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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
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Commonwealth v. Alfonso A., a juvenile.
438
Present:
Complaints received and sworn to in the juvenile
session of the West Roxbury Division of the District Court Department on
A pretrial motion to suppress evidence was heard by
Paul D. Lewis, J., and, on transfer to the Boston Juvenile Court, a second
pretrial motion to suppress evidence was heard by Leslie E. Harris, J., and the
cases were heard by Stephen M. Limon, J.
After review by the
Alex G. Philipson, Assistant District Attorney, for
the Commonwealth.
Kenneth J. King for the juvenile.
SOSMAN, J.
The juvenile was adjudicated a delinquent on a
complaint charging possession of a firearm.[1] On appeal, the juvenile
claimed that his motion to suppress physical evidence and his motion to
suppress statements were erroneously denied. The
1. Motion to suppress physical evidence. On
Within the two hours preceding the preparation
of the affidavit, the detective had received information from a source whose
whereabouts and identity were known to the detective but who wished to remain
anonymous. The informant stated that he had "observed six rifles, three
shotguns, two rifles, and one air pellet rifle" at the
The juvenile contends that the information from
the informant failed to satisfy either prong of the "two pronged test"
of Aguilar v.
With regard to his conclusion that the veracity prong of the Aguilar-Spinelli
test had been satisfied, the motion judge relied on the extent of detail in the
informant's information, police corroboration of a portion of that detail, and
police knowledge of the identity and whereabouts of the informant. In
combination, those factors provided sufficient reason to treat the informant's
information as reliable. While we must, of necessity, parse each of the items
proffered as evidence of the informant's reliability, we must simultaneously
bear in mind that the Aguilar-Spinelli test is not to be applied
"hypertechnically." Commonwealth v.
The informant here was not anonymous. The
police knew his "identity" and his "whereabouts." Although
the informant was not named in the affidavit,[3] he was not an
untraceable, unknown source. See Commonwealth v. Va Meng Joe, 425 Mass. 99,
103-104 (1997) (informant "reachable by authorities"); Commonwealth
v. Welch, 420 Mass. 646, 651 (1995) (police "would be able to
contact" informant); Commonwealth v. Bakoian, 412 Mass. 295, 301 (1992),
quoting Commonwealth v. Atchue, 393 Mass. 343, 347 (1984) ("identification
of the instant informant to the police strengthened his or her credibility and
'carrie[d] with it indicia of reliability of the informant'");
Commonwealth v. Cast, 407 Mass. 891, 898-899 (1990) (informant met with Federal
agents and gave telephone number at which he was later reached); Commonwealth
v. Love, 56 Mass. App. Ct. 229, 232-234 (2002), and cases cited.[4]
Although police knowledge of the informant's "identity" and
"whereabouts" would not be adequate standing alone to confirm the
informant's reliability, it is a factor that weighs in favor of reliability.
The information provided was detailed. As
discussed above, the details provided by the informant pertained to many
aspects of what he had heard and seen. As to the contraband itself, the
informant gave details of the number and type of guns seen, the nature of the
container in which they were being placed, and the precise location where they
were being stored. He identified, albeit by first name only, the two persons
there, indicating that it was the home of one of them. He provided detail of
how and when the guns had been obtained, i.e., by way of a break-in in
Here, a critical component of the detail
provided by the known informant was corroborated by police knowledge of the
break-in the day before. While detail alone does not confirm the informant's
reliability (see note 5, supra), police corroboration of that detail is a
strong indicator of reliability.
The juvenile argues that the number of weapons
did not match, interpreting the affidavit as describing twelve guns possessed
by "Ricky" and "Alfonso," as compared with the six guns
taken in the West Roxbury incident known to the police. The juvenile
misinterprets the plain meaning of the affidavit. The affidavit refers to the
informant observing "six rifles," which are then more precisely
described as "three shotguns, two rifles, and one air pellet rifle."
If, as the juvenile contends, the "six rifles" are in addition to the
"three shotguns, two rifles, and one air pellet rifle," there would
not be any separate reference to both "six rifles" and "two
rifles" -- that category of weapons would have been described simply as
"eight rifles." Without needing to dissect the grammar and
punctuation of the affidavit, the application itself, in support of which the
affidavit was submitted, unambiguously requested issuance of a warrant to
search for "6 rifles," not twelve rifles. The number of weapons seen
by the informant matched the number of weapons taken in the previous day's
break-in.
