Whether an incriminating statement must be suppressed where police delayed granting the defendant’s request for a phone call until after he confessed, but still permitted the phone call within one hour of arrival at the station.

The defendant was arrested after selling cocaine to undercover police officers. A substantial quantity of cocaine was then found in the apartment he shared with his cousin. At the station, he requested a phone call, and was told that he could make the call after giving a statement. He gave a statement admitting that the cocaine in the apartment belonged to him. He was then allowed to use the phone. Less than one hour had passed since he arrived.

The detective who interrogated the defendant initially testified that the defendant did not request a phone call, and that if the defendant had requested a call, the detective would have lent the defendant his cell phone. On cross examination, he admitted that the defendant did request a call, and was told that the call would have to wait because there was no phone in the interrogation room.

The defendant appealed from his conviction, and the Appeals Court ruled that his statutory right to a phone call had not been violated. 75 Mass. App. Ct. 696. The SJC granted the defendant’s request for further appellate review.

Chapter 276, § 33A provides that arrested persons shall have use of a telephone “for the purpose of allowing the arrested person to communicate with his family or friends, or to arrange for release on bail, or to engage the services of an attorney,” and that “such use shall be permitted within one hour” after arrival at the station. While the statute does not provide a remedy, the Court has created the rule that “whenever a defendant is intentionally deprived of his statutory right to seek assistance of friends or counsel by telephone … evidence of an in-custody inculpatory statement … should not be admitted unless the Commonwealth can show beyond a reasonable doubt that the evidence is untainted by the deprivation of the defendant’s right.” Commonwealth v. Jones, 362 Mass. 497, 503 (1972).

The question is whether the police are free to intentionally refuse a phone call in order to obtain an inculpatory statement within the one hour window provided by § 33A. A two-decades-old Appeals Court case decided that question against the defendant, holding that the one hour window “provides a safe harbor to the police,” and any interference within that time does not trigger the suppression rule. Commonwealth v. Carey, 26 Mass. App. Ct. 339, 343 (1988). However, one justice in the current case expressed some discomfort with that opinion. The defendant argues that the purpose of § 33A is to permit a defendant to consult with family, friends or counsel prior to making a statement, and that allowing police to intentionally delay the call in order to obtain a statement violates its spirit, if not its letter.

The defendant has an uphill battle under the language of § 33A itself. The statute does not refer to a purpose of allowing consultation prior to interrogation, nor does it require a phone call “as soon as practicable” or on any other schedule other than within an hour. It is hard to say on the face of the statute that Carey was wrongly decided.

However, the Court has previously shown a willingness in Jones to offer defendants greater protection than the statute itself requires. It is at least a little troubling to imagine officers rushing to obtain a confession in the first hour after booking, to avoid granting the defendant’s request for a phone call. The Court’s allowance of further review in this case indicates a willingness to at least consider the possibility of extended Jones to cover that scenario.