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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
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth
v. Ortiz, 422
Supreme Judicial Court of Massachusetts, Hampden.
Argued
Decided
Judith Ellen Pietras,
Assistant District Attorney, for the Commonwealth.
Linda J. Thompson,
Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH, O'CONNOR, GREANEY and FRIED, JJ.
WILKINS, Justice.
In Commonwealth v. Rosario, 422
In this
case, we also consider the propriety of a Superior Court order suppressing
statements obtained in circumstances that a motion judge ruled violated Mass.R.Crim.P. 7(a)(1).
There are, however, differences between the two cases. Here, because the defendant's statements were
obtained within six hours of his arrest, they fall within the six‑hour
safe harbor adopted in the
The
defendant has been indicted for murder in the first degree, armed assault with
intent to murder, and assault and battery by means of a dangerous weapon. He moved to suppress (a) statements that he
made to Springfield police officers, (b) certain physical evidence thereafter
seized as a result of a warrantless search, and (c)
identifications of that evidence. The
motion judge ruled that the intentional delay in arraigning the defendant was a
violation of Mass.R.Crim.P. 7(a)(1) and required
suppression of the defendant's statements.
She concluded that seizure of the defendant's clothing, and witnesses's identifications of that clothing, were the
fruits of the unlawful interrogation and had to be suppressed as well. She did not pass on other challenges to the
admission of the defendant's statements.
The facts
are not in dispute on the issue before us.
On July [422 Mass. 66] 15, 1994, between 8 A.M. and 9 A.M., members of
the Springfield police department detective bureau arrested the defendant. They had an arrest warrant for the defendant
for murder and an arrest warrant for destruction of property in an unrelated
incident. They took the defendant to the
police station where they discovered that he did not speak English. They summoned a Spanish speaking officer who
arrived at 10:05 A.M. Until the Spanish
speaking officer arrived, the defendant was handcuffed to a chair in a room in
the detective bureau, uninformed that he had been charged with murder. The Spanish‑speaking officer, in the
company of two officers who had arrested the defendant, translated Miranda
rights into Spanish and advised the defendant of his right to use a telephone. The defendant signed forms acknowledging that
he had been advised of his rights. The
officer also interpreted a form advising the defendant of his right to a prompt
arraignment. At 10:10 A.M. the defendant
signed the arraignment warning form, purportedly waiving his right to prompt
arraignment. The defendant was then
informed that he was a suspect in a murder.
The
defendant showed no reluctance to speak with the officers and denied his
involvement in the murder. During the
interview, which lasted between an hour and one hour and fifteen minutes, the
defendant acknowledged that he had been wearing particular clothing at the Bay
State Medical Center (at an apparently critical time) on July 10, 1994, and
that that clothing was at his father's house.
The defendant was booked and taken to the Springfield District Court
where he was arraigned after 2 P.M.
The judge found that the police delayed the
defendant's arraignment "for some five hours for the sole purpose of
interrogating him about the shooting death." She ruled that the police violated Mass.R.Crim.P. 7(a)(1) and that suppression was required of
any statement made during the period in which the police unreasonably delayed
arraignment.
After
questioning the defendant, the two Springfield detectives went to the home of
the defendant's father. The father
authorized a search of a room that his son had used and, aided by the same
Spanish‑speaking officer who had translated at the defendant's
questioning, the father executed a search warrant waiver form. The judge found that the father voluntarily
consented to the search. The officers
seized various [422 Mass. 67] articles of the defendant's clothing, which two witnesses
later said that they had seen in circumstances incriminating the defendant.
The judge
found that the police were able to obtain the defendant's clothes only because
of what they learned during their interrogation of the defendant. She ruled that the clothing and their
subsequent identification should be suppressed as the fruits of the unlawful
interrogation because the police did not prove that this evidence inevitably
would have been discovered by lawful means.
A single
justice of this court allowed the Commonwealth's application for leave to
appeal the orders allowing the suppression of the defendant's statements to the
police and of the evidence obtained as a result of those statements. The appeal was entered in the Appeals Court
and we transferred it to this court on our own motion.
[1] The
defendant alleged various constitutional arguments in support of his motion to
suppress his statements. The motion
judge, however, relied on no constitutional principle in allowing the motion to
suppress. (FN1)
There is
no doubt that the Springfield police officers knew that the defendant was
entitled to be arraigned promptly.
