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The Sixth Amendment promises the right to confront an adverse witness. However, when the witness is on the other end of a 911 call, this can lead to tricky constitutional issues. The Massachusetts Supreme Judicial Court will soon decide a confrontation clause issue in Commonwealth v. Rand. Hopefully, the SJC will correct an error made by the lower court regarding Rand’s right to confrontation as defendant’s in domestic assault and battery cases have seen their right to confront their accuser diminished by recent Court decisions.

What happened in the Rand case?

This case arises out of a domestic dispute. Defendant Rand and his former girlfriend Otilia Cradock are parents to a young daughter. The couple was on and off, but Rand stayed involved in his daughter’s life, so he was often at Cradock’s home. One night, Cradock and her sister spent the night drinking wine at her apartment. She started to be rude to her sister. Her sister left the apartment. At around 1 in the morning, Cradock reported to police that her boyfriend had assaulted her. She said that he had strangled her until she passed out and urinated. When the 911 operator asked if the boyfriend was still at the home, she responded that he had left.

The Massachusetts Court of Appeals held that pretextual inventory searches do not comport with the Fourth Amendment in the case of Commonwealth v. Lek. In the Lek case from Lowell the police detective conceded that he was using traffic infractions in order to detective gang activity.  In other words, traffic stops were being made not to enforce the traffic laws but with the hopes that guns, drugs or other evidence of gang activity would be discovered during the stop.

What happened in the Lek case?  

The Detective and his partner were in plainclothes in an unmarked police car. According to the Detective, he and his partner were looking for motor vehicle violations to address gang suppression through motor vehicle stops. the Detective testified that he was not required to do traffic enforcement that night and was doing it by his own free will.

The irony of living in a high crime area is that it makes the innocent more susceptible to searches and arrests. The case of Commonwealth v. Karen K. looks at a juvenile who was searched based on a police officer’s assumptions about the local area.

What happened in the Karen K. case?

Karen K. is a juvenile who resides in the Boston area. On November 1st, 2018, a concerned resident of a housing complex called the Boston Police Department to report that a group of “kids” was loitering and displaying a gun outside the complex. Officer Lopes reported to the scene. He was familiar with the complex because he had made many arrests there in the past. Lopes had a negative connotation associated with this building, and police had responded to shots fired at the building that same week.

Do You Have A Reasonable Expectation of Privacy in the Basement of a Multifamily Home That You Do Not Own?

The Fourth Amendment protects against places in which they have a subjective reasonable expectation of privacy. But when is this expectation unreasonable? The Appeals Court of Massachusetts, Bristol answered this question in Commonwealth v. DeJesus.

What happened in the DeJesus case?

Breath test evidence is heavily contested in Massachusetts OUI trials.  When someone takes a breath test, as a Massachusetts OUUI Lawyer, we attempt to exclude the results from evidence as being unreliable.  But what happens if the machine does not register, is the failed attempt to take a breath test admissible and under what circumstances.  That was the issue in the case of Commonwealth v. Daigle, the Massachusetts Appellate Court answered this question.

A failed breath test is admissible in certain circumstances. It is well settled that a defendant refusing to take a breath test is not admission against them during an OUI trial. However, if a defendant signs a consent form to take a breath test, a machine malfunction or other errors may be admissible, In the case of Commonwealth v. Curley, police officers alleged that the defendant was purposely blowing into a breathalyzer machine incorrectly as to inhibit the machine from producing a reading. Because the defendant in that case signed a consent form, the jury could infer from his actions that he waa trying to avoid giving a sample while appearing to try and take the test.

What happened in the Daigle case? 

The Fourth Amendment protects against government intrusion in the home and provides for a reasonable expectation of privacy. But does this protection extend to the most intimate areas of a person’s body? The case of Brown v. Wisconsin is pending before the Supreme Court and looks at the issue of whether police officers were justified in searching a woman’s vagina and anal cavity without a warrant. The Supreme Court of the United States must grant cert and decide whether the Fourth Amendment protects a person from unreasonable and humiliating searches by law enforcement officers.

