Law Commentary

Published on: September 24, 2018

Appeals Court Deals a Blow to Warrant Requirement for Cell Site Location Information

The 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 →

Published on: September 22, 2018

Supreme Judicial Court Reverses Defendant’s Conviction for Witness Intimidation Due to Insufficient Evidence

By Daniel Cappetta

In 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 →

Published on: September 17, 2018

Appeals Court Affirms Denial of Mistrial Due to Juror Bias

By Daniel Cappetta

In Commonwealth v. Hart, the Appeals Court ruled that the judge did not abuse her discretion in denying the defendant’s motion for a mistrial due to juror bias.

The background was as follows. The defendant is African-American. Prior to the commencement of proceedings on the third day of the defendant’s trial, “the court officer went [to the jury room] to say hello to the jurors, none of whom was African-American.” In response to the court officer’s greeting, “juror no. ten said, ‘Good morning, it’s a good day for a hanging.’ Although the court officer stated that most jurors said, ‘I can’t believe you said that,’ juror no. six claimed that he thought some jurors laughed. The court officer informed the judge, who conferred with counsel. The judge and defense counsel agreed that, given the sorry history of lynchings of African-Americans in the United States, this comment by a juror who was not African-American had overtones of racial bias. The prosecutor … agreed that a voir dire of all the jurors was proper. The judge then interviewed juror no. ten and dismissed him…. [T]he judge apologized to the defendant and said, apparently reflecting her understanding of the racial overtones of [juror no. ten’s] comment, ‘I really do believe that most jurors don’t believe, or have the beliefs that this juror expressed.’ She then conducted a voir dire of each [remaining] juror, asking them, in substance, whether they heard juror no. ten’s comment[] … and whether they were satisfied that they could fairly and impartially decide the case.” The judge also asked some of them “how the other jurors reacted.” “It was during this voir dire that juror no. six stated that he thought some of the other jurors laughed at juror no. ten’s comment. The judge concluded that each juror could continue to serve. While defense counsel did not request that the judge conduct further or more detailed inquiry, and thanked the judge for the process she had undertaken, he nonetheless moved for a mistrial. The motion was denied and the defendant appealed. Continue reading →

Published on: September 5, 2018

SJC Affirms Court’s Ability to Order Defendant to Remain Drug Free Despite Diagnosed Substance Use Disorder

By Daniel Cappetta

In Commonwealth v. Eldred, the Supreme Judicial Court affirmed the revocation of the defendant’s probation and concluded (1) that “a judge may order a defendant who is addicted to drugs to remain drug free as a condition of probation”; and (2) that where a defendant has violated that condition, the judge has the authority, pending the final probation violation hearing, to detain the defendant while she awaits admission into inpatient treatment “for the safety of the defendant and the community.”

The background was as follows. Charged with the theft of jewelry, “[t]he defendant admitted to the police that she had stolen the jewelry and had sold it to obtain money to support her heroin addiction.” Subsequently, she admitted to sufficient facts to warrant a finding of guilt. The District Court judge “continued the defendant’s case without a finding, and imposed a one-year term of probation with special conditions related to her substance abuse that included requiring her to remain drug free, submit to random drug screens, and attend outpatient substance abuse treatment three times each week.” “[O]nly eleven days after … the probation had been imposed, the defendant tested positive for fentanyl, following a random drug test administered by her probation officer…. The … officer then filed a ‘Notice of Probation Detention Hearing’ with the District Court,” seeking to hold the defendant in custody pending a probation revocation hearing to determine whether her probation should be revoked.