The types of weapons were also consistent. Although the victim of the break-in
had reported the stolen weapons as
The Appeals Court likened this case to that of
Commonwealth v. Upton, 390 Mass. 562, 572-573 (1983), rev'd, 466 U.S. 727
(1984), S.C., 394 Mass. 363, 374 (1985), where an unknown woman telephoned the
police with information, part of which pertained to a police search that had
recently occurred in a motel. While the anonymous and untraceable informant in
that case gave a report consistent with what the police knew of that search,
corroboration of something that had happened in a public place carried little
significance, as anyone could have known those same details. We do not see the
cases as similar. As discussed above, the present affidavit did not rely on an
anonymous telephone report, but on the report of a person whose
"identity" and "whereabouts" were both known. Nor is there
any suggestion here that the break-in to which the informant heard the juvenile
admit, that matched the break-in known to the police, involved events that had
occurred in a public place. There is also no reason to believe that the
break-in in West Roxbury had attracted any kind of notoriety or newsworthiness
that would have made the precise details common knowledge by the very next day,
nor any reason to believe that the informant was affiliated with or known to
the victim of the break-in, such that he could have known the date, location,
and exact items stolen through conversation with the victim. Read in a
commonsense fashion, the "match" between the previous day's break-in
and the confession overheard by the informant, combined with the weapons seen
by the informant, provided an adequate basis to treat the informant's report as
reliable.
We therefore conclude that the motion judge properly denied the motion to suppress
physical evidence seized during the execution of the search warrant.
2. Motion to suppress statements. The juvenile also moved to suppress
statements he had made to the police. The facts found by the motion judge, as
amplified by uncontested evidence presented at the hearing, are as follows.
In anticipation of the search warrant, four or
five police officers went to
When the police received word that the search warrant had been approved and was
on the way, they decided to question Ricky and the juvenile. They took Ricky
into a bedroom to question him separately. As they went, Ricky's mother asked
whether she could be present during the interview. The police told her that,
because Ricky was an adult (he was eighteen years old at the time), it was
Ricky's choice whether to have anyone else present. Ricky announced that he did
not want his mother to accompany him. This exchange took place in the presence
of the juvenile and was presumably overheard by him.
After completing the questioning of Ricky, two detectives next took the
juvenile into the bedroom. They asked him his date of birth, which was
For purposes of establishing a valid waiver by a juvenile under the age of
fourteen years, we require the Commonwealth to show "that a parent or an
interested adult was present, understood the warnings, and had the opportunity
to explain his rights to the juvenile so that the juvenile understands the
significance of waiver of these rights." Commonwealth v. A Juvenile, 389
The motion judge ruled that the repeated offers to get the juvenile's mother
and have her present at the interview, and the alternative offers to have one
of the other adults in the apartment be present, gave the juvenile a
"meaningful opportunity to consult with an adult." We agree with the
juvenile that the offers made here did not amount to the "genuine
opportunity" for consultation required by our cases. Commonwealth v.
MacNeill, supra at 78. While we have never expressly held that the adult in
question must be physically present in order for there to be that "genuine
opportunity" for consultation, an adult was in fact present in all of the
cases where we have found that there was the required "opportunity"
for consultation. See Commonwealth v. McCra, 427 Mass. 564, 565-566 (1998);
Commonwealth v. Hogan, 426 Mass. 424, 430-431 (1998); Commonwealth v. Philip
S., supra at 811-812; Commonwealth v. Ward, supra; Commonwealth v. Berry, 410
Mass. 31, 33 (1991); Commonwealth v. Tevenal, 401 Mass. 225, 227 (1987);
Commonwealth v. MacNeill, supra at 75. We have also noted that, in order for
there to be any genuine consultation, the adult who is available to the
juvenile must be informed of and understand the juvenile's constitutional
rights.
For purposes of deciding the present case, we need not rule out the possibility
that something less than actual physical presence of the adult might suffice
(e.g., interested adult participating through speaker telephone). Here, the
repeated offers to get the juvenile's mother did not, in a practical sense,
provide the juvenile with the protection that is envisioned by the requirement
that the juvenile have an opportunity to consult with an adult. The
"genuine opportunity" for consultation that our cases envision is not
merely a theoretical opportunity, that the juvenile may utilize at some future
time, but an opportunity that is immediately and evidently available to the
juvenile before the juvenile waives his or her rights. The detectives had
already advised the juvenile of his rights, and obtained his confirmation that
he understood those rights, before mentioning anything about contacting his
mother. In context, it was apparent that the detectives were ready to proceed then
and there, and the juvenile would, in effect, need to assert his rights in
order to interrupt the interrogation and await his mother's arrival. The very
purpose of our rules pertaining to the opportunity for consultation with an
adult is because "most juveniles do not understand the significance and
protective function of these rights even when they are read the standard
Miranda warnings," they "frequently lack the capacity to appreciate
the consequences of their actions," and the opportunity for consultation
with an adult "prevent[s] the warnings from becoming merely a ritualistic
recitation wherein the effect of actual comprehension by the juvenile is
ignored." Commonwealth v. A Juvenile, 389
We also agree with the Appeals Court's observation that "a juvenile in
trouble may be embarrassed to ask for an adult's help," Commonwealth v.
