Articles Posted in Search and Seizure

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jewelery-in-a-store-window-1427243-300x200In Commonwealth v. Carlson, the Appeals Court reversed the defendant’s conviction because the judge erred in denying the defendant’s motion to suppress evidence of “the single-photograph identification procedure [employed by the police, which] violated the defendant’s rights under art. 12 of the Massachusetts Declaration of Rights.”

The background was as follows. “Pauline and Emile Daigle, a couple in their seventies, hired a professional moving company to move from their single-family home … to a condominium unit.” The day after the move, “Pauline Daigle reported to [the] police that seventeen pieces of jewelry valued at approximately $30,000 were missing; only empty boxes remained in the dresser drawers where she had stored the jewelry.” The police investigator (Detective Hall) “learned that two moving men had handled the move: [a man named] Norton and the defendant…. Norton told Hall that the defendant had been alone in the … bedroom [of the victims’ old house] where the jewelry had been stored and also when he (the defendant) had unpacked the bedroom dresser drawers at the end of the move in [the victims’ new residence]. Norton also said that when he gave the defendant a ride home after the move, the defendant asked to be dropped off instead at a [certain] pawn shop…. This request struck Norton as odd” because “the pawn shop was only two doors away from the defendant’s home.” Hall went “to the pawn shop, where he spoke with its owner, Euidong Do, and asked whether anyone had come into the store on the day of the move in order to pawn or sell anything. Do said that a man, with whom Do had previously dealt at a different store, had come in to the shop around 3:00 P.M. wanting to sell jewelry…. Do only agreed to hold the jewelry as collateral for a three-week loan, i.e., the jewelry was pawned. Do asked whether Hall had a picture of the suspect. Hall produced a photograph of the defendant and showed it to Do. At that point, Do positively identified the defendant as the person who had come into the shop and pawned jewelry on the day of the move. Do then gave Hall an envelope containing the pawned jewelry. Hall took the jewelry and later showed it to Pauline Daigle, who identified the pieces as among those taken during the move. After the return of the indictment charging the defendant with larceny over $250, he moved “to suppress Do’s identification, which was made as a result of the single-photograph display conducted two days after the theft and in response to Do’s request to see a photo of the ‘suspect.’” The judge denied the motion. Do’s “identification was an important part of the evidence at the defendant’s jury trial, which resulted in his conviction.” Continue reading →

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bedroom-bliss-no-3-1542621-300x225The Appeals Court recently reversed the suppression of a statement made by the defendant to the police upon his arrest in Commonwealth v. Barbosa.

The basic facts were as follows: in the course of an investigation of “trafficking of persons for sexual servitude, G.L. c.265, §50,” the police dialed a telephone number at a hotel, which was listed in “an illicit online advertisement.” A woman answered the phone and told the caller to come to room 540 at the hotel. Officers proceeded to room 540, where they conversed with the woman. She “became very agitated” “[u]pon learning that she was speaking with law enforcement officers.” “She told the officers, ‘You guys can’t be here. He’s coming.’…. [One of the officers] noticed that the woman had a telephone in her hand that was continuously ringing.” That officer contacted Detective Bartkiewicz, who was elsewhere on the fifth floor of the hotel, and told him “that the defendant, who was the target of the investigation, was heading upstairs…. Bartkiewicz observed the defendant … step out of the elevator” and walk toward room 540. “After the defendant walked past him, … Bartkiewicz stated that he was a police officer and asked to speak with the defendant. The defendant, who was eight to ten feet from room 540” at that point, “‘pushed Bartkiewicz out of his way, and started to run back toward the elevators.’” The defendant was subdued and handcuffed by other officers. “‘Bartkiewicz informed [the defendant] of his Miranda rights’” and then “‘patted [the defendant] down and searched his pockets. [Bartkiewicz] found and removed a hotel room key, a knife,’” and other items. He “‘asked [the defendant] what room the key was for. [The defendant] said it was Room 540.’” In response to the defendant’s motion to suppress, “[t]he judge ruled that … Bartkiewicz … properly searched [the defendant] for weapons incident to [his] arrest [for assault and battery on a police officer], and ‘acted lawfully in … removing the knife from his pocket.’ The judge concluded that the room key would have properly and inevitably been seized under an inventory search at booking and, thus, should not be suppressed…. However, the judge, sua sponte, suppressed the defendant’s statement that the room key found in his pocket was for room 540. The judge concluded that … Bartkiewicz ‘was not entitled to inspect the hotel key … as a search incident to arrest’ and, in violation of G.L. c.276, §1, improperly used the room key ‘for an investigatory purpose, i.e., asking [the defendant] what room it went to.’” In the ensuing interlocutory appeal, “[t]he Commonwealth argue[d] that the judge erred in suppressing the defendant’s statement because the initial discovery of the room key attended a proper search incident to arrest for the crime of assault and battery on a police officer, and the room key had immediate evidentiary significance vis-à-vis the crime of human trafficking, which the officers were then investigating.” Continue reading →

