationally and jumping from one subject to another. For example, he rambled on about not being guilty then quickly changed the subject. Officer Whalen did not hear the defendant say he was guilty and that he needs to be punished because he was walking between two rooms multitasking. This was not his arrest and he, therefore, had no direct interaction with the defendant. He was only present to assist if there was a problem. He did not know about any murder and he was not really interested in what the defendant said. This incident was Officer Whalen's first encounter with the defendant.
Shortly after the events of September 29, Officer Whalen did have another encounter with the defendant. A woman called the police at about 12:15 a.m. to report that she had been assaulted at her residence. When Officer Whalen and Officer Barios arrived at the women's home they found the defendant in the basement, drinking beer. The defendant was being taken to the police department in a cruiser when he said, "I didn't hit her." He smelled of alcohol and Officer Whalen felt he was intoxicated, but not as intoxicated as we was on September 29. While he was being booked, the defendant spoke of drug activity and drugs present in the town and about how guns in the town were being overlooked. He spoke only about the conduct of others in the town and not of his own conduct. During this booking the defendant was generally calm but again would not willingly enter a jail cell. There was a fight during which the defendant was pushed against the wall. Officer Whalen and Officer Girard had to get help get the defendant into his cell. Once in the cell, the officers made him disrobe so he would not strangle himself.
IV. The Expert Testimony Presented at the Hearing
James C. Beck ("Dr. Beck") was called as an expert witness by the defendant at the hearing on the instant Motions to Suppress. He has impressive credentials. Besides his medical degree from Harvard Medical School, he also has an M.A. and Ph.D. Dr. Beck has served as the Director of the Cambridge Court Clinic and has regularly given opinions in court on the competency and criminal responsibility of defendants. He has also provided opinions to the court to aid in sentencing.
Dr. Beck reviewed the police reports regarding the defendant's behavior on September 29. In these reports, the police described the defendant as being severely intoxicated, making no sense, and having trouble sitting and walking. These reports further reflect that defendant fell over inside the police cruiser and that he was slumped over in his booking photograph. According to police reports, all of the police officers present that night believed that the defendant was drunk and irrational and observed him stumbling and acting erratically. They also heard him talk about committing suicide before he actually attempted to do so in his jail cell.
Dr. Beck testified that when people are drunk, their statements are of little or no value because no one can tell whether they are being truthful or not. Intoxication affects the frontal cortex of the brain. In order to get an accurate statement, the person has to detox. In his opinion, no one can tell if Silva's statements are reliable. Dr. Beck also explained that an intoxicated person will often talk about suicide but that such talk ceases when they are sober.
According to the police reports, the next morning, September 30, at 8:00 a.m., the defendant was still acting erratically and irrationally. It appeared to Dr. Beck that the defendant was still intoxicated but his behavior could also have resulted from a mental illness or a combination of mental illness and intoxication. A combination of mental illness and intoxication could also result in irrational and unrealistic statements.
Dr. Beck testified that his opinion does not encompass the voluntariness of the defendant's statements. That is a separate and distinct issue from whether statements are rational or have any reliability.
DISCUSSION
I. First Motion to Suppress Evidence: Warrantless Search on June 9, 2004
The defendant first seeks to suppress the two backpacks and their contents as well as the statements that he made on June 9 and the search warrant for his property that resulted in the June 11 search.
The defendant correctly argues that the June 9 search does not qualify as a search incident to an arrest because Silva was being taken into civil protective custody and was not being arrested for a criminal offense. The June 9 search, however, was valid underCommonwealth v. Ierardi, 17 Mass. App.Ct. 297 (1983).Ierardi provides,
"A person assisted to a facility or held in protective custody by the police pursuant to the provisions of this section, shall not be considered to have been arrested or to have been charged with any crime." G.L. c. 111B, § 8, seventh par.
