Opinion
BRCR2013-00983
10-10-2014
Commonwealth v. Aaron Hernandez No. 128514
E. Susan Garsh, Justice of the Superior Court.
FINDINGS OF FACTS, RULINGS OF LAW, AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS FRUITS OF UNLAWFUL POLICE INTERROGATION OF DEFENDANT DURING JUNE 18, 2013 SEARCH OF HIS HOME AT 22 RONALD C. MEYER DRIVE, NORTH ATTLEBORO, INCLUDING HIS CELL PHONE NUMBER 203-606-8969
E. Susan Garsh, Justice of the Superior Court.
INTRODUCTION
Defendant Aaron Hernandez moves to suppress all evidence obtained as the fruits of an allegedly improper police interrogation during the June 18, 2013 execution of a search warrant at his home in North Attleboro. For the reasons discussed below, the motion to suppress is denied .
FINDINGS OF FACT
Based upon all the evidence and the reasonable inferences drawn from that evidence, the Court finds the following facts.
Police obtained a warrant to search Hernandez's residence at 22 Ronald C. Meyer Drive in North Attleboro. The execution of the warrant began at 7:03 P.M. when it was still daylight. Sgt. Paul Baker, a supervisor, was the first officer who entered the house. Before the police entered, Hernandez and Jenkins had been in the kitchen area; they went into the living room. Hernandez sat on the edge of a couch facing the foyer and Jenkins went to the front door, which she opened in response to Baker knocking and announcing his presence. Another officer was with Baker and two other officers followed almost immediately.
Baker handed Jenkins copies of both warrants while they were still in the foyer. She looked at them. Baker said that the police would try to be minimally intrusive and that they would be out as soon as they can. He told her that all the particulars were set forth in the warrants and that if she was going to go anywhere to please advise one of the officers. Hernandez was sitting on the corner of the living couch facing towards the foyer, approximately eight to ten feet away, when this conversation took place.
Baker then had a brief exchange with Hernandez. He told Hernandez, as he had told Jenkins, to please let an officer know if he was going anywhere in the house. He otherwise did not tell Hernandez or Jenkins where to go or what to do. Hernandez walked to the other side of the couch and lay down for a period of time. He was not ordered to move. He was not under any restraint. The television set in the living room was on. At one point, Hernandez walked over and picked up his baby from the couch. Baker remarked that the baby was cute and asked her name and how old she was. He had no discussion with Hernandez or Jenkins about the search and did not hear any other officer engaging in such discussions.
After approximately three minutes, Baker went outside to speak with Assistant District Attorney Patrick Bomberg. As he exited the house, additional troopers arrived. Shortly after entry, there were eight to nine law enforcement officers in the house; at some point there were as many as ten to twelve officers, including officers from the Digital Evidence and Multimedia Section of the State Police, who were there to seize the video surveillance system. The number of officers at the site was a function of the fact that the house to be searched was 5, 000 square feet.
State Police Lt. Michael King was in charge of the search. When he arrived, his attention was first directed towards two men in the driveway who were preparing to leave. Both were asked to return to the station to be interviewed. King arranged for two officers to return to the station to conduct the interviews. Police searched their car and seized a towel similar to one that had been found at the crime scene. There is no evidence as to how much, if any, of the interactions between the police and these two persons Hernandez actually viewed on the kitchen monitor that was part of his home surveillance system, and a reasonable person observing the interactions would have not surmised that the two individuals had been placed under arrest. Hernandez himself had been requested to go to the police station the previous evening; he did so and was not arrested.
King went inside the residence about two minutes after Baker. When he did so, he spoke with Sgt. Bennett from the Crime Scene Division about how Bennett was proposing to document the scene. Bennett requested that the officers stay out of the way of the Crime Scene Division while the filming was underway. He stated that he would be filming first in the basement, then upstairs, and finally on the main level. When King entered the residence Jenkins and Hernandez were inside the living room. King had no interaction with Hernandez.
