COURT OF APPEALS REVERSES SUPPRESSION OF CONTENTS OF CELL PHONE WHERE DELAY IN OBTAINING WARRANT NOT UNREASONABLE

In Commonwealth v. Arthur, the Court of Appeals reversed the suppression of the contents of cell phones seized by the police, because the trial  judge erroneously ruled that “the police unreasonably delayed obtaining a warrant to search the contents of” the phones.

The basic ares were as follows. “The defendant and two accomplices,  Williams and Richardson,  participated in a coordinated attack on a home at 7 Morse Street in … Boston. Much of the attack was witnessed by various Boston police officers…. At approximately 4:30 p.m. two cars drove onto Brinsley Street, one street away from and parallel to the block of 7 Morse Street. The defendant was driving one of the cars and was alone. Williams was driving the other car, with Richardson in the front passenger seat. Both cars parked on Brinsley Street…. Shortly after parking, Williams and Richardson got out of their car …and walked briskly … in the direction of Morse Street…. As they approached] Morse Street, the defendant got out of his car … and began peering through the yards toward the area of 7 Morse Street ‘as if he was waiting to see something occur.’ Shortly thereafter, shots were heard coming from Morse Street. Williams and Richardson then were observed running down Morse Street, with Williams holding a gun in his hand…. Williams ran to Brinsley Street and, after discarding his firearm, got into the passenger seat of the defendant’s car. The defendant had, by this time, returned to his car, but before he could drive away with Williams they were stopped and arrested by the police. Later, the police confirmed that multiple bullets had been fired into the home at 7 Morse Street…. An officer on the scene observed two cell phones in the defendant’s car — one on the driver’s seat and one on the front passenger’s seat. The officer observed three cell phones in the car initially driven by Williams — two on the driver’s seat and one in the passenger’s side door handle. The police impounded both cars. Three days later, they sought and received an initial warrant to search both cars and to seize all the cell phones…. The cell phones were seized and … were thereafter held as evidence. The Commonwealth did not seek to view the contents of the cell phones, however, until eighty-five days after the impoundment. On that day, the Commonwealth sought a second warrant, this time specifically requesting to search the ‘electronic data’ of each of the seized cell phones…. The second warrant was issued on the same day, and the cell phones were searched. Subsequently, the defendant was indicted for two counts of armed assault with intent to murder,” and related offenses. “The defendant … moved to suppress evidence found as a result of the search of the two cell phones found in his vehicle,” on the ground “that the eighty-five-day delay in seeking the second warrant rendered the search unreasonable.” The motion was allowed and  the Commonwealth appealed.

In its decision, the Court of Appeals that the crime “appeared to be a coordinated attack carried out using separate automobiles, where one could readily infer that the occupants had been in communication” using the multiple cell phones later found on the seats of the cars. The Court agreed with the Commonwealth “that on these facts the cell phones were ‘evidence of the crime independent of their content,’ and thus that they would be maintained as evidence for trial…. This evidentiary value existed regardless of whether, on further investigation, the cell phones might contain additional relevant evidence in their digital data. It follows that the delay in seeking the second warrant was not unreasonable here, because … the police were already lawfully in possession of the cell phones and would be through trial. There was thus no substantial interest under the Fourth Amendment … requiring that the search of the contents of the cell phones occur expeditiously.”

If your cell phone was searched without a warrant, contact our office at 508-944- 3397.

SJC REVERSES TRIAL COURT’S ORDER TO DISCLOSE CONFIDENTIAL INFORMANT AT PRETRIAL SUPPRESSION HEARING

In Commonwealth v. D.M., the SJC reversed the single justice’s denial of the Commonwealth’s petition for relief from an interlocutory order of the Juvenile Court, requiring the Commonwealth to reveal the identity of an informant. The facts are as follows. “Acting on information provided by a confidential informant, the Boston police apprehended, searched, and arrested the juvenile, D.M., on firearm-related charges. Before a pretrial suppression hearing in the Juvenile Court, the juvenile sought an order requiring the Commonwealth to disclose the identity of its informant and other related information. The Commonwealth asserted that it was privileged not to disclose the information, … because disclosure would jeopardize the informant’s safety. It averred that the informant was not a percipient witness to the juvenile’s arrest, and that the juvenile had not met his burden of demonstrating that disclosure was required…. The judge allowed the juvenile’s motion. The judge determined that … the juvenile adequately had challenged the assertion of the privilege on the ground that it interfered with his right to present a defense…. The judge concluded that the ‘informant’s identity and concomitant information are sufficiently “relevant and helpful to the defense of an accused” that it must be disclosed.’ The Commonwealth thereafter filed an appeal …, seeking reversal of the interlocutory ruling…. The single justice denied the petition, and the Commonwealth appeal[ed].”

