Commonwealth v. Michael P. Pircio.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
21-P-395
COMMONWEALTH
vs.
MICHAEL P. PIRCIO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Convicted by a jury of the voluntary manslaughter of
William Porter, the defendant appeals. He argues that the
motion judge erred in denying his motions to suppress his
statements and evidence that police seized from his cell phone
and from a laptop computer. The judge concluded that the
defendant was not in custody when he made the statements that
were introduced at trial, that police properly seized the cell
phone and then got a warrant before searching it, and that the
defendant's girlfriend Mary Hill consented to the search of the
laptop and had actual authority to do so. We affirm the
conviction.
Background. We set forth the facts found by the motion
judge after an evidentiary hearing, supplemented by our own
review of documentary evidence including recordings of two 911
calls.
At about 11:30 P.M. on February 20, 2017, the defendant
telephoned 911 and asked police to respond to the Brockton
apartment where he and Hill lived. The defendant reported that
he was not at the apartment, but Hill had informed him by text
message that the upstairs neighbor was in the apartment and was
going to rape her. The defendant said that Hill did not have a
telephone and was communicating using a text messaging
application. Police arrived at the apartment and spoke with
Hill, who denied any problems, and so police left.
A little more than one hour later, at 12:41 A.M., Hill
telephoned 911 and asked for police and an ambulance, reporting
that a neighbor, the victim, had been trying to rape her when
her boyfriend hit him on the head with something. Officer James
Parker responded to the apartment building, where the defendant
and Hill were outside waving him down. Officer Parker separated
them and spoke to the defendant, who asked if he could tell his
side of the story. In a narrative, the defendant reported that
earlier he had been elsewhere in Brockton when he received a
text message from Hill stating that the victim was in their
apartment and was going to try to rape her. The defendant told
Officer Parker that he called 911, took a cab home, found a
shovel in the hallway, and went into the apartment. There, he
2
found the victim on top of Hill grabbing at her breasts, so he
hit the victim twice on the head with the shovel. The defendant
said that he and Hill went outside and telephoned 911; while the
defendant spoke, he displayed to Officer Parker text messages on
his cell phone.
After learning that the victim was not likely to survive,
Sergeant Kevin Amaral asked if the defendant wanted to speak to
State police at the police station. The defendant agreed and
was transported there. Soon after his arrival, police seized
the defendant's cell phone.
Hill also went to the police station, where she told police
that earlier that day she had been communicating with the
defendant using an application on the laptop computer in the
apartment and had sent him electronic messages saying that the
victim was making sexual overtures to her. Hill described the
laptop, said it was in the living room, and told police the
passwords to the laptop and to her America Online (AOL) instant
messenger account. At 3:15 A.M., Hill signed a consent form
authorizing police to search the laptop.
Beginning shortly before 5 A.M., police interviewed the
defendant. At 5:49 A.M., the defendant signed a consent form
authorizing police to search his cell phone for "all retrievable
data."
3
At 7:39 A.M., police obtained a search warrant for the
apartment which authorized them to seize evidence including
"electronic messages" and "computers." That morning, police
executed that warrant and seized the laptop. Police later
obtained two more search warrants, one to search the defendant's
cell phone and another to search the laptop for evidence
including "instant messages from America Online (AOL) instant
messaging," and "any other data regarding the homicide of [the
victim]."
In his motion to suppress, the defendant argued that his
statements to Officer Parker outside the apartment building
should be suppressed because he was not informed of his Miranda
rights. The judge denied the motion, concluding that those
statements were not the product of custodial interrogation. As
to his cell phone, the defendant argued that police improperly
seized it before they obtained the warrant to search it. The
judge concluded that police were justified in seizing the cell
phone because they had probable cause to believe that it
contained evidence of the crime they were investigating, and
exigent circumstances existed because data on it could be
deleted easily. As to the laptop, the defendant argued that
police improperly began the search of the laptop during the
execution of the warrant to seize it from the apartment, two
days before the warrant to search its contents issued. The
4
judge agreed, but concluded that the search was permissible
pursuant to Hill's consent to search the laptop, and she had
actual authority to consent.
After a trial before another judge on an indictment
charging murder, the jury convicted the defendant of voluntary
manslaughter.
