Commonwealth v. Guthrie G.

848 N.E.2d 787, 66 Mass. App. Ct. 414, 2006 Mass. App. LEXIS 599

• Court: Massachusetts Appeals Court
• Decided: June 5, 2006
• Docket: No. 05-P-47
• Status: Published

Opinions

Kafker, J.

After his arraignment in Juvenile Court on charges of possession of a firearm, G. L. c. 269, § 10(a), and receiving stolen property over $250, G. L. c. 266, § 60, the juvenile successfully moved to suppress the gun as well as inculpatory statements he made to the police. The Commonwealth filed this interlocutory appeal. We reverse.

Background. The facts as found by the motion judge were as follows. William Bohmback came to the Middleborough police station on January 11, 2003, to report that his son (bom on June 11, 1988) and the juvenile (bom on September 17, 1988) might be in possession of a gun. Bohmback reported that when he found the two teenagers in his tool shop working on what appeared to be a gun, they “took off.” He also reported that when he thereafter picked up his son at the juvenile’s house, four or five miles away, his son jumped out of the car and fled again on foot. Bohmback provided the police with a description of his son and stated that he believed his son would return to the juvenile’s residence.

The police radioed a description of Bohmback’s son, and Bohmback left the station with Officer Lake. Another officer on patrol responded that he had stopped someone who matched the boy’s description, and Officer Lake and Bohmback arrived at the scene. Bohmback identified his son, and Officer Lake questioned the boy about the location of the gun. The son stated that he believed the gun to be a BB gun and that it was at the juvenile’s house. Officer Lake, Officer Murphy, and Sergeant Mills then went to the juvenile’s home. The juvenile “answered the door and invited the three uniformed police officers inside the living room or possibly the kitchen area.” The judge found that the juvenile was home alone during the relevant questioning.

Officer Lake questioned the juvenile about a gun. Although the juvenile “denied knowledge of a gun, when questioned by the officer regarding a BB gun, he admitted that he had a BB gun.” Officer Lake then “asked to see the BB gun and [the juvenile went to] retrieve[] it from his bedroom.” Officer Lake “followed [the juvenile] to his bedroom without his consent,” while Sergeant Mills followed behind them and stood at the threshold of the room. The juvenile removed the gun from the bedroom closet. The gun was later identified as a .22 caliber Ruegen While Officer Lake was in the room, Sergeant Mills observed gun parts in a trash can in the room. The gun parts were seized, as were additional gun parts found underneath the bed.

The police officers instructed the juvenile to accompany them to the police station. Officer Lake also instructed the juvenile to call his mother and request that she meet him at the station. At the station house, the juvenile was placed in a sitting area to await his mother’s arrival. Ultimately, his mother was unavailable, and the juvenile’s father went to the police station instead. Officer Lake read the juvenile and his father the Miranda warnings, and the father signed the Miranda forms and was present during the questioning.¹ The juvenile testified that he understood the warnings. The judge found that “Officer Lake did not advise that [the juvenile] and his father had the right to private consultation.” The juvenile informed the police that he had had the gun for approximately two days and that he found it at the side of the road.

The motion judge concluded that the juvenile was in custody when he was questioned about the gun at his home and that he should have been given Miranda warnings. She also concluded that “even though the [juvenile] was cooperative in allowing the officers in his home and volunteering to retrieve the BB gun from his bedroom, he did not consent to the search of his bedroom.” She further concluded that the juvenile was not given a meaningful opportunity to consult with an adult prior to the station house questioning. She therefore suppressed the gun, its parts, and all the statements the juvenile made.

Discussion. A fourteen year old who flees with a gun triggers the heightened public safety concerns and the limited public safety exception to Miranda set out in New York v. Quarles, 467 U.S. 649, 655-656 (1984),² and Commonwealth v. Alan A., 47 Mass. App. Ct. 271, 274-275 (1999).³ In both of those cases, officers in exigent circumstances involving a firearm were allowed to ask suspects questions dedicated to locating the missing weapons without being required to give Miranda warnings.

In the instant case, the juvenile and his friend had fled with an unknown gun, thereby creating an exigency. Bohmback, the friend’s father, had reported the incident to the police. Bohmback had also reported that the juveniles were working on the gun in a tool shop, which raised other troublesome possibilities. The police did not know if the gun they were looking for was loaded or not. They did know that when the boys fled with the reported gun, they ran for several miles from one boy’s house to the other’s.⁴ “Further, at the time the officer asked the question [about the whereabouts of the gun], he did not know if the gun was ... in the house or had been disposed of by the juvenile in a public area.” Commonwealth v. Alan A., 47 Mass. App. Ct. at 275. The boys’ behavior had been evasive.

