Commonwealth v. Ponte  invlolves an affidavit in support of application for search warrant, and the veracity of confidential informant (CI) referred to in the application.  The Court of Appeals affirmed the lower court’s allowance of the defendant’s motion to suppress. It ruled that “in the circumstances of a controlled buy of drugs, police observation of a confidential  informant entering and exiting a large multi-unit building containing a large number of individual apartments on multiple floors, without more, does not sufficiently corroborate the informant’s veracity” under the Aguilar-Spinelli reliability test.

The basic facts are as follows. Police Detective Barbosa prepared a search warrant application and supporting affidavit seeking permission to search 280 Acushnet Avenue, apartment 2F, in New Bedford.  Barbosa’s affidavit indicated that “the police had received information from an identifiable CI who had personally purchased cocaine from a ‘Joe Ponte’ at apartment 2F in the past…. The affidavit did not contain any information about the CI’s track record…. The CI described the process of purchasing drugs from the defendant as follows…. The defendant would ‘buzz’ the CI into 280 Acushnet Avenue and the CI would take the elevator to the second floor. The CI would got to apartment 2F. The CI would knock and the defendant would open the door.”  Barbosa’s affidavit also indicated that “the defendant’s board of probation records showed twenty-nine adult arraignments, which included narcotics offenses…. The affidavit did not describe the dispositions of any of these offenses. The police arranged a controlled buy using the CI.” “The CI was searched by the police and given money to make the buy. The police watched the CI enter 280 Acushnet Avenue through the front entrance…. The police met with the CI after the buy and retrieved the substance cocaine that the CI said he or she]had purchased from the defendant at apartment 2F.”

On the basis of Barbosa’s affidavit, a search warrant was issued; during the ensuing search “the police seized 109 grams of cocaine …, $3,866 in cash,” drug paraphernalia, and records in the defendant’s name. The defendant filed a motion to suppress the seized items, arguing “that the controlled buy was insufficient [to establish the CI’s veracity,] as the police only saw the [CI] enter and exit the apartment building and did not observe him or her approach or enter apartment 2F.” The motion was allowed and the Commonwealth filed an interlocutory appeal.

The Court of Appelas noted that “the corroborative value of a controlled buy and the adequacy of police supervision of that buy lessens when the number of
apartments in a mult-iunit building increases.” “In buildings containing only a few apartments, a reasonable inference could be made that the CI in fact purchased drugs from the apartment unit in question. However, “‘the police are not required to risk disclosure of their surveillance by observing the apartment in a small …apartment building that an informant … enters in the course of executing a controlled buy.” Therefore, “the inference that the CI purchased the drugs from the target apartment becomes attenuated in the case of a large apartment building…. Here, we do not know how many units were in 280 Acushnet Avenue, nor how feasible it would have been for the police to observe the CI more closely.” It was inferable that the building had “six apartments on each floor (F being the sixth letter in the alphabet) for a total of thirty-six units in the building…. Therefore, more information was needed to determine whether the CI purchased the drugs from the defendant in the target apartment or elsewhere.” An “affidavit must contain sufficient details than were provided with respect to the attendant circumstances surrounding the controlled buy — i.e., the layout of the building, … where the defendant stored the drugs in the apartment, and the feasibility (or unfeasibility) of observing the CI enter a particular apartment (and not another apartment) to conduct the controlled buy — in order to justify a conclusion that the CI in fact purchased drugs from the apartment unit the CI named.” Barbosa’s “affidavit lacked sufficient detail about the supervision of the controlled buy.” “The affidavit was devoid of any indication of the extent to which closer observation of the actual drug purchase in the controlled buy would have been feasible or if, conversely, it could not have occurred without compromising the safety of the officers or the investigation.”


Before a criminal jury trial, the lawyers for the defense and the prosecution are allowed to ask questions of potential jurors to determine whether they have any particular bias that would prohibit them from being fair and impartial in a trial.  Merely asking them if they would be fair and impartial is not sufficient.  It is necessary to ask questions about specific iissues such as burden of proof, racial attitudes, clubs and organizations, etc.  Many of the questions apply to all trials and some are tailored to the specific charges or defendant.

