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Video of an individual taking the field sobriety tests in a Massachusetts OUI arrests rarely exists as most Massachusetts police departments do not have cruiser video.  This is surprising to most people that meet with me to discuss an OUI charge believe that the entire encounter will be on video of their OUI arrest.  In fact this assumption is not true.  Most police departments do not have cruiser video.  The State police does not use cruiser camera and only a small fraction of local police departments have cruiser video.  You are more likely to find a cruiser video in Worcester county than most of the other counties.  While this is not an exhaustive list, the following police departments have cruiser video in at least some of their police cars.

Police Departments with Cruiser video

  • Webster

In the case of Commonwealth v. Sam C. Wassilie, the Supreme Judicial Court for the Commonwealth of Massachusetts (SJC) is currently considering whether a Superior Court judge properly dismissed criminal charges involving alleged “upskirting”. Upskirting is traditionally defined as secretly filming/photographing up a woman’s skirt to view her private areas. The Commonwealth is appealing the dismissals entered by the Court, and Wassilie is cross-appealing on the counts that the Court declined to dismiss.

Wassilie was found to have set up a cell phone in a concealed area in the public restroom of the Pine Grove Athletic Field in Dalton, MA.  Police obtained a search warrant and found videos on Wasillie’s phone and laptop showing children and adults using the bathroom. The footage showed Wasillie setting up the camera and concealing it with paper towels, and was positioned to captured footage of the genitals and buttocks of individuals using the restroom.

The prosecution argues that the Superior Court Judge made three errors when dismissing several of the Commonwealth’s charges: 1) ruling to dismiss instead of ordering a new trial, 2) finding that there was not sufficient evidence of the crime, and 3) finding that Massachusetts’ “upskirting” statute is ambiguous.

A Boston police officer found himself on the wrong side of inaccurate scientific evidence when he was denied employment based on a positive hair drug analysis.  The Massachusetts Supreme Judicial Court is currently considering a case titled Boston Police Department v. Michael Gannon and The Massachusetts Civil Service Commissioninvolving the use of hair drug tests to determine eligibility for employment. The appellant in this case, former Boston Police Cadet Michael Gannon,  was passed over for appointment as a Boston Police Officer because a hair drug test he was given came back positive for cocaine. In addition to the fact that the accuracy of hair drug tests has been refuted by some scientific experts, Mr. Gannon had also taken five other hair drug tests as a part of the recruitment and certification process and all five came back negative for drug use. When he learned that he was being denied a position as a full Officer with the Boston Police Department based on the positive hair drug test, which he maintains was not accurate, Mr. Gannon filed an appeal to the Civil Service Commission to contest the decision. The Commission determined that because of the unreliability of hair drug tests, the Police Department did not have reasonable justification for refusing Gannon the position. Being dissatisfied with that result, the Department sought judicial review before the Superior Court.  The Superior Court reversed the Commission’s decision, and Gannon now appeals before the Supreme Judicial Court to have the Commission’s original decision reinstated.

There are many issues with the overall reliability of hair drug tests. The biggest issue that the Commission pointed out is that the testing procedure is not able to tell the difference between a drug being ingested and a sample being externally contaminated with a drug. In other words, there is no way for the test to establish that a positive result is actually due to drug ingestion by the test subject. Hair samples are easily contaminated by environmental exposure to traces of illicit drugs, and oftentimes even public areas contain contamination that could effect a hair sample.  In its decision the Commission pointed to a surprising study showing that 92% of US dollar bills are contaminated with trace amounts of cocaine. Due to the porous nature of hair strands,  samples can be easily contaminated simply by a non-user inhaling second hand smoke or touching a contaminated surface. While the hair drug testing process does involve decontamination, that process is often not effective at removing trace amounts of drugs.

This is not the first time that the reliability of hair drug testing has been challenged on this level. The Commission previously reviewed scientific evidence on this question in the Boston Hair Drug Test Appealsin 2013. In that case it was concluded that hair drug tests are not scientifically reliable enough to be used as sole grounds for termination of a public employee.

In Commonwealth v. Finn, the Massachusetts SJC will decide whether the Superior Court can hold a defendant under the dangerousness statute of 58A after the defendant was released by the district court.

The statute says that a person who is “held under arrest” for a felony as enumerated in Subsection 1 of §58A may be detained if that person’s release would not reasonably assure the safety of any other person or the community. The determination would hold that the person poses a danger to others based on the factors of that person’s arrest and his/her first appearance before the court.