In its decision in favor of the Commonwealth, the SJC reasoned that the judge erred in failing “to distinguish between ‘the need for disclosure of an informant’s identity at a pretrial suppression hearing and at the trial proper.’ (‘nondisclosure is rather readily countenanced at pre-trial hearings, but not so at the trial itself’).” “The distinction between ‘a demand for disclosure at a pretrial hearing, where the issue is probable cause for arrest or search, and a demand for disclosure at trial, where the issue is the defendant’s ultimate guilt or innocence,’ is an important one that long has been maintained.          Because the judge’s analysis conflated the two standards, … the analytical error should not stand…. While we recognize that a trial judge has considerable discretion in striking a balance, exercise of that discretion must be within the confines of the correct legal framework…. In these exceptional circumstances, we conclude that the single justice abused her discretion in declining to employ the court’s power of superintendence to rectify the error.”

SUPREME COURT RULES GOVERNMENT MUST OBTAIN WARRANT TO RETRIEVE CELL PHONE TOWER INFORMATION

In Carpenter v. United States (2018),  the U. S. Supreme Court ruled that under the Fourth Amendment, the government must obtain a
warrant supported by probable cause in order to procure from a telecommunication company the historical cell-site location information (CSLI) for a cellular telephone. The background was as
follows. In 2011, police officers investigating a series of robberies applied for court orders under the Stored Communications Act  to obtain historical CSLI for petitioner Carpenter’s cellular telephone. “That statute … permits the Government to compel the disclosure
of certain telecommunications records when it ‘offers specific and articulable facts showing that there are reasonable grounds to believe’ that the records sought ‘are relevant and material to an ongoing criminal investigation.’…. Federal Magistrate Judges issued two orders directing Carpenter’s wireless carriers — MetroPCS and Sprint — to disclose” the requested CSLI for “the four-month period when the string of robberies occurred.” The first order produced cell-site
records from MetroPCS spanning 127 days. The second order produced two days of records from Sprint. “Altogether the Government obtained 12,898 location points cataloging Carpenter’s movements — an average of 101 data points per day.” The CSLI “placed Carpenter’s phone near four of the charged robberies.” “Carpenter was charged with six counts of robbery and an additional six counts of carrying a firearm during a federal crime of violence…. Prior to trial, [he] moved to suppress the cell-site data provided by the wireless carriers. He argued that the Government’s seizure of the records violated the Fourth Amendment because they had been obtained without a warrant supported by probable cause. The District Court denied the motion.”
At Carpenter’s trial, the government presented the CSLI to the jury. “Carpenter was convicted on all but one of the firearm counts.” The Sixth Circuit affirmed the convictions, holding “that Carpenter lacked a reasonable expectation of privacy in the CSLI … because he had
voluntarily shared that information with his wireless carriers.”

Carpenter sought certiorari.   In its decision reversing the judgment of the Sixth Circuit, the Supreme Court held “that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.” The Court noted that cellular telephones “tap into the wireless network several times a minute whenever their signal is on, even if the owner is not using one of
the phone’s features.” In the Court’s view, “the detailed and comprehensive location information obtained from Carpenter’s wireless carriers was the product of a search,” which would be lawful only if it was supported by probable cause. Here, however, “the Government acquired the cell-site records pursuant to a court order issued under the Stored Communications Act’s” standard, which “falls well short of the probable cause required for a warrant.” Because
the government acquired Carpenter’s CSLI without a warrant, the Court remanded the case for further proceedings.