In Commonwealth v. Espinal, in affirming the defendant’s conviction of indecent assault and battery on a child under the age of fourteen, the SJC ruled that in the circumstances of this case, the judge did not abuse his discretion in “denying the defendant’s request that a question be posed collectively to potential jurors about bias toward non-English speakers.” Instead, the Court urged judges to be responsive to such requests in appropriate circumstances in the future.

The basic facts are as follows. The twelve year old complainant alleged that the defendant, her babysitter’s boyfriend, forced her to drink wine and “‘sucked her tongue’ with his mouth.” The complainant told her father about the incident and he testified as the first complaint witness at the defendant’s trial. “Throughout trial, the defendant required the use of a Spanish-speaking interpreter. Before trial, the defendant submitted a written request that” the judge ask the venire, “‘Do you have any problem with a defendant that requires the services of a Spanish-speaking interpreter?’” Defense counsel stated that the reason for the request was “concern about racial bias, or some sort of ethnic bias. There’s a lot of people that believe that if you’re in this country and you don’t speak English, that you’ve done something wrong, period.” Upon inquiry by the judge, defense counsel indicated that the defendant and the complainant had a common ethnicity (Hispanic). The judge then denied the defendant’s request. On appeal, the defendant challenged the judge’s refusal to pose the requested question to the venire.

In its decision, the SJC stated, “The record on appeal contains a significant number of studies that indicate disparities in rates of conviction and the severity of sentences imposed between defendants who used interpreters and those who did not. Given these disparities, we recognize the importance, in appropriate circumstances, of questioning the venire, at least collectively, concerning language-related bias.” The Court noted, however, that “the surveys and studies that the defendant proffers on appeal were not before the trial judge. Nor did the defendant draw the judge’s attention to any cases that recognized language-related bias…. Rather, counsel relied on her assertion that” many people “‘believe that if … you don’t speak English, … you’ve done something wrong….’ A defendant’s ‘bare allegation’ that there exists a ‘widespread belief’ that could result in bias is not sufficient to cause us to conclude that the judge abused his discretion by declining to conduct voir dire on the issue. Going forward, however, we anticipate that where a defendant is entitled to the services of a translator because of an inability to speak English, the judge will, on request, ordinarily pose a question to the venire regarding language-related bias.”



In Nieves v. Bartlett, the United States Supreme Court ruled, in the context of a civil suit pursuant to Civil Rights Statute 42 U.S.C.§1983, that “probable cause to make an arrest defeats a claim that the arrest was in retaliation for speech protected by the First Amendment.” The facts are as follows. “Respondent Russell Bartlett sued petitioners — Sergeant Nieves and Trooper Weight — alleging that they retaliated against him for his protected First Amendment speech by arresting him for disorderly conduct and resisting arrest.” “Bartlett was arrested police during ‘Arctic Man,’ a weeklong winter sports festival held in” Alaska and “known for both extreme sports and extreme alcohol consumption.” Officer Nieves was the first of the officers to encounter Bartlett. “Nieves was asking some partygoers to move their beer keg inside their RV…. According to Nieves, Bartlett began belligerently yelling to the RV owners that they should not speak with the police….Bartlett was highly intoxicated and yelled at Officer Nieves to leave….Several minutes later, Bartlett saw Trooper Weight asking a minor whether he and his underage friends had been drinking.

According to Weight, Bartlett approached in an aggressive manner, stood between Weight and the teenager, and yelled with slurred speech that Weight should not speak with the minor.  Weight claims that Bartlett then stepped very close to him in a combative way, so  weight pushed him back. Sergeant Nieves saw the confrontation and rushed over, arriving right after Weight pushed Bartlett. Nieves immediately initiated an arrest, and when Bartlett was slow to comply with his orders, the officers forced him to the ground.” Bartlett was charged with disorderly conduct and resisting arrest, but the prosecution dismissed the charges. “Bartlett then sued the officers under 42 U.S.C. §1983, which provides a cause of action for state deprivations of federal rights…. He claimed that the officers violated his First Amendment rights by arresting him in retaliation for his speech. The protected speech, according to Bartlett, was his refusal to speak with Nieves earlier in the evening and his intervention in Weight’s discussion with the underage partygoer. The officers responded that they arrested Bartlett because he interfered with an investigation and initiated a physical confrontation with Weight. The Federal District Court granted summary judgment for the officers…. The Ninth Circuit disagreed” and the officers appealed to the United States Supreme Court.