Defendant James Finn has been held in detention March 7, 2018 based on the Court’s determination that he was dangerous to the community. The defendant was arrested on December 3, 2017 and charged with three counts of indecent assault and three counts of providing harmful material to minors.  The alleged victims were three children around the age of eight who lived in the same apartment building as Finn and his wife.  Finn was allegedly under the influence of alcohol at the time.  Finn was in custody when initially arraigned on December 4, 2017.  The Commonwealth moved to detain him on the basis of dangerousness under G.L. c. 276, §58A. This was allowed since Finn did not at the time have a stable residence.  Finn was held in detention until conditionally released by the district court on January 22, 2018. His arraignment in superior court was scheduled for March 7.  Finn appeared for arraignment, and the Commonwealth moved again for pretrial detention under §58A.  The defendant opposed the motion and argued that since he was not subject to arrest the dangerousness statute did not apply to him.  The Court disagreed, and Finn has been in detention since March 7 and is appealing the decision to detain him under §58A.

The Massachusetts Supreme Judicial Court heard oral argument on April 2 in the Commonwealth v. Long. This case raises the issues of the detection of marijuana and probable cause to search a commercial building.  

In this case, two officers were conducting patrol when they noticed two vehicles parked behind a commercial building. Another officer arrived on scene, and all three secured a perimeter around the building. Upon doing so, the officers detected an overwhelming odor of unburnt marijuana. The officers also noticed that the ventilation inside the building was covered with plywood. The building was being leased to Defendant Long, who had a criminal drug history. The owner of one of the vehicles also had a prior drug history. Using these facts as support for probable cause, an application for a search warrant was made and a search warrant was issued. Defendant Long was charged with trafficking more than fifty but less than one hundred pounds of marijuana. Long filed a Motion to Suppress and the case is currently before the SJC.

The Justices will have to determine whether the untrained nose can reliably detect, based on odor, the presence of a criminal amount of marijuana in a building as opposed to in a vehicle. The Justices also have to determine whether the presence of a vehicle registered to an owner who has a marijuana conviction is sufficient to establish probable cause. The answer to these questions will provide useful guidance to law enforcement officers.

The Massachusetts Supreme Judicial Court will decide whether the failure to secure a child properly in a car seat can result in an involuntary manslaughter conviction.  The case is Commonwealth v. Hardy, where the defendant Hardy was convicted by a jury of involuntary manslaughter.  On appeal, Hardy argues that her failure to secure her child in a booster seat is a legally insufficient basis for her conviction as to manslaughter and reckless endangerment of a child.  A manslaughter conviction requires the Commonwealth to prove, “the defendant unintentionally caused another’s death during the commission of wanton or reckless conduct,” and said conduct, “created a high degree of likelihood that substantial harm would result to the victim.”

Similarly, a conviction for reckless endangerment of a child requires the Commonwealth to show the defendant recklessly engaged in conduct that caused substantial risk of serious bodily injury to a child… or wantonly or recklessly failed to take reasonable steps to alleviate such risk when there was a duty to act.  G.L. c. 265, §13L.

Was Hardy’s conduct, failing to secure Dylan in a booster seat, wanton or reckless?  Was Hardy aware that her failure to use the booster seat created a high degree of likelihood that substantial harm would befall Dylan?  Courts have defined recklessness as conduct involving a grave risk of harm to another that a person undertakes with indifference to or disregard of the consequences.  Commonwealth v. Welansky, 316 Mass. 383, 399 (1944).  Hardy submits her act of merely using the seatbelt and not the booster did not rise to the requisite level of wanton or reckless conduct.  She further alleges that the Commonwealth provided no evidence as to whether Dylan may have survived the crash if a booster seat had been utilized.  In her brief, Hardy argues that at most, the Commonwealth is alleging her conduct was merely negligent and as a matter of law, a legally insufficient basis for the conviction of manslaughter.  She further asserts that an individual who fails to secure a child in a vehicle at all might engage in wanton or reckless conduct, but she took steps to mitigate, the inherent risk associated with any passenger in a vehicle by making sure Dylan was at least wearing a seatbelt.

The Massachusetts Supreme Judicial Court will be asked to decide whether clerk magistrate hearings where the clerk finds probable cause but declines to issue the complaint should be open to the public.  As a criminal defense lawyer that has handled many clerk magistrate hearings, clerks do sometimes find probable cause but do not issue the complaint and essentially keep the case open at the clerk level.  This typically happens in very minor cases, like leaving the scene of property damage or negligent operation of a motor vehicle.  In most cases, the person has no record so the clerk’s resolution of the case approximates what would have happened in court. In all most all of these situations, the police department is in agreement with the resolution of the case in this manner.  The clerk magistrate hearing helps the court reduce the backlog of cases in the court and allows for a practical resolution that does not result in the defendant receiving a criminal record for a minor offense.

Who are the Judicial Clerk-Magistrates?

Judicial Clerk-Magistrates have their authority under statute G.L. c. 218, § 35A, case law, and standards set by the Massachusetts Judiciary.  They act as a filter between the police and the prosecutor and were intended as a way to weed out cases not likely to result in a conviction or cases that were relatively minor in nature where a resolution could be better sought outside the court system.  Currently, cases declined for prosecution are sealed and later destroyed.