"When a person is taken into protective custody, a search may be conducted in accordance with G.L. c. 111B, § . 8, sixth par., as amended by St. 1973, c. 1143, which provides in pertinent part: 'If the police officer reasonably believes that his safety or the safety of another person present so requires, he may search such person and his immediate surroundings, but only to the extent necessary to discover and seize any dangerous weapons which may on that occasion be used against the officer or other person present: provided, however, that if such person is held in protective custody at a police station all valuables and all articles which may pose a danger to such person or to others may be taken from him for safekeeping and if so shall be inventoried."
Id. at 299, n. 1.
Chief Joyce testified that when he encountered the defendant on June 9 he was belligerent. Officer Girard had previous encounters with Silva where he had resisted being handcuffed. Chief Joyce's brief search of the defendant's belongings, therefore, was reasonable. The backpacks were going to be placed in a police cruiser, with an officer, and eventually brought into the police station and/or court house. Therefore Chief Joyce needed to ensure that the bags did not contain any dangerous weapons. Chief Joyce's initial search of the defendant's backpacks, then, was a valid search under G.L. c. 111B, § 8.
The defendant also argues that the search which occurred when he arrived at the police station exceeded the Wareham Police Department's inventory search policy, because the policy does not address whether the police are allowed to open closed containers during an inventory search. Inventory searches must be conducted pursuant to standard, written, and "reasonable police regulations administered in good faith." Commonwealth v. Bishop, 402 Mass. 449, 451 (1988); Commonwealth v. Muckle, 61 Mass. App.Ct. 678, 684 (2004). Such searches are performed for care-taking, rather than investigative, purposes. Illinois v. Lafayette, 462 U.S. 640 (1983); Commonwealth v. Matchett, 386 Mass. 492, 510 (1982). Inventory searches serve three goals: (1) the protection of an arrestee's property, (2) the protection of the police from claims of theft, and (3) the protection of the police and the public from dangerous items.Muckle, 61 Mass. App.Ct. at 684. When an inventory policy provides the police with clear permission to open closed containers during an inventory search, they may do so. Commonwealth v. Caceres, 413 Mass. 749, 755 (1992). However, "if police open a closed container during an inventory search in the absence of a specific written procedure requiring them to do so, then any evidence they discover in the container must be suppressed." Commonwealth v. Garcia, 409 Mass. 675, 684-685 (1991).
The Wareham Police Department's "Booking Inventory Searches" policy states,
"Prior to incarcerating a detainee in a police lockup, police shall conduct an inventory search of his/her person and inspection of his/her belonging in accordance with the departmental polices on Detainee Processing and Protective Custody. This shall be done to uncover and safeguard any weapons or implements the detainee could use to injure himself/herself or others, to safeguard valuables and to protect the police against false claims of theft or loss of the detainee's belongings."
This inventory policy does not provide the Wareham police with clear permission to open closed containers during inventory searches. This policy's vague language "unacceptably invites the exercise of police officer discretion." Commonwealth v. Rostad, 410 Mass. 618, 622 (1991).
The Massachusetts State Police inventory policy, which was also marked as an exhibit at the hearing, does specifically allow opening closed containers during an inventory search. The search in question here, however, was not conducted by the State Police but the Wareham Police.
In Rostad, the Supreme Judicial Court ("SJC") suppressed the results of an inventory search of a handbag based on an inventory policy and facts very similar to those present in the instant case. See generally, Rostad, 410 Mass. 618.
The protective custody statute allows the police to seize the belongings of a person whom they take into custody, but it also directs them to inventory the belongings. Such an inventory, however, must be conducted pursuant to the standards set forth above. In this case the inventory, but not the initial seizure, was defective. The results of the inventory search by Officer Pillsbury, therefore, must be suppressed. The defendant's First Motion to Suppress, therefore, is denied as to the results of Chief Joyce's initial search per G.L. c. 111B, § 8 and allowed as to the inventory search conducted by Officer Pillsbury at the Wareham Police Department.
