Opinion
ESCR 2005-1450.
June 22, 2006.
MEMORANDUM AND ORDER
1. Introduction. The defendant Adam Giarusso is charged with possession of a sawed-off shotgun. He has filed a motion to suppress the firearm which was seized by the Lawrence Police during an officer's response to a report of an "uninvited guest." Based on the credible evidence presented at the hearing on the defendant's motion, I make the following findings of fact and rulings of law.
2. Findings of fact. Keith Salach has been a Lawrence Police officer for 22 years. On August 11, 2005, at approximately 11:30 p.m., while in uniform, he and his partner were dispatched to Apartment number 2, 55 Newbury Street in Lawrence on a report of an "uninvited guest." Officer Salach arrived at that location within a few minutes. He had never been to the address before. He had no other information about who leased the apartment. Apartment number 2 is in the rear of the building known as 55 Newbury Street. He was met at the door by an individual who identified himself as Adam Giarusso. The defendant told him that his roommate, Uoftafe Fisha, hit him in the back of the head causing "lumps." The defendant said "I want him out." Officer Salach did not observe any injuries on the defendant and there was no request for medical assistance. The defendant directed officer Salach to an interior door and told him (officer Salach) that he (the roommate) was inside. Officer Salach knocked on the door and was admitted to what appeared to be a bedroom by Uoftafe Fisha. With the defendant standing behind officer Salach, Mr. Fisha stated that he and the defendant had argued, that the defendant threw a box of cereal at him, and then came after him with a "shot gun." The two wrestled and, according to Mr. Fisha, he took the gun away from the defendant. Mr. Fisha then pointed to an open closet behind Officer Salach (not previously observed by him) and stated "there's the gun."
3. Officer Salach seized the shot gun which was lying in plain view on top of some boxes in an otherwise cluttered closet. Officer Salach directed the parties to accompany him outside the bedroom to what appeared to be a livingroom area. At no time did the police draw their service revolvers, physically restrain either the defendant or Mr. Fisha, or raise their voices. Officer Salach turned to the defendant and asked him "Do you know anything about this?" The defendant replied, "No." Directing his attention to both the defendant and Mr. Fisha, he stated "We're going to fingerprint this gun and find out who had it in his possession." The defendant, replied that it was left by a prior roommate, and added that he (the defendant) had been keeping it in the bedroom. The defendant further stated that Mr. Fisha had attacked him with a knife, and he grabbed the gun because he didn't know what to do. At this point, officer Salach and his partner placed the defendant under arrest and transported him to the Lawrence Police station where he was booked and fingerprinted in the normal course. The defendant was advised of his Miranda warnings for the first time at the police station. he declined to speak to the police.
I accept the testimony of Officer Salach that this statement was calculated to find out who owned the gun or had possession of it which, in turn, would incriminate the person who made the statement because the gun was plainly unlawful due to its shortened barrel length. I also accept his testimony that he had no specialized training in fingerprint evidence and did not know if it would be possible to lift latent prints from the shotgun. Finally, I credit his testimony that he did make an official request through departmental channels for the shotgun to be fingerprinted, but had no knowledge that it was ever done.
I credit the testimony of Officer Salach that the defendant remained calm throughout the entire episode until he was arrested. The defendant did not complain of any pain, did not exhibit any signs of injury, and did not have any difficulty in speaking to the police.
4. Rulings of law. A. Warrantless entry into defendant's apartment. The first question raised by the defendant is whether the entry into his apartment without a warrant was lawful. The police were justified in entering the apartment without a warrant as a result of the consent expressed by the defendant. In Commonwealth v. Rogers, 444 Mass. 234 (2005), the Supreme Judicial Court explained the analytical approach that should be followed in cases such as this in which the police rely on consent to make a warantless entry into an apartment or home.
Warrantless entries into the home are prohibited by the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights absent either probable cause and exigent circumstances, or consent. The reason for the rule against warrantless entry is to protect the physical integrity of the home from warrantless police intrusion. . . . When the police rely on consent to justify a warrantless entry, under both the Fourth Amendment and art. 14, the prosecution has the burden of proving that the consent was, in fact, freely and voluntarily given. Because entry based on consent is an exception to the constitutional warrant requirement, the Commonwealth must show consent unfettered by coercion, express or implied, and also something more than mere acquiescence to a claim of lawful authority. Although consent may be implicit, and the police need not utter any "magic words" of request before entering, the Commonwealth must establish that the occupant's words or conduct amounted to something other than mere acquiescence to a claim of authority or simple resignation to the perceived power of uniformed officials. The voluntariness of an individual's consent to a warrantless entry is an issue of fact, and must be examined in light of the totality of the circumstances of the case. Ordinarily, in cases involving consent to enter a defendant's home, entry is preceded by an exchange in which a police officer makes some type of inquiry of an occupant, and in response, the occupant verbally or physically reacts in a manner that is interpreted as "consent." Whether consent is voluntary depends on the nature of this interaction between the police and the occupant. In meeting its burden of establishing voluntary consent to enter, the Commonwealth must provide us with more than an ambiguous set of facts that leaves us guessing about the meaning of this interaction and, ultimately, the occupant's words or actions.
Commonwealth v. Rogers, supra, 444 Mass. at 237-38 (citations and quotations omitted). In the present case, the defendant identified himself as the person who had sought the aid of the police and invited the police to enter his apartment. Consent to enter was manifested to the police in an unambiguous manner by someone who appeared to have full authority to give consent. The police did not exert any influence over the decision made by the defendant to admit them to the apartment. Once inside the apartment, the police were given additional consent by the defendant to enter the bedroom and inquire of Mr. Fisha. Therefore, the Commonwealth has met its burden to establish voluntary consent.
