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balance-1172786-300x204In Commonwealth v. Jeannis, the Appeals Court reversed the denial of the defendant’s motion to suppress a bag of drugs seized from his rectum, because the police did not have a warrant to conduct the seizure.

The basic facts were as follows. In the booking area of a police station to which the defendant was transported after having been arrested, Lieutenant Callahan noticed that the defendant was sitting “oddly, leaning to one side.” Later, “Callahan noticed that the defendant had an unusual gait as he walked to [his] cell…. The defendant moved slowly, was rigid and tense, and was ‘clenching his buttocks area.’ Callahan believed that [the defendant] might have something secreted in that area, which could be a potential safety risk. Callahan asked Officer … Singer to accompany the defendant and Callahan to the … cell. Callahan ordered the defendant to remove his clothing….. [W]hile wearing only underwear, [the defendant] continued to clench his buttocks and attempted to shield his backside from Callahan’s and Singer’s view…. [When] [t]he defendant pulled down [the] waistband” of his underwear, Singer “saw a plastic bag protruding from the defendant’s buttocks. Singer ordered the defendant to remove the bag or have Singer remove it. The defendant agreed to remove it himself and then pulled down his underwear. Singer put his hand on top of the defendant’s hand as the defendant ‘removed the bag.’ The bag contained fifteen individually wrapped bags of cocaine and thirteen individually wrapped bags of heroin.” After the return of indictments charging the defendant with possession with intent to distribute cocaine and heroin, he filed a motion to suppress the drugs. The motion was denied and the defendant was convicted as charged. On appeal, he challenged the denial of the motion to suppress. He argued that under “the principles concerning manual body cavity searches articulated in [Rodriquesv.] Furtado, [410 Mass. 878 (1991)], … seizures from a body cavity may be made only on the authority of a warrant issued by a judge and supported by a high degree of probable cause.” Continue reading →

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gavel-4-1236439-300x200In a recent case – Commonwealth v. Robertson – the SJC reversed the defendant’s convictions of first-degree murder and related offenses because “the Commonwealth improperly excluded black men from the jury [by means of peremptory challenges] in violation of Batsonv. Kentucky, 476 U.S. 79 (1986), and Commonwealthv. Soares, 377 Mass. 461, cert. denied, 444 U.S. 881 (1979).”

The background was as follows. During empanelment of the jury, “[t]he Commonwealth used [a] peremptory challenge on the first black man who was a potential juror. The defendant objected and defense counsel stated, ‘My client is a black male and this is the first black male to come before the court to be a potential juror.’ The judge found no prima facie evidence of impropriety,” i.e., no “discriminatory pattern in the prosecutor’s peremptory challenges and, as a result, did not inquire about the prosecutor’s reasoning.” Later, “[t]he defendant raised a second objection to the Commonwealth’s use of a peremptory challenge to exclude a man from the Dominican Republic…. [T]he parties disagreed about the potential juror’s race. The Commonwealth argued that the potential juror was ‘Hispanic’ and the defendant argued that he was black.” “The judge observed that the potential juror was ‘lighter skinned than [the defendant].’” Without “deciding how to consider the juror’s race,” “[t]he judge explained that he did not see a pattern because, in part, there were two black women on the jury.” On appeal, the defendant challenged “[t]he judge’s failure to inquire about the Commonwealth’s reason for excluding” the two black male jurors. Continue reading →

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breakout-1181601-300x213The Supreme Judicial Court recently came to a disappointing conclusion in Commonwealth v. Baez.  In the case, the SJC ruled that juvenile delinquency adjudications for violent offenses may serve as predicate offenses for enhanced penalties for adults convicted under G.L. c.269, §10G, the armed career criminal act (ACCA).