II. Second Motion to Suppress Evidence: Warrant Search of PCCI on June 11, 2004
The defendant challenges the warrant used to search his belongings at PCCI on June 11 on a number of grounds. He seeks to suppress the following evidence which was recovered during this search: blue jean shorts, black shorts, a blue t-shirt, one pair of sneakers and one pair of green socks. The burden is on the defendant to prove that this search, conducted with a warrant, was unlawful.Commonwealth v. Antobenedetto, 366 Mass. 51, 56-57 (1974).
A discovery mishap resulted in the omission of the affidavit used to support the application for the search warrant. Because that affidavit has now been produced, the court will not consider the arguments relating to its absence.
To begin, the defendant must show that he had a reasonable expectation of privacy with respect to his property when it was located at PCCI. U.S. v. Flores-Montano, 541 U.S. 149, 149-153 (2004); Commonwealth v. Bly, 448 Mass. 473, 490 (2007). If the defendant makes this showing the burden then shifts to the Commonwealth to show that the search was reasonable. Commonwealth v. Starr, 55 Mass. App.Ct. 590, 592 (2002). An expectation of privacy must be subjectively reasonable and must be one that society would accept as reasonable.Bond v. U.S., 529 U.S. 334, 336-337 (2000);Commonwealth v. Feyenord, 62 Mass. App.Ct. 200, 206-207 (2004). Prisoners generally do not have a reasonable expectation privacy as to their belongings located at a prison or jail. Hudson v. Palmer, 468 U.S. 517, 525-526 (1984) (prisoners do not have a reasonable expectation of privacy as to property within their prison cell);Commonwealth v. McCollins, 23 Mass. App.Ct. 436, 438-439 (1987), review denied 399 Mass. 1103 (1987) (no reasonable expectation of privacy in house of correction prisoner's foot locker).
Silva argues that he had a reasonable expectation of privacy in the items seized by PCCI pursuant to the warrant because they were not items that were located in his cell but were items that he did not voluntarily surrender to prison officials. Although Silva may have had a subjective expectation of privacy in these items, his expectation of privacy is not one that is reasonable. Silva admits that he could not challenge the search if it had been performed in his cell. He cannot expect that his belongings in one area of the prison would receive more protection than if they were located in another area of the prison. Inmates lose any number of rights when they are imprisoned, including the right to control their belongings.
This argument, of course, does not apply to Silva's sneakers, which were taken from his cell, or unit.
The defendant next argues that the warrant was illegally over-broad because it failed to particularly describe the area to be searched and the items to be seized. Both federal and state laws require that a warrant specify what is to be searched and seized with as must particularity as possible. Commonwealth v. Dunigan, 384 Mass. 1, 6-7 (1981). Here, the warrant stated that the police were looking for "all personal property and belongings of Robert J. Silva" located at PCCI. Such a broad description can be cured by an affidavit that specifies the area and items to be seized more particularly. Commonwealth v. Valerio, 449 Mass. 562 (2007). In this case, the affidavit states that the police were seeking "the clothing and footwear of Robert J. Silva ? currently housed a[t] the Plymouth County Correctional Institution in Plymouth, Massachusetts." In this case, the affidavit does cure the lack of particular language in the warrant itself by specifying what items the police were searching for and where the items were located.
The defendant also argues that the warrant lacked probable cause and was based on an insufficient nexus between the Loftus murder and his belongings at PCCI. Probable cause is "reasonably trustworthy information . . . sufficient to warrant a prudent man in believing that the defendant ha[s] committed . . . an offense."Commonwealth v. O'Dell, 392 Mass. 445, 450 (1984), quotingCommonwealth v. Stevens, 362 Mass. 24, 26 (1972). In order to establish probable case, an affidavit supporting an application for a search warrant must "contain enough information for the issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that they may reasonably be expected to be located in the place to be searched."Commonwealth v. Cefalo, 381 Mass. 319, 328 (1980).
