Search and Seizure

Published on: October 13, 2013

Framingham Teen Accused of Selling Pot Brownies at School

Two students at Framingham High School showed up at the nurse’s office on Monday, October 7th. They were not there, however, for the typical stomachache or sore throat – these students had apparently eaten pot brownies and become ill as a result. According to an article in the Metrowest Daily News, the students had bought the brownies that morning from a fellow classmate. The students ate the brownies just before homeroom and showed up in the nurse’s office a short time later. After the students’ complaints, police were notified and initiated an investigation. The classmate allegedly responsible for selling the brownies is sixteen years old and is therefore considered to be a juvenile. The juvenile’s name was not released but police did state that it was a female in her senior year. After the police arrived on scene to investigate, they searched the juvenile’s bag and reportedly found a total of eight more brownies. They also spoke to the juvenile, who admitted to selling the brownies, and stated that she had made them after finding a recipe online. The juvenile is now facing charges of distributing marijuana, and for having drugs on a school campus.

Fortunately for the juvenile, the Commonwealth may have some trouble introducing her statements, and the brownies, against her at trial. If the juvenile was in “custody” at the time of the police questioning- i.e., if a reasonable person in her position would not have felt free to leave – the police were required to give her Miranda warnings before speaking with her. When an investigation involves an adult suspect, simply providing the person with her Miranda warnings is sufficient. If the suspect agrees to waive her rights and speak with the police, the police are free to ask questions.

When it comes to juveniles, however, the laws are different – the scope of Miranda is broader. The Supreme Judicial Court has recognized that there are special problems when dealing with juveniles and Miranda waivers. The Court has specifically recognized that juveniles’ ability to understand Miranda waivers is limited and that juveniles cannot be compared to adults, who are presumably in full possession of their senses and knowledgeable of the consequences of their admissions. In light of this, juveniles who are suspected of a crime have additional protections to ensure that they understand the ramifications of waiving Miranda. Such additional protections include the Interested Adult Rule, which states that there should ordinarily be a “meaningful consultation” with a parent, interested adult, or attorney about whether the juvenile should waive her Miranda rights prior to speaking with the police.

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Published on: October 5, 2013

Car Stop in Framingham Yields Heroin

By Daniel Cappetta

According to an article in MetroWest Daily News, two men were stopped in a car on October 1st in Framingham. The operator was driving on Waverly Street when officers on patrol reportedly saw him and knew that he had a suspended license. The officers then stopped the car. After the stop, the officers allege that they smelled fresh marijuana. Although the article does not clearly indicate exactly how the stop unfolded, presumably the men were ordered out of the car. Both men were searched and the passenger had over $500 in his possession. The police also searched the car and found a backpack under the front passenger seat, where the passenger had been sitting. Inside the backpack were seven individually wrapped bags of heroin. Notably absent was any marijuana – fresh or otherwise. Both men were subsequently charged with possession with intent to distribute the drugs. The driver was also charged with driving on a suspended license, subsequent offense (meaning that he had previously been convicted of driving on a suspended license in the past).

Both men have strong defenses. While the police were authorized to stop the car and arrest the driver if they were really aware that he was driving with a suspended license, the search of the car is certainly questionable. If the police choose to tow a car because the driver has been arrested, they may conduct an inventory search of the vehicle, which includes a search of the entire car. There is no indication, however, that this was the purpose of the search in this case – to the contrary, it appears that the police searched the car because they supposedly smelled fresh marijuana. The fact that absolutely no marijuana was found in the car seriously undercuts the legitimacy of this claim. If the police had no lawful basis to search the car, the evidence that they recovered should be suppressed – in other words, the court should refuse to allow the prosecution to use this evidence against either defendant at trial.

