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SJC-12562
COMMONWEALTH vs. PEDRO VASQUEZ.
Hampden. December 6, 2018. - August 28, 2019.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Homicide. Identification. Due Process of Law, Identification.
Constitutional Law, Identification, Admissions and
confessions, Voluntariness of statement, Search and
seizure, Probable cause. Evidence, Identification, Bias,
Admissions and confessions, Voluntariness of statement.
Witness, Bias. Fair Trial. Cellular Telephone. Probable
Cause. Search and Seizure, Fruits of illegal search,
Affidavit, Probable cause. Practice, Criminal, Motion to
suppress, Fair trial, Admissions and confessions,
Voluntariness of statement, Interlocutory appeal.
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 defendant's
cellular telephone and the information extracted from it was
heard by Richard J. Carey, J.
Applications for leave to prosecute interlocutory appeals
were allowed by Budd and Lowy, JJ., in the Supreme Judicial
2
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 the Commonwealth.
Merritt Schnipper for the defendant.
LENK, J. Following 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.
3
The 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.
The 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.
We 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
4
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.
1. Background. The 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.1 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).
1 An evidentiary hearing was conducted over four days on the
motions to suppress the identifications, custodial
interrogation, and initial search of the cellular telephone. At
that hearing, the first motion judge heard testimony from
Abigail Martinez Melende; the victim's son, brother, and father;
and a Springfield police officer, with respect to the
identification procedures. Testimony was also introduced from a
police officer and an expert witness concerning the custodial
interrogation and the search issues. A nonevidentiary hearing
was conducted by the second motion judge on the motion to
suppress the cell site location information (CSLI).
5
a. Identifications. In 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 camera.
Based 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.2 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.
2 A pseudonym.
6
They both surmised that the victim had been shot.3 They also
speculated that the defendant had been involved.4
At some point, Diaz contacted his father, who immediately
went to collect the victim's then teenage son, Juan Mendoza,5
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.6 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.
Each 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
boyfriend.
3 Diaz's neighbor had seen a news report of the shooting,
and told Diaz and Martinez Melende, as they were leaving for the
police station, that a woman had been killed.
4 Diaz and Martinez Melende also were aware that there was a
history of domestic violence between the defendant and the
victim over the years.
5 A pseudonym.
6 Mendoza also had seen a news report that the vehicle his
mother drove had been involved in a shooting.
7
Police then had the witnesses attempt to make an
identification from the surveillance footage.7 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.8
After 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.9 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.
7 The victim's father did not participate in the
identification procedure.
8 Diaz was able to make a voice identification, in part,
because the victim purportedly mentioned the defendant's name
twice during the argument.
9 The witnesses were shown only the portion of the video
recording that began after the sound of the gunshot.
8
Diaz 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."10
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 his sneakers.
The 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
an identification.11
b. Interrogation. Shortly 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
10Although Diaz did not listen to the audio portion while
he viewed the video footage, his statements make clear that he
understood the two segments were connected.
11It appears as though the witnesses spoke to each other
before arriving at the police station and while waiting at the
police station; at these points, none of the witnesses had made
an identification from either the audio or video portions of the
surveillance tape.
9
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
interrogation.
"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
being interrogated.
"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."12
Police subsequently directed the defendant to initial each of
the warnings on a printed Miranda form written in English. He
did so.
12 The first motion judge "accept[ed] this transcription and
translation as the official and accurate version of the
conversation between and among the participants to the
interview."
10
During 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 were in
possession of the device. The defendant gave them "verbal
permission" to search the device.13
c. Search warrant for CSLI. When police searched the
defendant's cellular telephone, they "extracted" the incoming
and outgoing telephone calls, incoming and outgoing text
messages, incoming and outgoing multimedia messages, contact
information, and photographs and video recordings on the device.
Approximately ten days after that search, police applied
for a warrant to obtain the CSLI data for the device.14 In
13When the officers asked if they or the defendant were in
possession of his cellular telephone, he responded that they had
it. Officers then asked if they could search the device, and
the defendant responded, "Si." The officer who was interpreting
followed up in Spanish, "You understand what he say? They can
take your phone in order, to search the phone?" The defendant
responded, in Spanish, "Yes, they can search."
