Law Commentary

Published on: April 3, 2018

Appeals Court Issues Decision Addressing CSLI Data

The 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: April 1, 2018

SJC Deems Anonymous Reporter Sufficiently Reliable in Road Rage Incident

By Daniel Cappetta

In 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.”

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Published on: March 31, 2018

SJC Declines to Extend Atkins, Miller to Developmentally Disabled Defendants

By Daniel Cappetta

In Commonwealth v. Jones, the Supreme Judicial Court affirmed the defendant’s first-degree murder conviction and ruled that the imposition of a mandatory sentence of imprisonment for life without the possibility of parole on a developmentally disabled person does not constitute cruel and unusual punishment.

The background was as follows. The defendant killed the manager of the restaurant where he worked by stabbing and beating her. At trial, the defense was that the defendant was not criminally responsible. “The … consensus of all the experts who testified at the [numerous] competency hearings [in this case] … was that the defendant suffer[ed] from … ‘pervasive developmental disorder not otherwise specified,’” “a variation of autism.” There was evidence that “the defendant contracted spinal meningitis when he was six months old,” “which resulted in permanent, organic brain injury.” The defendant “demonstrated significant impairment in language processing and verbal communication…. He … had difficulty in interacting with people, was bullied as a child because of his lack of social skills and inability to communicate, and exhibited outbursts and uncontrollable behavior as a child.” Upon the return of the jury’s verdict of guilty of first-degree murder, the judge sentenced the defendant to life in prison without the possibility of parole. On appeal, the defendant “argue[d] that a mandatory sentence of life in prison without the possibility of parole, imposed on a developmentally disabled individual, constitutes cruel and unusual punishment in violation of” the Eighth and Fourteenth Amendments and art. 26 of the Massachusetts Declaration of Rights.

In its decision, the SJC stated, “The defendant asks that we extend the United States Supreme Court’s holding in Atkins v. Virginia, 536 U.S. 304, 321 (2002), that imposition of the death penalty on a person with an intellectual disability violates the United States Constitution, to imposition of a mandatory sentence of life in prison without the possibility of parole on defendants with developmental disabilities.” The Court noted that “[i]n support of this argument, the defendant relies on [various other] cases from the United States Supreme Court,” including Miller v. Alabama, 567 U.S. 460, 470 (2012), which held “that a mandatory sentence of life in prison without the possibility of parole for juveniles who commit murder is unconstitutional…. We have extended the Court’s holding in Miller … in deciding that even the discretionary imposition of a sentence of life without the possibility of parole on juveniles is in violation of art. 26. See Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 674 (2013), S.C., 471 Mass. 12 (2015).” However, stated the SJC, “[a]t this time, we decline to extend Atkins … and Miller …, either to eliminate sentences of life in prison without the possibility of parole for people with developmental disabilities or to require that such sentences be discretionary rather than mandatory.” In the Court’s view, the “concerns [expressed in Atkins regarding the special vulnerabilities of intellectually disabled persons] are less extreme … when an individual is facing a prison sentence, even when it is life without parole, than when an individual faces the death penalty.

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Published on: March 27, 2018

SJC Declines to Overturn Santana “Authorization Approach”

By Daniel Cappetta

The 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: March 20, 2018

SJC Affirms Suppression of Gun Where Police Exceeded Scope of Search

By Daniel Cappetta

In 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: March 15, 2018

SJC Overturns Drug Conviction Where Scientific Reliability of Field Testing Was Not Properly Evaluated Under Daubert/Lanigan

By Daniel Cappetta

In Commonwealth v. Rodriguez, the Appeals Court reversed the defendant’s conviction of trafficking in heroin because the field test of the purportedly illegal substance seized by the police was not evaluated for scientific reliability under the Daubert/Lanigan standard (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 [1993]; Commonwealth v. Lanigan, 419 Mass. 15, 26 [1994]).

