Articles Posted in Law Commentary

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In a recent case – Commonwealth v. Fredericq – the Supreme Judicial Court affirmed the allowance of the defendant’s motion to suppress the fruits of the police action tracking the location of a cell phone for six days.

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. “[T]he Commonwealth sought and obtained a court order, pursuant to 18 U.S.C. §2703(d) (2006), to require the cellular service provider to produce records for” that cell phone. “[T]the cellular service provider furnished [the police] with records showing that the defendant was the subscriber for [the cell phone], and that the defendant resided in an apartment in Brockton…. The cellular service provider used ‘ping’ technology to send radio signals to the … phone and record the … location of the … cell towers with which [it] communicated.” The provider “sent the resulting CSLI [cell site location information] records by e-mail” to the police every fifteen minutes. In this manner, the police, without a warrant, tracked the Toyota for six days, in the course of which it travelled to Florida and back to the defendant’s address in Brockton. The police went to that address, a multiunit house. On the third floor, they knocked on a bedroom door; the defendant answered and indicated that he resided there. The officers “informed the defendant … that [a] murder suspect might be in the building[,]” and that they “had information that the defendant ‘had just gone down to Florida and purchased a large amount of narcotics and … [was] possibly storing it [in his residence].’ The defendant … signed a form giving his consent for a search. During that search, the police found $2,200 in cash in the defendant’s bedroom and … two ‘bricks’ of cocaine” “in [a] … crawl space across from [his] bedroom.” After the defendant was indicted for cocaine trafficking, he moved to suppress the fruits of the search. The motion was allowed and the Commonwealth filed an interlocutory appeal. “The Commonwealth concede[d] that the CSLI tracking of the cellular telephone in this case was unlawful because it was not authorized by a search warrant. But the Commonwealth argue[d] that the motion to suppress should nonetheless have been denied because (1) the defendant had no standing to challenge the tracking of a cellular telephone that was registered in his name, but used solely by Cassio; (2) … the cocaine was not seized during a constitutional search because the defendant lacked any expectation of privacy in the crawl space where it was found; and (3) the evidence obtained during the search was sufficiently attenuated from the illegal [CSLI] tracking because of the defendant’s consent to the search, thus ‘purging’ the search of its taint.” Continue reading →

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bedroom-1230377-200x300In Commonwealth v. Judge, the Appeals Court affirmed the allowance of the defendant’s motion to suppress the fruits of a routine home visit by his parole officer.  The Court’s decision rested on the grounds that the officer “lacked reasonable suspicion to enter the [defendant’s] bedroom,” and that the entry could not be justified as an administrative search.

The basic facts were as follows. The defendant was released from incarceration in a house of correction and placed on parole…. The parole manual indicated that the defendant’s … parole officer would visit him ‘at home, work, school or other place in the community with or without notifying [him] in advance.’…. The manual is silent as to the frequency, duration, or scope of routine home visits.” On the day in question, “the defendant’s primary parole officer [Lyons] and another parole officer [Valenti] arrived at the defendant’s residence in order to conduct a routine home visit, and knocked on the front door. After a pause of between thirty seconds and one minute, Lyons heard the defendant say, ‘Hold on.’ After another minute, the defendant’s girlfriend, who appeared uneasy and confused, opened the door and the parole officers entered the home. The defendant emerged from the bathroom after about ten seconds, and Lyons escorted him back to the bathroom to provide a urine sample for drug testing.” “Valenti entered the [defendant’s] bedroom and observed razor blades, a digital scale, a white rock-like substance he believed to be ‘crack’ cocaine, and multiple small plastic bags of a substance he believed to be heroin, all in plain view on a dresser. The defendant was subsequently arrested.” After the return of indictments against him, he moved to suppress the seized items and the judge allowed the motion. The Commonwealth filed an interlocutory appeal. Continue reading →

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gavel-2-1236453-300x200The SJC recently issued a decision addressing which offenses qualify as predicate offenses for a dangerousness hearing under G.L. c.276, §58A: Commonwealth v. Barnes and Commonwealth v. Scione.  In Barnes, the Court ruled that a violation of G.L. c.265, §23A (rape of child aggravated by age difference, i.e., statutory rape) does not qualify as a predicate offense under G.L. c.276, §58A.  In Scione, the Court ruled “that, depending upon the circumstances,” a violation of G.L. c.266, §102A (use of incendiary device) “may (and, in this case, does) … qualify” as such a predicate offense.

