COMMONWEALTH vs. GUTHRIE G., a juvenile.

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.

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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

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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. [Note 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 further 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 (1984), [Note 2] and Commonwealth v. Alan A., 47 Mass. App. Ct. 271 , 274-275 (1999). [Note 3] In both of those cases, officers in exigent circumstances involving a firearm were allowed

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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. [Note 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. The boys' behavior had been evasive.

According to the United States 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. 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; Commonwealth v. Alan A., 47 Mass. App. Ct. at 273. [Note 5] The juvenile then consented, as the judge found, to produce the gun to the police, and that finding

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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." [Note 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 (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. [Note 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

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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 (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." [Note 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 (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 (1991), S.C., 420 Mass. 95 (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 consequences of waiving this [c]onstitutional right." How this squares as a matter of law with the absence of a requirement that the juvenile and adult be informed that they may confer in private, see Commonwealth v. Ward, 412 Mass. 395 , 397 (1992), and Commonwealth v. Berry, supra (in which questioning appears to have proceeded right after the warnings were issued), [Note 9] is not clear.

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If the juvenile and his father understood the Miranda warnings, and there is no argument that they did not, [Note 10] either the father or the juvenile immediately could have asked to discuss the warnings privately or sought to exercise the Miranda rights after they were read. The warnings themselves are meant to promote at least a moment of reflection by both the juvenile and a parent or other interested adult, as are the follow-up questions about their understanding of those rights and the signing of the waiver forms. The presence of the parent and child together also facilitates a request by one or both of them for consultation after the warnings have been read if there is uncertainty in their minds. If such a request has been made, it cannot be refused. See, e.g., Commonwealth v. Ward, 412 Mass. at 397 ("Surely, the police may not deny them that right [to confer in private]"). There is also nothing in the record to suggest that the father lacked the mental capacity, sobriety, or genuine interest in the juvenile's welfare to provide him with a meaningful opportunity for consultation. Commonwealth v. Berry, supra at 36-37. Consequently, the requirements of a meaningful opportunity for consultation with an adult as defined by Commonwealth v. Berry, supra at 35; Commonwealth v. Ward, supra at 397; Commonwealth v. Philip S., supra at 812; and Commonwealth v. McCra, supra at 567, have been satisfied.

Conclusion. When the juvenile fled with the gun, the police officers had the immediate right, pursuant to the public safety exception, to question the juvenile about the gun without giving him Miranda warnings as soon as they found him at his home.

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In response to those questions, the juvenile consented to bring the officers the gun. After securing the gun and the parts the juveniles had cut off the gun, the officers discontinued questioning until the juvenile was joined at the police station by his father, where together they were given, and together they made an informed waiver of, the Miranda warnings. They had an opportunity to consult, but chose not to take advantage of it. The police conduct at issue was legally authorized at each step of the process.

For the reasons stated above, the motion judge's order allowing the motion to suppress is reversed.

So ordered.

DUFFLY, J. (dissenting). I write separately because I disagree with the majority opinion insofar as it concludes that the juvenile's consent to produce the gun "was freely and voluntarily given," ante at 418, and that the juvenile's opportunity to consult with his father was genuine and meaningful.

Voluntariness of consent. The issue as framed by the Commonwealth is whether the juvenile consented to police officers accompanying him to his bedroom to get the gun. The majority focuses on the juvenile's consent to the request by police that he get the gun, concluding that "consent . . . was freely and voluntarily given." Ibid. Both views of the issue assume that the police were permitted to ask the juvenile to get the gun from its constitutionally protected location. To analyze the question, it may be helpful to note what the police were, and were not, permitted to do.

I agree that, in light of New York v. Quarles, 467 U.S. 649, 656-657 (1984), as interpreted by Commonwealth v. Alan A., 47 Mass. App. Ct. 271 (1999), the public safety exception applies to the facts of this case, obviating the need for Miranda warnings when questioning is limited to ascertaining whether the gun is in a public place. [Note Dissent-1] This exception does not, however, provide a basis to permit a warrantless search for the gun in the

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juvenile's home. [Note Dissent-2] Nor does it permit further questioning regarding the gun in the absence of Miranda warnings (and, where a juvenile is involved, a meaningful opportunity to consult with a

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parent, see discussion, infra). Cf. Commonwealth v. Martin, 444 Mass. 213 , 215, 217 n.2 (2005). See also 2 LaFave, Criminal Procedure § 6.7(b), at 556 (2d ed. 1999) (noting the Quarles exception is not broad enough to permit all questioning about a gun's location). The United States Supreme Court observed in New York v. Quarles, 467 U.S. at 659 n.8, that in Orozco v. Texas, 394 U.S. 324 (1969), police questioning of the defendant in his bedroom about the gun was impermissible absent Miranda warnings because "clearly investigatory" questions "did not in any way relate to an objectively reasonable need to protect the police or the public from any immediate danger associated with the weapon." Compare Orozco v. Texas, supra; United States v. Mobley, 40 F.3d 688, 693 (4th Cir. 1994), cert. denied, 514 U.S. 1129 (1995) (Quarles exception was inapplicable where the defendant was arrested and a security sweep indicated no one else was in the apartment).

