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SJC-12562

COMMONWEALTH vs. PEDRO VASQUEZ.

Hampden. December 6, 2018. - August 28, 2019.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & 

Kafker, JJ.

Homicide. Identification. Due Process of Law, Identification.

Constitutional Law, Identification, Admissions and 

confessions, Voluntariness of statement, Search and 

seizure, Probable cause. Evidence, Identification, Bias, 

Admissions and confessions, Voluntariness of statement.

Witness, Bias. Fair Trial. Cellular Telephone. Probable 

Cause. Search and Seizure, Fruits of illegal search, 

Affidavit, Probable cause. Practice, Criminal, Motion to 

suppress, Fair trial, Admissions and confessions, 

Voluntariness of statement, Interlocutory appeal.

Indictments found and returned in the Superior Court 

Department on April 30, 2015.

Pretrial motions to suppress statements, to suppress the 

results of an allegedly consensual search of a cellular 

telephone, to suppress statements and evidence derived from an 

incorrect statement of rights, and to suppress out-of-court 

identifications were heard by John A. Agostini, J.; and a 

pretrial motion to suppress the seizure of the defendant's 

cellular telephone and the information extracted from it was 

heard by Richard J. Carey, J.

Applications for leave to prosecute interlocutory appeals 

were allowed by Budd and Lowy, JJ., in the Supreme Judicial 
2

Court for the county of Suffolk, and the appeals were reported 

by them to the Appeals Court. After consolidation of the 

appeals, the Supreme Judicial Court granted an application for 

direct appellate review.

Maximilian J. Bennett, Assistant District Attorney

(Katherine E. McMahon, Assistant District Attorney, also

present) for the Commonwealth.

Merritt Schnipper for the defendant.

LENK, J. Following the January 2015 shooting death of the 

defendant's girlfriend, the defendant quickly became the primary

suspect. He was arrested after three members of the victim's 

family identified him from surveillance audio and video footage

taken from a private house across the street from the shooting. 

After officers arrested the defendant, and sought to question 

him, they attempted to advise him of his Miranda rights. It 

became apparent that the defendant did not have much command of

the English language. The detectives asked a Spanish-speaking 

officer, who was untrained in interpretation, to translate the 

Miranda warnings and the interrogation into Spanish. Based on 

the officer's rendering of the Miranda warnings, the defendant 

ostensibly waived his rights and spoke with police. He also 

provided officers, on their request, with the passcode to unlock

the cellular telephone they had seized from him upon arrest, and 

gave them permission to search it. Police later used that 

information to obtain a warrant for the cell site location 

information (CSLI) for the defendant's telephone.
3

The defendant was indicted on charges of murder in the 

first degree and two related firearms offenses. In a series of 

motions, he moved to suppress the witnesses' identifications of 

him from the surveillance footage, his statements to police, 

evidence obtained from the search of his cellular telephone, and 

the CSLI. A judge of the Superior Court (first motion judge) 

denied the motions as to the identifications and the search of 

the telephone. The judge allowed the motions with respect to 

the custodial statements. A different Superior Court judge

(second motion judge) denied the motion to suppress the CSLI.

The Commonwealth sought interlocutory review of the order 

suppressing the defendant's statements, and the defendant sought 

review of the denial of his various motions to suppress. Single 

justices of this court allowed the petitions, and the cross

appeals were consolidated. We subsequently allowed the 

defendant's application for direct appellate review.

We discern no error in the decision that the 

identifications do not require suppression. We also agree that 

the translation of the Miranda warnings into Spanish was 

inadequate to apprise the defendant of his rights, and that the 

defendant's limited comprehension of English did not suffice to 

compensate for these deficiencies. Because the search of the 

defendant's cellular telephone arose from the statements he made 

following those incomplete warnings, the evidence obtained as a 
4

result must be suppressed. We conclude also that, when the 

tainted information is excised from the search warrant 

application for the CSLI, the affidavit does not establish 

probable cause to access the CSLI for the defendant's device. 

Accordingly, the order on the motion to suppress the CSLI shall 

be reversed.

1. Background. The following facts are drawn from the 

first motion judge's findings on the motions to suppress

concerning the identifications, the Miranda warnings, and the 

search of the cellular telephone. The facts are supplemented, 

as relevant, with uncontroverted testimony implicitly or 

explicitly credited by the judge, in support of his findings,

after evidentiary hearings.1 See Commonwealth v. Jones-Pannell,

472 Mass. 429, 437 (2015). As to the motion to suppress 

involving the CSLI, the facts are drawn from the affidavit in 

support of the application for a search warrant. See 

Commonwealth v. Perkins, 478 Mass. 97, 99 (2017).

 

1 An evidentiary hearing was conducted over four days on the 

motions to suppress the identifications, custodial 

interrogation, and initial search of the cellular telephone. At 

that hearing, the first motion judge heard testimony from

Abigail Martinez Melende; the victim's son, brother, and father;

and a Springfield police officer, with respect to the 

identification procedures. Testimony was also introduced from a 

police officer and an expert witness concerning the custodial 

interrogation and the search issues. A nonevidentiary hearing 

was conducted by the second motion judge on the motion to 

suppress the cell site location information (CSLI).
5

a. Identifications. In January of 2015, police officers 

discovered the victim's body inside a parked sport utility 

vehicle (SUV); she had been shot in the head. The investigating 

officers noted a surveillance camera on a building located 

across the street from the SUV. The black and white footage, 

while dark, captured the shooting. It shows the SUV stopping at 

the curb and parking. After a few moments, the rear passenger 

door on the driver's side of the vehicle opens. An argument, in 

Spanish, can be heard emanating from the individuals inside the 

vehicle. A single gunshot is heard, and a man is seen getting 

out of the vehicle and running off camera.