Neither King nor Baker spoke to Jenkins or Hernandez about the location of the video system. There is no evidence that anyone else did and the Court does not so infer from anything on the videotape or any of the other evidence.
Bomberg informed Baker at 7:13 P.M. that Hernandez's phone was with his lawyers in Boston. Bomberg acquired this information during a telephone conversation with Michael Fee, Hernandez's attorney. Bomberg asked Baker to send a copy of the search warrant for the phone to him for forwarding to Hernandez's lawyer. Prior to this conversation, Baker did not realize that the phone was not at the residence. Baker told King that Hernandez's cell phone was in Boston. This discussion took place outside. King, at Baker's request, texted a copy of the requested warrant to Bomberg. The Court infers that word ultimately spread among the officers performing the search that Hernandez's cell phone was not at the residence.
Neither King nor Baker nor Trooper Daniel Giossi, the author of the application for the search warrant to seize and examine the phone, spoke to Jenkins or Hernandez about the location of Hernandez's phone prior to Bomberg's communicating to Baker that the phone was with Hernandez's lawyers in Boston. There is no evidence that anyone else did, and the Court does not so infer.
Neither Baker nor King nor Giossi spoke to Jenkins or Hernandez about the location of Hernandez's phone after Bomberg communicated to Baker that the phone was with Hernandez's lawyers in Boston. Notwithstanding a report subsequently authored by Giossi based on what he believed he had learned from Trooper Michael Bates, the Court finds no credible evidence that any of the officers ever asked Hernandez any questions about the whereabouts of his phone, before or after Bomberg communicated to Baker that the phone was with Hernandez's lawyers in Boston.
Giossi, who was at the residence, had no interaction with Hernandez and was not assigned to search the residence for Hernandez's cell phone. One of the supervisors told him that Hernandez's phone was not there at about 8 P.M.
Giossi, who is trained in cell phone forensics, had actual knowledge before he entered Hernandez's residence that the phone specified in the warrant that he had secured was a black Blackberry Z10 smart phone. Giossi saw Hernandez use his phone at the North Attleboro police station, and he was able to determine the make and model of the phone. King also knew that the white iPhone seized during the execution of the warrant at Hernandez's residence was Jenkins's and not Hernandez's phone. These facts, not previously brought to the Court's attention, demonstrate the lack of factual basis for the Commonwealth's argument, made in opposition to the defendant's Motion to Suppress Fruits of June 18, 2013 Search, that it was proper for the police to have seized a Blackberry Bold and iPhone 5 from the residence because " there was simply no other lawful means available to officers to seize the phone specifically described in the warrant . . ."
There was no hostile or aggressive behavior on the part of the police when they entered the house or following their entry. They spoke in a polite and respectful tone. Hernandez appears on the surveillance video to be calm and relaxed during the first hour of the search. He gave no appearance of being fearful or frightened. While there were several officers in the residence, they were not all in the same room as Hernandez. Hernandez was not surrounded by officers. Their service weapons were never unholstered and, except for one officer, whose jacket was pushed up, their firearms were not visible under their jackets. That officer left the residence less than ten minutes after entering. There were times when six or seven officers were milling about the living room where Hernandez was sitting or lying on the couch and other times when no officer was in the same room as Hernandez. At least one officer was, however, always in Hernandez's line of sight even if not in the same room. At one point Hernandez retrieved a cell phone on a table behind the living room couch. An officer took it away from him and told him that he could not use it. That phone was seized. At another point, Hernandez got up from the couch and started walking to the stairs without giving any indication to an officer that he wished to do so. An officer briefly interacted with him, but he was not prevented from going upstairs. An officer accompanied him. No one suggested to Hernandez that he was a suspect or in trouble.
The surveillance system was disabled about an hour after the search began.
The police were operating under the misimpression that the warrant authorized the seizure of GPS devices, something that had been requested in the affidavit in support of the search warrant but not included in the text of the search warrant application or in the warrant itself.
