Opinion
No. BRCR2005-0956.
March 17, 2008.
MEMORANDUM OF DECISION ON THE DEFENDANT'S MOTION TO DISMISS
Before the Court is the defendant's motion to dismiss. The motion alleges egregious misconduct by the Fall River police on account of their use of alleged excessive force in the course of his arrest, by their denial of his right to a timely appearance before a court to have bail set, and by their obstruction of his access to his attorney while he was held in the department's lock-up. A hearing extending over three days was held in which eleven witnesses testified and 17 exhibits were entered. Drawing on the totality of the evidence and reasonable inferences therefrom, the Court DENIES the motion on the basis of the following findings of fact and rulings of law.
Findings of Fact
1. On Friday, November 19, 2004 the Vice Unit of the Fall River Police Department (the "Department") were deployed in the vicinity of 115 Swindell Street, Fall River at approximately 10 a.m. for the purpose of executing a search warrant at the premises.
2. The principal responsibility of the Vice Unit was the investigation of narcotics trafficking.
3. The target of the search was the defendant Richard Ferreira ("Ferreira"). The warrant authorized the search of Ferreira's person and of his vehicle.
4. Ferreira was known to the members of the Vice Unit and also known from an alleged incident where Ferreira had dragged a Fall River police officer down the street while the officer was hanging onto Ferreira's car.
5. The Vice Unit detective in charge of the execution of the warrant was Detective Manuel Bernardo ("Bernardo"). Six other members of the Unit were part of the team.
6. The plan was for the officers to wait for Ferreira to exit 115 Swindell Street, at which point Bernardo would signal certain officers to confront Ferreira and search his car while the remainder of the team would enter and search the Swindell Street premises.
7. At approximately 11 a.m. Ferreia was observed leaving the premises, Bernardo gave the command, and three detectives, Jay Huard ("Huard"), Robert Jacob ("Jacob") and Detective Murphy ("Murphy") ran toward Ferreira. Ferreira saw the detectives coming and got into the driver's seat of his car.
8. Huard reached Ferreira first, and Huard announced that he was a police officer and that he had a search warrant. Huard instructed Ferreia to get out of the car. When Huard attempted to open the door, Ferreira held it shut. A struggle ensued. Huard was able to force the door open, at which point Ferreira grabbed the steering wheel with both hands and forcibly resisted Huard's attempt to remove him from the car. In short order, Huard separated Ferreira from the wheel and got him out of the vehicle. However, a further struggle ensued while Huard attempted to handcuff Ferreira, at which point Huard took Ferreira to the ground. Ferreia forcibly tried to get up and then crossed his arms on his chest to prevent Huard from being able to handcuff him from the back. While on the ground, Ferreira rocked back and forth with his face scraping the pavement as he further resisted being handcuffed. In an attempt to control Ferreira, Huard struck Ferreira's hamstring through a leg maneuver. Meanwhile, Jacobs and Murphy arrived and assisted Huard in securing Ferreira.
9. In subduing Ferreira, Huard, Jacobs and Murphy employed only as much force as was necessary to secure Ferreira for purposes of the search of his person and the search of his vehicle. Neither Huard, Jacobs or Murphy intentionally struck Ferreira in the face or otherwise used excessive force in the circumstances.
10. The testimony of Jennifer Aguiar ("Jennifer" or "Aguiar"), Ferreira's girlfriend with whom he spent the prior night at 115 Swindell Street, was not credible. She testified that 6 to 8 police officers surrounded Ferreia and kicked and punched him repeatedly in the course of arresting him while he was lying down defenseless on the street.
11. As a direct result of Ferreira's violent struggle with Huard, Jacob and Murphy, Ferreira suffered multiple abrasions and bruises to his face and the area of his right eye. Exhibits A, 3 and 9-12. The abrasions and bruises that were documented in the photographic exhibits and were described in testimony by Paramedic Jennifer Roderiques ("Roderiques") were consistent with Ferreira's face having forcibly scraped against the pavement as he strenuously resisted the officers' attempt to subdue him.
12. Ferreia's claim that he was bitten by one of the officers on his left cheek in the course of the struggle was not credible. Roderiques' professional opinion was that the circular abrasion on Ferreira's left cheek — alleged by Ferreira to have been caused by a bite — was not a bite mark. The Court finds her conclusion convincing. Exhibits A, 3 and 10.
13. The absence of a bite diagnosis in the Charlton Memorial Hospital (the "Hospital") medical records (Exhibits 15 and 16) corroborate Roderiques' opinion.
14. The Court finds that Ferreira's injuries were caused by Ferreira's resisting the officers' lawful instructions to him to get out of the vehicle and their lawful attempts to secure him by placing him in handcuffs. Fereira's injuries are consistent with the struggle as described by the officers, and they are inconsistent with Ferreira's statements to the officers and to Hospital personnel. The injuries are inconsistent, as well, with Jennifer's description of the 6-8 officers punching and kicking him.
15. As Ferreira was being subdued
16. Bernardo and the remainder of the search team entered the Swindell Street premises. On the premises were Jennifer and another young woman, Melanie Aguiar ("Melanie"), no relation to Jennifer. For security purposes, Bernardo ordered that Jennifer and Melanie be handcuffed while the search of the premises proceeded.
