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3d illustration: Mobile technology. mobile phone

In a recent Supreme Judicial Court decision – Commonwealth v. Fulgiam – the Court held that the search of the content of text messages requires a search warrant. Despite the existence of such a warrant in this case, however, the SJC rule that reversal was not required.

The background was as follows. The two victims (a man and a woman) were robbed and killed in their apartment. There was evidence that the defendants were involved in drug sales with the male victim. “[T]hrough a court order pursuant to 18 U.S.C. §2703(d)” (part of the Stored Communications Act), in response to an administrative subpoena issued pursuant to G.L. c.271, §17B, the Commonwealth procured the defendants’ cellular telephone records. The records “include[ed] call detail information …, subscriber information, cell site location information …, and, for Corbin, the content of text messages.” On appeal, Corbin argued that the Commonwealth’s warrantless access to the content of his text messages “was unlawful on statutory and constitutional grounds, and that his trial counsel was constitutionally ineffective in failing to file a motion to suppress the records.”

In its decision, the SJC opined that under 18 U.S.C. §2073(a) and art. 14 of the Massachusetts Declaration of Rights, “a warrant was required to obtain access to the content of Corbin’s text messages.” The Court explained that “[a] warrant with probable cause was required because Corbin had a reasonable expectation of privacy in the content of his text messages.” Therefore, stated the Court, “a motion to suppress challenging the Commonwealth’s access [to the text messages] on these grounds likely would have been successful.” The Court concluded, however, that defense counsel’s failure to seek suppression of the text messages did not create a substantial likelihood of a miscarriage of justice. Continue reading →

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Detail of a ambulance light.

The Supreme Judicial Court recently dealt a blow to motions to suppress in roadblock cases in Commonwealth v. Baker.

In this OUI prosecution, the Appeals Court ruled that the motion judge erred in suppressing evidence of the defendant’s intoxication at a sobriety checkpoint. The basic facts were as follows. Under the direction of State Police Captain Majenski, “a detail of State troopers and police officers from the town of Abington (the town)” “conduct[ed] a saturation patrol and sobriety checkpoint.” The police had a “written operational plan” containing guidelines for implementing the checkpoint. “During the roadblock, the defendant was pulled over and greeted by Sergeant … Cutter of the town police…. Cutter observed signs of intoxication in the defendant and directed him to the ‘pit’ area. The defendant refused ‘to drive the vehicle.’ He then was escorted from the vehicle to the pit area where [another officer] of the town police asked him to perform sobriety tests. After the tests, the defendant was placed under arrest.” Upon issuance of a criminal complaint for operating while under the influence of alcohol and negligent operation, the defendant “moved to suppress evidence of his intoxication, arguing that the evidence was secured from a sobriety checkpoint not conducted in strict and absolute compliance with the written operational plan.” The judge allowed the motion on the ground “that the roadblock deviated from the plan in four respects: (1) a number of officers arrived after the reporting time detailed in the plan, (2) while Captain Majenski was briefing the late officers, he was not performing supervisory duties as instructed, (3) one trooper, who was not the officer involved with stopping the defendant’s vehicle, did not sign the duty roster affirming [that] he had reviewed the plan and other relevant documents, and (4) after the roadblock was completed, several officers failed to submit a report as required by the plan.” Continue reading →

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navigating-gps-maps-1466837In Commonwealth v. Johnson, the Supreme Judicial Court found that it was not error for the trial court to admit data from the defendant’s GPS tracking device at the defendant’s trial for breaking and entering a building during the daytime with the intent to commit a felony, under G. L. c. 266, § 17 and larceny over $250, under G. L. c. 266, § 30.