Based on this footage, police wanted to identify promptly

the individual who could be seen and heard on the audio-video 

recording. Officers first went to the home of the victim's 

brother, Martino Diaz.2 His girlfriend, Abigail Martinez 

Melende, also was present. Police told the two that a vehicle 

registered to Martinez Melende had been involved in a shooting 

and that police had some questions for them. Diaz and Martinez 

Melende drove together to the police station to be questioned. 

 

2 A pseudonym.
6

They both surmised that the victim had been shot.3 They also 

speculated that the defendant had been involved.4

At some point, Diaz contacted his father, who immediately 

went to collect the victim's then teenage son, Juan Mendoza,5

from school. As with the other members of his family, the 

victim's son was aware that a shooting had occurred and, before 

talking to police, harbored a similar suspicion that the 

defendant had harmed his mother in some way.6 The victim's son 

and his grandfather drove to the police station together; when 

they arrived, Diaz told them that he believed the defendant may 

have killed the victim.

Each witness was then interviewed separately by police. 

Each witness was shown a photograph of the defendant and was 

asked whether that person was the victim's boyfriend, whom Diaz 

and Martinez Melende had mentioned to the police earlier. The 

witnesses agreed that the photograph showed the victim's 

boyfriend.

 

3 Diaz's neighbor had seen a news report of the shooting, 

and told Diaz and Martinez Melende, as they were leaving for the 

police station, that a woman had been killed.

4 Diaz and Martinez Melende also were aware that there was a 

history of domestic violence between the defendant and the 

victim over the years.

5 A pseudonym.

6 Mendoza also had seen a news report that the vehicle his 

mother drove had been involved in a shooting.
7

Police then had the witnesses attempt to make an 

identification from the surveillance footage.7 First, they had 

each witness listen to the audio segment of the recording, 

without displaying the video portion, to determine if anyone 

could recognize the voices of the individuals in the vehicle; 

each listened to the recording separately. The recording was 

stopped immediately prior to the sound of a gunshot. Diaz, 

Mendoza, and Martinez Melende each identified the voices as 

belonging to the victim and the defendant.8

After listening to the audio recording, each witness was

shown the video recording, without the accompanying audio, to 

determine whether the witness could identify the individual who 

got out of the vehicle and ran down the street.9 As with the 

audio recordings, the witnesses were separated throughout this

process. Although the video recording is too indistinct to 

display any facial features, all three witnesses believed that 

the individual seen leaving the vehicle and running down the 

street was the defendant.

 

7 The victim's father did not participate in the 

identification procedure.

8 Diaz was able to make a voice identification, in part, 

because the victim purportedly mentioned the defendant's name 

twice during the argument.

9 The witnesses were shown only the portion of the video 

recording that began after the sound of the gunshot.
8

Diaz reported that he believed the individual was the

defendant based on "his sneakers," "his voice," and "the way he 

is," and because the victim "mentioned his name two times."10

Mendoza expressed a belief that the defendant was the individual 

depicted in the videotape based on the clothing and the way in 

which he moved. Martinez Melende reported that she believed 

that the individual was the defendant based on his "size, body 

type, weight and height," as well as his sneakers.

The police did not suggest to the witnesses that the 

defendant was a suspect, and none of the witnesses was permitted 

to speak to any of the others until after each witness had made 

an identification.11

b. Interrogation. Shortly after the identifications, the 

defendant was arrested and brought to the Springfield police 

station. During the subsequent interrogation, one of the 

detectives attempted to inform the defendant that he had been 

arrested for the murder of the victim and for firearms 

violations relating to her death. The detective also attempted 

 

10 Although Diaz did not listen to the audio portion while 

he viewed the video footage, his statements make clear that he 

understood the two segments were connected.

11 It appears as though the witnesses spoke to each other 

before arriving at the police station and while waiting at the 

police station; at these points, none of the witnesses had made 

an identification from either the audio or video portions of the 

surveillance tape.
9

to advise the defendant of his Miranda rights. Because the 

defendant was illiterate in English and Spanish, the officers 

understood that the defendant would need the Miranda warnings 

explained to him orally. They also understood that, because the 

defendant did not appear to have much command of English, they 

had to deliver the warnings in Spanish, the defendant's native 

language. One of the officers, who was not formally trained as 

an interpreter, translated the warnings as follows:

"1. You have the right to remain quiet.

"2. Any thing that you say can be against you . . . the, 

of the court.

"3. You the right to consult with a lawyer for advice 

before being and to have him present with you during the 

interrogation.

"4. If you do not have the means to pay, to pay a, and if 

you wish for it, you the right to be a law, lawyer before 

being interrogated.

"5. If you decide to be now, without the presence of a 

lawyer, you still have the right to stop the, that any 

moment until you talk with a lawyer."12

Police subsequently directed the defendant to initial each of 

the warnings on a printed Miranda form written in English. He 

did so.

