Opinion
No. 04-1808.
November 13, 2006.
Introduction
The defendant, Fuquan Toney (Toney), moves to suppress police observations made when they arrested him on a violation of probation warrant. He also moves to suppress his statements made during two interrogations at the Worcester police department and items seized from his apartment pursuant to a search warrant. The court conducted an evidentiary hearing on October 2, 2006, at which Worcester police Detectives Christopher Murphy (Murphy), Robert Johnson (Johnson), Thomas Looney (Looney) and Daniel Sullivan (Sullivan) testified.
Finding that the search of the apartment was a lawful protective sweep, that the statements were voluntary and given after Toney received adequate Miranda warnings and that the statements were not obtained in violation of his right to a prompt arraignment, the court denies the motion to suppress the fruits of a warrantless search and the motion to suppress statements. Finding that the warrant did not sufficiently particularize some objects of the search, the court allows, in part, the motion to suppress the fruits of the search pursuant to a search warrant and denies the motion in part.
Findings of Fact
Based on the evidence presented and reasonable inferences from the evidence, the court makes the following findings of fact:
1. On July 22, 2004, Worcester police were investigating a fatal shooting in front of Worcester city hall. About 11:20 A.M. numerous officers, including Murphy, Johnson, Looney and Sullivan, went to 15 Willow Street, apartment #16 in Westboro. They were looking for Toney and they had a description of his car.
2. 15 Willow Street was an apartment house with assigned parking spaces. They found the car they sought in an assigned space near a building with Toney's name on one of the mailboxes.
3. A Worcester police Sergeant-Detective told them that he had a violation of probation warrant for Toney. The warrant was for conspiracy, with two other people, to commit armed robbery. Police also considered Toney a suspect in the fatal shooting.
4. Four officers went to the apartment door and two guarded the building's rear exit. Murphy knocked on the apartment door. After ten to fifteen seconds someone inside said, "Who is it?" Murphy replied, "Worcester police." Toney opened the door wearing boxer shorts and a T-shirt and stepped back four to five feet into the apartment. Police asked him if he was Fuquan Toney. After he said that he was, police told him that he was under arrest on the probation warrant and handcuffed him.
5. It was a one bedroom apartment, consisting of several rooms. The view into the apartment was partially obstructed by a wall.
6. Johnson did what he considered to be a protective sweep; he walked around the apartment to see if there was anyone else there. He saw a safe in the bedroom, about the size and color of a dorm refrigerator, with its door open most of the way; he saw cash, ammunition, inositol and cocaine on top of and inside the safe. Johnson did not touch anything.
7. After Toney dressed, Looney and Sullivan drove him to the Worcester police department. Police did not say anything to him, nor did Toney say anything to them.
8. Police posted a guard at the apartment.
9. Police quickly brought Toney, still handcuffed, to an interrogation room, where he read and acknowledged, verbally and in writing, a form containing the following rights. Right to the Telephone. Pursuant to c. 276, § 33A, you have the right to use the telephone to communicate with family or friends, or to arrange for bail, or to contact an attorney. Do you understand this right? Miranda Warnings and Waiver. Miranda Warnings. Before we ask you any questions, you must understand your rights. You have the right to remain silent.-Do you understand this right? Anything you say can be used against you in court.-Do you understand this right? You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. — Do you understand this right? If you cannot afford a lawyer, one will be appointed for you before questioning if you wish.-Do you understand this right? If you decide to answer questions now without a lawyer present, you will still have the right to stop questioning at any time until you talk to a lawyer.-Do you understand this right? Do you understand what I have read to you? Waiver of Miranda Warnings. Having these rights in mind, do you now waive your Fifth Amendment rights pursuant to Miranda, and desire to talk to me now concerning this matter or other matters of concern to us?
10. Toney, or one of the officers at his direction, placed an X in front of the following. Yes, I wish to talk to you now and waive my Fifth Amendment Right pursuant to Miranda.