SJC SAYS PRETEXTUAL STOP O.K. IF THERE IS ALSO VALID LEGAL JUSTIFICATION

In Commonwealth v. Buckley (February 14, 20180, the SJC affirmed the lower courts denial of the defendant’s motion to suppress, and “declined to disturb the general rule” set forth in Commonwealth v. Santana(1955), “that a traffic stop constitutes a ‘reasonable’ ‘seizure’ for purposes of art. 14 of the Massachusetts Declaration of Rights where a police officer has observed a traffic violation, notwithstanding the officer’s underlying motive for conducting the stop.”

The facts are as follows. While they were conducting surveillance of an apartment building for possible drug activity, Detectives Bombardier and Campbell “observed a vehicle park nearby, and its two occupants enter the building. Those same two individuals reemerged a few minutes later, returned to the vehicle, and drove away without the vehicle’s headlights on. Bombardier instructed a colleague, Officer
Nelson, to stop the vehicle for suspected drug activity. Nelson did so a few minutes later, upon observing the vehicle traveling twelve miles per hour above the speed limit.”  When the detectives arrived at the scene of the stop, Bombardier “noticed a strong odor of marijuana emanating from inside the vehicle. Bombardier asked the driver if she had any marijuana in the vehicle. She replied that she did not think so, and said that Bombardier could check.

After instructing the driver to step out, Bombardier used his flashlight to search the interior of the driver’s seat area. Finding nothing, he directed Campbell to ask the front seat passenger, the defendant, to leave the vehicle. When the defendant stepped out, Campbell observed what he believed to be a firearm under the front passenger seat. The officers arrested the defendant and the driver…. Another officer later observed a plastic bag on the floor of the cruiser between the defendant’s feet that appeared to contain ‘crack’ cocaine.”

After the return of indictments charging the defendant with possession with intent to distribute cocaine, firearm offenses, and other related offenses, he filed a motion to suppress the items seized during the traffic stop. The judge denied the motion and the defendant was convicted of the lesser included offense of cocaine possession.

In its decision, the SJC rejected the defendant’s argument “that the evidence against him should be suppressed as the product of a pretextual stop, where the officers stopped the vehicle the defendant occupied not because it was speeding, but because the police suspected that its occupants were involved in drug activity.” The Court stated that it would not abandon the Santana “rule, called the authorization approach, under which a traffic stop is reasonable for
art. 14 purposes ‘so long as the police are doing no more than they are legally permitted and objectively authorized to do,’ regardless of the underlying intent or motivations of the officers involved.  Stated differently, under the authorization test, a stop is reasonable under art. 14 as long as there is a legal justification for it.” The Court explained that “evaluating the validity of police conduct on the basis of objective facts and circumstances, without consideration of the subjective motivations underlying that conduct, is justified in part based on the significant evidentiary difficulties such an inquiry into police motives would often entail…. The authorization test avoids [the] often-speculative probing of the police’s ‘true’ motives, while at the same time providing an administrable rule to be applied by both law enforcement in the field as well as reviewing courts…. The bright-line standard of legal justification achieves this by clarifying exactly when the police may conduct a traffic stop: where an officer has observed a traffic violation.”

The SJC also noted the defendant’s concern “that the Santana
authorization test countenances pretextual stops — and more specifically, stops motivated by the race of the driver (i.e., racial profiling). In the defendant’s view, the SJC’s previous attempt to
address the problem of racial bias in traffic stops, has failed to provide a meaningful remedy.”

The Court declined to substantively address the racial profiling issue here, in part because the defendant (an African American male) did not allege that the vehicle in which he was riding was stopped as a result of such profiling. Nonetheless, the Court noted the defendant and a concurring justice “raise considerable, legitimate concerns regarding racial profiling…. We … acknowledge their valid questions regarding the lasting efficacy of [the Lora decision) for addressing the issue of pretextual stops motivated by race, given that in the near-decade since that decision, we are not aware of a single reported case suppressing evidence under its framework. We take this opportunity to encourage lawyers to use the Lora framework in cases where there is reason to believe a traffic stop was the result of racial profiling.”

CONSENT TO SEARCH LIMITED TO INTERIOR AREA OF VEHICLE

In Commonwealth v. Ortiz(February 12, 2018), the SJC affirmed the suppression of firearms seized  by the police from the defendant’s vehicle.  It ruled that the defendant’s “consent to allow the police to search for narcotics or firearms ‘in the vehicle’” did not authorize the “officer to search under the hood of the vehicle and, as part of that search, to remove the vehicle’s air filter.”