14"The term ['CSLI'] refers to a cellular telephone service
record or records that contain information identifying the base
station towers and sectors that receive transmissions from a
[cellular] telephone" (quotation and citation omitted).
11
support of the warrant request, the affidavit described the
evidence that police had gathered, which included the witnesses'
identifications of the defendant from surveillance footage and a
history of domestic violence. The affidavit also noted that a
cellular telephone was recovered from the defendant when he was
arrested at his house, and described information obtained from
the police search of that device, namely, the defendant's
telephone number.15 Based on this evidence, police requested all
CSLI for the thirty-two days from December 5, 2014, through
January 5, 2015, the month immediately preceding and including
the day on which the victim was killed. A warrant for the
requested information was issued.
d. Suppression hearings. In April of 2017, the first
motion judge held an evidentiary hearing concerning the motions
to suppress the defendant's statements, the identifications, and
the initial search of the cellular telephone. The judge then
Commonwealth v. Augustine, 472 Mass. 448, 449 n.1 (2015).
"'Historical' CSLI refers to CSLI relating to and generated by
cellular telephone use that has already occurred at the time of
the order authorizing the disclosure of such data" (quotation
and citation omitted). Id. In essence, "[t]he data can be used
to approximate the location of a cellular telephone handset that
was active at a particular time." Id.
15The warrant affidavit also noted that, on an unspecified
date and with the same information, police sent an
administrative subpoena to the defendant's cellular service
provider, pursuant to G. L. c. 271, § 17B, seeking to obtain all
the defendant's billing and call detail records for the one-
month period leading up to the victim's death.
12
allowed the defendant's two motions to suppress his custodial
statements, and denied the motions to suppress the
identifications and the search of the cellular telephone. Both
parties sought leave to pursue interlocutory appeals from those
orders, and a single justice of this court allowed their
petitions.
While these proceedings were underway, the defendant also
filed a separate motion to suppress the CSLI. After a
nonevidentiary hearing, the second motion judge denied the
motion; a single justice of this court allowed the defendant's
request to appeal from that order. The parties' cross appeals
were consolidated in the Appeals Court, and we subsequently
allowed the defendant's request for direct appellate review.
2. Discussion. "In reviewing a decision on a motion to
suppress, we accept the judge's subsidiary findings absent clear
error, but conduct an independent review of his [or her]
ultimate findings and conclusions of law" (quotations and
citation omitted). Jones-Pannell, 472 Mass. at 431. A
reviewing court gives due deference to a motion judge's findings
where, as here, the judge "has seen and heard the witnesses, and
made determinations regarding the weight and credibility of
their testimony." See Commonwealth v. Tremblay, 480 Mass. 645,
655 (2018), quoting Jones-Pannell, supra at 438. We may,
13
however, conduct an independent review of the documentary
evidence. See Tremblay, supra.
a. Identifications. The defendant contends that, because
the witnesses harbored preconceived biases against him, and
because police had those witnesses view a photograph and listen
to an audio recording depicting the defendant, their subsequent
visual identifications were inherently suggestive of him and
violated due process and common-law principles of fairness. To
the extent that the defendant challenges the procedures employed
by police to obtain a visual identification, we apply a due
process analysis under art. 12 of the Massachusetts Declaration
of Rights. As to whether the witnesses' own biases and the
unreliable nature of the video footage otherwise caused a
suggestive confrontation with the defendant, we turn to common-
law principles of fairness.
i. Due process. An out-of-court eyewitness identification
conducted by police is inadmissible under art. 12 "if the
defendant proves by a preponderance of the evidence that the
identification was 'so unnecessarily suggestive and conducive to
irreparable misidentification that its admission would deprive
the defendant of his right to due process.'" Commonwealth v.
Johnson, 473 Mass. 594, 596-597 (2016), quoting Commonwealth v.
Walker, 460 Mass. 590, 599 (2011). "In considering whether
identification testimony should be suppressed, the judge must
14
examine the totality of the circumstances attending the
confrontation to determine whether it was unnecessarily
suggestive" (quotation and citation omitted). Johnson, supra at
597. Where a defendant shows that the procedure utilized by
police to obtain an identification was unnecessarily suggestive,
"the out-of-court identification is per se excluded as a
violation of the defendant's right to due process under art.