The Massachusetts Supreme Judicial Court will soon address what right the media has to access criminal records.  The case involves the request of the Boston Globe for a booking photograph of an officer after an arrest.  Attempts by the media to gain access to criminal files has been a big issue in the news recently.  One of the major issues in the Robert Kraft case will be whether the media will be allowed to see the surveillance video of the spa.  The case before the SJC involves similar issues of the right of public access versus the right of someone charged with a criminal offense not to be unduly shamed and harmed publicly by the publication of evidence of the criminal case.  Having a booking photo posted online, is in someway more damaging to someones career and reputation than a criminal conviction.  Normally, the media will access the police report and booking photographs through copying the court file which is public record; the case on appeal involved a clerk magistrate hearing where the complaint did not issue and another case where the court file was sealed.  Clerk magistrate hearing are not open to the public; however, another lawsuit by the Boston Globe is attempting to challenge the privacy of clerk magistrate hearings.

The Massachusetts Supreme Judicial Court will hear oral arguments next month to determine whether a Superior Court judgment allowing press access to certain criminal record information should be overturned. In February all parties in the case of Boston Globe Media v. Dept. of Criminal Justice Information Services, Massachusetts State Police, and the Boston Police Dept. filed their briefs before the SJC.

This case stems from a series of public records requests made by the Boston Globe. When a Globe reporter requested booking photographs of law enforcement officers who had been arrested in the summer of 2015, his request was denied by the Massachusetts State Police on the basis that the disclosure of those photos was prohibited by the CORI (Criminal Offender Record Information) Act. On a separate occasion when The Boston Globe requested an incident report involving a Massachusetts state district judge, the request was denied for the same reason.  

How long must one be deprived of his freedom before the deprivation is considered “absolute?”  For what time period must a person be away from her job, her family, or her home before the loss of liberty is no longer considered a “mere diminishment of a benefit?”  And what is the appropriate amount of time an indigent arrestee must wait to receive the same benefit as someone more affluent?  On April 1, 2019, the Supreme Court of the United States denied a petition for a writ of certiorari filed in the case of Maurice Walker v. City of Calhoun, Georgia, a case which would have allowed it to consider these very questions.  

In late 2015, Maurice Walker was arrested and charged with being a pedestrian under the influence of alcohol.  At the time of the arrest, Mr. Walker had a mental illness which prevented him from working, and he received $530 per month in disability.  Although the offense with which he was charged carried no jail time, the city of Calhoun, Georgia had a policy of requiring a cash bail for misdemeanor and traffic offenses.  Not uncoincidentally, the cash bail amount equaled the amount of the fine an arrestee would pay if found guilty of the offense plus certain fees.  The bail in Mr. Walker’s case totaled $160.  Mr. Walker had the bad luck of being arrested during a week leading up to a holiday Monday in a small town with only one Municipal Court judge. Because Mr. Walker could not afford the bail, he was set to remain in jail for thirteen days awaiting a hearing which only occurred on non-holiday Mondays.  Instead, Mr. Walker filed suit and was released after six days in jail on an appearance bond, and the City quickly modified their policy to allow for release of indigents after a maximum of forty-eight hours of incarceration.

The district court granted a preliminary injunction in favor of Mr. Walker, which the 11thCircuit vacated finding that the lower court had erred in applying heightened scrutiny to Mr. Walker’s argument.  This formed the basis for the petition for certiorari.  In his petition, Mr. Walker argued that under the Equal Protection and Due Process clauses of the Fourteenth Amendment to the U.S. Constitution, one could not be subjected to imprisonment solely because one was indigent.  One of the judges on the divided 11th Circuit panel had agreed with Mr. Walker; Judge Martin argued that heightened scrutiny should apply because Mr. Walker, and those like him, suffered an absolute deprivation of liberty.

R. Kelly faces numerous counts of aggravated sexual abuse; it is alleged that the girls were underage at the time of the incident.  In Massachusetts, when someone has sex with an underage person, the crime is referred to as statutory rape.  With a crime like statutory rape, consent is not a defense to the crime.  The only potential defense is to deny that any sexual contact ever occurred.  In Massachusetts, the age for consent is 16 years old.

As matters stand now, R. Kelly made his first court appearance on Saturday, February 23, 2019, and a judge set his bond at $1 million dollars.  He was charged with 10 counts of aggravated criminal sexual abuse and turned himself in to police the Friday prior to his bond hearing.  The charges were based on a grand jury indictment that listed four victims.  Three of the victims were younger than 17 at the time of the alleged abuse, which occurred between May 1998 and January 2010. These charges come amidst a Lifetime documentary which detailed numerous Tsurvivors account of the alleged sexual abuse at the hands of R. Kelly.

Kelly’s conditions of release were similar to what a defendant charged with a similar crime would face in Massachusetts.  He was ordered to have no-contact provision with witnesses, alleged victims, or anyone age 18 or younger.  He also had to turn in his passport.

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