Opinion
No. 10–P–1924.
2012-08-6
COMMONWEALTH v. Abdel Jean PAUL.
By the Court (BERRY, KAFKER & MILLS, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of possession of marijuana with intent to distribute and a school zone violation. We address the following issues raised by the defendant on appeal: (1) whether the judge erred in denying a motion to suppress several bags of marijuana, an electronic scale, and approximately $1,000 in cash seized in a consented-to search of the defendant's room, where the consent was given following a police officer telling the defendant a warrant would be sought, if the defendant declined to consent; (2) whether it was ineffective representation for defense counsel not to file a motion to suppress two statements made by the defendant during an exchange between a police officer and the defendant precedent to arrest; and (3) whether certain other of the defendant's statements admitted at trial concerning, among other things, his marijuana use and whether he should call a lawyer improperly suggested consciousness of guilt and created a substantial risk of a miscarriage of justice. We affirm.
1. Factual background of motion to suppress. The motion to suppress the evidence seized in the search of the defendant's room is a principal issue raised on appeal, and we turn to that issue first. By way of factual background, we “summarize the judge's findings of fact, supplemented with uncontested testimony adduced at the evidentiary hearing.” Commonwealth v. Lopez, 458 Mass. 383, 384–385 (2010). In reviewing a decision on a motion to suppress, “we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ “ Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).
The following crucial facts are taken from the motion judge's findings and from uncontested evidence presented at the hearing. Additional facts will be presented in the discussion of the various issues. On October 15, 2009, two police officers were dispatched to assist a woman, who had obtained an abuse protective order under G.L. c. 209A, in retrieving her belongings from a rooming house in Boston where she had resided, and where the defendant lived in another room. Officers Connolly and Burrows and the woman drove to the house. Upon arrival, Connolly went to the back door and knocked. Connolly immediately detected a very strong smell of burnt marijuana. When there was no answer, the two officers and the woman walked around the outside of the house towards the front door. The woman noticed that the defendant was looking out a window, and pointed him out to the officers as the person who lived in the room across from her. When the police knocked, the defendant opened the door. Next to him was a toddler, who appeared to be about three years old.
With the front door open, Officer Connolly now detected an overwhelming smell of marijuana, and so commented to the defendant. When the officer asked if anyone else was in the house, the defendant stated a friend or cousin was there. Another person appeared near the door behind the defendant. This person had a child in his arms who was about two years old. The officers were still standing outside the door. But then, as the motion judge found, the officers, “concerned about the welfare of the children and also charged with the duty to accompany the woman to retrieve her belongings,” entered the living room of the house through the front door. To address concerns for the young children in view of the overwhelming smell of marijuana, Officer Connolly requested assistance and emergency services to take the children to a hospital to be evaluated for marijuana exposure.
Within about five to ten minutes of being inside the house, the marijuana smoke caused Officer Connolly to became lightheaded, and his skin began to tingle from the marijuana smoke inhalation. The officer went outside for fresh air, and the officers also opened up both the front and back doors to air out the house.
Approximately twenty to thirty minutes after the request for assistance, Detective Schroeder arrived. The house still reeked of marijuana. When Detective Schroeder entered, she engaged the defendant in conversation directed at identifying the parents of the children, and determining whether there had been any involvement in care of the children by the Department of Children and Families. The defendant told her the two toddlers were his sister's children. Schroeder explained that somebody needed to go to Boston Medical Center where the children would be brought.
During her continuing conversation with the defendant about the children, Detective Schroeder asked the defendant which room within the house was his and whether the defendant “had a problem” with the police looking in his room. The defendant asked Schroeder whether he should call a lawyer. Schroeder responded that it was up to him, and he could do “whatever [he] want[s] to do.” The defendant left the living room, stepped into the kitchen, and placed a telephone call to his sister.
After that call, Officer Schroeder explained that, if the defendant wanted to let the police search, he could sign a consent form which she showed him. She stated, “[if] you don't want to sign consent [form] that's fine as well. We can get a search warrant. It's not a problem.” During this conversation, the defendant told Schroeder that he was eighteen years old, that he had an eighth grade education, and that he had been arrested numerous times.
Once the defendant signed the consent form,
the police searched the defendant's room and found several smaller bags of marijuana weighing approximately two ounces inside, larger bag secreted inside the cover to a television set, an electronic scale, sandwich bags, and approximately $1000 in cash. The defendant was arrested after the marijuana was discovered. We turn to the various points in the police encounter which the defendant cites in support of his suppression motion.
Detective Schroeder read the consent form to the defendant. The form was introduced in evidence at the suppression hearing. The consent form reads, in part, “I, Abdul Jean Paul, have been informed of my rights not to have a search made of the premises described below without a search warrant and my rights to refuse a consent to search....” After reading the form, the defendant thought about it for three or four minutes and then told Schroeder, “OK, I'm going to sign it.” The defendant's signature is on the consent form.
A. The initial entry and continuing police presence in the house. The defendant challenges the initial police entry into the rooming house claiming that it was illegal because the police did not have probable cause to believe a crime was being committed inside the residence, and there were not exigent circumstances as would negate the obligation to obtain a warrant. The contentions lack merit.
