Articles Posted in Search and Seizure

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smart-phone-1499871The SJC recently issued a decision – Commonwealth v. Onyx White – affirming the allowance of the defendant’s motion to suppress the fruits of a search of his cellular telephone  The Court affirmed the trial court’s decision on the grounds that the police lacked probable cause to initially seize the telephone and waited too long (sixty-eight days) after seizing it to obtain a warrant to search its contents.

The basic facts were as follows. In the course of an attempted armed robbery of a convenience store, one of the perpetrators shot the victim. “The next day, the defendant, then sixteen years old, told his mother that he had participated in a robbery … and that someone had been shot.” The mother revealed that information to the police. Two days later, “a detective investigating the robbery-homicide met with one of the … administrators [of the defendant’s high school]. The administrator told the detective that the defendant had become ‘agitated’ earlier that day and had left the school without picking up his cellular telephone,” which was routinely held by the school administration during the school day. The police were not aware, “at that point, [of] any information that a cellular telephone contained evidence of the robbery and shooting, but they were aware, based on their experience, that such devices often contained useful information in cases involving multiple perpetrators.” Therefore, the detective “seize[d] the device without a warrant apparently on the basis of his [supervisor’s] belief that, if the defendant retrieved the device before a warrant could be obtained, he would destroy the device or erase relevant evidence. Thereafter, the device was transported to the police station.” However, the police did not search the device at that time. “The defendant was arrested later the same day and charged with murder. In the weeks that followed, detectives assigned to the case applied for and executed five search warrants, interviewed numerous witnesses, assisted with the grand jury investigation, and also were assigned to work on two other homicide investigations.” Continue reading →

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black-car-1450351The Supreme Judicial Court recently issued a decision – Commonwealth v. Campbell – affirming the allowance of the defendant’s motion to suppress on the ground that his operation of the vehicle, which had been rented by his mother, did not constitute use without authority under G. L. c. 90, § 24(2)(a), and therefore the police had no lawful basis to seize the vehicle and conduct an inventory search.

The basic facts were as follows. A state trooper “stopped [the] vehicle … for failing to stop at a stop sign. The trooper determined that the vehicle had been rented by the defendant’s mother, who has a last name that is different from the defendant’s. Upon request, the defendant provided [the trooper] with a valid driver’s license and the rental agreement. The agreement listed only the mother as the renter and stated, ‘[N]o other drivers permitted.’ [The trooper] concluded that the defendant was using the vehicle without authority, in violation of G.L. c.90, §24(2)(a), which makes it illegal to ‘use[] a motor vehicle without authority knowing that such use is unauthorized.’ Accordingly, [the trooper] decided to impound the vehicle. During an inventory search in preparation for impoundment, a loaded handgun and a box of ammunition were seized from the vehicle.” There was evidence that “upon learning of the seizures, the defendant made incriminating statements to [the] police.” After he was charged with firearm and other offenses, the defendant moved successfully to suppress the physical evidence and his statements. Continue reading →

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dutch-weed-1251539According to an article in the MetroWest Daily News, a man and a woman were arrested in Framingham earlier this week by police officers searching for a suspect in an unrelated crime.  The article states that the police went to 10 Main Street in Framingham looking for a suspect believed to be involved in a pistol whipping incident at UMASS Amherst that occurred two weeks ago.  The man and woman that were arrested reside in one of the apartments at the Main Street address – the police specifically went to the address because they reportedly “had word” that the suspect in the UMASS incident was friends with the female resident.  When the police arrived, they immediately arrested the woman, who had an outstanding warrant for a probation violation.  According to the article, the police obtained a search warrant for the apartment and then proceeded to search the residence for the suspect in the UMASS incident.  The suspect was not located, but during the course of the search, the police found “a large amount of marijuana” (approximately half a pound) located in several jars under the sink.  In addition to the marijuana, officers also reportedly found $5,000 in cash, several scales, empty plastic bags, and other evidence of marijuana growing – there is no information as to where these items were found.  Following the discovery of the marijuana and other items, the officers arrested the male resident as well.  The man and woman were subsequently charged with possession with intent to distribute marijuana.