 

12 The first motion judge "accept[ed] this transcription and 

translation as the official and accurate version of the 

conversation between and among the participants to the 

interview."
10

During the course of the interview, the defendant 

consistently denied his involvement, even as officers became 

"confrontational and accusatory" in their questioning. As the 

interview drew to a close, the defendant told officers that they

"could check" many of the details surrounding his account

because they had his cellular telephone. At that point, police

asked, in English, if they could search the device, and 

expressed some confusion whether they or the defendant were in 

possession of the device. The defendant gave them "verbal 

permission" to search the device.13

c. Search warrant for CSLI. When police searched the 

defendant's cellular telephone, they "extracted" the incoming 

and outgoing telephone calls, incoming and outgoing text 

messages, incoming and outgoing multimedia messages, contact 

information, and photographs and video recordings on the device.

Approximately ten days after that search, police applied 

for a warrant to obtain the CSLI data for the device.14 In 

 

13 When the officers asked if they or the defendant were in 

possession of his cellular telephone, he responded that they had 

it. Officers then asked if they could search the device, and 

the defendant responded, "Si." The officer who was interpreting 

followed up in Spanish, "You understand what he say? They can 

take your phone in order, to search the phone?" The defendant 

responded, in Spanish, "Yes, they can search."

14 "The term ['CSLI'] refers to a cellular telephone service 

record or records that contain information identifying the base 

station towers and sectors that receive transmissions from a 

[cellular] telephone" (quotation and citation omitted). 
11

support of the warrant request, the affidavit described the 

evidence that police had gathered, which included the witnesses' 

identifications of the defendant from surveillance footage and a 

history of domestic violence. The affidavit also noted that a 

cellular telephone was recovered from the defendant when he was 

arrested at his house, and described information obtained from 

the police search of that device, namely, the defendant's 

telephone number.15 Based on this evidence, police requested all 

CSLI for the thirty-two days from December 5, 2014, through

January 5, 2015, the month immediately preceding and including 

the day on which the victim was killed. A warrant for the 

requested information was issued.

d. Suppression hearings. In April of 2017, the first

motion judge held an evidentiary hearing concerning the motions 

to suppress the defendant's statements, the identifications, and 

the initial search of the cellular telephone. The judge then

 

Commonwealth v. Augustine, 472 Mass. 448, 449 n.1 (2015). 

"'Historical' CSLI refers to CSLI relating to and generated by 

cellular telephone use that has already occurred at the time of 

the order authorizing the disclosure of such data" (quotation 

and citation omitted). Id. In essence, "[t]he data can be used 

to approximate the location of a cellular telephone handset that 

was active at a particular time." Id.

15 The warrant affidavit also noted that, on an unspecified 

date and with the same information, police sent an 

administrative subpoena to the defendant's cellular service 

provider, pursuant to G. L. c. 271, § 17B, seeking to obtain all 

the defendant's billing and call detail records for the onemonth period leading up to the victim's death.
12

allowed the defendant's two motions to suppress his custodial 

statements, and denied the motions to suppress the

identifications and the search of the cellular telephone. Both 

parties sought leave to pursue interlocutory appeals from those 

orders, and a single justice of this court allowed their

petitions.

While these proceedings were underway, the defendant also 

filed a separate motion to suppress the CSLI. After a 

nonevidentiary hearing, the second motion judge denied the 

motion; a single justice of this court allowed the defendant's 

request to appeal from that order. The parties' cross appeals 

were consolidated in the Appeals Court, and we subsequently

allowed the defendant's request for direct appellate review.

2. Discussion. "In reviewing a decision on a motion to 

suppress, we accept the judge's subsidiary findings absent clear 

error, but conduct an independent review of his [or her] 

ultimate findings and conclusions of law" (quotations and 

citation omitted). Jones-Pannell, 472 Mass. at 431. A 

reviewing court gives due deference to a motion judge's findings

where, as here, the judge "has seen and heard the witnesses, and 

made determinations regarding the weight and credibility of 

their testimony." See Commonwealth v. Tremblay, 480 Mass. 645, 

655 (2018), quoting Jones-Pannell, supra at 438. We may, 
13

however, conduct an independent review of the documentary 

evidence. See Tremblay, supra.

a. Identifications. The defendant contends that, because 

the witnesses harbored preconceived biases against him, and 

because police had those witnesses view a photograph and listen 

to an audio recording depicting the defendant, their subsequent

visual identifications were inherently suggestive of him and

violated due process and common-law principles of fairness. To 

the extent that the defendant challenges the procedures employed

by police to obtain a visual identification, we apply a due 

process analysis under art. 12 of the Massachusetts Declaration 

of Rights. As to whether the witnesses' own biases and the 

unreliable nature of the video footage otherwise caused a

suggestive confrontation with the defendant, we turn to commonlaw principles of fairness.

i. Due process. An out-of-court eyewitness identification 

conducted by police is inadmissible under art. 12 "if the 

defendant proves by a preponderance of the evidence that the 

identification was 'so unnecessarily suggestive and conducive to 

irreparable misidentification that its admission would deprive 

the defendant of his right to due process.'" Commonwealth v. 

Johnson, 473 Mass. 594, 596-597 (2016), quoting Commonwealth v. 