According to the United States Supreme Court, the public safety “exception [to Miranda] will not be difficult for police officers to apply because in each case it will be circumscribed by the exigency which justifies it.” New York v. Quarles, 467 U.S. at 658. Difficult or not, the exigency described above clearly justified the initial questioning.

Once the juvenile indicated that he possessed the suspected gun, the police were further justified in asking to see it. See New York v. Quarles, 467 U.S. at 652; Commonwealth v. Alan A., 47 Mass. App. Ct. at 273.⁵ The juvenile then consented, as the judge found, to produce the gun to the police, and that finding was justified by the evidence. Thus, he cannot be heard to complain that the police came into possession of the gun. There is also no need to address any further issues arising under the Fourth Amendment to the United States Constitution, as the juvenile does not seek to suppress any evidence other than the gun (and its parts), which he consented to produce.

In regard to whether the juvenile consented to produce the gun, the findings are as follows. After some very brief prehminary questioning, “Officer Lake asked to see the BB gun and [the juvenile] retrieved it from his bedroom.” In her legal conclusions, the judge also stated, “I find that even though the [juvenile] was cooperative in allowing the officers in his home and volunteering to retrieve the BB gun from his bedroom, he did not consent to search of his bedroom.”

The testimony supports the findings regarding the juvenile’s consent to get the gun. The juvenile testified that “[t]hey asked me if I had a BB gun, and I said, yes, and I brought them to see it.”⁶ Officer Lake testified, “I asked him about a gun. ... He didn’t know what I was talking about at first, then when I mentioned the BB gun, said he has one. I asked to see it. He went to his room. I followed for officer safety.”

Based on these findings and this record, the Commonwealth has satisfied its burden to demonstrate that the consent to produce the gun was freely and voluntarily given. See, e.g., Commonwealth v. Burgess, 434 Mass. 307, 310 (2001). Although the age of the juvenile was obviously a significant factor in determining whether that consent was freely and voluntarily given, it does not preclude such a finding.

The motion judge’s conclusion that “Officer Lake followed [the juvenile] to his bedroom without his consent” is of no significance.⁷ The officers could not let the juvenile go unaccompanied to retrieve the gun without placing themselves at risk. Furthermore, nothing beyond the gun and the gun parts was found in the bedroom. Accordingly, the failure of the juvenile to consent to their accompanying him was of no legal or even practical consequence given his volunteering to get the gun.

Finally, in regard to the station house questioning, the standard is well-established. “A juvenile defendant over the age of fourteen may properly waive his constitutional rights if, after having been advised of those rights, he was afforded an opportunity to consult with an interested adult who was informed of and understood those rights.” Commonwealth v. McCra, 427 Mass. 564, 567 (1998). There is no question that the juvenile and his father were together when Officer Lake read them the Miranda rights and that they remained together during the questioning. Officer Lake also explained to the father “why he was there.”⁸ The father signed the Miranda forms. “[A]t least with regard to juveniles over the age of fourteen,. . . police officers are not required to give a juvenile and interested adult an unsolicited opportunity to confer in private.” Commonwealth v. Philip S., 414 Mass. 804, 812 (1993). Additionally, “[i]t is not necessary for such a juvenile actually to consult with the interested adult, for it is the opportunity to consult that is critical.” Commonwealth v. Berry, 410 Mass. 31, 35 (1991), S.C., 420 Mass. 95 (1995).

The motion judge here concluded that there had been no opportunity to consult because there was “no indication that [juvenile] was allowed time to consult with his parent as to the meaning of his Miranda rights and to the consequences of waiving this [c]onstitutional right.” How this squares as a matter of law with the absence of a requirement that the juvenile and adult be informed that they may confer in private, see Commonwealth v. Ward, 412 Mass. 395, 397 (1992), and Commonwealth v. Berry, supra (in which questioning appears to have proceeded right after the warnings were issued),⁹ is not clear.