These are the basic facts:  Officers Hamel and Boyle stopped the vehicle being driven by the defendant after they heard “excessively loud music” emanating from it. As the officers approached the vehicle, Hamel recognized the defendant and one of his passengers as having previously been involved in criminal activity. In response to Hamel’s request for the defendant’s license and registration, “the defendant presented … a Massachusetts identification card that was not a driver’s license…. Hamel asked the defendant … if there was anything in the vehicle that the police should know about, including narcotics or firearms.  The defendant responded, without hesitation, …, ‘No, you can check.’”

“The officers searched the interior of the vehicle, but found no contraband…. Then, they raised the hood, and a few minutes later, after removing the air filter, Boyle found a black bag that contained two firearms…. At no point did the defendant voice any objection to the search.” “The defendant … was arrested and transported to a police
station” where he “admitted … that the firearms found in the vehicle belonged to him and that he gave consent to the officers to look in his vehicle.” After the return of indictments against the defendant, he filed a motion “to suppress the firearms and the statements he made at the police station.” The judge allowed the motion, finding “that the defendant had given his free and voluntary consent to the search but that, because Hamel had asked the defendant whether he had any narcotics or firearms ‘in the vehicle,’ the scope of the consent was limited to a search for narcotics or firearms in the interior of the vehicle and did not include a search ‘under the hood beneath the air filter.’”

The Commonwealth appealed.  In its decision, the SJC stated, “Under the Fourth Amendment and art. 14 of the Massachusetts  Declaration of Rights, unless it is reasonably clear that the consent to search extends beyond the interior of the vehicle, the police must obtain explicit consent before a vehicular search may extend beneath the hood.”  “ The focus is solely on what a typical reasonable person would understand the scope of the consent to be, based on the words spoken and the context in which they are spoken, not on what a police officer may understand as the places in a vehicle where narcotics or firearms may be hidden.”  Here, the Court noted, “a typical
reasonable person would understand the scope of the defendant’s consent to be limited to a search of the interior of the vehicle, including the trunk.” “The most generous understanding of the defendant’s consent in this case is that it was ambiguous whether it included the engine area under the hood and whether it authorized the police to remove the air filter. But the police are not allowed to take advantage of such ambiguity when they have the ability to resolve it with
clarifying questions.”

SJC RULES THERE IS A CONSTITUTIONAL RIGHT TO OWN STUN GUN

In Ramirez v. Commonwealth(April 17, 2018), the SJC reversed the denial of the defendant’s motion to dismiss a complaint charging him with unlawful possession of a stun gun under Massachusetts gun law statute, because the statute’s “absolute prohibition against civilian possession of stun guns … is in violation of the Second Amendment.”

The facts are as follows. The police vehicle in which the defendant was riding as a passenger was stopped by the police and the subsequent patfrisk of the defendant revealed that he had a stun gun in his pants pocket. The defendant was charged with possession of the stun gun and other offenses. He then filed a motion “to dismiss the stun gun charge, arguing that … the criminal prohibition of the possession of stun guns by civiliansviolates the Second Amendment.” The motion was denied, and the defendant appealed.

The SJC stated that, “having received guidance from the Supreme Court in Caetano II, we now conclude that stun guns are ‘arms’ within the protection of the Second Amendment. Therefore, under the Second Amendment, the possession of stun guns may be regulated, but not absolutely banned. Restrictions may be placed on the categories of persons who may possess them such as felons and the mentally ill, licenses may be required for their possession, and those licensed to possess them may be barred from carrying them in sensitive places, such as schools and government buildings. But the absolute prohibition in §131J that bars all civilians from possessing or carrying stun guns, even in their home, is inconsistent with the Second Amendment and is therefore unconstitutional.”

COMMONWEALTH NOT REQUIRED TO PROVE COERCION FOR CONVICTION OF HUMAN TRAFFICKING

In Commonwealth v. Dabney ( 2018), the SJC affirmed the defendant’s convictions of human trafficking and related offenses. In doing so, the SJC rejected the defendant’s contention “that his actions could not constitute human trafficking because they did not involve force or coercion, and the victim willingly engaged in prostitution.”