17. Upon Ferreira's vehicle being searched, the police found substantial quantities of heroin and cocaine. As a result, he was placed under arrest and advised of his Miranda rights. Although not arrested, Jennifer and Melanie were also advised of their Miranda rights.
18. Ferreira was brought into the apartment and placed on a couch while the search proceeded. However, Ferreira was vocally agitated, screaming, cursing and swearing. At one point Ferreira kicked Huard, striking Huard in the upper leg. (The blow did not require medical attention.)
19. Ferreira also loudly instructed Jennifer and Melanie to remain silent and, as soon as they could, to contact Ferreira's lawyer, Michael Suneson ("Suneson").
20. Ferreira was removed from the Swindell Street premises at approximately 11:30 a.m. and transported to the police station to be booked. He arrived at the station at approximately 11:41 a.m. As he was being booked, Ferreira requested medical assistance. As a result, he was then transported to the Hospital for treatment. Jacob accompanied him there. Huard was ordered to the Hospital to assist Jacob.
21. Ferreira was admitted to the Hospital at 12:21 p.m. Exhibit 14.
22. Shortly after Huard arrived, Ferreira informed the officers and the Hospital staff that he wanted to go to court. Id. Against the advice of the Hospital staff, Ferreira was released at 1:08 p.m. Id.
23. Huard and Jacob were aware that when Ferreira left the Hospital, he wanted to be transported to court as soon as possible.
24. Departmental procedures did not permit Huard and Jacob to transport Ferreira directly to Court. Rather, such procedures required that Ferreira be returned to the station and to be thereafter transported to court as arranged by the Department's Court Liaison Unit. Further, the Department's procedures required that before Ferreira was taken to court, the booking process needed to be completed. This included the completion by Detective Bernardo, as the officer in charge of the search and the arrest, of the Department's standard Arrest Report.
25. The Fall River District Court required that a completed arrest report accompany any arrestee because the arrest report is customarily used as the source of the factual information on which criminal complaints are issued.
26. As noted above, responsibility for transporting prisoners from the station lock-up to the court rested with the Department's Court Liaison Unit.
27. Huard's and Jacob's responsibility for Ferreira ended upon their returning Ferreira to the custody of the lock-up at approximately 1:30 p.m. Neither Huard nor Jacob had a departmental responsibility or duty to transport Ferreira to court.
28. While Ferreira was being transported to the Hospital and then back to the station, the search at the Swindell Street premises was completed. No drugs were found on the premises, but approximately $3,750 in cash was seized.
29. The police reasonably believed that cash in that amount was consistent with what they suspected was Ferreira's narcotics trafficking from the apartment.
30. Jennifer Aguiar testified that she was aware of the money. She stated that Ferreira had recently received it in connection with the sale of his truck.
31. Bernardo returned to the station between 1:30 and 2 pm. Once there, he completed the paperwork in connection with the Swindell Street search and followed the standard procedures required after a narcotics arrest. These included weighing the seized drugs, packaging and organizing the items that were seized, completing an evidence log with regard to the same, drafting the Arrest Report, circulating it to team members for their comments and revisions and, ultimately, executing the Arrest Report.
32. Bernardo did not complete the paperwork until somewhere between 4 and 5 p.m.
33. In the ordinary course, the last transport of prisoners from the station lock-up to the Fall River District Court occurs at approximately 2 p.m. This practice has developed over time as a result of the Department's Court Liaison Unit's consultation and coordination with the appropriate authorities at the District Court.
34. Upon Ferreira's arrival at the station from the Hospital at approximately 1:30 p.m., he stated that he wanted to be taken to court as soon as possible. However, he was not transported to court because the paperwork which the court required had not been completed by 2 p.m.
35. No Fall River Police Department personnel involved in Ferreira's booking or custody believed that they were under a legal or departmental obligation to transport Ferreira to court before the booking process was complete. To the contrary, all department personnel understood that they could not take Ferreira to court until the Arrest Report was finalized and, in any event, that they could not do so after 2 p.m. It was because of that belief that they did not transport Ferreira to court.
36. Ferreira was not held at the station because of a personal animus that any member of the Department had against Ferreira or in non-compliance with a known duty.
37. While Ferreira was in the lock-up after his return from the Hospital at approximately 1:30 p.m., he became increasingly uncomfortable from the injuries that he sustained from his struggle with Huard and the other officers on Swindell Street and from other sources.
38. The record was not clear as to when Ferriera first requested to be returned to the Hospital; however, at least by approximately 4:30 p.m., he had done so.
39. As noted earlier, while Ferreira was still at Swindell Street, he had made it known that he wanted to see his lawyer, Suneson, and at that time he instructed Jennifer and Melanie to contact Suneson on his behalf.
40. At approximately 12 noon, Ferreira was provided access to a telephone, and he placed a call to his mother, Jacqueline Mendonca ("Mendonca"), whom he expected would be able to get in touch with Suneson. Mendonca, however, was unreachable because she was at a dentist appointment in Boston. Being unable to contact her, Ferreira left a voicemail on her cell phone. When Mendonca's dentist appointment was over at approximately 12:15 p.m., she accessed her voicemail and got the following cryptic message from Ferreira: "Ma: Get a hold of Mike [Suneson] to go to the [police] station. I got beat up. And I've been arrested." Mendonca saved the message and made a duplicate. The duplicate was introduced as Exhibit 13.
