|
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.
Supreme Judicial Court of Massachusetts, Hampden.
Argued
Decided
Judith Ellen Pietras, Assistant District Attorney,
for the Commonwealth.
Regina Zupan, Committee for Public Counsel Services,
for defendant.
Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH,
O'CONNOR, GREANEY and FRIED, JJ.
WILKINS, Justice.
We
consider whether the defendant's confessions should be suppressed because,
following his arrest, the police delayed his arraignment until after
questioning that led to his confessions.
The defendant has been charged in six indictments for breaking and
entering in the nighttime and in six indictments for larceny.
A Superior
Court judge suppressed the defendant's confessions to various 1993 burglaries
in
In August,
1993, officers assigned to the
Although
the defendant initially denied that he had committed any burglaries, he later
admitted that he had committed several.
He agreed to go with the police to point out the residences that he had
burglarized. He identified about six
houses, all but one of which were listed in police records of places of
reported burglaries. As to the
exception, inquiry of the occupant disclosed that she had not reported the
burglary. The police returned the
defendant to the police station where, at
The judge
assumed that, even with prompt booking on the previous day, there would not
have been time to arraign the defendant that day. On the other hand, the judge found that at 9
A.M. on the next day, the defendant could have been presented to the court from
which the warrants had been issued.
The motion
judge ruled that the police had violated Mass.R.Crim.P. 7(a)(1), as amended,
397 Mass. 1226 (1986), because on August 26, the second day, they brought the
defendant to the detective bureau for questioning instead of taking him to
court. "I find the conclusion
inescapable that [the officers] deliberately delayed presenting the defendant
at the appropriate court in the hope that they could entice from him a
confession of his responsibility for the series of burglaries [422 Mass. 51] that had been plaguing the Forest Park section of the
city." They knew, the judge said,
that counsel would be appointed to represent the defendant at arraignment and
thereafter the opportunity to obtain a statement would be greatly
diminished. The motion judge allowed the
defendant's motion to suppress his oral and written statements, largely on the
basis of the violation of Mass.R.Crim.P. 7(a)(1). See note 1 above.
The
Appeals Court affirmed. It concluded
that the error concerning the violation of the defendant's right to use a
telephone (G.L. c. 276, § 33A [1994 ed.] ) was not significant because the
incriminating statements were made after the defendant was advised of his right
to use a telephone. The Appeals Court
further concluded, however, that the delay had been "calculated to obtain
an inculpatory statement before the defendant could consult with appointed counsel." The Appeals Court emphasized that there had
been deliberate interference with the right to counsel, "egregious
misconduct which is to be discouraged by strong prophylactic measures,"
citing Commonwealth v. Manning, 373
Mass. 438, 443‑445, 367 N.E.2d 635 (1977). The motion judge, however, did not base his
ruling on the denial of any constitutional right to counsel, and the defendant
has made no such argument. The defendant
argues only that the deliberate police delay in arraignment violated Mass.R.Crim.P. 7(a)(1) and requires
suppression.
[1] Rule
7(a)(1) of the Massachusetts Rules of Criminal Procedure provides that
"[a] defendant who has been arrested shall be brought before a court if
then in session, and if not, at its next session." The rule makes no distinction between a
person who has been arrested pursuant to a warrant and one arrested without a
warrant. The rule does not state when,
during the respective sessions, an arrested defendant must be brought before a
court, nor does the rule specify any consequence of noncompliance. We have said that rule 7(a)(1) is essentially
a codification of Massachusetts case law.
See Commonwealth v. Hodgkins,
401 Mass. 871, 876, 520 N.E.2d 145 (1988).
[2][3] The
police have long had the duty to bring an arrested person before a court as
soon as is reasonably possible. See Keefe v. Hart, 213 Mass. 476, 482, 100
N.E. 558 (1913); Tubbs v. Tukey, 3 Cush. 438, 440
(1849). The purpose of the rule is to
prevent unlawful detention and to eliminate the opportunity and incentive for
application of improper police pressure.
