Opinion
ESCR2013-01446 001
03-03-2015
Commonwealth v. Philip Chism, Youthful Offender No. 129605
FINDINGS OF FACT AND RULINGS OF LAW ON DEFENDANT'S MOTION TO SUPPRESS
David A. Lowy, Justice of the Superior Court.
INTRODUCTION
The defendant, Philip Chism, moves this court to suppress his statements and certain physical evidence obtained from him due to alleged violations of his rights under the Fourth Amendment and Article 14 of the Massachusetts Declaration of Rights. The defendant further contends that the police unjustifiably exceeded their function as community caretakers when they stopped him on Old Route 1, conducted a pat frisk, unlawfully searched his backpack without the support of a written inventory policy and violated his Miranda rights during interviews at the Topsfield and Danvers police stations. For the following reasons, the defendant's motion is DENIED in part and ALLOWED in part.
FINDINGS OF FACT Report of Missing Student and Teacher
Philip Chism, a fourteen-year-old student at Danvers High School, was reported missing by his mother, Diana Chism, during the early evening of October 22, 2013. A picture of Mr. Chism was disseminated by the Danvers police department via Twitter and Facebook posts. Danvers residents also received a reverse 911 call.
At roughly the same time Philip Chism was reported missing, Colleen Ritzer, a Danvers High School math teacher, failed to arrive home after school. Her parents were concerned because it was not like Ms. Ritzer to deviate from her routine without alerting her parents.
Topsfield Police Locate Philip Chism
October 22, 2013, Topsfield police officer Neal Hovey was at home with his family in Danvers preparing for his midnight to 8:00 a.m. shift. Officer Hovey learned before heading to work that there was a report of a missing fourteen-year-old student from Danvers High School.
Officer Hovey was concerned about the missing teen. He informed dispatch of his intention to check the area of Topsfield that borders Danvers to look for the missing student. Before Officer Hovey left for work, however, he received a call from his dispatcher that led him to believe that the missing student had taken his own life.
On October 23, Officer Hovey was joined on his shift by one fellow officer, Joseph DeBernardo and Dispatcher Joseph Newton. The dispatcher from the previous shift, Larry Nestor, called the Topsfield police station to report having seen a black male walking on Old Route 1 in Topsfield on the highway close to the tree line. Upon receiving this information, Officers Hovey and DeBernardo responded to the area of the report. The Topsfield Police have a consistent policy of checking on people they observe walking on Old Route 1 to make sure that the person is safe and to offer transportation to a safer location.
The Topsfield police station is located on Old Route 1, north of Danvers. Officer Hovey, in uniform and operating a marked police cruiser, drove south out of the police station toward the area of Salem Road on Old Route 1. Approximately .2 miles from the Topsfield police station, he observed an individual walking north on the southbound lane of the road. This area of Old Route 1 is on a hill with the incline on the southbound side. The area is devoid of light from any businesses. The few houses in the area are set well off the road. No street lights illuminate the area. This area of Old Route 1 is unsafe for walking. The individual was on a little bridge that further narrowed the already narrow and darkened highway. There is no shoulder on the bridge.
Officer Hovey did a three-point turn in his police cruiser and parked in the middle of the road. The time was approximately 12:28 a.m. Officer Hovey activated his blue emergency lights for his own safety and the safety of the driving public. The speed limit in the area is 45 miles per hour. Southbound drivers would only see the police cruiser after coming up the incline.
Officer Hovey notified the station of his location and then exited his cruiser to cross the street. The individual, identified at the hearing on the motion to suppress as the defendant, Philip Chism, stopped in unison with Officer Hovey's cruiser. Officer Hovey observed the defendant to be wearing shorts, a zip-up sweatshirt, black knee socks and sneakers. The defendant's manner of dress seemed to Officer Hovey to be inappropriate considering the temperature was in the mid-forties.
Officer Hovey asked the defendant where he was going. The defendant responded: " no where." Officer Hovey then asked the defendant where he was coming from. The defendant responded: " Tennessee." Officer Hovey, once again, asked the defendant where he was going. The defendant, again, responded: " no where." During this exchange the defendant continued to look straight ahead as if Officer Hovey was not there.
As Officer Hovey approached the defendant he did not believe that the defendant was the missing juvenile. Indeed, until the defendant said he was " Philip Chism" three to five minutes later, Officer Hovey thought that the defendant was in his late teens or early twenties. The defendant was taller than Officer Hovey. The defendant's hands were in his sweatshirt pockets. He was also carrying a backpack over his shoulders.
Officer Hovey asked the defendant where he lived. The defendant responded that he had no address and had been walking for days. The defendant did not look disheveled. Officer Hovey then asked the defendant if he had identification on him. The defendant responded: " no." The lighting was such that Officer Hovey could not determine whether the defendant had any bulges or hard objects on him.
Officer Hovey then performed a pat frisk of the left front pocket of defendant's shorts. Unbeknownst to Officer Hovey, Officer DeBernardo had just arrived on scene at the time of the pat frisk. When Officer DeBernardo first arrived, Officer Hovey was already speaking to the defendant. Before exiting his cruiser, Officer DeBernardo radioed the station, maintained traffic flow, and only then approached the defendant and Officer Hovey.
Officer Hovey felt a hard piece of plastic in defendant's left pocket that felt to the officer to be an identification or a credit card. Officer Hovey then checked defendant's right pocket and felt a two-inch smooth hard oblong object. To avoid escalating the situation, Officer Hovey stepped back to await Officer DeBernardo.
When Officer DeBernardo first arrived, Officer Hovey was already speaking with the defendant. Officer Hovey did the pat frisk after Officer DeBernardo's arrival, but before Officer Hovey realized that Officer DeBernardo was present. Officer DeBernardo, upon arrival, had activated his blue lights, overhead take-down lights and spotlight to illuminate the area.
Officer DeBernardo observed the defendant repeatedly putting his hands in his sweatshirt. Officer DeBernardo then asked the defendant to take his hands out of his pockets and asked what the defendant had in his backpack. The defendant responded: " survival gear." Officer DeBernardo then took the backpack.
While traffic was sporadic, passing cars were traveling approximately 45 mph. Officer DeBernardo asked the defendant to come off the roadway. He escorted the defendant to the other side of the road between the two cruisers. The defendant was still not making eye contact with the officers. He appeared to Officer DeBernardo to be in " kind of a long-distant stare."
Officer Hovey asked the defendant to remove the contents of his pockets and place them on the trunk. The defendant complied and removed a rock and a driver's license, insurance card, and credit cards, all in the name of one " Colleen Ritzer." When the officers observed these items they were without information concerning Ms. Ritzer or a missing teacher from Danvers High School.
Officer Hovey then asked the defendant his name. The defendant responded: " Philip Chism." Both officers recognized his name and were immediately " elated" at having found the missing teen. Officer Hovey then went into what he described, and the court credits, as a " parent mode." He called the Danvers Police Department on his cell phone to confirm the name of the missing teenager. The time was just before 12:35 a.m.
Officer Hovey then asked the defendant where he got the credit card. The defendant responded that he found them at " Stop and Shop." The officers, knowing that there was no " Stop and Shop" in Topsfield, asked which " Stop and Shop." The defendant replied that he did not know. Officer Hovey asked where he had obtained the other identification. The defendant responded: " from her car."
Defendant Transported to Topsfield Police Department
The Danvers police requested that Topsfield officers bring the defendant to the Danvers police station. The Topsfield officers were unable to comply since only two officers were on duty. Officer DeBernardo asked the defendant if he would get into the back of the cruiser to get warm and accompany them to the police station. The defendant responded: " okay."
The defendant was placed, uncuffed, into the back of Officer Hovey's cruiser. In transporting the defendant to the police station, the officers also considered information they possessed concerning a possible larceny. The officers, however, would have brought the defendant back to the Topsfield police station absent evidence of the larceny.
The defendant arrived at the Topsfield police station at 12:41 a.m. The defendant was escorted up a steep staircase into the station and brought to the booking area. The booking room is about twelve by twenty feet, well-lit, with a couple of desks and a wooden bench. The defendant would not have been able to see the jail cells from where he was sitting. He was not handcuffed and the officers provided him with blankets because he was shivering.
On October 23, 2013, Topsfield police department had a written policy, " Handling Juveniles, " that refers to the Topsfield police department's protocol entitled, " Detainee Processing." While both policies were admitted into evidence and speak for themselves, the " Handling Juveniles" policy provides that status offenders, including runaways, are to be held in " non-secure custody" and may be " held only long enough to complete identification, investigation and processing and then released to a parent or guardian . . ." The " Detainee Processing" policy governs inventory searches of detainees. It provides that all outer clothing and packs, bags, or other containers brought in as personal property be searched as part of the inventory. This requirement applies to closed containers. Specifically, the " Detainee Processing" policy states that " any container or article found on the detainee's person or carried by the detainee shall be opened and its contents inventoried."
Accordingly, it is the routine practice of the Topsfield police department that when they separate property from an individual they conduct a general inventory and have the individual sign the inventory sheet to reflect its accuracy. The " Handling Juvenile" policy calls for the processing of juveniles who are at the station, even if they are not detainees.