If the juvenile and his father understood the Miranda warnings, and there is no argument that they did not,¹⁰ either the father or the juvenile immediately could have asked to discuss the warnings privately or sought to exercise the Miranda rights after they were read. The warnings themselves are meant to promote at least a moment of reflection by both the juvenile and a parent or other interested adult, as are the follow-up questions about their understanding of those rights and the signing of the waiver forms. The presence of the parent and child together also facilitates a request by one or both of them for consultation after the warnings have been read if there is uncertainty in their minds. If such a request has been made, it cannot be refused. See, e.g., Commonwealth v. Ward, 412 Mass. at 397 (“Surely, the police may not deny them that right [to confer in private]”). There is also nothing in the record to suggest that the father lacked the mental capacity, sobriety, or genuine interest in the juvenile’s welfare to provide him with a meaningful opportunity for consultation. Commonwealth v. Berry, supra at 36-37. Consequently, the requirements of a meaningful opportunity for consultation with an adult as defined by Commonwealth v. Berry, supra at 35; Commonwealth v. Ward, supra at 397; Commonwealth v. Philip S., supra at 812; and Commonwealth v. McCra, supra at 567, have been satisfied.

Conclusion. When the juvenile fled with the gun, the police officers had the immediate right, pursuant to the public safety exception, to question the juvenile about the gun without giving him Miranda warnings as soon as they found him at his home. In response to those questions, the juvenile consented to bring the officers the gun. After securing the gun and the parts the juveniles had cut off the gun, the officers discontinued questioning until the juvenile was joined at the police station by his father, where together they were given, and together they made an informed waiver of, the Miranda warnings. They had an opportunity to consult, but chose not to take advantage of it. The police conduct at issue was legally authorized at each step of the process.

For the reasons stated above, the motion judge’s order allowing the motion to suppress is reversed.

So ordered.

1 Officer Lake also testified that he explained to the father “why he was there.”

2 In New York v. Quarles, 467 U.S. at 651, the United States Supreme Court concluded that “under the circumstances involved in this case, overriding considerations of public safety justify the officer’s failure to provide Miranda warnings before he asked questions devoted to locating the abandoned weapon.” The police officers there had responded to a woman who claimed that she had just been raped by an armed man who had walked into a nearby supermarket. The police cornered the man in the market and discovered he was wearing an empty shoulder holster. After handcuffing him, the officer asked the suspect where the gun was, and the suspect nodded toward some empty cartons and said, “[T]he gun is over there.” Id. at 652.

3 In Commonwealth v. Alan A., 47 Mass. App. Ct. at 272, a father reported to police that his son had run away from home with the father’s handgun. The police later learned that the gun was loaded and the boy was at a friend’s house. When the friend let the police into the house, they ordered the juvenile to lie face down, handcuffed him, read him his Miranda rights, and asked him where the gun was. The juvenile had no opportunity to consult with an adult regarding the Miranda warnings. The trial judge ruled that the public safety exception to Miranda set out in New York v. Quarles, supra, was applicable and therefore the juvenile was not entitled to Miranda warnings or an opportunity to consult with an adult about the warnings, prior to being questioned about the gun. Commonwealth v. Alan A., 47 Mass. App. Ct. at 274. We likewise held that the public safety exception was applicable and affirmed. Id. at 274-275.

4 The houses were four or five miles apart.

5 The dissent assumes the juvenile was telling the truth when he said that the gun was upstairs. See post at 423. Given the boys’ evasive behavior, and their public flight, the officers, of course, did not need to believe the juvenile.

6 Later on direct examination, he was asked again and he testified, “They asked me if I could go get it and one of them would come with me to go retrieve the BB gun. ... I went in there and got it for them.”

7 It also has questionable support in the record.

8 We disagree with the dissent’s contention that it is appropriate to infer that the judge did not credit Officer Lake’s statement that he explained to the father “why he was there.” See post at 427 n.8. Officer Lake’s testimony was uncontested, and there is no indication that the judge found him not credible. Rather, she drew upon his testimony heavily in her findings of fact.

9 In Commonwealth v. Berry, 410 Mass. at 33, the court noted that “[u]ntil [the father] arrived, the police scrupulously avoided talking to the [juvenile], and no statements were taken,” as was the case here. “Upon [the father’s] arrival, the detective read a card containing the Miranda warnings to both [the father] and the [juvenile]. Both stated that they understood the warnings, and both read and signed the card. There was no discussion at this time between [the father] and the [juvenile]. The [juvenile] then gave an incriminating statement.” Ibid. The dissent appears to distinguish Berry on the ground that prior to the Miranda warnings “[t]he [juvenile] and [the father] spoke alone in the juvenile room for fifteen to twenty minutes during which time [the father] told the [juvenile] that he loved him, and would stay with him.” Ibid. See post at 429 n.10. In Berry, the father had reported the son to the police following a violent argument between the father and son. The discussion concerning the meeting in the juvenile room seems to relate to whether the father was genuinely acting to further the interests of his son. Id. at 36.

10 The juvenile testified that he understood his rights.