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cocaine-stripes-1194923-300x225The Supreme Judicial Court recently issued a decision in Commonwealth v. Holley, affirming the first degree murder convictions of defendants Holley and Pritchett despite (1) the lack of particularity in the warrant pursuant to which the police procured the defendants’ text messages from their cellular telephone service provider; and (2) the judge’s failure to instruct properly on the joint venture exception to the hearsay rule.

The background was as follows. The victim was shot in his apartment building as he was preparing to sell drugs to Holley. There was evidence that on the morning of the shooting, Holley and the victim exchanged text messages confirming the impending transaction, and that the defendants then exchanged messages coordinating their plans to converge on the victim’s residence. Video surveillance footage from the entryway of the victim’s “building showed two young, African-American males [resembling the defendants] enter[ing] the building at [around the time of the shooting] and running out of the building three minutes later. “Prior to trial, both defendants … sought to suppress the text messages obtained from” their telephone service provider (MetroPCS). The judge denied the motions. On appeal, the defendants challenged that ruling, “contend[ing] that the warrants to obtain those records … were lacking particularity.” Continue reading →

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office-tools-2-1517697-300x225In In the Matter of a Grand Jury Investigation, the Appeals Court affirmed the trial judge’s order directing the petitioner to enter his personal identifying number (PIN) access code into his Apple iPhone, and the subsequent judgment of contempt that the trial judge imposed on the petitioner for refusing to comply with the order.

The background was as follows. In connection with a criminal investigation, the police procured a warrant authorizing a search of the contents of the petitioner’s iPhone. In order to enable the police to conduct the search, a “grand jury requested that an assistant district attorney seek” a judicial “order that the petitioner produce the PIN code and any other electronic key or password required for the iPhone.” The Commonwealth moved for such an order. “The motion, the proposed order, and two additional documents were filed in [the Superior Court] under seal…. One of the additional documents was a statement showing the petitioner’s ownership and control of the iPhone and the Commonwealth’s knowledge thereof…. After a hearing, … the Commonwealth’s motion was allowed, and an order entered detailing the protocol by which the petitioner would enter the PIN code so that the search warrant could be executed…. When the petitioner refused to comply with the order,” he “was adjudicated in civil contempt…. This appeal followed.” Continue reading →

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mobile-in-hand-1239462-300x200In Commonwealth v. Morin, the Supreme Judicial Court ruled that the defendant was entitled to a new trial on the indictment charging him with first degree murder, because his trial counsel was ineffective for failing to move to suppress the fruits of the search of the defendant’s cellular telephone by the police.

The background was as follows. “[T]he Commonwealth’s theory was that the defendant, along with his codefendant … and two unknown accomplices, robbed the victim of drugs and money, and that the killing occurred in connection with the robbery.” There was evidence that in the days immediately preceding the date of the killing, “the defendant attempted to recruit some people [including a friend named Matteson] to help him rob the victim.” “The defendant told Matteson that the robbery would take place at an apartment owned by the codefendant. The codefendant would use the promise of a drug deal to lure [the victim] to the apartment…. The codefendant would leave the back door open, so that the defendant, Matteson, and others could enter. They would ‘run in, grab the stuff [drugs and money], and leave.’…. Matteson did not agree to participate at that point, and the defendant told him to think about it.” Two days after the killing, the defendant “told Matteson to ‘get the battery out of [Matteson’s cellular telephone], so that no one can hear the conversation.’ The defendant said that if the police asked Matteson where he had been in the evening of November 3, 2009 [the time of the killing], he was to say that he had been with the defendant at a restaurant.” In the course of the investigation of the crime, the police seized the defendant’s cellular telephone and procured a warrant to search its contents. The inculpatory fruits of the search were presented to the jury at the defendant’s trial. In a motion for a new trial, the defendant argued that the warrant authorizing the search of his telephone was not supported by probable cause to believe that the device would contain evidence of the crime and, therefore, that trial counsel was ineffective for failing to file a motion to suppress the fruits of the search. The judge denied the motion on the ground that the search warrant affidavit did establish the requisite probable cause. Continue reading →

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high-altitude-route-map-1312429-300x169The Appeals Court recently issued a decision in Commonwealth v. Luna reversing the trial court’s denial of the defendant’s motion to suppress items seized during the warrantless search of his vehicle. The reversal was based on the ground that “the Springfield police exceeded their territorial jurisdiction” by conducting the search in Chicopee.