The defendant's backpack was placed on the counter. Officer Hovey asked if there was anything dangerous in the backpack that the officer should know about. The defendant responded: " yes." Officer Hovey was concerned; he put gloves on and starting removing the contents of the backpack. The first item removed was a purse containing numerous items, including female underwear. Also inside the purse was a box cutter with a protruding blade. Officer Hovey observed a red, brown substance covering most of the box cutter. Officer Hovey asked: " whose blood is this?" The Defendant responded: " it's the girl's." At the time Officer Hovey asked this question, they had no information concerning Ms. Ritzer or an " injured girl."
Officer Hovey then left the room and called the Danvers police department and on two separate occasions spoke to Captain Patrick Ambrose. Captain Ambrose told Officer Hovey that the Massachusetts State Police were coming to pick up the defendant and not to talk to the defendant. From that point on, Officer Hovey did not ask the defendant any further questions. The calls between Officer Hovey and Captain Ambrose occurred at approximately 12:50 a.m.
When Officer Hovey had left the room to make the call to Danvers police department, Officer DeBernardo remained in the room and asked the defendant if he knew where the girl was. The defendant responded: " she's buried in the woods." Officer DeBernardo then asked if they could still help her. The defendant responded: " no." The time was approximately 12:56 a.m. Officer DeBernardo then read the defendant his Miranda warnings from a card. The defendant indicated that he understood his rights and that he wanted to speak to Officer DeBernardo. The defendant signed the form. The Topsfield officers made no attempt to find an interested adult to talk to the defendant concerning his Miranda rights.
Officer DeBernardo was in the presence of defendant the entire time the defendant was at the Topsfield police department. Officer DeBernardo noticed that the defendant had brown-reddish stains on the sleeves of his sweatshirt and a ski mask that was around his neck. Officer DeBernardo seized some of the defendant's clothes and his sneakers.
After questioning of the defendant ceased, the defendant asked Officer Hovey if he was going to get his shoes back. Officer Hovey responded: " no." The defendant then asked for something to eat and drink, and Officer Hovey responded: " not at this time."
Members of the Massachusetts State Police, including Sergeant O'Connor, arrived to pick up the defendant approximately an hour after the defendant arrived at the Topsfield police department. During that hour the defendant remained on the wooden bench uncuffed with at least one officer observing him at all times. Officer Hovey informed Sergeant O'Connor of the details of the Topsfield police department's interactions with the defendant. Sergeant O'Connor then asked Officer DeBernardo to handcuff the defendant behind his back.
Police Investigation at Danvers High School Prior to the Discovery of Ms. Ritzer's Body
Steven Baldassare is a Danvers police officer assigned to Danvers High School as the " student resource officer." On the evening of October 22, 2013, Officer Baldassare was informed by his supervisor that a Danvers High School student had been reported missing.
Sometime roughly around 10:30 p.m., Officer Baldassare arrived at Danvers High School to review video surveillance in the hope of assisting in the search for the missing teen. Upon arrival, Baldassare spoke by telephone to Carolyn Quigley, a parent of a student. She informed him that she had seen a student she believed to be Philip Chism changing his clothes outside the academic wing of the school by the student parking lot near the " A" and " B" wing of the school at approximately 3:00 p.m.
Danvers High School Principal Susan Ambrozavitch, who was also at the school, informed Officer Baldassare that Colleen Ritzer was also missing. Officer Baldassare instructed Danvers police officer Stephanie Wennerberg to check the exterior of the building near the student parking lot where Ms. Quigley had indicated having seen the defendant.
Officer Baldassare then went to his office to review video surveillance on his computer, but the computer would not boot up. The video surveillance system had only recently been installed as part of the renovation of Danvers High School. The system includes hundreds of cameras and sifting through the video is arduous.
While the system was rebooting, Officer Baldassare went to a wooded area near a cross-country trail off the student parking lot to meet with Captain Ambrose and Officer Wennerberg. Officer Wennerberg informed them that police officers had found Ms. Ritzer's bag, a recycling bin, some shoes, clothing in some brush near the cross-country path and other items belonging to Ms. Ritzer. This wooded area is near the student parking lot and the " A" wing of the school. The officers observed what appeared to be blood in the recycling bin. The time was shortly after 11:00 p.m. Officer Wennerberg had also observed blood in the second-floor women's bathroom, near Ms. Ritzer's classroom.
While still in the parking lot, Officer Baldassare received a telephone call from a former student, Joseph Mello. The time was approximately 11:15 p.m. Mr. Mello reported that he had seen Philip Chism earlier in the day in a corner at Danvers High School. He also saw three or four other " kids" on bicycles outside the academic wing. Mr. Mellow did not know whether these other " kids" were connected with the missing student.
Danvers police sergeant Philip Tansey arrived on scene at approximately 11:45 p.m. He directed Officer Baldassare to return to his office to view the video surveillance. As Officer Baldassare viewed the video, he had access to the Twitter and Facebook posts the Danvers police department had previously disseminated of Mr. Chism. Officer Baldassare made the following observations of the surveillance video: (1) Ms. Ritzer and another teacher talking in the hallway at approximately 2:30 p.m.; (2) Ms. Ritzer leaving her classroom and walking down the hallway; (3) moments after Ms. Ritzer left the classroom, a male party fitting the description of Philip Chism leaving the same classroom and putting a hood over his head; (4) Ms. Ritzer entering the female bathroom; (5) an individual Officer Baldassare believed to be Philip Chism entering the female bathroom with a hood over his head; (6) moments later an individual dressed somewhat differently than Mr. Chism coming out of the female bathroom wearing a mask; (7) the absence of video depicting Ms. Ritzer leaving the bathroom; (8) a male party entering and leaving the bathroom with a recycling bin, exit the school with the bin, and walk in the direction of the cross-country path. As discussed infra , Officer Baldassare called Detective Robert Sullivan at the Danvers police station at approximately 2:30 a.m. to inform him of the content of the video surveillance. Detective Sullivan, who was viewing an interrogation of the defendant, relayed this information to Trooper Buccheri.
Sergeant Tansey ordered a canine search, radioed for the Danvers fire department to bring its thermal imaging unit to try to pick up a heat signature to find a living person, and notified the on-call Massachusetts state police detective assigned to the Essex County District Attorney's Office (" CPAC"). Sergeant Tansey also requested the assistance of the Massachusetts state police Air Wing, which had the capability of providing illumination and thermal imaging far surpassing the Danvers fire department's technology. Additional officers were called in early for their morning shift and emergency medical technicians (" EMTs") were called to Danvers High School. Meanwhile, the Danvers police department was also trying to ping the cell phones of both Ms. Ritzer and the defendant.
Trooper Buccheri was the on call CPAC detective the evening of October 22, 2013. At approximately 12:15 a.m., he received a call through Massachusetts State Police headquarters to contact the Danvers police department concerning a missing teacher and student from Danvers High School and the discovery of evidence of violence at the school. Trooper Buccheri spoke from his home to Danvers police Detective Robert Sullivan who provided him with additional information.
Trooper Buccheri arrived at Danvers High School at about 12:30 a.m. on October 23. Upon arrival, he entered the wooded area off the cross-country trail and observed blood inside a large recycling bin, clothes suspended on some brush with blood stains, and a pair of sneakers. With the aid of a flashlight, Trooper Buccheri searched the woods and observed a pair of white gloves with stains on them in the wooded area near the path, which is referred to as the " rail trail."
Shortly after making these observations, Trooper Buccheri was in the parking lot of Danvers High School on his cell phone briefing Detective Lieutenant Norman Zuk, the commanding officer of the Essex County District Attorney's Office, when he was notified that Topsfield police department had located the defendant on Old Route 1.
Upon being briefed, Lieutenant Zuk went to Danvers to observe the scene and coordinate the investigation. He spoke to Sergeant Tansey from the Danvers police department and Trooper Buccheri and then went to the Danvers police station. Trooper Buccheri also went to the Danvers police station.
After conferring with Lieutenant Zuk, Captain Ambrose called the Topsfield police department and told Officer Hovey not to question the defendant. Sergeant Tansey called Diana Chism, the defendant's mother, and informed her that Philip Chism had been found and asked her to go to the Danvers police station.
At approximately 2:00 a.m., Lieutenant Michael Holleran, Kelly King, Emily Despres and other members of the crime scene services section of the Massachusetts State Police arrived at Danvers High School. Lieutenant Holleran and other members of the crime scene services, including Kelly King and Emily Despres, made observations at the scene before, during, and after the defendant's statement at the Danvers police station. Lieutenant Holleran observed what appeared to be blood in the recycle bin and bathroom in question. He and his team illuminated the area and began to document and photograph the scene.
Interview of Diana Chism
Shortly after 1:30 a.m., Ms. Chism arrived at the Danvers police station. At approximately 1:45 a.m., Sergeant Tansey began to interview Ms. Chism. The interview was recorded. Lieutenant Zuk and Trooper Buccheri also participated in the interview to some extent, although they were also in and out of the interview room during the interview. They were simultaneously dealing with another alleged homicide in the county. At the time the interview with Ms. Chism commenced, the defendant had not yet arrived at the Danvers police station.
The officers were polite and forthright with Ms. Chism during the interview. While the interview transcript and recording speak for themselves, one of Sergeant Tansey's understandable goals was to find Ms. Ritzer. When the officers informed Ms. Chism that she would have an opportunity to speak with her son, none of the officers explicitly told Ms. Chism that her role in consulting with her son was to assist him in understanding and deciding whether to waive his Miranda rights.