41. Mendonca immediately tried to call Suneson, first at this office and then at his home in Taunton. She left messages at both locations that Ferreira had been arrested and needed Suneson's help. Mendonca continued to call through the afternoon. Suneson did not pick up any of the messages until approximately 5 p.m. after he arrived home.
42. Meanwhile, Mendonca reached Jennifer Aguiar at Swindell Street. Mendonca quoted her as saying to her, "Oh my god, the house was raided and Richard [Ferreira] was arrested!" Mendonca assured Aguiar that she would be there as soon as she could.
43. Mendonca then drove from Boston and arrived at about 1:30 at Swindell Street. She picked up Aguiar and proceeded to the Fall River District Court.
44. Ferreira left a second message on Mendonca's cellphone at approximately 1:49 p.m. Again, the message was cryptic: "They are going to bring me to court. I'm going to need bail money." Exhibit 13.
45. Mendonca and Aguiar arrived at the court at about 2 p.m. They waited for about an hour, expecting Ferreira to appear, but he did not because he was still at the station lock-up. They then returned to Swindell Street while Mendonca continued to try to reach Suneson.
46. At approximately 5 p.m., Suneson, having retrieved Mendonca's earlier messages for the first time, called Mendonca and instructed her to meet him at the Fall River police station. Mendonca and Aguiar then drove to the station and waited for Suneson.
47. Suneson arrived at approximately 5:30. He went to the officer on duty behind the screen in the lobby of the station, Officer Thomas Faris ("Faris"), and he showed Faris his license and attorney bar card. Suneson informed Faris that he was Ferreira's attorney and requested the opportunity to see him. Suneson also instructed Faris that no police personnel were to speak to Ferreira until he (Suneson) had an opportunity to meet with him.
48. Suneson, Mendonca and Aguiar then waited in the station lobby for approximately a half hour. No word was forthcoming as to Suneson's access to Ferreira. Suneson then went up to the desk and expressed his concerns to Faris about the delay and about the possibility that police personnel might be talking to his client against the instruction that Suneson had earlier communicated to Faris. Suneson demanded to see the officer in charge of the lock-up. Faris said he would pass on the request.
49. Shortly thereafter, at approximately 6 p.m., Sgt. Paul Gauvin ("Gauvin"), who was in charge of the lock-up, the booking desk and communications desk, came to the lobby and spoke with Suneson, Mendonca and Aguiar.
50. Before his current assignment, Gauvin had been a member of the Vice Unit, and he personally knew all of the officers who were involved in the arrest of Ferreira and the search of the Swindell Street apartment.
51. Gauvin also knew Suneson from Suneson's having represented at least person of whom Gauvin had participated in the drug arrest at some unspecified time in the past. In response to Ferreira's counsel's question to Gauvin at the hearing, "You don't think much of Mike Suneson, do you?", Gauvin flatly replied, "That's a fair statement."
52. Apparently, in the earlier narcotics case that Gauvin had with Suneson's client, Suneson had brought a so-called Franks motion to have the case dismissed. That motion was based on the allegation that Gauvin, as the affiant of the search warrant that led to the arrest of Suneson's clent, had misstated the information attributed to the confidential informant upon which the warrant was based. Ultimately, the motion was not pressed because Suneson's client pleaded guilty to an agreed upon disposition.
Franks v. Delaware, 430 U.S. 154 (1978).
53. From the Court's first-hand observations at the hearing, it was apparent that Gauvin disliked Suneson and that Suneson did not have a high regard for Gauvin.
54. Before Gauvin came out to meet with Suneson, he had spoken several times with Ferreira in the lock-up about Ferreira's physical condition and Ferreira's request to be returned to the Hospital.
55. In addition to the pain Ferreira was experiencing from the abrasions and bruises sustained during his arrest, Ferreira complained of chest pains that were radiating to other parts of his body. He also complained of numbness.
56. In response to Ferreira's reported symptoms, Gauvin summoned an ambulance to transport Ferreira back to the Hospital.
57. The evidence as to the timing was not clear, but sometime prior to Ferreira being returned to the Hospital, Gauvin informed Ferreira that Suneson was at the station and had requested to see him.
58. Gauvin believed that he had discretion at that juncture whether to permit Ferreira to meet with his lawyer, Suneson.
59. Gauvin informed Ferreira that he (Ferreira) had a choice to make. He could see Suneson or he could go to the Hospital. Gauvin told Ferreira that he could not do both. Ferreira chose to go to the Hospital.
60. The ambulance and EMT's arrived at the station at 5:37 p.m. The ambulance departed the station with Ferreira at 5:49 p.m.
61. The Court infers that the ambulance was at the station at the time that Suneson was in the lobby and, thus, after Suneson had requested to see Ferreira.
62. The EMTs reported that upon their arrival at the lock-up, Ferreira was "lying prone moaning and crying" and complained that he had had chest pains ("cp") for the prior 20 minutes, which pains were radiating to his left arm. On a 10 point scale, Ferreira described to the EMTS that his pain was 6-10.
63. Ferreira also informed the EMTs that he "took cocaine approximately 11 a.m. [that] morning." Exhibit 17.
64. Ferreira was placed on a stretcher and transported to the Hospital, arriving at 5:53 p.m.
65. When Ferreira arrived at the Hospital and was questioned about his condition by the admitting staff, Ferreira informed them that he had done "5 bags of heroin" and "2 lines" of cocaine. Exhibit 15.
