Articles Posted in Search and Seizure

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questions-1151886-300x225In Commonwealth v. D.M., the Supreme Judicial Court 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 background was 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 hearing on the motion to suppress 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…. [T]he 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.’ [Commonwealthv. Bonnett, 472 Mass. 827,] 847 [2015], quoting Commonwealthv. Dias, 451 Mass. 463, 468 (2008). The Commonwealth thereafter filed a G.L. c.211, §3 petition …, seeking reversal of the interlocutory ruling…. The single justice denied the petition, and the Commonwealth appeal[ed].” Continue reading →

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what-s-that-1527433-300x264In Commonwealth v. Monteiro, the Appeals Court reversed the suppression of items seized by the police from the defendant’s apartment because the judge erroneously ruled that “the information provided by a first-time, confidential police informant (CI) was [not] sufficiently corroborated by a single, imperfectly executed controlled ‘buy’ of cocaine for the purposes of establishing probable cause [in the affidavit in support of an application for] a warrant to search the defendant’s apartment.”

The basic facts were as follows. A police detective (Gracia) spoke with a first-time CI, who reported that he regularly purchased cocaine from the defendant. Gracia and the CI met “to arrange a controlled buy of cocaine from the defendant. The CI was searched and determined to be free of contraband and money…. Gracia then gave the CI money to purchase cocaine from the defendant…. Gracia and other [officers] maintained surveillance of the CI. They observed the CI walking toward the rear exterior door of the defendant’s apartment building. A short time later, the CI was seen leaving the walkway [outside of] the rear exterior door. The defendant was not observed entering or exiting the apartment building through the rear exterior door. The CI was kept under surveillance until [he] met … Gracia at a predetermined location where the CI provided … Gracia with a quantity of what” was later determined to be cocaine. “The CI stated that [he] purchased the cocaine from the defendant inside [the latter’s] first-floor apartment. The CI was again searched and determined to be free of money and contraband.” Based on the controlled buy, Gracia procured a warrant to search the defendant’s apartment. During the search, the police found drugs and drug paraphernalia, which led to the return of an indictment charging the defendant with trafficking in cocaine. The defendant filed a motion to suppress the seized items on the basis that the police affidavit in support of the application for a warrant did not establish probable cause. The judge allowed the motion, on the ground that under the AguilarSpinelli test, the affidavit failed to establish the CI’s veracity. The Commonwealth appealed. Continue reading →

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cell-phone-tower-3-1236272In a recent decision – Carpenter v. United States – the United States 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 [18 U.S.C. §2703(d)] 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. Continue reading →

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orange-honda-motorcycle-1-1479792-300x229In Collins v. Virginia, the U. S. Supreme Court ruled that “the automobile exception [to the Fourth Amendment’s warrant requirement] does not permit [a police] officer without a warrant to enter a home or its curtilage in order to search a vehicle therein.”

The background was as follows. An officer “saw the driver of an orange and black motorcycle with an extended frame commit a traffic infraction. The driver eluded … [the officer’s] attempt to stop the motorcycle.” Subsequently, the police “learned that the motorcycle likely was stolen and in the possession of petitioner … Collins. After discovering photographs on Collins’ Facebook profile that featured an orange and black motorcycle parked at the top of the driveway of a house, Officer Rhodes tracked down the address of the house, drove there, and parked on the street.” From his cruiser, “Rhodes saw what appeared to be a motorcycle with an extended frame covered with a white tarp.” Although Rhodes did not have a warrant, he “walked onto the residential property and up to the top of the driveway to where the motorcycle was parked. In order ‘to investigate further,’ … [he] pulled off the tarp, revealing a motorcycle that looked like the one from the speeding incident…. Rhodes … returned to his car to wait for Collins. Shortly thereafter, Collins” entered the house. Rhodes knocked on the front door of the house and Collins answered. During the ensuing conversation, Collins “admitted that the motorcycle was his and that he had bought it without title…. Rhodes then arrested Collins.” After the return of an indictment charging Collins with receiving stolen property, he filed a motion to suppress “the evidence that … Rhodes had obtained as a result of the warrantless search of the motorcycle. Collins argued that … Rhodes had trespassed on the curtilage of the house to conduct an investigation in violation of the Fourth Amendment.” The judge denied the motion and Collins was convicted. On appeal, the Supreme Court of Virginia ruled that the denial of the motion to suppress was proper under the automobile exception to the warrant requirement. Collins sought certiorari. Continue reading →

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3d-illustration-a-group-of-trunks-1412102-300x225In Commonwealth v. Hernandez, the Appeals Court affirmed the denial of the defendant’s motion to suppress a firearm seized by the police in the defendant’s apartment.  In its decision, the Appeals Court ruled that “the defendant’s coinhabitant … validly consent[ed] to a warrantless search of a closed, unlocked suitcase located in a common closet of a bedroom she shared with the defendant.”