“Predicate offenses under [G.L. c.276,] §58A either are specifically enumerated in the statute or fall within one (or more) of the following categories: (1) those felonies that ha[ve] as an element of the offense the use, attempted use or threatened use of physical force against the person of another‟ (force clause); (2) any other felony that, by its nature, involves a substantial risk that physical force against the person of another may result‟ (residual clause); or (3) a misdemeanor or felony involving abuse as defined in [G.L. c.209A, §1, the abuse prevention statute] (abuse clause).”

The background of the Barnes case was as follows. When he was forty-three years old, defendant Barnes had sexual intercourse with a fifteen year old girl. He was charged with statutory rape in violation of [G.L. c.265,] §23A. In his appeal from an adverse ruling at a dangerousness hearing under [G.L. c.276,] §58A, he “argu[ed] that (1) §23A does not qualify as a predicate offense under the force clause of §58A; and (2) the residual clause of §58A is unconstitutionally vague. A Superior Court judge agreed[,]” the Commonwealth filed a petition pursuant to G.L. c.211, §3, and the matter made its way to the SJC. In its decision favorable to Barnes, the SJC first ruled that “[b]ecause the use, attempted use or threatened use of physical force is not an element of §23A, [a violation of that] statute does not qualify as a predicate offense under the force clause of §58A.” The SJC also agreed with the Superior Court judge “that the language in the residual clause of §58A is unconstitutionally vague under art. 12 [of the Massachusetts Declaration of Rights] and therefore §23A cannot qualify as a predicate offense pursuant to it.” Continue reading →

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navigating-gps-maps-1466837-300x200The Supreme Judicial Court recently issued a decision – Commonwealth v. Johnson – which affirmed the denial of the defendant’s motion to suppress historical GPS location data recorded without a warrant by a device in the defendant’s ankle bracelet during his probation. A divided SJC ruled that the Commonwealth’s act of retrieving and reviewing the location data after the probation had expired was not a search in the constitutional sense because the defendant did not have an objective expectation of privacy in the data.

The background was as follows. “Between May and September 2012, while the defendant was on probation and subject to GPS monitoring, several break-ins occurred at homes in Hanson, Marshfield, and Pembroke. Approximately one year after these break-ins, … the defendant was arrested near the scene of a separate break-in in Randolph.” By that time, his probationary sentence had expired. When the “Randolph police became aware that the defendant had at one time been outfitted with a GPS device,” they “contacted a Marshfield police detective and suggested that she contact the probation department to review the defendant’s historical GPS location data records during the approximate times of the unsolved break-ins.” Marshfield police and probation officers “discovered that the defendant was at or near the scene of each break-in at approximately the same time that each home was broken into. The defendant was then indicted and charged with breaking and entering and larceny. Before trial, the defendant moved to suppress the historical GPS location data, arguing that the Commonwealth’s act of accessing and reviewing this data without a warrant [after the termination of his probation] was an unreasonable search in violation of the Fourth Amendment and art. 14 [of the Massachusetts Declaration of Rights]. The motion judge concluded that the Commonwealth’s conduct did not amount to a search in the constitutional sense … and denied the defendant’s motion.” In due course, the defendant was convicted as charged. On appeal, he challenged the denial of his motion to suppress. Continue reading →

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various-abusive-drugs-1194951-300x225In a recent case – Commonwealth v. Agogo – the Supreme Judicial Court affirmed the suppression of “narcotics seized from the defendant’s crotch area as the result of a strip search,” on the grounds that “the police lacked the requisite probable cause to believe that the defendant had concealed narcotics somewhere on his person that could not have been detected through an ordinary search procedure.”

