Opposition Brief — Rhode Island v. Mattatall

EDITOR'S NOTE

THE

FOLLOWING PAGES WERE POOR HARD COPY

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CRIGINAL

No. 86-288

Supreme Court, U.S

Pi. 2 Dp

SEP 9 1986

JOSEPH F. SPANIOL, JR

SUPREME

TABLE OF

OPINION BELOW ..

INVOLVED .

== WHETHER

CONFESSION

WAS UNLAWFUL

LUUR RULEL

NOT PRESENT

SPS:

, +

+

as a matt of fact that Mattatall

tation for inte Trogation even thoudgt

f probdDaDdl ause ¢t Deileve that Ne

ements made by the fendant 5

snousG not Nave DeE introduced a

time frier wr wa actively c ‘

init te nver It10F t tne

t wa t a0OV1ISE t tr DOLICE we

atall, by his attorneys,

and

a writ of certiorari

iew that Court's factually and

wr

two separate grounds.

dent

ofr

a |

t which the petitioner seeks

Mattetall, 510 A.2d 947 Cie

f JtTisdiction as it appears

r ‘ the crancts $1) )+ n>

+ ~ Lim == Mea LULAL aoa

. rs ee ' vec

‘ certiorari, but Otes

Const Amend. XVI, 9§l1" i

t Amend. AiV, yi.

24, 1984, police

tne respondent's home where

Kitchen floor, with a .22

made a statement whict

Although the _ polic

pect in any crime, th

ey

6 him in an interrogatior

he police learned that a

ted the fatal wound, an

During interrogation, the

respondent repeatedly and specifically invoked his right to remain silent.

He was further interrogated nonetheless, and eventually broke down and made

statements that were then used against him at trial.

Prior to trial, the respondent moved to suppress his custodial

statements on the ground, inter alia, that they were the product of an

arrest without probable cause, and thus, that their use violated his rights

under the Fourth Amendment to the Constitutior of the United States and Art.

I, sec. 6 of the Rhode Island Constitution. The state did not attempt to

show probable cause, but argued instead that the respondent was not a

suspect, and was not in custody when he was transported to the police

Station unhandcuffed, in the front seat of a cruiser. The state presented a

series of police witnesses who all swore under oath that the resnondent was

not suspected of any crime, but was taken to the police sstation to give a

witness statement. The officer in charge of the case, Det. James Godbout,

testified that although the defendant was not a suspect and was considered

only a witness, he was not at liberty to refuse to go to the police

Station. The trial justice agreed with the state that the respondent had

appeal to the Supreme Court of the State of Rhode Island, the state

continued to maintain that the respondent had not been arrested. The state

did not argue that in any event, there was probable cause for an arrest, and

if the court were to rule that the respondent had been arrested.

In its decision reversing the respondent's conviction, the Rhode Island

Supreme Court ruled that for Fourth Amendment purposes, the defendant was

illegally seized when he was taken to the Warwick police station. The Court

said:

Their purpose in transporting Mattatall to the police

Station was investigative only. They did not ‘suspect hin

of homicide or murder. Such suspicions arose later because

of defendant's responses to interrogation, together witt

the finding of a .357 magnum in a stream near Mattatall's

Ww

house and certain ballistic findings concerning the fact

that the gunshot wound to tne victim was caused by a .357

magnum. Therefore, this court must conclude as a matter of

fact that Mattatall was brought involuntarily to the police

station for interrogation even though the police did not

suspect him and had no probable cause to believe that he

was guilty of a crime.

(Opinion of the Rhode Island Supreme Court, 510 A.2d at 950, emphasis

supplied). The Supreme Court of Rhode Island found that the defendant's

custodial statements were "the fruits of an illegal seizure" in violation of

the Fourth Amendment, and accordingly, were inadmissable at trial. 510 A.2d

at 952.2 In a petition for reargument in the Rhode Island Supreme Court,

the state for the first time argued -- in a highly unconvincing manner --

that there was probable cause to arrest the petitioner for acts other than

homicide, despite the fact that there had never been any attempt to show

that the petitioner had been arrested on those grounds. Tne Rhode Island

Supreme Court denied the petition for reargument.

The statements overheard by the police while listening in on _ the

respondent's telephone conversations. While the respondent was at liberty

on bail, a longtime friend of his, John Carney, told the police that the

respondent had been threatening his wife, Phyllis Mattatall; that Carney had

told Mattatall's wife to come to his house; and that Mattatall had called

Carney's house and was very angry and threatening. The police came to

Carney's home at a time when Carney thought the respondent might call

again. When the respondent did call several times as anticipated, Carney

had the police listen in on an extension phone, but did not tell the

respondent that his conversations ‘ere being monitored by the police.

During these conversations, Carney did not merely passively listen to the

1. Because the Rhode Island Supreme Court ruled that suppression was

required under the Fourth Amendment, it did not reach the respondent's

exceptionally strong argument, under the Fifth Amendment and Art. I, §10 of

the Rhode Island Constitution, that his statements also should have been

suppressed because the police repeatedly reinitiated interrogation abuout the

homicide after the respondent, several times, had clearly and unambiguously

asserted his intention to remain silent. Edwards v. Arizona, 451 U.S. 477

(1981); Michigan v. Mosley, 423 U.S. 96 (1975).

Jefendant, but engaged in a dialogue with him about the pending homicide;

Carney said that during two of the three calls, he, Carney, initiated the

2

conversation about the death of John Scanlon.“ The police were aware that

at the time, the respondent was represented by counsel on the charges

stemming from the death of Scanlon.

