Opinion
Criminal No. 2005-0080.
May 23, 2006.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS EVIDENCE (Paper No. 4) and MOTION TO SUPPRESS STATEMENTS (Paper No. 5)
The defendant, John Starkweather, is charged by indictment with a variety of crimes arising out of a sexual assault that is alleged to have occurred on November 3, 2004. He has filed two pretrial motions to suppress physical evidence seized from his vehicle and his residence and statements he made to the police. Based on the credible evidence presented at the hearing on these motions, I make the following findings of fact and rulings of law.
FINDINGS OF FACT
On November 3, 2004, Timothy W. Ury was working as a provisional police officer in the Town of Barre, Massachusetts. At approximately 11:00 p.m., while at the police station, he heard a radio broadcast about an alleged crime involving an assault and battery and the use of a firearm. The broadcast requested assistance in locating a red Jeep SUV, along with the vehicle's registration number. Officer Ury left the police station in a marked police car. He received additional information by means of another police radio broadcast indicating that the name of the suspect was John Starkweather who resided at 580 Old Cold Brook Road in Barre. While on that road, he did not see the red jeep vehicle and decided to turn around and go back in the opposite direction when he met officer Les Holgerson from the Hubbardston Police Department. They decided to go to the Starkweather residence in Barre in search of the suspect and his vehicle. The two officers each in his own police car arrived at the address in question at about 11:20 p.m. From his vantage point on the road, officer Ury saw what appeared to him to be the figure of a man in the driveway of 580 Old Cold Brook Road and in between two parked vehicles — a red jeep and a pick-up truck. See exhibit 1 (photo of red jeep); exhibit 2 and 3 (photos of the pickup truck); exhibit 4 (photo of the handcuffs found in truck).
Officer Ury drew his sidearm and directed a question at the figure in the driveway — "Are you John Starkweather?" When the defendant responded "Yes," he was ordered to stand against the pick-up truck and to place his hands where they could be seen. The defendant was placed in handcuffs and placed in the back seat of officer Holgerson's cruiser. Officer Holgerson advised the defendant of his Miranda rights. When a woman (later identified as Ms. Joyce Starkweather, the wife of the defendant) exited from the nearby home, officer Ury at first thought she was the victim and then, upon learning who she was ordered her to go back inside the home.
With the aid of a flashlight, officer Ury reached into the red jeep and the pickup truck looking for signs of a firearm. He did not see a firearm. However, he did see a pair of handcuffs inside the pickup truck. He also saw what appeared to be some female hair in a clump. See exhibits 8 and 9 (photographs).
The defendant was brought to the Barre Police station. In the presence of State Police Troopers Poirier and Lyver, who been as brought into the case for assistance, and Sergeant Kelly of the Barre Police, the defendant was advised of his Miranda rights and the defendant signed a card acknowledging that he understood and waived his rights. See exhibit 11. There is a video recording of this portion of the interview which was viewed by the court. See exhibit 1. Trooper Lyver was aware that the female victim of the sexual assault was on her way to the hospital and that a gun had allegedly been used in the assault. The police were aware that the defendant was suspected of involvement in a sexual assault. After a brief videotaped conversation in which the defendant did not make any incriminating admissions, see exhibit 2 (also viewed by the court), the defendant indicated he no longer wished to speak to the police. After a brief additional conversation initiated by the police, the defendant stated that he wished to see an attorney. The defendant was allowed to make some telephone calls. The interview ceased and the defendant was brought to another area of the station for booking. The booking was videotaped. See exhibit 15 (also viewed by the court).
Shortly thereafter, the police again approached the defendant. They told him they were going to get a warrant to search his vehicle. He asked why they planned to do that. They explained they were looking for evidence such as clothing. The police requested his consent to remove evidence from the vehicles. The police stated that they did not to have to resort to a warrant. This exchange was also videotaped. See exhibit 3 (also viewed by the court). The defendant had not taken any steps to initiate a conversation with the police since he requested an attorney. At this point, the defendant stated that he had had sex with the alleged victim, that it was consensual, and that the police would find clothes belonging to him with semen on them in his bathroom.
During this encounter, which the court viewed on the videotape, the police indicated that while they respected the defendant's right to have an attorney, they wanted him to know that they were going to obtain a search warrant for his home and his vehicles, and that would involve going into the home where his wife and kids would be located. The police also told him that he could avoid all of that by cooperating. It was at this point that the defendant blurted out that he had nothing to hide and that he had had sex with the female in question. Trooper Poirier then stated, that they weren't asking him about what had happened, but simply wanted his consent to conduct a search of the home for any clothing. It was at that point that the defendant told the police they would find sperm on his sweat pants which were located in his bathroom.
Before this statement, the police had no reason to believe that the defendant had entered his home before his arrest. In fact, as his wife testified at the hearing on the motion to suppress, the defendant had returned home that evening, took a shower and was about to leave again for work when the police confronted him outside the home. The information about clothing inside the home was disclosed by the defendant only after the defendant asserted his right to silence and his right to counsel. Up to this point, the police were operating on the assumption that the defendant was arrested as he arrived home and while possibly in the process of secreting or disposing of evidence that was in one or both vehicles.