66. After Ferreira was removed from the station, Gauvin came to the lobby and spoke with Suneson, Aguiar and Mendonca. The accounts as to what transpired in the lobby sharply diverged. Suneson's account (confirmed in substance by Aguiar and Mendonca) was that Gauvin informed Suneson that he (Gauvin) had talked to Ferreira and that Ferreira had said to Gauvin, "Fuck Mike Suneson. I don't need a fucking lawyer." Suneson got upset and challenged Gauvin, reminding him that he had instructed the officer behind the lobby window that no one was to speak to Ferreira.
67. Gauvin's account was that he simply informed Suneson that Ferreira "was not available" to meet with him. He described Suneson's demeanor and attitude at that juncture as "not happy".
68. All the witnesses agreed in substance as to what happened next: Mendonca became visibly upset and loudly and repeatedly accused Gauvin of being a "liar".
69. Mendonca brandished her cell phone and either played or offered to play the noon time message from Ferreira asking her to get in touch with Suneson.
70. Gauvin responded by threatening to arrest Mendonca because of her disruptive conduct. Suneson intervened and sought to calm Mendonca, informing her that Gauvin was acting the way he was because of Gauvin's problem with him (Suneson) arising from their earlier case and not because of the present case.
71. Although Gauvin's, Suneson's, Mendonca's and Aguiar's versions differed materially, the Court finds that Suneson was visibly upset because he believed that he was being wrongfully denied access to his client. Gauvin and Faris (the duty officer in the lobby) described Suneson as having angrily screamed and having hammered his hand on the shelf in front of the glass barrier separating Faris from the lobby. Faris claimed that in an aggressive and hostile manner, Suneson pointed at him (Faris) and demanded that Faris write up a report about what had just transpired in the lobby.
72. Suneson and Gauvin agreed (and the Court finds) that Gauvin informed Suneson that he could call back later for further information on Ferreira.
73. Suneson, Mendonca and Aguiar then left the station. After a coffee at a nearby Dunkin Donuts, each then went to their respective homes for the night.
74. Gauvin did not intentionally obstruct Ferreira's access to Suneson. The Court finds that at or about the time that Suneson arrived at the station, Ferreira was being readied for transport to the Hospital.
75. The Court finds it implausible that Ferreira had in fact said to Gauvin, "Fuck Mike Suneson. I don't need a fucking lawyer," as Suneson quoted Gauvin as reporting.
76. The Court further finds that from the time of his arrest, Ferreira wanted in fact to speak to Suneson as his counsel.
77. As of 5 p.m. on November 19th, Ferreira was in acute pain, was suffering radiating chest pains and numbness and was deeply upset on account of it. This was recorded by the EMTs who transported Ferreira to the Hospital. Exhibit 17.
78. Fereira's condition was such that he either overtly stated to Gauvin that if he had to choose between consulting with Suneson and going directly to the Hospital, he chose in fact to go to the Hospital or Ferreira would have said that if he had been directly presented with the choice at that time.
79. To the extent that Gauvin informed Suneson in the lobby that Ferreira chose not to see Suneson at that time, that information was accurate.
80. Given Gauvin's apparent distaste for Suneson, it is possible (but the Court does not find) that Gauvin embellished Ferreira's remarks to suggest to Suneson that Ferreira affirmatively did not want to meet with Suneson. Because of Ferreira's stated preference at that juncture to be treated at the Hospital, Gauvin's statements as attributed by Suneson would have had no effect on whether Ferreira in fact would have met with Suneson at the station.
81. Suneson did not call the station back later that evening, nor over the weekend. However, Suneson appeared in court on Monday and filed his appearance to represent Ferreira.
82. Gauvin intentionally did not inform Suneson, Mendonca and Aguiar that Ferreira had been taken to the Hospital. Gauvin did so because he was concerned in good faith with the disturbance that he believed they would cause at the Hospital if they went there while Ferreira was being treated in police custody. Gauvin believed that any disturbance at the Hospital would be particularly risky because there was a single police officer at the Hospital providing security while Ferreira was there.
83. Gauvin did not withhold the information as to Ferreira's transportation to the Hospital from Suneson, Mendonca and Aguiar because he was concerned with their then seeing the extent of Ferreira's physical injuries.
84. Gauvin had a reasonable basis to be concerned about a disruption at the Hospital because of Ferreira's earlier conduct in resisting arrest and because of the confrontation he had with Mendonca and Suneson in the station lobby shortly before.
85. Suneson thereafter continued to be Ferreira's counsel on this case until such time as his motion to suppress the evidence seized in Ferreira's car and at 115 Swindell Street was denied. After such denial, Suneson began to prepare the instant motion. However, Suneson realized early that he would be a witness at the hearing on the motion. As a result, Suneson withdrew from his representation, and successor counsel entered the case in order to pursue the motion.
86. The Fall River Police Department and the clerk/magistrate's office at the Fall River District Court had an established practice and procedure in place at the time of the events underlying this case with regard to the transport of prisoners to the court for determination of bail and related proceedings.
