Commonwealth v. Vasquez

482 Mass. 850

130 N.E.3d 174

COMMONWEALTH

v.Pedro VASQUEZ.

SJC-12562

Supreme Judicial Court of Massachusetts, Hampden..

Argued December 6, 2018

Decided August 28, 2019

Maximilian J. Bennett, Assistant District Attorney (Katherine E. McMahon, Assistant District Attorney, also present) for the Commonwealth.

Merritt Schnipper for the defendant.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

LENK, J.

Following the January 2015 shooting death of the defendant's girlfriend, the defendant quickly became the primary suspect. He was arrested after three members of the victim's family identified him from surveillance audio and video footage taken from a private house across the street from the shooting. After officers arrested the defendant, and sought to question him, they attempted to advise him of his Miranda rights. It became apparent that the defendant did not have much command of the English language. The detectives asked a Spanish-speaking officer, who was untrained in interpretation, to translate the Miranda warnings and the interrogation into Spanish. Based on the officer's rendering of the Miranda warnings, the defendant ostensibly waived his rights and spoke with police. He also provided officers, on their request, with the passcode to unlock the cellular telephone they had seized from him upon arrest, and gave them permission to search it. Police later used that information to obtain a warrant for the cell site location information (CSLI) for the defendant's telephone.

The defendant was indicted on charges of murder in the first degree and two related firearms offenses. In a series of motions, he moved to suppress the witnesses' identifications of him from the surveillance footage, his statements to police, evidence obtained from the search of his cellular telephone, and the CSLI. A judge of the Superior Court (first motion judge) denied the motions as to the identifications and the search of the telephone. The judge allowed the motions with respect to the custodial statements.

A different Superior Court judge (second motion judge) denied the motion to suppress the CSLI.

The Commonwealth sought interlocutory review of the order suppressing the defendant's statements, and the defendant sought review of the denial of his various motions to suppress. Single justices of this court allowed the petitions, and the cross appeals were consolidated. We subsequently allowed the defendant's application for direct appellate review.

We discern no error in the decision that the identifications do not require suppression. We also agree that the translation of the Miranda warnings into Spanish was inadequate to apprise the defendant of his rights, and that the defendant's limited comprehension of English did not suffice to compensate for these deficiencies. Because the search of the defendant's cellular telephone arose from the statements he made following those incomplete warnings, the evidence obtained as a result must be suppressed. We conclude also that, when the tainted information is excised from the search warrant application for the CSLI, the affidavit does not establish probable cause to access the CSLI for the defendant's device. Accordingly, the order on the motion to suppress the CSLI shall be reversed.

1. Background. The following facts are drawn from the first motion judge's findings on the motions to suppress concerning the identifications, the Miranda warnings, and the search of the cellular telephone. The facts are supplemented, as relevant, with uncontroverted testimony implicitly or explicitly credited by the judge, in support of his findings, after evidentiary hearings.¹ See Commonwealth v. Jones-Pannell, 472 Mass. 429, 437, 35 N.E.3d 357 (2015). As to the motion to suppress involving the CSLI, the facts are drawn from the affidavit in support of the application for a search warrant. See Commonwealth v. Perkins, 478 Mass. 97, 99, 82 N.E.3d 1024 (2017).

a. Identifications. In January of 2015, police officers discovered the victim's body inside a parked sport utility vehicle (SUV); she had been shot in the head. The investigating officers noted a surveillance

camera on a building located across the street from the SUV. The black and white footage, while dark, captured the shooting. It shows the SUV stopping at the curb and parking. After a few moments, the rear passenger door on the driver's side of the vehicle opens. An argument, in Spanish, can be heard emanating from the individuals inside the vehicle. A single gunshot is heard, and a man is seen getting out of the vehicle and running off camera.

