Heard December 6, 2018.
found and returned in the Superior Court Department on April
30, 2015. Pretrial motions to suppress statements, to
suppress the results of an allegedly consensual search of a
cellular telephone, to suppress statements and evidence
derived from an incorrect statement of rights, and to
suppress out-of-court identifications were heard by John A.
Agostini, J.; and a pretrial motion to suppress the seizure
of the defendant's cellular telephone and the information
extracted from it was heard by Richard J. Carey, J.
for leave to prosecute interlocutory appeals were allowed by
Budd and Lowy, JJ., in the Supreme Judicial
Court for the county of Suffolk, and the appeals were
reported by them to the Appeals Court. After consolidation of
the appeals, the Supreme Judicial Court granted an
application for direct appellate review.
Maximilian J. Bennett, Assistant District Attorney (Katherine
E. McMahon, Assistant District Attorney, also present) for
Merritt Schnipper for the defendant.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
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.
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.
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.
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.
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. See Commonwealth v.
Jones-Pannell, 472 Mass. 429, 437 (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 (2017).
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
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. 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. They also speculated that the
defendant had been involved.
point, Diaz contacted his father, who immediately went to
collect the victim's then teenage son, Juan Mendoza,
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. 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.
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
then had the witnesses attempt to make an identification from
the surveillance footage. 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.
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. 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.
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." 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
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
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
"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
"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."
subsequently directed the defendant to initial each of the
warnings on a printed Miranda form written in English. He did
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 ...