In its decision affirming the grant of summary judgment for the officers, the Supreme Court found that Bartlett’s “retaliatory arrest claim fails as a matter of law” “because there was probable cause to arrest him.” The Court noted that “‘as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions’ for engaging in protected speech.  If an official takes adverse action against someone based on that forbidden motive, and ‘non-retaliatory grounds are in fact
insufficient to provoke the adverse consequences,’ the injured person may generally seek relief by bringing a First Amendment claim. …. To prevail on such a claim, a plaintiff must establish a ‘causal connection’ between the government defendant’s ‘retaliatory animus’ and the plaintiff’s ‘subsequent injury.’   It is not enough to show that an official acted with a retaliatory motive and that the plaintiff was injured — the motive must cause the injury.
Specifically, it must be a ‘but-for’ cause, meaning that the adverse action against the plaintiff would not have been taken absent the retaliatory motive.” “‘Establishing the
existence of probable cause will suggest that [an arrest] would have occurred even without a retaliatory motive.’” “In light of the foregoing,” the Court decided that “Bartlett’s retaliation claim cannot survive summary judgment.” The reason is that because Bartlett’s allegedly belligerent behavior gave the officers probable cause to arrest him, this negated  his argument that the officers acted solely in retaliation for his exercise of his First Amendment rights.


In Commonwealth v. Javier (2019), the defendant was tried and convicted of first degree murder, the SJC ruled that the judge did not abuse her discretion in permitting a crucial prosecution witness to sit at the prosecution‟s table throughout the trial. The facts are as follows. The victim “was shot and killed while he was sitting in his parked Dodge Caravan minivan.” “The Commonwealth‟s theory at trial was that the defendant and several friends planned and carried out the shooting in retaliation for a fight in which the victim” injured the defendant. “The shooting and the events immediately  preceding it were video recorded by … surveillance cameras…. The surveillance footage showed the victim‟s Dodge Caravan” arriving and parking at the crime scene. Twenty seconds later, another minivan came into view and stopped across the street from the Dodge Caravan. Four people got out of the second minivan and walked across the street toward the …Dodge Caravan.” In the video footage, the Dodge Caravan then “lurched forward” as “the four individuals ran from the scene.” In response to a 911 call made at that time, the police arrived at the scene and found the victim in the Dodge Caravan; he had been fatally shot.

In preparation for the defendant‟s trial, State police Trooper Ulrich participated in the production of a videotape suggesting that the vehicle in which the four perpetrators arrived at the crime scene could have been the minivan owned by the mother of the defendant‟s girlfriend. Ulrich testified about his role in producing the video and also gave the jury an overview of the rest of the Commonwealth‟s case against the defendant. Although Ulrich was the last prosecution witness to take the stand, the judge had permitted him, over the defendant‟s objection, to sit at the prosecutor‟s table throughout the trial. On appeal, “the defendant contended that the judge should not have allowed Ulrich to” do that, as he was “an important witness for the Commonwealth and summed up essentially all of the Commonwealth‟s other evidence…. Specifically, the defendant noted a concern „that this jury, which ultimately has to pass on what Ulrich says, can develop … a sense of him in the courtroom every day actively assisting, and it changes the dynamic of him as a traditional witness.‟”

In its decision, the SJC stated that “in challenging such a seating arrangement as was permitted here, … „the defendant cannot rest upon a bare allegation that this police officer had a “cloak of credibility” which was accentuated by his presence at counsel table as a sufficient basis to overturn the defendant‟s conviction.‟  The judge here concluded that Trooper Ulrich‟s assistance was essential to the management of the case…. The judge also attempted to combat any perceived „cloak of credibility‟ by asking potential jurors during voir dire whether they would credit the testimony of police witnesses more than the testimony of civilians simply because they were police officers. In light of this, we
cannot say that the judge abused her discretion in allowing Ulrich to be seated at the prosecution table.” The Court “emphasized, however, that the Commonwealth should proceed with caution in selecting a crucial witness to sit at counsel table and to help manage the case, prior to his testimony as the last of the Commonwealth‟s witnesses…. Particularly where the lead prosecutor is assisted by a second chair, the Commonwealth should consider whether that attorney, or another member of the prosecution team who will not be a witness, could assist with case management.”