At some point during the interview of Ms. Chism, Lieutenant Zuk was informed by Sergeant O'Connor that a bloody box cutter had been found in the defendant's backpack along with women's underwear and a credit card and license with Ms. Ritzer's name on them. Lieutenant Zuk also learned that the Topsfield police department had asked where the items came from, and Lieutenant Zuk was told that the defendant responded: " the girl." Lieutenant Zuk was also told that in response to a question from Topsfield police department as to whether she could be helped, the defendant said: " no." Lieutenant Zuk's goal in speaking to Ms. Chism was to get as much information as possible from her before the defendant arrived at the station.
Based upon his experience, including thirty-two years of experience with the Massachusetts State police and twenty-three years assigned to investigate homicides in Essex County, Lieutenant Zuk believed that Ms. Ritzer had been murdered. Nonetheless, based upon the volume of blood in the bathroom in question, he did not have information that there had been an attack that no one could have survived.
Interview of the Defendant
Shortly after 2:00 a.m., the defendant and his mother were brought upstairs to an interview room on the second floor of the Danvers police station. The defendant and Ms. Chism were given approximately eight to ten minutes to consult privately before the interview began.
Trooper Buccheri and Sergeant Tansey were assigned to interview the defendant. They agreed before the interview began that the defendant, being a juvenile, was not going to be bullied or misled and that he would be treated in an age-appropriate manner.
The interview commenced at about 2:30 a.m. Unbeknownst to the defendant, the interview was being observed by Lieutenant Zuk and Detective Sullivan. During the interview both Lieutenant Zuk and Detective Sullivan were providing information as they learned it to Trooper Buccheri in real time. Officers brought items to Trooper Buccheri, including copies of the surveillance video and a Google map that were utilized during the interview.
When the interview began, Ms. Chism was present and the defendant was handcuffed. Trooper Buccheri and Sergeant Tansey did not know the defendant was handcuffed until he was asked to draw a diagram of where Ms. Ritzer's body was located. The entire interview was audio- and video-recorded. The interview lasted one hour and forty-four minutes.
Before the interview began, Trooper Buccheri knew that the defendant had been in possession of a bloody box cutter and Ms. Ritzer's credit card, in addition to the information he had observed first hand or been briefed on at Danvers High School. As referenced above, the interviewers also were informed of the defendant's statement that he had " cut the girl" and that the defendant thought the cut was " fatal."
As discussed below, the police provided Miranda warnings to the defendant and asked the defendant numerous questions unrelated to the location of Ms. Ritzer's body prior to her body being discovered.
At the time of the interview, the police had no evidence that a firearm had been used or that the defendant or another suspect possessed a firearm. During the interview of the defendant, and until Ms. Ritzer's body was found, the Air Wing of the Massachusetts State police and the Danvers fire department used infrared technology to attempt to locate Ms. Ritzer without success. Cadaver and tracking canines continued to be utilized by law enforcement at Danvers High School while the defendant was being interviewed at the Danvers police department, also without success. Medical personnel were also on scene. Before and during the interview, officers were posted on various entrances and exits of the rail trail in Danvers, but no areas beyond the school were searched.
Sergeant Tansey did not know the name of the teacher who was missing or what course she taught while interviewing Ms. Chism or the defendant. At no point did the police say anything untrue or attempt to trick the defendant into statements inconsistent with the evidence they had thus far gathered.
The court has assiduously reviewed the video of the defendant's statement on numerous occasions. It is not the court's intention to summarize the entire interview, which is in evidence and speaks for itself. The court, however, makes the following observations of the interview:
1. The interview began with Trooper Buccheri offering the defendant a glass of water, introducing himself, and introducing Sergeant Tansey. Trooper Buccheri's and Sergeant Tansey's tone during the entire interview was polite, patient, respectful, and calm.
2. During the time Ms. Chism is in the interview room, the defendant was not looking at or interacting with her. When Ms. Chism suggested different soft drinks the defendant might drink, he replied: " no" to her four times without looking at her. Before the police provided the defendant with his Miranda warnings, Ms. Chism said to the defendant: " Philip, honey, what can I do?" The defendant did not respond.
3. Trooper Buccheri carefully went through the Miranda rights with the defendant and Ms. Chism and informed them that the interview was being recorded. Once the Miranda warnings were explained and Trooper Buccheri asked the defendant whether he wanted to waive those rights and voluntarily wished to make a statement, the defendant said: " what" and Ms. Chism said: " no."
It is unclear from the video recording whether Ms. Chism is saying " no" to the waiver or whether she just did not hear Trooper Buccheri completely. The defendant then said that he did not hear the question and then stated: " not really." Sergeant Tansey then made a statement to Ms. Chism seeking her assistance in having the defendant speak by referencing their previous conversation ten minutes earlier.
4. Sergeant Tansey then said: " these are just your rights." Ms. Chism emphatically stated that she wanted to have an attorney present. Trooper Buccheri interjected: " this is a serious situation going on here." Ms. Chism then referenced her son's despondence and that she " doesn't know what is happening." Trooper Buccheri responded: " that's what we are trying to find out . . ." Ms. Chism then again asked if she can get an attorney tonight. She then referenced why she thought it was important to have an attorney from her career perspective. She then turned to her son and said: " If you want to talk, you can talk." The defendant responded: " I don't know." Ms. Chism then stated it would be better for you to talk and the defendant said: " no." Trooper Buccheri continued to talk to him, referencing bringing the defendant's cooperation to the attention of the District Attorney's Office and trying to help the injured person. In a declarative sentence, Sergeant Tansey then stated: " [e]xplain to us what happened so we can understand what happened."
5. The defendant then asked whether he had to talk with his mother in the room, referring to her as " she." Ms. Chism then offered to leave and the defendant emphatically responded: " Then leave. I don't know why you are here." The defendant was still not looking at his mother. Ms. Chism then told the defendant: " I'm here because I love you, " to which the defendant responded: " I don't care." Ms. Chism stated to the defendant: " you do care, " to which the defendant responded: " [j]ust go."
6. Ms. Chism signed the Miranda form and as she was about to leave she said to the defendant: " anything you want to say to me, " to which the defendant responded with an emphatic: " Go." Near the end of the interview, the defendant stated: " I have a very dislike [sic] for [my mother] and anybody else."
7. When Ms. Chism exited the room, the defendant immediately stated in response to a question from Sergeant Tansey: " . . . very bad things happened."
8. When the police asked the defendant to help them understand what happened, he referenced a comment and " trigger word" he said Ms. Ritzer used. Throughout the interview, however, despite many attempts by the officers, the defendant resolutely refused to divulge what the " trigger word" was that the defendant claimed Ms. Ritzer said to him.
9. A number of important statements the defendant made during the interview were inconsistent with the physical evidence and indicate that the defendant had the ability and intention to lie. For example, the autopsy revealed that Ms. Ritzer was stabbed sixteen times in the neck. The defendant stated that he cut Ms. Ritzer twice. The defendant's description of the attack and the amount of blood that would have been found in the bathroom were inconsistent with the limited amount of blood found in the bathroom.
10. Shortly after Ms. Chism left the interview room, the defendant started to make eye contact with the officers for the first time. When the defendant discussed " knocking out" Ms. Ritzer, he started to look at the officers, and when he discussed taking Ms. Ritzer out of the bathroom in a recycle bin, his tone grew louder. When the defendant was asked the color of the bin, he answered carefully that it was " blackish green."
11. The defendant corrected the offices when they misstated something. When the officers asked if Ms. Ritzer's body was in Topsfield, the defendant dismissively responded: " [n]o, she's not in Topsfield."
12. When the officers commented about Ms. Ritzer eventually coming out of the bathroom, he corrected them.
13. The defendant provided the sequence of events. He explained where Ms. Ritzer's body was relative to the recycle bin after explaining that he took her body out of the bin and " chucked [the bin] pretty far."
14. Toward the end of the interview the defendant, in a calm and measured voice, explained how he put Ms. Ritzer's clothes and everything he had on him in the recycle bin with Ms. Ritzer's body.
15. When the defendant was asked to draw a map of where Ms. Ritzer's body was, he responded: " yeah, I don't have a problem with that."
16. During the course of the interview, the defendant drew three different diagrams. The defendant, in conjunction with Sgt Tansey, drew a map of Danvers High School in an attempt to locate Ms. Ritzer. The defendant wrote the word " body" on the diagram. The defendant also, in conjunction with Sgt Tansey, drew a diagram of the area in which the defendant indicated he had smashed his and Ms. Ritzer's cell phones. The defendant drew a third diagram which documented where Ms. Ritzer's stab wounds were located on her neck. Trooper Buccheri drew a head and the defendant marked on the drawing the injuries he inflicted to her neck.
17. The defendant indicated about twenty-four minutes into the interview that he was very hungry. Much later, after Ms. Ritzer's body was located, Lieutenant Zuk left the Danvers police station to get the defendant food. He returned in short order and food was provided.
18. The defendant was concentrating, alert, and orientated throughout the interview. He was able to remember his locker combination, the sequence of events, and how he disposed of some of his clothes and other items.
19. The defendant's answers, while not always forthright, were appropriate to the questions. For example, when the officers asked, in the context of how he got the recycle bin downstairs, whether students were allowed to take the elevator, the defendant's tone changed to conversational as he provided an explanation. When the defendant was drawing a diagram at one point he asked whether he needed to label everything. The defendant explained how he had chosen to label certain things to help clarify the diagram.