Fortunately for the defendants, there does appear to be a viable motion to suppress.  A motion to suppress is a written request by a defendant asking the court to keep certain evidence from being introduced against them at trial because that evidence was obtained as a result of unconstitutional or illegal police activity. The Fourth Amendment to the United States Constitution guarantees a person’s right to be free from unreasonable searches and seizures.  The police have a legal basis to enter a home if they have a search warrant, as long as the search warrant is supported by probable cause to believe that evidence of a crime is present in the location to be searched.  If the search warrant is not supported by sufficient probable cause, however, evidence obtained as a result of the search should be suppressed.  Continue reading →

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police-line-970702-mAccording to an article in the MetroWest Daily News, attorneys for a New Hampshire man charged with murder are seeking to prevent the prosecutor from admitting the man’s statements at trial, as well as all of the evidence derived from those statements.  The man allegedly murdered 19 year-old woman from Westborough, MA in October 2012.  THe alleged victim was a student at the University of New Hampshire.

Shortly after the murder, the police went to the defendant’s place of employment and transported him to the police station for questioning.  Police then interrogated him at the police station for a total of 11 hours.  During the course of the interrogation, the defendant admitted that the alleged had died of asphyxiation during a sexual encounter with him.  He also told the police where evidence of the crime could be found.  Specifically, the his statements led the police to Peirce Island in Portsmouth, NH, where hair and pearl-like beads were recovered.  The police also conducted a search of the trash at the defendant’s apartment complex based on the statements.  Additional pieces of evidence were recovered from that location as well.

Police did not inform the defendant of his Miranda rights, including his right to remain silent, prior to the interrogation.  As a result of this failure, his attorneys filed a motion to suppress his statements, and all of the evidence obtained as a result of the statements.  The defendant’s attorneys are specifically arguing that the police violated his constitutional rights by failing to administer the Miranda warnings, and therefore all of the evidence obtained as a result of that violation, including the statements, should not be admissible against him at trial.  The prosecutor argues that because the police spoke to the defendant as part of a missing person investigation rather than a criminal investigation, it was not necessary to advise him of his Miranda rights.  The prosecutor further argues that the defendant was not in “custody” at the time the statements were made, and therefore the need for Miranda was not triggered.  Continue reading →

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room-103-419837-mAccording to an article in the MetroWest Daily News, a Framingham man was arrested on drug charges at a Motel 6 on Route 9. The article states that a motel employee called police about a “disturbance” in the parking lot. When the officer arrived, the employee pointed out a sedan that was about to pull out of a parking spot in the motel lot. The officer activated his blue lights to stop the car, but the backseat passenger, later identified as the defendant, got out of the vehicle and began walking away. When the officer instructed the defendant to stop, he refused to do so and continued to walk away with his hands in the air, reportedly yelling profanities at the officer as he went. The officer then forcibly stopped the defendant and a struggle ensued. Following the struggle, the officer pat frisked the defendant and found two cans of beer and a small plastic bag of heroin. The officer arrested him and then went to speak to the people that were still inside the car. As he did so, the driver sped away.

Following this interaction, the officer spoke to the motel clerk, who stated that the defendant was staying at the motel and let the officer into his room. Once inside the room, the police saw evidence of drug dealing and property damage and applied for a search warrant to search the room. As a result of the search, the officers found several bags of heroin, plastic bags, and digital scales. The defendant was subsequently charged with possession of heroin with intent to distribute, disorderly conduct, resisting arrest, and maliciously defacing property.

Fortunately for the defendant, he appears to have a strong motion to suppress. A motion to suppress is a written request by a defendant asking the court to keep certain evidence from being introduced at trial because that evidence was obtained as a result of unconstitutional or illegal police activity. The Fourth Amendment to the United States Constitution guarantees a person’s right to be free from unreasonable searches and seizures – in other words, the police must have some legal basis before they can stop and/or search a suspect. The police may stop a person as long as there is “reasonable suspicion” of criminal activity. The evidence necessary for reasonable suspicion is something beyond a mere hunch. If there is reason to believe that the person may be armed and dangerous, the police can also conduct a pat frisk (a search of a person’s outer clothing to determine, through touch, whether the person is armed). Continue reading →

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tray-of-marijuana-1437843-mThis past week, in Commonwealth v. Overmyer and Commonwealth v. Craan, the Supreme Judicial Court ruled that the smell of unburnt marijuana alone is not enough to establish probable cause to search a car.

The facts of the cases are as follows: Overmyer was in a car accident in Pittsfield and police responded to the scene. Upon arrival, officers noticed “a very strong odor of unburnt marijuana.” Police asked Overmyer if there was marijuana in the car and he told them that there was a bag of marijuana in the glove compartment. There was no specific information indicating that the bag contained more than an ounce of marijuana. The police believed that Overmyer had more marijuana and proceeded to search his car. Officers found a backpack with marijuana in the back of the vehicle. As a result of the additional marijuana found in the backpack, the police charged Overmyer with possession with intent to distribute a class D substance (marijuana).

