Massachusetts Criminal Defense Lawyer Blog

October 16, 2020

Can a Parent consent to a search of an adult child’s house under the 4th Amendment?

The Fourth Amendment precludes police officers from entering a home without a warrant; one of the exceptions to this requirement is when consent to search is given. The Massachusetts Appeals Court addressed the issue of who can consent to a search in the case of Commonwealth v. Richard Santos decided in June of 2020.

WHAT HAPPENED IN THE SANTOS CASE

In Santos, the defendant lived in one apartment with her daughter living in the apartment next door. The mother told the police that she owned both apartments. The mom told the police that she sometimes lets her son stay in her daughter’s apartment. the police asked the mother to consent to a search of her daughter’s apartment. The mother granted permission. The Appeals Court addressed the issue of whether the mother had apparent authority to consent to the search of her daughter’s apartment.

October 15, 2020

When are Miranda rights required in a Massachusetts DUI arrest?

by Michael DelSignore

As a Massachusetts OUI Lawyer, one question that is often asked is what happens if a police officer failed to read Miranda rights. In an OUI case, police officers are allowed to ask routine questions without reading Miranda. A recent case from the Woburn District Court demonstrates when Miranda rights are required in an OUI case. In the case of Commonwealth v. Vellucci, decided in August of 2020, the defendant was charged with OUI out of the Woburn District Court, second offense. He filed a motion to suppress arguing that statements he made to the officer during field sobriety tests should be suppressed. The motion was denied and he was convicted after trial of a Second Offense OUI. He appealed his conviction to the Massachusetts Appeals Court.

What were the pertain facts of this OUI trial from Woburn District Court

In this case, the defendant got out of his car after being stopped for an alleged traffic infraction. The defendant appeared frustrated and angry and was waiving his arms.

October 12, 2020

Massachusetts Domestic Assault and Battery crimes: How are they prosecuted without the victim’s cooperation

by Michael DelSignore

How are Massachusetts Domestic Assault and Battery Cases prosecuted without the cooperation of the victim? The case of Commonwealth v. Roy Rand, decided by the Massachusetts Appeals Court on June 29, 2020 demonstrates how even without the victim testifying, prosecutors in Massachusetts can secure a conviction of domestic assault and battery. The key piece of evidence is the 911 call which can come into evidence, despite the fact that you will not have the opportunity to cross examine the victim if the Court defines the call as non-testimonial. The Rand cases discusses what makes a statement admissible under this rule and under the Sixth Amendment to the United States Constitution.

BACKGROUND OF THE RAND CASE

The defendant was charged with Strangulation and Domestic Assault and Battery. The case was indicted and brought to the Superior Court. This means that the incident must have been particularly vicious and or the defendant had a bad record as most Strangulation cases would stay in district court.

October 7, 2020

Worcester Criminal Defense lawyer comments on drug distribution involving probable cause to search a home when a confidential informant is used by the police

by Michael DelSignore

As a Worcester Criminal Defense Lawyers. a recent case from Worcester Country decided by the Massachusetts Appeals Court raised important issues of search and seizure in drug cases. Drug cases often involve confidential informants and whether police can establish a nexus between the location of the search and drug distribution activity.

The Massachusetts Court of Appeals recently decided a case concerning a search and seizure of a home in Commonwealth v. Andre-Fields No. 19-P-846, 2020 WL 5648611 (Mass. App. Ct. Sept. 23, 2020).

Two defendants, Milano Andre-Fields, and his girlfriend Mindy Doherty, had their home raided and a large number of firearms and illegal drugs were confiscated. Prior to trial, Andre-Fields and Doherty filed motions to suppress this evidence. The Superior Court granted this motion on the basis that search warrants failed to establish the requisite nexus between the objects sought and the premises to be searched.

October 5, 2020

Are Searches of computers and cell phones are the Border without a warrant permissible under the Fourth Amendment

by Michael DelSignore

The United States Supreme Court may review a case called United States v. Williams that deal with the issue of what is the scope of a permissible search at the border: Can the search include personal computers and cell phones under the Fourth Amendment?

The Supreme Court has the opportunity to review a case concerning the Fourth Amendment rights travelers have when entering the country with their personal electronics. The circuits are split multiple ways regarding this issue of warrantless searches of personal electronics at the border. Some courts allow the search of electronic devices at the border under any circumstances, while other courts hold these searches to a higher standard. In the case of United States v. Williams, the Tenth Circuit declined to rule on whether searches of personal electronic devices at the border must be subject to reasonable suspicion. United States v. Williams, 942 F.3d 1187, 1190 (10th Cir. 2019). But reasonable suspicion is sufficient to justify a warrantless border search of personal electronic devices, and that is the point at issue in this case.