Discussion. 1. Motion to suppress statements. Four
factors are considered in determining whether a person is in
custody: "(1) the place of the interrogation; (2) whether the
officers have conveyed to the person being questioned any belief
or opinion that that person is a suspect; (3) the nature of the
interrogation, including whether the interview was aggressive
or, instead, informal and influenced in its contours by the
person being interviewed; and (4) whether, at the time the
incriminating statement was made, the person was free to end the
interview by leaving the locus of the interrogation or by asking
the interrogator to leave, as evidenced by whether the interview
terminated with an arrest." Commonwealth v. Groome, 435 Mass.
201, 211-212 (2001). The last factor has been refined to
consider "whether an officer has, through words or conduct,
objectively communicated that the officer would use his or her
police power to coerce [the person being questioned] to stay."
Commonwealth v. Matta, 483 Mass. 357, 362 (2019).
5
Applying the Groome factors, the judge concluded that
Officer Parker's conversation with the defendant outside the
apartment building was not custodial interrogation. 1 We agree.
The defendant was outside his own apartment building. See
Commonwealth v. Medina, 485 Mass. 296, 302 (2020) (defendant's
apartment not coercive setting). The defendant controlled the
contours of the interview. The judge found that "[t]he
defendant was eager to tell his side of the story and went on in
narrative form to describe his version of the events of the
evening." The judge also found that though the defendant was
"distraught" and "upset and talking fast," he was understandable
and did not seem to be under the influence of drugs or alcohol.
Asked on cross-examination if he would have allowed the
defendant to leave, Officer Parker testified that police did not
then have probable cause to believe that the defendant committed
any crime, because, as the defendant described it, he was
defending Hill from a sexual assault. Cf. Commonwealth v.
Mejia, 461 Mass. 384, 390 (2012) (not custodial interrogation
1 The defendant also moved to suppress his statements during his
interview at the police station. With the exception of his
consent to search his cell phone, which we discuss below, the
defendant's statements at that interview were not admitted at
trial. Thus we do not reach the defendant's arguments on appeal
that all of his statements in the interview should have been
suppressed.
6
where police had probable cause to arrest but did not
communicate suspicions to defendant).
2. Motion to suppress data from defendant's cell phone.
The defendant argues that the evidence seized from his cell
phone should have been suppressed. He contends that the form he
signed at 5:49 A.M. consenting to its search by police was "the
fruit of the poisonous tree" because he was tired, concerned
about Hill, and had been deprived of his cell phone since early
that morning, and police did not inform him of his right to a
telephone call "forthwith upon his arrival at [the police
station]," G. L. c. 276, § 33A.
To seize a cell phone, police must have a "substantial
basis" to believe that it contains "'evidence connected to the
crime' under investigation." Commonwealth v. White, 475 Mass.
583, 588 (2016), quoting Commonwealth v. Escalera, 462 Mass.
636, 642 (2012). The judge concluded that, after the defendant
voluntarily displayed to Officer Parker the text messages on his
cell phone, police had probable cause to believe that it
contained information relevant to their investigation. 2 See
Commonwealth v. Fencher, 95 Mass. App. Ct. 618, 623 (2019)
(where defendant told police her cell phone contained "videos of
2 The judge did not specify what crime the police were
investigating. We conclude that police had a substantial basis
to believe that the phone contained data evidencing both the
alleged sexual assault on Hill and the homicide of the victim.
7
me being at the bar" at time of home invasion, police had
"substantial basis" to conclude that it contained evidence
connected to crime). Because messages and other data on a cell
phone can be easily deleted, police also had exigent
circumstances to seize the cell phone. See Commonwealth v.
Cruzado, 480 Mass. 275, 283 (2018).
The judge found that, before searching the defendant's cell
phone, police obtained a warrant. Thus, the defendant's
complaint that police seized it prematurely is unavailing. See
Commonwealth v. Arthur, 94 Mass. App. Ct. 161, 165 (2018). The
defendant has not argued, in the Superior Court or on appeal,
that the search warrant for his cell phone was lacking. 3
In those circumstances, the defendant's argument that his
consent to search his cell phone was involuntary is unavailing.
The police did not rely on his consent when they searched his
cell phone.