ARGUMENT

I. THIS CASE DOES NOT PRESENT THE ISSUE FRAMED IN THE STATE'S PETITION --

WHETHER THE FOURTH AMENDMENT REQUIRES SUPPRESSION OF A CONFESSION WHERE

NG COURT HAS EVER FOUND THAT AN ARREST WAS UNLAWFUL -- BECAUSE HERE, THE

RHODE ISLAND SUPREME COURT RULED THAT THE DEFENDANT'S ARREST WAS

UNLAWFUL.

The State of Rnode Island asserts in its petition that no court has ever

ruled that the respondent's custody was unlawful; the state claims that

after ruling that the respondent had been arrested when he was involuntarily

taken to the police station, the Rnode Island Supreme Court then "declined"

to address the issue of probable cause. Petition for Writ of Certiorari at

19. These assertions are erroneous. The state never requested the trial

justice or the Rhode Island Supreme Court to make a finding of probable

cause; notwithstanding the state's failure to assert probable cause, the

Rhode Island Supreme Court never "declined" to make such a_ finding.

Instead, the state's highest court did rule that the respondent was arrested

without probable cause, and thus, that his seizure was illegal. The Rhode

Island Supreme Court said:

For the purposes of this opinion, the court must assume

that at the time Mattatall was ordered transported to

Warwick police headquarters, the police had insufficient

evidence to constitute probable cause to believe that

defendant was responsible for the homicide, or indeed that

2. During his direct testimony elicited by the prosecutor at the

suppression hearing, Mr. Carney clearly and forthrightly testified that

during the first conversation, the respondent initiated the dialogue about

the death of John Scanlon, but that he, Carney, initiated the conversation

about Scanlon during the next two telephone calls (Suppression hearing

transcript at 187, 191-93). Thus, the trial justice's finding that Mr.

Carney did not bring up the Scanlon matter, referred to in the Petition for

Certiorari at 7, is without support in the record with regard to two of the

three telephone conversations.

a homicide had been committed. Their purpose in trans-

porting Mattatall to the station was investigative only.

They did not suspect him of homicide or murder. Such

suspicion arose only later because of defendant's finding

of a .357 magnum in a stream near Mattatall's house and

certain ballistic findings concerning the fact’ that

thegunshot wound to the victim was caused by a .357 magnum.

Therefore, this court must conclude as a matter of fact

that Mattatall was brought involuntarily to the police

station for interrogation even though the police did not

suspect him and had no probable cause to believe he was

Quilty of a crime.

510 A.2d at 950 (emphasis supplied). While the Rhode Island Supreme Court's

use, in the first sentence quoted, of the word "assure" may be confusing to

the petitioner, it is clear from a reading of the opinion that the court

went on to review the testimony presented at the suppression hearing, and

determined that probable cause did not exist at the time of the arrest;

probable cause arose only later, the Rhode Island Supreme Court found, when

the police learned that the fatal wound was not inflicted by the .22 found

lying beneath the deceased, but was inflicted by a .357 magnum found a

distance from the scene -= thus precluding a suicidal deat. The Rhode

Islanc Supreme Court reviewed this Court's opinions which hi gd, “that the

fruits of an illegal seizure or detention are inadmissible in evidence," 510

A.20 at 950, and ultimately concluded that the respondent's statements "were

the fruits of an illegal seizure... ." 510 A.2d at 952. There is simply

it to the petitioner's assertion that no court has ever determined

that the respondent's arrest was unlawful.

The petitioner “readily acknowledges that based upon the record that was

before the Rhode Island Supreme Court, the burden of establishing probable

cause in this case is not an easy one." Petition for Writ of Certiorari at

20. The petitioner then goes on to attempt to demonstrate, for the first

time directly in any court, that the police possessed probable cause to

arrest the respondent for aiding suicide -- arguably not even a crime in

Rnode Island -- or for possessing a firearm after a previous conviction of a

crime of violence. The petitioner argues that under common law, encouraging

one to commit suici is a crime. Here, however, the respondent told the

SE

police that he should not have shown Scanlon the gun, and made no statements

that would lead a reasonable person to believe that he encouraged Scanlon to

kill nimself. Similarly, one officer's undetailed statement that he had had

previous contact with the defendant does not constitute probable cause toc

believe that the defendant unlawfully possessed a weapon after a previous

conviction of a crime of violence. There is no evidence to support probable

cause for these crimes, and this issue, first raised in the state's petitior

for reargument in the Rhode Island Supreme Court, is not properly preserved

for review in this Court. Finally, the petitioner is also mistaken when it

asserts that the Rhode Island Supreme Court erroneously applied a subjective

test to determine probable cause. A unanimous Rhode Island Supreme Court

found that subjectively, the arresting officers did not eve Suspect the

defendant, and, objectively, that they in fact “nad no probable cause t

believe he was guilty of a crime." Opini of tne Rhode Isla upren

Court, 510 A.2d at 95

II. THE RH ISLAND SUPREME OURT PROPERLY APPLIED THE FA F THI A

TO THE LAW SET FORTH BY THIS COURT IN MOULTON v. MAINE, lL , 106

S.Ct 47 198 AND AS SUBSEQUENTLY EXPLICAT IN KU ’