The basic facts were as follows. A Springfield police officer (Bruno) was told by a confidential informant that the defendant would make a delivery of heroin in East Springfield at a specified place and time. “According to the informant, [the defendant] would be driving a black Mini Cooper automobile, and the informant provided the license plate number.” The police possessed information that the defendant had residences at the Toll House Apartments in West Springfield and at 122 Beauregard Terrace in Chicopee. Two hours before the time of the predicted drug delivery, “surveillance officers observed the defendant … leave the Toll House Apartments, place two large plastic containers in the back seat of the Mini Cooper, and drive it to 122 Beauregard Terrace in Chicopee. There, the defendant approached a red Honda automobile parked at the end of the driveway, opened the trunk with a key, and retrieved a black plastic bag the size of a softball. He then reentered the Mini Cooper and drove in the direction of East Springfield. The police followed in unmarked vehicles. When the Mini Cooper was within approximately two miles of the [location of the anticipated transaction], the defendant began driving in an erratic manner,” as if he “was attempting to determine if he was being followed. The police stopped the Mini Cooper…. Bruno removed the defendant and conducted a patfrisk for weapons. He felt a large bulge in the defendant’s pocket, which he recognized … as packets of heroin. He then removed a black bag from the defendant’s pocket, which appeared to be the one he had observed the defendant remove from the trunk of the red Honda…. Bruno also removed a set of Honda car keys … from the defendant’s person. The defendant was arrested…. Bruno and other officers returned to 122 Beauregard Terrace in Chicopee, arriving within ten to fifteen minutes of the defendant’s arrest,” and “entered the Honda using the keys obtained from the defendant. Several bricks of heroin and a firearm were seized from the trunk.” After the return of indictments against the defendant, he moved to suppress the items seized from the Honda. The judge denied the motion. Continue reading →

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air-soft-gun-1-1500175-300x189In Commonwealth v. Arias, the Appeals Court reversed the trial judge’s allowance of the defendant’s motion to suppress and held that the warrantless entry by the police into the apartment building where the defendant resided was justified under the emergency aid doctrine.

The basic facts were as follows. “[T]he Lawrence police department received a 911 call from a woman who reported that as she was walking down the street, she saw two ‘Spanish guys’” with a semiautomatic weapon and that “she heard one of the men ‘load the gun’ before entering the apartment building at ‘7 Royal Street.’…. The woman gave a description of the men to the 911 dispatcher,” who then radioed it to officers on patrol: “‘two Hispanic males enter[ing] a house, one in a gray jacket, [and] one in a black jacket’ while one of the males was loading a gun. During this same ‘time frame,’ the Lawrence police department was investigating ‘a rash of home invasions’ ‘[a]round this [Royal Street] area.’” Officers responding to the dispatch “discovered a four-unit apartment building with the address of 5-7 Royal Street…. [T]wo units were located on the first floor (apartment 5A and apartment 7A)…. At the back of the building, there was a porch with two rear doors.” Sergeant Cerullo went to the rear of the building and there “saw a ‘Hispanic male with facial hair’ exit the left rear door of the porch area. The man, later identified as the defendant, was ‘wearing a black and gray sweater’ and was moving ‘quickly and with purpose.’ …. Cerullo shouted, ‘Lawrence Police’ and commanded, ‘Show me your hands.’ The defendant appeared ‘shocked’ and quickly retreated back into the building, ‘closing the door behind him.’ …. Cerullo attempted to follow him, but the door was locked. At this time, [another officer] was positioned at the front of the building. He knocked on the door of apartment 5A, but there was no answer. He also knocked on the door of apartment 7A and spoke with the residents of that unit.” They were unable to provide any information about the occupants of apartment 5A. “The police then decided to forcibly enter apartment 5A out of concern that a home invasion was taking place and that there were ‘possible armed subjects inside, as well as victims.’…. When the police entered through the front door of the apartment, they found no one inside. During the protective sweep, they observed in plain view: narcotics, a scale, and ‘thousands’ of plastic bags on the floor. Still in pursuit of any potentially armed subjects or victims, the officers went down an interior back stairway, where they found the defendant and two other men hiding in a storage area in the basement.” After the return of indictments against the defendant, he moved to suppress the fruits of the warrantless entry into his apartment. The judge allowed the motion, rejecting the Commonwealth’s contention that the police were entitled to enter the apartment under the emergency aid exception to the warrant requirement. Continue reading →

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dna-helix-background-image-1-1632628-300x169The Supreme Judicial Court recently issued a decision in Commonwealth v. Sullivan affirming the defendant’s conviction of first degree murder, despite the fact that testimony about an apparent match between DNA from the crime scene and the defendant’s DNA profile in the CODIS database should not have been admitted.

