Com. v. Guthrie G.

• Decision Date: 05 June 2006
• Docket Number: No. 05-P-47.,05-P-47.
• Citation: 848 N.E.2d 787,66 Mass. App. Ct. 414
• Parties: COMMONWEALTH v. GUTHRIE G., a juvenile.
• Court: Appeals Court of Massachusetts

848 N.E.2d 787

66 Mass. App. Ct. 414

COMMONWEALTH v. GUTHRIE G., a juvenile.

No. 05-P-47.

Appeals Court of Massachusetts, Plymouth.

Argued October 11, 2005.

Decided June 5, 2006.

Therese M. Wright, Assistant District Attorney, for the Commonwealth.

Susan L. Collins, Duxbury, for the defendant.

Present: DUFFLY, DOERFER, & KAFKER, JJ.

KAFKER, J.

After his arraignment in Juvenile Court on charges of possession of a firearm, G.L c. 269, § 10(a ), and receiving stolen property over $250, G.L. c. 266, § 60, the juvenile successfully moved to suppress the gun as well as inculpatory statements he made to the police. The Commonwealth filed this interlocutory appeal. We reverse.

Background. The facts as found by the motion judge were as follows. William Bohmback came to the Middleborough police station on January 11, 2003, to report that his son (born on June 11, 1988) and the juvenile (born on September 17, 1988) might be in possession of a gun. Bohmback reported that when he found the two teenagers in his tool shop working on what appeared to be a gun, they "took off." He also reported that when he thereafter picked up his son at the juvenile's house, four or five miles away, his son jumped out of the car and fled again on foot. Bohmback provided the police with a description of his son and stated that he believed his son would return to the juvenile's residence.

The police radioed a description of Bohmback's son, and Bohmback left the station with Officer Lake. Another officer on patrol responded that he had stopped someone who matched the boy's description, and Officer Lake and Bohmback arrived at the scene. Bohmback identified his son, and Officer Lake questioned the boy about the location of the gun. The son stated that he believed the gun to be a BB gun and that it was at the juvenile's house. Officer Lake, Officer Murphy, and Sergeant Mills then went to the juvenile's home. The juvenile "answered the door and invited the three uniformed police officers inside the living room or possibly the kitchen area." The judge found that the juvenile was home alone during the relevant questioning.

Officer Lake questioned the juvenile about a gun. Although the juvenile "denied knowledge of a gun, when questioned by the officer regarding a BB gun, he admitted that he had a BB gun." Officer Lake then "asked to see the BB gun and [the juvenile went to] retrieve[ ] it from his bedroom." Officer Lake "followed [the juvenile] to his bedroom without his consent," while Sergeant Mills followed behind them and stood at the threshold of the room. The juvenile removed the gun from the bedroom closet. The gun was later identified as a .22 caliber Rueger. While Officer Lake was in the room, Sergeant Mills observed gun parts in a trash can in the room. The gun parts were seized, as were additional gun parts found underneath the bed.

The police officers instructed the juvenile to accompany them to the police station. Officer Lake also instructed the juvenile to call his mother and request that she meet him at the station. At the station house, the juvenile was placed in a sitting area to await his mother's arrival. Ultimately, his mother was unavailable, and the juvenile's father went to the police station instead. Officer Lake read the juvenile and his father the Miranda warnings, and the father signed the Miranda forms and was present during the questioning.¹ The juvenile testified that he understood the warnings. The judge found that "Officer Lake did not advise that [the juvenile] and his father had the right to private consultation." The juvenile informed the police that he had had the gun for approximately two days and that he found it at the side of the road.

The motion judge concluded that the juvenile was in custody when he was questioned about the gun at his home and that he should have been given Miranda warnings. She also concluded that "even though the [juvenile] was cooperative in allowing the officers in his home and volunteering to retrieve the BB gun from his bedroom, he did not consent to the search of his bedroom." She also concluded that the juvenile was not given a meaningful opportunity to consult with an adult prior to the station house questioning. She therefore suppressed the gun, its parts, and all the statements the juvenile made.

Discussion. A fourteen year old who flees with a gun triggers the heightened public safety concerns and the limited public safety exception to Miranda set out in New York v. Quarles, 467 U.S. 649, 655-656, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984),² and Commonwealth v. Alan A., 47 Mass. App.Ct. 271, 274-275, 712 N.E.2d 1157 (1999).³ In both of those cases, officers in exigent circumstances involving a firearm were allowed to ask suspects questions dedicated to locating the missing weapons without being required to give Miranda warnings.