The basic facts were as follows. While conducting surveillance in a high crime area, two police officers (Torres and Betz) “observed the defendant standing … on the sidewalk outside [an apartment] building. While they watched, the defendant repeatedly entered the … building, remained inside for approximately thirty seconds, and then returned to the sidewalk in front of the building…. Based on his training and experience …, Torres believed that it was common for individuals engaged in street-level drug transactions to maintain the bulk of their narcotics elsewhere, so as not to have drugs on their persons if stopped, and to return to the ‘stash location’ after a sale in order to retrieve drugs for a new sale…. Torres believed that the defendant was engaging in this practice…. After … twenty minutes of observation, and having become increasingly suspicious of the defendant’s behavior, the officers saw an individual, later identified as James Foster, approach the defendant, who was again standing outside the apartment building. Torres noticed that Foster was ‘manipulating something in his hands’ as he spoke to the defendant; Torres believed that Foster was counting currency. Foster and the defendant then turned and walked around the corner, where they were no longer in view of the officers. Because the officers believed a drug transaction was about to take place, they, too, rounded the corner.” As they did so, Torres observed “the defendant [apparently] hand[ing] an item to Foster. Torres could not see the item, but thought that he had just witnessed a hand-to-hand drug transaction; therefore, he and Betz … approached the two men.” Continue reading →

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cell-phone-959697-m-190x300In Commonwealth v. Ferreira, the SJC ruled that the judge erred in permitting the Commonwealth to introduce evidence of a purported adoptive admission by the defendant, but that the error did not warrant the reversal of the defendant’s conviction of first degree murder.

The background was as follows. The victim was stabbed to death six months after the breakup of her romantic relationship with the defendant. After the breakup, the victim entered into a relationship with a married man. The defendant told the victim’s sister Ana that he was “dismay[ed] over the victim’s decision to date” that man. In the early morning hours on the day of the killing, the victim was found lying in a pool of blood outside the back door of her apartment building. She had been stabbed to death. During the investigation of the killing, Ana told the police that she suspected that the defendant was the perpetrator. Officers who interviewed the defendant “noticed injuries on the back of [his] hands.” Forensic testing of DNA from the injured areas revealed “that the victim was included as a possible contributor.” Pursuant to a search warrant, the police seized from the defendant’s apartment a pair of bloodstained sneakers. Forensic testing showed that DNA from both sneakers matched the victim’s DNA profile. At the trial, over the defendant’s objection, the judge permitted Ana to testify about the purported adoptive admission. She stated that “when she learned of the victim’s death …, she called the defendant” and accused him of being the perpetrator, saying, “‘You killed my sister. You can run. I’m gonna kill you. I’m gonna kill your family. I’m gonna kill your children. I’m gonna kill everyone.’” Ana testified that “[t]he defendant hung up. Immediately after this testimony was introduced, the judge gave a limiting instruction” informing the jury that in order to use this evidence against the defendant, they had to “be sure that the defendant ‘heard any accusation and understood its significance.’ She further instructed that the jury must be ‘satisfied that it is a fair conclusion that a person would always speak up in a situation like that if he were innocent. After all, no one is required to respond to any negative comment made about him, and there may be other factors in a given situation apart from guilt or innocence with respect to the particular accusation that might explain why a person did not choose to respond.’” On appeal, the defendant challenged the judge’s decision permitting the introduction of Ana’s testimony. Continue reading →

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knife-501415-m-1The Supreme Judicial Court recently ruled in Commonwealth v. Gallett that the judge erred in limiting defendant St. Jean’s cross-examination of the medical examiner, but that the error did not warrant the reversal of St. Jean’s convictions of first degree murder and armed robbery.