The basic facts were as follows. A police officer (Stilwell) “responded to a call [regarding] a domestic threat at the defendant’s apartment, and was met by Flor Prudencio, the victim. Prudencio shared the one-bedroom apartment with the defendant and their three children…. Prudencio reported that approximately three weeks earlier, she and the defendant had had an argument about the custody of the children. During the argument, the defendant told Prudencio that ‘if he wasn’t able to see the children … he would shoot her and kill her.’ Prudencio went on to tell the officer that she was concerned because the defendant had access to a firearm. Prudencio then brought the officer into the apartment’s only bedroom, which she shared with the defendant and the children. The bedroom had … a single closet. Prudencio opened the closet door. Inside were men’s and women’s clothes, bags on the floor, and children’s items; some of the items were Prudencio’s…. Prudencio pointed to a suitcase on the top shelf of the closet, about five feet up; she stated that the defendant’s firearm was located in the suitcase…. Stilwell pulled the suitcase down…. [It] did not have a locking mechanism” and “[i]t did not have a name or tag on it…. Stilwell opened the suitcase in Prudencio’s presence. Prudencio stated that the firearm was inside a red ‘Huggies’ container within the suitcase. Inside the Huggies container … Stilwell found a loaded revolver and a ‘baggie’ of ammunition. He confiscated the weapon…. Prior to opening the suitcase, … Stilwell did not ask Prudencio to whom the suitcase belonged, nor did Prudencio state whose suitcase it was.” After the issuance of a criminal complaint charging the defendant with firearm offenses and a related offense, he filed a motion to suppress the revolver. The motion was denied. At the ensuing trial, the defendant was convicted on all charges. On appeal, he “acknowledge[d] that Prudencio actually consented orally and, moreover, that she had authority, as the defendant’s coinhabitant, to consent to a search of the apartment and of the closet. But he contend[ed] … that Prudencio’s authority did not extend to the closed, unlocked suitcase.”  Continue reading →

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glasgow-police-1241195-300x233In Commonwealth v. Rivers, the Appeals Court ordered suppression of the defendant’s inculpatory statements to the police because they were induced by improper promises of leniency and, therefore, were not shown to be voluntary beyond a reasonable doubt.

The background was as follows. The defendant was involved in “[a] group altercation outside a party on Martha’s Vineyard,” during which the defendant and two friends struck the victim. The victim and the defendant lived in the same neighborhood; the victim often saw the defendant and one of the other alleged attackers “around town.” Detective Morse discussed the case with Officer Johnson and “directed Johnson to contact the defendant and ask him to come to the police station for an interview.” “Morse chose Johnson to contact the defendant based at least in part on the fact that the two had grown up together on the island.” Johnson telephoned the defendant and advised him “that the police were interested in him as an involved party in the case and that it was the police understanding that he committed a simple assault. Johnson went on to advise the defendant that if he came forward and gave a detailed account, he would be ‘very highly likely to avoid being charged with a felony.’” The defendant was later interviewed by Morse at the police station and made inculpatory statements that led to the return of indictments charging him with two felonies (aggravated assault and battery and assault and battery by means of a dangerous weapon). The defendant then filed a motion to suppress his statements on the ground that they “were involuntary because they were products of improper police-initiated promises of leniency and assurances that his statements would aid in his defense.” The motion was denied. Continue reading →

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bike-on-a-rack-1468792-300x225In a recent decision – Commonwealth v. Harris – the Appeals Court reversed the denial of the defendant’s motion to suppress a firearm seized by the police because the police lacked reasonable suspicion justifying the stop of the defendant.

The basic facts were as follows. On the afternoon in question, three Northeastern University police officers “heard a radio broadcast stating, ‘two black males in their early 20’s, one wearing a black hoody, and the other wearing a gray hoody, possibly with a third person, casing the bike racks by Snell [L]ibrary’ at the university. This information was initially provided by a security officer employed by the university, who was stationed by the bicycle racks because the area was a high-crime area for bicycle theft…. [T]wenty minutes after the broadcast,” the police “saw two men fitting the broadcast description, along with a female” walking together “from the direction of the library. The three people in the group were the defendant,” another man (Ferguson-Boone), and a woman (Wade-Joseph). The defendant and Ferguson-Boone were in possession of bicycles. The officers approached and “stated to the group that there had been a number of bicycle thefts in the area, and asked where the group was coming from. The companions responded that they had eaten at [a certain] restaurant in the campus food court; at least one of the group was carrying a container from that restaurant…. [T]hree separate conversations ensued,” in each of which an officer spoke to one of the three companions. “The officers asked [the two men] whether [they] had stolen the bicycles [in their possession], and they responded that they had not. [The defendant’s interviewer] asked the defendant if he had previously had issues with the police, and he responded by raising his pant leg, revealing a GPS-monitored ankle bracelet. [That officer] then asked the defendant for identification, and the other two officers followed suit, asking for identification from Ferguson-Boone and Wade-Joseph. The defendant did not produce identification, but did orally provide his name, date of birth and address,” which his interviewer then called in to “to police dispatch, in order to conduct a criminal history and warrant check. Ferguson-Boone provided some form of identification card, which [his interviewer] took and held…. Wade-Joseph produced her university student identification card…. As [the defendant’s interviewer] was calling in the defendant’s information, [another officer] observed the defendant make a movement to his left side, causing his sweatshirt to ride up and expose a knife clipped inside of his waistband.” The police seized the knife and commenced a pat frisk of the defendant, whereupon he fled. “While fleeing, the defendant dropped [a] firearm.” He was later apprehended and charged with illegal possession of a firearm and related offenses. He filed a motion to suppress the firearm, contending that the police lacked reasonable suspicion to stop him. The motion was denied. The defendant was convicted of firearm offenses.   Continue reading →

