COMMONWEALTH OF MASSACHUSETTS

SUFFOLK COUNTY, ss.							SUPERIOR COURT

UNITED STATES OF AMERICA 	)
Plaintiff                			)
                         			)
v.                       			)					DOCKET NO. 12-1234
             				)
MARY JONES            		)
Defendant                			)

	Motion To Suppress Evidence

	The defendant moves this Honorable Court pursuant to Mass. R. of Crim. P. 13 the Fourth and Fourteenth amendments to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights to suppress the following items unlawfully seized from (Mary Jones’s bedroom).
	The Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts constitution establish a presumption that all searches and seizures require a warrant. See, e.g., Payton v. New York, 445 U.S. 573 (1981); Steagald v. United States, 451 U.S.
204 (1981).
	Once an individual can establish a reasonable expectation of privacy in a location, the constitutional provisions apply. Katz v. United States, 389 U.S. 347 (1967). In the instant matter, the police entered (Mary Jones’s bedroom) in which the defendant had a reasonable expectation of privacy. The Commonwealth bears the burden of demonstrating that the warrantless entry satisfied the constitutional requirements. This it cannot do.
	There was no consent for the entry. (Mary’s roommate, Erica not only allowed police to search the common area of their home, but Erica acted as an agent for the police by breaking into Mary’s room. The police did not exercise plain view restraint. They removed Mary’s marijuana cigarettes that were within her backpack. Com. v. Porter P., 923 N.E.2d 36 (2010) (manager of shelter had no authority to consent to search of resident's property); Com. v. Carr, 936 N.E.2d 883 (2010) (consent was involuntary); Com. v. Lopez, 937 N.E.2d 949 (2010) (unauthorized consent to search hotel room). 
	No exigent circumstances existed. In order to establish whether or not an exigent circumstance exists, court evaluate the following factors:
• (1) the crime in question was one of violence and the suspect had been reported to be armed and dangerous;
• (2) probable cause to believe that the suspect has committed a felony and strong reason to
believe the suspect is in the particular dwelling;
• (3) the entry has been made peaceably, preferably in the daytime;
• (4) a likelihood that the delay attendant upon securing a warrant would facilitate the destruction of evidence or property;
• (5) a likelihood that the suspect would escape if not promptly apprehended; and
• (6) some showing of a reasonable basis, for believing that delay would subject the officers or others to physical harm. Com. v. McCollum, 945 N.E.2d 937 (2011), review denied, 953 N.E.2d 720 (20 11).
	None of those circumstances exist in the instant case.
	Bedford Police upon information obtained from an informant, went to 20 Cider Rd. to conduct a search for marijuana that is said to be the property of Mary Jones. Mary was known to have grown and sold the drug to students. Upon their arrival, Mary’s roommate Erica answered the door, allowed the officers in, let them search the common areas of kitchen, living area and yard and then she proceeded to break into Mary’s bedroom using a toothpick to unlock the door so that the police can look in. The police did not stay within the boundaries of plain view and proceeded to exercise a thorough search. Erica had violated the Mary’s 4th Amendment rights by acting as an agent for the police with her break as well as the police for doing a thorough search without a warrant or by permission from Mary. The police found and took as evidence two joints from Mary’s backpack to use against her for questioning.
	Therefore, the search was unconstitutional and the evidence must be suppressed. Wong Sun v. United States, 371 U.S. 471 (1963); Com. v. Bottari, 482 N.E.2d 321 (1985).
The second motion seeks to exclude our client’s statement. Upon the previously mentioned 4th and 14th Amendment search and seizure violation, the police used that evidence to question our client, Mary. Since Mary was not home at the time of the seizure, the police arrest her the next day at work. They coerced her to come in for questioning by threatening her with “you’d better come in or you’ll be in even bigger trouble later on.” Mary did not want to go and agreed in fear to go. Mary was detained for over five hours in a small room for questioning without Miranda Rights read. She was only offered water and had been sobbing from emotional duress that triggered her to state that “she occasionally sold some joints.”  
	Defendants are entitled to know their constitutional right against self-incrimination prior to any questioning by the authorities. Miranda v. Arizona, 384 U.S. 436 (1966). Any waiver of that right must be knowing and voluntary. Indeed, “The court will indulge every reasonable presumption against waiver of constitutional rights.” Commonwealth v. Hosey, 334 N.E.2d 44, 48 (1975).
	Even where the police provided Miranda warnings by carefully reading them to the defendant before interrogation began, the Commonwealth must still establish that the right to remain silent and the right to counsel were “ ‘voluntarily, knowingly and intelligently’ waived by the defendant.” Hosey, 368 Mass. at 574, 334 N.E.2d at 46 (citing Miranda v. Arizona, 384 U.S. 436, (1966)).
	If the Commonwealth cannot prove voluntariness beyond a reasonable doubt, Commonwealth v. Tavares, 430 N.E.2d 1198 (1982), then all evidence derived there from is tainted. As such, such evidence must be suppressed. “To hold otherwise would, in effect, sanction the initial violations of constitutional guarantees … The need to prevent such violations … underlies the so called fruit of the poisonous tree doctrine. … ” Commonwealth v. White, 371 N.E.2d 777 (1977), judgment aff’d, 439 U.S. 280 (1978).
The police had no right questioning Mary after detaining her for over five hours in a small room with out reading her Miranda Rights and after being coerced with a threat, made herself self-incriminating by providing information that she occasionally sold marijuana. 
	Accordingly, as the statements were not voluntarily given, must be suppressed.
	As an added note, she should have never been questioned, because the police violated a search and seizure to obtain evidence that prompted them to question her; leaving her statement as the fruit of the poisonous tree. 

	Mary Jones
	By her attorney,

						_________________________
	Halye Sugarman, Esq.
	Sugarman & Students, LLC
	291 Springs St.
	Bedford, MA 01234
	(781) 322-0977
	BBO No. 654321
DATED: 30th day of April 2014