12." Id., quoting Walker, supra at 599 n.13. The purpose
underlying the per se exclusionary rule in such circumstances is
to deter any specter of police misconduct in obtaining an
identification. Johnson, supra at 597-598.
Insofar as the defendant challenges police conduct in the
identification process, we agree with the first motion judge
that the identification protocol devised and implemented by the
detectives in this case was not so unnecessarily suggestive as
to mandate per se exclusion under art. 12.16 Although an
It is certainly not ideal that, prior to making an
16
identification, each witness was apparently aware that the
victim had been killed and suspected the defendant's
involvement. Nonetheless, we agree with the first motion
judge's determination that the identification procedure was not
unduly suggestive under the circumstances. For example, police
officers separated each witness during the identifications,
presented the audio portion as distinct from the video portion,
and did not allow the witnesses to see or hear the portion
containing the gunshot. Moreover, police themselves made no
suggestion of the defendant's involvement, and no confirmatory
feedback was provided to the witnesses. See, e.g., Commonwealth
v. Johnson, 473 Mass. 594, 600-602 (2016) (citing social science
evidence and noting suggestive tactics police must avoid).
15
identification stemming from a videotape containing only one
individual is analogous to a one-on-one identification, it
raises due process concerns only if it is "unnecessarily
suggestive of the defendant . . . so as to give rise to a very
substantial likelihood of a mistaken identification" (citation
omitted). See Commonwealth v. Forte, 469 Mass. 469, 477 (2014).
Where there were no percipient witnesses to the shooting in this
case, and where the victim's family members otherwise might have
been in a position to ascertain the identity of the shooter from
Even so, where there is more than one potential identifying
witness, and where it is feasible to do so, we caution that
police should avoid affording those witnesses the opportunity to
speak with other witnesses about their perceptions prior to the
identification proceeding. Of course, police cannot be expected
to prevent every conceivable exposure to external information.
Precautions should be taken, however, to guard against the risk
that a witness may be influenced by his or her conversations
with police, family members, or other witnesses before making an
identification.
Moreover, to the extent that the defendant complains of the
photograph being shown to the witnesses before they made an
identification, those witnesses already had suggested to police
that the victim's boyfriend likely was involved. Although it is
better practice not to have shown a photograph of the defendant,
police did so to confirm that this was the individual to whom
the witnesses were referring when they spoke of the victim's
boyfriend. In these circumstances, given that the witnesses
were familiar with the defendant and were not eyewitnesses to a
crime, it is unlikely that the witnesses made an identification
from the videotape based on their having viewed his photograph.
Compare Commonwealth v. Forte, 469 Mass. 469, 477 (2014)
(suppression not required where percipient eyewitnesses later
were shown surveillance footage and then identified defendant in
photographic array as man whom they perceived at time of crime).
16
the surveillance footage, the police had good reason to have
those witnesses attempt to do so. Cf. id. ("good reason" to
show surveillance tape and photograph where police needed prompt
confirmation of investigatory information from witnesses). The
defendant does not suggest that police had an alternate
identification procedure that they could have employed here but,
rather, appears to imply that police should have forgone
attempting to establish a visual identification altogether
because the video quality was poor, the witnesses were biased
against him, and they already had made an audio identification
of his voice.17 We decline to disturb the judge's determination
that the identification protocol utilized by police here does
not mandate suppression under art. 12.
ii. Common-law principles of fairness. When an out-of-
court identification is suggestive through no fault of the
police, "suppression cannot deter police misconduct because
17The defendant does not appear to challenge the audio
identifications in this appeal, but, to the extent that he may,
we discern no abuse of discretion in the first motion judge's
determination that those identifications need not be suppressed.
The witnesses had significant familiarity with the defendant's
and the victim's voices, both in person and over the telephone,
such that the witnesses were able to identify the voices from
the audio recording reliably. Moreover, the police employed an
appropriate procedure to separate the audio from the video
segments, to ensure that the witnesses did not hear the gunshot,
and to separate each witness while he or she attempted to make
an identification. See Commonwealth v. Chamberlin, 86 Mass.