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Published on: October 1, 2013

Man Stopped in Framingham With Over Seven Pounds of Marijuana

By Daniel Cappetta

A Weymouth man was pulled over in Framingham on September 23, 2013 for what should have been a routine traffic stop. According to an article in MetroWest Daily News, the man allegedly rolled through a stop sign on Franklin Street. Police patrolling the area observed the traffic infraction and pulled him over, presumably to give him a citation. According to the police, however, the man appeared to be nervous and the officer ordered him out of the car. After the exit order, the officer searched the man. The officer found over $5,000 in his pocket, and also allegedly saw marijuana in a jar and a glass pipe inside the vehicle. The officer called for back up and the car was searched. Police recovered between seven and eight pounds of marijuana in the trunk. The police also recovered an additional $2,000 from inside the car. The man was charged with possession of marijuana with intent to distribute, a school zone violation, and driving with a suspended license, subsequent offense. He was arraigned in Framingham District Court and held on $8,000 bail.

While many would argue that the amount of marijuana found in the car is indicative of possession with an intent to sell rather than mere personal use, the Commonwealth may nonetheless have trouble proving its case. Specifically, the constitutionality of the exit order, search of the man’s person, and subsequent search of the car is questionable. Under Massachusetts case law, the police are only allowed to order someone out of a car if the officer has cause to believe that the person has committed a crime, is armed and dangerous, or there is some pragmatic reason that requires the person to exit (for example, if the police have a legal basis to search the car and need the person to get out in order to do so). Although the police claim that the man was nervous, Massachusetts judges have repeatedly stated that appearing nervous when interacting with the police is a perfectly understandable reaction and that nervousness alone is not a lawful basis for any sort of search or exit order. Without some additional indicators that the man was involved in some sort of criminal activity or was a danger, the police had no legal basis for ordering him out of the car.

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Published on: March 8, 2013

New Dog Sniff Cases to Impact Search and Seizure Law in Massachusetts Drug Cases

By Daniel Cappetta

The Supreme Court will soon decide whether police violate the Fourth Amendment by bringing a drug dog to the front door of a suspected marijuana grow house to execute a dog sniff, and the implications will be important for persons accused of drug crimes in Massachusetts and elsewhere.

The Court heard argument in the case of Florida v. Jardines, one of two recent dog sniff cases, in October 2012. The other case, Florida v. Harris, was decided in February 2013, with the court holding that the government does not need to produce records of a drug dog’s field performance to establish reliability. Oral argument from Jardines suggests a result more favorable to criminal defendants and those who care about the right to privacy.

In Jardines, police received a tip that the defendant’s home was being used to grow marijuana. Based on nothing more than that tip, police went to Jardines’ home with a drug detection dog. Police brought the dog onto the front porch, and the dog alerted on the front door. Police then obtained and executed a warrant to search the house and found evidence of a marijuana- growing operation. The Florida Supreme Court determined that, in this context, use of the dog was an unreasonable search. That court relied on Kyollo v. United States, in which the Supreme Court held that police use of a heat-sensing device aimed at the exterior of a house to investigate a suspected marijuana grow operation was unconstitutional. Florida officials are asking the Supreme Court to rule that, even at a home, a dog sniff is not a search at all.

At argument, the Justices seemed to be reluctant to adopt the government’s position that a dog sniff executed on a front porch is not a search. Much of the Justices’ questioning related to the academic question of whether the officer’s bringing the dog to the door amounted to a trespass. Justice Scalia thought that it would be a “search” for a police officer, with an intent to smell for drugs, to go up to a door with or without a dog. Justice Sotomayor noted that officers doing “knock-and-talks” are usually looking for something inside the home.

Based on the argument, my guess is that the defendant will win this one. However, as a Massachusetts criminal defense lawyer, I am still concerned about the disturbing possibility of ever-increasing privacy invasions. Consider the frightening possibility of the police going door to door with drug dogs who, in light of Harris, might not even have a history of accurate field alerts. If the Supreme Court rules in favor of the government in Jardines, then there would seemingly be nothing preventing police from doing just that.