At “the detention hearing, the judge … determined that there was probable cause to believe the defendant had violated the ‘drug free’ condition of her probation by using fentanyl. Because defense counsel was not able to secure a placement for the defendant at an inpatient treatment facility [that day], the judge ordered that the defendant be held in custody until a placement became available. The defendant was released into an inpatient treatment facility after ten days in custody.” Two months later, “a different District Court judge presided over the defendant’s probation violation hearing. Despite conceding that she had used fentanyl, the defendant contested that she had violated the terms of her probation.” She contended that because “she had been diagnosed with SUD [substance use disorder, i.e., addiction],” she was “incapable of remaining drug free,” such that “her use of drugs could not constitute a wilful violation of her probationary condition to remain drug free…. The judge determined that the defendant had violated the drug free condition of her probation by testing positive for fentanyl. The defendant filed a motion to vacate the condition of probation requiring her to stay drug free, arguing that the condition violated various State and Federal constitutional rights. That motion was denied. The judge then modified the conditions of the defendant’s probation by adding the condition that she continue inpatient treatment.” The defendant appealed. Continue reading →

Published on: September 2, 2018

SJC Affirms Dismissal of OUI Related Charges Under “No Fix” Statute

By Daniel Cappetta

In Commonwealth v. O’Leary, the Supreme Judicial Court affirmed the dismissal of the indictments charging the defendant with various motor vehicle offenses because the police did not comply with the requirements for issuance of citations set forth in the so-called “no-fix” statute (G.L. c.90C, §2).

The background was as follows. The “no-fix” statute provides that a police officer responding to an automobile law violation should prepare a citation and give it to the violator as promptly as possible. Under the statute, “[a] failure to give a copy of the citation to the violator at the time and place of the violation shall constitute a defense in any court proceeding for such violation, except where the violator could not have been stopped or where additional time was reasonably necessary to determine the nature of the violation or the identity of the violator, or where the court finds that a circumstance, not inconsistent with the purpose of this section to create a uniform, simplified and non-criminal method for disposing of automobile law violations, justifies the failure. In such case the violation shall be recorded upon a citation as soon as possible after such violation.” In this case, state trooper Gray “responded to an accident on a highway off-ramp. Gray arrived to find that a single vehicle had rolled over.” The driver of the vehicle (the defendant) and a passenger (Murphy) had been injured in the accident. The defendant and Murphy were transported to a hospital. “Gray followed the ambulances to the hospital to interview the defendant and Murphy…. [T]he defendant admitted [to Gray] … that he had had ‘a couple of beers.’ The defendant’s ‘eyes were glassy’ and ‘his speech was slurred.’ At the time of the accident, the defendant was on probation for operating a motor vehicle while under the influence of alcohol (OUI), subsequent offense. His license had been suspended, and he was not legally permitted to drive. Gray informed the defendant that he would be receiving a summons in the mail for OUI, a marked lanes violation, and operating with a suspended or revoked license. Gray did not issue a citation at that time. [He] later submitted his investigation report to his supervisor, who approved the report nine days later…. On that day, Gray issued citations” and mailed them to the defendant. “A Superior Court judge granted the defendant’s motion to dismiss on the ground that Gray had failed to issue a citation ‘at the time and place of the violation,’ as required under §2, and because the Commonwealth did not meet its burden of demonstrating that an exception in §2 applied.” The Commonwealth appealed.

Continue reading →

Published on: August 31, 2018

SJC Reverses First Degree Murder Conviction on Jurisdictional Grounds

By Daniel Cappetta

The Supreme Judicial Court reversed the defendant’s convictions of first-degree murder and a related offense in Commonwealth v. Combs. The Court based its decision on the ground that the evidence was insufficient to prove that the victim, whose body was discovered in Connecticut, was killed in Massachusetts.