Probable cause to believe that a person committed a crime, however, "does not necessarily constitute probable cause to search a person's residence" or other locations unrelated to the crime. Commonwealth v. Cinelli, 389 Mass. 197, 213 (1938). In order to search a location, then, the affidavit must establish that there is "a substantial basis for concluding that any of the articles described in the warrant are probably in the place to be searched. Strong reason to suspect is not adequate." Commonwealth v. Upton, 394 Mass. 363, 370 (1985) (citations omitted). The nexus between the location to be searched and a crime can be found in "the type of crime, the nature of the missing items, the extent of the suspect's opportunity for concealment, and normal inferences as to where a criminal would be likely to hide stolen property."Cinelli, 389 Mass. at 213, quoting United States v. Lucarz, 430 F. 2d 1051, 1055 (9th Cir. 1970).
This nexus requirement was recently re-emphasized by the SJC in Commonwealth v. Pina, 453 Mass. 438 (2009).
The defendant argues that the Commonwealth has not sufficiently established a nexus between Loftus' murder and the items that they seized at PCCI. The Commonwealth alleges that the nexus was established sufficiently. The police were seeking clothing and footwear that they believed were worn by the defendant when he arrived at PCCI. Silva was arrested only some three hours after Loftus' murder. On that day he was transported directly to the Wareham Police Department, then directly to the Wareham District Court and finally to PCCI. The affidavit details Trooper Dateo's experience and knowledge regarding how evidence can be stored on clothing and footwear. Trooper Dateo was also relying on Pimental's statements detailing what Silva was wearing at the time of the Loftus murder. All of these facts establish a nexus between the clothing that Silva was wearing on June 9, when he was transported to the Wareham District Court and the PCCI, and the Loftus murder.
The defendant also argues that the search warrant was not issued based on probable cause because it is based in part on Pimental's statements which, he contends, are unreliable. Under the familiar test established in Aguilar v. Texas, 378 U.S. 108 (1964) andSpinelli v. United States, 393 U.S. 410 (1969), the affidavit supporting a search warrant application must present facts showing (1) that the informant has some basis for his knowledge and (2) that the informant is reliable and credible, even if the informant is a named citizen. Upton, 394 Mass. at 375. Here, the defendant disputes Pimental's veracity and argues that the Commonwealth has not shown why the police and the issuing magistrate should have believed and trusted the information provided by him. When the informant in question is a named citizen, he is presumed to be reliable because the defendant can question him with regard to his statements. United States v. Ventresca, 380 U.S. 102, 111 (1965). Statements made against penal interest are also treated as being generally reliable. Commonwealth v. Parapar, 404 Mass. 319, 322 (1989); Commonwealth v. Alvarez, 422 Mass. 198, 204 (1996).
Pimental was named in the affidavit and therefore his statements are presumed to be reliable. Ventresca, 380 U.S. at 111. His statements regarding Silva's involvement in the Loftus murder were corroborated and reinforced by the fact that the police took Silva into protective custody near the scene of the murder close to the time of the crime. Pimental's statements also implicated himself as being involved in the Loftus murder, and therefore, were against his penal interest. The search warrant also relied on Trooper Dateo's conclusion, based on his training and experience, that Silva's clothing and footwear from that day would likely have evidence of the crime on them. Based upon this evidence the magistrate who issued the search warrant could have reasonably concluded that there was probable cause for this search.
Finally, the defendant argues that the search warrant was defective because it was executed and returned improperly. Ministerial mistakes in the return of a warrant do not nullify the warrant. Commonwealth v. Pellegrini, 405 Mass. 86, 88, cert. denied, 493 U.S. 975 (1989). The evidence found during a search will not be suppressed due to a faulty return if the warrant was based on an affidavit which sufficiently established probable cause. Commonwealth v. Torres, 45 Mass. App.Ct. 915, 931-932 (1998). The return of service should be completed by the police officer that executed the warrant. It does not have to be completed by the police officer that applied for the warrant. If a police officer unrelated to the application or execution of the warrant completes the return of service the evidence found during the search should not be suppressed unless the defendant can prove that he was prejudiced. Commonwealth v. Aldrich, 23 Mass. App.Ct. 157, 162-163 (1986).