The background was as follows. In April, 2009, Boston police officers executed warrants to search the defendant’s apartment, his vehicle, and his person. In a bedroom closet, “the police found … a small pouch that contained nine individually wrapped packages, or ‘fingers,’ of a substance that resembled sidewalk chalk. A search of the defendant’s person yielded two similar packages. Officer … England took the eleven packages to the police station and conducted a field test using a NarcoPouch 924 test kit.” The field test indicated that the substance was heroin. “The eleven packages were sent to the William A. Hinton State Laboratory Institute … for testing. As the primary chemist assigned to the case, Annie Dookhan ‘received [the packages] from the evidence office[,] … checked [them,] and [did] all the preliminary testing, which included doing the net weight, doing color tests, [and] perhaps … other kinds of testing.’ Della Saunders, the confirmatory chemist, received eleven vials prepared by Dookhan and tested them, concluding that ‘they were positive for the presence of heroin.’ Both Dookhan and Saunders certified that the packages seized from the defendant’s closet and person contained heroin. Continue reading →

Published on: March 15, 2018

Appeals Court Rules that Motion to Suppress ID Should Have Been Allowed

By Daniel Cappetta

In 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: March 6, 2018

SJC Carves out Exception for Judge’s Authority to Dismiss Prior to Arraignment

By Daniel Cappetta

In Commonwelth v. Orbin O., a juvenile, the Supreme Judicial Court issued a decision addressing a Juvenile Court judge’s authority to dismiss a case prior to arraignment. Unlike the decision recently issued in Newton N., however, the SJC ruled that the judge in this case did have the authority to dismiss the complaint prior to arraignment. The SJC specifically held that where a delinquency complaint is sought by a private party under G.L. c.218, §35A ((rather than by the police, as in Newton N.), and where the prosecutor does not affirmatively move for arraignment, “a judge considering [the] juvenile’s motion to dismiss prior to arraignment may consider whether the clerk-magistrate abused his or her discretion in issuing the complaint and, in doing so, may consider whether dismissal is in the best interests of the child and in the interests of justice.”

The background was as follows. “[T]he fourteen year old juvenile was in class at the charter school he attended. [He] became frustrated during a classroom interaction with the paraprofessional instructor assigned to the class, prompting the instructor to tell the juvenile to take a break, which was in keeping with the juvenile’s individualized education program (IEP)…. The juvenile swore at the instructor, and when the instructor told the juvenile he needed to go to the office, the juvenile replied, ‘Fight me.’ The instructor … stood in front of the classroom door while the juvenile remained in the classroom. When the juvenile ‘shouldered’ into the instructor in an attempt to leave the classroom, the instructor placed the juvenile in a ‘basket hold’ for approximately thirty seconds as a safety maneuver. As the juvenile struggled against the basket hold, he elbowed the instructor in the face.” “[T]he vice-principal of the … school filed an application under G.L. c.218, §35A, for a delinquency complaint, alleging that the juvenile [had] committed an assault and battery … against [the] instructor…. Following a show cause hearing, the clerk-magistrate issued a … complaint…. The juvenile then moved to dismiss the complaint before arraignment.” The Juvenile Court judge allowed the motion on the ground “that the instructor ‘caused the touching’ by physically blocking the juvenile from leaving the classroom when ‘[the juvenile] was trying to deescalate a situation using steps the [school] incorporated into his [IEP].’ The judge concluded that, under these circumstances, there was not probable cause to believe that the juvenile acted intentionally or recklessly…. The Commonwealth appealed.” Continue reading →

Published on: February 28, 2018

SJC Sets Limits on Juvenile Court’s Ability to Dismiss Prior to Arraignment

By Daniel Cappetta

The Supreme Judicial Court recently issued a decision in Commonwealth v. Newton N., a juvenile addressing a judge’s authority to dismiss a delinquency complaint against a juvenile prior to arraignment. In its decision, the SJC vacated the dismissal of the delinquency complaint against the juvenile defendant, holding that the Juvenile Court judge did not have the authority to dismiss the “complaint before arraignment where the complaint was supported by probable cause and where the prosecutor wished to proceed to arraignment.”