The background was as follows. The Commonwealth’s theory was that the defendant acted as part of a joint venture with a person named Manny to rob and murder the victim. There was evidence that at 10:20 a.m. on January 22, 2010, the victim, who was driving a white SUV, picked up Manny from his place of work in Hartford, Connecticut. “Both men sold cocaine, and they had arranged a drug deal. The plan also involved the defendant,” an acquaintance of Manny. The victim and Manny drove to the Springfield apartment of the defendant’s girl friend (where the defendant often stayed), arriving sometime shortly before 11:00 a.m. “The jury could reasonably infer that the victim was alive when [the SUV] arrived at the Springfield apartment.” A neighbor “saw the defendant in the front yard, signaling to Manny to drive the SUV over the grass on the side of the [building] and around to the back yard…. [The neighbor] witnessed Manny step out of the vehicle and show the defendant something in the back seat…. [Manny and the defendant] appeared ‘excited.’” “After spending approximately thirty minutes … at the apartment, at around 11:40 a.m., Manny and the defendant began driving back toward Hartford. It is not clear whether the victim was alive at this time. Manny traveled in the victim’s SUV, presumably with the victim or the victim’s body, while the defendant followed them in his mother’s Pontiac Grand Prix automobile.” Shortly after noon, the men were in the Bloomfield, Connecticut, area. Continue reading →

Published on: August 29, 2018

SJC Reverses Trial Court’s Decision Ordering Disclosure of Confidential Informant

By Daniel Cappetta

In Commonwealth v. D.M., the Supreme Judicial Court reversed the single justice’s denial of the Commonwealth’s petition for relief from an interlocutory order of the Juvenile Court, requiring the Commonwealth to reveal the identity of an informant.

The background was as follows. “Acting on information provided by a confidential informant, the Boston police apprehended, searched, and arrested the juvenile, D.M., on firearm-related charges. Before a hearing on the motion to suppress in the Juvenile Court, the juvenile sought an order requiring the Commonwealth to disclose the identity of its informant and other related information. The Commonwealth asserted that it was privileged not to disclose the information, … because disclosure would jeopardize the informant’s safety. It averred that the informant was not a percipient witness to the juvenile’s arrest, and that the juvenile had not met his burden of demonstrating that disclosure was required…. [T]he judge allowed the juvenile’s motion. The judge determined that … the juvenile adequately had challenged the assertion of the privilege on the ground that it interfered with his right to present a defense…. The judge concluded that the ‘informant’s identity and concomitant information are sufficiently “relevant and helpful to the defense of an accused” that it must be disclosed.’ [Commonwealthv. Bonnett, 472 Mass. 827,] 847 [2015], quoting Commonwealthv. Dias, 451 Mass. 463, 468 (2008). The Commonwealth thereafter filed a G.L. c.211, §3 petition …, seeking reversal of the interlocutory ruling…. The single justice denied the petition, and the Commonwealth appeal[ed].” Continue reading →

Published on: August 25, 2018

SJC Overturns Restitution Order Pursuant to Commonwealth v. Henry

By Daniel Cappetta

In Commonwealth v. Vallejo, the Supreme Judicial Court vacated the judge’s order requiring that the defendant pay restitution because the judge’s findings were inadequate as to whether the defendant had sufficient resources to fulfill that obligation.

The background was as follows. “The defendant … admitted to facts sufficient for a finding of guilty of operating a motor vehicle while under the influence of intoxicating liquor…. Her operator’s license was suspended, and she received a continuance without a finding for one year, with probationary conditions including payment of $140 in restitution. The defendant appealed, claiming In its decision, the SJC “conclude[d] that the judge failed to make adequate findings to support an order of restitution.” The Court stated, “Before any such order may be entered, … ‘the judge must determine the amount the defendant is able to pay.’…. Commonwealthv. Henry, 475 Mass. 117, 121 [] (2016).” Continue reading →

Published on: August 22, 2018

Appeals Court Holds that First Time CI’s Controlled Buy Plus Corroboration was Sufficient to Establish Veracity

By Daniel Cappetta

In Commonwealth v. Monteiro, the Appeals Court reversed the suppression of items seized by the police from the defendant’s apartment because the judge erroneously ruled that “the information provided by a first-time, confidential police informant (CI) was [not] sufficiently corroborated by a single, imperfectly executed controlled ‘buy’ of cocaine for the purposes of establishing probable cause [in the affidavit in support of an application for] a warrant to search the defendant’s apartment.”