The facts are as follows. “Around the time the victim and the defendant started dating, the defendant encouraged the victim to begin prostituting herself…. Shortly after the defendant’s suggestion, the victim began prostituting herself on Pearl Street in Chelsea…. Together, the defendant and the victim determined the prices she would charge for various acts…. The victim gave all the money she earned from these encounters to the defendant…. Subsequently, thedefendant told the victim about a Web site called Backpage that they could use to advertise her services…. They then posted advertisements on Backpage, which included photographs of the victim’s body” taken by the defendant. At some point, the defendant began to act violently towards the victim. On one occasion, he “punched her in the face because she had not given him all of the money she had earned from prostitution.” Other violent episodes ensued, leading to the breakup of the relationship and the arrest and conviction of the defendant. On appeal, he “argued that the Commonwealth did not present sufficient evidence to prove beyond a  reasonable doubt that he was guilty of violating the ‘human trafficking’ or ‘sex trafficking’ statute.”

In its decision, the SJC quoted from the “sex trafficking statute which provides:  ‘Whoever knowingly: (i) subjects, or attempts to subject, or recruits, entices, harbors, transports, provides or obtains by any means … another person to engage in commercial sexual activity …or causes a person to engage in commercial sexual activity … shall be guilty of the crime of trafficking of persons for sexual servitude….’” The Court noted that in Commonwealth v. McGhee, it had “observed that ‘the Legislature has determined that whether a person being trafficked for sexual servitude has been forced or coerced into engaging in such activities is immaterial for purposes of ascertaining whether a criminal act has been committed.’  The court in McGhee explained that use of the word ‘knowingly’ in the statutory language showed that the statute’s ‘clear and deliberate focus … is the intent of the perpetrator, not the means used by the perpetrator to accomplish his or her intent.’.”

Therefore, merely rendering assistance to “a consenting prostitute will still constitute the crime of sex trafficking.”  Here, the SJC said, “the jury could have found that the defendant ‘enticed’ and ‘recruited’ the victim to engage in prostitution” by encouraging her to engage in that activity and by helping her to advertise on Backpage. “Moreover, the plain and ordinary meaning of the actus reus in the human trafficking statute does not, as the defendant contends, necessarily ‘connote some level of inducement, manipulation, or coercion.’ For example, the dictionary definition of ‘entice’ is to ‘incite,’ ‘instigate,’ ‘draw on by arousing hope or desire,’ ‘allure,’ ‘attract,’ ‘draw into evil ways,’ ‘lead astray,’ or ‘tempt.’ …. None of these meanings implies force or coercion.”

SJC RULES POLICE MAY NOT SEARCH DIGITAL CAMERA WITHOUT WARRANT

In Commonwealth v. Mauricio. after appealing the denial of a motion to suppress, the SJC reversed denial of the suppression of images retrieved by the police during a warrantless search of a digital camera that was seized from the defendant. The facts are as follows:  The defendant was arrested as a suspect in a breaking and entering.  After being taken to the police station, the evidence officer, Detective Treacy,  “conducted an inventory search of the defendant’s backpack.  Treacy … turned the camera on and viewed the digital images it contained in the hope of identifying its ‘true’ owner. In doing so, Treacy came across an image of [the defendant] with firearms.” This image was shared with another detective  who “had been investigating a housebreak on Plain Street in Taunton where two firearms and jewelry had been reported stolen. The other detective, suspecting that the firearms in the digital image matched the firearms stolen from the Plain Street residence, contacted the homeowner and showed him a printed photograph of … the digital image…. The homeowner confirmed that the firearms and the other items in the photograph were taken from his home during the break-in.”

I represented the defendant on the trial level.  The defendant was charged with carrying a firearm without a license and receiving stolen property with a value in excess of $250, and I filed two motions to suppress, which were denied. In the first motion, we sought to suppress the physical evidence that was seized from his backpack by the police without a warrant. The judge denied the motion on the ground that “the contents of the backpack would inevitably have been discovered during a later search incident to arrest.” In the second motion, we sought “to suppress the images discovered as the result of the warrantless search of the digital camera.” “The judge denied that motion on the ground that the viewing of the digital images was part of a valid inventory search.”