What happened in the Brown case?

Sharon Brown is a Native American woman residing in Minnesota. In May of 2017, she was a passenger in her boyfriend’s car following a trip to Wal-Mart. The police stopped the vehicle after learning that her boyfriend allegedly shoplifted from the store. Despite her only being the passenger in the car, the police took her along with her boyfriend to jail and placed her in the holding cell. The jail’s policy allowed manual body-cavity searches without a warrant, probable cause, or exigency. Less than a day after Brown was detained, another detainee told a correctional officer, Steven Hillesheim, that Brown was hiding drugs. This detainee was a know liar and troublemaker. Hillesheim, however, did not investigate the legitimacy of these claims, despite Brown not having a history of drug use and being held in prison for shoplifting, an unrelated claim.

Peremptory challenges are an essential tool used by trial lawyers.  They allow an attorney to object to a proposed juror during selection without giving a reason or justification.  However, when peremptory challenges are coupled with racial bias, dangerous results can occur.  The case of Miles v. California is pending before the Supreme Court and asks the question of whether a court may consider reasons distinguishing stricken jurors from those accepted by the prosecutor when the prosecutor did not cite a reason.

What happened in the Miles case? 

The Miles case concerns Johnny Duane Miles, a Black man charged with the rape and murder of a white woman.  He was eventually convicted and sentenced to death.  The issue here is not whether Miles was innocent or guilty, but instead whether Mile’s case would have turned out differently if the jury selection process was different.  During jury selection, the prosecutor raised some eyebrows when he used peremptory challenges to remove every single Black juror from the main panel.  The prosecutor tried to justify his strikes but it seemed that race was the only factor because the prosecutor even removed a young Black man named Simeon Greene, who had pro-prosecution and pro-law enforcement beliefs, which would help the prosecution.

The Fourth Amendment protects people from unreasonable intrusion and promises that citizens will not have their “persons, houses, papers, and effects, against unreasonable searches and seizures.” 


Carlisle v. Kentucky asks the question of whether courts can adopt a categorical rule allowing law enforcement to prolong every traffic stop by performing a criminal records check, or on the other hand, whether the Fourth Amendment requires an individualized, case-by-case approach that allows checks only when the government offers some evidence that the check related to the officer’s safety. The circuits are split concerning this issue.  This case is current pending a petition for certiorari before the Untied States Supreme Court.  


Five courts allow law enforcement to perform a criminal record check in every traffic stop in theory and agree that these checks are inherent to officer safety. On the other hand, two courts have adopted a case-by-case basis for officers searching a criminal record. These courts adopt the approach where the court will evaluate the specific circumstances of the particular stop to determine whether the officer’s safety was so at the risk that the search of criminal records was appropriate. 

Is it Constitutional to Conduct Evidentiary Hearings Over Zoom?

In John Vasquez Dias v. Commonwealth the question before the Massachusetts Supreme Judicial Court was whether a criminal defendant’s constitutional rights are violated by a court choosing to pursue an evidentiary hearing, over the defendant’s objections, over Zoom. Vasquez Diaz was charged with drug trafficking and if convicted, he could face over a decade in prison.

What happened in Vasquez Diaz?

Does the Second Amendment permit States to deprive someone of the right to bear arms for a misdemeanor offense?  The right to bear arms is one that a large portion of Americans consider of the utmost importance. In Holloway v. Barr, a case pending before the United States Supreme Court on a petition for certiorari, Holloway argues that losing his Second Amendment rights due to a nonviolent misdemeanor is a constitutional violation. 

A lifetime ban on firearms is a penalty most felons are handed as part of their punishment.  The extent to which people who committed past crimes can be banned is an issue ripe with disagreement.  Some believe the logic is that dangerous people should not be allowed to have firearms, so violent felons should be prohibited from using them.  Another rationale for disarming former felons is that the individual lacks virtue, which is why they should not own a firearm. 

What is the law concerning individuals with criminal records owning a firearm?

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