Here, having learned that the gun was not outside, the police could have taken the juvenile into custody, then conducted a sweep of the home and secured it while they obtained a search warrant. Before the juvenile was asked to get the gun, the police were informed that it was in the house [Note Dissent-3]; the unarmed fourteen year old posed no danger to the three police officers. There was no longer any exigency supporting a public safety exception.

The majority has decided that, under the umbrella of a public safety exception, the police were permitted, in these circumstances, to ask the fourteen year old suspect to retrieve inculpatory evidence (the gun) from its location in his bedroom, and that his acquiescence to this request was voluntary. The majority then concludes that by agreeing to get the gun, the juvenile

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exposed the officers to a risk of harm, justifying their following him into his bedroom. [Note Dissent-4] Ante at 418. Based on these conclusions, the majority did not need to determine whether the juvenile was in custody (as the motion judge found he was [Note Dissent-5]) when he was

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asked questions that went beyond the initial public safety inquiry as to the gun's location. [Note Dissent-6]

Even if the juvenile was not in custody when he was asked by police to get the gun, thereby obviating the need to give Miranda warnings and to provide a genuine opportunity to consult with an adult, the juvenile's consent to the request to retrieve the gun from the bedroom while accompanied by police must have been voluntary and not a mere acquiescence to a show of authority. Commonwealth v. Rogers, 444 Mass. 234 , 241 (2005).

Whether the focus is on the juvenile's consent to get the gun, or (as framed by the Commonwealth) on his consent to a search of his bedroom, it was the Commonwealth's burden to establish the voluntariness of such consent. "When a prosecutor relies upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given." Commonwealth v. Krisco Corp., 421 Mass. 37 , 46 (1995), quoting from Bumper v. North Carolina, 391 U.S. 543, 548-549 (1968). See Commonwealth v. Rogers, supra at 238 (Commonwealth must establish that an occupant's words or conduct amounted to more than "mere acquiescence to a claim of authority or simple resignation to the perceived power of uniformed officials").

"Voluntariness of consent 'is a question of fact to be determined in the circumstances of each case.' " Commonwealth v. Krisco Corp., supra, quoting from Commonwealth v. Harmond, 376 Mass. 557 , 561 (1978). See Commonwealth v. Greenberg, 34 Mass. App. Ct. 197 , 201-202 (1993) ("Whether one who hands his property over to the police at their request

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voluntarily consents, or merely acquiesces to a claim of lawful authority, presents a question of fact. See Smith, Criminal Practice & Procedure § 252 [1983]"). As Professor LaFave observed, the Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218 (1973), "adopted the 'traditional definition of voluntariness' from confession cases as the test for determining when a valid consent to search was given. . . ." 4 LaFave, Search and Seizure § 8.2(e), at 95 (4th ed. 2004). See Schneckloth v. Bustamonte, supra at 229 ("there is no reason for us to depart in the area of consent searches, from the traditional definition of 'voluntariness' "). [Note Dissent-7]

Applying these standards to the facts found by the motion judge (none of which are challenged by the Commonwealth), I do not agree that the juvenile's response to the officer's request to retrieve the gun, or to their accompanying him when he went to get it, was voluntary. The three uniformed officers remained standing while they questioned the fourteen year old juvenile, who was at that point home alone. See Commonwealth v. Harmond, 376 Mass. at 561-562 (presence of several uniformed officers may suggest the absence of voluntary consent, though that fact standing alone does not compel such a finding); Commonwealth v. Greenberg, supra at 202 ("factors suggesting coercion were the defendant's age, the presence during the questioning at the police station of four police officers, the fact that no one told the defendant he had a right to refuse to hand over the items, and the defendant's testimony that he thought he had no choice"). There is no evidence that the juvenile was ever told that he did not have to agree to their request to get the gun. He was not told that the police wanted to search his home, nor was he asked if they could follow him into his bedroom after he agreed to get the gun. The police did not inform the

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juvenile that he had a right not to consent to the search or their following him, a fact that, while not dispositive, "is relevant with regard to the voluntariness of the consent." Commonwealth v. Krisco Corp., 421 Mass. at 46.

In my view, the Commonwealth has failed to establish that the juvenile's consent to get the gun, and his silence when the police officers followed him, was not a mere acquiescence to a show of authority. I would affirm the order suppressing the gun and other evidence found in the juvenile's bedroom.