11. Toney, Looney and Sullivan signed the bottom of the form. About 12:15 P.M., Toney used the phone to call his girlfriend, reaching her answering machine. He initialed a notation at the bottom of the form indicating that he had done so.
12. Police questioned Toney at length about where he was the night of the killing. Toney would only say that he was at Mott Street until about 10:30, that his girlfriend picked him up, and that he went home to Westboro and that he was never in Worcester.
13. Toney repeatedly told police he had nothing more for them. He never told them that he was unwilling to continue, nor did he tell them that he wished to have an attorney present.
14. Toney was questioned during an active murder investigation; for much of the time police left him alone while they pursued other leads and attended to other aspects of the investigation. After about two hours, police gave up and returned Toney to his cell.
15. At about this time, police applied for and received Westborough District Court search warrant no. 04 SW 29, which they executed at about 2:20 P.M.
16. Between 2 and 8 P.M., Timothy Zanetti and Jorge Lopez, also suspects in the killing, came to the police station.
17. Police did not intend to charge Toney with murder until they interviewed Zanetti and Lopez, between 4 and 8 P.M. At about 8 P.M., police again attempted to question Toney.
18. He read and acknowledged another copy of the same form. He did not check the box indicating that he wanted to talk to them and he did not use the telephone.
19. Looney and Sullivan told him that they had now talked to the other people in the car. Toney refused to answer any questions. Looney and Sullivan ended the interview after less than five minutes, without telling Toney that he was under arrest for murder. Toney did not say anything other than to refuse to talk to police.
DISCUSSION
1. The Protective Sweep
Generally, where the defendant has a reasonable expectation of privacy, police must have a warrant to search a person, his belongings, or his home. Exceptions to this rule arise when the benefits to the public interest outweigh the individual's privacy right. Maryland v. Buie, 494 U.S. 325, 336-337 (1990). One exception to this rule is a protective sweep conducted in conjunction with the arrest of an individual in his home. Buie, 494 U.S. at 327. "A `protective sweep' is a quick and limited search of a premises, incident to an arrest and conducted to protect the safety of police officers or others." Buie, 494 U.S. at 331. The scope of a protective sweep must be limited to its purpose and "may extend only to a cursory inspection of those spaces where a person may be found." Buie, 494 U.S. at 335.
If a dwelling in which an arrestee is found is reasonably suspected to harbor others who might pose a danger "to those on the arrest scene," police may conduct a "protective sweep" or "security check" of the premises. Commonwealth v. Bowden, 379 Mass. 472, 478 (1980). In Bowden, the arresting officer conducted a security check of the defendant's cellar, which resulted in the discovery of .38 caliber bullets. Bowden, 379 Mass. at 478. "[The officer] was unaware of how many people were involved in the crime and of how many people were actually in the apartment. He testified that he saw the open door and the light on, as well as the numerous shells on the floor; and he believed there might be someone hiding in the basement. He went downstairs to investigate and looked behind all objects and into all areas large enough to conceal a person. His testimony was that he did this to ensure the safety of himself and the other officers." Bowden, 379 Mass. at 478. The court held that the security check was valid because it was reasonably necessary to ensure the personal safety of the arresting officer. Bowden, 379 Mass. at 478. The protective sweep in Bowden was broader in scope than the sweep conducted in this case.
If police are lawfully in a position from which they can view an object, if they have a lawful right of access to the object, if discovery of the object is inadvertent, and if its incriminating character is immediately apparent, they may seize the object without a warrant under the plain view exception. Commonwealth v. Santana, 420 Mass. 205, 211 (1995). In Bowden, the Court held that the seizure of the shells was constitutional under the plain view doctrine because the arresting officer was authorized to conduct a security check of the cellar and inadvertently found incriminating evidence. Bowden, 379 Mass. at 478.