App. Ct. 705, 713 (2014).
17
there is none." See Johnson, 473 Mass. at 598. Nonetheless, if
an identification arises from suggestive circumstances, "its
admissibility 'should not turn on whether government agents had
a hand in causing the confrontation,'" because the evidence is
"equally unreliable in each instance." Id., quoting
Commonwealth v. Jones, 423 Mass. 99, 109 (1996). Applying
common-law principles of fairness, a judge accordingly may
suppress the out-of-court eyewitness identification if it
"resulted from a 'highly' or 'especially' suggestive
confrontation with the defendant." See Johnson, supra at 598-
599, quoting Jones, supra.
"Among our 'common law principles of fairness' is the
evidentiary rule that a judge has discretion to exclude relevant
evidence 'if its probative value is substantially outweighed by
the danger of unfair prejudice.'" See Johnson, 473 Mass.
at 599, quoting Commonwealth v. Crayton, 470 Mass. 228, 249 n.27
(2014). See also Johnson, supra ("A judge's authority to
exclude severely unreliable identification testimony is closely
related to his or her more general discretion to exclude
evidence that is more prejudicial than probative" [quotation and
citation omitted]). "A motion to suppress an identification
under Jones is similar to a motion to suppress an identification
under art. 12," but it differs in two key respects. See
Johnson, supra. "First, the standard of admissibility is
18
different . . . ." Id. at 600. As opposed to the rule of per
se exclusion, a judge maintains the discretion, after "weighing
the probative value of the identification against the danger of
unfair prejudice, and determining whether the latter
substantially outweighs the former," to allow the admission of a
suggestive identification or to exclude it. Id. at 600-602
(describing factors judge should consider in making such
determination). Second, the standard of appellate review
differs. Id. at 602. Under art. 12, we review without
deference a motion judge's application of the law to the facts
as found; under our common-law principles of fairness, however,
we review for an abuse of discretion. Id.
In this regard, the defendant contends that the out-of-
court identifications must be suppressed because the video
footage is so inherently unreliable that no one could identify
the defendant unless he or she were predisposed to do so. After
hearing testimony from the three witnesses and from police, and
after reviewing the video footage himself, however, the first
motion judge rejected the notion that the witnesses' prior
suspicions of the defendant's involvement, and their ability to
ascertain his voice from the audio recording, precluded them
from making a reliable visual identification.18 Applying our
18The defendant maintains that we should review the
question de novo because the first motion judge did not apply
19
common-law principles of fairness, we discern no abuse of
discretion in this determination.
Notably, the video quality in this case is poor, and likely
would not permit an eyewitness who is unfamiliar with the
suspect to make a visual identification from the recording. The
individuals who made an identification here, however, were not
eyewitnesses to a crime perpetrated by a stranger, who may be,
perhaps, more susceptible to a mistaken identification given a
"single" or "brief" exposure to a suspect in frightening
conditions. See Commonwealth v. Chamberlin, 86 Mass. App. Ct.
705, 713 (2014). Rather, each witness had a long and close
relationship with the defendant, and had considerable
familiarity with his stature, gait, appearance, clothing, and
features. See, e.g., id. (voice identifications rendered
nonsuggestive given long-time association between witnesses and
defendant); Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 328
(2000) (video identification admissible given officer's long
social familiarity with defendant). When such familiarity is
present, those witnesses may be able to discern identifying
common-law principles of fairness under Johnson, 473 Mass.
at 602. Although the judge did not explicitly reference our
common-law principles of fairness, he impliedly engaged in the
requisite weighing of probative value and prejudicial effect in
concluding that the identifications were reliable, relevant, and
admissible. Having reviewed the video footage ourselves, we
agree with the judge's determinations.
20
characteristics that others could not, rendering their visual
identifications, in some circumstances, less unreliable. See
Johnson, 473 Mass. at 601-602 ("witness's prior familiarity with
the person identified, where that person is a witness's family
member, friend, or long-time acquaintance," is relevant factor
in assessing probative value of identification). Indeed, here,
the three witnesses each immediately identified the defendant
based on specifics such as his height, weight, and articles of
clothing, and the way in which he moved. Given their
familiarity with the defendant, and because their preconceived
suspicions should not otherwise preclude them from being able to
make a visual identification, we conclude that our common-law
principles of fairness do not require suppression.19
b. Miranda warnings. The Commonwealth challenges the
allowance of the motion to suppress custodial statements on the
ground that the first motion judge erred in concluding that the
Miranda warnings were inadequately conveyed.
