17 Mass. App. Ct. 182 | Mass. App. Ct. | 1983
From a series of radio dispatches they received on October 16, 1982, the arresting officers learned that a man in a truck bearing Massachusetts registration A over C 43150 had threatened another man with a firearm; that the truck was registered to David Walker, the defendant, of 21 Algonquin Street, Dorchester; and that there was a default warrant outstanding against the defendant. The police
1. Two answers dispose of the defendant’s argument that he was entitled to a Miranda warning before Officer Travis challenged Walker with: “I understand you carry a gun.” First, Travis had probable cause to arrest Walker on the default warrant outstanding against him and to search the defendant incidentally to that arrest. United States v. Robinson, 414 U.S. 218, 224 (1973). Commonwealth v. Wilbur, 353 Mass. 376, 379, cert. denied, 390 U.S. 1010 (1967). Commonwealth v. Norris, 6 Mass. App. Ct. 761, 769 (1978). Here, the police officer’s statement was a verbal prelude to the body search which the officer would have been entitled to make, a physical act which the defendant obviated by handing over his firearm. It does not matter that Officer Travis looked for the weapon slightly before the
2. No error attended the refusal of the motion judge to suppress Walker’s post-arrest statements on the ground that he was too drunk to waive his Miranda rights in a knowing and intelligent fashion. Contrast Commonwealth v. Hosey, 368 Mass. 571, 576-579 (1975). Cross-examination of Officer Travis at the suppression hearing established no more than that the defendant was “drunk” and “pretty loaded.” As to the degree of his incapacity, the record lacks material persuasive enough to overcome the deference we accord the judge’s apparent finding that the defendant had his wits sufficiently about him. Commonwealth v. Tisserand, 5 Mass. App. Ct. 383, 388-389 (1977). As in Commonwealth v. Doyle, 12 Mass. App. Ct. 786, 795 (1981), we find no basis for rejecting “the judge’s implicit conclusions that, despite being under the influence of alcohol, [the defendant] retained adequate capacity to understand warnings given him” and intelligently to waive them. See also Commonwealth v. Brady, 380 Mass. 44, 49 (1980).
Judgment affirmed.