WILSON, __, 91 L.Ed.20 364 (198¢ a

Prior t tri tne Narg ’ tne rest ENT 0 4 3° 4 rt

Dall, made three teiepnone calls t one Joh varney. Mr. arney testifile

tnat he hac ber a frier of the respondent's for seve years, a that

relationship of trust existe betwee ther ranscript of suppre

hearing, 183, 19 Tne respondent was unaware that Mr. Carney, alt

not a paid informant, was cooperating with the police and that poli

officers were in fact listening to these onversati on an extensi c

in Mr arney's house Tne police and Carney were aware of the pendi

cnarges During ail three conversatic » var ye gec 1 a dlaiog wit

the respondent concer the pending charges, which conversati resulte

- incrimir Itir 4 stateme ts JSe agudaa t Mattatalil t trial; 4 -

conversation, the res Gent raiseo tf topl T J "can : Jeatn,

during the two other conversations, Carney himself initated the conver-

sations on this subject.

Tne petitioner wrongly asserts that the Rnode Island Supreme Court, by

ordering the conversations in this unique circumstance suppressed, has

created a per se exclusionary rule which applies to all statements obtained

after tne right to counsel has attached. Instead, that Court ruled that the

factual situation presented in this case was very similar to that in Maine

v. Moulton, _U.S.__,_ 106 S.Ct. 477 (1985), and thus, that a similar legal

result must obtain. In Moulton, as here, the person to whom the statements

were made, one Colson, had a longstanding, close relatiunship witin the

Gefendant yet without the defendant's knowledge agreed to cooperate with law

enforcement agents against the defendant a: part of an investigation into

threats which the defendant had made. The law enforcement agents instructeo

Colson not to attempt to question Moulton, but Colson did actively engage in

conversation with Moulton about the pending charges, which conversation

naturally elicited incriminating statements from the defendant. The police

passively listened in on these conversations by electronic means. As the

Rhode Island Supreme Court recognized here, although the police may

legitimately investigate new criminal conduct by an accused, they may not

use a friend, as in Moulton or Massiah v. United States, 377 U.S. 201

(1964), or a “sympathic" fellow prisoner, as in United States v. Henry, 477

U.S. 264 (1980), to elicit incriminating statements about pending charges

for which the right to counsel has attached.

Contrary to the petitioner's assertion, this case is unlike Kuhlman v.

Wilson, __U.S. ___, ‘91 L. Ed. 20 364 (1986). There, the defendant made

spontaneous and unsolicited statements to a temporary cellmate with whom he

had no relationship and whom he had no reason to trust. The cellmate, who

reported the conversations to the authorities according to a prior

agreement, did not engage in amy conversation with the defendant which was

likely t. elicit incriminating statements; instead, he simply listened to

what the defendant volunteered. Ir this case, by contrast, a friend, whom

the respondent had every reason to trust, actively engaged the respondent in

conversations about the pending crime, which conversations where likely tc

and did elicit incriminating statements, wnile tne police monitored those

conversations without the respondent's knowledge. The Rhode Island Supreme

Court properly applied the facts of this case to the law as establisnec by

this Court, and made no legal rulings contrary to this Court's pronounce-

ments.

CONCLUS ION

The decision of the Rhode Island Supreme Court does not present an issue

framed in the petition for certiorari, and constitutes a proper applicatior

of the facts of this case to the law as set fortn by this Court.

Accordingly, tne respondent respectfully requests this Court to deny tne

‘Petition for a Writ of Certiorari.

Respectfully supmittec,

WILLIAM F. REILLY ‘

Public Defender of the State of

Rnode Island

JL£4,

DEPARTMENT OF THE PUBLIC DEFENDES

250 Benefit Street

Providence, Rnode Islanca 02903

401 277-3492

Attorney for the Respondent

eo

—

‘

\.- STATE v. MATTATALL

Cite an 510 A3d O47 (RL 1988)

Menard v

AFT 951,

(1976)

{3} Although we concede that the ex-

press language of the preliminary injunc

tion did not obligate the alliance to initiate

any action to terminate the strike,’ the trial

justice's determination that the alliance vio

lated the order prohibiting it from engag-

ing in a work stoppage or strike was based

on competent evidence and was not other.

wise clearly wrong

At the hearing on the motion to adjudge

the alliance in contempt, the officers testi-

fied that they did not confer with one an-

other or any of the membership after the

injunction had been issued, but rather each

ndividua) made his/her own decision to

remain away from work. The trial justice,

however, rejected this testimony on credi-

bility grounds and found that once the pre

liminary injunction had been entered, the

alliance, through its officers, commanicat

ed the message to the membership that it

would adhere to the long-standing principle

of no contract, no work.

{4} It ip clear that the trial] justice was

not bound to accept the officers’ testimony

as credible “ ‘merely because there (was)

no direct testimony contradicting it, where

it contains inherent improbabilities or con-

tradictions, which alone, or in connection

with other circumstances in evidence, satis-

fy [the trier of fact) of its falsity.” . Gor

mon v. Hand Brewing Co, 28 RI. 180,

183, 66 A. 209, 211 (1907); see also Woon-

socket Teachers’ Guild, 117 R.1. at 131, 863

A.2d at 1355.

Competent circumstantial evidence, im-

cluding s complete shutdown of the Paw-

tucket school system, contradicted the offi

cers’ testimony and served az the legal

basis for the tria) justice's finding that the

alliance had indeed violated the court order

As noted by the trial justice and stated in

School Committee of Pawtucket, 117 RI.