19Whether, and to what extent, the nonpercipient witnesses
will be permitted to make an in-court identification or to
testify as to what they could perceive in the video footage is a
matter reserved to the trial judge. See Commonwealth v. Vacher,
469 Mass. 425, 441-442 (2014), quoting Commonwealth v. Pleas, 49
Mass. App. Ct. 321, 326 (2000) (witness may only testify to
identification if witness can add information that otherwise
would be missing from jury's knowledge; otherwise, "it is the
province of the jury to draw their own conclusions regarding the
identity of the person depicted without the witness's
assistance").
21
"In Miranda, the United States Supreme Court held that 'the
prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-
incrimination.'" Commonwealth v. Vuthy Seng, 436 Mass. 537,
543, cert. denied, 537 U.S. 942 (2002), quoting Arizona v.
Miranda, 384 U.S. 436, 444 (1966).20 These procedural safeguards
mandate that an accused must be warned that he or she "has a
right to remain silent, that any statement he [or she] does make
may be used as evidence against him [or her], and that he [or
she] has a right to the presence of an attorney, either retained
or appointed." Vuthy Seng, supra, quoting Miranda, supra. A
defendant may waive these rights, provided that the waiver is
made "voluntarily, knowingly, and intelligently" (citation
omitted). Vuthy Seng, supra. The Commonwealth bears the burden
of proving, beyond a reasonable doubt, that a defendant was
advised of his or her rights in a meaningful way, and that he or
she waived them in deciding to make a statement to police. Id.
at 544. See Commonwealth v. Bins, 465 Mass. 348, 358 (2013).
Whether a defendant was given adequate Miranda warnings is a
20It is undisputed that the defendant was in custody for
Miranda purposes. See Commonwealth v. Clemente, 452 Mass. 295,
327-328 (2008), cert. denied, 555 U.S. 1181 (2009).
22
question of law that we review de novo.21 See Vuthy Seng, supra
at 543.
The first motion judge heard expert testimony on the
defendant's lack of English-language proficiency, and his tested
inability to comprehend most of the words contained in the
Miranda warnings.22 The judge also was provided a videotape of
the interrogation and a formal transcript of the translated
warnings prepared by a certified interpreter. After hearing the
expert testimony and reviewing the record, the judge made
findings that the defendant was able to "understand 'street
English'" and some basic words, but was unable to follow a
conversation between two English speakers, and was unable to
understand statements involving complex technical concepts, such
as warrants and criminal procedure rights. The judge concluded
that the defendant's rights were conveyed "in such a fragmented
and confusing manner so as to be incoherent" in his native
language, and the defendant did not otherwise understand the
21The first motion judge considered the transcript and
videotape of the interrogation in light of expert testimony.
Where a judge made credibility determinations as to a witness's
testimony that were relevant to his or her subsidiary findings
of fact, we adhere to the ordinary standard of review and afford
deference to the judge's findings. See Commonwealth v.
Tremblay, 480 Mass. 645, 655 (2018); Commonwealth v. Clarke, 461
Mass. 336, 341 (2012).
22The expert testified that the defendant understood only
one of nine critical words in the Miranda warnings.
23
English version of the warnings. The judge accordingly
suppressed the custodial statements that followed.
We agree that the defendant was not adequately informed of
his rights in Spanish in several key respects. First, the
defendant was not apprised that anything he said could be used
against him in court. "As we have stated: 'The warning of the
right to remain silent must be accompanied by the explanation
that anything said can and will be used against the individual
in court.'" See Vuthy Seng, 436 Mass. at 544, quoting Miranda,
384 U.S. at 469. The warning is "an absolute prerequisite to
interrogation," and is necessary in order to make the accused
aware "not only of the privilege, but also of the consequences
of forgoing it." See Vuthy Seng, supra, quoting Miranda, supra
at 469, 471.
