Com. v. Benoit

• Citation: 382 Mass. 210,415 N.E.2d 818
• Parties: COMMONWEALTH v. Richard C. BENOIT.
• Decision Date: 06 January 1981
• Court: United States State Supreme Judicial Court of Massachusetts

Page 818

415 N.E.2d 818

382 Mass. 210

COMMONWEALTH v. Richard C. BENOIT.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 10, 1980.

Decided Jan. 6, 1981.

Thomas E. Finnerty, Boston (James M. McDonough, Boston, with him), for defendant.

Sharon D. Meyers, Sp. Asst. Dist. Atty. (Jeremiah P. Sullivan, Jr., Asst. Dist. Atty., with her), for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, WILKINS, LIACOS and ABRAMS, JJ.

LIACOS, Justice.

The defendant, Richard C. Benoit, was tried before a jury and convicted of murder in the first degree and armed robbery. He was sentenced to serve two concurrent terms of life imprisonment. He appeals from these convictions pursuant to G.L. c. 278, §§ 33A-33G, and claims error on a number of grounds. We agree with the defendant's contention that the trial judge improperly denied his motion to suppress certain physical evidence, and that the admission of such evidence was not harmless error. We reverse and order a new trial.

We summarize the facts. On November 13, 1978, the body of Mary Ballard was discovered in a Revere motel room registered to the defendant. The decedent had been bludgeoned to death with a wine bottle. Her car and some personal effects were missing. As a result of a police investigation the defendant, whose whereabouts were then unknown, was indicted for murder and armed robbery.

On December 8, 1978, two Hartford policemen discovered the defendant sleeping in the cab of a tow truck behind a gasoline station in Hartford, Connecticut, near the location where Mary Ballard's missing car had been found. They arrested the defendant. They also seized his suitcase, which was on the floor of the truck's cab. The Hartford police conducted an inventory search of the suitcase at the police station. Nothing was seized from the suitcase at this time.

The defendant admitted to Hartford police that he and Mary Ballard had been together during the evening and night prior to the murder; that they had met in a bar near his motel and later returned to the motel where they had intercourse; and that after the victim had fallen asleep he left, stealing her pocketbook and her car. He denied having murdered her, or harmed her in any way.

Two Massachusetts State Police officers, Lieutenant Sharkey and Trooper Schofield, and a Revere police officer, Lieutenant Ryan, arrived in Hartford on December 8. On December 11, 1978, the defendant, who was represented by appointed counsel, voluntarily waived extradition at a preliminary hearing and agreed to return to Massachusetts. The Hartford police surrendered custody of the defendant to Lieutenant Sharkey in the court room. At this time the defendant's appointed counsel stated directly to Lieutenant Sharkey, in the presence of the judge, that it was the defendant's wish that he not be questioned until he had counsel to represent him.

The defendant's suitcase had been left at the jail in Hartford during the preliminary hearing. At the defendant's request the Massachusetts police officers drove back to the jail to retrieve it. They placed it in the trunk of the police cruiser.

Immediately prior to and twice during the return trip Lieutenant Sharkey advised the defendant of his Miranda rights. During the trip Lieutenant Sharkey and the defendant engaged in conversation, initially "small talk". At one point Lieutenant Sharkey observed that there had been an in-depth investigation and that they had a "very good case" against the defendant. Lieutenant Sharkey told the defendant that a bartender who had seen him with Mary Ballard in a bar on the night of the murder described him as wearing a light tan pair of chino pants. The defendant admitted owning a pair of pants of that description. He told the lieutenant that they were in the suitcase in the trunk of the police cruiser. He denied having worn them on the night of the murder. Lieutenant Sharkey told the defendant that he wanted to take the suitcase to perform blood tests and laboratory analysis of its contents. The defendant responded, "I understand." At the Charles Street jail in Boston the police, allegedly having obtained the defendant's consent, opened and searched the suitcase. They seized the tan pants and other articles of clothing.

The defendant filed a motion to suppress various statements he made during the period from the time he was arrested in Connecticut until he was booked in Massachusetts. Also, he filed motions to suppress physical evidence seized by the police, including the contents of his suitcase. The motion to suppress the contents of the suitcase was based upon the failure of the police to obtain a search warrant prior to opening the suitcase.