Walker, 460 Mass. 590, 599 (2011). "In considering whether 

identification testimony should be suppressed, the judge must 
14

examine the totality of the circumstances attending the 

confrontation to determine whether it was unnecessarily 

suggestive" (quotation and citation omitted). Johnson, supra at 

597. Where a defendant shows that the procedure utilized by 

police to obtain an identification was unnecessarily suggestive, 

"the out-of-court identification is per se excluded as a 

violation of the defendant's right to due process under art. 

12." Id., quoting Walker, supra at 599 n.13. The purpose 

underlying the per se exclusionary rule in such circumstances is 

to deter any specter of police misconduct in obtaining an 

identification. Johnson, supra at 597-598.

Insofar as the defendant challenges police conduct in the 

identification process, we agree with the first motion judge 

that the identification protocol devised and implemented by the 

detectives in this case was not so unnecessarily suggestive as 

to mandate per se exclusion under art. 12.16 Although an 

 

16 It is certainly not ideal that, prior to making an 

identification, each witness was apparently aware that the 

victim had been killed and suspected the defendant's 

involvement. Nonetheless, we agree with the first motion 

judge's determination that the identification procedure was not 

unduly suggestive under the circumstances. For example, police 

officers separated each witness during the identifications, 

presented the audio portion as distinct from the video portion, 

and did not allow the witnesses to see or hear the portion 

containing the gunshot. Moreover, police themselves made no 

suggestion of the defendant's involvement, and no confirmatory 

feedback was provided to the witnesses. See, e.g., Commonwealth

v. Johnson, 473 Mass. 594, 600-602 (2016) (citing social science 

evidence and noting suggestive tactics police must avoid).
15

identification stemming from a videotape containing only one 

individual is analogous to a one-on-one identification, it

raises due process concerns only if it is "unnecessarily 

suggestive of the defendant . . . so as to give rise to a very 

substantial likelihood of a mistaken identification" (citation 

omitted). See Commonwealth v. Forte, 469 Mass. 469, 477 (2014). 

Where there were no percipient witnesses to the shooting in this 

case, and where the victim's family members otherwise might have 

been in a position to ascertain the identity of the shooter from 

 

Even so, where there is more than one potential identifying 

witness, and where it is feasible to do so, we caution that 

police should avoid affording those witnesses the opportunity to 

speak with other witnesses about their perceptions prior to the 

identification proceeding. Of course, police cannot be expected 

to prevent every conceivable exposure to external information. 

Precautions should be taken, however, to guard against the risk 

that a witness may be influenced by his or her conversations 

with police, family members, or other witnesses before making an 

identification.

Moreover, to the extent that the defendant complains of the 

photograph being shown to the witnesses before they made an 

identification, those witnesses already had suggested to police 

that the victim's boyfriend likely was involved. Although it is 

better practice not to have shown a photograph of the defendant, 

police did so to confirm that this was the individual to whom 

the witnesses were referring when they spoke of the victim's 

boyfriend. In these circumstances, given that the witnesses 

were familiar with the defendant and were not eyewitnesses to a 

crime, it is unlikely that the witnesses made an identification 

from the videotape based on their having viewed his photograph. 

Compare Commonwealth v. Forte, 469 Mass. 469, 477 (2014) 

(suppression not required where percipient eyewitnesses later 

were shown surveillance footage and then identified defendant in 

photographic array as man whom they perceived at time of crime).
16

the surveillance footage, the police had good reason to have 

those witnesses attempt to do so. Cf. id. ("good reason" to 

show surveillance tape and photograph where police needed prompt 

confirmation of investigatory information from witnesses). The 

defendant does not suggest that police had an alternate 

identification procedure that they could have employed here but,

rather, appears to imply that police should have forgone 

attempting to establish a visual identification altogether

because the video quality was poor, the witnesses were biased 

against him, and they already had made an audio identification

of his voice.17 We decline to disturb the judge's determination 

that the identification protocol utilized by police here does

not mandate suppression under art. 12.

ii. Common-law principles of fairness. When an out-ofcourt identification is suggestive through no fault of the 

police, "suppression cannot deter police misconduct because 

 

17 The defendant does not appear to challenge the audio 

identifications in this appeal, but, to the extent that he may, 

we discern no abuse of discretion in the first motion judge's 

determination that those identifications need not be suppressed. 

The witnesses had significant familiarity with the defendant's 

and the victim's voices, both in person and over the telephone, 

such that the witnesses were able to identify the voices from 

the audio recording reliably. Moreover, the police employed an 

appropriate procedure to separate the audio from the video 

segments, to ensure that the witnesses did not hear the gunshot, 

and to separate each witness while he or she attempted to make 

an identification. See Commonwealth v. Chamberlin, 86 Mass. 

App. Ct. 705, 713 (2014).
17

there is none." See Johnson, 473 Mass. at 598. Nonetheless, if 

an identification arises from suggestive circumstances, "its 

admissibility 'should not turn on whether government agents had 

a hand in causing the confrontation,'" because the evidence is 

"equally unreliable in each instance." Id., quoting 

Commonwealth v. Jones, 423 Mass. 99, 109 (1996). Applying 

common-law principles of fairness, a judge accordingly may 

suppress the out-of-court eyewitness identification if it

"resulted from a 'highly' or 'especially' suggestive 

confrontation with the defendant." See Johnson, supra at 598-

599, quoting Jones, supra.