The background was as follows. “On July 8, 2013, the defendant was charged with having committed various crimes stemming from an incident of domestic violence on Nancy Jones that took place … in the Dorchester section of Boston.” At the defendant’s arraignment, the judge imposed several conditions of pretrial release, to which the defendant formally agreed, “includ[ing] GPS monitoring, staying away from Jones’s home address in Dorchester, and staying away from Jones herself.” On August 31, 2013, Sarah Dundon returned from a six-day vacation trip to find that her home in the West Roxbury section of Boston had been broken into and some jewelry had been stolen. “At some point thereafter, Norfolk County law enforcement officials were conducting a criminal investigation into the defendant. As part of that investigation, they requested that … the probation department review and analyze the data captured by the GPS monitor imposed as a condition of the defendant’s pretrial release in the Dorchester case.” An employee of the probation department’s electronic monitoring program (ELMO) “noticed and mapped the defendant to [Dundon’s] home in West Roxbury, at about 4:20 A.M. on August 29, 2013, where the GPS data showed he remained for approximately fifteen to thirty minutes.” Based on this information, a criminal complaint was issued, charging the defendant with the offenses at issue in the present case. The defendant filed a motion “to suppress the GPS data that was obtained without a warrant based on his claimed expectation not to be subjected to extended GPS surveillance by the government.” In the motion, “he averred that as conditions of his pretrial release on his Dorchester case, he was required to stay away from Jones’s address, i.e., an exclusion zone, and he was required to wear a GPS device to monitor whether he violated that condition. The defendant claimed that he did not know he would be monitored and tracked everywhere he went, and that he had not agreed to that condition.” The judge denied the motion. On appeal, “the defendant claim[ed] that the judge erred in admitting the GPS data because the ‘search’ conducted by the police was unreasonable in light of his expectation of privacy in that data.” Continue reading →

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gun-1623761-300x202The Supreme Judicial Court recently affirmed the allowance of the defendant’s motion to suppress a firearm in Commonwealth v. Crowley-Chester on the grounds that the police were not justified in impounding the vehicle in which the weapon was discovered.

The basic facts were as follows. At 3:00 a.m. on the date in question, police officer Longo and a colleague “were on routine patrol on Williams Street when they observed a Honda Accord automobile parked on the street in front of a vacant lot and across the street from a church. The vehicle’s engine was running, and its lights were off. Using the police cruiser’s spotlight, … Longo observed two individuals seated in the front of the vehicle, both of whom appeared to be making furtive type movements. The defendant was the front seat passenger. The officers approached the vehicle and, after observing an unknown object in the defendant’s hand and a knife in the center console, ordered the driver out of the vehicle. When the driver got out of the vehicle, a white rock-like substance fell to the ground…. Longo recognized the object to be consistent with ‘crack’ cocaine, and the driver was placed under arrest. At this point, the defendant was … ordered out of the vehicle” and Longo “retrieved and secured the knife. The driver then asked that the defendant, who was not yet under arrest and who was free to leave the scene, be allowed to drive the vehicle.” However, because “the defendant did not have a driver’s license,” “[t]he officers … decided to impound [and tow] the vehicle. In the course of the resultant inventory search [which is required any time the police tow a motor vehicle], … Longo found a backpack containing a firearm. The backpack, which had the name ‘Atreyo’ [the defendant’s given name] written on it, also contained a pay stub with [his] name.” After the issuance of a complaint charging the defendant with firearm offenses under G. L. c. 269, §10(a), he filed a motion to suppress the firearm. “At the hearing on the motion …, the defendant introduced in evidence a computer-aided dispatch (CAD) log of telephone calls made to the … police department reporting criminal activity for three streets in the area around, and including, Williams Street.” The judge allowed the motion to suppress, “bas[ing] his decision that impoundment [of the Honda] was improper solely on his findings that the vehicle was not in danger of damage or theft.” Continue reading →

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cash-money-1520773-300x225In a recent decision – Nelson v. Colorado & Madden v. Colorado – the United States Supreme Court issued an important opinion impacting individuals who have had their criminal convictions invalidated. Specifically, the U. S. Supreme Court ruled that “[w]hen a criminal conviction is invalidated by a reviewing court and no retrial will occur, … the State [is] obliged to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction.”