See [422 Mass. 52]
Commonwealth v. Perito, 417 Mass. 674, 680, 632 N.E.2d 1190 (1994), citing Commonwealth v. Cote, 386 Mass. 354,
361 n. 11, 435 N.E.2d 1047 (1982). The
reasonableness of any delay is to be determined by the circumstances. See
Commonwealth v. Perito, supra at 680, 632 N.E.2d 1190; Commonwealth v. Hodgkins, supra
at 876‑877, 520 N.E.2d 145. We
have accepted rulings that an arrest made after court closed for the day,
followed by an arraignment on the next day, did not involve unreasonable delay
and that a confession otherwise properly obtained in the interim need not be
suppressed. See Commonwealth v. Dubois, 353 Mass. 223, 226, 230 N.E.2d 906 (1967);
Commonwealth v. DiStasio, 294 Mass. 273, 284, 1 N.E.2d 189 (1936). We have also accepted a trial judge's
conclusion that delay was not unreasonable when a defendant was arrested on
Sunday night and not presented to court until the next Wednesday.
Commonwealth v. Banuchi, 335 Mass. 649, 656, 141 N.E.2d 835 (1957). In the
Banuchi opinion, the court tolerated delay caused in part by the recording
of the defendant's confession and the investigation of the defendant's
"various stories." Id. at 657, 141 N.E.2d 835. We are not aware of any reported
Massachusetts opinion in which a statement was suppressed because of
unreasonable delay in arraigning a defendant.
[4] This
court has attempted to identify factors that should guide the determination of
the reasonableness of any delay in arraigning a person who has been arrested. We have suggested that the same factors that
should be used in determining the admissibility of a confession made following
an illegal arrest should be considered in cases involving delayed arraignment. See
Commonwealth v. Sylvia, 380 Mass. 180, 183‑184, 402 N.E.2d 489
(1980), citing Commonwealth v. Fielding,
371 Mass. 97, 113‑114, 353 N.E.2d 719 (1976). These factors are (1) whether Miranda
warnings were given; (2) the
circumstances, including the passage of time between the illegal arrest and the
confession; and (3) the purpose and
flagrancy of the official misconduct.
(FN2) Id.
In the case before us the police gave Miranda warnings; the defendant's confession was made freely,
intelligently, and voluntarily; and he
agreed to drive around the Forest Park section of Springfield to identify
houses that he had burglarized. Apart
from the intentional delay itself, there appears to have been no arguably
official misconduct.
[422 Mass. 53] What happened in this case is not significantly different from
what happens in any case in which police do not take a defendant to be
arraigned at the earliest feasible moment, but rather, after giving Miranda
warnings, interrogate the defendant and obtain a free, intelligent, and
voluntary confession. In this case, the
judge ruled that the police intentionally delayed arraignment in order to
obtain a confession. In Commonwealth v. Fryar, 414 Mass. 732,
610 N.E.2d 903 (1993), however, the defendant, who had been arrested in the
middle of the night, confessed "after the hour when overnight
arrestees are usually taken to the District Court for arraignment and
appointment of counsel." Id. at 743, 610 N.E.2d 903. The defendant argued that common sense
required the conclusion that the delay was a deliberate attempt by the police
to interrogate the defendant without the assistance of counsel. Id. This court accepted what it called the motion
judge's implicit (and unexplained) finding that the police had not delayed the
defendant's arraignment intentionally. Id. (FN3)
The
problem is that every police officer knows that an arrested person must be
arraigned within a reasonable time and, when arraigned, will have a right to
counsel. Any delay for the purpose of
interrogation during a time when the appropriate court is in session involves a
deliberate decision to delay arraignment in the sense in which the motion judge
ruled in this case. The ultimate
question then is whether the police should be allowed to delay arraignment in
order to question a person who has been arrested.
