Commonwealth v. Toney
| Decision Date | 13 November 2006 |
| Docket Number | 041808 |
| Parties | Commonwealth of Massachusetts v. Fuquan Toney |
| Court | Massachusetts Superior Court |
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Lu, John T., J.
The defendant, Fuquan Toney (Toney), moves to suppress police observations made when they arrested him on a violation of probation warrant. He also moves to suppress his statements made during two interrogations at the Worcester police department and items seized from his apartment pursuant to a search warrant. The court conducted an evidentiary hearing on October 2, 2006, at which Worcester police Detectives Christopher Murphy (Murphy), Robert Johnson (Johnson), Thomas Looney (Looney) and Daniel Sullivan (Sullivan) testified.
Finding that the search of the apartment was a lawful protective sweep, that the statements were voluntary and given after Toney received adequate Miranda warnings and that the statements were not obtained in violation of his right to a prompt arraignment, the court denies the motion to suppress the fruits of a warrantless search and the motion to suppress statements. Finding that the warrant did not sufficiently particularize some objects of the search, the court allows in part, the motion to suppress the fruits of the search pursuant to a search warrant and denies the motion in part.
Based on the evidence presented and reasonable inferences from the evidence, the court makes the following findings of fact:
1. On July 22, 2004, Worcester police were investigating a fatal shooting in front of Worcester city hall. About 11: 20 A.M. numerous officers, including Murphy, Johnson, Looney and Sullivan, went to 15 Willow Street, apartment #16 in Westboro. They were looking for Toney and they had a description of his car.
2. 15 Willow Street was an apartment house with assigned parking spaces. They found the car they sought in an assigned space near a building with Toney's name on one of the mailboxes.
3. A Worcester police Sergeant-Detective told them that he had a violation of probation warrant for Toney. The warrant was for conspiracy, with two other people, to commit armed robbery. Police also considered Toney a suspect in the fatal shooting.
4. Four officers went to the apartment door and two guarded the building's rear exit. Murphy knocked on the apartment door. After ten to fifteen seconds someone inside said "Who is it?" Murphy replied, "Worcester police." Toney opened the door wearing boxer shorts and a T-shirt and stepped back four to five feet into the apartment. Police asked him if he was Fuquan Toney. After he said that he was, police told him that he was under arrest on the probation warrant and handcuffed him.
5. It was a one-bedroom apartment, consisting of several rooms. The view into the apartment was partially obstructed by a wall.
6. Johnson did what he considered to be a protective sweep; he walked around the apartment to see if there was anyone else there. He saw a safe in the bedroom, about the size and color of a dorm refrigerator, with its door open most of the way he saw cash, ammunition, inositol and cocaine on top of and inside the safe. Johnson did not touch anything.
7. After Toney dressed, Looney and Sullivan drove him to the Worcester police department. Police did not say anything to him, nor did Toney say anything to them.
8. Police posted a guard at the apartment.
9. Police quickly brought Toney, still handcuffed, to an interrogation room, where he read and acknowledged, verbally and in writing, a form containing the following rights. Right to the Telephone. Pursuant to c. 276, §33A, you have the right to use the telephone to communicate with family or friends, or to arrange for bail, or to contact an attorney. Do you understand this right? Miranda Warnings and Waiver. Miranda Warnings. Before we ask you any questions, you must understand your rights. You have the right to remain silent. -Do you understand this right? Anything you say can be used against you in court. -Do you understand this right? You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. -Do you understand this right? If you cannot afford a lawyer one will be appointed for you before questioning if you wish. -Do you understand this right? If you decide to answer questions now without a lawyer present, you will still have the right to stop questioning at any time until you talk to a lawyer. -Do you understand this right? Do you understand what I have read to you? Waiver of Miranda Warnings. Having these rights in mind, do you now waive your Fifth Amendment rights pursuant to Miranda, and desire to talk to me now concerning this matter or other matters of concern to us?
10. Toney, or one of the officers at his direction, placed an X in front of the following. Yes, I wish to talk to you now and waive my Fifth Amendment Right pursuant to Miranda.
11. Toney, Looney and Sullivan signed the bottom of the form. About 12: 15 P.M., Toney used the phone to call his girlfriend, reaching her answering machine. He initialed a notation at the bottom of the form indicating that he had done so.
12. Police questioned Toney at length about where he was the night of the killing. Toney would only say that he was at Mott Street until about 10: 30, that his girlfriend picked him up, and that he went home to Westboro and that he was never in Worcester.
13. Toney repeatedly told police he had nothing more for them. He never told them that he was unwilling to continue, nor did he tell them that he wished to have an attorney present.
14. Toney was questioned during an active murder investigation; for much of the time police left him alone while they pursued other leads and attended to other aspects of the investigation. After about two hours, police gave up and returned Toney to his cell.
15. At about this time, police applied for and received Westborough District Court search warrant no. 04 SW 29, which they executed at about 2: 20 P.M.
16. Between 2 and 8 P.M., Timothy Zanetti and Jorge Lopez, also suspects in the killing, came to the police station.
17. Police did not intend to charge Toney with murder until they interviewed Zanetti and Lopez, between 4 and 8 P.M. At about 8 P.M., police again attempted to question Toney.
18. He read and acknowledged another copy of the same form. He did not check the box indicating that he wanted to talk to them and he did not use the telephone.
19. Looney and Sullivan told him that they had now talked to the other people in the car. Toney refused to answer any questions. Looney and Sullivan ended the interview after less than five minutes, without telling Toney that he was under arrest for murder. Toney did not say anything other than to refuse to talk to police.
Generally where the defendant has a reasonable expectation of privacy police must have a warrant to search a person, his belongings, or his home. Exceptions to this rule arise when the benefits to the public interest outweigh the individual's privacy right. Maryland v. Buie, 494 U.S. 325, 336-37 (1990). One exception to this rule is a protective sweep conducted in conjunction with the arrest of an individual in his home. Buie, 494 U.S. at 327. "A 'protective sweep' is a quick and limited search of a premises, incident to an arrest and conducted to protect the safety of police officers or others." Buie, 494 U.S. at 331. The scope of a protective sweep must be limited to its purpose and "may extend only to a cursory inspection of those spaces where a person may be found." Buie, 494 U.S. at 335.
If a dwelling in which an arrestee is found is reasonably suspected to harbor others who might pose a danger "to those on the arrest scene," police may conduct a "protective sweep" or "security check" of the premises. Commonwealth v. Bowden, 379 Mass. 472, 478 (1980). In Bowden, the arresting officer conducted a security check of the defendant's cellar, which resulted in the discovery of.38 caliber bullets. Bowden, 379 Mass. at 478. Bowden, 379 Mass. at 478. The court held that the security check was valid because it was reasonably necessary to ensure the personal safety of the arresting officer. Bowden, 379 Mass. at 478. The protective sweep in Bowden was broader in scope than the sweep conducted in this case.
If police are lawfully in a position from which they can view an object, if they have a lawful right of access to the object if discovery of the object is inadvertent, and if its incriminating character is immediately apparent, they may seize the object without a warrant under the plain view exception. Commonwealth v. Santana, 420 Mass. 205, 211 (1995). In Bowden, the Court held that the seizure of the shells was constitutional under the plain view doctrine because the arresting officer was authorized to conduct a security check of the cellar and inadvertently found incriminating evidence. Bo...
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