Alfonso A., 53 Mass. App. Ct. 279, 293 (2001), and the presentation of the
ostensible "opportunity" to consult with his mother placed this
juvenile in the posture of having affirmatively to ask for that help (and then
wait for that help to arrive). There is too great a risk that a juvenile will
engage in a show of bravado rather than admit to any desire or need to consult
with an adult.[7] When the adult is present and immediately available,
the juvenile may still decline to consult with that adult, but there is at
least no additional pragmatic barrier to consultation that the juvenile must
overcome. Here, there was such a barrier, that many juveniles would be hard
pressed to overcome. The offer to get the juvenile's mother, no matter how many
times it was made, did not present this juvenile with a "genuine
opportunity" to consult with her.
We also agree with the
We thus conclude that this juvenile was not accorded any "genuine
opportunity" to consult with an "interested adult" prior to
waiving his constitutional rights. Where the juvenile had no such opportunity,
the Commonwealth must make the alternative showing of "circumstances
[demonstrating] a high degree of intelligence, experience, knowledge, or
sophistication on the part of the juvenile." Commonwealth v. A Juvenile,
389
The record reflects that the juvenile had been arrested twice before, including
one arrest on a robbery charge and the other on an unidentified misdemeanor.
While there was no specificity as to what warnings he had been given in the
course of those prior encounters with the juvenile justice system, at least
some familiarity with that system can be inferred,[9] and the juvenile
acknowledged that he was familiar with his rights by way of that prior
involvement with the police. Of greatest importance is the fact that, during
questioning, this juvenile actually asserted his right to remain silent. The
juvenile admitted his involvement in the previous day's break-in, and
acknowledged that the crime had been perpetrated "with other people,"
but he refused to tell the officers who those "other people" were.
The juvenile's actual assertion of his rights is the strongest indication
possible that the juvenile was indeed aware of and understood those rights and
was capable, on his own, of asserting them. Thus, for example, in Commonwealth
v. King, 17 Mass. App. Ct. 602, 609-610 (1984), where the juvenile was not
given an opportunity to consult with an adult, the juvenile's prior involvement
with the courts coupled with his assertion of his right to an attorney during a
recent interrogation sufficed to support the judge's conclusion that the
juvenile had sufficient experience, knowledge, or sophistication. Here, while
the juvenile's prior involvement with the courts is less than that of the
juvenile in Commonwealth v. King, supra, the cases have the same critical factor
in common: the juvenile's proven ability to assert his rights when he wanted to
do so.
While the fact that the juvenile asserted his rights is important, and could,
in combination with other evidence adduced at the hearing, support a finding of
the requisite intelligence, experience, knowledge, or sophistication, it is not
for this court to make that finding. The record permits it, but it does not
compel it. There is some contrary evidence (for example, the juvenile's
extremely poor performance in school) that must be weighed against the evidence
that would support the finding. And, of course, the motion judge had the
opportunity to observe the juvenile (although the juvenile did not testify at
the hearing). We therefore remand the matter for the judge's findings with
respect to whether this juvenile had sufficient intelligence, experience,
knowledge, or sophistication to make a knowing and intelligent waiver of his
rights without being given an opportunity to consult with an interested adult.
So ordered.
FOOTNOTES:
[1] He was also
adjudicated a delinquent by reason of breaking and entering in the day time and
larceny over $250. Those complaints were placed on file with the juvenile's
consent. On a
complaint charging the juvenile with unlawful possession of ammunition, the
juvenile was found not delinquent.
[2] Nothing in the search warrant affidavit
identified any basis for believing that drugs or drug paraphernalia would be
present at the location to be searched, and no drugs or drug paraphernalia were
found during the search. The only items seized were the weapons, various types
of ammunition, a black bag, and a backpack.
[3] "The strict requirements of reliability
which govern an analysis of an anonymous informant's trustworthiness are
relaxed with respect to named and identified sources." Commonwealth v.
[4] The
[5] "The judge's proposition -- that the mere
proliferation of detail in an affidavit may serve as adequate proof of an
unidentified informant's veracity -- cannot be accepted as a flat rule. If so
accepted, it would open up an interesting prospect: we would see informants
guilefully providing what Pooh-Bah in 'The Mikado' calls 'detail, intended to
give artistic verisimilitude to an otherwise bald and unconvincing narrative.'
. . . 'If the informant were concocting a story out of whole cloth, he could
fabricate in fine detail as easily as with rough brush strokes.'"
Commonwealth v. Oliveira,
[6] The juvenile's mother was at home at the time and
was readily available. No effort had been made to contact her during the time
that the officers had been holding the juvenile.
[7] That would be particularly true where, as here,
the juvenile saw his older compatriot expressly decline to have his mother
present.
[8] We have not required that the adult be completely
free of conflicting loyalties or tensions.
[9] The present case is distinguishable from
Commonwealth v. Guyton, 405 Mass. 497, 503 (1989), where the juvenile's
statement to the police that he understood his rights because he had
"heard it before" stemmed from the fact that he had heard Miranda
warnings recited on television, not from any prior involvement in the juvenile
justice system.