Articles Posted in Search and Seizure

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 →

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 →

In a recent decision – Carpenter v. United States – the United States Supreme Court ruled that under the Fourth Amendment, the government must obtain a warrant supported by probable cause in order to procure from a telecommunication company the historical cell-site location information (CSLI) for a cellular telephone.

The background was as follows. In 2011, police officers investigating a series of robberies applied for court orders under the Stored Communications Act [18 U.S.C. §2703(d)] to obtain historical CSLI for petitioner Carpenter’s cellular telephone. “That statute … permits the Government to compel the disclosure of certain telecommunications records when it ‘offers specific and articulable facts showing that there are reasonable grounds to believe’ that the records sought ‘are relevant and material to an ongoing criminal investigation.’…. Federal Magistrate Judges issued two orders directing Carpenter’s wireless carriers — MetroPCS and Sprint — to disclose” the requested CSLI for “the four-month period when the string of robberies occurred.” The first order produced cell-site records from MetroPCS spanning 127 days. The second order produced two days of records from Sprint. “Altogether the Government obtained 12,898 location points cataloging Carpenter’s movements — an average of 101 data points per day.” The CSLI “placed Carpenter’s phone near four of the charged robberies.” “Carpenter was charged with six counts of robbery and an additional six counts of carrying a firearm during a federal crime of violence…. Prior to trial, [he] moved to suppress the cell-site data provided by the wireless carriers. He argued that the Government’s seizure of the records violated the Fourth Amendment because they had been obtained without a warrant supported by probable cause. The District Court denied the motion.” At Carpenter’s trial, the government presented the CSLI to the jury. “Carpenter was convicted on all but one of the firearm counts.” The Sixth Circuit affirmed the convictions, holding “that Carpenter lacked a reasonable expectation of privacy in the [CSLI] … because he had [voluntarily] shared that information with his wireless carriers.” Carpenter sought certiorari. Continue reading →

In Collins v. Virginia, the U. S. Supreme Court ruled that “the automobile exception [to the Fourth Amendment’s warrant requirement] does not permit [a police] officer without a warrant to enter a home or its curtilage in order to search a vehicle therein.”

The background was as follows. An officer “saw the driver of an orange and black motorcycle with an extended frame commit a traffic infraction. The driver eluded … [the officer’s] attempt to stop the motorcycle.” Subsequently, the police “learned that the motorcycle likely was stolen and in the possession of petitioner … Collins. After discovering photographs on Collins’ Facebook profile that featured an orange and black motorcycle parked at the top of the driveway of a house, Officer Rhodes tracked down the address of the house, drove there, and parked on the street.” From his cruiser, “Rhodes saw what appeared to be a motorcycle with an extended frame covered with a white tarp.” Although Rhodes did not have a warrant, he “walked onto the residential property and up to the top of the driveway to where the motorcycle was parked. In order ‘to investigate further,’ … [he] pulled off the tarp, revealing a motorcycle that looked like the one from the speeding incident…. Rhodes … returned to his car to wait for Collins. Shortly thereafter, Collins” entered the house. Rhodes knocked on the front door of the house and Collins answered. During the ensuing conversation, Collins “admitted that the motorcycle was his and that he had bought it without title…. Rhodes then arrested Collins.” After the return of an indictment charging Collins with receiving stolen property, he filed a motion to suppress “the evidence that … Rhodes had obtained as a result of the warrantless search of the motorcycle. Collins argued that … Rhodes had trespassed on the curtilage of the house to conduct an investigation in violation of the Fourth Amendment.” The judge denied the motion and Collins was convicted. On appeal, the Supreme Court of Virginia ruled that the denial of the motion to suppress was proper under the automobile exception to the warrant requirement. Collins sought certiorari. Continue reading →

In Commonwealth v. Hernandez, the Appeals Court affirmed the denial of the defendant’s motion to suppress a firearm seized by the police in the defendant’s apartment.  In its decision, the Appeals Court ruled that “the defendant’s coinhabitant … validly consent[ed] to a warrantless search of a closed, unlocked suitcase located in a common closet of a bedroom she shared with the defendant.”