The background was as follows. “[P]olice officers were dispatched to [an] apartment complex … in response to a report that a young boy … was making noise and carrying a gun.” When officers approached the boy, who was twelve years old, he “‘loudly curs[ed]’ at them…. The boy sounded ‘deranged[,] making no sense at times.’” The police escorted the boy to his home, where he “declared himself to be ‘Satan’ and said ‘we have weapons’ and ‘we are going to kill everyone.’” The police called for an ambulance so that the juvenile could be transported to a hospital for a mental evaluation. “As the juvenile waited for the ambulance, he … hit himself on the head with closed fists.” In the ambulance, “he began punching himself in the genitals with his closed fists and had to be placed in restraints. The ambulance report indicated that the juvenile had an autism diagnosis and that he had not received his morning medication.” On the basis of the juvenile’s actions that precipitated the initial report to the police, an “officer applied for and obtained a delinquency complaint from a clerk-magistrate, charging the juvenile with [several offenses, including] disorderly conduct…. The Commonwealth moved for arraignment and the juvenile moved pre-arraignment to dismiss the … complaint. The Juvenile Court judge … allowed the juvenile’s motion…. The judge noted that each of the alleged offenses included an element of specific intent. [She] concluded … that there was not sufficient evidence as to the element of intent or the element of recklessness (for the charge of disorderly conduct) to support a finding of probable cause. [She] determined, based on the juvenile’s statements and actions, that the juvenile ‘was acting in a diminished, if not psychotic state, and therefore could not have possessed the requisite mental state.’…. The judge further reasoned that the juvenile’s age … was a ‘relevant’ consideration in determining probable cause…. [She] added: ‘It is not only in the best interest of [the juvenile] but in the interest of justice to dismiss these four charges prior to arraignment. [The juvenile] is a child in need of aid.’” The Commonwealth appealed from the dismissal. Continue reading →

Published on: February 21, 2018

SJC Weighs in on Bail Revocation

By Daniel Cappetta

In Josh J., a juvenile v. Commonwealth, the SJC ruled “that where an individual has been released on bail pursuant to G.L. c.276, §58, and there is probable cause to believe the individual committed a crime while released on bail, the Commonwealth may seek to revoke bail under either §58 or §58B.”

The background was as follows. “On May 6, 2016, a delinquency complaint issued charging the juvenile with [two offenses]. A judge in the Juvenile Court set the juvenile’s bail at $1,000…. The juvenile posted bail and was released. In August, 2016, two delinquency complaints issued against the juvenile for several new crimes he allegedly committed while on release on the pending charges…. In November, 2016, based on the new charges, the Commonwealth sought to revoke the juvenile’s bail pursuant to G.L. c.276, §58. A Juvenile Court judge allowed the Commonwealth’s motion, revoked the juvenile’s bail, and set a date for a bail review hearing on January 30, 2017, which amounted to a ninety-day bail revocation. By January 10, 2017, the charges stemming from the juvenile’s conduct while he was released on bail had been resolved. The juvenile continued to be held on the original charges, however, so he moved to vacate the bail revocation order, but the judge who had revoked bail denied that motion. In response, the juvenile filed an emergency petition … pursuant to G.L. c.211, §3.” He “claim[ed] that the judge erred in applying the ninety-day revocation period under … c.276, §58B, as opposed to the sixty-day revocation period under … c.276, §58, after finding probable cause to believe that the juvenile had committed a crime while released on bail under §58. The crux of the juvenile’s argument is that because bail can be revoked under either §58 or §58B, where an individual commits a crime while on release, the statutes create an ambiguous bail revocation framework, and therefore, the rule of lenity requires the application of the sixty-day revocation period under §58.” The single justice reserved and reported the juvenile’s petition to the full SJC. Continue reading →