20. The defendant carefully responded to the officers' questions suggesting that the defendant premeditated the attack and questions concerning the defendant's plan to stay out in the woods. Later in the interview, the defendant discussed a different plan that suggested that he wanted to get caught and go to what he called: " Juvie."
21. When the officers suggested for the first time that there might have been a sexual assault by asking how Ms. Ritzer's clothes came off, the defendant provided an explanation inconsistent with the forensic evidence. There is evidence of a sexual assault, and sperm cells were recovered from Ms. Ritzer consistent with the Y profile of Philip Chism.
22. The defendant clarified questions during the interview concerning the clothing he was wearing and confusion concerning the video surveillance. Later in the interview, he reviewed photographs from the video surveillance and explained that it was he who both entered and left the bathroom.
23. When the defendant discussed his desire to escape to Canada and the route he would take, Trooper Buccheri asked whether the defendant would take the Appalachian Mountain Trail. The defendant responded that he would take a bridge and a ferry to escape.
24. When the defendant discussed the attack and the amount of blood that resulted from cutting the artery in Ms. Ritzer's throat, he volunteered that he knew where he was hitting and what would happen. The defendant then volunteered that he knew all " 269 meridians." In further discussion about meridians and pressure points, the defendant provided a graphic and detailed description as follows: " The way it works is it's kind of like a dragon's kiss. The blood all rushes up. And so, when, when I hit it, it, it's it's a lot, it's more than a lot of blood."
25. Numerous statements the defendant made during the interview were corroborated by the police. For example, the police corroborated the defendant's statement that he had eaten at a fast food restaurant after leaving the school.
26. Throughout the interview the defendant is introspective, polite, calm, and cooperative. After Ms. Ritzer's body was found and the officers reviewed the defendant's Miranda rights again, he indicated that he was willing to speak to them except for the comment that he contends Ms. Ritzer made to him. The defendant then signed the Miranda waiver form. Later in the interview, the officers asked the defendant if he was okay with his mother letting them talk to him without her being here. He responded: " Oh yeah, I . . . don't want to talk to her."
27. As for being introspective, the defendant explained why he claims he blacked out, why he attacked Ms. Ritzer, his belief in the importance of being self-sufficient, his dislike of people who try to help him, and that he " [doesn't] really have a sense of morals."
28. When asked if he would mind taking a look at the surveillance video to identify himself, the defendant responded: " I wouldn't mind it. I mean, I'd, I'd give you straightforward answers. Ah, I'm saying it wouldn't really have an emotional effect on me or the effect that it was wrong because I don't really believe in morals."
29. When expounding on his motive for the attack, the defendant stated that " after she insulted me, that's when I became the teacher." Later when asked about why the defendant took Ms. Ritzer's pants off, he responded that he did so to humiliate her.
30. The defendant was cooperative and precise in his explanations and descriptions of events. For example, the defendant explained where, why, and how he broke his phone with precision. He volunteered his concern about the GPS coordinates on his telephone being used to locate him.
31. The defendant carefully explained what the video surveillance depicted. He even interrupted Trooper Buccheri in order to identify himself on the surveillance video, and to ensure that they understood what they were seeing.
Discovery of Colleen Ritzer's Body
Sergeant O'Connor remained on scene at Danvers High School and in contact with officers at Danvers police department while the defendant was being interviewed. Based upon information obtained from the interview of the defendant, Lieutenant Zuk, through Sergeant O'Connor, directed Lieutenant Holleran down a path. As Lieutenant Holleran went down the path, he noticed an area of disturbance on the forest floor. He retrieved a more powerful light source from his car and returned to the area. Ms. Despres then observed a toe. Lieutenant Holleran then uncovered Ms. Ritzer's body. Ms. Ritzer was dead. He observed a very deep wound to Ms. Ritzer's throat area. He sent Ms. King to get the EMTs to declare Ms. Ritzer dead. The time was approximately 3:00 a.m. Trooper Buccheri and Sergeant Tansey were forty minutes and twenty-two seconds into the interview of the defendant. This moment is reflected on page 58 of the transcript of the defendant's interview, line 22.
Once the EMTs declared Ms. Ritzer dead, Lieutenant Holleran uncovered her body. She was naked from the waste down with her bra pulled up. Lieutenant Holleran pulled a stick out of Ms. Ritzer's groin area. Ms. Ritzer's body was found just adjacent to the Danvers High School cross-country path, approximately six to twelve inches from the white gloves with stains that the police had observed and documented earlier.
Defendant's Actions After Leaving Danvers High School
When the defendant left Danvers High School, he walked toward Endicott Street in Danvers. Sometime in the mid-afternoon he threw his cell phone and a cell phone he had taken from Ms. Ritzer to the ground, smashing them near Hollywood Hits. The reason the defendant destroyed the cell phones was to prevent detection through GPS tracking.
RULINGS OF LAW
The defendant contends that he was seized for constitutional purposes when Officer Hovey activated his blue lights. The defendant further contends when Officer Hovey pat frisked him and when Officer DeBernardo took control of his backpack, it constituted a seizure without constitutional justification. The Commonwealth concedes that the defendant was seized when Officer Hovey pat frisked him, and that the pat frisk was permissible as part of the police officers' community caretaker function. Whether the moment of seizure was the activation of the blue lights or the pat frisk does not impact the doctrinal framework of the court's opinion. This court rules that the moment of seizure was when Officer Hovey pat frisked the defendant, and that the back pack was seized when Officer DeBernardo took control of it on Old Route 1. See supra . While the pat frisk and seizure of the backpack on Old Route 1 was without constitutional justification, the items seized during the pat frisk and the backpack are not suppressed for a multiplicity of independent reasons: (1) the items seized as part of the pat frisk would have inevitably been discovered by the Topsfield police department as part of an inventory at the police station or as a search necessary to protect the officer's safety; (2) even if the items had not been seized at the Topsfield police station, when the Danvers police department brought the defendant back to the Danvers police station, they would have had constitutional justification to inventory his personal belongings; (3) the Danvers police department would have had probable cause to search the defendant's person and the backpack; (4) and the unconstitutional seizure of items during the pat frisk and the backpack neither extended the scope or duration of a constitutionally justified inquiry based upon the Topsfield police department's duties within the community caretaker function. Further, the seizure of this evidence did not extend the ongoing encounter between the police and the defendant beyond the few moments between when the police encountered the defendant and when they confirmed he was the missing juvenile from Danvers. Therefore, the seizure of the evidence on Old Route 1 in Topsfield is without constitutional taint.
1. Permissible Scope of the Community Caretaker Doctrine
The community caretaking function allows for police interaction with the public, for non-investigatory purposes, without escalating the encounter into a constitutional seizure. See Commonwealth v. Evans , 436 Mass. 369, 372, 764 N.E.2d 841 (2002), quoting Cady v. Dombrowski , 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) (quotations omitted). " Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred." Id., quoting Commonwealth v. Leonard , 422 Mass. 504, 508, 663 N.E.2d 828 (1996). Further, an individual is seized when, " in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Commonwealth v. Stoute , 422 Mass. 782, 786, 665 N.E.2d 93 (1996), quoting Commonwealth v. Borges , 395 Mass. 788, 791, 482 N.E.2d 314 (1985) (internal quotations omitted).
Community caretaking inquiries do not require a constitutional justification, and " [l]ocal police officers are charged with community care taking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Evans , 436 Mass. at 372 (2002), quoting Cady , 413 U.S. at 441 (quotations omitted). See, e.g., Commonwealth v. Murdough , 428 Mass. 760, 764, 704 N.E.2d 1184 (1999) (community caretaking permits officers to check on motorists parked in a rest area); Leonard , 422 Mass. at 508-09 (community caretaking permits an officer to open an unlocked door of a vehicle parked in a breakdown lane to determine if the driver needed assistance).
In carrying out the community caretaker function, " an officer may, when the need arises, stop individuals and inquire about their well-being, even if there are no grounds to suspect that criminal activity is afoot." Commonwealth v. Knowles , 451 Mass. 91, 94-95, 883 N.E.2d 941 (2008). " The decision to make a well-being check must be reasonable in light of an objective basis for believing that the defendant's safety and well-being may be in jeopardy." Commonwealth v. McDevitt , 57 Mass.App.Ct. 733, 736, 786 N.E.2d 404 & n.5 (2003) (concern for the safety of the public using the roadway is equally as compelling). " The Commonwealth has the burden of demonstrating, by objective evidence, that the officer's actions were divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Knowles , 451 Mass. at 95, quoting Cady , 413 U.S. at 441 (quotations omitted).
Under an objective analysis of the present case, there is an overwhelming basis for the court to conclude that Officers Hovey and DeBernardo were engaged in community caretaking throughout their interaction with the defendant on Old Route 1. See Knowles , 451 Mass. at 95. Further, the court finds that Officer Hovey reasonably believed the safety of the defendant and members of the public traveling on Old Route 1 were in immediate jeopardy, thus objectively justifying a community caretaker inquiry. Id. Therefore, the following conduct was constitutionally justified within the community caretaking inquiry: (1) pulling up behind the defendant and activating the cruiser's blue lights; (2) approaching and questioning the defendant; and (3) escorting the defendant across the road to the area illuminated by the cruisers. However, the court does not find that, under established community caretaking precedent, the officers were justified in pat frisking the defendant or seizing his backpack. Nonetheless, the physical evidence recovered during the otherwise permissible community caretaking stop is admissible under the inevitable discovery doctrine discussed infra .
