On March 18,2010 the Massachusetts appeals court ruled in Commonwealth v. Lourenco 09-P-168 MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 that a statement made to a Police officer after discovery of a firearm was not properly suppressed. The court in reviewing the facts stated “The defendant was charged by complaint with a variety of firearm offenses stemming from the search of his motor vehicle. The defendant moved to suppress the firearms and his statements made at the time of the search. The motion judge suppressed the statements, but not the firearms and the parties have cross-appealed. We affirm in part and reverse in part.
1. The statements. The judge suppressed the defendant’s statements at the scene based on his conclusion that there was no evidence that the defendant had voluntarily waived his Miranda rights prior to making the statements. The Commonwealth claims that the judge erred because the defendant had not yet received his Miranda warnings prior to making a statement, and that the statements made were not a result of interrogation. We agree.
Although Officer Vargas’s testimony was not precise on when the defendant’s Miranda rights were administered, Officer Wilbur testified on cross-examination that the rights were provided after the defendant made statements. More importantly, and regardless of the timing issue, the defendant’s statements were not made in response to an interrogation. Miranda warnings are necessary when a suspect is subject to express custodial interrogation or its functional equivalent. Commonwealth v. Braley, 449 Mass. 316, 323-324 (2007). A functional equivalent to interrogation encompasses ‘any words or actions on the part of police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect.’ Rhode Island v. Innis, 446 U.S. 291, 301 (1980). The inquiry does not center on the subjective intent of the particular police officer but rather focuses on an objective assessment whether a reasonable person in the suspect’s position would perceive the police statements and conduct as interrogation. Commonwealth v. Braley, supra at 324. Here, after Wilbur folded down the back seat and saw the shot gun in the trunk, he alerted Vargas by saying, ‘I’ve got guns here.’ At this point, the defendant started making the statements that were suppressed. [FN2] A reasonable person could not conclude that the warning to Vargas was either interrogation of the defendant or its functional equivalent, and the defendant does not argue otherwise. [FN3] See Commonwealth v. Rodriguez, 75 Mass. App. Ct. 235, 239 (2009). Rather, the defendant’s statements were volunteered and unprovoked. See Commonwealth v. Diaz, 422 Mass. 269, 271 (1996).
2. Probable cause. Staking his claim outside the Miranda territory in his cross-appeal, the defendant asserts that the police lacked probable cause to search the car, which requires the firearms to be suppressed and his statements to be regarded as fruit from the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 488 (1963). We disagree.
‘In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ Commonwealth v. Gentile, 437 Mass. 569, 573 (2002), quoting from Draper v. United States, 358 U.S. 307, 313 (1959). In cases involving the seizure of contraband, probable cause ‘is a flexible, common-sense standard, [which] merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief,’ Carroll v. United States, 267 U.S. 132, 162 (1925), that certain items may be contraband . . . ; it does not demand any showing that such a belief be correct or more likely true than false.’ Commonwealth v. Skea, 18 Mass. App. Ct. 685, 689 (1984), quoting from Texas v. Brown, 460 U.S. 730, 742 (1983).
Here, as the judge found, crediting the testimony of Officers Vargas and Wilbur, who had nearly twenty years of combined experience, the police had probable cause to search the car. The police came upon the defendant in a restaurant parking lot well known for drug activity. The defendant’s car was parked in an isolated manner as far from the door to the restaurant as possible, in an otherwise nearly empty lot. The defendant admitted a history with drugs, and he was not from the area. He explained that he was waiting for the boyfriend of one of his passengers. The defendant then left the lot, and returned a short time later, this time without the passenger who was waiting for her boyfriend. When Vargas approached the car, the defendant got out and became defensive when Vargas stated he was patrolling the lot for drug activity. When Vargas shined his flashlight into the car, he saw the cut off corner of a sandwich baggie. Both Vargas and Wilbur knew that cut off corners of baggies are used to package drugs. Both had seen such items ‘hundreds of times’ in narcotics investigations. This baggie was thought to have been used for that purpose. It was also the same kind of heroin baggie normally found in that parking lot. See Commonwealth v. Garcia, 34 Mass. App. Ct. 645, 650 (1993) (‘If there is some characteristic of the particular baggie observed in plain view that indicates that it is being used for an unlawful purpose, that fact alone may be enough to justify seizure’). [FN4]
Applying all of these facts to the flexible, common sense probable cause standard, the judge properly concluded that a reasonable officer would be warranted in believing that the car contained contraband. In the course of the search of the passenger compartment, the back seat was lowered and the guns in the trunk were discovered from that vantage point. Because the search of the car was proper, the defendant’s statements are not fruit from the poisonous tree. The order denying the motion to suppress the firearms is affirmed, and the order allowing the motion to suppress the defendant’s statements is reversed.”
A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted, not as binding precedent. However, the case is an excellent illustration of both Probable cause and Miranda based interrogation. The Officer clearly had probable cause and the statement he made regarding the gun were not directed to the Defendant, but to his partner as a warning. Despite the ruling in Comm v. Gomes last year Officers are not required to unnecessarily risk their lives.
Attorney Ronald A. Sellon