Trooper Dateo signed the copy of the return of service, which was submitted to the court. It notes that the search was conducted on June 14, 2004 at 9:00 a.m. The return was signed as being returned to the court on June 17, 2004. There appear to be no ministerial mistakes with regard to the return of service.
Employees of PCCI conducted the search without a copy of the warrant or police supervision. The police then simply collected the evidence that the PCCI employees had collected. The police are required to have a copy of the warrant at the time of the search and to show this copy to the subject of the search, if he or she is present. Groh v. Ramirez, 124 S. Ct. 1284, 1292 (2004). The warrant is not invalidated, however, if the subject of the search does not receive a copy of the warrant or does not read or understand the warrant.Commonwealth v. Guaba, 417 Mass. 746, 754 (1994);Valerio, 449 Mass. at 571.
As noted above, Silva did not enjoy a reasonable expectation of privacy as to his belongings located at PCCI. The prison, therefore, had the right to search his belongings at any time. Captain Berna properly brought a copy of the warrant to PCCI and presented it to the correction officer when he picked up the bag containing Silva's belongings. The search is not invalidated simply because Silva was not present to receive a copy of the warrant at this time. Although the police took possession of the bag on June 11, they did not search the bag until June 14. The return of service properly reflects this date as the date of the actual search. PCCI and the police, therefore, acted properly in seizing and searching Silva's belongings. His Second Motion to Suppress, then, must be denied.
III. Third Motion to Suppress Evidence: Warrant Search of Wareham District Court on June 11
The defendant next challenges the warrant used to search the two backpacks, located at Wareham District Court, on June 11. He seeks to suppress the following evidence recovered during this search: a black JanSport backpack containing broken sunglasses, Lubriderm lotion, Blistex, fingernail clippers, coupons, and advertisements and a camouflage backpack containing the lower legs from zip-off jeans, an insulated beverage holder, a Massachusetts ID, a black cigarette lighter, and a black Red Sox hat. Again, the burden is on the defendant to prove that this search, conducted with a warrant, was unlawful.Antobenedetto, 366 Mass. at 56-57.
The defendant first argues that the search warrant for the Wareham District Court violated G.L. c. 276, § 2. This statute allows a search warrant to be issued seeking stolen property, instrumentalities of a crime, contraband, the dead body of a human being, or a person with an outstanding arrest warrant. G.L. c. 276, § 1. The defendant alleges that his backpack was not a fruit or instrumentality of the crime alleged because it were not involved in the commission of the crime. Namely, he argues that the affidavit alleges that he beat Loftus with his hands and feet but there is no evidence that his backpack were anywhere near his hands or feet during the attack. Therefore, he alleges that there was no probable cause supporting this search warrant.
As noted above with regard to the defendant's clothing and footwear, the police, using their experience and training, believed that trace evidence of the crime could be found on or in his backpack. Additionally, information provided by Pimental led the police to believe that money taken from Loftus may have been in the backpack. This search warrant, then, did not violate G.L. c. 276 because the police were properly searching for items reasonably believed to be a fruit and instrumentality of a crime.