The background was as follows. St. Jean, codefendant Gallett, and Gallett’s girlfriend (Mathurin) “concoct[ed] a plan to rob” a pizza delivery driver at a vacant house. “Mathurin telephoned a pizzeria and placed an order…. [She] gave St. Jean’s cellular telephone … number as the call-back number and asked the pizzeria employee to send the delivery driver to … the address [of] the vacant house…. Soon thereafter, the victim arrived with the order. Mathurin met the victim in the driveway … and escorted him” into the house. “Five minutes later, [St. Jean, Gallett,] and Mathurin left the house…. St. Jean drove Gallett and Mathurin away in the victim’s vehicle,” which “[t]he group [later] abandoned.” The victim’s body was found in the vacant house. He had been stabbed to death and his “pockets were turned inside out.” At the scene, the police recovered a knife handle and “a bloody and slightly bent knife blade.” When officers located the victim’s vehicle, they found inside a pizza box whose label “listed … St. Jean’s cell phone number … as the call-back number.” “Fair inferences from the evidence showed that St. Jean was armed with a knife, planned to rob someone, lured the victim into the vacant house, and attacked the victim.” St. Jean’s theory of defense was that “although he went with Gallett and Mathurin to the vacant house and broke into it by punching his fist through glass on the back door, he did not participate in the victim’s murder or robbery.” At the trial, “St. Jean attempted to cross-examine the Commonwealth’s medical examiner [regarding] wounds on St. Jean’s right hand,” which a police witness had described as “cuts on ‘the meaty side on the back of [the] … hand,’ ‘a laceration type injury on the heel near his wrist’ and ‘on the knuckle.’ Defense counsel asked the medical examiner, ‘If a person were wielding a knife and injured themselves on the knife that they were wielding, you would expect to see injuries to the interior of their palm; is that fair to say?’ The Commonwealth objected.” At the ensuing sidebar conference, “defense counsel argued that he should be allowed to question the medical examiner about any defensive or offensive injuries he would expect to see in the circumstances raised in his question.” The judge excluded the proposed cross-examination, “concluding that she did not ‘think [the medical examiner was] qualified to talk about the possible wounds that might be inflicted on knife wielders.’” On appeal, St. Jean challenged that ruling. Continue reading →

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gavel-2-1236453-300x200In a recent decision – Commonwealth v. Feliz – the Supreme Judicial Court ruled that the imposition of GPS monitoring as a condition of the defendant’s probation and pursuant to G.L. c. 265, §47 was an unconstitutional search under art. 14 of the Massachusetts Declaration of Rights.

The background was as follows. After the defendant pleaded guilty to possession and distribution of child pornography, he received a sentence that included a term of probation. “In accordance with the terms of G.L. c.265, §47, which requires judges to impose [GPS] monitoring as a condition of probation for individuals convicted of most sex offenses, the sentencing judge imposed [such] monitoring as a condition of the defendant’s probation.” On appeal, “[t]he defendant argue[d] that, as applied to him, the condition of mandatory GPS monitoring, pursuant to G.L. c.265, §47, constitutes an unreasonable search under the Fourth Amendment and art. 14.

In its decision, the SJC stated, “We consider [the defendant’s] argument in light of the United States Supreme Court’s holding that GPS monitoring is a search. See Grady v. North Carolina, 135 S.Ct. 1368, 1370 (2015). We conclude that G.L. c.256, §47, is over inclusive in that [mandatory] GPS monitoring will not necessarily constitute a reasonable search for all individuals convicted of a qualifying sex offense. Article 14 requires an individualized determination of reasonableness in order to conduct more than minimally invasive searches, and GPS monitoring,” which continuously collects and stores a substantial amount of information about a person’s activities, “is not a minimally invasive search. Continue reading →

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balance-1172786-300x204In a recent case involving the issuance of a restraining order – S.V. v. R.V. – the Appeals Court affirmed the denial of the plaintiff’s motion to extend an abuse prevention order that was issued pursuant to G.L. c.209A. In its decision, the Appeals Court ruled that the judge properly rejected the plaintiff’s claim “that she had an objectively reasonable fear of imminent serious physical harm from the defendant.”