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Published on: March 2, 2013

Natick Man Charged with Breaking and Entering in Framingham District Court

By Daniel Cappetta

A 24-year-old Natick man was charged Monday with multiple counts of breaking and entering in the daytime and larceny from a building in Framingham District Court, MetroWest Daily News reported.

Police arrested the man after a Natick officer, off-duty at the time, allegedly saw him depositing a large amount of change into a coin machine at a local grocery store. The officer took notice of this because police had been investigating a recent break-in, one in a series, during which $700-$900 in change had been stolen from the residence. Police allege that the man also took jewelry, cash, prescription drugs, and a baby stroller from the same residence. He allegedly used the stroller to wheel the coins to the grocery store. The prosecution alleges that the man confessed to the break-ins, admitting that he bought cocaine and heroin with the money.

Based on the reported facts, the man might have some solid grounds for motions to suppress both the evidence and statements. It seems that police seized the man based on his possession of a large quantity of coins. A seizure is illegal unless police have a reasonable suspicion of criminal activity. There is nothing criminal about depositing a large amount of change into a coin machine. There is no indication that the man was known to police or that he matched any description of a suspect. There is no indication that the officer recognized the stroller used to transport the coins. Simply having money, even an unusually large amount of it, without more is not enough to support a reasonable suspicion of criminal activity.

If the initial seizure of the man was illegal, then his alleged statements admitting to the break-ins might be so-called “fruit of the poisonous tree.” Under the “fruit of the poisonous tree” rule, direct and indirect products of an illegal search or seizure must be suppressed from use. The reasoning is essentially that the first illegality taints that which comes next. It applies to verbal evidence as well as physical evidence. Here, if police illegally seized the man based on nothing more than his possession of the coins, the man might argue that subsequent statements were tainted by that initial illegality.

This story illustrates the importance of speaking with an experienced criminal defense lawyer before giving any statements to police. The government claims that the coins and stroller link the man to one particular break-in. There is no apparent connection, apart from his alleged statement to police, between the man and the other six break-ins, and there might not have been probable cause to charge him in connection with them had he not allegedly confessed.

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Published on: March 18, 2012

Raynam Man To Face Felony Charges For Alleged Hoax Bomb In His Possession

By Daniel Cappetta

pipe bomb.jpg The Brockton Enterprise reports on an arrest of a man yesterday in Raynham, Massachusetts. The man was arrested for allegedly having a hoax bomb device in his possession.

Apparently the trouble for the man all started when police thought he was a “suspicious person” because he was sitting in parked motor vehicle outside of a condominium complex at 3:30am. Police claim that when they approached the man’s car they could see items commonly used in the manufacturing of pipe bombs in plain view. The article is unclear as to what happened next, but according police, some “further investigation” was conducted and the man was arrested for possession of a hoax device as well as disorderly conduct and disturbing the peace.

Although the article is short on details, this case certainly looks like there are host of potential defenses for the man. First and foremost a challenge may be in order to the search police conducted of the man’s car. The article states the police considered the man a “suspicious person”, but offers no details as to why police thought he was suspicious. In order for the police search of the man’s car to be upheld by the court, prosecutors will need to show more than the fact that he was sitting in a car in a parking lot at 3:30am.

The police claim that the man had items commonly used in the manufacturing of pipe bombs in plain view when they approached him. More information is needed to determine if those observations will stand up under court scrutiny. Pipe bombs are by nature improvised explosive devices. They are constructed using piping that would be available to any contracter, or even any homeowner who is engaged in do it yourself home improvement. If the “items commonly used in the manufacturing of pipe bombs” turns out to be nothing more than ordinary household or commercial piping the search of the man’s vehicle may be declared unconstitutional, and any evidence resulting from the search could be thrown out.