The probation warrant for conspiracy to commit armed robbery, with two others, and Toney's status as a murder suspect gave rise to a reasonable suspicion that the apartment might harbor others that might pose a danger. Johnson's walk around the apartment did not exceed the scope of a protective sweep because it only extended to a cursory inspection of those spaces where a person may be found. Buie, 494 U.S. at 335. Although Johnson did not find people during his search, he did observe an open safe. The safe was in plain view and there was cash, ammunition, inositol and cocaine on top of and inside it. The discovery of these objects was inadvertent, and their incriminating nature was obvious and immediately apparent. The observation of these objects did not constitute a search because the observations fall within the plain view exception. Police had a reasonable suspicion that Toney's apartment might harbor others who might pose a danger to them, the sweep was quick and limited and the objects seen were in plain view. Bowdoin, 397 Mass. at 478; Santana, 420 Mass. 205 at 211. No illegality is shown in the seizure of these items.
2. Voluntariness of Statements and Miranda
The Commonwealth bears the burden of proving that the defendant's statements were voluntary. Commonwealth v. Garcia, 379 Mass. 422, 429 (1980). In order for the defendant's statements to be admissible at trial, the statements must be "the product of an essentially free and unconstrained choice," Culombe v. Connecticut, 367 U.S. 568, 602 (1961). The court must consider the totality of the circumstances of each statement, including the characteristics of the accused, and the details of the interrogation. Commonwealth v. Daniels, 366 Mass. 601, 606 (1975), quoting Schneckloth, 412 U.S. at 226.
The Commonwealth also bears the burden of proving that the defendant voluntarily, knowingly, and intelligently waived his Miranda rights before being subjected to custodial interrogation. Commonwealth v.Edwards, 420 Mass. 666, 669 (1995). In determining whether a waiver ofMiranda rights was made voluntarily, "the court must examine the totality of the circumstances surrounding the making of the waiver." Edwards, 420 Mass. at 670. Factors to be considered in assessing the voluntariness of a waiver include the scrupulousness with which police honor a suspect's assertion of his rights, the suspect's mental and emotional state, the place, duration and circumstances of the interrogation, and whether any improper inducements were offered. Commonwealth v. Magee, 423 Mass. 381, 386-387 (1996). A suspect's indication that he understands his rights, wants to waive them, and wishes to talk to police are the strongest signs of his understanding. Commonwealth v. Silva, 388 Mass. 495, 500-502 (1983).
The Commonwealth argues that the defendant's statements were made voluntarily and after executing a valid waiver of his Miranda rights. Before Toney made any statements to the police in the interrogation room, police gave him complete Miranda warnings and he waived his rights by signing the waiver form. Toney, or an officer acting at his direction, checked, "Yes, I wish to talk to you now and waive my fifth amendment right pursuant to Miranda." Toney's signature on this form is the strongest indication of his understanding and waiver of his rights because it shows that he understood his rights, wanted to waive them, and wished to talk to police. Silva, 388 Mass. 495, 500-502.
In assessing the totality of the circumstances surrounding Toney's interrogation, there were no factors present that indicate that Toney's statements were involuntary. "Relevant factors to consider [in assessing the totality of the circumstances] include, but are not limited to, `promises or other inducements, conduct of the defendant, the defendant's age, education, intelligence and emotional stability, experience with and in the criminal justice system, physical and mental condition, the initiator of the discussion of a deal or leniency (whether the defendant or police), and the details of the interrogation, including the recitation of Miranda warnings.'" Commonwealth v. Jackson, 432 Mass. 82, 86 (2000), quoting Commonwealth v. Mandile, 397 Mass. 410, 413 (1986). There were no promises or inducements made by police, nor was Toney psychologically or emotionally unstable; he was calm, denied involvement in the killing and gave police an alibi. The court finds that the statements were voluntary beyond a reasonable doubt and were the result of a valid waiver of his Miranda rights.
The Commonwealth has met its burden of proving that the defendant voluntarily, knowingly, and intelligently waived his Miranda rights before being subjected to custodial interrogation. Commonwealth v.Edwards, 420 Mass. 666, 669 (1995).