The court finds that the collective knowledge doctrine does not apply. For the collective knowledge doctrine to apply, thus imputing one officer's knowledge to fellow officers, the officers must be engaged in a cooperative effort or a level of collaboration. Compare Commonwealth v. Hawkins , 361 Mass. 384, 386-87, 280 N.E.2d 665 (1972) (collective knowledge doctrine did not apply because officers who seized bonds during search for drugs within the defendant's apartment were neither aware of the theft of bonds nor working in concert with officers who had knowledge of the stolen bonds). With Commonwealth v. Gullick , 386 Mass. 278, 283-84, 435 N.E.2d 348 (1982) (collective knowledge doctrine applied where New Hampshire officers and Massachusetts officers were engaged in a cooperative effort to investigate a series of motel robberies and rapes). In the present case, there is no evidence to suggest that at this point in the night there was any collaboration between the Topsfield police department and the Danvers police department.
The Initial Stop and Activation of the Blue Lights
Officer Hovey located the defendant on a section of Old Route 1 that is narrow and dangerous for pedestrians to traverse due to the lack of lighting or a sidewalk. These inherently dangerous conditions presented ample justification for a community caretaking inquiry. See Knowles , 451 Mass. at 95. Furthermore, the court credits Officer Hovey's testimony that it is the Topsfield police's general policy to stop people walking on that portion of the road at night to see if they need assistance and to offer transportation to a safer location. This prudent general policy bolsters the court's determination that the inquiry was purely for safety purposes, divorced of any investigatory intent. Id. Most significantly, when Officer Hovey pulled behind the defendant and activated his blue lights, he was not investigating a crime; he was offering a pedestrian assistance. This conclusion is supported by the officer's testimony that he was unaware of the pedestrian's identity when he activated the blue lights or of the investigation unfolding at Danvers High School.
The activation of the cruiser's blue lights did not transform the permissible community caretaking stop into a seizure because the lights were activated as a safety precaution to notify oncoming traffic that people were in the roadway. See Evans , 436 Mass. at 373; McDevitt , 57 Mass.App.Ct. at 737 (" [u]sing overhead lights at night at the side of a road is a safety measure" within the scope of the community caretaking function).
In Evans , the court found that activation of the cruiser's blue lights in the context of the officer's community caretaking function was " entirely logical and necessary for the officer to ascertain whether the defendant needed assistance" and did not transform the encounter into a constitutional seizure. 436 Mass. at 374. Further, the court emphasized that activation of the blue lights was not done for the purposes of investigating suspected criminal activity. Id. Compare Commonwealth v. Smigliano , 427 Mass. 490, 492, 694 N.E.2d 341 (1998) (activation of blue lights initiated a constitutional seizure where police officer observed erratic driving and pulled up behind the vehicle to investigate whether the defendant was intoxicated). Officer Hovey's activation of the blue lights was a necessary effort to maintain the safety of the defendant, the officers and the public during the community caretaking inquiry. See Evans , 436 Mass. at 374.
Escorting the Defendant to the Police Cruiser
The safety and well-being of the defendant, the public and the police are primary considerations inherent in the community caretaking function. See McDevitt , 57 Mass.App.Ct. at 736 & n.5. Escorting the defendant across the street to a safer location did not exceed the scope of a community caretaking inquiry. See id. A variety of factors necessitated moving the defendant to the illuminated area between the police cruisers. The officers' cruisers were blocking the northbound lane of travel; the road was particularly narrow on the bridge; the officers and defendant were standing unprotected in the southbound lane; there was no breakdown lane or sidewalk on the bridge; no streetlights illuminated the bridge; and the traffic was traveling at approximately forty-five mph. Based on the aforementioned conditions, the court finds that moving the defendant across the street was a safety precaution which did not convert the encounter into a constitutional seizure. See Knowles , 451 Mass. at 95. See also Commonwealth v. Corriveau , 396 Mass. 319, 327, 486 N.E.2d 29 (1985) (seizure does not occur simply because an officer requests that an individual accompany him to the police station).
2. Inevitable Discovery
" Under the inevitable discovery doctrine, if the Commonwealth can demonstrate by a preponderance standard that discovery of the evidence by lawful means was certain as a practical matter, the evidence may be admissible as long as the officers did not act in bad faith to accelerate the discovery of evidence, and the particular constitutional violation is not so severe as to require suppression." Commonwealth v. Fontaine , 84 Mass.App.Ct. 699, 709-10, 3 N.E.3d 82 (2014), citing Commonwealth v. Sbordone , 424 Mass. 802, 810, 678 N.E.2d 1184 (1997). See Commonwealth v. O'Connor , 406 Mass. 112, 117, 546 N.E.2d 336 (1989). As discussed below, the court concludes that discovery of the contents of the defendant's pockets and backpack by lawful means was certain as a practical matter, and the character of the police misconduct does not invalidate inevitable discovery. See O'Connor , 406 Mass. at 117-18.
At the final argument on the motion to suppress, the defendant primarily contested the applicability of the inevitable discovery based on Commonwealth v. Tyree , 455 Mass. 676, 919 N.E.2d 660 (2010). Tyree stands for the proposition that physical evidence, in that case the defendant's shoes, must be suppressed where the police illegally enters a defendant's residence to arrest him. Id. at 696-700. The court is convinced that the Topsfield police officers were lawfully engaged in community caretaking when they approached the defendant and later brought him to the Topsfield police station. Further, the defendant overstates the applicability of Tyree to the present case because applicability of the inevitable discovery doctrine was not before the Supreme Judicial Court. Id. at 697 n.37 (" the Commonwealth does not argue that the defendant's shoes are admissible under the attenuation, independent source, or inevitable discovery doctrines . . .").
The defendant and his belongings were legitimately detained by the Topsfield police during their community caretaking inquiry. See Knowles , 451 Mass. at 95. It is uncontested that at the point the Topsfield officers discovered that the defendant was the missing youth, the officers took the defendant into protective custody and drove him back to the Topsfield police station. There is no set of circumstances where, after the Topsfield police approached the defendant on Old Route 1 at approximately 12:30 a.m., they would have failed to ask for his name and discovered that he was the missing youth from Danvers. Even if the officers had not pat frisked the defendant and discovered Ms. Ritzer's cards, the court credits the testimony that the officers would have nonetheless asked for his name. After learning that he was the missing juvenile, the Topsfield police were not going to allow the defendant to continue walking.
Concerning the defendant's argument that the officers were not acting within their roles as community caretakers, one could not imagine a situation more suited to an officer's role as a community caretaker than searching for and discovering a missing juvenile. The notion that the Topsfield police would not have learned the defendant's name or allowed him to continue walking down Old Route 1 at 12:30 a.m. is baseless. It was inevitable that the defendant would have been brought back to the Topsfield police station.
The unconstitutional seizure of the credit cards and license had no impact on the scope or duration of the community caretaker actions of the police. The discovery of Philip Chism's name did not taint the ongoing encounter.
Moreover, the contention that after discovering the missing juvenile and bringing him back to the Topsfield police department, he may have been released to his parent without being connected to Ms. Ritzer's disappearance is also misplaced. Unbeknownst to the Topsfield police, the investigation into the disappearance of Ms. Ritzer was rapidly unfolding as they discovered the defendant. The rapidly developing situation in Danvers strongly supports the conclusion that at the point the defendant was brought to the Topsfield police station as a missing youth, he would have inevitably been connected to Ms. Ritzer's disappearance. Accordingly, the court finds that even if the pat frisk of the defendant and seizure of his bag were constitutionally unjustified, those items would have inevitably been discovered at the Topsfield or Danvers police station during an inventory search of the defendant and his belongings. See O'Connor , 406 Mass. at 117-18.
Even if the inventory policy had not been complied with in Topsfield, the Danvers police would have had probable cause to search the backpack once it made its way to the Danvers police department with the defendant.
The Pat Frisk and Seizure of the Backpack
The Commonwealth does not contest that at the moment Officer Hovey pat frisked the defendant, he was seized. See Commonwealth v. Martin , 457 Mass. 14, 18, 927 N.E.2d 432 (2010); Commonwealth v. Narcisse , 457 Mass. 1, 6, 927 N.E.2d 439 (2010) (" once the officers told the defendant that they intended to pat frisk him, they seized his person within the meaning of the Fourth Amendment and art. 14"). See also Commonwealth v. DePeiza , 449 Mass. 367, 371, 868 N.E.2d 90 (2007). To justify a pat frisk, the officer must have both a reasonable suspicion that the defendant has committed, is committing or is about to commit a crime and that the defendant is armed and dangerous. See Martin , 457 Mass. at 20; Narcisse , 457 Mass. at 9-10.