Even if prosecutors are able to prevent suppression of the evidence they may have additional problems in proving a case against the man. The “hoax device” law that is being used to charge the man is Massachusetts General Laws chapter 266 section 102. The statute makes it clear that possession of a hoax device is a serious offense. The charge is a felony, and if convicted, a defendant can be sentenced to a maximum of 5 years in state prison.

The statute also makes it clear that in order to convict a defendant under this section the prosecutor must prove not only that a person possessed a hoax device, but that he or she possessed it with the intent the device will “be used to cause anxiety, unrest, fear or personal discomfort to any person or group of persons”. In order for prosecutors to prove that the man is guilty they will need to show that he intended to use the item in his possession to scare others or cause alarm to a specific person. Since the article indicates the items found were inside the man’s car, and he did not appear to be attempting to use them in any fashion, unless there is additional evidence not published in the article, it will be difficult for prosecutors to show he intended to do anything with the items police believed were a hoax device.

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Published on: December 15, 2011

Massachusetts Police Authority to Stop Citizens Out Of Jurisdiction Expanded by Supreme Judicial Court

By Daniel Cappetta

Boston Cop.jpg A hotly debated topic in criminal law circles is the limits on police to exercise their authority when they are off duty or outside of the jurisdiction where they are employed as officers. While some citizens are comforted by the idea that a police officer may take action at any time to exercise their authority, others see off duty police exercising their authority outside of their sworn jurisdictions to be an invitation to misconduct and potential peril.

Recently the Supreme Judicial Court ruled on the case of Commonwealth v. Limone. In this case an off duty Somerville police officer had his personal motor vehicle struck in a car accident. At the time of the accident the officer was returning to his home and no longer on duty, however he was still in his uniform. When the accident occurred the officer got out of his motor vehicle and approached the driver of the car that struck him. After a short interaction with the driver the off duty officer formed the opinion that he was under the influence of alcohol.

At that point the officer ordered the driver to get out of his vehicle. The driver complied with the order and the officer reached into the motor vehicle and confiscated his keys. The officer ensured that the driver stayed put at the scene of the accident until the Woburn Police arrived and took over the investigation.

When the Woburn Police arrived they conducted field sobriety tests and placed the driver under arrest. He agreed to take a breathalyzer test and was over the .08 limit with a score of .12. The driver’s lawyer challenged the legality of the off duty officer’s actions prior to the driver’s trial in Superior Court, however those challenges were unsuccessful and the driver was eventually found guilty and sentenced to serve time in a state prison.

In Massachusetts it is a long standing rule of law that an officer may not make arrests outside of his jurisdiction unless one of following three limited exceptions applies:

1) If an officer observes an individual commit an offense in his own jurisdiction he may pursue the offender into a different jurisdiction and effect an arrest
2) If an officer is employed in one jurisdiction, but is sworn in as a special officer in any other jurisdiction he may make arrests in the jurisdictions where he is a special officer. (some small towns that border each other mutually swear in all of the other town’s officers as special officers specifically to take advantage of this exception)

3) An officer from one jurisdiction may make an arrest in a second jurisdiction if that arrest is in response to a request for suitable aid from an a sworn officer in that second jurisdiction.

Clearly none of these exceptions applied to the circumstances in this case. Because none of the exceptions applied a lower appeals court sided with the defense and agreed that the officer could not detain the driver, because the officer was outside of his jurisdictional authority.

However the Supreme Judicial Court reveiwed the lower court’s decision and used this case as an opportunity to expand police authority to act outside of their jurisdiction. Although the off duty officer had ordered the driver not to leave, and confiscated his keys thereby depriving him of any means to leave, the Supreme Judicial Court declined to acknowledge that the driver had effectively been arrested. Rather they decided that the encounter that took place in this case was not an arrest and more akin to a mere traffic stop.

Because the court declined to find the off duty officer’s actions amounted to arrest, they upheld his actions as proper and within the limits of existing law on off duty officer conduct. As a result, the conviction was reinstated and the driver must finish his prison term.

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