Police,
trial judges, prosecutors, and defense counsel are entitled to as clear a rule
as possible concerning both the right of the police to question an arrested
person and the standard for suppressing statements made by a defendant after
arrest and before arraignment. Of
course, if the defendant did not receive and waive his Miranda rights, or if
the defendant did not make the statements freely, intelligently, and
voluntarily or, if the statements were obtained before he was advised of his
right to use a telephone (see G.L. c. 276, § 33A), the statements must be
suppressed. Yet, as this case and our
cases cited earlier indicate, trial court judges have [422 Mass. 54]
different views on the reasonableness of a delay in arraignment knowingly
undertaken in order to question a defendant.
The reasonableness standard involves a measure of uncertainty and the
likelihood of uneven application in practice.
A rule
that effectively bars all police questioning of an arrestee in circumstances in
which Miranda rights were voluntarily and intelligently waived and the
defendant's statements were free, intelligent, and voluntary and the product of
a rational intellect is unnecessary.
Certainly a voluntary, informed waiver of the right to prompt arraignment
should justify the admission of subsequent statements that are otherwise
admissible. See Commonwealth v. Hodgkins, 401 Mass. 871, 877, 520 N.E.2d 145
(1988) (fully informed of his rights, defendant signed waiver of prompt
arraignment).
We do not favor
a standard that measures the admissibility of an arrestee's statements based on
when the arrest and questioning occurred in relation to when the court is in
session. It is unreasonable to have a
rule that permits interrogation when the court is not in session but bars
interrogation when the court is in session.
Such a rule might well influence when the police would execute warrants
and, if so, we would expect challenges that the police intentionally made an arrest
at a time when court was not in session in order to obtain a confession before
the court opened.
The
Uniform Rules of Criminal Procedure, 10 U.L.A.App. (Master ed. 1987), approved by the National
Conference of Commissioners on Uniform State Laws, provide that a
"detained or arrested" individual must be brought before a magistrate
within six hours (excluding any time between 6 P.M. and 7 A.M.), barring
extraordinary circumstances. Even within
the six hours, presentation may not be delayed for the purpose of questioning
following a waiver of Miranda rights.
See 10 U.L.A.App. Rule 311(b) (Spec.Pamph.1992). Thus, under rule 311(b), if the court is in
session, delay for the purposes of questioning an arrested person is
forbidden. Rule 311(b), however,
inherently permits questioning that does not delay arraignment.
The
American Law Institute's Model Code of Pre‑Arraignment Procedure allows a
brief but identifiable period for questioning an arrested person before
arraignment (or release). See Model Code
of Pre‑Arraignment Procedure § 140.8(4) (Proposed Official Draft
1975). A specific but [422 Mass. 55] arbitrary time limit was adopted in order to be "consistent with
the premise of the Code that police and prosecutors should be explicitly
informed what they are, and are not, authorized to do, rather than being forced
to await a court interpretation of what constitutes 'unnecessary' or 'undue'
delay on a case‑by‑case basis." Id., Commentary on § 130.2
at 334.
[5]
Decades ago, and before Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme
Court developed an exclusionary rule generally rendering inadmissible in a
Federal criminal case a confession made during periods of detention that
violated the prompt presentment requirement of Rule 5(a) of the Federal Rules
of Criminal Procedure. See McNabb v. United States, 318 U.S. 332,
63 S.Ct. 608, 87 L.Ed. 819 (1943); Mallory v. United States, 354 U.S. 449,
77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957).
The Court's rule, known as the
McNabb‑Mallory rule and adopted in the exercise of the Court's
supervisory authority over Federal courts, excluded confessions made when a
person arrested on a Federal offense was not taken "without unnecessary
delay" before a magistrate as rule 5(a) required. See
United States v. Alvarez‑Sanchez, ‑‑‑U.S. ‑‑‑‑,
‑‑‑‑, 114 S.Ct. 1599, 1602, 128 L.Ed.2d 319
(1994). In 1968, Congress responded to
the McNabb‑Mallory rule by
enacting 18 U.S.C. § 3501 (1968).