The background was as follows. “On October 8, 2016, the plaintiff obtained an emergency ex parte 209A order against the defendant [her former husband] based on evidence that he had harassed her and ‘grabbed and pinched [her] arm’ during an argument at their residence.” “[O]n December 28, 2016, … the judge extended the 209A order for one year, until December 29, 2017.” On March 9, 2017, roughly two and a half months into the extension period, “the parties executed a stipulation … that the defendant was permitted to attend [their] children’s activities held in public locations and that such attendance would not violate the 209A order. The same stipulation provided that the parties would not directly or indirectly communicate during those public events. At the hearing on the expiration date of the extension period, “the plaintiff requested an additional extension of the 209A order,” on the grounds “that she remained in fear of the defendant as a result of the original incident and because she continued to see him at their children’s extracurricular activities…. For his part, the defendant testified that he and the plaintiff had been together in public locations ‘virtually every day for the past year’ while coordinating their children’s activities and parenting time. He also stated that the parties often attended the children’s activities at the same time…. [T]he judge denied the request for an extension” and the plaintiff appealed. Continue reading →

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apartment-balcony-1477432-300x298In Commonwealth v. Arias, the Supreme Judicial Court affirmed the suppression of drugs seized from the defendant’s apartment on the grounds that the warrantless search of the apartment was not justified under either the emergency aid exception or the exigent circumstances exception to the warrant requirement.

The basic facts were as follows. The Lawrence police department received a tip from a 911 caller, who “stated that … she saw two ‘Spanish guys’ ‘with a gun … going up to the [apartment] building’ located at [a designated address]…. The caller ‘heard … one of [the men] load the gun,’ and saw the men enter the building.” The dispatcher disseminated the information provided by the caller and “[m]ultiple police officers responded to” the building described in the dispatch. The multi-unit “building contained two apartments on the ground floor, numbered ‘5A’ and ‘7A.’” “At the front of the building, [Sergeant] Simard spoke to residents of unit 7A…. [They] … denied seeing or hearing anything out of the ordinary, and said that they did not know who lived in unit 5A…. After obtaining the telephone number of the 911 caller [from the dispatcher], Simard spoke with her by telephone. [She] told Simard that she had seen three males [not two as she had said in her 911 call] … talking [calmly] on the front step of the building…. [She also told Simard] that the men likely had a key to the building because they entered the front door ‘easily.’” At some point, “[a]t the rear of the building, [Sergeant] Cerullo observed a Hispanic male leave the building [through a] door.” The man did not fit the 911 caller’s description of the men she had observed entering the front door. “With his firearm drawn, Cerullo shouted, ‘Lawrence Police. Show me your hands.’” The man “appeared ‘shocked’ and ‘quickly went back inside’ the building…. Cerullo … attempted to enter the building through the door [the man] had used, but” it was locked. Subsequently, Cerullo and Simard decided to enter unit 5A without a warrant. Inside the unit, they conducted a protective sweep “for any injured persons and the Hispanic male [whom Cerullo] had seen … at the rear of the building…. They did not find any people, but they did observe in plain view what appeared to be illegal narcotics” and drug paraphernalia. Based on these observations, the police obtained a search warrant pursuant to which they seized items from the apartment, which turned out to be the defendant’s residence. After the issuance of indictments against the defendant, he filed a motion to suppress evidence seized pursuant to the warrant, on the ground that the warrant was predicated on observations made during an unconstitutional search.” The motion was allowed and the Commonwealth filed an interlocutory appeal, arguing that the warrantless entry into the apartment was justified under the emergency aid exception and the exigent circumstances exception to the warrant requirement. Continue reading →

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