The background was as follows. The victim was shot to death during an armed home invasion. “Investigating officers seized a number of items from the crime scene…. [A] State police chemist conducted DNA testing of swabs taken from [those items]. She uploaded the profiles into the [national] CODIS database to search for a match. The DNA on [three of the items] matched the defendant’s DNA profile. Based on these results, police obtained a buccal swab from the defendant, which was submitted to the State police crime laboratory for DNA testing. A different State police chemist determined that the DNA on the [seized items] matched the defendant’s DNA.” In his appeal, “[t]he defendant contend[ed] … that testimony that DNA taken from items found at the crime scene matched his DNA profile in the CODIS database was inadmissible hearsay and a violation of his right to confrontation.” Continue reading →

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digital-camera-2-1195550-300x225In Commonwealth v. Mauricio, the SJC reversed the denial of a motion to suppress images retrieved by the police during a warrantless search of a digital camera that was seized from the defendant’s person.

The background was as follows. A police officer (Collins) “received a report that two ‘suspicious parties’ were seen running out of the side door of a residence on Downing Drive in Taunton…. Shortly thereafter, Collins located two individuals nearby largely matching the … descriptions” given in the report. One of the individuals “was identified as the defendant…. Collins pat frisked the defendant and searched his backpack. Inside the backpack, Collins found … [a] digital camera,” a ring, and other items. The defendant was arrested. The evidence officer for the police department (Detective Treacy) “conducted an inventory search of the defendant’s backpack. Believing the camera to have been stolen, 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.” Treacy showed the image to a fellow 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[]…. [T]he homeowner confirmed that the firearms and the other items in the photograph were taken from his home during the break-in.” After the issuance of indictments against the defendant for carrying a firearm without a license and receiving stolen property with a value in excess of $250, the defendant filed two motions to suppress, which were denied. In his first motion, the defendant 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 his second motion, the defendant 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] argue[d] 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.”  Continue reading →

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dutch-weed-1251539-279x300The Appeals Court’s recent decision in Commonwealth v. Martin reversed the denial of the defendant’s motion to suppress evidence seized by the police after they made a warrantless entry into a residence “while chasing the defendant, who [had] fled … during a stop for a civil infraction of marijuana possession.”

The basic facts were as follows: two undercover officers “approached a legally parked vehicle in which sat three males. The vehicle was ‘consumed with smoke’ and condensation had formed on the rear windshield. The defendant was seated in the front passenger seat. As the officers approached the vehicle, the defendant opened the door and stepped outside. Smoke emanated from the vehicle, and the officers were struck by a ‘strong’ odor of burnt marijuana. One of the officers [Beliveau] … ordered the defendant to get back inside the vehicle…. ‘[I]n the passenger compartment of th[e] door[]’ [adjacent to the defendant] Beliveau … observed … a copper grinder (commonly used to break up marijuana so that it could be more easily rolled into cigarettes), and cigar wrappers. ‘[G]reen leafy matter’ was observed inside the grinder. The defendant appeared very nervous…. Beliveau asked the passenger [in the back seat] and the defendant for identification” and questioned them about their contact with the criminal justice system. “The passenger responded that he had been arrested for a firearm charge and was on probation…. The defendant responded that he had been arrested…. At that point, which was approximately four minutes from the time the officers approached the vehicle, Beliveau’s partner called for back up. Meanwhile, a woman started approaching the vehicle and asked the officers what was going on…. [T]he defendant identified her as his mother. Within a few minutes, two [other] officers arrived[,] [o]ne of [whom] positioned himself near the defendant.” Beliveau’s partner began a computer check of the defendant’s information and Beliveau began pat frisking the passenger. At that point, “which was seven to eight minutes after Beliveau and his partner first approached the vehicle, the defendant fled. Three officers chased after” him. “The officers yelled for the defendant to stop, but he kept running” and eventually entered the side door of a building forty or fifty feet away, “which was later determined to be his residence. He entered the residence without the use of force or a key. The officers followed the defendant into the residence…. [T]he officers tackled [the defendant]. Once on the ground, without giving the defendant any Miranda warnings, one of the officers asked the defendant why he had run. The defendant responded that ‘he had a firearm’ in his front right pocket. The police retrieved the gun” and arrested the defendant. After he was charged with firearm offenses and a related offense, the defendant moved unsuccessfully to suppress the gun and other evidence. At trial, he was found guilty of two firearm offenses. On appeal, he challenged the denial of his motion to suppress. Continue reading →