The Court finds no credible evidence that Hernandez was ever told to move to a different room or to a different location in a room in which he was or that he was told to remain in the living room. There is no evidence that Hernandez and Jenkins were ever separated or not permitted to converse or attend to the baby. There is no evidence that Hernandez was ever questioned about items in the home or subjected to any lengthy interrogation. There is no evidence of any physical control being exerted over the defendant.
During the search Trooper Michael Bates was primarily in the foyer area, although he left for about five minutes to observe the surveillance system being dismantled. He recalls that at some point someone mentioned that Hernandez's phone was with his lawyer and that they would be getting it back the next day. At about 8:40 P.M., five minutes before Bates left, Hernandez walked by Bates in the foyer. Bates asked him for the password to his phone. Bates did not ask Hernandez for the location of his phone. Hernandez responded that his lawyers had his phone, to which Bates said that he understood that, but that the password would make it easier to extract the data from the phone. Hernandez paused, looked up, and said that he could not remember it. Then he looked down at his hand, at which point Bates asked if he needed to see numbers or letters and started to pull out his own phone. Hernandez said " No, no. It's" and then he recited a set of six numbers. No one else was present during this interaction. Bates's questioning was not aggressive. It was brief and polite. He did nothing to indicate to Hernandez that he had no choice but to answer his question. Bates did not communicate to Hernandez, directly or indirectly, that he was a suspect or that he thought he was guilty of Lloyd's murder. Hernandez was not physically blocked from leaving the foyer where Bates was situated. The atmosphere was not coercive at that time or at any earlier time while Hernandez was in the home during the execution of the warrant for his residence. Hernandez was not arrested at the conclusion of the search.
Bates wrote the numbers down on the back of a copy of the warrant he had with him. He does not know what happened to those notes.
No one told Bates to ask Hernandez for his password. Bates did not administer Miranda warnings to Hernandez before asking him about his password. Bates was aware that Hernandez had been at the police station with his attorneys and that he had declined to be interviewed.
Giossi left Hernandez's residence to retrieve Hernandez's phone from Trooper Joseph Collins, who had picked it up in Boston in the lobby of the Prudential Center at about 8:30 P.M. Giossi retained the phone in his possession until the next morning when he searched it. No password was provided to Giossi by Bates or by anyone else. The phone was not password protected.
The day after the search Bates asked Giossi if he needed the password for Hernandez's phone. Giossi said that he did not, Bates told him that he had obtained a password. Giossi explained that he did not need it because the phone was not locked.
The circumstances in which Hernandez was questioned by Bates do not demonstrate an environment so dominated by the police that a reasonable person would perceive that his liberty was restrained to a degree associated with a formal arrest. Pressure was not applied upon Hernandez that impaired his free exercise of his privilege against self-incrimination. The questioning was short. A reasonable person would have felt free not to respond to Bates and to leave.
RULINGS OF LAW
Hernandez argues that he was in custody during the execution of the search warrant, such that police could not question him about the location of his phone and its password without first giving him Miranda warnings and could not question him at all because he had invoked his right to counsel the day before. See Commonwealth v. Molina, 467 Mass. 65, 72, 3 N.E.3d 583 (2014); Commonwealth v. Carnes, 457 Mass. 812, 819, 933 N.E.2d 598 (2010) ( Miranda's protective right to counsel under Fifth Amendment applies only when individual is subjected to custodial interrogation). See also Commonwealth v. LeClair, 55 Mass.App.Ct. 238, 242 n.9, 770 N.E.2d 50, rev. den., 437 Mass. 1111, 776 N.E.2d 453 (2002) ( Edwards rule that once suspect invokes right to counsel police may not question him further unless counsel is present or he waives Miranda rights applies to custodial interrogation and does not apply when defendant not in custody). Accordingly, Hernandez seeks suppression of all fruits of his statement that his cell phone was at Ropes & Gray and his disclosure of the password. See Commonwealth v. Martin, 444 Mass. 213, 215, 827 N.E.2d 198 (2005) (where Miranda warnings required, physical evidence derived from unwarned statements is presumptively inadmissible; gun properly suppressed where police asked defendant in custody location of firearm without first advising him of Miranda rights).