"Among our 'common law principles of fairness' is the 

evidentiary rule that a judge has discretion to exclude relevant 

evidence 'if its probative value is substantially outweighed by 

the danger of unfair prejudice.'" See Johnson, 473 Mass.

at 599, quoting Commonwealth v. Crayton, 470 Mass. 228, 249 n.27 

(2014). See also Johnson, supra ("A judge's authority to 

exclude severely unreliable identification testimony is closely 

related to his or her more general discretion to exclude 

evidence that is more prejudicial than probative" [quotation and 

citation omitted]). "A motion to suppress an identification 

under Jones is similar to a motion to suppress an identification 

under art. 12," but it differs in two key respects. See 

Johnson, supra. "First, the standard of admissibility is 
18

different . . . ." Id. at 600. As opposed to the rule of per 

se exclusion, a judge maintains the discretion, after "weighing 

the probative value of the identification against the danger of 

unfair prejudice, and determining whether the latter 

substantially outweighs the former," to allow the admission of a 

suggestive identification or to exclude it. Id. at 600-602 

(describing factors judge should consider in making such

determination). Second, the standard of appellate review 

differs. Id. at 602. Under art. 12, we review without 

deference a motion judge's application of the law to the facts 

as found; under our common-law principles of fairness, however, 

we review for an abuse of discretion. Id.

In this regard, the defendant contends that the out-ofcourt identifications must be suppressed because the video 

footage is so inherently unreliable that no one could identify 

the defendant unless he or she were predisposed to do so. After 

hearing testimony from the three witnesses and from police, and 

after reviewing the video footage himself, however, the first 

motion judge rejected the notion that the witnesses' prior 

suspicions of the defendant's involvement, and their ability to 

ascertain his voice from the audio recording, precluded them 

from making a reliable visual identification.18 Applying our 

 

18 The defendant maintains that we should review the 

question de novo because the first motion judge did not apply 
19

common-law principles of fairness, we discern no abuse of 

discretion in this determination.

Notably, the video quality in this case is poor, and likely 

would not permit an eyewitness who is unfamiliar with the 

suspect to make a visual identification from the recording. The 

individuals who made an identification here, however, were not 

eyewitnesses to a crime perpetrated by a stranger, who may be, 

perhaps, more susceptible to a mistaken identification given a 

"single" or "brief" exposure to a suspect in frightening 

conditions. See Commonwealth v. Chamberlin, 86 Mass. App. Ct. 

705, 713 (2014). Rather, each witness had a long and close 

relationship with the defendant, and had considerable 

familiarity with his stature, gait, appearance, clothing, and 

features. See, e.g., id. (voice identifications rendered 

nonsuggestive given long-time association between witnesses and 

defendant); Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 328

(2000) (video identification admissible given officer's long 

social familiarity with defendant). When such familiarity is 

present, those witnesses may be able to discern identifying

 

common-law principles of fairness under Johnson, 473 Mass. 

at 602. Although the judge did not explicitly reference our 

common-law principles of fairness, he impliedly engaged in the 

requisite weighing of probative value and prejudicial effect in 

concluding that the identifications were reliable, relevant, and 

admissible. Having reviewed the video footage ourselves, we 

agree with the judge's determinations.
20

characteristics that others could not, rendering their visual 

identifications, in some circumstances, less unreliable. See 

Johnson, 473 Mass. at 601-602 ("witness's prior familiarity with 

the person identified, where that person is a witness's family 

member, friend, or long-time acquaintance," is relevant factor 

in assessing probative value of identification). Indeed, here, 

the three witnesses each immediately identified the defendant 

based on specifics such as his height, weight, and articles of 

clothing, and the way in which he moved. Given their

familiarity with the defendant, and because their preconceived 

suspicions should not otherwise preclude them from being able to 

make a visual identification, we conclude that our common-law 

principles of fairness do not require suppression.19

b. Miranda warnings. The Commonwealth challenges the 

allowance of the motion to suppress custodial statements on the 

ground that the first motion judge erred in concluding that the 

Miranda warnings were inadequately conveyed.

 

19 Whether, and to what extent, the nonpercipient witnesses 

will be permitted to make an in-court identification or to 

testify as to what they could perceive in the video footage is a 

matter reserved to the trial judge. See Commonwealth v. Vacher, 

469 Mass. 425, 441-442 (2014), quoting Commonwealth v. Pleas, 49 

Mass. App. Ct. 321, 326 (2000) (witness may only testify to 

identification if witness can add information that otherwise 

would be missing from jury's knowledge; otherwise, "it is the 

province of the jury to draw their own conclusions regarding the 

identity of the person depicted without the witness's 

assistance").
21

"In Miranda, the United States Supreme Court held that 'the 

prosecution may not use statements, whether exculpatory or 

inculpatory, stemming from custodial interrogation of the 

defendant unless it demonstrates the use of procedural 

safeguards effective to secure the privilege against selfincrimination.'" Commonwealth v. Vuthy Seng, 436 Mass. 537, 

543, cert. denied, 537 U.S. 942 (2002), quoting Arizona v. 