Woonsocket Teachers Guild-

117 RI. 121, 3638 A2d 13849

3. The trial justice expressed her belief that the

injunction also required the alliance to advise

the membership affirmatively that it had an

obligation to go beck to work. Because this

R.1. 947

at 210, 365 A.2d at 503, the fact that the

officers of the alliance refused to comply

with the injunction was telling evidence

that the union, through its officers, had

signaled its membership to continue the

policy of no contract, no work, notwith-

standing the issuance of the preliminary

injunction. The display of union solidarity

before the trial justice belies the alliance’s

claim that it and its membership during the

period before, during, and after the strike

were operating on completely different

wavelengths.

The teachers’ and the alliance’s appeals

are denied and dismissed, the judgments

appealed from are affirmed, and the case is

remanded to the Superior Court for further

proceedings

t

STATE

’.

Stephen R. MATTATALL.

No. 85~149-C.A.

Supreme Court of Rhode Island.

June 9, 1986

Defendant was convicted in the Super}

or Court, Kent County, Kiely, J., of second-

degree murder, and he appealed. The Sov-

preme Court, Weisberger, J., held that: (1)

defendant, whom lieutenant ordered trans-

ported to police station, who did not have

option of declining to go with police, and

who reasonable person would have believed

was subject to official restraint, was seized

for Fourth Amendment purposes, and thus,

oversight was not the sole basis of her decision

. that the alliance violated the order, it does not

constitute reversible error y

€

‘

948 RI.

oral statements made by defendant during

course of his detention at police station

were inadmissible a» fruits of illegal sei-

sure; (2) Sixth Amendment right to counsel

was applicable to defendant who hed been

arraignel on charge of homicide and who

counsel had appeared to represent, even

though defendant had not been indicted:

and (3) telephone statements of defendant

to individual that police listened in on

should not have been admitted into evi-

dence, where police knew or were charge

able with knowledge of facts indicating de-

fendant’s Sixth Amendment right to coun-

se] had attached and police knowingly lis

tened to conversations in which defendant

made incriminating statements concerning

pending charges.

Vacated and remanded.

1. Criminal Law © 394.4(9), 412.1(3)

Aay fruits of detention of persua in

violation of Fourth Amendment rights are

inadinissible, even if the fruits are oral

statements for which adequate Miranda

warnings had been given for Fifth Amend-

ment purposes. US.C.A. Const Amends. 4,

5. ,

2 Arrest @°68(4)

Criminal Law ©*412.1(3)

Defendant, whose transport to police

station was ordered by lieutenant, who did

not have the option of declining to go with

police, and who reasonable person would

have believed was subject to official re

straint due to number of police officers at

scene, was seized for Fourth Amendment

purposes, and thus, oral statements made

by defendant during course of his detention

at police station were fruits of illegal sei-

sure that were inadmissible in evidence

against him, even though police did not use

physical force upon defendant and did not

handcuff him, and trial court found defend-

ant’s statements to be voluntary for Fifth

Amendment purposes. US.CA Const.

Amends. 4, 5.

\ 610 ATLANTIC REPORTER, 24 SERIES

3 Criminal Law ©°641.%(3)

Sixth Amendment right to counse! ap

plies as soon as adversarial judicial pro-

coedings have commenced USCA

Const Amend. 6.

4 Criminal Law ©°641.%1)

Sixth Amendment right to counsel of

defendant for whom counsel had entered

appearance in case was applicable, even

though defendant had not been indicted in

the case, where defendant had been an

raigned on charge of homicide. US.CA

Const.Amend. 6.

&. Criminal Law 412.214)

Telephone statements made by defend

ant to individual who police officers lis

tened in on after defendant had been ar

raigned on homicide charge and counsel

had appeared to represent him, including

Statements by defendant that victim's

death was accidental and not suicidal and

that defendant might have been involved in

accidental death, were not admissible

against defendant at trial, where police

knew or were chargeable with knowledge

that Sixth Amendment right to counsel was

applicable and counsel had entered appear.

ance, and they knowingly listened to con

versations in which defendani made incrim-

inating statements concerning pending

charges. US.C.A. ConstAmend 6

Arlene Violet, Atty. Gen, Joel S.

Chase/Constance Measore, Sp. Asst. Attys.

Gen., for plaintiff.

William F. Reilly, Public Defender, Jan-

ice M. Weisfeld/Barbara Hurst, Asst. Pub

lic Defenders, for defendant.

OPINION

WEISBERGER, Justice.

This case comes before us on the defend-

ant’s appea! from a judgment of conviction

of second-degree murder entered after 8

jury trial. Thereafter, the trial justice de

nied the defendant’s motion for new trial

and sentenced him to a term of forty years’

imprie -ument of which ten-years were sus

Ou the morning of September 2

son of a fatal gunshot wound to Un

At about $15 am Sergeant

Pierce of the Warwick police dep:

of the investigation, mstructed S

Pierce to have Mattatal] transporte

lice headquarters in order to furt

investigation as well as to get sta

from Mattatall Lieutenant Godbo

fied that Mattatal) was not at bt

refuse his removal to the police sta’

presumably was not free to depa

the station anti] the investigative in

tion had been completed Patrolr

pest Heon drove defendant to the s'

a police cruiser and then led hir

interrogation room within the dete

ee

Ip the interrogation room Detect:

ard Johnsoe admonished defendan

Miranda rights at about 11 am

tember 24, 1962 In response to U

monitions, defendant declined to

waiverof-rights form Detective .

continued to question Mattatall.

formed the detective that he and

had been drinking together, that

caliber gum was pot owned by de!