At trial, the defendant was convicted of both of the charged offenses. “On appeal, he argued that the judge wrongly denied the motion to suppress the images recovered from the warrantless search of the digital camera because,” in the defendant’s view, “the search did not fall within the purview of the search incident to arrest exception to the warrant requirement and exceeded the scope of a valid inventory search.”

In its decision, the SJC agreed with the defendant’s argument, concluding that the search of the digital camera violated art. 14 of the Massachusetts Declaration of Rights. Regarding the search incident to arrest exception to the warrant requirement, the Court applied to this case the reasoning in Riley v. California,  “which foreclosed the application of that exception to cellular telephones,” on the ground that such “a search of digital data serves neither of the two justifications announced in Chimel v. California:   “mitigation of risk of ‘harm to officers and destruction of evidence.’” Moreover, the Court ruled “that the search of the digital camera exceeded the bounds of the inventory search exception to the warrant requirement because it was investigatory in nature.” Having concluded that the images from the digital camera had to be suppressed, the Court vacated the defendant’s conviction of carrying a firearm without a license.

 

EXECUTIVE OFFICE OF PUBLIC SAFETEY AND SECURITY INVESTIGATION FINDS OFFICE OF ALCOHOL TESTING MADE SERIOUS ERRORS OF JUDGMENT

On August 31, 2017, Secretary of Public Safety and Security Daniel J. Bennett directed that the Executive Office of Public Safety and Security (EOPSS) legal staff conduct an investigation into the circumstances under which the Commonwealth had failed to provide
certain documents maintained by the State Police Crime Laboratory’s Office of Alcohol Testing (OAT) to defense counsel in the case of Commonwealth v. Ananias et al., consolidated litigation addressing a variety of challenges to the scientific validity of the Commonwealth’s breath testing program, and particularly the Draeger Alcotest 9510 breath testing instrument.

The report concluded that OAT leadership made serious errors of judgment in its responses to court-ordered discovery;  OAT has had a longstanding and insular institutional culture that was reflexively guarded, which frequently failed to seek out or take advantage of available legal resources, and which was inattentive to the legal obligations of the prosecution; OAT failed to turn over exculpatory information that prosecutors were obligated to provide to the defense as a result of discovery orders issued by Judges Brennan and McManus including:

1.) hundreds of “incomplete” certification worksheets, documentary evidence that breath testing instruments had failed to properly calibrate during OAT’s certification process;

2.) OAT generated records that reflected when breath test instruments were sent to their manufacturer for repair;

3.) internal testing records that would appear to fall squarely into the category of documents that had been ordered to be produced in pending criminal prosecutions.

In most counties, the breath test is not being introduced at OUI trials due to the continuing challenges to the breath test machine after the failure of OAT to provide discovery.

If you have been charged with OUI, call an experienced lawyer at 508-944-3397.

SJC LIMITS POLICE TESTIMONY IN OUI MARIJUANA CASES

One of the means by which the police prosecute Operating Under the Influence charges throughout the United States are field sobriety exercises(also commonly known as field sobriety tests or “FST’s”). These include the one legged stand and the walk and turn.  The FST’s were developed decades ago, and they are only considered to be indicators and not scientific tests that result in a pass or fail.  Nevertheless, police officers in Massachusetts have been allowed to testify that in his/her opinion the operator has “failed” a test.  I routinely object to this kind of testimony, and some judges agree with me and some do not.  

In  a recent decision, Commonwealth v. Gerhardt, the SJC limits the testimony regarding FST’s with respect to Operating Under the Influence of Marijuana.  Police officers may  describe observations of a “driver’s balance, coordination, mental accuity and other skills required to safely operate a motor vehicle…”  However, they are not allwed to testify as to “whether the driver’s performance would have been deemed a ‘pass’ or ‘fail,’ or whether the performance indicated impairment.”

The Court went on to rule that “[b]ecause the effects of marijuana may vary greatly from one individual to another, and those effects are as yet not commonly known, neither a police officer nor a lay witness who has not been qualified as an expert may offer an opinion as to whether a driver was under the influence of marijuana.”

If you are charged with OUI, contact an experienced trial lawyer at the Law Office of Michael J. Brothers at 508-944-3397.