The basic facts were as follows. A police detective (Gracia) spoke with a first-time CI, who reported that he regularly purchased cocaine from the defendant. Gracia and the CI met “to arrange a controlled buy of cocaine from the defendant. The CI was searched and determined to be free of contraband and money…. Gracia then gave the CI money to purchase cocaine from the defendant…. Gracia and other [officers] maintained surveillance of the CI. They observed the CI walking toward the rear exterior door of the defendant’s apartment building. A short time later, the CI was seen leaving the walkway [outside of] the rear exterior door. The defendant was not observed entering or exiting the apartment building through the rear exterior door. The CI was kept under surveillance until [he] met … Gracia at a predetermined location where the CI provided … Gracia with a quantity of what” was later determined to be cocaine. “The CI stated that [he] purchased the cocaine from the defendant inside [the latter’s] first-floor apartment. The CI was again searched and determined to be free of money and contraband.” Based on the controlled buy, Gracia procured a warrant to search the defendant’s apartment. During the search, the police found drugs and drug paraphernalia, which led to the return of an indictment charging the defendant with trafficking in cocaine. The defendant filed a motion to suppress the seized items on the basis that the police affidavit in support of the application for a warrant did not establish probable cause. The judge allowed the motion, on the ground that under the Aguilar–Spinelli test, the affidavit failed to establish the CI’s veracity. The Commonwealth appealed. Continue reading →

Published on: August 17, 2018

SJC Affirms Murder Conviction Despite Prosecution’s Comments on Defendant’s Pre-arrest Silence

By Daniel Cappetta

The Supreme Judicial Court affirmed the defendant’s conviction of first-degree murder in Commonwealth v. Gardner, despite the fact that the prosecutor questioned the defendant about his pre-arrest silence at trial. In the ruling, the Court stated that although the prosecutor’s questions and comments concerning the defendant’s pre-arrest silence were improper, the errors did not create a substantial likelihood of a miscarriage of justice.

The background was as follows. On November 5, 2011, the defendant and the victim “met to conduct a drug transaction at a house in New Bedford…. Four days later, … the police found the victim’s body … hidden beneath the basement stairs of that house. The police also found … a trash bag outside the house that contained clothing and a hammer bearing both the victim’s and the defendant’s blood. Further investigation showed that the victim had died of blunt force trauma to the head.” On November 9, police officers in Fairfield, Connecticut, “learned that the victim’s Honda Civic was at a rest area off of Interstate Route 95. When the first officer arrived, she observed … the defendant sitting in the driver’s seat” of the Honda. “When the defendant saw the police cruiser, he fled in the [Honda], reaching speeds in excess of one hundred miles per hour…. [He] eventually lost control of the vehicle, abandoning it in a wooded area.” Officers arrested the defendant and transported him to a police station in Fairfield, where he was questioned by a Massachusetts state trooper and a New Bedford police detective. “The interview was recorded and later shown to the jury at trial…. [The defendant told the officers] that he was traveling with a ‘buddy’ who was going to Florida.” The defendant said that “[e]n route, they pulled off at the Fairfield rest stop, where they remained for two days. The defendant said that his friend had been inside a restaurant at the rest stop when the police cruiser had appeared…. After some prompting, the defendant indicated that the person he had been traveling with was the victim.” At trial, the defendant testified that he “killed the victim with the hammer that the police had found, but claimed that he had acted in self-defense.” He stated that the victim had punched him after the two had argued over the amount of money owed by the defendant for his purchase of heroin. “[T]he prosecutor repeatedly cross-examined the defendant about his failure to contact the police during the period between the victim’s death on November 5, 2011, and his arrest on November 9, 2011.” On appeal, the defendant argued that the prosecutor’s cross-examination and subsequent comments in closing argument regarding the defendant’s pre-arrest silence violated his rights under the common law and art. 12 of the Massachusetts Declaration of Rights. Continue reading →