The defendant also challenges the search warrant because the affidavit supporting it mentions the results of the inventory search performed by Officer Pillsbury on June 9, 2004. As found above, the inventory search was improper and therefore cannot be used to support a probable cause finding with regard to this search warrant. To establish probable cause for a search, an affidavit supporting an application for a search warrant must "contain enough information for the issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that they may reasonably be expected to be located in the place to be searched." Cefalo, 381 Mass. at 328. In this case, the evidence remaining after the information from the inventory search is removed from the affidavit is: Silva was taken into protective custody by the Wareham Police Department on June 9, 2004 some 3 1/4 hours after the Loftus murder; he was carrying a backpack at that time; Wareham Police Officer Christopher Park ("Officer Park") brought Silva and his backpack, which was properly transported with Silva when he was taken into protective custody by Chief Joyce and Officer Girard, to the Wareham District Court following his protective custody; Pimental's statements that he and Silva struck Loftus with their hands and feet several times and that Silva took money from Loftus; the presence of a pool of blood at the murder scene; and Trooper Dateo's experience and training regarding how trace evidence can be found on items present at a crime scene. This evidence, discovered independent of the illegal inventory search, supports a finding of probable cause. The backpack, which Silva was carrying when he was confronted by Chief Joyce shortly after the murder, is connected to Silva, the crime scene and the Wareham District Court.
Because the court has denied the Defendant's Third Motion to Suppress, it need not consider the Commonwealth's argument that the motion should be denied because the opening of the closed backpack was done before the police were even aware of the Loftus murder and that the search did not reveal any contraband such as illegal guns or drugs.
Finally, the defendant alleges that the search itself was illegal because it went beyond the scope of the warrant. The affidavit in support of the application for the search warrant listed items to be taken from the backpack but did not instruct the police officers to seize the backpack itself, which they did. The search warrant, however, allowed the police to search for the backpack itself, as well as its contents. The police did not exceed the scope of the search as described in the search warrant. The June 11 search of the defendant's belongings at the Wareham District Court, therefore, was valid and the evidence found during that search will not be suppressed. Silva's Third Motion to Suppress is denied.
IV. Fourth Motion to Suppress Evidence: The Defendant's Statements on September 29, 2006
The defendant next requests that the court suppress the statements that he made on September 29, 2006, alleging that such statements were made in violation of Miranda and were not voluntarily made.
A. Miranda
A defendant who is in custody and subject to state interrogation is entitled to Miranda warnings. Miranda v. Arizona, 384 U.S. at 444. The requirements of Miranda must be "scrupulously observed." Commonwealth v. Garcia, 379 Mass. 422, 428 (1980). A defendant's Miranda rights can be "knowingly, intelligently, and voluntarily waived." Id. In this case, the police never read Silva his Miranda rights. Wavier, therefore, is not an issue in this case.
With regard to whether Silva was entitled to be read hisMiranda rights, the issue of custody is not contested here. The parties do disagree, however, as to whether the defendant was subject to state interrogation. For Miranda purposes, interrogation is express questioning or its functional equivalent.Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980). The functional equivalent of interrogation can be any words or actions by the police, besides those normally required for arrest, booking and custody that the police know or should have known were reasonably likely to elicit an incriminating response.Commonwealth v. Torres, 424 Mass. 792, 796-797 (1997). Whether a defendant was under interrogation is an objective inquiry.Commonwealth v. Braley, 449 Mass. 316, 324 (2007). The subjective intent of the officer in question should not be considered. Id.
Spontaneous, unprovoked statements are not protected byMiranda. Commonwealth v. Diaz, 422 Mass. 269. 271 (1996). The Commonwealth alleges that all of the defendant's statements were spontaneous. The defendant alleges that some of his statements were made in response to police questioning and must be suppressed.
The defendant's statements to Officer White at the Cape Cod Express building and in the police cruiser, including "lock me up Somers," that he was drunk and wanted to go to jail, that he should be locked up for life because he was there at Onset, and that he felt guilty because his friend Eric was in jail and he was not were made spontaneously and, therefore, will not be suppressed as a violation of Miranda. The defendant's initial statements made during his rambling at the start of booking were also made spontaneously. These statements include that he wanted to die, that he could not live with the guilt of killing someone anymore, and that he was there at Onset and he should be in jail for life with his boy. Although Officer White did ask Silva what he was talking about during his rambling, this was not interrogation. He was simply trying to determine what he was rambling about. These initial spontaneous statements will also not be suppressed on Miranda grounds.