Miranda, 384 U.S. 436, 444 (1966).20 These procedural safeguards 

mandate that an accused must be warned that he or she "has a 

right to remain silent, that any statement he [or she] does make 

may be used as evidence against him [or her], and that he [or 

she] has a right to the presence of an attorney, either retained 

or appointed." Vuthy Seng, supra, quoting Miranda, supra. A 

defendant may waive these rights, provided that the waiver is 

made "voluntarily, knowingly, and intelligently" (citation 

omitted). Vuthy Seng, supra. The Commonwealth bears the burden 

of proving, beyond a reasonable doubt, that a defendant was 

advised of his or her rights in a meaningful way, and that he or 

she waived them in deciding to make a statement to police. Id.

at 544. See Commonwealth v. Bins, 465 Mass. 348, 358 (2013). 

Whether a defendant was given adequate Miranda warnings is a 

 

20 It is undisputed that the defendant was in custody for 

Miranda purposes. See Commonwealth v. Clemente, 452 Mass. 295, 

327-328 (2008), cert. denied, 555 U.S. 1181 (2009).
22

question of law that we review de novo.21 See Vuthy Seng, supra

at 543.

The first motion judge heard expert testimony on the 

defendant's lack of English-language proficiency, and his tested 

inability to comprehend most of the words contained in the 

Miranda warnings.22 The judge also was provided a videotape of 

the interrogation and a formal transcript of the translated

warnings prepared by a certified interpreter. After hearing the 

expert testimony and reviewing the record, the judge made 

findings that the defendant was able to "understand 'street 

English'" and some basic words, but was unable to follow a

conversation between two English speakers, and was unable to

understand statements involving complex technical concepts, such 

as warrants and criminal procedure rights. The judge concluded 

that the defendant's rights were conveyed "in such a fragmented 

and confusing manner so as to be incoherent" in his native 

language, and the defendant did not otherwise understand the 

 

21 The first motion judge considered the transcript and 

videotape of the interrogation in light of expert testimony. 

Where a judge made credibility determinations as to a witness's 

testimony that were relevant to his or her subsidiary findings 

of fact, we adhere to the ordinary standard of review and afford 

deference to the judge's findings. See Commonwealth v. 

Tremblay, 480 Mass. 645, 655 (2018); Commonwealth v. Clarke, 461 

Mass. 336, 341 (2012).

22 The expert testified that the defendant understood only 

one of nine critical words in the Miranda warnings.
23

English version of the warnings. The judge accordingly 

suppressed the custodial statements that followed.

We agree that the defendant was not adequately informed of 

his rights in Spanish in several key respects. First, the 

defendant was not apprised that anything he said could be used 

against him in court. "As we have stated: 'The warning of the 

right to remain silent must be accompanied by the explanation 

that anything said can and will be used against the individual 

in court.'" See Vuthy Seng, 436 Mass. at 544, quoting Miranda, 

384 U.S. at 469. The warning is "an absolute prerequisite to 

interrogation," and is necessary in order to make the accused 

aware "not only of the privilege, but also of the consequences 

of forgoing it." See Vuthy Seng, supra, quoting Miranda, supra

at 469, 471.

Here, those consequences were conveyed to the defendant as 

"[a]ny thing that you say can be against you . . . the, of the 

court," which, as the Commonwealth concedes, is problematic at 

best.23 Indeed, we do not view this translation as a minor 

variation in interpretation, see Bins, 465 Mass. at 358-359, 

but, rather, as a deficiency that wholly interfered with the

full, accurate, and effective recitation of the defendant's

Miranda rights. See Commonwealth v. Dagraca, 447 Mass. 546, 552 

 

23 The defendant also was not asked, either in Spanish or in 

English, whether he understood this right.
24

(2006) (requiring suppression where police did not advise 

defendant that anything he said could be used against him in 

court); Vuthy Seng, 436 Mass. at 544 (same). Contrast 

Commonwealth v. Perez, 411 Mass. 249, 255 (1991) ("slight 

ambiguities in a few of the Spanish words on the [Miranda] 

cards, the use of one colloquial Spanish term, and the lack of 

accent marks" did not interfere with meaning of warnings).

There were similar defects in the translation of other

warnings. For example, the defendant was informed that if he 

did not have the means to pay for an attorney, and if he 

"wish[ed] for it," that he had the right "to be a law, lawyer 

before being interrogated." Cf. Vuthy Seng, 436 Mass. at 544-

545 (telling defendant that if he could not afford attorney, 

"they can help find one for you" was inadequate); Commonwealth

v. Colby, 422 Mass. 414, 418 (1996) (telling defendant that "if 

he could not afford an attorney, the Commonwealth would attempt 

to provide one for him" was inadequate).

The Commonwealth contends that, notwithstanding these 

deficiencies, the totality of the circumstances otherwise 

suggests that the defendant understood his rights; he "nodded" 

throughout the interview and demonstrably could understand some 

words, such as "lawyer," which he supplied in Spanish when the 

interpreting officer was struggling to find the word. Based on 

expert testimony on the coping mechanisms of non-native 
25

speakers, however, the first motion judge ascribed the 

defendant's nodding along as an indication that he was 

attempting to listen to the officer, and not as proof beyond a 

reasonable doubt that he understood the warnings. The judge 

also determined that the defendant's ability to understand basic 

English words did not equate to an ability to comprehend them 

when used as technical concepts within complex sentences,

particularly where the defendant did not understand other words 

in the sentence, and where they involved a fragmented recitation 

of his constitutional rights.