The background was as follows. “At age eighteen, the defendant … was indicted for a violation of G.L. c.269, §10(a), unlawful possession of a firearm. If convicted, and if he had no qualifying convictions for sentence enhancement, he would ‘be punished by imprisonment … for [no] more than five years.’” However, “[t]he defendant had twice been adjudicated delinquent for crimes of violence as defined by the Legislature; therefore, the Commonwealth charged the defendant with violating §10G,” which “mandates enhanced sentencing for adults who violate G.L. c.269, §10(a), (c), or (h), and have ‘been previously convicted of a violent crime or of a serious drug offense.’ G.L. c.269, §10G (a)-(c)…. Here, the Legislature imported the definition of ‘violent crime’ from G.L. c.140, §121, which includes ‘any act of juvenile delinquency involving the use or possession of a deadly weapon that would be punishable by imprisonment for such term if committed by an adult.’ See Commonwealthv. Anderson, 461 Mass. 616, 631, cert. denied, 568 U.S. 946 (2012).” “While the defendant’s current case was proceeding, a judge in the Superior Court raised sua sponte the issue whether using juvenile adjudications to enhance sentencing in the same manner as adult convictions violated due process rights and protections under the Eighth Amendment.” The judge reported the question “[w]hether in light of Millerv. Alabama, [567 U.S. 460 (2012)], a juvenile adjudication may be used as a predicate offense for enhanced penalties under G.L. c.269, §10G.” Continue reading →

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gun-1517016-300x225In Commonwealth v. Santiago, the Appeals Court reversed the denial of the defendant’s motion to suppress items seized from the vehicle in which he was a passenger, because the show of force by the police during the stop of the vehicle “was sufficiently significant to convert the stop to an arrest,” for which there was no probable cause.

The basic facts were as follows. A “confidential informant told police that the defendant was selling cocaine and was ‘involved with firearms.’” The police ascertained that the defendant had a prior conviction of a firearm offense. “Based on the informant’s report that the defendant would be traveling to Lynn to pick up cocaine,” the police initiated surveillance of the defendant. “During the course of the surveillance, officers observed the defendant, along with three other men,” travelling in a GMC vehicle. “The defendant was seated in the right rear passenger’s seat. The surveillance team followed the GMC surreptitiously” in unmarked vehicles. At some point, the GMC “suddenly more than doubled its speed…. Believing that the GMC’s occupants had detected the surveillance, officers decided to stop the [vehicle].” After the GMC pulled over, four “police cars moved in around the [vehicle], effectively boxing it in. Four or five officers simultaneously approached the GMC’s four doors, yelling for the occupants to raise their hands. At least two of the officers had their guns drawn. As one officer neared the GMC, he observed the defendant … reach forward, pull open the seat-back pocket in front of him, and stuff an object into it. Suspecting that the defendant had attempted to conceal a firearm, the officer opened the left rear door…. He observed a firearm in the seat-back pocket in front of the defendant.” Officers seized the firearm, a loaded revolver. “The defendant was arrested and searched, and just under $5,500 in cash was found on his person.” After the return of indictments charging the defendant with firearm offenses, he filed a motion to suppress the items seized during the stop of the GMC. The motion was denied. The defendant was convicted as charged. On appeal, “[h]e maintain[ed] … that his motion to suppress was improperly denied because” “police conduct during the stop [of the GMC] — including boxing the vehicle in and approaching with guns drawn — escalated the encounter to an arrest, for which probable cause was lacking.” Continue reading →

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info-sign-question-mark-1445039-300x265In Commonwealth v. Gomez, the Supreme Judicial Court ruled that conditional guilty pleas are permissible.

The background was as follows. Two police officers observed the defendant hand an object to another man (Zimmerman) in exchange for cash. When Zimmerman drove away from the site of the exchange, the officers followed and executed an investigatory stop, in the course of which they seized from Zimmerman’s pocket “a small glassine bag with a white powdery substance…. The officers arrested Zimmerman and then returned to the [location] where they had seen the defendant….  As the officers approached, the defendant reached toward his waistband. The officers each grabbed one of the defendant’s arms…. He moved and shook his body as if trying to remove something from his waist. The officers pat frisked him and found a loaded handgun. On searching him further, they found ammunition” and a glassine bag containing “a substance resembling heroin. The defendant was then arrested.” After the return of indictments charging the defendant with drug and firearm offenses, he filed a motion to suppress the evidence seized from him. The motion was denied. “Prior to the scheduled trial date, the defendant ‘indicated he wishe[d] to plead guilty and avoid the costs of trial, provided he [were] able to secure appellate review of the ruling on the motion to suppress and to withdraw his plea if he prevail[ed] on appeal.’ He argued that ‘the outcome of the trial is a fait accompli, effectively determined by the suppression ruling.’ The Commonwealth … would not agree to a conditional guilty plea…. [The] judge stayed the trial date and reported … the following question: ‘To avoid a trial that is otherwise only required to preserve appellate review of the denial of a dispositive pretrial motion, may the Superior Court, with the Commonwealth’s agreement or over the Commonwealth’s objection, accept a defendant’s guilty plea and sentence the defendant expressly conditioned on [the] defendant’s rights to appeal the denial of the specific dispositive pretrial motion and to withdraw his/her plea if defendant prevails on appeal?’” Continue reading →