87. As noted above, on any given day when the District Court was in session, prisoners held at the Department lock-up were required to be transported from the station no later than 2 p.m. After that time, the prisoners would be held at the station where there bail would be set by an assistant clerk/magistrate who would appear at the station at least once every four hours if there were unbailed prisoners there. The clerk's office at the District Court routinely distributed to the Department a schedule that identified the particular assistant clerk/magistrate on duty as bail magistrate for a given day.
88. As noted earlier, the Arrest Report on Ferreira was not completed until late in the afternoon on November 19th. In compliance with routine procedure, Ferreira was not eligible to be transported to the court until the Arrest Report was done. Due to the fact that the report was not prepared by 2 p.m., Ferreira was not transported to the court on Friday to have bail set.
89. Neither Bernardo nor any other Fall River Police personnel intentionally delayed the completion of the Arrest Report or otherwise intentionally tarried at the station in order to prevent Ferreira from being transported to court by 2 p.m.
90. The record is unclear as to exactly when bail was set, but Assistant Clerk/Magistrate Sharon Buonanno as the bail magistrate set bail in the amount of $25,000 cash.
91. The Court finds, in light of the absence of evidence in the record that would support a contrary inference, that the bail magistrate set Ferreira's bail within four hours of the close of the District Court on November 19th in accordance with the usual practice of the clerk's office as described above.
92. Ferreira wanted to be admitted to bail.
93. Ferreira was not informed that he and his lawyer had a right to be heard under reasonable circumstances by the bail magistrate before bail was set.
94. The bail magistrate did not speak to Ferreira before setting bail.
95. Suneson was not informed of the bail magistrate's intention to set bail.
96. The bail magistrate heard from neither Ferreira nor Suneson in setting bail.
97. It was routine practice that the bail magistrates in Fall River set bail without hearing from a defendant or the defendant's attorney.
98. There were no circumstances present that would have made it unreasonably difficult for the bail magistrate to communicate with Ferreira or Suneson before setting bail.
99. Suneson testified that the $25,000 bail set by the bail magistrate was consistent with the amount of bail customarily set in Fall River in cases similar to Ferreira's.
100. The determination of the amount of bail to be set when a defendant is held at the Department is the sole responsibility of the bail magistrate.
101. The computer program used by the Fall River Police Department to complete arrestees' booking papers allows data to be added to data previously entered, but it does not allow previously entered data to be deleted.
102. Ferreira's booking sheet contained an entry that a $40 cash bail had been set and paid. An early printed version of the sheet contained only that information as to Ferreira's bail. Exhibit 6. The version thus gave the inaccurate appearance that Ferreira had been bailed for that amount and released.
103. A later generated booking sheet for Ferreira (Exhibit 5) recorded the $25,000 bail set by the bail magistrate, but the report inaccurately characterized the $25,000 bail as "Personal Recognizance". The later generated sheet continued to have the $40 entry. Exhibit 5.
104. Court finds that the above inaccuracies were inadvertent and in part resulted from limitations of the computer program or from the booking officers' familiarity with the workings of the program. The errors were not intentional.
According to testimony at the hearing, $40 is routinely charged as a fee paid to the bail magistrate where a defendant thereafter makes bail. The $40 is added onto the amount set by the bail magistrate. Where a person pays the fee but the arrestee does not make bail, the $40 so paid "goes with" the arrestee to court and is credited to the arrestee thereafter.
105. Aguiar's testimony that she never saw and that she was unaware of Ferreira's using drugs was not credible. Aguiar was Ferreira's girlfriend. A large quantity of cocaine and heroin was found in Ferreira's car. Further, there was $3,750 of cash found in Aguiar's Swindell Street apartment. Ferreira stated to the EMTs that he had taken cocaine at 11 a.m. that day, and Ferreira informed the admitting staff at the Hospital that he had consumed five bags of heroin and two lines of cocaine. At the time Ferreira took the drugs Ferreira was at Swindell Street. Aguiar was there, too. Taken as a whole, Aguiar's testimony was not credible on account of these circumstances and her apparent bias.
Discussion
The defendant advances three grounds warranting the dismissal of the indictment: (1) That he was denied prompt access to court for setting bail, (2) that he was denied access to his counsel while in the police lock-up and (3) that the police used excessive force in arresting him. They will be considered in order.
Denial of access to bail.
An arrestee has the right to arraignment without unreasonable delay. Massachusetts Rule of Criminal Procedure 7(a)(1) provides that upon arrest, "[a] defendant who has been arrested will be brought before a court if then in session, and if not, at its next session. . . . The judge or special magistrate will then arraign the defendant or will set a time for arraignment." The initial court appearance "affords a defendant the opportunity to have bail set by the court, to receive appointed counsel, and to be arraigned or to have a date set for arraignment." Commonwealth v. Perito, 417 Mass. 674, 680 (1994). The purpose of the rule requiring a prompt post-arrest appearance in court "is to prevent unlawful detention and eliminate opportunity and incentive for the application of improper police pressure." Id., quoting Commonwealth v. Cote, 386 Mass. 354, 361 n. 11 (1982).
However, Rule 7 "does not state when, during the respective sessions, an arrested defendant must be brought before a court[.]" Commonwealth v. Rosario, 422 Mass. 48, 51 (1996). The common-law rule has long been that the police have a duty to bring an arrested person before a court as soon as is reasonably possible. Rosario, 422 Mass. at 51, citing Keefe v. Hart, 213 Mass. 476, 482 (1913). "The reasonableness of the delay is to be determined by the circumstances." Id. at 52; Perito, 417 Mass. at 680.