3. Validity of the Search Warrant
"Both the Federal Constitution and our statutes require `particularity' in a warrant's identification of the place to be searched as well as the things to be seized." Commonwealth v. Toledo, 66 Mass.App.Ct 688, 692-693 (2006) (furth. app. rev. den. by Commonwealth v. Toledo, 447 Mass. 1110 (2006)), quoting Commonwealth v. Pope, 354 Mass. 625, 628-629 (1968). "The manifest purpose of this particularity requirement [is] to prevent general searches." Commonwealth v. Carrasco, 405 Mass 316, 323 (1989), quoting Maryland v. Garrison, 480 US 79, 84 (1987). To satisfy the particularity requirement, the description of the place to be searched must enable the executing officer to locate and identify the premises with reasonable effort, without reasonable probability that another place might be mistakenly searched. Commonwealth v. Tradwell, 402 Mass. 355, 359 (1988); Commonwealth v. Rugaber, 369 Mass. 765. 768 (1976). "The degree of specificity required when describing the goods to be seized may necessarily vary according to the circumstances and type of items involved." Commonwealth v. Frieberg, 405 Mass. 282, 298 (1989), quoting United States v. Johnson 541, F.2d 1311, 1314 (8th Cir. 1976). "The infirmity of part of a warrant requires the suppression of evidence seized pursuant to that part of the warrant . . . but does not require the suppression of anything described in the valid portions of the warrant (or lawfully seized — on plain-view grounds, for example — during their execution)." Commonwealth v. Lett, 393 Mass. 141, 143-144 (1984), quoting, United States v. Fitzgerald, 724 F.2d 633, 637 (8th Cir. 1983).
Toney claims that the warrant obtained by the Worcester police was invalid because it did not sufficiently describe the place to be searched or the items to be seized. He argues that police obtained a general warrant, allowing them to search any place for anything. The Commonwealth argues that the affidavit provided sufficient facts to conclude that physical or trace evidence relating to the murder of Hector Rivera would be found in the defendant's apartment.
The search warrant described the place to be searched as the defendant's apartment, "15 Willow St. Apartment #16 Westborough." Police obtained this address from Toney's board of probation printout and verified it when they arrested him at the address. This description satisfies the particularity requirement because it enabled the executing officer to locate and identify the premises with reasonable effort, without reasonable probability that another place might be mistakenly searched. Tradwell, 402 Mass. at 359; Rugaber, 369 Mass. at 768.
The search warrant described the things to be seized as "firearms, ammunition, controlled substances, and any physical or trace evidence." The description "any physical or trace evidence" might be sufficiently descriptive as to items seized because they were "trace" evidence, but, in these circumstances was not sufficiently descriptive to satisfy the particularity requirement as to items thought to be "physical" evidence. Although the degree of specificity required may necessarily vary according to the circumstances and type of items involved, the circumstances in this case can be distinguished from those cases where the failure to specifically identify items to be seized was excused.Commonwealth v. Frieberg, 405 Mass. 282, 298 (1989), In Frieberg, the warrant listed "blood — clothing — or any other instrument used in crime." Commonwealth v. Frieberg, 405 Mass. 282, 296 (1989). The court found that the language "any other instrument used in crime" satisfied the particularity requirement because the police did not know what instrument had caused the victim's death and could not be expected to describe with precision the items to be seized. Commonwealth v. Frieberg, 405 Mass. 282, 298 (1989). This case is distinguishable from Frieberg because police knew what "instrument" killed Hector Rivera and specified that they were looking for ammunition, firearms and controlled substances. They had sufficient information to describe other "physical" evidence they sought with precision but did not. For example, they could have specified personal documents linking Toney to the apartment. The seizures made pursuant to the authorization to seize "any physical . . . evidence" were unlawful.
The items that the court suppresses can be described as physical evidence but not trace evidence.