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shhhh-1433634-225x300In Commonwealth v. Woods, the Supreme Judicial Court affirmed the denial of the defendant’s motion for a new trial.  The Court ruled that even if the defendant was a target of the grand jury investigation in this case, the Commonwealth was not obligated to warn him as to that status or to inform him of his Fifth Amendment right against self-incrimination.

The background was as follows. “In 2009, the defendant was convicted of murder in the first degree…. On direct appeal, he challenged the admission of his grand jury testimony …[,] arguing that it was illegally obtained, because he was not informed before testifying either that he was a target of a grand jury investigation, or that he had a right against self-incrimination. [In response, the SJC] concluded that the trial judge did not err in finding that the defendant was not a target of the grand jury … and affirmed his conviction. See Commonwealthv. Woods, 466 Mass. 707, 709, 716-720, cert. denied, 134 S.Ct. 2855 (2014) (Woods I).” The Court “added that ‘[e]ven if the defendant were a “target,” the Commonwealth was under no obligation to warn him of that status’ under Federal or State law. Id.[, 466 Mass.] at 717.” “[T]he Court also announced a prospective [nonconstitutional] rule, pursuant to its superintendence authority, requiring that grand jury witnesses who are targets or likely targets of a criminal investigation be given self-incrimination warnings before testifying…. Following Woods I, the defendant moved for a new trial, contending that facts not before the trial judge or this court during his direct appeal establish that the defendant was a target of a grand jury investigation; accordingly, the defendant argued, his grand jury testimony was improperly admitted, and he deserved a new trial. The motion judge, who was not the trial judge, disagreed, concluding that although the new facts raised in the defendant’s motion establish that he was a target of the investigation, [the SJC’s] holding in Woods I‘was not dependent on the finding that the defendant was not a target.’ The defendant then filed a petition before a single justice of the [SJC] pursuant to G.L. c.278, §33E, asking that his appeal from the denial of his motion be considered by the full Court. The single justice granted the petition.” Continue reading →

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gavel-2-1236453-300x200In a recent decision – Noe v. Sex Offender Registry Board – the Supreme Judicial Court ruled (1) that in sex offender registry reclassification proceedings initiated by an offender, the Sex Offender Registry Board (board) bears the burden of proof by clear and convincing evidence; and (2) that “indigent sex offenders have a right to counsel in such reclassification hearings.”

The background was as follows. “In Doe, Sex Offender Registry Bd. No. 380316v. Sex Offender Registry Bd., 473 Mass. 297, 298 (2015) …, [the SJC] held that [the board] is constitutionally required to prove the initial classification of a convicted sex offender under the sex offender registry law, G.L. c.6, §§178C-178Q, by clear and convincing evidence.” The same standards apply where the board initiates proceedings to reclassify an offender upward. “The board’s regulations specify a separate procedure for sex offenders seeking downward reclassification.” “The sex offender registry law does not specify the standard and burden of proof for [such] reclassification hearings…. However, the board’s regulations dictate that for offender-initiated motions for reclassification, the burden is on the offender to prove why downward reclassification is appropriate by clear and convincing evidence.” In this case, Noe “was classified as a level three sex offender in January, 2007. In the six years following his final classification, Noe lived in the community without any further sexual reoffenses. In January, 2013, he filed a request for downward reclassification and was granted a hearing before the board…. [A] majority of the [panel of examiners] concluded by a preponderance of the evidence that Noe ‘remains a high risk of re-offense.’…. Accordingly, Noe’s request for reclassification was denied…. Noe sought judicial review of the board’s decision in the Superior Court, “includ[ing] claims for declaratory relief under G.L. c.231A, §1, challenging the board’s procedures for failing to provide a right to counsel in the reclassification hearing and [for] placing the burden of proof in reclassification on the offender by clear and convincing evidence.” The Superior Court judge vacated the board’s denial of Noe’s request for reclassification. The judge “declared that the board’s regulations, which place the burden of proof on the offender seeking reclassification, violate the offender’s right to due process under the Fourteenth Amendment … and art. 12 of the Massachusetts Declaration of Rights. The judge further declared that the board’s failure, through its regulations and procedures, to provide counsel for indigent offenders who seek reclassification violates G.L. c.6, §178L(3). The board appealed.” Continue reading →