In Rosario, the SJC held that a delay of more than six hours for police questioning was presumptively unreasonable. 422 Mass. at 56. At issue was the admissibility of statements made before the defendant's preliminary appearance. Id. The court fashioned a six hour "safe harbor" by stating that a six hour delay is presumptively reasonable, but any further delay is presumptively unreasonable. Id. The six hour rule applies regardless of when the arrest occurred or when the court is in session. Id. The court held that an unreasonable delay, i.e., delay of more than six hours, would result in suppression of statements made by the defendant, unless the defendant had waived the right to a prompt arraignment, or the police had a well founded excuse for the delay. Id. at 56-57.
When a prompt court appearance is impossible because court is not in session, an arrestee still has a right to a prompt bail determination. Perito, 417 Mass. 679. The statutory scheme governing bail "provides an arrested party the statutory right to prompt release on bail." Commonwealth v. Hampe, 419 Mass. 514, 518 (1995). The right is derived from G.L. c. 276, § 58 and Rule 14 of the Superior Court Rules Governing Persons Authorized to Take Bail ("Rule 14"). See Hampe, 419 Mass. At 519. Rule 14 provides that persons authorized to take bail respond to requests for bail "with all reasonable promptness." Hampe, at 519 (emphasis in original), quoting Rule 14 (1991 ed.).
Although the governing statutes establish that a hearing must be prompt, they do not specifically "establish a fixed time period within which a bail hearing must be held." Commonwealth v. Falco, supra, 43 Mass. App. Ct. at 255. The SJC has "inferred from the six hour limit on police questioning [noted in Rosario, 422 Mass. at 56], that bail hearings should occur within roughly six hours from booking." Commonwealth v. King, 429 Mass. 169, 175 (1999) (citation omitted). See Commonwealth v. Christolini, 422 Mass. 854, 856 (1996) (finding that, under the circumstances, a six hour six minute delay did not violate right to a prompt bail hearing); see also Commonwealth v. Falco, 43 Mass. App. Ct. at 256-257 (six and one-half hour delay not unreasonable under the circumstances). Thus, "[w]here the bail magistrate waited over seven hours to conduct a bail hearing, he failed to respond with the promptness required and, therefore, violated the defendant's rights to a prompt bail hearing." King, 429 Mass. at 175.
The right to prompt bail is distinguished from the right to a prompt post-arrest probable cause determination. In Jenkins v. Chief Justice of the District Court, 416 Mass. 221 (1993), the Supreme Judicial Court recognized that article 14 of the Massachusetts Declaration of Rights (Article 14) "guarantees that a warrantless arrest must be followed by a judicial determination of probable cause no later than reasonably necessary to process the arrest and to reach a magistrate." Id. at 232. The Jenkins court held that the probable cause determination should generally occur within 24 hours of arrest. Id. at 238. The court also stated that "in order to accommodate unforeseeable circumstances, we shall treat this time period as a presumption: where it is exceeded the police must bear the burden of demonstrating that an extraordinary circumstance caused the delay." Id. at 238. When an arrestee is promptly bailed, a probable cause determination is no longer required. Id.
"[The Court is to] evaluate the lawfulness of any delay in bringing a defendant to court for his initial appearance by considering the reasonableness of the delay in light of the circumstances. Perito, 417 Mass. at 680.
Ferreira was not denied prompt access to the court for purposes of bail. The delay in bringing Ferreira to court was justified by the need to complete the Arrest Report in the course of the Department's routine booking process. It is the Arrest Report that provides the court with the necessary information about the crime for which a person is held. "'Until the booking procedures [are] completed, . . . the defendant [is] not entitled to a bail hearing.'" Commonwealth v. Maylott, 53 Mass. App. Ct. 516, 520 (1997), quoting Commonwealth v. Whitcomb, 37 Mass. App. Ct. 929, 930 (1994).
In no event could Ferreira's Arrest Report have reasonably been completed before the 2 p.m. departmental deadline for transporting prisoners from the station to court.
The 2 p.m. deadline itself is reasonable, taking into consideration the foreseeable need, once a prisoner arrives at court, for the case to be prepared by court personnel for hearing before the close of business.
Ferreira's bail was timely set by the bail magistrate. The defendant thereafter was unable to make the $25,000 cash bail. However, when the district court was next open (the following Monday), Ferreira was brought to court, and a new bail was set, which he made.
The circumstances of the bail magistrate's setting Ferreira's bail at the station house were not directly addressed by Ferreira at the hearing or in his papers. Accordingly, the Court considers any claims with regard to them to be waived. However, it does appear from the evidence that the procedures followed in Ferreira's case (and routinely in Fall River) may be contrary to G.L. c. 276, § 58 (the "Bail Statute").
The Bail Statute provides: "[An] assistant clerk of the district court . . . shall, when a prisoner is held under arrest. . ., hold a hearing in which the defendant and his counsel, if any, may participate and inquire into the case and shall admit such person to bail. . . ." The SJC in Perito held that "Section 58 explicitly grants a defendant and his counsel, if any, the right to participate in his bail hearing. This participation is crucial, in light of the Commonwealth's policy of limiting pretrial restrictions on liberty. . . ." 417 Mass. 678. When a court is not in session, the hearing is held "in a police station or other place of detention where a person is being held under arrest, at night or on weekends or holidays." Id. at 678-679 (citations omitted).
