Appeals Court Upholds Admissibility of Statement in OUI

On May 12, 2011 the Appeals court ruled that the police did not obtain statements unlawfully in COMMONWEALTH vs. VINCENT A. LAVENDIER 79 Mass. App. Ct. 501 (2011). The case is an excellent illustration of what “custody” is for the purposes of Miranda and covers the four factors in assessing the question of custody as cited in Commonwealth v. Groome.

The court in reaching its decision stated “In upholding the District Court judge’s denial of the criminal defendant’s pretrial motion to suppress incriminating statements the court stated “that he made to police officers prior to his arrest, where the defendant was not in custody when he made the statements, in that the location of the interrogation was a neutral site; the officers’ questions were investigatory in nature and not accusatory; the nature of the interrogation was not coercive; and although the officers declined the defendant’s request that they leave a place that was not his home, thereby providing some suggestion that he was not at that point free to terminate the interview, the officers’ refusal to leave did not carry the same coercive force as it might have had it been the defendant’s home.

The evidence at a criminal trial was sufficient to convict the defendant of operating a motor vehicle while under the influence of intoxicating liquor.

1. Motion to suppress. Through the statements at issue, the defendant effectively acknowledged that he was intoxicated and that he had driven the truck found at the scene. The determinative issue is whether the defendant was already in “custody” when he made those statements. See Commonwealth v. Morse, 427 Mass. 117 , 122 (1998) (“Miranda warnings are only necessary where one is subject to ‘custodial interrogation’ “). In addressing that issue, we accept the motion judge’s findings of fact absent clear error (and the defendant alleges none), but we make our own assessment of the judge’s application of constitutional principles to the facts found. Commonwealth v. Mello, 420 Mass. 375 , 381 n.8 (1995).
The motion judge found the following facts. Just before midnight on September 30, 2008, the Orleans police received an anonymous tip that a white pickup truck was driving erratically and “striking things” in the vicinity of Great Oak Road. A few minutes later, they received a call from the same tipster that a man in a particular residence there was yelling out a woman’s name. In response to the calls, a police officer arrived at a private residence at 80 Great Oak Road, where he found a chaotic and confusing scene. A white pickup truck was pulled up to the front door of the house and on the lawn. There were tire tracks in the dirt and the dew on the lawn had been disturbed, and the officer detected the scent of burning brakes emanating from the truck. He heard “breaking and smashing noises coming from inside the house” and “observed smashed windows and a toilet that seemed to be hanging outside one window.”

The officer, joined by a second officer, proceeded inside to the kitchen of the home, where they found “a tipped over gas stove, broken items, and the defendant holding the refrigerator at a 45 degree angle.” The defendant initially told the police “he owned the house, then he said his aunt owned the house and that he was doing renovations, and then he said it was his cousin Mike’s house” (a statement that ultimately proved to be true). The police convinced the defendant to step away from the refrigerator “for everyone’s safety,” and they “asked him to sit down at a table in the dining room away from the kitchen.” As the defendant entered the dining room, he expressed a reluctance to have the police join him there, because there was “contraband” there that was his. The police nevertheless joined him in the dining room and continued with their questions as they tried to get to the bottom of what was going on.

From start to finish, the interview of the defendant lasted only ten to fifteen minutes. During the questioning, the defendant was seated at the table (where the referenced “contraband,” a small amount of marijuana, lay) and the police “were standing at the sides of the table.” At one point, a third officer, a sergeant, joined them. The sergeant questioned the defendant about whether he had driven and whether he had consumed alcohol. The defendant responded that he had driven from Newport, Rhode Island, and that he had not had anything to drink since he arrived at the house. He also stated he started to destroy things when he arrived. The officers’ suspicions were further aroused when they noticed that the defendant was not in any photographs adorning the walls and that mail there was not addressed to him, and when they learned from dispatch that the truck was registered to a different address and that someone else owned the house. The defendant also could not produce a key to the property when asked. The defendant at some point stood up and announced that he was “cocked” and that he was going to strangle one of the officers and kill another. He was then arrested.