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police-car-1515955-300x225In Commonwealth v. Bones (http://www.socialaw.com/services/slip-opinions/slip-opinion-details/commonwealth-vs.-leonides-bones), the Appeals Court affirmed the defendant’s conviction of possession of a class A controlled substance with intent to distribute, ruling that the judge properly denied the defendant’s motion to suppress.

The basic facts were as follows. Chelsea police sergeant Dunn “responded to a call from a party reporting possible drug activity…. On Division Street, … Dunn observed a black male matching the caller’s description. From prior encounters, … Dunn recognized the man as the defendant….  Dunn observed the defendant ‘drinking out of a nip type bottle of alcohol’ while he was walking down the sidewalk…. Dunn stopped his cruiser and got out to speak with the defendant.” Upon seeing Dunn approaching him, “the defendant said, ‘I’m sorry, I didn’t see you. I’ll dump it out,’ and began dumping [the] contents of the bottle of alcohol onto the sidewalk…. Dunn did not order the defendant to stop drinking the alcohol or make any other show of authority.” As Dunn later “testified without objection[,] … ‘drinking alcohol in public is an arrestable offense in the [c]ity of Chelsea.’ He … detained the defendant to see whether he had any active warrants. After determining that the defendant did have an active warrant for his arrest, … Dunn and other officers who had arrived on scene arrested the defendant on the warrant and transported him to Chelsea police headquarters.” There, “the officers conducted an inventory of the defendant’s personal property.” Upon removing the defendant’s shoes, “[t]he officers noticed a bulge protruding from the defendant’s sock…. In [the] sock, [they] found a large plastic bag filled with fifteen individually wrapped smaller bags of heroin.” Upon the return of indictments against the defendant, he filed a motion to suppress the drugs on the ground that “Dunn was not justified in detaining him to check for warrants because drinking in public is not a crime under either the General Laws of the Commonwealth or the ordinances of the city of Chelsea.” The judge denied the motion and the defendant was convicted of possession of a class A controlled substance with intent to distribute. On appeal, he challenged the judge’s rejection of his argument for suppression of the drugs.

In its decision, the Appeals Court stated that “[t]he defendant’s argument fails for several reasons. First and foremost, the defendant overlooks the testimony by Sergeant Dunn, credited by the judge, that drinking an alcoholic beverage on the street or a sidewalk in the city of Chelsea is a criminal offense. In Massachusetts, the contents of a municipal bylaw or ordinance may be proved by oral testimony…. Here, … Dunn testified without objection that in the city of Chelsea, drinking alcohol in public is an arrestable offense. See G.L. c.272, §59 [] (providing that person who, in public, willfully violates ordinance ‘the substance of which is the drinking or possession of alcoholic beverage,’ is subject to arrest)…. The detention of the defendant for purposes of conducting a check for active warrants therefore was valid, because … Dunn had probable cause to arrest the defendant for violating the ordinance prior to his detention…. Accordingly, … Dunn’s subsequent arrest of the defendant based on an outstanding warrant was valid.”

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cell-phone-tower-3-1236272The Appeals Court recently issued a decision in Commonwealth v. Raspberry, which affirmed the denial of the defendant’s motions to suppress guns seized from her vehicle.  In the decision, the Appeals Court ruled (1) that the warrantless search of CSLI (cell site location information) by the police was justified pursuant to the emergency aid exception to the warrant requirement; and (2) that the ensuing warrantless search of the defendant’s vehicle was justified pursuant to the automobile exception.