Section 3501(c) provides that a voluntary confession, made by a person
within six hours following arrest or other detention, "shall not be
inadmissible solely because of delay in bringing such person before a
magistrate." Id. (FN4)
Section 3501(c) thus provides a safe harbor for interrogation during a
six‑hour period (id.), although
there is disagreement among the United States Courts of Appeals as to whether
the McNabb‑Mallory rule still
applies to confessions obtained more than six hours after an arrest on Federal
charges. See United States v. Alvarez‑Sanchez, supra at ‑‑‑‑,
114 S.Ct. at 1605 (Ginsberg, J., concurring).
(FN5)
The
Supreme Court of Pennsylvania has adopted a six‑[422 Mass. 56] rule providing that, although a defendant's
arraignment is unnecessarily delayed, any statement, otherwise admissible, that
the defendant made within six hours of arrest need not be suppressed.
Commonwealth v. Duncan, 514 Pa. 395, 406, 525 A.2d 1177 (1987). "[A] delay of six hours between arrest
and arraignment is an acceptable period of time to accommodate conflicting
interests without creating such a coercive effect so as to violate the rights
of an accused. Therefore, the focus
should be upon when the statement was
obtained, i.e., within or beyond the six hour period. If the statement is obtained within the six
hour period, absent coercion or other illegality, it is not obtained in
violation of the rights of an accused and should be admissible. In keeping with the underlying objectives of
the rule, only statements obtained after the six hour period has run should be
suppressed...." (Emphasis in original.) Id. A Pennsylvania appellate court has held that
any purported waiver of the six‑hour rule executed after the six hours
has passed is not effective. Commonwealth v. Goldsmith, 422 Pa.Super.
191, 197‑198, 619 A.2d 311 (1993).
[6][7][8]
We adopt for the future, with respect to police questioning of an arrested
person, a rule similar to those in the Federal and the Pennsylvania systems
discussed above. 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 his right to be arraigned without unreasonable
delay. This rule will (a) largely
eliminate debate over the reasonableness of any delay, (b) bar admission of a
statement made after the six‑hour period unless there is a waiver of
prompt arraignment, and (c) apply without regard to when either the court is in
session or the arrest made. See Commonwealth v. Davenport, 471 Pa. 278,
287‑288, 370 A.2d 301 (1977). We
will depend on the requirements of Miranda warnings, voluntariness, and the
requirements of G.L. c. 276, § 33A, to protect against unfair or coercive
questioning during the six hours after arrest.
The six‑hour period itself will place an outside limit on any
incentive to question an unwilling arrestee.
If, when arrested, the person is incapacitated because [422 Mass. 57] of a self‑induced disability, such as by the consumption of
drugs, the six‑hour period should commence only when the disability
terminates. Also, if for reasons not
attributable to the police, such as a natural disaster or emergency,
interrogation during the six‑hour period is not possible or must be suspended,
the six‑hour period should be tolled appropriately. It is most important to recognize that, but
for the exceptions just noted, the period of safe harbor questioning commences
on arrest and concludes six hours later without regard to when court is in
session.
[9] We
must confront the separate question whether the motion judge's order to
suppress the defendant's statements should stand. We shall assume, as did the Appeals Court,
that the motion judge's ruling was not influenced by his erroneous view of the
application of G.L. c. 276, § 33A. We
agree with the defendant that this appeal does not implicate any constitutional
right to counsel, as the Appeals Court appears to have thought. We have rejected the idea that all
questioning of an arrested person is forbidden when the appropriate court for
arraignment is in session.
The police
questioning in this case, however, did not occur during the six‑hour
"safe harbor" period after arrest that we have adopted for the
future. The defendant was held overnight
and then for at least five hours while court was in session. On the other hand, the entire process of
questioning concerning the burglaries, the site identification, the preparation
of a written statement, and perhaps even arraignment occurred within a six‑hour
period. The defendant waived his Miranda
rights. He freely, intelligently, and
voluntarily confessed to the crimes with which he is charged. The judge found that the police did not
threaten or coerce the defendant. A
judicial determination of probable cause to justify the defendant's arrest had
already been made (and the arraignment occurred within twenty‑four hours
of the defendant's arrest, see Jenkins v.