Here, the SJC certainly got it wrong, and this decision should be appealed.  At a jury trial, no witness should be given more credibility by a juror than any other witness.  Furthermore, no side can claim a witness as their own.   The trooper was as much a defense witness as a prosecution witness, since his role was to present the facts truthfully.  During the trial, credibility(or lack of credibility) of a witness is established through the witnesses testimony in relation to the evidence presented.  In this case, the officer (who has an interest in the outcome of the case) while seated at counsel table was no longer a witness but a part of the prosecution team, giving an unfair boost to his credibility.


In Commonwealth v. Hernandez the Supreme Judicial Court of Massachusetts (SJC) decided it will no longer follow  “the common-law doctrine of abatement ab initio, whereby, as was the case here, a criminal conviction is vacated and the indictment is dismissed after the defendant dies while his direct appeal as of right challenging that conviction
is in process.”

In this high profile case, the defendant was convicted of first degree murder. Two years later, he “died while awaiting assembly of the record for his appeal. The defendant’s appellate counsel filed a suggestion of death and motion to abate in the trial court, requesting that the judge dismiss the defendant’s appeal, vacate his convictions, and dismiss the underlying indictments.”

The Superior Court judge allowed the motion and the Commonwealth appealed the decision.  The SJC reversed the judge’s ruling, and “concluded that the doctrine of abatement, ab initio is outdated and no longer consonant with the circumstances of contemporary life, if, in fact, it ever was. Rather, when a defendant dies irrespective of cause, while his direct appeal …is pending, the proper course is to dismiss the appeal as moot and note in the trial court record that the conviction removed the defendant’s presumption of innocence, but that the conviction was appealed and neither affirmed nor reversed because the defendant died.” The Court noted “the two reasons advanced in favor of abatement ab initio”: (1) “that a conviction should not stand until a defendant has had the opportunity to pursue” an appeal, and (2) “‘that the criminal justice system exists primarily to punish and cannot effectively punish one who has died.’”  The Court’s view is that these principles do not justify preserving the abatement ab initio in Massachusetts. The Court stated that “the doctrine has not been a long-standing or historic staple of Massachusetts common law.”

Although “the Federal courts apply the doctrine … as of right when a defendant dies during the pendency of an appeal,” only “eighteen States and the District of Columbia apply the doctrine.” “Many other jurisdictions have … in recent years rejected the doctrine and followed alternative approaches.” “Some have opted to allow the appeal to proceed, although most limit the issues that can be considered. Others have opted not to allow the appeal to proceed and … the underlying conviction and any related fines and restitution orders remain fully or partially intact. Still others follow an approach whereby … the appeal can continue if a motion to substitute a new party is made either by a representative of the defendant’s estate, the defendant’s attorney of record, the State, or another party and, in the absence of such a motion, either the appeal is dismissed and the conviction stands or the appeal, conviction, and indictment are abated. The Commonwealth urges us to adopt this ‘substitution’ approach or, in the alternative, the so-called ‘Alabama rule,’ which provides that, when an appellate court abates an appeal upon the death of the defendant, … it ‘shall instruct the trial court to place in the record a notation stating that the fact of the defendant’s conviction removed the presumption of the defendant’s innocence, but that the conviction was appealed and it was neither affirmed nor reversed on appeal because the defendant died while the appeal of the conviction was pending and the appeal was dismissed.’” In “rejecting the substitution approach advocated by the Commonwealth,” the Court reasoned that “beyond the State as the   representative of society, and, to the extent permitted, the victim, we do not see that there are any other surviving interests that are rightly pursued within the context of a criminal prosecution.” The Court noted that “under our approach, a convicted defendant is not denied any appellate rights, and especially is not deprived of such rights in a discriminatory manner.

In this case the defendant’s “appeal and the criminal prosecution of which it is a part come to an end for the simple reason that, by whatever cause, he died. The record will accurately reflect the case as it was at the time of death; it will reflect the status quo.”



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.


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.”


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.


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.”


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.”