STATE v. MATTATALL

RL 949

Cine os 390 ADd 807 CL eee)

pended. The trial justice further imposed

an additiona) ten year sentence upon the

defendant, Stephen R. Mattatall, as a habit-

ual offender. We reverse the conviction.

The facts of the case insofar as pertinent to

this opinion are as follows

On the morning of September 24, 1962.

defendant's wife found the body of John

Scanlon on the kitchen floor of the Matts-

talls’ Warwick dwelling. Scanlon had ap

parently been shot in the face. A 23-cal}

ber pistol was visible beneath the body

Doctor Loren J. Mednick, an assistant

medica) examiner for the state, later found

that Scanlon had died between midnight

and 4 am. on September 24, 1982, by rea-

son of a fatal gunshot wound to the cheek.

At about &15 am. Sergeant Ernest

Pierce of the Warwick police department

: d Mattatal) home and observed

that defendant was extremely agitated

The sergeant, admonishing defendant to sit

down on the couch, asked him some ques

tions about the .22-caliber gun but received

no defingive reply. At this point Lieuten-

ant James J. Godbout, who was in charge

of the investigation, instructed Sergeant

Pierce to have Mattatal! transported to po

lice headquarters in order to further the

Investigation as well as to get statements

from Mattatall Lieutenant Godbout teati-

fied that Mattatal) was not at liberty to

refuse his removal to the police station and

presumably was pot free to depart from

the station unti) the investigative inte-roga-

Goo had been completed Patrolman Br

nest Heon drove defendant to the station in

& police cruiser and then led him to an

interrogation room within the detective di-

Vision

In the interrogation room Detective Rich-

ard Johnson admonished defendant of his

Miranda rights at about 11 am oo Sep

tember 24, 1982 In response to these ad

monitions, defendant declined to sign o

waiverof-rights form. Detective Johnson

continued to question Mattatall who ip

formed the detective that he and Scanioo

had been drinking together, that the .23-

caliber gun was not owned by defendant,

but that defendant did own s 357-magnun

pistol. The defendant suggested that Scan

lon had committed suicide. After about

fifteen or twenty minutes of interroga tioe

defendant told Detective Johnsow that he

no longer wished to discuss the matter with

him.

Lieutenant Godbout returned to the po

lice station and brought defendant to «

larger interview or interrogation room.

The lieutenant advised defendant of his

Mirenda rights again at about 1230 p.m.

and Matattall signed a waiverof-+rights

form at that time. Mattatal] stated thet be

and Scanlon had been drinking the night

before and that Scanlon had asked him if

be owned s gun. The defendant stated

that he gave Scanlon a 22-caliber gun with

® single bullet and then went upstairs to

bed. Thereafter, when defendant refused

to sign & consent form to allow « neutron

absorption test to be administered, a war

rant was obtained to perform this test in

order to determine whether defendant hed

recently fired a gun The test was per

formed and concluded at about p.m The

results were negative. Thereafter, Lieu

tenant Godbout continued his interrogation,

and Mattatal) admitted that he owned

a 357 magnum as well as the 22-~<aliber

gun. The defendant refused to tell the

police where the magnum was located bat

signed a consent form allowing the police

to search his home for the gun.

At this point, defendant became more

and more agitated, began to cry, and then

stated that he was showing Scanlon how to

work the 22<caliber gun, and thet it hed

acexdentally discharged, and struck Scanlon

in the face. Lieutenant Godbout thes

asked defendant why be had not called the

rescue squad or the police at that point

Mattatall replied that he had nothing fur

ther to say. At this point questioning was

terminated, and defendant was allowed to

cal) his attorney. Statements taken during

the course of this interrogation were intro

duced into evidence during the trial after a

motion to suppress was denied. During

the suppression bearing the prosecution

950 RI

‘

took the position that since Mattatall was

cot under arrest when he was taken to the

station and was not a suspect at that time,

it was amnecessary to establish probable

cause & order to justify his transportation

to police headquarters and his seizure or

custody for investigative purposes. The

trial justice agreed that Mattatall was not

arrested. No ruling was requested or

made oo the issue of probable cause for the

Getec Gon .

Cartaim statements made by defendant to

ooe John Carney after Mattatal] had been

arraigned and after counsel had entered an

appearance on behalf of defendant also

were admitted’ during the course of the

trial More details concerning these state

ments will be set forth later in this opinion.

It @ waffieent at this point to indicate that

the cooversations between defendant and

Carney were overheard by the police with

Carney's consent « *2

In sepport of his appeal defendant raises

seven isepes, only two of which will be

dealt with in this opinion.“ Further facts

will be supplied as necessary in dealing

with these issues, 6 *

: I

For purposes of this opinion, the court

must assume that at the time Mattatall

was ordered to be transported to Warwick

police headquarters, the police had insuffi

cent evidence to constitute probable cause

to believe that defendant was responsible

for the homicide, or indeed that a homicide

had been committed Their purpose in

transporting Mattatal] to the police station

was investigative only- They did not sus

pect him of homicide or murder. Sach

suspicion arcee later because of defend

ant’s responses to interrogation, together

with the finding of a 857 magnum ins

stream pear Mattatall’s house and certain

court must conclode as a matter of fact

that Mattatall was brought involuntarily to

the police station for ‘interrogation even

610 ATLANTIC REPORTER, 24 SERIES

though the police did not suspect him and.

had no probable cause to believe that he

was guilty of a crime. The purpose of this

removal was investigative and rvas not con-

sidered by the police to be a full custodia)

arrest. The arrest took place later at the

police station after Mattatall made certain

statements that he might have intended to

be exculpatory but which led the police to

believe that he was involved in a homicide.