Before questioning him, they presented him with a document entitled
"Arraignment Warning," which an officer interpreted in Spanish and
the defendant signed. The document, the
substance of which is set forth in the margin, (FN2) advised the defendant of
his right to prompt arraignment before a judge if [422 Mass. 68] court was in
session (or alternatively at the next session) and that, upon arraignment, he
would have an attorney appointed and might be admitted to bail. The police, however, did not tell the
defendant that court was then in session or that he could go to court at that
time (or that he could go to court later if he changed his mind and court was
in session). (FN3)
[2] The motion judge ruled that the effect of
the police violation of rule 7(a)(1) was not diminished by any valid waiver
that the defendant may have made of his rights.
From the judge's supporting citation of Commonwealth v. Parham, 390 Mass. 833, 843, 460 N.E.2d 589 (1984),
and Commonwealth v. Bradshaw, 385
Mass. 244, 258, 431 N.E.2d 880 (1982), we infer that she meant that a waiver of
one right (e.g., Miranda rights) did
not cure a violation of another right (e.g., prompt arraignment). Here, however, the arraignment waiver
directly concerned the very right that the judge concluded had been violated,
and the judge did not decide whether the arraignment waiver was voluntary and
informed. As we stated in Commonwealth v. Rosario, supra at 56,
661 N.E.2d 71, an informed and voluntary waiver of prompt arraignment would
excuse delay in arraigning an arrestee.
[3] We
need not send the case back for further findings concerning the arraignment
waiver because we conclude that the police questioning within six hours of the
defendant's arrest, and his prompt arraignment once the questioning ended,
conform to the requirements that we have established today in Commonwealth v. Rosario, supra. Those requirements are appropriately applied
in the circumstances of this case.
Although[422 Mass. 69] the voluntariness of the defendant's waiver of his Miranda
rights and the informed voluntariness of his
statements are issues that remain undecided by the motion judge, the voluntariness of the arraignment waiver is no longer
important. No arraignment waiver was
needed.
There is
no reason to distinguish between police questioning about a crime as to which
charges are pending against an arrestee and questioning about a crime as to
which no complaint has yet been issued.
We are not aware of any jurisdiction that has made such a
distinction. (FN4) In each situation, there has to have been a
determination of probable cause to support the arrest. The facts that a magistrate rules that there
was probable cause to issue process on a criminal complaint, and that only the
police determine probable cause when there is no arrest warrant, does not
require differing treatment. In each
instance, an arrestee's willingness to waive his rights voluntarily after
disclosure of those rights is sufficient protection when coupled with the six‑hour
limit. An arrested person may prefer to
talk to the police rather than be subjected immediately to an arraignment in
open court. See Commonwealth v. Hodgkins, 401 Mass. 871,
877, 520 N.E.2d 145 (1988). If an
arrestee does not want to talk to the police, he or she can say so, and
arraignment should follow as promptly as is reasonably possible. The process of questioning may persuade the
police that there is no basis for criminal charges. Moreover, if the police could not in any
circumstance question a person who has been arrested pursuant to a warrant, the
police would be encouraged to forsake obtaining warrants and to arrest the
person for questioning without a warrant.
Such a practice would inhibit the use of the desirable process of
obtaining a magistrate's independent decision that probable cause exists.
[4] In any
event, questioning during the six‑hour period must be based on (1) the
arrestee's proper waiver of his or her Miranda[422 Mass. 70] rights, (2) the arrestee's free, intelligent,
and voluntary decision to speak to the police, and (3) notice to the arrestee
of the right to use the telephone.
[5]
Because detaining the defendant prior to arraignment was not unlawful, the
ground no longer exists on which the motion judge suppressed the clothing
seized at the home of the defendant's father and the identifications of that
clothing. The judge found that the
father validly consented to the search of a bedroom in the home. The defendant was not living with his
parents at this time, but kept some belongings there. The father considered the bedroom to be his
son's bedroom, although his son's former girl friend stayed in the room. Assuming, but not deciding, that the motion
judge was correct in ruling that the defendant had a possessory
interest in the bedroom, the father's consent was sufficient to make the warrantless search valid.