Here, those consequences were conveyed to the defendant as
"[a]ny thing that you say can be against you . . . the, of the
court," which, as the Commonwealth concedes, is problematic at
best.23 Indeed, we do not view this translation as a minor
variation in interpretation, see Bins, 465 Mass. at 358-359,
but, rather, as a deficiency that wholly interfered with the
full, accurate, and effective recitation of the defendant's
Miranda rights. See Commonwealth v. Dagraca, 447 Mass. 546, 552
23The defendant also was not asked, either in Spanish or in
English, whether he understood this right.
24
(2006) (requiring suppression where police did not advise
defendant that anything he said could be used against him in
court); Vuthy Seng, 436 Mass. at 544 (same). Contrast
Commonwealth v. Perez, 411 Mass. 249, 255 (1991) ("slight
ambiguities in a few of the Spanish words on the [Miranda]
cards, the use of one colloquial Spanish term, and the lack of
accent marks" did not interfere with meaning of warnings).
There were similar defects in the translation of other
warnings. For example, the defendant was informed that if he
did not have the means to pay for an attorney, and if he
"wish[ed] for it," that he had the right "to be a law, lawyer
before being interrogated." Cf. Vuthy Seng, 436 Mass. at 544-
545 (telling defendant that if he could not afford attorney,
"they can help find one for you" was inadequate); Commonwealth
v. Colby, 422 Mass. 414, 418 (1996) (telling defendant that "if
he could not afford an attorney, the Commonwealth would attempt
to provide one for him" was inadequate).
The Commonwealth contends that, notwithstanding these
deficiencies, the totality of the circumstances otherwise
suggests that the defendant understood his rights; he "nodded"
throughout the interview and demonstrably could understand some
words, such as "lawyer," which he supplied in Spanish when the
interpreting officer was struggling to find the word. Based on
expert testimony on the coping mechanisms of non-native
25
speakers, however, the first motion judge ascribed the
defendant's nodding along as an indication that he was
attempting to listen to the officer, and not as proof beyond a
reasonable doubt that he understood the warnings. The judge
also determined that the defendant's ability to understand basic
English words did not equate to an ability to comprehend them
when used as technical concepts within complex sentences,
particularly where the defendant did not understand other words
in the sentence, and where they involved a fragmented recitation
of his constitutional rights.
Although we have recognized that the translation of Miranda
warnings into a defendant's native language need not be "word
for word," see Commonwealth v. The Ngoc Tran, 471 Mass. 179, 186
(2015), the translation cannot be so "misstated to the point of
being contradictory" or equivocal. See Bins, 465 Mass. at 363.
Here, the Spanish recitation of several required warnings was
incapable of conveying "meaningful advice to the unlettered and
unlearned in language which [a defendant] can comprehend and on
which [a defendant] can knowingly act" (citation omitted). See
Vuthy Seng, 436 Mass. at 544. As such, we conclude that the
defendant was unable to execute a knowing, intelligent, and
voluntary waiver of his rights, and the custodial statements
obtained thereafter properly were suppressed.
26
c. Search of the cellular telephone. Because the request
to search the defendant's cellular telephone directly followed
the failure to provide him with adequate Miranda warnings, and
was derived from statements he made during the interrogation,
the defendant contends that the search was presumptively invalid
and the fruits obtained from it should have been suppressed.
The Commonwealth concedes that if the court concludes that the
warnings were inadequate, the cellular telephone evidence must
be suppressed. We agree as well.
Pursuant to art. 12, any physical or testimonial evidence
that is "derived from unwarned statements where Miranda warnings
would have been required . . . in order for them to be
admissible, is presumptively excludable from evidence at trial
as 'fruit' of the improper failure to provide such warnings."
Commonwealth v. Martin, 444 Mass. 213, 215 (2005). See
Commonwealth v. Simon, 456 Mass. 280, 292, cert. denied, 562
U.S. 874 (2010).24 In order for evidence obtained following an
24Although the United States Constitution permits the
prosecution to introduce the physical fruits of a voluntary but
unwarned statement to police, see United States v. Patane, 542
U.S. 630, 637-640 (2004), we have concluded that the broader
protections of art. 12 of the Massachusetts Declaration of
Rights bar the use of physical and testimonial fruits derived
from an unwarned statement. See Commonwealth v. Simon, 456
Mass. 280, 292, cert. denied, 562 U.S. 874 (2010), citing
Commonwealth v. Martin, 444 Mass. 213, 218-219 (2005). Other
States similarly have adopted broader protections under their
State Constitutions. See, e.g., State v. Farris, 2006-Ohio-
3255, ¶¶ 46-49, cert. denied, 549 U.S. 1252 (2007); State v.
