Articles Posted in Law Commentary

In 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 →

The 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 →

In 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.”

In a recent decision, Commonwealth v. Thomas, the Supreme Judicial Court made several important pronouncements in reference to its decision in Commonwealth v. Silva-Santiago, 453 Mass. 782 (2009), and subsequent developments.

The background was as follows. The defendant and a woman named Johnson were passengers in a vehicle driven by Johnson’s cousin, Humphrey-Frazer. As the vehicle approached a group of people standing in front of a house, “[t]he defendant leaned out of the rear driver’s side window and fired” several shots toward the group. “The defendant’s gunshots were met by return fire; a bullet penetrated a window of the vehicle and struck Humphrey-Frazer in the head, killing him.” During the police investigation of the incident, Johnson told the detectives that she was acquainted with the defendant and “would recognize him if she saw him. The detectives then stopped the interview in order to perform an identification procedure. They presented Johnson with a computer screen that simultaneously displayed photographs of eleven individuals” and asked her if any of the individuals was involved in the incident. Johnson selected the defendant’s image as depicting the person she had observed firing a gun out of the window of the vehicle. Although Johnson said that she had seen the gun, “her description of [it] provided no detail that would suggest that she could identify anything more than its type.” “After the interview [of Johnson], an arrest warrant issued against the defendant.” Subsequently, the police observed the defendant “riding a motorized scooter [after dark] and pursued him, using their lights and sirens in an attempt to cause him to stop. The defendant drove the scooter [on]to a grassy area” and then back onto the street, where he was apprehended. “The next morning, a canine unit from the State police searched the grassy area and found a [loaded] handgun.” Subsequently, the police showed that gun to Johnson who, in response to improperly suggestive questioning by the detectives, asserted that it “‘look[ed] just like’” the weapon fired by the defendant during the incident in which Humphrey-Frazer was killed. The police then made inappropriate confirmatory statements to Johnson regarding her identification of the gun. After the return of indictments against the defendant on various charges, he filed a motion to suppress Johnson’s identification of him (which was denied) and her identification of the gun (which was allowed). The parties cross-appealed from those rulings.

In its decision affirming the denial of the defendant’s motion to suppress Johnson’s identification of him, the SJC made the following two significant rulings. First, the failure by the police to follow the “protocol to be used before a photographic array is provided to an eyewitness,” as set forth in Silva-Santiago, 453 Mass. at 797-798, does not necessarily require suppression of the witness’s identification of the defendant. The Court explained that although “an identification procedure without such a protocol is unnecessarily suggestive,” suppression is required only where the procedure “was so unnecessarily suggestive as to deprive the defendant of due process.” The Court concluded that such suggestiveness was not present here, where, because Johnson knew the defendant from prior interactions, the risk of misidentification was diminished. “[I]n these circumstances,” opined the Court, “the detectives’ failure to follow the [Silva-Santiago] protocol, standing alone, did not warrant suppression of Johnson’s identification of the defendant.” Second, the SJC — noting the disagreement within the scientific community as to whether sequential photographic arrays are superior to simultaneous arrays in identification procedures — declined to state a preference for either one of the methods over the other. In the Court’s view, “the decision whether to use a simultaneous or a sequential procedure is best left to law enforcement, and the choice will continue to bear on the weight of the identification, but not on its admissibility.” Therefore, the Court rejected the defendant’s argument “that the identification procedure [utilized here] was unnecessarily suggestive because the eleven photographs in the array were shown to Johnson simultaneously rather than sequentially.” Continue reading →