Chief Justice of the Dist. Court Dep't, 416 Mass. 221, 619 N.E.2d 324
[1993] ). Thus one reason for the prompt arraignment
rule‑‑unlawful detention‑‑is not involved in this case.
The
questioning about criminal activity only concerned events that had no relation
to the pending assault and battery charges.
In this case, therefore, we need not decide whether there should be a
different rule when a defendant is arrested and questioned concerning a matter
as to which a judicial [422 Mass. 58] magistrate has already found probable
cause and issued a warrant for the defendant's arrest. See, however, Commonwealth v. Ortiz, 422 Mass. 64, 661 N.E.2d 925 (1996).
The proper
disposition of this case turns on whether any police misconduct was
sufficiently flagrant to require suppression as a deterrent against similar
future conduct. Although the Springfield
police obviously delayed arraignment to permit them to question the defendant,
they had little basis to conclude that this conduct was a violation of rule
7(a)(1). In Commonwealth v. Fryar, 414 Mass. 732, 743, 610 N.E.2d 903 (1993),
less than five months before the questioning of the defendant, this court
upheld the denial of a motion to suppress a statement given to the Springfield
police department well after the court was open and the defendant could have
been arraigned. Admittedly, in the Fryar case, there was what we called an
implied finding that there was no intentional delay in the arraignment. Id.
at 743, 610 N.E.2d 903.
However, the factual circumstances of the two cases (as opposed to the
motion judges' conclusions) are not so different that the police conduct in the
case before us can fairly be labeled egregious or flagrant. With a new rule concerning questioning before
arraignment now in place, we see no reason to apply an exclusionary rule in
this case for the purpose of discouraging future improper questioning prior to
arraignment. The arraignment of the
defendant during the first session of the court to which he could have been
brought was not so unreasonable as to require suppression of his voluntary
statements given after he had received Miranda warnings.
The order
of the Superior Court allowing the defendant's motion to suppress is
reversed. An order shall be entered in
the Superior Court denying the defendant's motion to suppress.
So ordered.
LIACOS,
Chief Justice (dissenting).
I agree
with most of the court's discussion of this case. The court has taken an important step in
clarifying the ground rules for custodial interrogation in order to preserve
the prompt presentment required by Mass. R.Crim.P. 7, [422 Mass. 59] as
amended, 397 Mass. 1226 (1986).
(FN1) Law‑enforcement
officials and criminal defendants will now have a clearer rule that should
minimize confusion and litigation. I
disagree, however, with two aspects of the court's opinion.
The court
states, in dictum, that an otherwise admissible statement gathered outside the
six‑hour safe harbor period can be admitted so long as there is an
informed and voluntary waiver of prompt presentment. The court implies that this waiver can occur
even after the safe‑harbor period has lapsed. Such practice will undoubtedly eviscerate the
rule the court announces today. See Commonwealth v. Goldsmith, 422
Pa.Super. 191, 200‑201, 619 A.2d 311 (1993) (waiver after six hours is
inimical to safe harbor of Commonwealth
v. Duncan, 514 Pa. 395, 406, 525 A.2d 1177 [1987] ). It seems highly unlikely that a person in
custody who voluntarily waives the right to remain silent will be unwilling to
provide a complimentary waiver of rule 7 rights. (FN2)
The police could continue questioning an uncooperative detainee beyond
the six‑hour period and, when the detainee finally makes a statement,
obtain both waivers. The incentive to
delay presentment would still exist, and the safe‑harbor rule would do
nothing to promote compliance with rule 7.
If we are to promulgate new rules, we ought not make them hollow from
the outset.
My
disagreement with the court's treatment of waiver goes deeper. I believe that any waiver is antithetical to
the notion of a safe harbor‑‑a bright‑line rule to aid police
and reduce litigation. Any doctrine
allowing waiver of the six‑hour limit to questioning will place a major
additional burden on both [422 Mass.