When the police came to the rooming house, they were engaged in a community caretaking function because they were acting pursuant to an abuse protection order to assist a woman retrieving her belongings. That community caretaking task was “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady v. Dombrowski, 413 U.S. 433, 441 (1973). See Commonwealth v. Sondrini, 48 Mass.App.Ct. 704, 706 & n. 3 (2000).
While engaged in this community caretaking function, Officer Connolly, upon reaching the back door of the house, detected an overpowering smell of marijuana, and, then, at the front door sensed an equally strong marijuana odor. The defendant relies on Commonwealth v. Cruz, 459 Mass. 459, 465–467 (2011), and G.L. c. 94C, §§ 32L–32N, 34. The Cruz case held that because possession of one ounce or less of marijuana is a civil infraction and not a criminal offense, it could not form the basis for an exit order. Thus, the defendant argues, under Cruz, the entry here cannot be justified. (See, however, Commonwealth v. Keefner, 461 Mass. 507, 514 [2012] which holds that possession with intent to distribute marijuana, where the amount possessed is one ounce or less, remains a crime.) However, even if Cruz applies here—and that is questionable given the circumstances
—there were other independent legal grounds that justified the police entry into the house. First, as discussed above, the community caretaking function in connection with assistance relative to the abuse prevention order justified the entry.
The evidence at the suppression hearing supports the inference that the defendant likely possessed more than one ounce of marijuana, including but not limited to, the evidence concerning the defendant's everyday marijuana smoking habit, and use so heavy that the marijuana smoke haze present at the time of the events here was so heavy that a police officer had difficulty breathing freely.
Second, given the plain and physically overwhelming smell of the marijuana smoke, there was reasonable suspicion, indeed probable cause, to conclude that the crime of reckless endangerment to a child under G.L. c. 265, § 13L, was being committed inside the house. Two small children were being exposed to reeking marijuana smoke with a risk of significant and adverse effects. (Compare the effects on the adult police officer described above.) Further, the harm to the children gave rise to an exigency which warranted the entry,
especially in light of a separate community caretaking exception which covered the children. Compare Commonwealth v. Wren, 391 Mass. 705, 707 (1984); Commonwealth v. Lyons, 409 Mass. 16, 18–19 (1990). In sum, the police lawfully entered and remained within the premises.
The crime of reckless endangerment requires proof of “(i) a child under eighteen; (ii) a substantial risk of serious bodily injury or sexual abuse; (iii) the defendant wantonly or recklessly engaged in conduct that created this substantial risk, or failed to take reasonable steps to alleviate such risk where there is a duty to act.” Commonwealth v. Roderiques, 412 Mass. 415, 422 (2012). See G.L. c. 265, § 13L.
At the suppression hearing, the motion judge and both parties focused mainly on the abuse protection order as justifying the entry and did not address reckless endangerment, nor whether an exigency was present in order to obtain emergency care for the children. However, we consider both of these points of law. “An appellate court is free to affirm a ruling on grounds different from those relied on by the motion judge if the correct or preferred basis for affirmance is supported by the record and the findings.” Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997).
Given the foregoing, we conclude that the initial entry and the police's continuing presence in the rooming house were justified under the community caretaking function, and an exigency existed tied to this factual scene which presented reasonable suspicion and probable cause that the crime of reckless endangerment of children was being committed within the rooming house.
2. The defendant's consent to the search of his room. The defendant contends that the voluntariness of his consent was undermined by an unduly influential, if not coercive, force in Detective Schroeder telling him that she would get a search warrant if he did not consent.
“The question whether consent was voluntary is a question of fact to be determined in the circumstances of each case....” Commonwealth v. Aguiar, 370 Mass. 490, 496 (1976).
The motion judge ruled that because the detective had a good faith basis for making this statement, it was neither deceptive nor coercive, and the defendant's consent was voluntary. We agree.
“While no factor by itself is conclusive, factors to consider include, but are not limited to: the presence of armed, uniformed officers; whether the defendant was informed of his right to refuse consent; the age, intelligence, and other personal characteristics of the defendant; and whether the defendant was in custody when consent was given.” Commonwealth v. Carr, 458 Mass. 295, 302 (2010).
The defendant was clearly informed by Detective Schroeder that he had the right to refuse to consent. This right was memorialized on the consent to search form that Schroeder read to the defendant and which he signed. See note 1, supra, and accompanying text. That Schroeder informed the defendant she would obtain a search warrant in lieu of obtaining his consent does not, without any supplemental facts indicating coercion or deception, render the consent tainted. See Commonwealth v. Deeran, 364 Mass. 193, 196 (1973); Commonwealth v. Harmond, 376 Mass. 557, 561–562 (1978); Commonwealth v. Rogers, supra at 237 n. 4; Commonwealth v. Farnsworth, 76 Mass.App.Ct. 87, 93 (2010). Indeed, from all that appears, the police could have sought and likely could have obtained a warrant on grounds of reckless endangerment.