3. Motion to suppress data from laptop. The defendant
argues that evidence seized from the laptop should have been
suppressed because Hill did not have authority to consent to the
3 For example, the defendant does not argue that the cell phone
search warrant was lacking temporal limits, a requirement made
clear in Commonwealth v. Snow, 486 Mass. 582, 594 (2021), nearly
four years after this warrant issued. We note that the
supporting affidavit contained a handwritten annotation
initialed by the affiant which imposed temporal limits on the
search "from December 21, 2016 through and including February
21, 2017."
8
police search of the laptop, police improperly began searching
the laptop before obtaining the warrant to search its contents,
and the warrant lacked particularity because it did not impose
temporal limits on the search.
The judge concluded that Hill voluntarily consented to the
search of the laptop. From evidence that Hill had frequent use
of the laptop and knew its password, the judge concluded that
Hill had common authority to consent to the search. See
Commonwealth v. Porter P., 456 Mass. 254, 265 (2010) (under art.
14, person has actual authority to consent to warrantless search
of home if coinhabitant "with a shared right of access"). See
also Commonwealth v. Hernandez, 93 Mass. App. Ct. 172, 175-177
(2018) (coinhabitant could consent to search of suitcase in
closet). Where coinhabitants share access to a computer, those
same principles apply. Cf. Commonwealth v. Hinds, 437 Mass. 54,
57-58 (2002), cert. denied, 537 U.S. 1205 (2003) (declining to
reach question whether brother's consent to search computer
connected to network extended to defendant's unsecured files on
network, where defendant also consented to search).
The judge found that Hill consented to the search of the
laptop "at least several hours" before police began searching
it. In those circumstances, we decline to reach the defendant's
arguments that during the execution of the search warrant on the
apartment, police prematurely began searching the laptop before
9
they had the second search warrant authorizing them to search
the laptop's contents. For example, we need not consider the
question whether the search warrant for the apartment
authorizing police to seize "electronic messages" and
"computers" permitted them to search the contents of the laptop.
Cf. Commonwealth v. Fernandes, 485 Mass. 172, 183-184 (2020)
(during execution of search warrant for forensic evidence at
murder scene, police opened digital camera and found images of
victim dying).
Nor do we reach the defendant's argument, raised for the
first time on appeal, that the search warrant for the contents
of the laptop lacked particularity because it did not impose
temporal limits on the search. "We are not obliged to address
this issue because it was not raised during the suppression
hearing or at trial and it requires resolution of factual
questions which are not open to us." Commonwealth v. Barnes,
399 Mass. 385, 393-394 (1987). Because the defendant did not
raise this claim in his motion to suppress, the judge did not
have the opportunity to consider whether the requirement that
search warrants for cell phones contain temporal limits, see
Commonwealth v. Snow, 486 Mass. 582, 594 (2021), should apply to
a search warrant for a laptop. Nor did the judge hear evidence
as to whether, when police executed the search warrant for the
contents of the laptop, they had in their possession its
10
supporting affidavit, which stated that police were seeking
permission to search for "data that occurred on February 20th to
February 21st 2017." 4 See Commonwealth v. Valerio, 449 Mass.
562, 567-568 (2007) (attached affidavit cured particularity
deficiency in search warrant). Because the defendant did not
raise those issues in his motion to suppress, we will not
consider them for the first time on appeal. 5 See Commonwealth v.
Delossantos, 492 Mass. 242, 248-249 (2023).
Judgment affirmed.
By the Court (Neyman, Grant &
Hershfang, JJ. 6),
Clerk
Entered: August 16, 2023.
4 We note that the search warrant for the laptop was issued the
day after the search warrant for the defendant's cell phone, see
n.3, supra, by the same assistant clerk-magistrate and to the
same affiant.
5 Relying on Commonwealth v. Dorelas, 473 Mass. 496, 502 (2016),
the defendant also argues that the laptop search warrant lacked
particularity because it did not specify in which files the
evidence sought would be found. More recently, the Supreme
Judicial Court has held that "where the location of evidence on
a cell phone is unknowable to law enforcement, the Dorelas
requirement that officers identify file types to be searched in
the warrant is impractical." Commonwealth v. Henley, 488 Mass.
95, 120 (2021).
6 The panelists are listed in order of seniority.
11