27
unwarned statement to be admissible, the Commonwealth must show
that it is "sufficiently attenuated" from the unwarned statement
itself. See Commonwealth v. Tuschall, 476 Mass. 581, 589
(2017). To determine whether there was sufficient attenuation,
a court considers such factors as the temporal proximity,
whether there were any intervening circumstances, and the
flagrancy of the official misconduct. Id. See Commonwealth v.
Long, 476 Mass. 526, 536-537 (2017). In assessing those
factors, "[w]e do not apply a 'but for' test," Long, supra at
536, but, rather, we consider whether the evidence came about as
a result of the "exploitation of that illegality or instead by
means sufficiently distinguishable to be purged of the primary
taint." Id. at 537, quoting Wong Sun v. United States, 371 U.S.
471, 488 (1963).
The request to search the defendant's cellular telephone
here was not so attenuated; the search arose directly from the
defendant's unwarned statements, and the Commonwealth does not
suggest that it has met its burden of proving that the taint was
dissipated through some other intervening circumstance. Compare
Martin, 444 Mass. at 220. Further, while the degree of official
misconduct here was not egregious, the inadequate translation of
Miranda warnings and of the interrogation itself makes plain the
Vondehn, 348 Or. 462, 475-476 (2010); State v. Peterson, 2007 VT
24, ¶ 28; State v. Knapp, 2005 WI 127, ¶¶ 73-83.
28
ongoing "need for law enforcement to use capable, trained
translators who will report verbatim the question asked and the
response given," as well as to use interpreters who are able
meaningfully to convey the substance of a suspect's Miranda
rights. See Commonwealth v. Santana, 477 Mass. 610, 618 n.6
(2017). The fruits obtained from the search thus require
suppression.
d. Search of the CSLI. Police filed an application for a
search warrant, supported by an affidavit, in order to obtain
thirty-two days of the defendant's CSLI, spanning the period of
time from December 5, 2014, to January 5, 2015.25 Following the
issuance of the search warrant, the defendant moved to suppress
the CSLI. The motion was denied.
On appeal, the defendant argues that the affidavit filed in
support of the Commonwealth's application did not establish the
requisite probable cause to obtain a search warrant. The
Commonwealth concedes that if the Miranda warnings were
inadequate, the affidavit relied on tainted information obtained
as a result of the invalid search, including the defendant's
telephone number. The Commonwealth contends, however, that when
25Police initially sent an administrative subpoena to the
defendant's cellular service provider, pursuant to 18 U.S.C.
§ 2703, to obtain subscriber information and telephone call logs
for the same period. The subpoena did not include a request for
CSLI.
29
the tainted information is excised from the affidavit,
sufficient probable cause remained to obtain CSLI for the
defendant's movements during the roughly month-long period.
Whether a search warrant is supported by probable cause "is
a question of law that we review de novo." Perkins, 478 Mass.
at 102. Our review is limited to the four corners of the
affidavit, and any reasonable inferences drawn therefrom. Id.
A search warrant application for CSLI must demonstrate (1)
"probable cause to believe that a particularly described offense
has been . . . committed" and (2) "that the CSLI sought will
'produce evidence of such offense or will aid in the
apprehension of a person who the applicant has probable cause to
believe has committed . . . such offense.'"26 See Commonwealth
v. Augustine, 467 Mass. 230, 236 n.15 (2014), S.C., 470 Mass.
837 and 472 Mass. 448 (2015), quoting Commonwealth v. Connolly,
454 Mass. 808, 825 (2009). In this regard, the government must
be able to demonstrate "a sufficient nexus between the criminal
activity for which probable cause has been established and the
physical location of the [cellular telephone] recorded by the
26"This test requires a higher degree of confidence that
the CSLI will yield evidence of criminal activity than that
which is necessary for an order under [18 U.S.C.] § 2703(d),
which requires only that the government show specific and
articulable facts that the CSLI is relevant and material to an
ongoing criminal investigation" (quotations and citation
omitted). See Augustine, 472 Mass. at 455.