According to his affidavit, Hernandez and his fiancé e were told by the police to stay in the living room and officers remained with them in the living room the entire time; their weapons were visible to him. Hernandez states further in his affidavit that he was ordered to accompany the officers upstairs and that he " felt helpless in the face of the occupation of my house by the police. I was also very concerned about what would happen to my fiancé e and our baby if I refused to answer their questions. I did not feel free to leave at any time during the search." This affidavit met the defendant's threshold burden of establishing the facts necessary to support the motion. It is not however, evidence for purposes of deciding the motion to suppress. " The affidavit filed with the motion may not be offered in evidence by the defendant at the suppression hearing and is not a substitute for the defendant's testimony at the hearing." Commonwealth v. Mubdi, 456 Mass. 385, 389 n.4, 923 N.E.2d 1004 (2010).
Not only must the interrogation at issue be custodial for the Edwards rule to apply, but the initial invocation of the right to counsel must have occurred during a custodial interrogation. Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). When Hernandez asserted his right to counsel at the North Attleboro Police Station, he was not in custody. He was free to leave and did leave. Once a suspect invokes his right to counsel during custodial interrogation, police may not then attempt further interrogation until there has been a fourteen-day break in custody. See Maryland v. Shatzer, 559 U.S. 98, 110, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010).
Interrogation
The Commonwealth contends that, even if the setting was custodial, no interrogation in the constitutional sense occurred. Interrogation is express questioning or its functional equivalent: any words or actions on the part of police designed to elicit an incriminating response from the suspect. Commonwealth v. Braley, 449 Mass. 316, 324, 867 N.E.2d 743 (2007). An incriminating response is any response, inculpatory or exculpatory, which the prosecution might seek to use against the defendant at trial. Commonwealth v. Torres, 424 Mass. 792, 797, 678 N.E.2d 847 (1997). The Court rejects the Commonwealth's suggestion in its response to the defendant's motion that Bates's query to Hernandez about his password was a routine administrative query, required for the safe execution of the search warrant, that should be exempt from Miranda by analogy to questions under the " booking exception." See Commonwealth v. Sheriff, 425 Mass. 186, 197, 680 N.E.2d 75 (1997) ( Miranda warnings not required for routine background questions, such as asking suspect his name, address, date of birth, and related matters).
An officer asking an individual during the execution of a search warrant at his residence for the password to his phone believed to contain evidence relevant to the murder investigation is hardly a routine background question. Even when booking a suspect, police may not, absent Miranda warnings and a waiver, ask questions designed to elicit an incriminating response. See Pennsylvania v. Muniz, 496 U.S. 582, 602 n.14, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (noting that, without obtaining a waiver of the suspect's Miranda rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions); Commonwealth v. Woods, 419 Mass. 366, 372, 645 N.E.2d 1153 (1995) (if arrestee's employment status may prove incriminatory police must give Miranda warnings before asking questions about employment). The answer to the question posed by Bates to Hernandez would help establish that the phone for which the police had secured warrants was indeed Hernandez's phone and that he had control over it. The question was intended to obtain assistance from Hernandez in furthering the murder investigation. Bates's question regarding the password to the cell phone, which police believed to contain evidence related to Lloyd's homicide, was designed to elicit an incriminating response and constituted interrogation.
Waiver
The Commonwealth also argues that Hernandez waived his Miranda rights with respect to questions concerning his cell phone when his attorney stated that Hernandez would surrender his phone upon presentation of a warrant. The Commonwealth bears the heavy burden to prove beyond a reasonable doubt that the defendant knowingly, intelligently, and voluntarily waived the right to remain silent and the right to have counsel present during any custodial questioning. Commonwealth v. Ray, 467 Mass. 115, 132, 4 N.E.3d 221 (2014). A waiver need not be express and may be inferred from the actions and words of the person interrogated. Berghuis v. Thompkins, 560 U.S. 370, 384-385, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010); North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979).