Following these initial statements, however, White asked the defendant directly who "his boy" was and the defendant responded that it was Pimental. Finally, White asked the defendant whether his statements concerned the Loftus murder and he then stopped questioning him and told him that someone would talk to him in the morning when he was sober. At this point, Silva yelled "can't you see I am trying to confess to a murder." Although Officer White did not feel that he was investigating when he asked these questions, his questions do qualify as interrogation. The questions were not required for his booking. When Officer White asked this series of questions he knew, or at least suspected, that the defendant was talking about an alleged murder. Officer White's questions also become more specific as the conversation continued. His questions changed from trying to understand Silva's rambling to asking for specific details about his story. These follow up questions were reasonably likely to elicit an incriminating response. These later statements made by Silva in response to Officer White's questioning, therefore, must be suppressed. Silva's final statement, that he was trying to confess to a murder, need not be suppressed on Miranda grounds, because this was made after Officer White stopped questioning Silva and informed him that someone would talk to him in the morning.
B. Voluntariness
Silva's early, spontaneous statements and his statement that he was trying to confess to a murder, then, do not violateMiranda. In order for these statements to be admissible, however, due process requires that the statements must have also been voluntarily made. 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. Raymond, 424 Mass. 382, 395 (1998). There is a presumption that a defendant's statement is voluntary.Commonwealth v. Harris, 371 Mass. 462, 471 n. 3 (1976).
The judge is required to hold a voir dire examination to determine whether the statements in question were indeed made voluntarily.Commonwealth v. Blanchette, 409 Mass. 99, 106 (1991). The defendant has the burden to present admissible evidence of involuntariness. Commonwealth v. Tavares, 385 Mass. 140, 149 (1982). If the defendant meets this burden, the burden then shifts to the Commonwealth to prove that the statement was voluntary beyond a reasonable doubt. Id. Intoxication, emotional disturbance, and being suicidal are factors that can affect the voluntariness of a statement. Commonwealth v. Perrot, 407 Mass. 539, 542-543 (1990); Commonwealth v. Libran, 405 Mass. 634, 638-639 (1989). None of these factors alone, however, will operate to make a statement involuntary automatically.Id. The court must examine whether the statements were freely and rationally made despite the defendant's intoxication or mental state. Commonwealth v. Byrd, 52 Mass. App.Ct. 642, 647 (2001);Commonwealth v. Duffy, 36 Mass. App.Ct. 937, 939 (1994). If the judge finds that the statements were voluntary beyond a reasonable doubt, the question is then submitted to the jury to make the final determination of voluntariness. Blanchette, 409 Mass. at 106. If the judge cannot find that the statements in question were voluntary beyond a reasonable doubt the statements must be suppressed and cannot be heard by the jury. Id.
The defendant's expert witness, Dr. Beck testified that the defendant was highly intoxicated at the time that he made these statements. He also testified that intoxication affects the cortex and the ability of one to think and act rationally. Indeed, Officer White stated in his report from September 29 that he did not believe that the defendant was rational.
The Commonwealth argues that the defendant's intoxication was not fueling his behavior and statements on September 29. Rather, it argues that this defendant always acts erratically and irrationally when dealing with police officers. The Commonwealth also notes that, although it was slurred, the police officers could understand the defendant's speech and that his statements were factually accurate. It contends, therefore that he was in possession of his faculties when he made these statements and that this behavior was normal for the defendant.