30
CSLI of the person the applicant has probable cause to believe
has committed the offense, at least at the time and place of the
criminal activity." See Commonwealth v. Hobbs, 482 Mass. 538,
547 (2019). To establish the requisite nexus, the affidavit
must set forth "a substantial basis to conclude that the items
sought are related to the criminal activity under investigation,
and that they reasonably may be expected to be located in the
place to be searched at the time the search warrant issues"
(quotation and citation omitted). Id. at 546. See Augustine,
472 Mass. at 455. Such a determination is fact-intensive and
will be resolved on a case-by-case basis. See Commonwealth v.
Holley, 478 Mass. 508, 522 (2017).
There is no dispute here that the Commonwealth established
probable cause to believe that a particularly described offense
had been committed. See Augustine, 467 Mass. at 236 n.15.
Whether the Commonwealth demonstrated probable cause to
establish the requisite nexus between the commission of that
crime and the CSLI for the defendant's device, however, is
another matter.
Ordinarily, police may be able to demonstrate the requisite
nexus by connecting the defendant to ownership of a particular
device and by showing a substantial basis that the device will
contain relevant evidence of the crime -- that is, the
defendant's location at or around the time the crime was
31
committed. See Hobbs, 482 Mass. at 546-549; Commonwealth v.
Alexis, 481 Mass. 91, 102 (2018). Here, however, when we remove
from the calculus any tainted evidence contained within the
affidavit in support of the application for a search warrant,
such as the defendant's disclosure of his telephone number, the
Commonwealth has not met its burden with regard to establishing
any such nexus. Compare Hobbs, supra at 548-549 (that
defendant's telephone number was known to police and
corroborated by multiple individuals established defendant's
association with sought-after device's CSLI).
Nor has the Commonwealth demonstrated any connection
between the commission of the crime and the thirty-two days for
which the Commonwealth sought the CSLI. Indeed, there is
nothing in the affidavit that might suggest that the location of
the defendant's telephone, beyond the night of the shooting
itself, would produce any evidence of the crime. Compare Hobbs,
482 Mass. at 547-548 (affidavit must show that sought-after CSLI
would produce evidence of crime -- namely, defendant's presence
at or around crime scene at time of crime); Commonwealth v.
Estabrook, 472 Mass. 852, 870 (2015) (affidavit must indicate
"whether [defendant's] cellular telephone . . . was located near
the victim's home on the night of the shooting and, therefore
whether [defendant] was in the area of the shooting when it
occurred" (emphasis added)). "We once again emphasize the
32
significant constitutional issues raised by the collection of
extended amounts of historical CSLI, and the importance of
limiting the requests accordingly." Hobbs, supra at 550 n.13,
citing Augustine, 467 Mass. at 248-249.
As such, the information contained within the four corners
of the affidavit does not support a determination of probable
cause, and the CSLI obtained as a result must be suppressed.27
3. Conclusion. That portion of the order allowing the
defendant's motions to suppress his custodial statements is
affirmed. The denial of the motion to suppress the out-of-court
identifications is affirmed. So much of the orders as deny the
motions to suppress evidence obtained from a search of the
defendant's cellular telephone and the CSLI are reversed.
So ordered.
27"Even though the exclusionary rule generally bars from
admission evidence 'obtained during an illegal search as fruit
of the poisonous tree, evidence initially discovered as a
consequence of an unlawful search may be admissible if later
acquired independently by lawful means untainted by the initial
illegality'" (citation omitted). Commonwealth v. Estabrook, 472
Mass. 852, 865 (2015). If the Commonwealth can show, by a
preponderance of the evidence, that it has an untainted source
for the telephone number, connecting the defendant to the
ownership of the device for which the CSLI is requested, it is
not precluded from doing so. Id. at 865, 870-871 (suppression
not required where police applied for search warrant for CSLI
based on information wholly independent of unlawfully obtained
CSLI).