B. Statements made without a waiver of Miranda. The second question raised by the defendant is whether his constitutional rights were violated because Officer Salach did not secure a waiver of his Miranda rights before questioning him about the shotgun. Assuming that Officer Salach's statement about his intention to have the shotgun fingerprinted was an interrogatory, the defendant's argument fails because at the time of the question he was not in police custody for purposes of Miranda.
See Commonwealth v. Coleman, 49 Mass. App. Ct. 150, 155 (2000) ("The interrogatory part of `custodial interrogation' looks to `any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect").
Miranda warnings are required only if the defendant is the subject of "custody and official interrogation." Commonwealth v. Larkin, 429 Mass. 426, 432, (1999) quoting Illinois v. Perkins, 496 U.S. 292, 297 (1990). Custodial interrogation is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Commonwealth v. Jung, 420 Mass. 675, 688 (1995) quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966). It is the defendant's burden to prove that there is custody. Larkin, 429 Mass. 426, 432 (1999) citing United States v. Charles, 738 F.2d 686, 692 (5th Cir. 1984). A defendant's custodial status is determined by inquiring whether Aconsidering all the circumstances, a reasonable person in the defendant's position would have believed that he was in custody." Commonwealth v. Brum, 438 Mass. 103, 111 (2002) quoting Commonwealth v. Damiano, 422 Mass. 10, 13 (1996).
The Supreme Judicial Court has set forth four factors to guide the court in making this inquiry: "(1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that the person is a suspect; (3) the nature of the interrogation, i.e., whether the interview was aggressive or, instead, informal; and (4) whether, at the time the incriminating statement or statements were made, the suspect was free to end the interview by leaving the place of the interrogation or by asking the interrogator to leave, or, alternatively, whether the interview terminated with the defendant's arrest. There is no specific formula for weighing the relevant factors, but rarely is any single factor conclusive." Commonwealth v. Sneed, 440 Mass. 216, 220 (2003) (quotations and citations omitted).
Moreover, determining "custodial interrogation" is an imprecise task. "The label `custodial interrogation,' like many such labels . . . is suggestive rather than precise; and the purpose as well as the words inform our understanding. The Miranda doctrine functionally aims to protect defendants in situations where, in common experience, isolation and the potential for coercive pressure have been found to exist." United States v. Teemer, 394 F.3d 59, 65-66 (1st Cir. 2005) citing New York v. Quarles, 467 U.S. 649, 654 (1984).
Applying these factors to the encounter between Mr. Giarusso and Officer Salach, the court finds that Mr. Giarusso was not in custody at the time of his statement. First, the location of the questioning was Mr. Giarusso's home, into which he invited and admitted the questioning officer. It was a place with which Mr. Giarusso was familiar and comfortable. "Questioning in such an environment is far removed from the "incommunicado interrogation of individuals in a police-dominated atmosphere" for which the Miranda protections were tailored." Commonwealth v. Bryant, 390 Mass. 729, 737 (1984) quoting Miranda, 384 U.S. at 445. See also Commonwealth v. Conkey, 430 Mass. 139, 144 (1999) (finding that where defendant invited police into his home, interview was non-custodial); Commonwealth v. Painten, 429 Mass. 536, 541 (1999); Breese v. Commonwealth, 415 Mass. 249, 255-256 (1993); Commonwealth v. Gendraw, 55 Mass. App. Ct. 677, 683 (2002).
Second, because Officer Salach's questions followed Mr. Fisha's accusation, and because there were only two apparent suspects, the questions could have conveyed to Mr. Giarusso that he was suspected of owning the gun. However this does not render the interaction custodial. "It was the compulsive aspect of custodial interrogation, and not the strength or content of the government's suspicions at the time the questioning was conducted, which led the court to impose the Miranda requirements with regard to custodial questioning." Bryant 390 Mass. at 741 quoting Beckwith v. United States, 425 U.S. 341, 347 (1976) (finding questioning non-custodial even where defendant knew he was the focus of an investigation).
Third, Officer Salach's question, "Do you know anything about this?" was not posed in an aggressive manner or accompanied by coercion. Even when coupled with the statement that he planned to fingerprint the gun, there is still no custodial aspect to this brief, conversational questioning. See Commonwealth v. Garcia, 443 Mass. 824, 832 (2005) (finding that short, informational, non-accusatory questioning was not custodial).
Fourth, even if one assumes that Officer Salach would not allow Mr. Giarusso to leave, the police did not physically or verbally restrain Mr. Giarusso, and Mr. Giarusso remained calm throughout the exchange. The fact that Mr. Giarusso may not have been free to leave did not transform the situation into a coercive one. See Bryant, 390 Mass. at 738-739.
Like the defendant in Bryant, Mr. Giarusso was questioned in his home in a non-accusatory manner. See Bryant 390 Mass. at 738. The Bryant court found that such at-home, unaggressive questioning was not custodial. Id. It reached this decision despite assuming, as we do here, that the defendant was not free to leave during questioning, and despite the fact that Bryant was one of several suspects in the case who had been previously questioned about the crime. Id at 738-739.
Bryant was decided under a slightly different analytic framework. The second custodial factor there was "whether the investigation has begun to focus on the suspect, including whether there is `probable cause' to arrest the suspect." Bryant 390 Mass. at 737. The Bryant court found that the investigation had not yet begun to focus solely on Mr. Bryant. Id at 738.
In the present case, the reason for the police response to the defendant's home, the invitation to enter the home, the environment where questioning took place, the non-aggressive manner of the encounter and its brief duration lead to the conclusion that Mr. Giarusso has not met his burden to establish that he was in custody at the time of Officer Salach's questions. Therefore, Miranda warnings were not required.
ORDER
For the above reasons, the defendant's motion to suppress is DENIED.