The case consists to two joined cases. The backgrounds were as follows. “Nelson … was convicted … of five counts … arising from the alleged sexual and physical abuse of her four children…. The trial court imposed a prison sentence of 20 years to life and ordered Nelson to pay court costs, fees, and restitution totaling $8,192.50…. On appeal, Nelson’s conviction[s] [were] reversed for trial error…. On retrial, a new jury acquitted Nelson of all charges…. Madden … was convicted by a Colorado jury of attempting to patronize a prostituted child and attempted third-degree sexual assault by force…. The trial court imposed an indeterminate prison sentence and ordered Madden to pay costs, fees, and restitution totaling $4,413.00…. The Colorado Supreme Court reversed one of Madden’s convictions on direct review, and a postconviction court vacated the other…. The State elected not to appeal or retry the case…. Between Nelson’s conviction and acquittal, the Colorado Department of Corrections withheld $702.10 from her inmate account, $287.50 of which went to costs and fees and $414.60 to restitution…. Following Madden’s conviction, Madden paid Colorado $1,977.75, $1,220 of which went to costs and fees and $757.75 to restitution…. The sole legal basis for these assessments was the fact of Nelson’s and Madden’s convictions.” Continue reading →

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american-flag-series-1-1466783-300x225The Supreme Judicial Court recently issued an important decision related to the Valor Act. In the decision, Commonwealth v. Morgan, the SJC ruled that “the pretrial diversion statute [G.L. c.276A], as amended by the VALOR Act in 2012, permits a judge to continue without a finding (CWOF) or to dismiss a charge of operating a motor vehicle while under the influence of alcohol or drugs (OUI), second or subsequent offense, notwithstanding the provisions of G.L. c.90, §24, which generally proscribe such dispositions.”

The background was as follows. “The VALOR Act, St.2012, c.108, …  , amended the statute providing young adults with pretrial diversion, … c. 276A …, to include qualifying veterans and active duty members of our armed forces facing criminal charges in the District and Boston Municipal Courts.” The defendant, a veteran of the United States Army, served in Iraq and Afghanistan. While serving, “he began to experience symptoms of posttraumatic stress disorder (PTSD)…. He also had numerous physical disabilities as the result of injuries received during his” military service. After he returned to civilian life, “the defendant was stopped for erratic driving” and was arrested for operating his vehicle while under the influence of alcohol. “[N]ine years and ten months prior to [that] incident …, [the defendant] admitted to sufficient facts to warrant a finding that he had operated a motor vehicle while under the influence of alcohol or drugs…. [That] case was continued without a finding and dismissed upon [the defendant’s] successful completion of probation.” In light of the prior OUI case, the defendant was arraigned in the District Court in the present case on a charge of OUI, second offense. His attorney “sought pretrial diversion under the VALOR Act. [The defendant] was evaluated by the VA, which determined that he would benefit from such a program.” He began receiving various rehabilitative services, including detoxification, counselling regarding substance abuse, and PTSD counselling. “Three months after arraignment, … [the defendant] filed a motion, pursuant to the pretrial diversion statute, seeking dismissal of all charges should the pretrial diversion program prove successful. In the alternative, he sought to admit to sufficient facts and have the case continued without a finding. “Acknowledging that the case presented an unsettled question of law, the judge reported the following two questions …, pursuant to Mass. R. Crim. P. 34 …: [1] ‘Under the VALOR Act, may a judge exercise discretion to enter a CWOF after an admission to an OUI-second offense?’[;] [2] ‘If a CWOF is not available, may a court dismiss the charge upon successful completion of diversion, over the Commonwealth’s objection?’” Continue reading →

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in-the-lab-1-1251082-300x249A recent article at addresses damning information about the Massachusetts state prosecutors’ failure to properly handle the drug scandals that have rocked Massachusetts over the past several years. Massachusetts has been the site of two of the country’s largest drug laboratory scandals which occurred as the result of egregious misconduct by two seprate state lab employees – Annie Dookhan and Sonja Farak. Their misconduct led to thousands of convictions based on faulty evidence.

According to the article, “prosecutors have badly botched the state’s response,” which has caused substantial delays in justice for defendants who may have been wrongly convicted of drug crimes based on tainted evidence.

In addition to the fact that some district attorneys dragged their feet when asked to identify possible Dookhan defendants and fought procedures to address the potential wrongful convictions in court, the article addresses misconduct by the Massachusetts Attorney General’s Office in their investigation of the Farak scandal.