Craan was stopped in Dorchester in 2010 by Massachusetts State Police operating a sobriety checkpoint. The trooper involved in the stop smelled unburnt marijuana and asked Craan about it. Craan showed the trooper a bag of less than ounce of marijuana in the glove box. The trooper then ordered Craan out of the car and subsequently searched it. As a result of the search, the trooper located three Ecstasy pills and .38-caliber ammunition inside the car. Craan was charged with possession with intent to distribute a class D substance (marijuana), possession of a class B substance (ecstasy), and possession of ammunition. Both Overmyer and Craan filed motions to suppress, arguing that the smell of unburnt marijuana alone did not provide a sufficient basis for a search of their respective vehicles because possession of less than an ounce of marijuana is not a crime in Massachusetts, and there was no indication that either were in possession of a criminal amount of the drug. Continue reading →

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mobile-phone-in-hand-1307594-mThis past week, the United States Supreme Court issued a decision holding that “the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” The decision addressed two unrelated cases – Riley v. California and United States v. Wurie. Riley was stopped for a traffic violation in California. While searching Riley, a police officer seized Riley’s cell phone and searched it. The police found photos and video on the phone that linked Riley to a shooting that had occurred several weeks prior. Riley was subsequently charged with the shooting as a result of the evidence recovered from the phone. Wurie was arrested in Boston for drug distribution. After he was arrested, the police seized his phone. When they arrived at the police station, officers noticed that the phone was receiving several calls from a number saved as “my house.” Officers traced the number to what they believed was Wurie’s apartment, got a search warrant for the apartment, and ultimately recovered drugs, a gun, and ammunition from the apartment. Wurie was subsequently charged with additional drug and firearm charges as a result. While the underlying facts of each case were different, they both deal with the same issue: whether the police have the right to conduct a warrantless search of a suspect’s cellular phone after the suspect has been arrested.

Under the Fourth Amendment, a warrant is required before police can legally conduct a search. Despite this rule, however, there are a number of exceptions to the warrant requirement, including an exception for a search incident to lawful arrest. The search incident to lawful arrest exception allows for the warrantless search of a suspect after his arrest, which includes a search of the suspect’s person, and the area within the suspect’s immediate control. The rationale for the exception is that such a search is necessary to both ensure officer safety, and to prevent the destruction of evidence. In the cases of Riley and Wurie, the court was tasked with determining whether the police should be able to search the data contained on a suspect’s cellular phone in the same way that they can search a suspect’s pockets, or whether standards for cell phones should be different because of the vast amount of personal information they often contain.

When deciding whether an exception to the warrant requirement should be applied, the court must balance the degree of intrusion of an individual’s privacy interests against law enforcement’s need to promote a legitimate government interest. In these cases, the government argued that cell phones should not be treated differently from other objects found on an arrested suspect’s person, such as wallets, purses or address books, and noted that there was an inherent risk that data contained on cell phones could be remotely wiped and evidence lost if officers were required to obtain a warrant before searching the phone. Riley and Wurie argued that the very nature of cell phones and the quantity and quality of information that they contain set them apart from other items typically found on an suspect’s person, and therefore that a search of a cell phone constituted a greater intrusion on individuals’ privacy interests than the typical search incident to lawful arrest. Continue reading →

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mobile-phone-3-1225932-mOn February 18, 2013, the Supreme Judicial Court issued a decision in Commonwealth v. Augustine.  In the decision, the court ruled that the Commonwealth must obtain a warrant supported by probable cause before getting cell site location information (CSLI) associated with a particular cellular telephone from cellular telephone providers.  CSLI records include information about a subscriber’s location when using the cellular telephone, and therefore can be used to reconstruct the subscriber’s movements and location over time.

The underlying facts of the case are as follows:  The victim was murdered in 2004.  During the course of the criminal investigation, the police began to focus on Augustine, who had previously dated the victim.  As part of the investigation, the police sought certain records from Augustine’s cellular phone provider (Sprint), including CSLI information that spanned two weeks, beginning on the date of the victim’s disappearance, August 24, 2004.

The Commonwealth applied for the records under a federal statute – 18 U.S.C. § 2703 – which governs the compelled disclosure of customer communications and records to law enforcement.  The statute requires that law enforcement demonstrate “specific and articulable facts showing that there are reasonable grounds to believe that the . . . records or other information sought, are relevant and material to an ongoing criminal investigation.”  The Commonwealth’s application for Augustine’s records was supported by an affidavit from one of the state troopers involved in the murder investigation.  The affidavit stated that the police sought the records to determine the “general location” of Augustine and the victim at the time of the victim’s disappearance, and to potentially include or exclude Augustine as a suspect in the murder.  A Superior Court judge allowed the Commonwealth’s application.  An order compelling the production of the records was sent to Sprint and the CSLI records were subsequently provided to the Commonwealth.  Augustine was charged with the victim’s murder 7 years later, in 2011.

