|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Tisserand,
5 Mass.App.Ct. 383 (1977)
Appeals Court of Massachusetts, Middlesex.
Argued
Decided
Dyanne Klein Polation,
Peter W. Agnes, Jr., Asst. Dist. Atty. (James W. Sahakian,
Sp. Asst. Dist. Atty., with him), for the Commonwealth.
Before [5
Mass.App.Ct. 383]
HALE, C.J., and KEVILLE and
GRANT, JJ.
KEVILLE, Justice.
The
defendant appeals under G.L. c. 278, ss 33A‑‑33G, from a conviction of armed robbery
after a jury trial. The defendant
assigns as error the denial of his motion to suppress physical evidence and
oral statements made by him. The
evidence presented at the hearing on the motion to suppress may be summarized
as follows.
At
approximately
Having
followed the car, the police cruiser pulled up behind it and an officer
approached the driver's side of the [5
Mass.App.Ct. 385]
car. As he did, he noticed that the passenger in the
front seat, the defendant, was 'slouched down' with his right hand between his
legs about a foot from the car floor. He
also recognized the driver as 'a girl being in and out of the courts down in
Boston.' He asked her for her license
and registration. She took the license
from a brown shoulder bag and the registration from the glove compartment of
the car which was not registered in her name.
A check revealed that there were two outstanding warrants for the
driver. She was arrested. When questioned about the brown shoulder bag,
she denied owning it. The contents of the
bag included identification cards, checks and checkbooks belonging to different
persons. The officer then questioned the
defendant and ran a warrant check on him.
After receiving information that there was a warrant outstanding against
him for a parole violation, the officer arrested him, patted him down,
handcuffed him and placed him in the cruiser.
After the
defendant and the woman driver had been arrested and placed in the police
cruiser, the police called for a tow truck to remove the car from its double
parked position on Dartmouth Street.
Before the car was towed, the police conducted an inventory search pursuant
to normal police procedure. Under the
front passenger seat they found a loaded 'white metal' revolver, a yellow ski
hat and a bag bearing the name of the robbed bookstore and containing money and
torn checks. On the back seat, police
found a snorkel jacket (later identified by one of the victims of the bookstore
robbery as being similar to that worn by the robber) which had a white glove in
one of the pockets. The defendant was
taken to District 4 police station in Boston.
The Boston police notified the Cambridge police that they had found
these items and the Cambridge police sent two detectives to District 4 to
question the defendant. Statements which
he made to the detectives led to his indictment for the robbery of the
Cambridge bookstore. The following day
it was discovered that the information received by the arresting officer via [5 Mass.App.Ct.
386] radio at the scene of the
arrest was erroneous, and that the warrant for the defendant's arrest had in
fact been rescinded.
Prior to
his trial in the Superior Court for the bookstore robbery, the defendant moved
to suppress the physical evidence seized from the car in which he was a
passenger, evidence taken from his person and any statements obtained from
him. After a hearing, the judge denied
the motion. The defendant excepted to
the judge's refusal to suppress this evidence and has appealed from both of
these rulings.
[1] 1. The
denial of the motion to suppress the physical evidence seized from the
automobile in which the defendant was a passenger was proper. The defendant contends that the search of the
automobile was invalid having been conducted without a valid warrant and not
being covered by any recognized exception to the warrant requirement. But the judge found that the police had acted
reasonably in having the vehicle towed because it was double parked and was
obstructing traffic in a congested area of the city at a busy time of day. He further found that the search was
conducted pursuant to routine police procedure followed in Boston which
required that police officers make an inventory search of a car before
permitting it to be towed in order to secure any items of value that might be
in the vehicle. The defendant claims
that the search cannot be justified as a routine inventory search because the
officer who searched the car admitted that among the reasons for the search of
the vehicle was his suspicion that he would find evidence of a crime.
While it
is true that the United States Supreme Court in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct.
3092, 49 L.Ed.2d 1000 (1976), indicated that an inventory search would not be
upheld if there were a 'suggestion . . . that this standard procedure' was a
pretext concealing an investigatory police motive (id. at 376, 96 S.Ct. 3092), it is also true that taking an inventory of
the contents of a car about to be towed or impounded is a reasonable procedure;
and the fact that the searching officer may have harbored a suspicion that evidence
of [5 Mass.App.Ct.
387] criminal activity might be
uncovered as a result of the search should not vitiate his obligation to
conduct the inventory. We agree with the
finding and ruling of the judge that the search was reasonable and that the
items seized as a result of the search were properly admitted.
2. The
denial of the motion to suppress the defendant's oral statements was
proper. As we have already related in
part, as a result of information received from the Boston police, two Cambridge
detectives visited the defendant in his cell at a Boston police station. After reading the Miranda warnings to the
defendant, one of the detectives showed him the items found under the seat of
the car (the loaded revolver, the bookstore bag and a yellow ski hat) and asked
him if he wanted to talk about the robbery.
The defendant said that he understood his rights and that he had
committed the robbery alone. Although
the detective noticed that the defendant appeared to be under the influence of
a drug, he found him to be coherent in both speech and general behavior. In denying the motion to suppress, the court
found that the statements made to the Cambridge police were freely and
voluntarily made and that the defendant knowingly and intentionally waived his
right to remain silent; the court ruled that the statements were therefore
admissible.
The
defendant argues: (a) that the statements were involuntary in that he had not
waived his right to remain silent and (b) that his statements were tainted
fruits of his unlawful arrest.
Voluntariness.