The AGO began prosecuting Farak in early 2013. In the course of the prosecution, the office needed to determine how many cases had been impacted by Farak’s misconduct. Because Farak’s misconduct involved the theft and use of the drugs that she was testing, the time frame encompassed by her drug addiction was extremely important – any case that she touched during this time period would be suspect. The Slate article points out that if Farak used drugs for just a few months, she might have tainted just a few cases. If she used drugs for years, she might have tainted thousands.

In briefs recently submitted to the SJC, the Innocence Project, the ACLU of Massachusetts, and the New England Innocence Project, the AGO’s utter failure in fulfilling its investigative, ethical, and prosecutorial responsibilities was revealed.

According to the article, the briefs state that a state police officer found Farak’s handwritten worksheet from a drug treatment program, in which she admitted to drug use at work. In February 2013 the officer emailed the AGO’s lead prosecutor about this discovery. Despite clear evidence of Farak’s drug use, the AGO did not provide this evidence to defendants, or to district attorneys who were prosecuting people based on Farak’s tainted work, despite the fact that it was a plain breach of their ethical obligations to do so. Continue reading →

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gun-1623761-300x202In a recent decision, Commonweath v. Edwards, the SJC ruled that the trial court judge should not have allowed the defendant’s motion to suppress a firearm recovered following a search of the defendant’s car by Boston police officers.

The basic facts were as follows. At 1:30 a.m. of the date in question, “the Boston police received a 911 call. The caller identified himself by name, Jabari Wattley, and told the operator that he could see a man standing in the street holding a gun. Wattley further stated that he had seen the man drive off in a black … motor vehicle, return and park on Armandine Street …, get out of the vehicle holding a gun in his hand, and then get back into the vehicle. [Wattley] informed the operator that he knew the man, identified him as the defendant, Joshua Edwards, and said that Edwards was not threatening anyone. The police dispatcher broadcast [Wattley’s] information as a ‘Priority 1’ call,” “‘mean[ing] that it was of a serious nature and that response time and protecting officer safety were both high priorities.’” A short time after the broadcast, a marked cruiser driven by Officer Lanteigne arrived on Armandine Street, an area known by the officer to be in a high crime area. “The cruiser did not have its emergency lights activated. Lanteigne stopped when a man (later identified as Wattley) ran … toward the cruiser and began ‘yelling’ to Lanteigne and pointing at a black Acura motor vehicle that was [legally] parked twenty to thirty feet in front of the cruiser, on the right hand side of the street. The Acura … was completely dark; no interior or external lights were on…. At that point, Lanteigne observed the Acura’s brake lights illuminate, and Wattley yelled something to the effect of, ‘That’s him. That’s the guy, he’s about to drive away.’”

In response, Lanteigne activated the cruiser’s emergency lights “and moved the cruiser alongside the driver’s side of the Acura in order to block the vehicle from leaving. Lanteigne believed ‘the Acura was about to drive away … [and] understood that the person Wattley had seen with a handgun was driving the Acura.’ Lanteigne got out of the cruiser and removed his firearm from its holster. At the same time, the defendant got out of the Acura and closed the door. He ‘appeared to take no notice of and pay no attention to’ Lanteigne, and started to walk away. Lanteigne responded by running to the front of his cruiser and ordering the defendant to stop. When the defendant turned and started walking away quickly, the officer … pushed the defendant against the rear of the Acura, forced him to the ground when he resisted being pushed, and handcuffed him. Another police officer who had responded to the scene stood immediately next to the closed driver’s side door of the Acura, and leaned toward the window. He observed a firearm lying on the floor by the driver’s seat…. The police determined that the defendant did not have a Massachusetts driver’s license, and that he was not the registered owner of the Acura. The police decided to tow the vehicle,” in preparation for which “the vehicle was searched pursuant to an inventory policy. In addition to the firearm, the police found an open bottle of beer [and] a cup containing what appeared to be an alcoholic beverage in the console next to the driver’s seat.”