We shal! also assume for the purpose of

this opinion that defendant was property

admonished of his Miranda rights and that

his responses to interrogation were volun

tary as found by the trial justice. :

The Supreme Court of the United States

has unequivocally held in a series of opin

ions that the fruits of an illegal seizure or

detention are inadmissible in evidence,

whether obtained by interrogation or. other-

wise. Taylor v. Alabama, 457 US. 687,

102 S.Ct 2664, 78 LEd2d 814 (1982),

Dunaway v. New York, 442 US. 200, 99 S.

Ct. 2248, 60 LEd 2d 824 (1979); Brown 2.

Tlinois, 422 U.S, 690, 95 B.Ct 2254, 45 L.

Ed.2d 416 (1975); Davis 9 Mississippi,

$94.U.S. 721, 89 SCt 1894, 22 LEd2d

676 (1969); Wong Sun v: United States,

871 US. 471, 88 S.Ct 407, 9 LEd2d 441

(1963). . ‘ 24

[1] The foregoing cases establish the-

principle that if a person is detained in

violation of the rights guaranteed by the

Fourth Amendment to the Constitution of

the United States, any fruits of the iegal

detention are inadmissible even if they are

ora] statements, as in Taylor, Dunaway,

and Brown, for which adequate Mirandc

warhings had been given for Fifth Amend-

ment purposes. It was also established in

Davis v. Mississippi, as weil as in Taylor

» Alabama, that the taking of fingerprints

during such an illegal detention will result

in the exclusion of these prints from evi

dence. . +s nahie, ah Cs we

The state argues that since

was pot under full custodial arrest, his

statements, if given voluntarily, should be

admissible. This argument was presented

in Duncway v. New York, supra, and was

rejected. In that case tie Court obse,

sfter contrasting such investigative d.

tion from the brief investigative stop

proved in Terry v. Okio, 392 US. i=

oo 20 LEd2d 889 (1968), as

Beene ot mare was in

portant respects indistinguishable fro

tradioonal arrest. Petitioner was

questioned briefly where he was fo.

Instead, he was taken from a neighb.

home to # police car, transported t

police station, and placed in an interro

ton room. He was never informed t

he sas ‘free to go’, indeed, he wo

have been physically restrained if he |

refused to accompany the officers or }

tried to escape their custody. The ap;

cation of = Fourth Amendment's .

quirement of probable cause does r

depend on whether an intrusion of t!

magnitude is termed an ‘arrest’ und

state law. The mere facts that petition

Was not told he was under arrest, w

a ae st not have had :

; mterrogation hz

proved fruitiess,’ while ‘not insignifica:

for all purposes * ° * obviously don:

make petitioner's seizure even rough!

rong oo yy oy bgp hg

vO in v. Ohi

US. 1, 8 S.ce “a & tenn

(1968) } and its progeny. Indeed, an

‘exception’ that could cover s seizure a

mMtrusive as that in this case woul

threaten to swallow the genera! rule tha

Fourth Amendment seizures are ‘reason

able’ only if based on probable cause.’

Dunaway, 442 US. at 212-13, 99 S.Ct

at 2256-57, 60 L.Ed.2d at 835-36.

The Court, in Dunaway, rejected the

same distinction between investigation and

accusation that it had rejected ten years

carter ts Dovio s. Miaslesipg, supra. In

ws, & young man, with fo

fifty other black i ae yet ld

police station ineient to s rape investiga-

Gon, was fingerprinted, and was then re

leased. No probable cause was established

for the seisure and detention of Davis.

The state argued that Davis was not ar

: STATE y. MATTATALL

RL 951

Cite as $16 A.2d 967 (RL 1986)

\

rejected. In that case the Court observed,

after contrasting such investigative deten-

tion from the brief investigative stop ap-

proved in Terry v. Ohio, 392 U.S. 1, 88 S.

Ct. 1868, 20 L.Ed 2d 889 (1968), as fol-

lows:

“{Tjhe detention of petitioner was in im-

portant respects indistinguishable from a

traditional arrest. Petitioner was not

questioned briefly where he was found.

Instead, he was taken from a neighbor's

home to a police car, transported to a

police station, and placed in an interroga-

tion room. He was never informed that

he was ‘free to go’; indeed, he would

have been physically restrained if he had

refused to accompany the officers or had

tried to escape their custody. The appli-

cation of the Fourth Amendment’s re-

quirement of probable cause does not

depend on whether an intrusion of this

magnitude is termed an ‘arrest’ under

state law. The mere facts that petitioner

was not told he was under arrest, was

not ‘hacked,’ and would not have had an

arrest record ‘if the interrogation had

’ proved’ fruitless, while not insignificant

for all purposes * ° * obviously do not

make petitioner's seizure even roughly

analogous to the narrowly defined intru-

sions involved in Terry [v. Ohio, 892

US. 1, 88 S.Ct 1868, 20 LEd2d¢d 889

(1968) ] and its progeny. Indeed, any

‘exception’ that could cover « seizure as

intrusive as that in this case would

threaten to swallow the general rule that

Fourth Amendment seizures are ‘reason-

able’ only if based on probable cause.”