The basic facts were as follows. A police officer (Stilwell) “responded to a call [regarding] a domestic threat at the defendant’s apartment, and was met by Flor Prudencio, the victim. Prudencio shared the one-bedroom apartment with the defendant and their three children…. Prudencio reported that approximately three weeks earlier, she and the defendant had had an argument about the custody of the children. During the argument, the defendant told Prudencio that ‘if he wasn’t able to see the children … he would shoot her and kill her.’ Prudencio went on to tell the officer that she was concerned because the defendant had access to a firearm. Prudencio then brought the officer into the apartment’s only bedroom, which she shared with the defendant and the children. The bedroom had … a single closet. Prudencio opened the closet door. Inside were men’s and women’s clothes, bags on the floor, and children’s items; some of the items were Prudencio’s…. Prudencio pointed to a suitcase on the top shelf of the closet, about five feet up; she stated that the defendant’s firearm was located in the suitcase…. Stilwell pulled the suitcase down…. [It] did not have a locking mechanism” and “[i]t did not have a name or tag on it…. Stilwell opened the suitcase in Prudencio’s presence. Prudencio stated that the firearm was inside a red ‘Huggies’ container within the suitcase. Inside the Huggies container … Stilwell found a loaded revolver and a ‘baggie’ of ammunition. He confiscated the weapon…. Prior to opening the suitcase, … Stilwell did not ask Prudencio to whom the suitcase belonged, nor did Prudencio state whose suitcase it was.” After the issuance of a criminal complaint charging the defendant with firearm offenses and a related offense, he filed a motion to suppress the revolver. The motion was denied. At the ensuing trial, the defendant was convicted on all charges. On appeal, he “acknowledge[d] that Prudencio actually consented orally and, moreover, that she had authority, as the defendant’s coinhabitant, to consent to a search of the apartment and of the closet. But he contend[ed] … that Prudencio’s authority did not extend to the closed, unlocked suitcase.”  Continue reading →

In Commonwealth v. Rivers, the Appeals Court ordered suppression of the defendant’s inculpatory statements to the police because they were induced by improper promises of leniency and, therefore, were not shown to be voluntary beyond a reasonable doubt.

The background was as follows. The defendant was involved in “[a] group altercation outside a party on Martha’s Vineyard,” during which the defendant and two friends struck the victim. The victim and the defendant lived in the same neighborhood; the victim often saw the defendant and one of the other alleged attackers “around town.” Detective Morse discussed the case with Officer Johnson and “directed Johnson to contact the defendant and ask him to come to the police station for an interview.” “Morse chose Johnson to contact the defendant based at least in part on the fact that the two had grown up together on the island.” Johnson telephoned the defendant and advised him “that the police were interested in him as an involved party in the case and that it was the police understanding that he committed a simple assault. Johnson went on to advise the defendant that if he came forward and gave a detailed account, he would be ‘very highly likely to avoid being charged with a felony.’” The defendant was later interviewed by Morse at the police station and made inculpatory statements that led to the return of indictments charging him with two felonies (aggravated assault and battery and assault and battery by means of a dangerous weapon). The defendant then filed a motion to suppress his statements on the ground that they “were involuntary because they were products of improper police-initiated promises of leniency and assurances that his statements would aid in his defense.” The motion was denied. Continue reading →

In a recent decision – Commonwealth v. Harris – the Appeals Court reversed the denial of the defendant’s motion to suppress a firearm seized by the police because the police lacked reasonable suspicion justifying the stop of the defendant.

The basic facts were as follows. On the afternoon in question, three Northeastern University police officers “heard a radio broadcast stating, ‘two black males in their early 20’s, one wearing a black hoody, and the other wearing a gray hoody, possibly with a third person, casing the bike racks by Snell [L]ibrary’ at the university. This information was initially provided by a security officer employed by the university, who was stationed by the bicycle racks because the area was a high-crime area for bicycle theft…. [T]wenty minutes after the broadcast,” the police “saw two men fitting the broadcast description, along with a female” walking together “from the direction of the library. The three people in the group were the defendant,” another man (Ferguson-Boone), and a woman (Wade-Joseph). The defendant and Ferguson-Boone were in possession of bicycles. The officers approached and “stated to the group that there had been a number of bicycle thefts in the area, and asked where the group was coming from. The companions responded that they had eaten at [a certain] restaurant in the campus food court; at least one of the group was carrying a container from that restaurant…. [T]hree separate conversations ensued,” in each of which an officer spoke to one of the three companions. “The officers asked [the two men] whether [they] had stolen the bicycles [in their possession], and they responded that they had not. [The defendant’s interviewer] asked the defendant if he had previously had issues with the police, and he responded by raising his pant leg, revealing a GPS-monitored ankle bracelet. [That officer] then asked the defendant for identification, and the other two officers followed suit, asking for identification from Ferguson-Boone and Wade-Joseph. The defendant did not produce identification, but did orally provide his name, date of birth and address,” which his interviewer then called in to “to police dispatch, in order to conduct a criminal history and warrant check. Ferguson-Boone provided some form of identification card, which [his interviewer] took and held…. Wade-Joseph produced her university student identification card…. As [the defendant’s interviewer] was calling in the defendant’s information, [another officer] observed the defendant make a movement to his left side, causing his sweatshirt to ride up and expose a knife clipped inside of his waistband.” The police seized the knife and commenced a pat frisk of the defendant, whereupon he fled. “While fleeing, the defendant dropped [a] firearm.” He was later apprehended and charged with illegal possession of a firearm and related offenses. He filed a motion to suppress the firearm, contending that the police lacked reasonable suspicion to stop him. The motion was denied. The defendant was convicted of firearm offenses.   Continue reading →

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 →