The Supreme Judicial Court has instructed that we are to consider four factors in assessing the question of custody:
“(1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that the person is a suspect; (3) the nature of the interrogation, including whether the interview was aggressive or, instead, informal and influenced in its contours by the person being interviewed; and (4) whether, at the time the incriminating statement was made, the person 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. Groome, 435 Mass. 201 , 211-212 (2001). “[T]he initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.” Commonwealth v. Morse, 427 Mass. at 124, quoting from Stansbury v. California, 511 U.S. 318, 323 (1994). a. Place of interrogation. The location of the interrogation was a neutral site. The defendant was questioned in a room with multiple exits, and the door to the house was “wide open.” Although this setting was different from the typical roadside confrontation, where one is in the open and visible to passersby, it is far from the coercive atmosphere of a police interrogation room. Moreover, it appeared to be a place familiar to the defendant; he evidently knew the house’s owner and was comfortable enough to leave his marijuana in the next room.
b. Focus of the investigation. The officers’ questions were investigatory in nature, not accusatory, and the fact that the defendant made incriminatory statements did not render the interrogation custodial. “There is no requirement that warnings be given prior to ‘[g]eneral on-the scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process.’ ” Commonwealth v. Merritt, 14 Mass. App. Ct. 601, 604 (1982), quoting from Miranda v. Arizona, 384 U.S. 436, 477 (1966). The defendant’s assertion is incorrect that once he admitted to possessing the contraband in the dining room — a criminal offense at the time — he was necessarily in custody. See Commonwealth v. Cameron, 44 Mass. App. Ct. 912 , 914 (1998) (“The fact that the defendant’s responses to some of the on-the-scene questions were admissions does not convert the interview into a custodial interrogation”). We look for a “fundamental transformation in the atmosphere” on the part of the police in such a situation. Commonwealth v. Hilton, 443 Mass. 597 , 612-613 (2005) (although defendant made remark to effect that her son would never forgive her, officer’s question, “Why don’t you tell us what happened?” did not transform questioning into custodial interrogation). [Note 3] There was no such transformation here. Even when the sergeant arrived and asked the defendant whether he had driven and whether he had been drinking, this line of questioning was akin to a traffic stop, which is regularly held to be noncustodial for Miranda purposes. See, e.g., Commonwealth v. Samneang Ka,70 Mass. App. Ct. 137 , 140 (2007) (“general on-scene questioning . . . , including a question whether the driver has been drinking,” does not amount to custody). Moreover, although the officers at some point learned that the defendant did not own the property, there is no indication that he became aware that they knew this.
c. Nature of the interrogation. The nature of the questioning was not coercive. Although the defendant was seated while the three police officers “were standing at the sides of the table,” the entire encounter was brief (lasting only ten to fifteen minutes), the defendant was never physically restrained, there was no evidence that the officers brandished their weapons, and the questioning never became aggressive. The interview remained investigatory in nature, and the officers never conveyed to the defendant that they believed he had committed a crime.
d. Freedom to end interview. The officers testified at the suppression hearing that they would not have let the defendant leave mid-interview, and he was eventually arrested (albeit only after threatening to kill two of the officers). However, the test for custody is not whether the defendant was in fact free to leave. Instead, we are concerned with how a reasonable person in the defendant’s position would have perceived the situation. Commonwealth v. Simon, 456 Mass. 280 , 287, cert. denied, 131 S. Ct. 181 (2010). Here, the officers never told the defendant he was not free to go, and at no time did he attempt to leave. An officer testified at the motion hearing that at one point the defendant told him to “get the fuck out of there,” which, as defense counsel acknowledged at oral argument, was some evidence that the defendant up to that point perceived that he was not in custody. To be sure, the officers did not heed that demand, providing at least some suggestion that the defendant was at that point not free to terminate the interview. Notably, however, the defendant knew that this was not his home (and that he had no right to demand that the police leave), and he knew (or should have known) that the police had doubt that this was his home. Therefore, the officers’ declining his request to leave did not carry the same coercive force as it might have had had this been the defendant’s home, and it did not by itself transform the interview into a custodial one.
Weighing all of the relevant facts, and cognizant that no one factor is dispositive, see Commonwealth v. Magee, 423 Mass. 381 , 386 (1996), we conclude that the defendant was not in custody when the police officers questioned him. Therefore, we affirm the order denying his motion to suppress.

On the charge of operating under the influence of intoxicating liquor (third offense), the judgment is affirmed. On the charge of malicious destruction of property, the judgment is reversed, the verdict is set aside, and judgment is to enter for the defendant. So ordered.”

Attorney Ronald A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to
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