60] law enforcement and judicial
resources. In many cases involving
admissions or confessions, there will now be two waivers to litigate, not just
one. This sort of proceeding already
consumes a great amount of time and resources, not only in motion practice, but
also because interlocutory appeal is frequently an issue. See G.L. c. 278, § 28E (1994 ed.); Mass.R.Crim.P. 15. The new voluntariness inquiry, addressing the
subtle and complex concept of "presentment," will not produce bright‑line
jurisprudence. While in the short run
the possibility of waiver might seem appealing to the government, the
consequences, when summed over the aggregate of cases, loom large. (FN3)
Perhaps
most importantly, allowing waiver will actually impede many
interrogations. An informed waiver would
require that police explain the right to appear in front of a magistrate at a
particular time. See Commonwealth v. Ortiz, 422 Mass. 64 n. 3, 661 N.E.2d 925
(1996). With that knowledge, a
sophisticated or "experienced" detainee may find it easier to
"wait out" the questioning. Less
experienced criminal defendants would, of course, be at a major
disadvantage. The current law of
"knowing, intelligent, and voluntary" waiver of Miranda rights asks
whether a detainee understands the right to remain silent and the right to
consult with counsel. E.g., Commonwealth v. Bui, 419 Mass. 392, 396‑397,
645 N.E.2d 689, cert. denied, 516 U.S. 861, 116 S.Ct. 170, 133 L.Ed.2d 111
(1995). Yet experience and our caselaw
tell us that even these simple concepts can be difficult for those less
educated, and especially those who do not speak English or come from cultural
backgrounds where procedural rights are not so common. Compare
Commonwealth v. Sim, 39 Mass.App.Ct. 212, 219 n. 6, 654 N.E.2d 340 (1995),
with Commonwealth v. Alves, 35
Mass.App.Ct. 935, 935‑937, 625 N.E.2d 559 (1993). See generally Supreme Judicial Court
Commission to Study Racial and Ethnic Bias in the Courts, Equal Justice 34‑36,
47‑48 (1994). A waiver doctrine
with respect to rule 7 will ask many of those same detainees to make [422 Mass. 61] an informed decision, without advice of counsel, regarding the
right to "presentment" or "arraignment"‑‑rather
unfamiliar concepts to even the educated and native‑born. And attempts to clarify the meaning of those
technical legal terms will likely be of no avail. The rights primarily available at presentment
are the very same rights already provided by Miranda warnings, the right to
remain silent and the right to counsel.
(FN4) If we require the police to
explain presentment, we are simply asking them to repeat Miranda, and we will
have created a new rule that simply grafts an unnecessary and duplicative layer
onto an already complex system of criminal procedure. It would seem more sensible and effective to
accept the view of the Supreme Court of Pennsylvania referring to the safe‑harbor
rule by stating: "[I]t was intended
to interrupt [interrogation] after a reasonable period of time to allow the
suspect to be advised of his custodial rights by an impartial judicial officer,
as opposed to police officials, and in appropriate cases to establish the
conditions of his release pending trial." Commonwealth v. Duncan, 514
Pa. 395, 404, 525 A.2d 1177 (1987), quoting
Commonwealth v. Jenkins, 500 Pa. 144, 148, 454 A.2d 1004 (1982).
For police
to explain that a detainee has a right to a court appearance is accurate, but
unfortunately strongly suggests that the detainee will have to answer at that
time for the crime charged. It would be
very simple for police to gain advantage out of such a "right of the
detainee." The decision to waive
presentment could be framed as a choice between (1) an appearance at which the
detainee will be formally charged (presentment closely followed by arraignment)
and (2) continued cooperation with the police.
The detainee proclaiming innocence would likely choose waiver of
presentment, to avoid formal confrontation with the charges.