Under the existing community caretaking doctrine, it appears that the pat frisk, regardless of Officer Hovey's concern for his own safety, was a constitutional seizure. See Martin , 457 Mass. at 18; Narcisse , 457 Mass. at 6. The Supreme Judicial Court has yet to decide whether a pat frisk can be constitutionally justifiable within the community caretaker function. It is also unclear to what extent non-investigatory yet constitutionally intrusive actions are permissible under the community caretaker function. See Knowles , 451 Mass. at 95 (" An officer may take steps that are reasonable and consistent with the purpose of his inquiry, even if those steps include actions that might otherwise be constitutionally intrusive") (internal citation omitted). Regardless, the court need not reach the issue of whether a pat frisk was constitutionally justified within the community caretaker function because the items found as result of the pat frisk were subject to inevitable discovery. See Fontaine , 84 Mass.App.Ct. at 709-10. Moreover, neither Officer Hovey's pat frisk nor Officer DeBernardo's decision to take the defendant's backpack were made in bad faith or with the intention of accelerating the collection of evidence. See id. Accordingly, even if the pat frisk and the seizure of the backpack were constitutionally unjustified, the resulting evidence shall not be suppressed.
3. The Defendant's Statements at the Topsfield Police Department
The defendant contends that the statements he made at the Topsfield police station should be suppressed since they were made during a custodial interrogation, without a proper waiver of the defendant's Miranda rights. While the court holds that the defendant was neither provided his Miranda rights nor did he waive those rights at the Topsfield police station, the court rules that the defendant was not in custody for Miranda purposes at the Topsfield police station.
For purposes of Miranda , the threshold question is whether the defendant was in custody at the Topsfield police station. It is uncontested that the defendant was in protective custody and " detained" in the Topsfield police station. However, to trigger Miranda protections, the defendant must show that in the totality of the circumstances surrounding the interaction with the police there was " (1) a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest and (2) express questioning or its functional equivalent . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect." Commonwealth v. Mejia , 461 Mass. 384, 390, 961 N.E.2d 72 (2012) (quotations and citations omitted) (ellipses in original).
The Officers' intention to take the defendant into protective custody because he was a missing youth does not control the court's analysis of whether the defendant was in custody for purposes of Miranda protections. See Commonwealth v. Damiano , 422 Mass. 10, 12-13, 660 N.E.2d 660 (1996) (although police did not conform with the applicable protective custody statute, the question of whether the defendant was in protective custody was not controlling in determining whether the defendant was in custody).
In determining whether the defendant was in police custody, the court may consider " (1) the place of the interrogation; (2) whether the investigation has begun to focus on the suspect, including whether there is probable cause to arrest the suspect; (3) the nature of the interrogation, including whether the interview was aggressive or, instead, informal and influenced in its contours by the suspect; and (4) whether, at the time the incriminating statement was made, the suspect was free to end the interview by leaving the locus of the interrogation or by asking the interrogator to leave, as evidenced by whether the interview terminated with the defendant's arrest." Commonwealth v. Bryant , 390 Mass. 729, 737, 459 N.E.2d 792 (1984). See Commonwealth v. Carnes , 457 Mass. 812, 818-19, 933 N.E.2d 598 (2010). In weighing these factors, " [r]arely is any single factor conclusive." Bryant , 390 Mass. at 737. The factors can be fluid, and a situation that originates as a non-custodial interaction can mutate into a custodial situation, thus triggering constitutional protections. See Commonwealth v. Hilton , 443 Mass. 597, 611-13, 823 N.E.2d 383 (2005); Commonwealth v. Osachuk , 418 Mass. 229, 232-35, 635 N.E.2d 1192 (1994). Moreover, custody analysis requires courts to account for the defendant's juvenile status. See J.B.D. v. North Carolina , 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011).
The court's determination of the moment custody was established is based upon an objective standard of the facts and is not controlled by the subjective beliefs of either the officer or the defendant. Commonwealth v. Coleman , 49 Mass.App.Ct. 150, 154, 727 N.E.2d 103 (2000), citing Commonwealth v. Morse , 427 Mass. 117, 123-24, 691 N.E.2d 566 (1998).
(1) Setting of the Interrogation: The defendant's detainment at the Topsfield police station " does not, in itself" trigger custody. Commonwealth v. Almonte , 444 Mass. 511, 518, 829 N.E.2d 1094 (2005). See Commonwealth v. Lopes , 455 Mass. 147, 163, 914 N.E.2d 78 (2009). The defendant's presence in the Topsfield police station is mitigated by the facts that the defendant was seated on a bench in front of the small, but open, booking area; he was not handcuffed; and the officers provided him with blankets to keep warm. It is also significant that the defendant could not see jail cells from where he was seated. Moreover, in deciding where to bring the defendant, the Topsfield police were faced with limited options, and allowing the juvenile to continue walking down Old Route 1 at 12:30 a.m. would have been not only imprudent, but poor police work. Accordingly, the location of the defendant during questioning weighs in favor of non-custody.
(2) Focus of the Interrogation: The defendant was brought to the Topsfield police station because the officers discovered that he was the missing juvenile. The fact that the Topsfield police did not indicate to the defendant that he was a suspect in any crime is a factor suggesting that he was not in custody. Commonwealth v. Bly , 448 Mass. 473, 492, 862 N.E.2d 341 (2007). Even at the point where Officer Hovey asked the defendant, " whose blood is this, " referring to the box cutter, the Topsfield police did not have information about Ms. Ritzer's disappearance, let alone information that the defendant was connected. See Morse , 427 Mass. at 123-26 (a reasonable person in the position of the defendant could not have believed that he was the focus of a police investigation based on the nature of the questioning).
Consistent with this court's previous determination that the collective knowledge doctrine did not apply to the officers' community caretaking inquiry, there is insufficient evidence to conclude that the Topsfield police were working in concert with the Danvers police at this point. Further, to the extent that the Topsfield police were suspicious that the defendant may have stolen the credit card, there is nothing to indicate that the investigation into Ms. Ritzer's disappearance focused on the defendant.
(3) Nature of the Interrogation: The court credits the testimony of Officers Hovey and DeBernardo that at the moment they discovered the defendant was the missing juvenile, they were " elated" and " went into parent mode." Officer Hovey questioned the defendant about the contents of his backpack in a calm and non-aggressive tone. Moreover, the defendant does not contend that the nature of Officer Hovey's questioning was inappropriate or coercive.
(4) Defendant's Ability to Leave: The defendant's ability to leave the Topsfield police station or otherwise end questioning weighs in favor of custody. Although the defendant was not under arrest at the Topsfield police station, as a recently found missing juvenile, he was in protective custody and clearly not free to leave.
After weighing the factors, the court concludes that the defendant was not in custody for purposes of Miranda . See Bryant , 390 Mass. at 737. See also Carnes , 457 Mass. at 818-19. Therefore, Miranda warnings were not required and the defendant's statements in the Topsfield police station shall not be suppressed.
4. Inventory Search of Backpack at the Topsfield Police Station
The defendant previously told the officers that he had survival gear stored in the bag. Under these circumstances, where Officer Hovey had possession of the bag and knowledge that the bag could contain dangerous " survival gear, " the search of the bag was warranted to protect officer safety. Search of the bag parallels the previous police interactions with the defendant in that they were solely interested in the defendant's and their safety and were not motivated by an investigation.
The purpose of a lawful inventory search is for the caretaking of the individual in police custody, their belongings and the officers in the police station, but not for purposes of investigation. See Commonwealth v. Vanya V ., 75 Mass.App.Ct. 370, 374-75, 914 N.E.2d 339 (2009), citing Illinois v. Lafayette , 462 U.S. 640, 644, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983). See also Commonwealth v. Matchett , 386 Mass. 492, 510, 436 N.E.2d 400 (1982) (" warrantless search, conducted for some legitimate police purpose, other than a search for evidence, may be recognized as a lawful inventory search"). An inventory search of an individual and his belongings at a police station is constitutionally permissible only if the police department has an established written and routine procedure for inventory searches. See Commonwealth v. Bishop , 402 Mass. 449, 451, 523 N.E.2d 779 (1988). Further, the inventory search is only valid if the department's procedures are uniformly and consistently applied. See Commonwealth v. Rostad , 410 Mass. 618, 620-22, 574 N.E.2d 381 (1991). Police departments are not precluded from conducting inventory searches of individuals in protective custody. See, e.g., O'Connor , 406 Mass. at 118 (valid inventory search of a person held in protective custody pursuant to statute); Commonwealth v. Ierardi , 17 Mass.App.Ct. 297, 299 n.1, 457 N.E.2d 1127 (1983).
On October 23, 2013, the Topsfield police department had a written inventory policy for " Handling Juveniles" that refers to the Topsfield police department protocol entitled, " Detainee Processing." The " Handling Juveniles" policy provides that juvenile status offenders, including runaways, are to be held in " non-secure custody" and may be " held long enough to complete identification, investigation and processing prior to release to parents . . ."
" Secure custody" is defined by the policy as " [a] condition under which a juvenile's freedom of movement is controlled by being placed in a call or locked room (or set of rooms) or being handcuffed to a stationary object." The term " Non-Secure Custody" provides that the juvenile be held in an unlocked, multipurpose room that is in no way designed for residential use; the juvenile is not handcuffed to any stationary object; the juvenile is held only long enough to complete identification, investigation and processing and then released to a parent or guardian or transferred to a juvenile facility or the court; and the juvenile must be under continuous supervision.
The " Detainee Processing" protocol permits inventory searches of a detainee's outer clothing, wallets, purses, packs, bags or other containers brought in as personal property. This requirement applies to closed containers, and " any container or article found on the detainee's person or carried by the detainee shall be opened and its contents inventoried."