Based on this footage, police wanted to identify promptly the individual who could be seen and heard on the audio-video recording. Officers first went to the home of the victim's brother, Martino Diaz.² His girlfriend, Abigail Martinez Melende, also was present. Police told the two that a vehicle registered to Martinez Melende had been involved in a shooting and that police had some questions for them. Diaz and Martinez Melende drove together to the police station to be questioned. They both surmised that the victim had been shot.³ They also speculated that the defendant had been involved.⁴

At some point, Diaz contacted his father, who immediately went to collect the victim's then teenage son, Juan Mendoza,⁵ from school. As with the other members of his family, the victim's son was aware that a shooting had occurred and, before talking to police, harbored a similar suspicion that the defendant had harmed his mother in some way.⁶ The victim's son and his grandfather drove to the police station together; when they arrived, Diaz told them that he believed the defendant may have killed the victim.

Each witness was then interviewed separately by police. Each witness was shown a photograph of the defendant and was asked whether that person was the victim's boyfriend, whom Diaz and Martinez Melende had mentioned to the police earlier. The witnesses agreed that the photograph showed the victim's boyfriend.

Police then had the witnesses attempt to make an identification from the surveillance footage.⁷ First, they had each witness listen to the audio segment of the recording, without displaying the video portion, to determine if anyone could recognize the voices of the individuals in the vehicle; each listened to the recording separately. The recording was stopped immediately prior to the sound of a gunshot. Diaz, Mendoza, and Martinez Melende each identified the voices as belonging to the victim and the defendant.⁸

After listening to the audio recording, each witness was shown the video recording, without the accompanying audio, to determine whether the witness could identify the individual who got out of the vehicle and ran down the street.⁹ As with the audio recordings, the witnesses were separated throughout this process. Although the video recording is too indistinct to display any facial features, all three witnesses believed that the individual seen leaving the vehicle and running down the street was the defendant.

Diaz reported that he believed the individual was the defendant based on "his sneakers," "his voice," and "the way he is," and because the victim "mentioned his name two times."¹⁰ Mendoza expressed a belief that the defendant was the individual depicted in the videotape based on the clothing and the way in which he moved. Martinez Melende reported that she believed that the individual was the defendant based on his "size, body type, weight and height," as well as his sneakers.

The police did not suggest to the witnesses that the defendant was a suspect, and none of the witnesses was permitted to speak to any of the others until after each witness had made an identification.¹¹

b. Interrogation. Shortly after the identifications, the defendant was arrested and brought to the Springfield police station. During

the subsequent interrogation, one of the detectives attempted to inform the defendant that he had been arrested for the murder of the victim and for firearms violations relating to her death. The detective also attempted to advise the defendant of his Miranda rights. Because the defendant was illiterate in English and Spanish, the officers understood that the defendant would need the Miranda warnings explained to him orally. They also understood that, because the defendant did not appear to have much command of English, they had to deliver the warnings in Spanish, the defendant's native language. One of the officers, who was not formally trained as an interpreter, translated the warnings as follows:

"1. You have the right to remain quiet.

"2. Any thing that you say can be against you ... the, of the court.

"3. You the right to consult with a lawyer for advice before being and to have him present with you during the interrogation.

"4. If you do not have the means to pay, to pay a, and if you wish for it, you the right to be a law, lawyer before being interrogated.

"5. If you decide to be now, without the presence of a lawyer, you still have the right to stop the, that any moment until you talk with a lawyer."¹²

Police subsequently directed the defendant to initial each of the warnings on a printed Miranda form written in English. He did so.

During the course of the interview, the defendant consistently denied his involvement, even as officers became "confrontational and accusatory" in their questioning. As the interview drew to a close, the defendant told officers that they "could check" many of the details surrounding his account because they had his cellular telephone. At that point, police asked, in English, if they could search the device, and expressed some confusion whether they or the defendant were in possession of the device. The defendant gave them "verbal permission" to search the device.¹³

c. Search warrant for CSLI. When police searched the defendant's cellular telephone, they "extracted" the incoming and outgoing telephone calls, incoming and outgoing text messages, incoming...