Lest this
be seen as a fantasy about the inner workings of the detainee's mind, the facts
of Commonwealth v. Hodgkins, 401
Mass. 871, 520 N.E.2d 145 (1988), are worthy of note. In that case a detainee waived presentment in
order to avoid the publicity that would attend an appearance at the courthouse. Id.
at 877 & n. 6, 520 N.E.2d 145. This
demonstrates that a detainee may want to waive [422 Mass. 62] prompt
presentment for reasons that the police can manipulate. (FN5)
As noted,
the waiver issue is mere dictum in this case.
I do not agree with this dictum.
My second disagreement with the court's opinion directly affects the
result here. The majority finds that this
rule 7 violation does not deserve the suppression remedy because the facts here
are very close to those in Commonwealth
v. Fryar, 414 Mass. 732, 743, 610 N.E.2d 903 (1993).
I
respectfully disagree with the majority's reasoning with respect to remedy. If
Fryar was close to the line of permissible behavior, we should not
thereafter judge against Fryar. That moves the line in the wrong
direction. By way of analogy, we might
in some case admonish a prosecutor for particular remarks in closing argument,
but state that in the context of the over‑all argument there was no
reversible error. I would hope that
after such an admonition we would not compare the next case, with slightly
stronger language used to inflame a jury, against the borderline case. We would instead compare the next set of
facts to entirely proper argument. So it
should be here. In Fryar, we discerned an "implied" finding of the motion
judge that the police did not deliberately delay presentment. Id.
at 743, 610 N.E.2d 903. "Implied"
findings hardly provide a mold from which to cast police procedures.
Law
enforcement officers should be able to rely on our caselaw with clear lines of
demarcation setting forth what is permissible and what is not. But when police decide to test the boundaries,
or engage in some new practice, they should reasonably rely on the rule itself,
not the outer boundaries of the judicial gloss.
As the court notes, the requirement of prompt presentment is of long
standing. E.g., Tubbs v. Tukey, 3 Cush. 438, 440 (1849). It is true that in some cases we have held
delays longer than occurred here to not justify suppression. We must, however, judge the police against
the core of the rule. Rule 7 requires
presentment at the next session of court, and the Reporters' Notes make clear
that presentment [422 Mass. 63] should occur as soon as
possible. (FN6) The motion judge made a factual finding,
supported by the record, that the police intentionally delayed presentment, and
the incriminating statements came more than six hours after arrest. (FN7)
Rule 7 itself is a codification of our common law, and I would, in the
common law tradition of remedy, apply the rule we announce here to the case
before us. I would therefore affirm the
motion judge's order suppressing the defendant's statements and fruits
thereof. Accordingly, I dissent.
O'CONNOR,
Justice (concurring).
I agree
with the court's order reversing the order of the Superior Court and requiring
the entry there of an order denying the defendant's motion to suppress. I write separately only to register my
agreement with the Chief Justice's view that an otherwise admissible statement
obtained during the six‑hour safe harbor period should be admissible but
a pre‑presentment statement made thereafter should be inadmissible
regardless of any waiver of prompt presentment.
(FN1.) The motion judge concluded that this
delay was a violation of G.L. c. 276, § 33A (1994 ed.), and based his ruling
suppressing the defendant's subsequent confessions in minor part on the failure
to advise the defendant of his right to use a telephone. The defendant concedes that this ruling was
erroneous because the defendant's statements were not made until after he had
been advised of this right. See Commonwealth v. Jones, 362 Mass. 497,
502, 287 N.E.2d 599 (1972).
(FN2.)
The passage of time between an illegal arrest and a confession may dissipate
the taint of the illegality, but it also points in the defendant's favor when
the question is whether any delay in arraignment was reasonable.
(FN3.)
The only apparent, possibly significant, distinguishing fact between the Fryar case and the one now before us is
that, in the Fryar case, the police
learned at about 7:30 A.M. that the victim had died and that they were dealing
with a homicide. Id.
(FN4.) Most States that have addressed the
admissibility of a confession obtained during an unlawful prearraignment delay
do not have a rule of automatic exclusion.