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balance-1172800-300x204The Supreme Judicial Court issued a recent decision, Bridgeman v. District Attorney for the Suffolk District, addressing cases impacted by the Annie Dookhan scandal. In its decision, the SJC announced a new protocol to address the unresolved drug cases that may have been affected by Dookhan’s misconduct.

The Court described the history of this matter as follows. “In Bridgeman v. District Attorney for the Suffolk Dist., 471 Mass. 465, 487 (2015) (Bridgeman I), the petitioners and the intervener, the Committee for Public Counsel Services (CPCS), asked that we exercise our broad powers of superintendence to vacate the thousands of drug convictions affected by Dookhan’s misconduct because the time and expense of case-by-case adjudication had become ‘untenable.’ We declined at that time to adopt their proposed ‘global remedy.’ However, the district attorneys have now provided the single justice with lists identifying more than 20,000 defendants who could be eligible for relief based on Dookhan’s misconduct but who have not yet sought relief from their drug convictions.” (Regarding the causes of the latter circumstance, the Court asserted that the notification letter sent to the relevant Dookhan defendants “by the district attorneys was wholly inadequate to provide the … defendants with the information necessary to knowingly and voluntarily decide whether they should explore with counsel the possibility of withdrawing their plea or moving for a new trial.”) “As a result of the number of potentially aggrieved defendants, the single justice issued a reservation and report to the full court that essentially invites us to reconsider whether the time has come for a global remedy or whether further steps must be taken to realistically implement the remedy of case-by-case adjudication of potentially thousands of motions for a new trial. After such reconsideration, we decline to adopt the district attorneys’ argument that we should stay the course we had previously set and take no further action to protect the rights of the ‘relevant Dookhan defendants.’ We also decline to adopt the petitioners’ request for a global remedy in which we would either vacate the convictions of all relevant Dookhan defendants with prejudice, and thereby bar any reprosecution, or vacate the convictions without prejudice, and allow the Commonwealth one year to reprosecute, dismissing with prejudice all cases not reprosecuted within that time period. We instead adopt a new protocol for case-by-case adjudication, which will occur in three phases, and order its implementation by the single justice in the form of a declaratory judgment.” Continue reading →

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hospital-1244754-300x201The Supreme Judicial Court issued a recent decision – Commonwealth v. Accime – bearing directly on the intersection of criminal law and mental health law.

The background was as follows. “[T]he defendant was brought by ambulance and against his will to the [psychiatric area of a hospital’s] emergency department,” where he was detained in a small room. “Although this detention was purportedly pursuant to G. L. c.123, §12, which allows the temporary restraint and hospitalization of persons posing a serious risk of harm by reason of mental illness,” there was “no evidence [at trial] of compliance with the procedures required by § 12(a).” When medical staff in the emergency department told the defendant that “he would likely be held in the hospital for two or three days, the defendant began to shout” that he did not want to be medicated and that he wanted to leave. The staff requested assistance and five security officers arrived. They told the defendant that he would be pepper sprayed if he did not permit medical personnel to medicate him. The defendant, who was six feet, four inches in height and weighed about 270 pounds, responded, “‘[I]f anybody puts their hands on me, I’m going to fuck them up’; and ‘if anybody pepper sprays me I’m going to beat the fuck out of them.’…. Other patients were ‘looking on’; as a precautionary measure, officers directed anyone in the hallway to an alternate route ‘just in case something happened if [the confrontation] spilled out’ of the room.” At some point, as “officers … approached the defendant, [he] ‘put his hands out like he wanted to fight.’ At least three, and as many as six, officers then directed pepper spray at the defendant’s head and face,” thereby subduing him so he could be handcuffed. “There was no evidence … that any aspect of the disturbance … ever extended beyond the confines of the room.”

The defendant was convicted of disorderly conduct under G. L. c.272, § 53. A conviction under the statute “requires proof that a person, ‘with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof,’ engage[d] in ‘fighting or threatening, or in violent or tumultuous behavior’…. Commonwealth v. Sholley, 432 Mass. 721, 727 n.7 (2000), cert. denied, 532 U.S. 980 (2001), quoting Model Penal Code §250.2 (Official Draft and Revised Comments, 1980).” Continue reading →