Sgt. Gauvin, whose responsibilities included (and currently include) supervision of the Department's booking process and the lock-up, candidly testified that he had never had an assistant clerk ask to speak to a defendant in connection with setting bail at the station. Ferreira's bail was set without Ferreira being present and without his being informed that that he could be present along with his attorney. His lawyer, Suneson, was not present and was not informed of the opportunity to be present in person or otherwise when bail was set by the bail magistrate. There were no circumstances present which would have reasonably interfered with the bail magistrate's capacity to have communicated with Ferreira or Suneson before bail was set.
However, even if the statutory procedures were not followed in the setting of Ferreira's station house bail, Ferreira would not be entitled to the dismissal of his case. Dismissal is disfavored as a remedy except where material prejudice to the defendant's ability to obtain a fair trial is shown. Generally, "[a]n unlawful detention cannot deprive the government of the opportunity to prove guilt through the introduction of evidence wholly untainted by . . . misconduct." Commonwealth v. Fredette, 396 Mass. 455, 459 (1985), citing United States v. Crews, 445 U.S. 463, 476 (1980). "Dismissal is a drastic remedy for official misconduct" . . . as "[t]he public has a substantial interest in prosecuting those accused of crime and bringing the guilty to justice." Commonwealth v. Perito, 417 Mass. 674, 681 (1994).
In Perito where the SJC found that the defendant's bail was unlawfully set by a district court judge out of the presence of the defendant, the SJC provided the following guidance:
[I]n the context of a preindictment delay, . . . dismissal of indictments is not appropriate unless a defendant demonstrates actual prejudice to his case and misconduct on the part of the Commonwealth which was intentionally undertaken as a means of obtaining a tactical advantage or undertaken with reckless disregard for known risks to the defendants ability to mount a defense.
Perito, 417 Mass. at 682 (emphasis in original), citing Commonwealth v. Imbruglia, 377 Mass. 682, 688-691 (1979).
None of these circumstances are present here in Ferreira's case. Accordingly, there would be no basis to dismiss the indictment even if the issue had been properly preserved.
Pre-Indictment Right To Counsel.
The 5th Amendment of the United States Constitution recognizes, in the context of custodial interrogation, a right to counsel that exists to safeguard the right against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 470 (1966). If a suspect who is under arrest requests a lawyer, all questioning of him must cease until his lawyer is present. Commonwealth v. Obershaw, 435 Mass. 794, 800 (2002), citing Miranda, 384 U.S. at 474. If the police violate the suspect's rights by continuing questioning after he has requested a lawyer, statements made subsequent to the request must be suppressed. See id. at 799-800.
In Commonwealth v. Mavredakis, the SJC recognized that under article 12 of the Massachusetts Declaration of Rights, the police have a duty to inform a suspect who is in custody of his lawyer's request to contact him. 430 Mass. 848, 860 (2000). Under Mavredakis, a failure by police to inform a suspect of his lawyer's efforts to contact him renders his Miranda waiver inoperative. See id. at 856-860. The Mavredakis court reasoned that "a suspect's knowledge of an attorney's effort to render assistance [is] necessary to effect a voluntary and intelligent waiver of Miranda rights." Id., at 855-856.
The Supreme Court has declined to recognize such a right under the federal Constitution. Moran v. Burbine, 475 U.S. 412, 422 (1986); Mavredakis, 430 Mass. at 856.
There was a brief period of time when Ferreira's counsel, Suneson, was at the station while Ferreira was still there. Suneson came to the station at approximately 5:30 p.m.; the EMTs arrived for purposes of transporting Ferreira to the Hospital at 5:37 p.m. They left the station with Ferreira at 5:49 p.m.
While it is clear that earlier in the day, Ferreira wanted to speak with Suneson, by 5:30 in the afternoon he was (by the EMTs' description) "lying prone moaning and crying" and complaining of radiating chest pains. As noted in the Court's findings of fact, at that juncture Ferreira chose to go to the Hospital rather than to remain at the station and consult with Suneson. Accordingly, the police did not deny Ferreira access to his counsel.
Thereafter, Gauvin intentionally withheld from Suneson the information that Ferreira had been taken to the Hospital. In that sense, it can be said that the Fall River Police denied Suneson the opportunity to meet with his client if (as is reasonable to assume that) Suneson would have gone to the Hospital if had had known that Ferreira was there.
However, the Court rules that the police decision to withhold that information from Suneson was reasonable under the circumstances. The police at that point in time had had a violent struggle with Fereira earlier in the day; Ferreira had been disruptive at the Swindell Street premises following his arrest, and there had just been a loud confrontation in the police lobby between Gauvin, Suneson and Ferreira's mother, Mendonca. Gauvin's stated concern was that if he informed Suneson, Mendonca and Aguiar that Ferreira had been transported to the Hospital, they would have gone to the Hospital and there risked a disruption. Under those circumstances, Ferreira's secure custody (a single police officer was guarding him at the Hospital) could have been jeopardized, and the operation of the Hospital's emergency services for other patients disrupted.