Following this disclosure by the defendant, at approximately 2:30 a.m. officer Holgerson and State Police Trooper Poirier returned to the defendant's residence. They met with Ms. Joyce Starkweather and advised her that they wished to conduct a search of the premises and requested her consent. She was informed that her husband was under arrest for a suspected sexual assault on a female and they were looking for clothing he had recently worn. The police indicated that if she did not consent "we'll have to get a warrant." She was presented with a written form and asked to sign it. She agreed and signed the form. See exhibit 12. A number of items were seized and returned to the police station for processing. The police did not inform Mrs. Starkweather of her husband's earlier statements or about his request for an attorney. This conversation was recorded on tape. See exhibit 16. The defendant's vehicles were seized and towed to the police station. The police applied for a search warrant for each of them. See exhibits 13 and 14.
RULINGS OF LAW
1. The defendant's statements. There is no question in this case that the defendant was in custody at the Barre Police station before he was interviewed by the state police. When during that interview the defendant told the State Police that he wished to consult with an attorney they had a duty to stop questioning and not to resume any questioning until the defendant had an opportunity to consult with an attorney. Edwards v. Arizona, 451 U.S. 477, 481-82 (1981). The only exception to this prohibition is when the accused person initiates further conversation with the police. Commonwealth v. Judge, 420 Mass. 433, 448 (1995). When, as in this case, the police fail to honor the defendant's assertion of the right to counsel and initiate further conversation, the suspect's statements are presumed to be involuntary and inadmissible at trial. McNeil v. Wisconsin, 501 U.S. 171, 177 (1991). In this case, the police failed to scrupulously honor the defendant's assertion of the right to remain silent.
Although a suspect has asserted his rights, there is authority for the proposition that the police may nonetheless ask him to consent to a search. See, e.g., United States v. Glenna, 878 F.2d 967, 971 (7th Cir. 1989). Here, however, the police did much more than simply ask for consent. They reinitiated an inquiry that was designed to elicit any incriminating response by appealing to the defendant's sense of shame and concern to avoid embarrassment to his family. See Commonwealth v. Chadwick, 40 Mass. App. Ct. 425 (1996). Thus, the defendant's motion to suppress any statements made by the defendant after he asserted his right to remain silent and to counsel is ALLOWED. 2. The items seized from the vehicles at the time of the defendant's arrest. The police had a right to conduct a search incident to the defendant's arrest and to inspect the two vehicles for weapons. See Commonwealth v. Netto, 438 Mass. 686, 695 (2003); Commonwealth v. Turner, 14 Mass. App. Ct. 1023, 1024 (1982) (rescript). Thus, the defendant's motion with respect to the handcuffs and the female hair is DENIED. 3. Items of clothing seized from the defendant's home. The question here is whether the police exploited an illegal interrogation following the defendant's assertion of his rights to obtain his wife's consent to seize items of clothing from the home. See Commonwealth v. Fredette, 396 Mass. 455, 458-59 (1985). The question is not whether Mrs. Starkweather had the legal authority to give her consent to a search of the home. The court assumes that is the case. Rather, the question is whether her consent was obtained by exploiting a prior act of misconduct when the defendant was questioned after asserting his constitutional rights. In this regard, the Commonwealth has the burden of proving that the evidence obtained as a result of the consent search was not tainted by the prior illegality. Fredette, supra.
Mrs. Starkweather cannot be regarded as an independent source of evidence because the police had no reason to suspect that there might be evidence of criminal activity located in the defendant's home until the defendant told them about his sweat pants during the illegal interrogation. See Commonwealth v. DiMarzo, 436 Mass. 1012 (2002), and cases cited. Perhaps the most analogous case is State v. Poaipuni, 98 Haw. 387, 390 (Hawaii 2002), where the Supreme Court of Hawaii held that consent by defendant's father for the search of a tool shed for firearms was tainted by and rendered invalid as a result of a prior illegality (defective warrant). This is not a case where the passage of time attenuated the police illegality so as to render the doctrine of the fruit of the poisonous tree inoperative. Contrast, Commonwealth v. Fredette, 396 Mass. 455, 459-60 (1985). And, there is no reason to believe that the discovery of this incriminating clothing was inevitable. See Commonwealth v. Perrot, 407 Mass. 539, 547 (1990). At the time the police questioned the defendant at the police station, they had no reason to believe he had entered his home on the evening in question. In fact, the evidence pointed in the opposite direction. Because the consent to search the home was obtained by exploiting an illegal interrogation, it is invalid and the evidence obtained thereby must be suppressed. This is not true of any evidence seized from the defendant's vehicles.
ORDER
For the above reasons, the defendant's motions to suppress areALLOWED insofar as they relate to any statements he made to the police after he asserted his right to remain silent and his right to counsel and to any clothing seized from his home. Otherwise, the motions are DENIED.