[2][3] The
defendant claims that there was insufficient evidence to prove that his
statements to the Cambridge police were voluntary, because there was no
explicit waiver and he was not asked to execute a written waiver. The defendant responded to the police on two
occasions that he understood his Miranda rights. Moreover, it has been determined that the
Constitution does not require that there be a written waiver in order for a
court to find that an individual has knowingly and intelligently waived his [5 Mass.App.Ct.
388] Miranda rights. 'The absence of a written waiver is not
crucial if . . . it can be found that in the circumstances a knowing and
intelligent waiver took place.'
Commonwealth v. Roy, 2 Mass.App. 14, 20, 307
N.E.2d 851, 854 (1974).
The judge
here, upon examining the circumstances, found that the defendant had been
properly advised of his Miranda rights.
He was asked if he understood those rights and he responded
affirmatively. He was also informed that
all questioning would cease whenever he might wish. The defendant then agreed to talk to the
police about the robbery and admitted that he had committed it. 'The trial judge is in a far better position
to determine the existence of a knowing, intelligent and voluntary waiver than
is an appellate court; his findings are entitled to 'substantial
deference.' United States v. Springer,
460 F.2d 1344, 1348 (7th Cir. 1972) (cert. den., 409 U.S. 873, 93 S.Ct. 205, 34 L.Ed.2d 125 (1972)).' Commonwealth v. Roy, 2 Mass.App.Ct.
at 19, 307 N.E.2d at 854.
[4] The
defendant suggests that he may have been incapable of making a knowing and
intelligent waiver as there was evidence that he was under the influence of
drugs. The defendant offered no
testimony at the pretrial hearing to show his lack of capacity other than the
observation of the arresting officer that he appeared to be 'under the
influence of narcotics, or a pill.'
Compare Commonwealth v. Fielding, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑ ([FNA]),
353 N.E.2d 719 (1976). It cannot be said
that the defendant's appearance or behavior was such that his interrogators
should have discerned, and the judge should have found, that he could not
comprehend the significance of his actions.
See Commonwealth v. Roy, supra; United States v. Young, 355 F.Supp. 103, 108 (E.D.Pa.1973). The defendant made no request for medical
attention, nor did he indicate any mental or physical ailment. Contract United States v. Watson, 469 F.2d 362 (5th Cir. 1972). The judge found that the defendant, although
under the influence of some unknown narcotic, did understand the questions
which were being put to him and that (he) fully understood what his rights were
in connection with the interrogation and that he voluntarily waived his right
to remain silent.' Having examined [5 Mass.App.Ct.
389] the totality of the
circumstances leading up to the waiver, including the conduct and
characteristics of the accused and the details of the interrogation
(Commonwealth v. Daniels, 336 Mass. 601, 606‑‑607, 321 N.E.2d 822
(1975)), we hold that there was ample evidence to support the judge's
conclusion that the defendant validly waived his right to remain silent. Commonwealth v. Johnson, ‑‑‑
Mass.App. ‑‑‑, ‑‑‑
‑ ‑‑‑ ([FNB]), 326 N.E.2d 355
(1975).
Fruits of the Poisonous Tree.
[5] As
recited earlier in the opinion, the arresting officer had learned subsequent to
the defendant's interrogation by the Cambridge police that the warrant for his
arrest had in fact been rescinded. The
defendant argues that his statements to the Cambridge police 'were so intimately
connected to (his) unlawful arrest that they should have been viewed as its
inadmissible fruits.' The defendant
claims that the standards articulated in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), require the suppression
of his statements. In reversing the
defendant's conviction in Brown, the Supreme Court examined the problem of the
admissibility of a confession obtained after a warrantless
arrest without probable cause. In
rejecting the State's contention that the giving of Miranda warnings alone was
sufficient to render the confession admissible, the Court stated: 'The Miranda
warnings are an important factor, to be sure, in determining whether the
confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be
considered. The temporal proximity of
the arrest and the confession, the presence of intervening circumstances, . . .
and, particularly, the purpose and flagrancy of the official misconduct are all
relevant. . . . the voluntariness of the statement is
a threshold requirement.' Brown, supra,
at 603‑‑604, 95 S.Ct. at 2261. The Court then found that the illegality of
Brown's arrest had a 'quality of purposefulness' and that the arresting
officers were aware of its impropriety and were using it for investigatory
purposes.
The
factors enunciated in Brown were recently applied by the Supreme Judicial Court
in upholding the admission [5 Mass.App.Ct. 390]
of a confession obtained after a defendant had been arrested on a warrant found
to lack probable cause. In Commonwealth
f. Fielding, 371 Mass. at ‑‑‑[FNc],
353 N.E.2d at 730, the court held that '(t)he breach of the Fourth Amendment
was not a deliberate one committed by the police with a purpose to facilitate
the procuring of a statement from Fielding.
Significantly, the police did not proceed on their own, but sought and
obtained a warrant. They lacked
sufficient information to measure up to probable cause, but their misbehavior
cannot be called flagrant. In these
circumstances, outlawing Fielding's statement would
hardly have served an important demonstrative purpose of deterring the police
from future malfeasance.' As in
Fielding, the police in the instant case, at the scene of the arrest, were not
proceeding on their own initiative, but on information received from the police
department computer. Although there was,
in fact, no valid warrant outstanding, the police misbehavior here cannot be
characterized as flagrant. We conclude
that the statements by the defendant were not the result of police exploitation
of an illegal arrest and that the judge was correct in his finding and ruling
that they were voluntary and therefore admissible.
Judgment
affirmed.
(FNA.) Mass.Adv.Sh. (1976)
2290, 2306‑‑2309.
(FNB.) Mass.App.Ct.adv.Sh. (1975) 615, 620‑‑622.
FNc. Mass.Adv.Sh. (1976) at 2312.