Commonwealth v.. LeBeau, 451 Mass. 244, 258–260 (2008) (consent to search free and voluntary and made with knowledge that defendant could refuse); and Commonwealth v. Farnsworth, supra (consent valid where defendant informed she did not have to sign consent to search). Contrast Commonwealth v. Arias, 81 Mass.App.Ct. 342, 350 (2012) (consent to search not voluntary where taint of illegal stop and frisk not overcome).
The defendant's suggestion that his ability to consent was impaired because he was under the influence of marijuana is belied by the uncontested testimony of the police that they detected no sign of the defendant's impairment and the defendant did not appear to be under the influence of marijuana.
Other factors that support the voluntariness of the consent include Schroeder's testimony that the defendant duly considered the question, as he sat silently for several minutes contemplating whether to sign the consent to search form and had time to call his sister. Further, although the defendant had a limited education, by his own admission he had had previous experience in the criminal justice system. See Commonwealth v. Burgess, 434 Mass. 307, 309–311 (2001) (consent to search validly given by eighteen year old with limited education and history of substance abuse).
3. Defendant's statements at trial. Because the evidence at the motion hearing was similar (with some additions) in all respects relevant to this appeal to the evidence at trial, we will not recite the trial evidence, except to note that, at trial, the Commonwealth summonsed an additional witness, Robert England, a police officer who gave expert testimony that the items retrieved from the defendant's room were more consistent with an intent to distribute than personal use. At trial, the defense theory—put forth through cross-examination and closing argument—was that the defendant did not know the marijuana was hidden inside the television set. Alternatively, the defendant contended that the marijuana was for his personal use.
The defendant claims for the first time on appeal that the following statements he made to Schroeder were improperly admitted at trial: (1) that his room was “the last door on the left. It's room number three”; (2) that “he smoked marijuana every day. So it was a common, it was a daily use of his”; (3) that when Schroeder asked if she could look around, he said “Should I call in a lawyer?”; and (4) his denial that there was any more marijuana in the house. Given the lack of objection, we review to discern whether there was error, and if so, whether a substantial risk of a miscarriage of justice occurred. We see neither error, nor any substantial risk of a miscarriage of justice.
a. Ineffective assistance. With respect to the first two statements—about the location of the defendant's room and his daily marijuana smoking—the defendant argues that his attorney was ineffective for failing to move to suppress these statements because they were obtained in violation of his Miranda rights and were involuntarily given. In order to prevail on an ineffective assistance of counsel claim on the ground of failing to file a motion to suppress, the defendant first has to demonstrate a likelihood that the motion to suppress would have been successful, Commonwealth v. Comita, 441 Mass. 86, 90–91 (2004), and that there was a reasonable possibility that the verdict would have been different without the excludable evidence. See, generally, Commonwealth v. Pena, 31 Mass. 201, 205 (1991).
Here, given the factual basis we have previously detailed, there is no showing that the absence of a Miranda warning would have provided a basis for the suppression of the enumerated statements. This was neither a custodial, nor a coercive, setting and, therefore, Miranda warnings were not required. Hence, it was not error to admit the statements. See, generally, Commonwealth v. Bryant, 390 Mass. 729, 738–742 (1984) (interview not custodial where defendant blurted out he shot the victim, and police prompted the defendant to tell him about it).
The statement that the defendant told Detective Schroeder he used marijuana daily was offered during cross-examination when defense counsel pressed her to concede the defendant's impairment.
We fail to see how this statement (even though not objected-to) resulted in a lost defense. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The residence was filled with a marijuana haze, marijuana and a scale and cash were secreted in a television in the defendant's room, and the defense theory of the case acknowledged that the defendant possessed marijuana, albeit for personal use. Given the incriminating evidence, this particular challenged statement added little to the Commonwealth's proof.
This statement is distinct from the defendant's admission to police when they first knocked on his door and in response to their question about the odor of marijuana, he said he had smoked earlier that day. On appeal the defendant does not challenge the introduction of this initial admission, nor did he object below.
b. Other statements. The defendant's contention that Schroeder's inquiry whether there was any marijuana in the house constituted an accusation requiring that the accompanying denial be excluded is without merit. Even assuming that the defendant's denial was inadmissible, and there was error—which we doubt—any error in such admission did not create a substantial risk of a miscarriage of justice where there was ample other evidence that the defendant possessed the marijuana with the intent to distribute. Moreover, the statement was exculpatory, and consistent with his defense that he did not know there was marijuana hidden in the television set in his room.
The statements concerning the police request to “look around,” the defendant's response whether he “[s]hould ... call a lawyer?”, and the police response that the defendant could “call anybody you like”—all admitted without objection—did not constitute impermissible consciousness of guilt evidence. The decisional law that prohibits the introduction at trial of a defendant's decision-making process about whether to contact legal counsel is directed to statements made during a custodial interrogation. See Commonwealth v. Hoyt, 461 Mass. 143 (2011). This was not a custodial situation. Even were we to assume error by assuming a custodial inquiry (which should have resulted in suppression of the statements), the statements did not create a substantial risk of a miscarriage of justice where the evidence of guilt was strong. We further note that the prosecutor did not refer to the comments in closing argument.
Judgments affirmed.