The basic facts were as follows. “[A]s part of a joint investigation with Federal authorities, the Boston police were conducting a wiretap of the telephone line of one Mike Coke pursuant to a Federal court order.” On the date in question, an officer in the ‘wire room’ was monitoring a call from Coke to an unidentified woman, and he heard her say that she was “‘going to get the fucking gun’” and was “‘going right there, right now’” to shoot someone who “‘took [her] fucking money.’” “The wire room officer found the call ‘alarming’ in that the woman on the call ‘intended to use a firearm to shoot someone.’ He checked her telephone number in various databases and identified her as the defendant. The police [inferred] that the defendant was referring to [a man named] Dorsey, with whom she had been in ‘some type of romantic relationship.’” A short time after “hearing the defendant’s threat, the officer called AT&T to initiate an ‘exigent [circumstances] request.’” He explained “that a person using an AT&T cellular telephone … might have a gun and might be about to harm another person. [The officer] provided the defendant’s cell phone number and asked AT&T to perform ‘emergency pings’ and give the police real-time CSLI [cell site location information] about the approximate location of the defendant’s cell phone. AT&T agreed to assist, and it began sending the results of the pings to [the officer] at … fifteen-minute intervals. The officer mapped the location of each ping result as it was received and shared this information with officers in the field attempting to find the defendant.” The CSLI tracked the movement of the defendant’s cell phone to an area near the housing project where Dorsey’s girl friend resided. At that point, “the officer in the wire room, still monitoring Coke’s phone calls, listened to a second conversation between Coke and the defendant. In this call, the defendant said, ‘I’m sitting right in front of [Dorsey’s girl friend’s apartment.]’…. The defendant further stated that she was going to ‘shoot [Dorsey] and his bitch in the face’; that she knew Dorsey was in the apartment because he had been texting her; [and] that she was waiting for him…. She added that if Dorsey sent anyone to attack her, it would be a ‘firefight’” Several minutes later, police officers located the defendant sitting in her car. An officer approached her and “asked her for her license and registration. When she said she did not have a license, she was ordered out of the vehicle and arrested for operating without a license.” The police then searched her car and “found a stun gun in the defendant’s purse in the passenger compartment and a loaded gun in the trunk.” After the return of indictments against the defendant, she “filed separate motions to suppress the fruits of (1) the warrantless CSLI search of her location and (2) the warrantless search of her motor vehicle.” The judge denied the motions, ruling that the CSLI search was justified under the emergency aid exception to the warrant requirement and that the search of the vehicle was justified under the automobile exception. The defendant filed an interlocutory appeal. Continue reading →

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mobile-in-hand-1239462-300x200In Commonwealth v. Fragata, the Supreme Judicial Court ruled that the evidence was insufficient to support the defendant’s conviction of intimidating a witness under G.L. c.268, §13B(1)(c)(i).

The background was as follows. “[T]o convict the defendant of witness intimidation under [the statute], the Commonwealth had to prove that (1) a possible criminal violation occurred that would trigger a criminal investigation or proceeding; (2) the victim would likely be a witness or potential witness in that investigation or proceeding; (3) the defendant engaged in intimidating behavior, as defined in the statute, toward the victim; and (4) the defendant did so with the intent to impede or interfere with the investigation or proceeding, or in reckless disregard of the impact his conduct would have in impeding or interfering with that investigation or proceeding.” In this case, the defendant and the alleged victim, who were in romantic relationship, “hosted a small gathering in [their] apartment…. After their guests left, the defendant screamed at the victim and called her ‘nasty names.’ The victim began to cry and told the defendant that she was going to telephone 911. The defendant immediately took the victim’s cellular telephone from her and begged her not to call the police. The victim told the defendant that she wanted to leave and that she was still going to call 911. As soon as she ran to the door to get out and call 911, the defendant stood in front of the door; grabbed the victim by the arms, causing them to bruise; and pushed the victim aside, again begging her not to call 911. Then, while the victim was sitting on a couch, the defendant approached her, grabbed her throat, and started choking her, hitting her head against the wall. After that attack, the victim sat on the couch and cried; the defendant had told her that he would not let her leave and she did not feel free to do so. Finally, after about thirty to forty-five minutes, the victim was able to grab her cellular telephone, leave the apartment, and call 911 from across the street.” At the defendant’s trial for intimidation of a witness, “[t]he Commonwealth’s theory … was that the defendant violated §13B(1)(c)(i) by taking away the alleged victim’s cellular telephone to prevent her from calling 911 for help after he had verbally assaulted her.” On appeal, “the defendant contend[ed] … that the evidence was insufficient to sustain his conviction of witness intimidation under §13B(1)(c)(i), because no view of the evidence would have allowed the jury to conclude that he had committed any crime before he took the victim’s cellular telephone.” Continue reading →