The following items were seized pursuant to the description of "firearm, ammunition or controlled substance" and will not be suppressed: 1 clear glassine baggy with white powder residue; 1 box American Eagle Ammunition .380 Cal. (50 rounds); 1 clear glassine baggy with white powder substance; 1 white and blue dish with white powder residue; 1 green dish with white powder residue; and several cut corner baggies. The following items were seized pursuant to the description of "any physical . . . evidence" and will be suppressed: piece of mail addressed to Fuquan Toney; 2 small scales; 2 torn glassine baggies; 1 white napkin with numbers on it; 1 photograph; 1 Motorola cell phone; 1 Gateway computer manual with phone numbers written on it; 1 wallet with Fuquan Toney's identification; 1 photo album; and 1 Massachusetts Turnpike violation letter for Fast Lane.
4. Right to Prompt Arraignment
A defendant who has been arrested shall be brought before a court if then in session, and if not, at its next session. Mass. R. Crim. P. 7(a)(1). This requirement is intended to prevent unlawful detentions and unlawfully obtained statements. Commonwealth v. Cote, 386 Mass. 354 n. 11 (1982). The arraignment should occur as soon as is reasonably possible.Commonwealth v. Dubois, 353 Mass. 223 (1967). "The circumstances considered include the giving of Miranda warnings, the passage of time between arrest and confession, and the purpose and flagrancy of the police conduct." Commonwealth v. Beland, 436 Mass. 273, 283 (2002), quoting Commonwealth v. Hunter, 426 Mass 715, 720-721 (1998). "An otherwise admissible statement is not to be excluded on the ground of unreasonable delay in arraignment, if the statement is made within six hours of the arrest (day or night), or if (at any time) the defendant made an informed and voluntary written or recorded waiver of the right to be arraigned without unreasonable delay." Commonwealth v. Rosario, 422 Mass. 48, 56 (1996). This bright line rule set out in Rosario is known as the Safe Harbor Rule. Rosario, 436 Mass. at 56.
The Safe Harbor Rule is applicable if there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. Commonwealth v. Obershaw, 435 Mass. 794, 802 (2002). "An arrest occurs where there is `(1) an actual or constructive seizure or detention of the person (2) performed with the intention to effect an arrest and (3) so understood by the person detained.'" Commonwealth v. Obershaw, 435 Mass. 794, 802 (2002), citing, Commonwealth v. Cook, 419 Mass. 192, 198 (1994), quoting, Massachusetts Gen. Hosp. v. Revere, 385 Mass. 772, 778 (1982).
Toney claims that the police violated his right to a prompt arraignment and that he made statements that should be suppressed. Toney was arrested about 11:20 A.M. on July 22, 2004 on a warrant for violation of his probation. He was held at the police station and brought to the Superior Court for his first appearance the next day. Toney was not told on July 22 that he was under arrest for murder. Obershaw, at 802.
he first statement was well within six hours of Toney's arrest, and Toney did not make any statements in response to the very short second interrogation.
If Toney made any statements during the second interrogation, they must be suppressed. The court assumes that the six hour clock begins to run again once the defendant is arrested on another offense, although the court is not aware of any Massachusetts cases on point. In formulating the Safe Harbor Rule, the Supreme Judicial Court looked to Pennsylvania and the federal court system. The Supreme Court of Pennsylvania has held that the six-hour rule is offense-specific, or in other words, the clock starts to run again when the defendant is arrested for another offense.Commonwealth v. Perez, 577 Pa. 360, 368 (2004), citing, Commonwealth v. Bond, 539 Pa. 299 (1995). In Pennsylvania, "the arrest of a suspect for one criminal offense does not commence the six-hour period for questioning regarding a separate criminal offense." Commonwealth v. Perez, 577 Pa. 360, 368 (2004) (In Perez, the court modified the six-hour rule to adopt a totality of the circumstances rule in which time was just one factor. Ibid.).
ORDER
The defendant Fuquan Toney's motion to suppress based on a warrantless search and motion to suppress statements are DENIED . The defendant Fuquan Toney's motion to suppress the fruits of a search pursuant to a search warrant is ALLOWED in part and DENIED in part.