See, e.g., People v. Kendrick,
56 Cal.2d 71, 85, 14 Cal.Rptr. 13, 363 P.2d 13 (1961); State v. Franklin, 463 A.2d
749, 753 (Me.1983); People v. Cipriano, 431 Mich. 315, 333‑334,
429 N.W.2d 781 (1988); State v. Mendacino, 288 Or. 231, 236, 603
P.2d 1376 (1979). See also Annot., 28
A.L.R.4th 1121, 1131‑1161 (1984).
(FN5.) The
McNabb‑ Mallory rule is not constitutionally based. See
United States v. Alvarez‑Sanchez, supra at 1602. The defendant disavows any argument that his
constitutional right to counsel, or any other constitutional right, was
violated. Nor does the defendant claim a
failure to comply with the requirement of art. 14 of the Massachusetts
Declaration of Rights and the Fourth Amendment to the Constitution of the
United States that there be a prompt determination of probable cause following
a warrantless arrest. See Jenkins v. Chief Justice of the Dist. Court
Dep't, 416 Mass. 221, 619 N.E.2d 324 (1993).
(FN1.) Although the court refers to an
arraignment, I believe the more accurate term for an "initial
appearance" is the word "presentment." See and compare Mass.R.Crim.P. 7(a)(1), as
amended, 397 Mass. 1226 (1986) (initial appearance) and Mass.R.Crim.P. 7(c)(3),
(d), 378 Mass. 856 (1979) ("arraignment"). Although the two proceedings may occur at the
same time, their functions are not identical.
See C. Wright, Federal Practice and Procedure § 71 (Criminal 2d ed. [1982] ).
Note
that at arraignment there is a right to counsel, but presentment is the prior
step at which indigency determinations are made and there has not yet been time
for meaningful consultation with counsel.
(FN2.) There is no requirement for counsel to
advise regarding waiver of prompt presentment.
Under these conditions, comprehension of the esoteric right involved,
and informed waiver, become too improbable.
Of course, detainees could litigate the issue of informed waiver, as
Rosario did in this case. But most such
litigation devolves into a credibility contest between police and the detainee,
and, as here, the detainee loses that fight.
(FN3.) Additionally, the concept of a waiver
is inimical to the policy judgment (as the court seems to admit) found in the
Uniform Rules of Criminal Procedure and the ALI Model Code of Pre‑Arraignment
Procedure. See 422 Mass. 64, 661 N.E.2d
925. As the Goldsmith court put it:
"[T]he six‑hour arraignment rule recognizes the inherently
coercive nature of prolonged custodial police interrogation. In this regard, it affords protection similar
to Miranda, in that the
constitutional right not to be compelled to give evidence against oneself is
served." Commonwealth v. Goldsmith, 422 Pa.Super.
191, 199, 619 A.2d 311 (1993).
(FN4.) This is true even though the right to
presentment is not constitutional in origin.
This common law device primarily effectuates the right to counsel, as
indigency determinations are made, counsel is assigned and terms of bail are
set.
(FN5.) For example, the police could call the
press to the courthouse and then inform the detainee of the impending
publicity. Cf. Boston Herald, Inc. v. Superior Court Dep't of the Trial Court, 421
Mass. 502, 505‑507, 658 N.E.2d 152 (1995) (derivative media right of
access to all arraignments, even in nontraditional settings).
(FN6.) Although we might reject the Reporters'
Notes when we make a judicial determination of the rule's requirements, until
that time reasonable police practice must take the commentary into account.
(FN7.) The entire interrogation of Rosario
occurred outside the safe harbor.
Therefore the precise contours of that haven are not important. Compare
Goldsmith, supra, at 200‑201, 619 A.2d 311 (presentment should occur
within six hours, but whatever statements detainee makes within that period are
admissible) with Pettyjohn v. United
States, 419 F.2d 651, 656 (D.C.Cir.1969), cert. denied, 397 U.S. 1058, 90
S.Ct. 1383, 25 L.Ed.2d 676 (1970) (voluntary statement is admissible if
commenced within period of permissible delay).