As found above, the Wareham police officers described Silva as falling over inside the cruiser, stumbling and needing help to walk, leaning to the side in his booking photograph, changing subjects from one topic to another, and making erratic, irrational and rambling statements. They further described him as yelling, screaming, assuming a fighter's stance, refusing to remain seated on the bench, refusing to enter his jail cell and being "totally intoxicated." His intoxication was so complete that police did not even advise him of his Miranda rights during his booking. Most telling, and remarkably, the police postponed interviewing him that evening even though he repeatedly told two separate police officers that he took part in a specific murder and should be in jail for life. That the officers put no stock in Silva's rambling statements is evidenced by their failure to prepare even one police report that evening which memorialized his multiple admissions to murder. Because Silva's intoxication was so severe, possibly combined with mental illness, the court cannot find that Silva's incriminating statements on September 29 were voluntary beyond a reasonable doubt. The evidence is quite to the contrary. His statements must be suppressed because they were involuntary. The defendant's Fourth Motion to Suppress, therefore, is allowed.
V. Fifth Motion to Suppress Evidence: The Franks Motion
Finally, the defendant challenges the validity of the affidavit submitted to support the application for the search warrants, which resulted in the two June 11 searches. When applying for a search warrant, the police must include all of the information that they have acquired during their investigation in the four corners of an affidavit. Commonwealth v. Treadwell, 402 Mass. 355, 358 n. 4 (1988). The defendant can challenge the statements made in a supporting affidavit underFranks v. Delaware, 438 U.S. 154 (1978). To raise aFranks challenge, the defendant must show, in a substantial way, that the affidavit in question contains false statements of material fact or omitted critical facts that were material to the probable cause determination and that the affiant made or omitted these statements deliberately or with reckless disregard for the truth. Id. at 171. If the defendant meets his burden of proving by a preponderance of the evidence that critical facts were omitted from an affidavit intentionally or recklessly, the facts can be added to the affidavit. Commonwealth v. Corriveau, 396 Mass. 319, 334 (1985); Commonwealth v. Dion, 31 Mass. App.Ct. 168, 173 (1991). The court must then determine whether these additional facts affect the finding of probable cause.Dion, 31 Mass. App.Ct. at 173. Negligent omission of facts from the affidavit does not violate Franks.Commonwealth v. Valdez, 402 Mass. 65, 70 (1988).
The defendant contends that Trooper Dateo and Detective Sylvester had overwhelming evidence that Pimental was lying. The affidavit submitted to support the search warrant applications did not note that Pimental continuously changed his version of the events or that Silva had no money on him when he was arrested. The defendant contends that the affidavit should have included information about Pimental's multiple conflicting statements, not just his final version of his story, which implicated the defendant. The defendant also challenges the affidavit because it failed to stated that Silva had no blood on him when he was first seen by Chief Joyce on June 9, 2004, that Silva had no money on his person when he was taken into protective custody on that day, and that Loftus' wallet was never found. He contends that the selective incorporation of Pimental's statements and these other facts stemming from the events on June 9 was done with reckless, or even intentional, disregard for the truth.
Although Pimental's statements varied over time, none of the statements exonerated Silva. The police may have omitted other inconsistent portions of Pimental's statements, but those did not necessarily relate to Silva's involvement in the murder. Even if this court were to find that the police reported the facts supporting the search warrant recklessly and the additional facts were added to the affidavit, there is still sufficient probable cause to support the warrant. As discussed above, the probable cause finding was based on a number of facts, such as Pimental's statements which, in total, still implicate Silva, and Trooper Dateo's experience and training. Silva's Franks challenge, therefore, must be denied and the affidavits will stand. The defendant's Fifth Motion to Suppress, then, is denied.
ORDER
For the foregoing reasons, the defendant's First Motion to Suppress Evidence is ALLOWED as to the inventory search at the Wareham Police Department, but DENIED as to the results of Chief Joyce's initial search per G.L. c. 111B, § 8, his Second Motion to Suppress Evidence is DENIED , his Third Motion to Suppress Evidence is DENIED , his Fourth Motion to Suppress Evidence is ALLOWED , and his Fifth Motion to Suppress Evidence is DENIED.