The crux of the discussion between Bomberg and Attorney Fee was that Hernandez would not consent to turning over his phone but would honor a warrant for the phone. There is not a scintilla of evidence that Fee told prosecutors that Hernandez was willing to answer questions about the cell phone in the event that a warrant for the phone was secured. The Commonwealth did not demonstrate a knowing and intentional relinquishment of Hernandez's rights to remain silent and to have counsel present during any custodial questioning.
The findings of fact contained in the Court's ruling on Defendant's Motion to Suppress Cellular Telephone 203-606-8969 and Fruits Thereof are incorporated herein.
Custody
The defendant bears the burden of proving that he was in custody when he was asked about his phone. Commonwealth v. Mejia, 461 Mass. 384, 390, 961 N.E.2d 72 (2012); Commonwealth v. Hilton, 443 Mass. 597, 609, 823 N.E.2d 383 (2005). A person is in custody when, from the perspective of a reasonable person in his position, he was deprived of his freedom of movement to the degree associated with a formal arrest. Commonwealth v. Mejia, 461 Mass. at 390; Commonwealth v. Bermudez, 83 Mass.App.Ct. 46, 51, 980 N.E.2d 462 (2012). The following factors are relevant to whether the objective circumstances add up to custody: the place of the interrogation; whether the officers have conveyed the belief that the person being questioned is a suspect; the nature of the interrogation, including whether it was aggressive or informal and influenced in its contours by the person interviewed; and whether, at the time the statement was made, the defendant 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 an arrest. Commonwealth v. Molina, 467 Mass. at 73; Commonwealth v. Carnes, 457 Mass. at 819. Rarely is any single factor determinative. Commonwealth v. Kirwan, 448 Mass. 304, 309, 860 N.E.2d 931 (2007). See also Commonwealth v. Bermudez, 83 Mass.App.Ct. at 51 (pertinent inquiry is whether relevant environment presents the same inherently coercive pressures as the type of police questioning at issue in Miranda ).
Hernandez's reliance upon United States v. Mittel-Carey, 493 F.3d 36 (1st Cir. 2007) is misplaced given the extreme disparity between the facts of this case and those in Mittel-Carey . In that case, eight FBI agents arrived at the defendant's home at 6:25 a.m., and two agents entered his dark bedroom, one with an unholstered gun and a flashlight, and woke him up. Id. at 38. The agents ordered the defendant to dress, escorted him downstairs into the dining room and then the living room, told him where to sit, separated him from his girlfriend, and did not allow the two to speak to each other. Id. After the girlfriend was interrogated separately for approximately twenty minutes, she was given permission to go to work by the FBI agents, and the defendant was allowed to speak to her briefly in the presence of an agent. Id. While six agents searched the house, two agents interrogated the defendant for almost two hours, making coercive statements designed to elicit cooperation while avoiding giving him Miranda warnings. Id. at 39. At one point, he was allowed to use the bathroom, but an FBI agent accompanied him and stood outside the partially open door, monitoring him. Id. He was also allowed to feed his rabbits on the back porch at the end of the interview, accompanied by an FBI agent. Id.
In concluding that the defendant was in custody, the First Circuit gave significant weight to the significant degree of physical control maintained over the defendant at all times. " While an interrogation in a defendant's residence, without more, certainly weighs against a finding of custody . . . the level of physical control the agents exercised over Mittel-Carey in this case weighs heavily in the opposite direction, despite the fact that the control was exercised inside defendant's home." Id. at 40. See also LaFortune v. United States, 2012 WL 5389909 at *6 (D.Mass.) (Saris, J.) (defendant was in custody while questioned for two hours during search of his one-room apartment by as many as seven officers, where police escorted him to get cigarettes and to call his workplace, officer blocked the exterior door to the apartment with his body, officer watched him use bathroom through open door, and his car was blocked by police cruisers in the driveway).