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cell-phone-tower-3-1236272-225x300The Appeals Court recently issued a decision, Commonwealth v. Fredericq, relating to the cell site location information (CSLI). In its decision, the Court reversed in part and affirmed in part the trial court judge’s order suppressing evidence procured by the police by means of their warrantless tracking of CSLI data regarding the defendant’s cell phone.

The basic facts were as follows. A homicide investigation led to the return of a murder indictment against a man named Dorisca. In the course of looking for Dorisca, the police acquired information that his best friend (Cassio) and other men, including the defendant, were driving to Florida in a Toyota SUV to purchase drugs. In addition, the police acquired Cassio’s cellular telephone number. Believing that Dorisca might be travelling with Cassio and the others in the Toyota in order “to hide out in Florida,” the police “obtained an order pursuant to 18 U.S.C. §2703(d) … requiring the cellular telephone carrier to provide the records and the so-called ‘running location’ [CSLI] of [Cassio’s] telephone, going forward, to assist in finding Dorisca and to investigate Cassio…. The carrier ‘pinged’ the telephone at fifteen-minute intervals.” Each “ping” caused the telephone to communicate with the nearest cell tower, thus enabling the carrier to track the movements of the phone and relay that information to the police. In this manner, the police tracked the Toyota for six days, in the course of which it travelled to Florida and back to 220-222 Howard Street in Brockton. In addition to enabling the tracking of the Toyota, the information provided by the carrier indicated “that the defendant … was the subscriber of the cellular telephone that Cassio was … using” and that the billing address for his account was 220-222 Howard Street. The police went to that address, a multi-unit apartment building, “to look for Dorisca, to find and speak to the defendant, and to investigate the possible drug connection to the property.” The officers made their way to the attic of the building where there were several doors to private spaces, as well as an open crawl space. The defendant responded to the officers’ knocking on one of the doors. The defendant told the officers that he resided in that room. After the officers informed the defendant that they had tracked the phone for which he was the subscriber to Florida and back by means of the device’s CSLI, the defendant acknowledged his participation in the trip to Florida. He denied having any drugs in his room and gave the officers his consent to search the room. The officers found $2,200 in a cupboard. Later, they found two kilograms of cocaine in the crawl space. After the return of an indictment charging the defendant with trafficking in cocaine, he moved to suppress the drugs and money seized by the police, as well as his statements to the officers. The judge allowed the motion and the Commonwealth appealed on the ground “that the defendant [did] not have standing to challenge the search of the cellular telephone.” Continue reading →

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speedway-1198194-300x199In Commonwealth v. Manha, the Supreme Judicial Court affirmed the defendant’s conviction of assault with a dangerous weapon. The SJC specifically ruled that the judge properly denied the defendant’s motion to suppress evidence seized by the police after stopping the defendant’s vehicle pursuant to a 911 call from a motorist reporting a road rage incident.

The basic facts were as follows. “According to the 911 caller, an individual in another motor vehicle had pointed a gun at her as she traveled southbound on Route 93 in Boston. She described the gunman as a white male in his forties who was wearing glasses. She further provided a description of his vehicle, a gray Jeep Cherokee, along with its registration number, location, and direction of travel. Based on this information,” which was disseminated by radio, a state trooper located the Jeep and stopped it. Other troopers arrived at the scene and the defendant was removed from the vehicle. “A patfrisk of [his] person revealed no weapons.” The police then performed a protective sweep of the interior of the Jeep, in the course of which they found a black case. Upon opening the case, they discovered “a pellet gun in the shape of a hand gun.” After the return of the indictment against the defendant, he filed a motion to suppress the pellet gun, claiming “that the police lacked probable cause to stop him.”

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police-car-1515955-300x225The Supreme Judicial Court recently issued a decision – Commonwealth v. Buckley – in which it “decline[d] to disturb [the] general rule” set forth in Commonwealth v. Santana, 420 Mass. 205 (1995), “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 Court did, however, recognize the defendant’s concern that Santana fails to protect against pretextual stops based on race, i.e., racial profiling.

The basic facts were as follows. In the course of 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. Continue reading →