The court finds that it is routine practice, established by the " Detainee Processing" and " Handling Juveniles" procedures, for the Topsfield police to conduct a general inventory search of a detainee and his property. Furthermore, the " Handling Juveniles" policy calls for the " processing" of juveniles who are at the station, even if they are not considered " detainees." While an officer's subjective intent may well be irrelevant in the context of an inventory search, the court emphasizes that at the point where Officer Hovey asked the defendant about the " survival gear" in his bag and then proceeded to perform an inventory search of it, he was in no way investigating, or even aware of, the disappearance of Ms. Ritzer. The court concludes that the inventory search of the defendant's backpack was conducted pursuant to the Topsfield police department's routine written procedure and within the scope of his role as a community caretaker.
In addition to the Topsfield police department's routine written inventory procedure, Officer Hovey was justified in searching the bag out of concern for his own safety. Officer Hovey was mindful that the defendant previously indicated he had " survival gear" in his backpack. Cognizant that there may have been dangerous " survival gear" in the backpack, Officer Hovey asked the defendant if there was anything dangerous in the backpack that he should know about. When the defendant responded, " yes, " indicating that there was a dangerous object in the backpack, Officer Hovey was further permitted to search the backpack. The court concludes Officer Hovey's search of the defendant's backpack was constitutionally justified as either part of the Topsfield police department's routine inventory policy or out of concern for his own safety. Accordingly, the contents of the backpack shall not be suppressed.
Even if the inventory search of the defendant's bag was impermissible under the Topsfield inventory policy or was not justified by concerns for officer safety, the contents of the backpack should nonetheless survive the motion to suppress under the inevitable discovery doctrine discussed infra . The basis of this conclusion is Lieutenant Zuk's credible testimony that he would have inventoried the defendant's belongings, if they had not already been, when the defendant was brought to the Danvers police station.
5. The Defendant's Statements at the Danvers Police Station
The defendant contends that the Commonwealth has failed to prove beyond a reasonable doubt, to a moral certainty, the he knowingly, intelligently and voluntarily waived his Miranda rights. While the court believes that the police officers involved in the questioning of the defendant did the best they could in an impossibly difficult situation, the court is not convinced, based on the totality of the circumstances, that the defendant waived Miranda beyond a reasonable doubt.
Law of Interrogating a Juvenile
A defendant's waiver of Miranda rights must be knowing, intelligent and voluntary. Commonwealth v. Hoose , 467 Mass. 395, 403, 5 N.E.3d 843 (2014). " The Commonwealth bears the burden of proving beyond a reasonable doubt that, in the totality of the circumstances, the defendant voluntarily, knowingly, and intelligently waived his Miranda rights." Commonwealth v. Jackson , 432 Mass. 82, 85, 731 N.E.2d 1066 (2000). See also Commonwealth v. Ray , 467 Mass. 115, 132, 4 N.E.3d 221 (2014) (the Commonwealth's burden of proving a valid waiver of Miranda is a " heavy burden"). Although the inquiry into the voluntariness of the defendant's waiver of Miranda is separate from the determination of whether his statements were voluntary, both inquiries require an examination of the totality of the circumstances surrounding the making of the statements to ensure the defendant's will was not overborne. Hoose , 467 Mass. at 403. " Factors relevant to this analysis 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 the police), and the details of the interrogation, including the recitation of Miranda warnings." Id. (citation and quotation omitted).
" [W]here the defendant is a juvenile, courts must proceed with 'special caution' when reviewing purported waivers of constitutional rights." Commonwealth v. Berry , 410 Mass. 31, 34, 570 N.E.2d 1004 (1991). In circumstances " where a juvenile is fourteen years of age or older . . . there should ordinarily be a meaningful consultation with the parent, interested adult, or attorney to ensure that the waiver is knowing and intelligent." Commonwealth v. Alfonso A ., 438 Mass. 372, 380, 780 N.E.2d 1244 (2003) (alteration omitted). The rule is designed with the understanding that " most juveniles do not understand the significance and protective function of these [ Miranda ] rights even when they are read the standard Miranda warnings, " and children frequently lack the capacity to appreciate the consequences of their actions. Commonwealth v. A Juvenile , 389 Mass. 128, 131-32, 449 N.E.2d 654 (1983).
An interested adult is someone with a relationship with the juvenile who is " sufficiently interested in the juvenile's welfare to afford the juvenile appropriate protection." Commonwealth v. MacNeill , 399 Mass. 71, 77-78, 502 N.E.2d 938 (1987). The adult must be informed of the juvenile's rights and understand them, but there is no requirement that the interested adult specifically discuss the juvenile's rights with him. Commonwealth v. Mark M ., 59 Mass.App.Ct. 86, 92, 794 N.E.2d 629 (2003). Where an otherwise interested adult " fails to tell a child not to speak to interviewing officials, who advises the child to tell the truth, or who fails to seek legal assistance immediately, " those decisions do not invalidate her status as an interested adult. Philip S ., 414 Mass. 804, 810, 611 N.E.2d 226 (1993). Moreover, the Commonwealth does not have to prove that the " consultation conveyed the vital information that [the juvenile] needed to know." Id. at 812 n.6 (alteration in original) (citation omitted). However, " in order for there to be an actual opportunity to consult, the interested adult must at least understand that there is an opportunity to consult and his or her own role in that consultation." Mark M ., 59 Mass.App.Ct. at 92. See Alfonso A ., 438 Mass. at 381-82 (a genuine opportunity to consult requires that the interested adult is informed of and understands the juvenile's constitutional rights); Berry , 410 Mass. at 31; Commonwealth v. Quint Q ., 84 Mass.App.Ct. 507, 516, 998 N.E.2d 363 (2013).
The ultimate question is whether the juvenile has understood his rights and the potential consequences of waiving them before talking to police. MacNeill , 399 Mass. at 79. " For a waiver to be valid without such a consultation the circumstances should demonstrate a high degree of intelligence, experience, knowledge, or sophistication on the part of the juvenile." Juvenile A ., 389 Mass. at 134. See, e.g. Philip S ., 414 Mass. at 813 (in determining the validity of the waiver, the court shall examine the totality of the circumstances surrounding the interrogation, specifically " the juvenile's age and inexperience with police procedure, the height and bearing of the officers, their comments, and the context of the Miranda warnings").
Presence of an Interested Adult
During the interview of Ms. Chism at the Danvers police station, the officers indicated that once the defendant arrived at the Danvers police station, she would have an opportunity to meet with him. However, neither officer explicitly conveyed that her role was to consult with her son and assist him in understanding his Miranda rights and ultimately whether he should waive those rights. Significantly, Ms. Chism was read Miranda warnings and repeatedly expressed that she had familiarity with the rights of juveniles from her prior employment in Child Protection Services. Ms. Chism appeared to be concerned for the well-being of her son, but was also receptive to helping the police, given that she believed someone had been hurt. The court also accepts that the officers' goal was to gain as much information from Ms. Chism as possible before the defendant arrived. This motivation, by itself, does not invalidate Ms. Chism's status as an interested adult. She was clearly concerned with the well-being of her son but also expressed great concern over the possibility that her son had hurt someone, based on what the officers told her prior to the interview of the defendant. Her desire to have an attorney present with her son during the interview bolsters the court's finding that she was engaged and interested in her son's well-being. Furthermore, Ms. Chism's statements to the defendant " [i]f you want to talk, you can talk" and that she thought it would be better for him to talk to the police, do not negate her status as an interested adult. See Philip S ., 414 at 810.
There is no binding Massachusetts precedent that permits an individual, even a parent, to invoke the constitutional rights of another. Furthermore, the protections of the interested adult rule provide a parent the opportunity to consult with her child to advise him of his constitutional rights and the implication of waiving or asserting those rights; however, none of the case law concerning the interested adult rule also permits the adult to invoke rights on behalf of the juvenile. Accordingly, Ms. Chism's attempts to invoke her son's right to counsel have impacted the court's finding that she was an interested adult with her child's best interests in mind, but her attempted invocation is not dispositive of whether the defendant made a valid waiver of his Miranda rights.
The court concludes that as a threshold matter Ms. Chism was an interested adult and was given a meaningful opportunity to consult with the defendant. See Id. at 809-12. Therefore, the court finds that although Ms. Chism was not explicitly advised of her role as an interested adult, which may be the best practice, she nonetheless understood her role as an interested adult and comprehended her son's constitutional rights. Nonetheless, the officers utilization of Ms. Chism as a conduit to obtain a waiver of Miranda is a factor that the court considers in deciding the issue of the validity of the defendant's waiver of his Miranda rights.
Validity of Miranda Waiver
After the defendant's consultation with his mother, the portion of the videotape depicting the time Ms. Chism and the defendant were both present with the police make it readily apparent that Ms. Chism wanted an attorney present with her son during questioning. Despite this desire, the officers persisted in initiating a conversation and reminded her of her previous desire to find out what happened that night. While Ms. Chism may have made a clear invocation of the right to counsel on the defendant's behalf, no Massachusetts case law explicitly or implicitly permits a parent or interested adult to invoke a juvenile's right to counsel on their behalf. See supra n.12. Nonetheless, Ms. Chism's stated interest in having counsel present is a factor that the court considers in determining whether the Commonwealth has proven waiver beyond a reasonable doubt.