Other courts that have found questioning during the execution of a residential search warrant to be custodial similarly relied upon complete physical control having been exercised over a defendant and a police-dominated coercive atmosphere during the search. E.g., United States v. Hashime, 734 F.3d 278, 284-286 (4th Cir. 2013) (defendant was in custody while questioned for three hours during search of home by 15 to 30 state and federal officers, even though officers told him he did not have to answer questions and could leave at any time, where officers banged on door with battering ram, swarmed into house with guns drawn, woke up defendant at gunpoint and pulled him by arm to front lawn during sweep of home, family members were accompanied by officers at all times and interrogated separately, mother's repeated requests to talk to defendant were denied, and defendant was brought into basement storage area for questioning and kept under guard); United States v. Revels, 510 F.3d 1269, 1275-1276 (10th Cir. 2007) (defendant was in custody while questioned for 10 minutes during search of her home by seven ATF officers, where officers forcibly entered with battering ram in early morning, roused her from bed and handcuffed her in her underwear face down on floor while they secured premises, separated her from her boyfriend and her two children, and after allowing her to dress and feed her infant, three officers brought her into rear bedroom that had no chair or place to sit and closed door behind them, confronted her with bag of cocaine, then arrested her); State v. Mangual, 311 Conn. 182, 85 A.3d 627, 642-643 (Conn. 2014) (defendant was in custody while questioned during search of her four-room apartment by seven armed officers, where police wearing tactical vests brandished weapons when entering and ordered her and her three children to go to the living room where they were required to remain under guard).
The evidence with respect to the search and interrogation in this case do not demonstrate that Hernandez was in custody when questioned by Bates. Although approximately a dozen law enforcement officers from the State Police and North Attleboro Police Department participated in the execution of the warrant, they did not all enter the residence at once and they spread out over a large area in the approximately 5, 000-square-foot home. The number of officers was proportional to the size of the home. The entry occurred, not in the early morning hours, but in the early evening, when there was still daylight. The entry was not forcible. Jenkins answered the door as Hernandez watched while perched on the edge of the couch, facing the front door. The entry and the search itself were professional. The defendant was not confronted with an unholstered gun, although, at one point, a holster was visible at the bottom of one of the trooper's jacket.
Hernandez was not handcuffed or physically restrained in any way. The officers did not order him to remain in the residence or to enter or to remain in any particular room. At the outset, Baker politely told Jenkins and Hernandez that they should let an officer know if they intended to move about the house. Hernandez chose to remain in the living room for much of the search, but was completely free to move about, albeit with an officer accompanying him if he remained on his property. " From an objective viewpoint, a reasonable person in [Hernandez's] shoes should have realized the agents escorted him not to restrict his movement, but to protect themselves and the integrity of the search." United States v. Axsom, 289 F.3d 496, 503 (8th Cir. 2002). Cf. United States v. Ross, 719 F.2d 615, 622 (2d Cir. 1983) (mere fact that suspect was told he would be accompanied by IRS agent when he moved about restaurant did not place him in custody within the meaning of Miranda ).
Jenkins and their infant daughter also were present in the home. Hernandez was not separated from Jenkins or his baby. Hernandez was not prevented from speaking to Jenkins or holding or playing with his baby. Hernandez moved freely about the living room, lying down on the couch, walking across the room and picking up his daughter, then carrying her over to the other side of the couch and lying back down with her to watch television. The direction to leave the phone alone did not suggest that the police were exercising physical control over Hernandez's person as opposed to certain objects in the residence. Although Hernandez was within eyesight of an officer at all times during the search, police never surrounded him, invaded his personal space, or intruded on his intimate moments or private activities.
The questioning of Hernandez was extremely brief. The circumstances and manner of the inquiry were not coercive. Bates uttered no threat. He posed a question as Hernandez happened to walk by him in the foyer. There was no physical display of force. No other officers were in the immediate vicinity, and Hernandez was not physically isolated or restrained in any way. Bates's tone of voice was conversational, not coercive. There is no evidence that Bates or any other officer ever conveyed to Hernandez that he was a suspect in Lloyd's murder, and the search ended without Hernandez being arrested.