The trial judge ruled that the conversation during the return trip from Hartford violated the defendant's Sixth Amendment right to counsel under the rule of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). See Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). The defendant's statements made during the trip were therefore suppressed. The judge ruled, however, that the pants and other articles in the suitcase would not be suppressed because they would have been "inevitably discovered anyway."

1. The motion to suppress the contents of the suitcase. Implicit in the judge's ruling on the motion to suppress the contents of the suitcase is the premise that statements obtained in violation of a defendant's right to counsel under the Sixth Amendment to the United States Constitution may not be used for the purpose of establishing probable cause sufficient to validate a subsequent search. We agree with this premise. In Commonwealth v. White, 374 Mass. 132, 138-139, 371 N.E.2d 777 (1977), aff'd by an equally divided court, 439 U.S. 280, 99 S.Ct. 712, 58 L.Ed.2d 519 (1978), we held that statements obtained in violation of a defendant's Fifth Amendment right against self-incrimination could not be used to establish probable cause sufficient to obtain a valid search warrant. We observed in White that the policies underlying the "fruit of the poisonous tree" doctrine in the search and seizure area may be even more compelling in the Fifth Amendment context. Id. at 139, 371 N.E.2d 777. The reasons underlying our holding in White are equally applicable in the context of a Sixth Amendment violation.

In addition, the contents seized from the suitcase are the product of a second illegality. We agree with the defendant's contention that the failure of the police to obtain a warrant prior to searching the suitcase was a violation of the warrant clause of the Fourth Amendment. The Supreme Court has clearly established that police must obtain a warrant prior to executing an evidence search of closed luggage once they have seized the luggage and reduced it to their exclusive control. See Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).

The Commonwealth argues that "(i)n effect, the court found an implied consent to search when the defendant requested the officers to look through his suitcase," and that the defendant's implied consent "led to the inevitable discovery of his pants." However, the judge made no finding that the defendant requested the officers to look through his suitcase; nor is there any suggestion in the judge's ruling that he found an implied consent. ¹

We have repeatedly stated that we will not disturb subsidiary findings of fact made by a trial judge unless they are clearly erroneous. See, e. g., Commonwealth v. Moon, --- Mass. ---, --- - --- ^a, 405 N.E.2d 947 (1980) and cases cited. We cannot say on this record that the judge erred in not finding that the defendant voluntarily consented to the search of his suitcase. ²

It is possible to surmise that the police may have failed to obtain a warrant in reliance on a mistaken belief that they had obtained a valid consent to search from the defendant. However, the import of the judge's ruling is not that there was a consensual search, but rather that even had the illegal conversations not taken place the police in the normal course of their investigation would have inevitably discovered the contents of the suitcase by virtue of information obtained independent of the Massiah violation.

We disagree with the judge's conclusion that the illegally seized contents of the suitcase were rendered admissible on the basis of inevitable discovery. The Supreme Court has recognized two exceptions to the fruit of the poisonous tree doctrine. Evidence is not excluded under the doctrine if (1) the government obtained it through an independent source, Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920), or (2) the "connection (between the improper conduct and the derivative evidence has) become so attenuated as to dissipate the taint," Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 267-68, 84 L.Ed. 307 (1939). See Wong Sun v. United States, 371 U.S. 471, 487, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963) (expressly recognizing and citing the independent source test of Silverthorne and the attenuated basis test of Nardone). These exceptions allow removal of the taint if the government can demonstrate that the improper official conduct was not a sine quo non or "but for" cause of the discovery of the evidence. See People v. Fitzpatrick, 32 N.Y.2d 499, 346 N.Y.S.2d 793, 300 N.E.2d 139, cert. denied, 414 U.S. 1033, 1050, 94 S.Ct. 462, 554, 38 L.Ed.2d 324, 338 (1973); Harrison v. United States, 392 U.S. 219, 225, 88 S.Ct. 2008, 2011, 20 L.Ed.2d 1047 (1968); Maguire, How to Unpoison the Fruit The Fourth Amendment and the Exclusionary Rule, 55 J.Crim.L.C. & P.S. 307 (1964); Note, The Inevitable Discovery Exception to the Constitutional Exclusionary Rules, 74 Colum.L.Rev. 88, 90 (1974). Neither of these exceptions was relied on by the judge, nor are they applicable...