See Commonwealth v. Wahlstrom, 375 Mass. 115, 117, 375 N.E.2d 706 (1978);
Commonwealth v. Martin, 358 Mass. 282, 287‑288, 264 N.E.2d 366
(1970); 3 W.R.La
Fave, Search and Seizure § 8.4(b) (2d ed. 1987). Hence, any challenge to the search,
independent of the asserted unlawfulness of the police questioning of the
defendant, fails.
The
question of the voluntariness of the defendant's
statements and of his waiver of his Miranda rights remains unresolved. The order of the Superior Court allowing the
defendant's motion to suppress is reversed.
The case is remanded to the Superior Court for further consideration of
the motion to suppress consistent with this opinion.
So ordered.
LIACOS, Chief Justice (concurring in part).
In this
companion case to Commonwealth v.
Rosario, 422 Mass. 48, 661 N.E.2d 71 (1996), the court finds that the
defendant's statements to police occurred within six hours after arrest, and
therefore fall within the safe harbor of
Rosario. I agree with that result
and reasoning. I do not, however, join
the court's dicta regarding waivers of prompt presentment, for the reasons
discussed in my dissenting opinion in
Rosario, supra at 58, 661 N.E.2d 71.
O'CONNOR,
Justice (concurring).
I agree
with the court's order reversing the order of the Superior Court allowing the
defendant's motion to suppress and I agree with the court that the case should
be remanded to the Superior Court for [422 Mass. 71] further consideration of
the motion to suppress consistent with the court's opinion. I write separately only to register my
agreement with the Chief Justice regarding waivers of prompt presentment.
(FN1.) At oral argument, but at most only
inferentially in his brief, the defendant contended that, because both a
complaint charging murder and a warrant for his arrest had been issued, he had
a constitutional right to counsel. Hence,
police questioning in the absence of counsel required suppression of his
statements. There is no authority for
the proposition that the right to counsel under the Sixth and Fourteen
Amendments to the Constitution of the United States or under art. 12 of the
Massachusetts Declaration of Rights arises prior to arraignment, even though a
criminal complaint and an arrest warrant have issued. See
Commonwealth v. Jones, 403 Mass. 279, 286, 526 N.E.2d 1288 (1988), citing Kirby v. Illinois, 406 U.S. 682, 688,
92 S.Ct. 1877, 1881‑82, 32 L.Ed.2d 411 (1972);
Commonwealth v. Smallwood, 379 Mass. 878, 884, 401 N.E.2d 802
(1980).
(FN2.)
"ARRAIGNMENT WARNING
"1. You
have a right to a prompt arraignment, that is, to be brought immediately to be
arraigned in front of a judge if the district court is in session or, if not,
at the next session.
"2.
At such arraignment, an attorney will be appointed and you may be admitted to
bail.
"3.
Do you understand that you have a right to a prompt arraignment?
"4.
Having this right in mind, do you wish to talk to me now?
"__
YES, I wish to talk to you now and waive my right to a prompt arraignment.
"Signature_____________Date
and Hour______
"Signature"Witness______________________
"Signature of Police
Officer_____________"
(FN3.) Our quotation of the arraignment
warning, in note 2 above, is not an endorsement of the form. In a situation in which no judicial
determination of probable cause to arrest or to hold a defendant has been made,
reference to the right of an arrested person to obtain such a determination may
be appropriate. The statement that an
attorney will be appointed may be true as a practical matter, but S.J.C.Rule 3:10, as amended, 416 Mass. 1306 (1993),
requires that counsel be offered only to an indigent defendant. It may be that an adequate warning should
include the time at which the defendant could next be taken to court.
(FN4.) The Model Code of Pre‑Arraignment
Procedure, in authorizing post‑arrest questioning, makes no distinction
between persons arrested pursuant to a warrant and those arrested without a
warrant (although the permissible period of screening is shorter when a warrant
has been issued). Model Code of Pre‑Arraignment
Procedure, Part 1B Commentary § 130.2 at 333 (Proposed Official Draft,
1975). If there were a bar on
questioning once an arrest warrant had issued, "[o]ne
consequence of such a system may be to discourage the use of warrants. Furthermore, a short period of detention for
investigation may be justified in some cases even though the person has already
been charged." Id.