In the instant case, the juvenile and his friend had fled with an unknown gun, thereby creating an exigency. Bohmback, the friend's father, had reported the incident to the police. Bohmback had also reported that the juveniles were working on the gun in a tool shop, which raised other troublesome possibilities. The police did not know if the gun they were looking for was loaded or not. They did know that when the boys fled with the reported gun, they ran for several miles from one boy's house to the other's.⁴ "Further, at the time the officer asked the question [about the whereabouts of the gun], he did not know if the gun was . . . in the house or had been disposed of by the juvenile in a public area." Commonwealth v. Alan A., 47 Mass.App.Ct. at 275, 712 N.E.2d 1157. The boys' behavior had been evasive.

According to the Supreme Court, the public safety "exception [to Miranda] will not be difficult for police officers to apply because in each case it will be circumscribed by the exigency which justifies it." New York v. Quarles, 467 U.S. at 658, 104 S.Ct. 2626. Difficult or not, the exigency described above clearly justified the initial questioning.

Once the juvenile indicated that he possessed the suspected gun, the police were further justified in asking to see it. See New York v. Quarles, 467 U.S. at 652, 104 S.Ct. 2626; Commonwealth v. Alan A., 47 Mass.App.Ct. at 273, 712 N.E.2d 1157.⁵ The juvenile then consented, as the judge found, to produce the gun to the police, and that finding was justified by the evidence. Thus, he cannot be heard to complain that the police came into possession of the gun. There is also no need to address any further issues arising under the Fourth Amendment to the United States Constitution, as the juvenile does not seek to suppress any evidence other than the gun (and its parts), which he consented to produce.

In regard to whether the juvenile consented to produce the gun, the findings are as follows. After some very brief preliminary questioning, "Officer Lake asked to see the BB gun and [the juvenile] retrieved it from his bedroom." In her legal conclusions, the judge also stated, "I find that even though the [juvenile] was cooperative in allowing the officers in his home and volunteering to retrieve the BB gun from his bedroom, he did not consent to search of his bedroom."

The testimony supports the findings regarding the juvenile's consent to get the gun. The juvenile testified that "[t]hey asked me if I had a BB gun, and I said, yes, and I brought them to see it."⁶ Officer Lake testified, "I asked him about a gun. . . . He didn't know what I was talking about at first, then when I mentioned the BB gun, said he has one. I asked to see it. He went to his room. I followed for officer safety."

Based on these findings and this record, the Commonwealth has satisfied its burden to demonstrate that the consent to produce the gun was freely and voluntarily given. See, e.g., Commonwealth v. Burgess, 434 Mass. 307, 310, 749 N.E.2d 112 (2001). Although the age of the juvenile was obviously a significant factor in determining whether that consent was freely and voluntarily given, it does not preclude such a finding.

The motion judge's conclusion that "Officer Lake followed [the juvenile] to his bedroom without his consent" is of no significance.⁷ The officers could not let the juvenile go unaccompanied to retrieve the gun without placing themselves at risk. Furthermore, nothing beyond the gun and the gun parts was found in the bedroom. Accordingly, the failure of the juvenile to consent to their accompanying him was of no legal or even practical consequence given his volunteering to get the gun.

Finally, in regard to the station house questioning, the standard is well-established. "A juvenile defendant over the age of fourteen may properly waive his constitutional rights if, after having been advised of those rights, he was afforded an opportunity to consult with an interested adult who was informed of and understood those rights." Commonwealth v. McCra, 427 Mass. 564, 567, 694 N.E.2d 849 (1998). There is no question that the juvenile and his father were together when Officer Lake read them the Miranda rights and that they remained together during the questioning. Officer Lake also explained to the father "why he was there."⁸ The father signed the Miranda forms. "[A]t least with regard to juveniles over the age of fourteen, . . . police officers are not required to give a juvenile and interested adult an unsolicited opportunity to confer in private." Commonwealth v. Philip S., 414 Mass. 804, 812, 611 N.E.2d 226 (1993). Additionally, "[i]t is not necessary for such a juvenile actually to consult with the interested adult, for it is the opportunity to consult that is critical." Commonwealth v. Berry, 410 Mass. 31, 35, 570 N.E.2d 1004 (1991), S.C., 420 Mass. 95, 648 N.E.2d 732 (1995).

The motion judge here concluded that there had been no opportunity to consult because there was "no indication that [juvenile] was allowed time to consult with his parent as to the meaning of his Miranda rights and to the...