December 6, 2018
N.E.3d 180] INDICTMENTS 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 defendants cellular telephone and the
information extracted from it was heard by Richard J.
Applications 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
Schnipper for the defendant.
Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
Following the January 2015 shooting death of the defendants
girlfriend, the defendant quickly became the primary suspect.
He was arrested after three members of the victims 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 officers rendering
of the Miranda warnings, the defendant ostensibly waived his
rights and spoke with police. He also [130 N.E.3d 181]
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 defendants 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 defendants 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 defendants application for direct
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 defendants
limited comprehension of English did not suffice to
compensate for these deficiencies. Because the search of the
defendants 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
defendants device. Accordingly, the order on the motion to
suppress the CSLI shall be reversed.
following facts are drawn from the first motion judges
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, 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).
In January of 2015, police officers discovered the
victims 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 [130 N.E.3d 182] shows the SUV stopping at the
curb and parking. After a few moments, the rear passenger
door on the drivers 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.
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 victims
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 victims then teenage son, Juan
Mendoza, from school. As with the other members
of his family, the victims 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 victims 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
witness was then interviewed separately by police. Each
witness was shown a photograph of the defendant and was asked
whether that person was the victims boyfriend, whom Diaz and
Martinez Melende had mentioned to the police earlier. The
witnesses agreed that the photograph showed the victims
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
[130 N.E.3d 183] 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
Shortly after the identifications, the defendant was arrested
and brought to the ...