Station house questioning. Officer Lake testified he knew the boy was a juvenile. After instructing the juvenile to call his mother, then transporting him to the police station, the police placed the juvenile in a sitting area to await her arrival. The mother later called the station to say she was not near enough to make the trip, "so her ex-husband was coming." Immediately upon the father's arrival, Officer Lake read Miranda rights to the juvenile and his father, the father signed the Miranda forms, and the juvenile was asked where he got the gun. The judge made no finding that the father had been informed of the reason his son was in custody. [Note Dissent-8] The judge explicitly found:

"No evidence was presented as to whether the [juvenile] was given an opportunity to consult with his father, regardless of whether or not [the juvenile] and his father chose

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to consult. . . . There is no indication that [the juvenile] was allowed time to consult with his parent as to the meaning of his Miranda rights and to the consequences of waiving this [c]onstitutional right."

The question presented is whether a mere showing that a parent is present when Miranda forms are signed affords the sort of "genuine" or "meaningful opportunity to consult" contemplated by our decisional law, which imposes upon the Commonwealth a "heavy burden" to demonstrate a waiver of the privilege against self-incrimination, and admonishes our courts to exercise "special caution" when reviewing a claim that a juvenile has waived his constitutional rights. Commonwealth v. Berry, 410 Mass. 31 , 34 (1991), S.C., 420 Mass. 95 (1995)..

I do not agree that this heavy burden is met when (1) the fourteen year old juvenile has had no opportunity to meet with his father, publicly or in private, at or near the time Miranda warnings are given; (2) the juvenile and his father have not been informed that they have a right to consult; (3) the parent has not been informed of the reason the juvenile is in custody; and (4) police do not request permission to ask the juvenile questions, but commence interrogation of the juvenile immediately following reading of the warnings. No decision of our appellate courts concludes, on these facts, that the opportunity to consult was genuine.

In Commonwealth v. Alfonso A., 438 Mass. 372 , 379-380 (2003), the opportunity to consult was not meaningful, where a fifteen year old juvenile declined repeated offers to have police contact his mother. He told police that he had previously been arrested; a detective then read the juvenile his Miranda warnings and "asked the juvenile whether he understood his rights, and specifically asked him if he was aware of those rights as a result of his previous arrests. The juvenile stated that he was aware of his rights. After giving the juvenile his Miranda warnings, the detective asked the juvenile if he wanted them to contact or get his mother and have her present during the interview." Ibid. The court held that "the offers made here did not amount to the 'genuine opportunity' for consultation required

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by our cases." Id. at 381. Compare Commonwealth v. McCra, 427 Mass. 564 , 566 (1998). [Note Dissent-9]

There is "no fixed rule that a minor's opportunity to have meaningful consultation with an interested adult . . . requires that the police expressly inform the minor and the adult they may confer in private" (emphasis added). Commonwealth v. Ward, 412 Mass. 395 , 397 (1992) (juvenile and his mother were read rights and both indicated they understood them; when offered the opportunity for consultation, mother and son decided no consultation was necessary). Nor is actual consultation necessary, but "the opportunity to consult . . . is critical." Commonwealth v. Berry, 410 Mass. at 35. [Note Dissent-10] "[T]he ultimate question is whether the juvenile has understood his rights and the

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potential consequences of waiving them before talking to the police." Commonwealth v. MacNeill, 399 Mass. 71 , 79 (1987). "The 'genuine opportunity' for consultation that our cases envision is not merely a theoretical opportunity, that the juvenile may utilize at some future time, but an opportunity that is immediately and evidently available to the juvenile before the juvenile waives his or her rights." Commonwealth v. Alfonso A., 438 Mass. at 382.

The availability of this genuine opportunity provides some assurance that a juvenile has access to a supportive and knowledgeable adult who can advise him about the meaning of the rights under Miranda and the significance of waiving them. [Note Dissent-11] "The special protection of the constitutional interests of minors is derived from empirical studies which concluded that 'most juveniles do not understand the significance and protective function of these [constitutional] rights even when they are read the standard Miranda warnings.' " Commonwealth v. Philip S., 32 Mass. App. Ct. 720 , 728 (1992), S.C., 414 Mass. 804 (1993), quoting from Commonwealth v. A Juvenile, 389 Mass. 128 , 131 (1983).

In my view, the cases establish that in order for the opportunity to consult to be genuine or meaningful and not illusory or theoretical, at a minimum (1) the parent and the juvenile must be informed of the nature of the charges facing

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the juvenile; and (2) the parent must be physically present with the juvenile for a sufficiently long period of time prior to a waiver of Miranda rights, as would permit consultation should they wish to engage in it. These minimally protective factors were not found to be present here. I therefore disagree with the majority's view, ante at 420, that "the requirements of a meaningful opportunity for consultation . . . have been satisfied." [Note Dissent-12]