Viewed objectively and taking into account the totality of the circumstances, the Court concludes that the defendant has not met his burden of establishing that the interrogation that occurred in this case was custodial. Under all the circumstances, a reasonable person in Hernandez's position would not have perceived his liberty to be restrained to a degree consistent with a formal arrest. Accordingly, Bates was not required to give Hernandez Miranda warnings before asking for the password to his cell phone. See United States v. Kearney, 2009 WL 4591949 at *9-10 (D.Mass.) (Saylor, J.), aff'd, 672 F.3d 81 (1st Cir. 2012) (defendant not in custody while questioned for an hour during execution of search warrant for his home by 10 officers, where two officers questioning him did not unholster guns, separate him from his girlfriend, forbid him to get up from the kitchen table, stand guard outside bathroom door or insist bathroom door be left partially open, and the questioning was conversational, not coercive, in tone and officers used no subtle interrogation technique to coax incriminating responses).
See also United States v. Sergi, 2013 WL 1285865 at *5-8 (D.Vt. 2013) (defendant not in custody while questioned for 2.5 hours during execution of search warrant for his house by 4-5 agents, where officers did not unholster or display weapons, asked family to remain on couch for a short time while premises were secured, defendant asked but not ordered to enter into bedroom, defendant permitted to move about residence accompanied by officer due to safety and destruction of evidence concerns, defendant was permitted to speak to his wife during a break, interview was conversational and non-coercive, and defendant was never subject to physical restraint or impeded freedom of movement); United States v. Sharp, 680 F.Supp.2d 895, 898-899 (E.D.Tenn. 2010) (defendant not in custody when questioned while five officers executed search warrant at house, where officer drew weapon upon entry and thereafter holstered it; search was performed in respectful and cordial manner, officers did not gather around defendant to intimidate him, defendant was able to tend to his children, defendant did not request to leave the house and was not told that he could not leave).
Fruit of the Poisonous Tree
Finally, even if the inquiry to Hernandez about the password to his phone were deemed to have been custodial, suppression of the phone and its contents would not be constitutionally required because the interrogation bore no fruit. Evidence initially discovered as a consequence of a constitutional violation may be admissible at trial if later acquired independently by lawful means untainted by the initial illegality. Commonwealth v. Gray, 465 Mass. 330, 346, 990 N.E.2d 528, cert. den., 134 S.Ct. 628, 187 L.Ed.2d 407 (2013). Evidence is not subject to suppression where it is not an exploitation of a prior illegality. Commonwealth v. Blake, 413 Mass. 823, 830, 604 N.E.2d 1289 (1992).
During oral argument, the Commonwealth also contended that its possession of the phone was inevitable because Hernandez's lawyers were required, pursuant to Mass.R.Prof.C. 3.4(a), to turn over the phone to law enforcement. The Court does not reach this issue, which was not briefed by the parties.
Long before Hernandez told Bates that his phone was with his lawyers, Fee made that fact known to Bomberg upon being advised of the warrants. Absolutely no action was undertaken by the police in response to learning from Hernandez what they already knew. Evidence was not initially discovered as a result of any custodial interrogation. The actions taken by the police to acquire possession of the phone did not exploit any prior illegality. The Commonwealth had a pre-existing independent source for the information regarding the location of the phone.
With respect to the password, there is no evidence that the Commonwealth obtained any evidence, direct or indirect, traceable to the alleged Miranda violation. When Giossi commenced his forensic examination of the cell phone at issue, it was not password protected. Bates's questioning of Hernandez about his password was irrelevant to the Commonwealth's ability to obtain evidence from the phone. Bates did not even provide Giossi with the password that had been provided to him. The forensic examination of the phone did not exploit any prior illegality.
ORDER
For the foregoing reasons, it is hereby ORDERED that the Defendant's Motion to Suppress Fruits of Unlawful Police Interrogation of Defendant During June 18, 2013 Search of His Home at 22 Ronald C. Meyer Drive, North Attleboro, Including His Cell Phone Number 203-606-8969 be DENIED .