Although we have recognized that the translation of Miranda

warnings into a defendant's native language need not be "word 

for word," see Commonwealth v. The Ngoc Tran, 471 Mass. 179, 186 

(2015), the translation cannot be so "misstated to the point of 

being contradictory" or equivocal. See Bins, 465 Mass. at 363.

Here, the Spanish recitation of several required warnings was 

incapable of conveying "meaningful advice to the unlettered and 

unlearned in language which [a defendant] can comprehend and on 

which [a defendant] can knowingly act" (citation omitted). See 

Vuthy Seng, 436 Mass. at 544. As such, we conclude that the 

defendant was unable to execute a knowing, intelligent, and

voluntary waiver of his rights, and the custodial statements 

obtained thereafter properly were suppressed.
26

c. Search of the cellular telephone. Because the request 

to search the defendant's cellular telephone directly followed

the failure to provide him with adequate Miranda warnings, and 

was derived from statements he made during the interrogation,

the defendant contends that the search was presumptively invalid

and the fruits obtained from it should have been suppressed. 

The Commonwealth concedes that if the court concludes that the

warnings were inadequate, the cellular telephone evidence must 

be suppressed. We agree as well.

Pursuant to art. 12, any physical or testimonial evidence 

that is "derived from unwarned statements where Miranda warnings 

would have been required . . . in order for them to be 

admissible, is presumptively excludable from evidence at trial 

as 'fruit' of the improper failure to provide such warnings." 

Commonwealth v. Martin, 444 Mass. 213, 215 (2005). See 

Commonwealth v. Simon, 456 Mass. 280, 292, cert. denied, 562 

U.S. 874 (2010).24 In order for evidence obtained following an

 

24 Although the United States Constitution permits the 

prosecution to introduce the physical fruits of a voluntary but 

unwarned statement to police, see United States v. Patane, 542 

U.S. 630, 637-640 (2004), we have concluded that the broader 

protections of art. 12 of the Massachusetts Declaration of 

Rights bar the use of physical and testimonial fruits derived 

from an unwarned statement. See Commonwealth v. Simon, 456 

Mass. 280, 292, cert. denied, 562 U.S. 874 (2010), citing 

Commonwealth v. Martin, 444 Mass. 213, 218-219 (2005). Other 

States similarly have adopted broader protections under their 

State Constitutions. See, e.g., State v. Farris, 2006-Ohio3255, ¶¶ 46-49, cert. denied, 549 U.S. 1252 (2007); State v. 
27

unwarned statement to be admissible, the Commonwealth must show 

that it is "sufficiently attenuated" from the unwarned statement 

itself. See Commonwealth v. Tuschall, 476 Mass. 581, 589

(2017). To determine whether there was sufficient attenuation, 

a court considers such factors as the temporal proximity,

whether there were any intervening circumstances, and the 

flagrancy of the official misconduct. Id. See Commonwealth v. 

Long, 476 Mass. 526, 536-537 (2017). In assessing those

factors, "[w]e do not apply a 'but for' test," Long, supra at 

536, but, rather, we consider whether the evidence came about as 

a result of the "exploitation of that illegality or instead by 

means sufficiently distinguishable to be purged of the primary 

taint." Id. at 537, quoting Wong Sun v. United States, 371 U.S. 

471, 488 (1963).

The request to search the defendant's cellular telephone

here was not so attenuated; the search arose directly from the

defendant's unwarned statements, and the Commonwealth does not 

suggest that it has met its burden of proving that the taint was 

dissipated through some other intervening circumstance. Compare

Martin, 444 Mass. at 220. Further, while the degree of official 

misconduct here was not egregious, the inadequate translation of

Miranda warnings and of the interrogation itself makes plain the 

 

Vondehn, 348 Or. 462, 475-476 (2010); State v. Peterson, 2007 VT 

24, ¶ 28; State v. Knapp, 2005 WI 127, ¶¶ 73-83.
28

ongoing "need for law enforcement to use capable, trained 

translators who will report verbatim the question asked and the 

response given," as well as to use interpreters who are able 

meaningfully to convey the substance of a suspect's Miranda 

rights. See Commonwealth v. Santana, 477 Mass. 610, 618 n.6 

(2017). The fruits obtained from the search thus require 

suppression.

d. Search of the CSLI. Police filed an application for a 

search warrant, supported by an affidavit, in order to obtain 

thirty-two days of the defendant's CSLI, spanning the period of 

time from December 5, 2014, to January 5, 2015.25 Following the 

issuance of the search warrant, the defendant moved to suppress 

the CSLI. The motion was denied.

On appeal, the defendant argues that the affidavit filed in 

support of the Commonwealth's application did not establish the 

requisite probable cause to obtain a search warrant. The 

Commonwealth concedes that if the Miranda warnings were 

inadequate, the affidavit relied on tainted information obtained 

as a result of the invalid search, including the defendant's 

telephone number. The Commonwealth contends, however, that when 

 

25 Police initially sent an administrative subpoena to the 

defendant's cellular service provider, pursuant to 18 U.S.C. 

§ 2703, to obtain subscriber information and telephone call logs 

for the same period. The subpoena did not include a request for 

CSLI.
29

the tainted information is excised from the affidavit, 

sufficient probable cause remained to obtain CSLI for the 

defendant's movements during the roughly month-long period.