Furthermore, the Mavredakis right to be informed of counsel's presence and access to such counsel is limited to the context of custodial interrogation. Commonwealth v. Beland, 436 Mass. 273 (2002). The Beland court rejected the argument that Mavredakis created an affirmative right to counsel prior to the initiation of adversary proceedings beyond the specific setting of custodial interrogation. Id. at 286. The Beland court stated:
Nowhere in our decision in Commonwealth v. Mavredakis . . . did we create a limited right to the assistance of counsel prior to the imposition of adversary criminal proceedings. Our holding was limited to analysis of the reach of the self-incrimination provisions of art. 12, and did not expand the rights of criminal defendants under the clause to include the assistance of counsel. We expressly stated that a duty to inform was needed to effectuate "the abstract rights listed" in Miranda v. Arizona [citations omitted]. The right to the assistance of counsel under the Sixth Amendment is distinct from the right to have an attorney present during custodial interrogation. McNeill v. Wisconsin, 501 U.S. 171 (1991).
Beland, 436 Mass. at 288.
Consistent with the rationale underlying the right to notice of counsel's presence and access to counsel, the remedy for a violation is suppression of the statements. Mavredakis, 430 Mass. at 861. As noted above, Ferreira made no statements to the police. Accordingly, even if Gauvin's conduct were to be viewed as having been contrary to Ferreira's rights under Mavredakis, dismissal would be inappropriate.
Excessive Force by the Police.
The determination of whether police conduct is "egregious" such as to give rise to a remedy affecting a criminal case focuses on "'whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of government power.'" Commonwealth v. Monteagudo, 427 Mass. 484, 487 (1998), quoting United States v. Russell, 411 U.S. 423, 441 (1973) (Stewart, J., dissenting). Police conduct may be found egregious where it involves "coercion, violence or brutality," "persistent exploitation of personal weakness," or where it is "shocking, outrageous, and clearly intolerable." Monteagudo, 427 Mass. at 487 (1998).
In subduing and arresting Ferreira, the Fall River Police acted appropriately. As noted in the Court's findings of fact, only such force as was necessary was employed by the police. Ferreira forcibly resisted and forcefully twisted and wrenched his body to prevent the officers from handcuffing and otherwise securing him. Ferreira's injuries were consistent with his face having been scraped by the surface of Swindell Street as a result of Ferreira's own resistance.
As recorded in the Hospital records, Ferreira admitted on the day of his arrest that he had recently consumed five bags of heroin and two lines of cocaine. It is reasonable to infer that such a combination of drugs circulating in Ferreira's blood and impacting his nervous system influenced Ferreira's actions.
Even if the Court's assessment of the lawfulness of the officers' conduct were to be deemed unfounded, on these facts Ferreira would not be entitled to the dismissal of his indictment. "The remedy for all but the most egregious Fourth Amendment or art. 14 violations is suppression of the evidence and its fruits, not dismissal of the resulting charges." Commonwealth v. Gomes, 59 Mass. App. Ct. 332, 339 (2003). See also Commonwealth v. Jacobsen, 419 Mass. 269, 275 (1995). "The defendant 'is not himself a suppressible 'fruit' of illegal official conduct, and the illegality of his arrest cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by the police misconduct.'" Commonwealth v. Fredette, supra, 396 Mass. at 462 (brackets omitted), quoting United States v. Crews, 445 U.S. 463, 487-488 (1980). See generally Wayne R. Lafave, Search and Seizure § 5.1(d) (4th Ed. 2004).
The remedy of dismissal is available only where police misconduct materially prejudiced a defendant's capacity to receive a fair trial. Commonwealth v. Manning, 373 Mass. 438, 443-444 (1997) (dismissal there was appropriate "because the defendant 'had in fact been prejudiced to some extent' by the impairment of his right to the assistance of counsel and 'the officers' misconduct was so pervasive as to preclude any confident assumption that proceedings at a new trial could be free of the taint"). See also Commonwealth v. King, 400 Mass. 283, 291 (1987).
While the SJC and the Appeals Court have suggested that particularly egregious police misconduct may warrant dismissal, Commonwealth v. Jacobsen, 419 Mass. 269, 276 (1995), the SJC has "never ordered the dismissal of an indictment for misconduct in the absence of prejudice". Commonwealth v. Monteagudo, supra, 427 Mass. at 486. See also Commonwealth v. Lewin, 405 Mass. 566, 586 (1989) ("We have sometimes remarked that outrageous police conduct, not shown to be prejudicial to a fair trial, may require dismissal of the charges, but we have never dismissed charges in such circumstances"). And in Commonwealth v. King, 400 Mass. 283, 290 (1987) the SJC stated, "It may be that, in the absence of prejudice or substantial threat of prejudice, an indictment should never be dismissed."
Furthermore, the availability of civil remedies and internal police department discipline procedures militate against using dismissal as a prophylactic. Commonwealth v. King, id. at 292 ("Because judicial responses should be limited to truly remedial, and not punitive measures, the absolute necessity for integrity in law enforcement recommends, in appropriate cases, recourse to civil remedies and departmental police discipline").
Although not material to the Court's decision here, there were several references during the evidentiary hearing to a pending civil proceeding against the Fall River Police Department arising from the defendant's allegations of excessive force having been employed in his arrest.
ORDER
For the foregoing reasons, the defendant's motion to dismiss is DENIED .