Dunaway, 442 US. at 212-138, 99 S.Ct

at 2256-57, 60 L.Ed.2d at 835-36. R

The Court, in Dunaway, rejected the

same distinction between investigation and

accusation that it had rejected ten years

earlier in Davis v. Mississippi, supra. In

Davis, a young man, along with forty or

fifty other black youths, was detained at a

police station incitlent to a rape investiga-

tion, was fingerprinted, and was then re

leased. No probable cause was established

for the seizure and detention of Davis.

The state argued that Davis was not ar

rested but only detained briefly for investi-

gative purposes with a min.wum intrusion

during the course of fingerprinting. The

Court responded with this statement:

“{T}jo argue that the Fourth Amendment

does not apply to the investigatory stage

is fundamentally to misconceive the pur-

poses of the Fourth Amendment. Inves-

tigatory seizures would subject unlimited

numbers of innocent persons to the

harassment and ignominy incident to in-

voluntary detention. Nothing is more

clear than that the Fourth Amendment

was meant to prevent wholesale intru-

sions upon the personal security of our

citizenry, whether these intrusious be

termed ‘arrests’ or ‘investigatory deten-

tions.’” Davis, 894 US. at 726-27, 89

S.Ct. at 1897, 22 L.Ed. 2d at 680-81.

{2] There seems no question that in the

case at ber defendant was seized for

Fourth Amendment purposes and was de

tained for a substantial period of time dur-

ing which he was interrogated. There is

no question that the fruits of this interro

gation assisted in the establishment of

probable cause for his arrest and were

used against him at the trial in order to

obtain his conviction. ¥

This court has had occasion to consider

such detention in State v. Bailey, 417 A.2d

915 (RI. 1980). In that case, we estab

lished the criteria for determining whether

an arrest or seizure has taken place for

Fourth Amendment. purposes. These

factors included: “{1} the extent to which

the person’s freedom of movement has

been curtailed and the degree of force used

by the police ° ° * [2] the belief of a rea-

sonable innocent person (concerning

his/her inhibition of movement) in the same

circumstances ° ° * and [3] [the question

of] whether the person had the option of

not going with the police ° °° .” /d at

917-18. Applying these factors to the ix-

stant case, one is compelled to conclude

that Mattatall’s freedom of movement was

curtailed, certainly from the moment that

Lieutenant Godbout ordered that he be

952 RI.

transported to the police station. Mattatall

did not have the option of declining to go

with the police. Moreover, the fact that

there were a number of police officers at

the scene would have caused a reasonable

person to conclude that he was subject to

official restraint. Although the police did

not use physical force upon defendant and

did not handcuff him, they did act under

color of authority and under circumstances

that would cause a reasonable person to

conclude that refusal to accompany them

would be ineffective.

Taking into account the relevant authori

ties cited above, we are of the opinion that

the oral statements made by defendant

during the course of his detention at the

Warwick police station were the fruits of

an illegal] seizure in violation of the Fourth .

Amendment to the Constitution of the Unit-

ed States, and therefore, were inadmissible

in evidence against him. The trial] justice

erred in admitting such statements on the

ground that he found then: to be voluntary

for Fiftk Amentnest purposes.

t 4 P

1

Il

The defendant further contends that the

admission into evidence of statements that

he made to John Carney over the telephone

were inadmissible as violative of his Sixth

Amendment right to counsel pursuant to

principles enunciated in Massiah ». United

States, $7 US. 201, & S.Ct 1199, 12

L.Ed.2d 246 (1964), and reaffirmed in Brew-

er v. Williams, 430 U.S. 887, 97 S.Ct. 1282,

51 LEd2d 424 (1977), and United States

v. Henry, 447 US. 264, 100 S.Ct. 2183, 65

L.Ed.2d 115 (1980), and most recently in

Maine v. Moulton, — US. —, 106 S.Ct

477, 88 LEd2d 481 (1985). The facts

relating to the Carney telephone conversa-

tions may be briefly stated.

Carney testified that he had asked mem-

bers of the Warwick police to come to his

home because of threatening’ telephone

calls that he had received from Mattatall.

While the police were present at Carney’s

home on December 26 and 27, 1983, calls

came in from Mattatall. At Carney’s invi

ve Nap

510 ATLANTIC REPORTER, ad SERIES

sats secatiann <0 tis Wastin de

partment listened to these conversations

and heard Mattatall state to Carney that

the victim’s death was accidental and not

suicide] and that Mattatall might have been

involved in the accidental death These

statements were used against defendant at

the trial. The parties stipulated that prior

to these dates defendant had been arraign-

ed on the charge of homicide and that

counse] had appeared to represent him.

Evidence indicates that the police officers

who listened in on the conversations were

aware of the pending homicide charges

against Mattatall

The state argues thot this case is distin-

guishable from Massiah and Henry be

cause in those cases federal officers had

arranged for a person to listen to admis-

sions made by a defendant who had been

charged with a crime and for whom counsel

had entered an appearance. The surrepti-

tious “eavesdropping” had occurred under

circumstances in which the officers had

reason to believe that the’ listening individ

vals (a friend whose car was wired for

sound in Massiah and a “sympathetic” fel

low prisoner who listened in Henry) would

elicit incriminating statements from the ac-

cused. Here the state argues that the offi

cers were motivated to investigate a seps-

rate crime, that of threatening phone calls,

not to obtain information concerning the

pending charge. The state further con-

tends that the police officers did not insti-

gate the phone calls but only listened to

calls initiated by Mattatall himself.