During the course of the court case, Augustine filed a motion to suppress evidence of the CSLI on the ground he had a “reasonable expectation of privacy” in the records, and therefore the police were required to get a valid search warrant based on probable cause before obtaining the records (probable cause is a higher standard of proof than the “specific and articulable facts” required by 18 U.S.C. § 2703).  A reasonable expectation of privacy exists if (1) a person subjectively expects privacy; and (2) the expectation is one that society as a whole would think is legitimate.  Under both the Federal and Massachusetts Constitutions, a search in the constitutional sense occurs when the government’s conduct intrudes on a person’s reasonable expectation of privacy.

Augustine argued that because he had a reasonable expectation of privacy, and because the police failed to get a warrant supported by probable cause, his constitutional rights were violated, and therefore the Commonwealth should not be able to use the CSLI records against him at trial.  The Commonwealth argued that there was no search in the constitutional sense because the CSLI records were business records of Augustine’s cellular served provider and therefore Augustine did not have a reasonable expectation of privacy in them. Continue reading →

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dutch-weed-2-jpg-1206038-m.jpgA Framingham man was arrested last week on various drug charges. According to an article in the MetroWest Daily News, police responded to a report of a loud argument on Carlson Road. When the police arrived, they found the defendant and several other people walking in the area. The police reportedly observed a bag of marijuana hanging out of the defendant’s pocket, about to fall out. The police then seized the marijuana, which consisted of two smaller plastic bags inside a larger bag. After the seizure of the marijuana, the police conducted a further search of the defendant and found a Skoal can on his person, which contained several Adderall pills and a plastic bag of cocaine. The defendant then made some statements about who the can belonged to – first stating it wasn’t his, and then stating that it was for personal use. The defendant also had $370 on his person. He was ultimately charged with: (1) possession of Adderall with intent to distribute; (2) possession of marijuana with intent to distribute; and (3) and possession of cocaine.

Fortunately for the defendant, he may well have a strong argument that the police did not have the right to search him in the first place. He can therefore argue that the evidence that the police found as a result of the search should not be admitted against him. Specifically, the police are not allowed to search people whenever they feel like it – there must be some legal basis for the search to be valid. If the police search a person without a legal basis, any evidence they find is not admissible against the person at trial, and the person can file a motion to suppress to have the evidence excluded.

Continue reading →

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dutch-weed-403-m.jpgAccording to an article in the MetroWest Daily News, an eighteen-year-old student at Westborough High School, was recently arrested for a number of drug related offenses, including possession with intent to distribute marijuana. A school administrator allegedly saw the defendant and two female students enter the defendant’s car, which was parked in the school parking lot, multiple times Wednesday morning. According to the article, the defendant and the two female students smelled like burnt marijuana when they re-entered the school. The administrator then contacted the police, who arrived and looked into the car from the outside. The police reportedly saw a marijuana grinder through the car’s window. Further, a police dog alerted to the presence of marijuana inside the car. The police then entered and searched the car. Officers found a scale, a bong, glass pipes, 4 grams of marijuana, and several empty bags. Bottles of vodka and tequila were also removed from the car. The defendant was subsequently charged with (1) possession of drugs within a school zone; (2) possession of alcoholic beverages on school property; (3) being a person under 21 transporting alcoholic beverages in a motor vehicle; and (4) possession of marijuana with intent to distribute.

Despite the observations made by the school administrator and the police, the defendant may well have a strong defense to at least some of these charges. First and foremost, he likely has a strong argument that the possession with intent to distribute charges should be dismissed. In April of this year, the Supreme Judicial Court explicitly stated in Commonwealth v. Jackson that sharing marijuana with friends is not a criminal offense in Massachusetts. The Court stated that social sharing of marijuana is akin to simple possession, and therefore does not constitute drug distribution. In the defendant’s case, there is no indication that he and the other two students were doing anything other than sharing the marijuana. In particular, they all entered the car together, and they all smelled like burnt marijuana when they returned to the school building. Although the police found a scale, which might indicate an intent to sell, there does not appear to be any other evidence of drug sales. To the contrary, the fact that there was a bong and glass pipes in the car seems to indicate that the marijuana in question was for personal use, as opposed to sale.

Continue reading →