Further, the court finds that the defendant's refusals to communicate with the officers was due to his reluctance to speak in front of his mother. The defendant's statement, " not really, " in response to Trooper Buccheri asking him if he wanted to talk, was not a clear invocation of his right to remain silent, but rather a clear indication that he did not want to speak in front of his mother. This conclusion is further supported by the defendant's prior willingness to speak to the Topsfield police when his mother was not present. The defendant contends that the Commonwealth failed to prove beyond a reasonable doubt, to a moral certainty, that he knowingly, intelligently and voluntarily waived his Miranda rights. While the application of the court's findings of fact to the law might allow the court to find that the defendant's Miranda rights were waived beyond a reasonable doubt, the constellation of facts in their totality do not satisfy this court to " the highest degree of certainty possible in matters relating to human affairs . . ." required to satisfy waiver of Miranda beyond a reasonable doubt. See Commonwealth v. Russell , 470 Mass. 464, 477-78, 23 N.E.3d 867 (2015).
The defendant twice indicated a disinterest in speaking to the Danvers police. Additionally, his mother requested an attorney on a number of occasions. During the recitation of Miranda , the defendant did not appear to be fully engaged as the officers explained his Miranda rights to him. The court reviewed the videotape of the defendant's statements on numerous occasions. It is clear that the defendant wanted to talk to the police without his mother present in the room. It is also clear that he had no intention of talking while his mother was in the room. Indeed, he was rude, dismissive and scornful of his mother and her desire to help him. He wanted her out of the room. Given the defendant's demeanor around his mother and the potential that he did not fully understand or appreciate the Miranda warnings, the court is not convinced beyond a reasonable doubt that the defendant was paying attention to the Miranda warnings to the extent necessary to find that he understood and waived his Miranda rights beyond a reasonable doubt.
This court, as the trier of fact, is not convinced that the Commonwealth has proved beyond a reasonable doubt that the defendant made a valid waiver of his Miranda rights. See Russell , 470 Mass. at 477-78. This court, guided by the Supreme Judicial Court's instruction in Russell , that a moral certainty means " the highest degree of certainty possible in matters relating to human affairs, " cannot find, based upon the defendant's demeanor and detachment while his rights were being read to him, along with his palpable hostility toward his mother during the recitation of the Miranda warnings, that the defendant made a valid waiver of his Miranda rights " beyond a reasonable doubt."
The Commonwealth has proven waiver by at least clear and convincing evidence but not to a " moral certainty." Under the recently revised instruction, the trier of fact can only make a finding beyond a reasonable doubt if " you have in your mind[] an abiding conviction, to a moral certainty, that the charge is true. When we refer to moral certainty, we mean the highest degree of certainty possible in matters relating to human affairs--based solely on the evidence that has been put before you in this case . . . It is not enough for the Commonwealth to establish a probability, even a strong probability, that the defendant is more likely to be guilty than not guilty. That is not enough. Instead, the evidence must convince you of the defendant's guilt to a reasonable and moral certainty; a certainty that convinces your understanding and satisfies your reason and judgment . . ." Russell , 470 Mass. at 477-78.
Voluntariness of the Defendant's Statements
" The validity of a waiver . . . is a separate inquiry from whether the ensuing statement itself was voluntarily made." Commonwealth v. Hilton , 443 Mass. 597, 607, 823 N.E.2d 383 (2005); Commonwealth v. Harris , 364 Mass. 236, 239-41, 303 N.E.2d 115 (1973) (statements taken in violation of Miranda may be used to impeach a defendant who takes the stand at trial, so long as the statements are voluntary). While the Commonwealth is unable to satisfy the heavy burden of proving a valid waiver of Miranda , the defendant's statements were nevertheless voluntary.
The videotaped interview reveals that the defendant's initial hesitation to speak with the officers was caused by his refusal to speak about the alleged rape and murder of Ms. Ritzer while his mother was present. The defendant's willingness to speak to the Topsfield police when questioned about the contents of his backpack, the state of the box-cutter and whether the hurt person could be helped, reveals that the defendant was not unwilling to speak to law enforcement; he was only unwilling to speak to the police in his mother's presence.
Furthermore, after extensive review of the videotaped interview, the court finds that the defendant was calm and voiced a calculating inflection when divulging information. The defendant's will was clearly not overborne by the officer's questioning, evidenced by the defendant's repeated refusal to reveal the " trigger word, " despite multiple attempts by the police officers to elicit a response. Furthermore, on several occasions the defendant corrected the officers' statements and clarified facts, which the court finds is highly indicative of his voluntariness to speak with the police. The court also finds it significant that the defendant provided an account of the evening that minimized his conduct and does not comport with the forensic evidence. This is highly indicative of the fact that the defendant's will was not overborne throughout the course of the interview, and he spoke to the officers voluntarily.
Accordingly, the defendant's statements, while voluntarily made, must be suppressed because the court cannot find beyond a reasonable doubt that the defendant knowingly, intelligently and voluntarily waived his Miranda rights. The defendant's statements at the Danvers police station will not be available to the Commonwealth as evidence during its case in chief. Since the court finds the statement was made voluntarily beyond a reasonable doubt, however, if the defendant testifies at trial, the statements will be available to the Commonwealth for impeachment purposes. See Hilton , 443 Mass. at 607; Harris , 364 Mass. at 239-41.
6. The Public Safety Doctrine
The Commonwealth argues that if the court finds that Miranda requirements were not met, the defendant's statements should nonetheless be admissible under the public safety exception. New York v. Quarles , 467 U.S. 649, 657, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984); Commonwealth v. Bourgeois , 404 Mass. 61, 66, 533 N.E.2d 638 (1989). The Commonwealth further contends that the " Rescue Doctrine, " should be adopted as a logical and necessary outgrowth of the existing public safety exception to Miranda .
Under the public safety exception, the requirements of Miranda are dispensed when there is an imminent threat to the public and a suspect's refusal to answer questions may pose an immediate risk. Quarles , 467 U.S. 649, 655-56, 104 S.Ct. 2626, 81 L.Ed.2d 550. The public safety exception has traditionally been applied to situations where the police have concrete evidence that a suspect's firearm is loose and can be easily accessed, thus causing substantial harm to the public welfare, or where the police believe an apprehended suspect's accomplice can access a gun. See Commonwealth v. Loadholt , 456 Mass. 411, 419, 923 N.E.2d 1037 (2010) (public safety exception applied where police found a hollow point shell in defendant's pocket and asked him where the gun was without first giving him Miranda ); Commonwealth v. Alan A ., 47 Mass.App.Ct. 271, 274-75, 712 N.E.2d 1157 (1999) (public safety exception applied where police handcuffed defendant, advised him of his Miranda rights and then asked him for the location of the gun). Given that the Supreme Judicial Court has yet to extend the public safety exception beyond situations where an officer has reason to believe that a defendant's firearm is loose and can be accessed by an accomplice or member of the public, this court cannot find that public safety exception extends to the facts of the present case.
Nonetheless, the circumstances of this case presented the police with an impossibly difficult situation. The officers were cognizant of the juvenile's Miranda rights but were also doing everything in their power to locate and rescue Ms. Ritzer. Despite the physical evidence found at Danvers High School, which may have informed law enforcement's belief that they were dealing with a homicide, the police utilized rescue canines, thermal heat detectors, the CPAC Air Wing and a substantial group of people on the ground to hopefully rescue Ms. Ritzer. Despite the remote possibility of actually finding her alive, the court finds that the police questioned the defendant, in part, for purposes of locating and hopefully helping Ms. Ritzer. However, based on the existing law in Massachusetts, the court finds the present circumstances do not fit within the existing doctrine.
To the extent that these facts may fall within the " rescue doctrine, " the Supreme Judicial Court has neither expressly nor implicitly adopted the doctrine. Accordingly, this court need not rule on the application of the " rescue doctrine" to the present case and the Commonwealth may decide to seek interlocutory review to determine whether the " rescue doctrine" should be adopted in Massachusetts.
7. The Defendant's Cell Phone
The Commonwealth does not contest that the discovery of the defendant's and victim's cell phones outside of Hollywood Hits does not survive the motion to suppress pursuant to the independent source rule. See Silverthorne Lumber Co. v. United States , 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319, T.D. 2984, 17 Ohio L. Rep. 514 (1920); Commonwealth v. Frodyma , 393 Mass. 438, 441, 471 N.E.2d 1298 (1984). Evidence discovered with a source independent of the constitutional violation is not fruit of the poisonous tree. See id. To determine whether evidence was the fruit of a constitutional violation, the court focuses on whether the evidence sought to be suppressed was obtained through the exploitation or use of any prior police illegality. See Commonwealth v. Blake , 413 Mass. 823, 830, 604 N.E.2d 1289 (1992).
Although the defendant does not seek to suppress the physical evidence discovered at Danvers High School, had he raised the issue, the court would have determined that all of the evidence was not subject to suppression pursuant to the independent source rule. See Commonwealth v. Blake , 413 Mass. 823, 830, 604 N.E.2d 1289 (1992).
The police were only made aware of the location of the cell phones from their interview of the defendant. Since the defendant's statements during the interview at the Danvers interview must be suppressed and the Commonwealth has not argued an alternative theory of admissibility, the cell phones must be suppressed.
ORDER
The defendant's motion to suppress the contents of his pockets and backpack is DENIED . The defendant's motion to suppress evidence seized at Danvers High School is DENIED . The defendant's motion to suppress his statements at the Topsfield police station is DENIED . The defendant's motion to suppress his statements at the Danvers police station is ALLOWED . The defendant's motion to suppress the cell phones found near Hollywood Hits in Danvers is ALLOWED .