Whether a search warrant is supported by probable cause "is 

a question of law that we review de novo." Perkins, 478 Mass. 

at 102. Our review is limited to the four corners of the 

affidavit, and any reasonable inferences drawn therefrom. Id. 

A search warrant application for CSLI must demonstrate (1) 

"probable cause to believe that a particularly described offense 

has been . . . committed" and (2) "that the CSLI sought will 

'produce evidence of such offense or will aid in the 

apprehension of a person who the applicant has probable cause to 

believe has committed . . . such offense.'"26 See Commonwealth

v. Augustine, 467 Mass. 230, 236 n.15 (2014), S.C., 470 Mass. 

837 and 472 Mass. 448 (2015), quoting Commonwealth v. Connolly, 

454 Mass. 808, 825 (2009). In this regard, the government must 

be able to demonstrate "a sufficient nexus between the criminal 

activity for which probable cause has been established and the 

physical location of the [cellular telephone] recorded by the 

 

26 "This test requires a higher degree of confidence that 

the CSLI will yield evidence of criminal activity than that 

which is necessary for an order under [18 U.S.C.] § 2703(d), 

which requires only that the government show specific and 

articulable facts that the CSLI is relevant and material to an 

ongoing criminal investigation" (quotations and citation 

omitted). See Augustine, 472 Mass. at 455.
30

CSLI of the person the applicant has probable cause to believe 

has committed the offense, at least at the time and place of the 

criminal activity." See Commonwealth v. Hobbs, 482 Mass. 538, 

547 (2019). To establish the requisite nexus, the affidavit 

must set forth "a substantial basis to conclude that the items 

sought are related to the criminal activity under investigation, 

and that they reasonably may be expected to be located in the 

place to be searched at the time the search warrant issues"

(quotation and citation omitted). Id. at 546. See Augustine, 

472 Mass. at 455. Such a determination is fact-intensive and 

will be resolved on a case-by-case basis. See Commonwealth v. 

Holley, 478 Mass. 508, 522 (2017).

There is no dispute here that the Commonwealth established 

probable cause to believe that a particularly described offense 

had been committed. See Augustine, 467 Mass. at 236 n.15. 

Whether the Commonwealth demonstrated probable cause to 

establish the requisite nexus between the commission of that 

crime and the CSLI for the defendant's device, however, is 

another matter.

Ordinarily, police may be able to demonstrate the requisite 

nexus by connecting the defendant to ownership of a particular 

device and by showing a substantial basis that the device will 

contain relevant evidence of the crime -- that is, the 

defendant's location at or around the time the crime was
31

committed. See Hobbs, 482 Mass. at 546-549; Commonwealth v. 

Alexis, 481 Mass. 91, 102 (2018). Here, however, when we remove 

from the calculus any tainted evidence contained within the 

affidavit in support of the application for a search warrant,

such as the defendant's disclosure of his telephone number, the 

Commonwealth has not met its burden with regard to establishing

any such nexus. Compare Hobbs, supra at 548-549 (that 

defendant's telephone number was known to police and 

corroborated by multiple individuals established defendant's 

association with sought-after device's CSLI).

Nor has the Commonwealth demonstrated any connection 

between the commission of the crime and the thirty-two days for 

which the Commonwealth sought the CSLI. Indeed, there is 

nothing in the affidavit that might suggest that the location of 

the defendant's telephone, beyond the night of the shooting 

itself, would produce any evidence of the crime. Compare Hobbs, 

482 Mass. at 547-548 (affidavit must show that sought-after CSLI 

would produce evidence of crime -- namely, defendant's presence 

at or around crime scene at time of crime); Commonwealth v. 

Estabrook, 472 Mass. 852, 870 (2015) (affidavit must indicate 

"whether [defendant's] cellular telephone . . . was located near 

the victim's home on the night of the shooting and, therefore 

whether [defendant] was in the area of the shooting when it 

occurred" (emphasis added)). "We once again emphasize the 
32

significant constitutional issues raised by the collection of 

extended amounts of historical CSLI, and the importance of 

limiting the requests accordingly." Hobbs, supra at 550 n.13, 

citing Augustine, 467 Mass. at 248-249.

As such, the information contained within the four corners 

of the affidavit does not support a determination of probable 

cause, and the CSLI obtained as a result must be suppressed.27

3. Conclusion. That portion of the order allowing the 

defendant's motions to suppress his custodial statements is 

affirmed. The denial of the motion to suppress the out-of-court 

identifications is affirmed. So much of the orders as deny the 

motions to suppress evidence obtained from a search of the 

defendant's cellular telephone and the CSLI are reversed.

So ordered.

 

27 "Even though the exclusionary rule generally bars from 

admission evidence 'obtained during an illegal search as fruit 

of the poisonous tree, evidence initially discovered as a 

consequence of an unlawful search may be admissible if later 

acquired independently by lawful means untainted by the initial 

illegality'" (citation omitted). Commonwealth v. Estabrook, 472 

Mass. 852, 865 (2015). If the Commonwealth can show, by a 

preponderance of the evidence, that it has an untainted source 

for the telephone number, connecting the defendant to the 

ownership of the device for which the CSLI is requested, it is 

not precluded from doing so. Id. at 865, 870-871 (suppression 

not required where police applied for search warrant for CSLI 

based on information wholly independent of unlawfully obtained 

CSLI).