On 2/11/2011 the Appeals court ruled that a no Miranda violation occurred in COMMONWEALTH vs. KEVIN ROBINSON 78 Mass. App. Ct. 714 (2011). Central to the appeal was the defendants argument that police should have advised him they had obtained an arrest warrant. This argument was rejected with the Appeals court noting that in future cases it was possible it could provide a problem related to other defendant rights such as the telephone and the 6 hour safe harbor rule.
The court in deciding stated “Superior Court judge hearing a criminal defendant’s pretrial motion to suppress statements that he made to police did not err in concluding that the defendant made the statements freely and voluntarily and that he freely waived his Miranda rights, even where the police failed to tell the defendant before questioning that they had obtained a warrant for his arrest.
Discussion. a. The statements. After the fire, State police and Cambridge police investigators interviewed the defendant on three occasions. The first two interviews took place on August 6, 2005, and although the arson investigation had begun to focus on the defendant by that time, he was not detained after the interviews concluded. The final interview took place on August 10, 2005, at a Cambridge police station. At the request of investigators, the defendant voluntarily accompanied them to that interview after questioning began elsewhere.
Upon his arrival at the police station, the defendant complained of an upset stomach, but when offered medical assistance, he declined and said that he simply needed to catch his breath. The formal interview started at approximately 8:15 P.M. and ended at approximately 1:00 A.M., although little communication occurred after 11:10 P.M., and nothing the defendant said after that hour was introduced at trial. As the interview began, the officers informed the defendant of his Miranda rights and of his “right” to have the interview recorded. The defendant signed a Miranda waiver form but declined a recording.
At about 10:20 P.M., after several hours of questioning, the defendant asked the officers if he could leave. The officers, who had obtained a warrant for the defendant’s arrest before the interview began but had not informed him of the warrant’s existence, said that he could not leave and then arrested him.
Against that backdrop, the defendant claims that his Miranda waiver was invalid because police failed to tell him before questioning began that they had obtained the warrant. However, after considering the totality of the circumstances, see Commonwealth v. Edwards, 420 Mass. 666 , 670 (1995), the motion judge found that the defendant made the statements freely and voluntarily and that he had freely waived his Miranda rights. That “finding . . . is given substantial deference,” Commonwealth v. Auclair, 444 Mass. 348 , 353 (2005), and we see no basis for upsetting it here.
The defendant, who had had become familiar with police procedures as a result of thirty different bookings over a twenty-five-year period, was orally advised of his Miranda rights and signed a Miranda waiver. Although he initially indicated that his stomach hurt, he declined proffered medical attention. While the interview was in progress, officers gave the defendant several opportunities to stretch, smoke a cigarette, drink water, and take antacids and aspirin for his stomach. The defendant made all the statements admitted at trial during the first three hours of what turned out to be a four-and-three-quarter-hour interview. After being informed that he was under arrest, he continued to speak to the interrogators for another forty minutes. Insofar as the arrest warrant is concerned, there is no “requirement that police officers must advise a defendant that he is charged with a crime or that he is suspect before a valid [Miranda] waiver may be obtained.” Commonwealth v. Amazeen, 375 Mass. 73 , 78 (1978). See Commonwealth v. Raymond, 424 Mass. 382 , 393 (1997), citing Amazeen, supra (“Our cases do not require that a defendant must have information regarding the crime about which he will be questioned or about police suspicions before making a valid waiver of his Miranda rights”).
The defendant’s assertion that withholding arrest information could lead to police manipulation of the six-hour “safe harbor” rule described in Commonwealth v. Rosario, 422 Mass. 48 , 50, 56-57 (1996), or of the right to make a telephone call embodied in G. L. c. 276, § 33A, raises the specter of a danger that we are prepared to address in appropriate cases. The danger does not exist here. As just stated, the entire interview lasted four and three-quarter hours, but only statements the defendant made during the first three hours were used at trial. As for the telephone, the defendant’s right is triggered by “formal arrest, not by the custodial nature of any pre arrest interrogation.” Commonwealth v. Hampton, 457 Mass. 152 , 155 (2010), citing Commonwealth v. Rivera, 441 Mass. 358 , 374-375 (2004). An arrest does not occur until, among other things, a defendant understands that he is detained. Commonwealth v. Hampton, supra at 158. For the defendant, that understanding came at approximately 10:20 P.M., and police thereafter assisted him in tracking down his girlfriend so that he could speak to her on the telephone. Judgments affirmed.”
Attorney Ronald A. Sellon