This case is very similar to Maine v.

Moulton, supra. In that case police had

learned from a codefendant turned infor

mant that he suspected that be had re

ceived threatening telephone calls from an

anonymous source concerning his pending

charges. He also stated that Moulton had

suggested the killing of a prosecution wit-

ness. The police then wired the codefend-

ant for sound, with his consent, and record-

ed conversations between the codefeodant

and Moulton. During the course of these

conversations, Moulton made a number of

ST.

ch

incriminating statements concern

pending charges. These statemen

admitted against him at trial. B

Supreme Judicial Court of Maine

Supreme Court of the United Sta'

that these statements were improp

mitted.

[3-5] The Supreme Court of the

States, in passing upon the prose

argument that there was a duty

appropriate interest in investigating

additional crimes, made the followi

ment:

“The police have an interest in t

ough investigation of crimes fo

forma] charges have already be:

They also have an interest in in

ing new or additions! crimes. In

tions of either type of crime may

surveillance of dividuals alread

indictment ° °° In seeking «

pertaining to pending charges, h

the Government's investigative

are limited by the Sixth Ame

rights of the accused. To allow

smission of evidence obtained fr

accused in viclation of his Sixth

ment rights whenever the polic:

an alternative, legitimate reason {

surveillance invites abuse by

forcement personne! in the form :

cated investigations and risks t

ceration of the Sixth Amendme

recognized in Massiah ° * °

quently, incriminating statemer

taining to pending charges are in

ble at the trial of those char;

withstanding the fact that the

were also investigating other cn

in obtaining this evidence, the S'

lated the Sixth Amendment by kn

circumventing the accused’s righ

assistance of counsel.” — U.S.

106 S.Ct at 489-90, 88 LE

498-99.

The fact that Mattatall had n

indicted in this case is of no cons

since the Sixth Amendment right to

applies as soon as adversarial judi:

ceedings have commenced. Brewer

en errtrareacdrR P

STATE v.. MATTATALL RL 953

Cite an 510 A.2d 947 (RL 1908)

incriminating statements concerning the

pending charges. These statements were

admitted against him at trial. Both the

Supreme Judicia! Court of Maine and the

Supreme Court of the United States held

that these statements were improperly ad

mitted.

[35] The Supreme Court of the United

States, in passing upon the prosecution's

argument that there was a duty and an

appropriate interest in investigating new or

additional crimes, made the following com-

ment

“The police have an interest in the thor

ough investigation of crimes for which

forma] charges have already been filed

They also have an interest in investigat-

ing new or additional crimes. Investiga-

tions of either type of crime may require

surveillance of individuals already under

indictment. * °° In seeking evidence

pertaining to pending charges, however,

the Government’s investigative powers

are limited by the Sixth Amendment

rights of the accused. To allow the ad

mission of evidence obtained from the

accused in violation of his Sixth Amend-

ment rights whenever the police assert

an alternative, legitimate reason for their

surveillance invites abuse by law en

forcement personne! in the form of fabri

cated investigations and risks the evis-

ceration of the Sixth Amendment right

recognized in Massiah °° * Conse

quently, incriminating statements per

taining to pending charges are inadmissi-

ble at the trial of those charges, not

withstanding the fact that the police

were also investigating other crimes, if,

in obtaining this evidence, the State vio

lated the Sixth Amendment by knowingly

circumventing the accused's right to the

assistance of counsel” —— U.S. at ——,

106 S.Ct at 489-90, 88 LEd2d at

498-99.

The fact that Mattatal] had not been

indicted in this case is of no consequence

since the Sixth Amendment right to counsel!

applies as soon as adversaria) judicial pro

ceedings have commenced. Brewer » Wil

liams, supra; Kirby ». Illinois, 406 US.

682, 92 S.Ct. 1877, 82 L.Ed 2d 411 (1972).

There is no question that the Sixth Amend

ment right to counsel was applicable in this

case, that counsel had entered an appear

ance in the case, that the police knew or

were chargeable with knowledge of this set

of facts, and that they knowingly listened

to conversations in which defendant made

incriminating statements concerning pend-

ing charges. However justifiable it may

have been for the police to take this action

for the purpose of investigating other crim-

inal conduct, the plain message of Moulton

is that the prosecution may not use evi

dence obtained regarding the i

charges against the defendant at his trial.

Whether the police use a telephone, an

electronic device, or a jailmate to obtain

this information is not controlling. The

doctrine established by the Supreme Court

of the United States requires that such

mformaton not be used in evidence against

the defendant on the charge in respect to

which the right to counsel has previously

attached Therefore, testimony concerning

the statements made to Carney should not

have been admitted inte evidence.

Because of the conclusions that we have

reached in regard to the issues previously

discussed in this opinion, it is unnecessary

for us to discuss and analyse the additiona!

five issues that have been raised by the

defendant. Obviously, since the cocviction

of the defendant on the murder charge is

to be vacated, the consecutive sentence im-

posed as a habitual offender must be vacat-

ed as well. The other issues raised do not

require discussien at this time since they

wil) not necessarily be presented in the

same fashion at a subsequent trial.

For the reasons stated, the defendant's

conviction is hereby vacated and the papers

in the case are remanded to the Superior

Court for a new trial

BEVILACQUA, CJ., did not participate.

.

° pS