Articles Posted in Search and Seizure

Published on:

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 →

Published on:

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 →

Published on:

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 →

Published on:

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 →

Published on:

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.”

Continue reading →

Published on:

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 →

Published on:

cadillac-cts-green-1500058-1-300x240In Commonwealth v. Ortiz, the Supreme Judicial Court affirmed the suppression of firearms seized by the police from the defendant’s vehicle. The SJC specifically 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.”

The basic facts were as follows. 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, “[t]he 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…. [A]t 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. Continue reading →

Published on:

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 →

Published on:

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 →

Published on:

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 →