What happened in the Williams Case?

October 1, 2020

Massachusetts SJC decision will promote the goal of all voices being heard in the jury room by lowering the bar to show Juror was excluded based on Race

by Michael DelSignore

The Massachusetts Supreme Judicial Court made it easier for defendant to show race improperly played a role in prosecutors using a peremptory challenge on a juror by eliminating the requirement that a defendant show a pattern of conduct in excluding minority jurors. Prosecutors no longer get a free opportunity to strike one juror based on race because other were kept on the jury. This is an important victory preserving the right to a fair trial and making sure all voices are heard in the jury room. The Massachusetts Supreme Judicial Court changed the standard for challenging peremptory strikes in Massachusetts state court. The Supreme Judicial Court has adopted the standard of Batson v. Kentucky, “retiring” the language of Commonwealth v. Soares.

The defendant in Commonwealth v. Sanchez challenged the prosecution’s peremptory strike in which a nineteen year old African American was removed from the jury. The trial judge upheld the peremptory strike. The defendant appealed. After losing his state appeal, the defendant applied for federal habeas corpus relief. There, the judge noted that the Massachusetts standard for challenging peremptory strikes in Soares was harder for defendants to meet than Batson. Still, defendant was denied habeas relief. Defendant then moved for a new trial in state court, which was granted. The Commonwealth appealed.

A Pattern of Discrimination is no longer required when challenging Race Based use of Peremptory Challenges

October 1, 2020

Selecting an Impartial Jury in a Massachusetts Criminal Trial: SJC reviews case of Commonwealth v. Rosa-Roman

by Michael DelSignore

Massachusetts Criminal Defense Lawyer must continue to exercise preemptory challenges when prosecutors attempt to exclude minority jurors. A criminal defense is entitled a a jury that represents a cross-section of the community. Cultural stereotypes are reinforced when prosecutors are allowed to rely on them to exclude jurors based on race. The case of Commonwealth v. Dennis Rosa-Roman raises these issues.

What happened in the Rosa-Roman Case?

On August 26, 2011, Amanda Plasse was found stabbed to death in her Chicopee apartment. Dennis Rosa-Roman was arrested for this murder, and found guilty. Although he appealed, his conviction was affirmed by the Supreme Judicial Court. In his appeal, Rosa-Roman alleged irregularities in the jury selection process. Specifically, he alleged that a Hispanic female and an African-American female were improperly excluded by the prosecution by use of peremptory strikes (strikes not for cause) due to their race. When such an objection is raised, the trial court must conduct an inquiry as to whether there are adequate, genuine group-neutral reasons for the peremptory strike. The trial court did so; as will be seen below, the defense disagreed with the trial court’s rulings.

September 19, 2020

Massachusetts SJC finds race and age relevant to Seizure analysis under the Constitution in Commonwealth v. Tykorie Evelyn decision

by Michael DelSignore

On the same day as the Massachusetts Supreme Judicial Court decided, Commonwealth v. Long, lowering the burden for a defendant to prove a stop was the result of racial profiling, the SJC also released a decision involving race and police interactions with a young black male in the context of a seizure rather than a motor vehicle stop. The case of Commonwealth v. Tykorie Evelyn involves a street encounter between the police and a young black male who the police suspected was involved in a shooting. While the SJC ruled against the defendant Evelyn, the SJC indicated that past and current social realties regarding how young black males perceive the police should factor into how Court analysis Constitutional questions such as whether someone has been seized by the police.

The Evelyn case involved the following circumstances:

What Happen in the case of Tykorie Evelyn?

September 17, 2020

Massachusetts SJC decision may reduce racial profiling in traffic stops as it lowers the burden to show racial motivation for the stop

by Michael DelSignore

The Massachusetts Supreme Court decided the case of Commonwealth v. Edward Long today. The decision lowers the burden to prove racial profiling in traffic stops. The decision is very important because it will help eliminate racial profiling in traffic stops and move our country toward greater racial equality.

The case of Edward Long involved a young black male being stopped for not having a proper inspection sticker on the car he was in. Once he was stopped for the traffic infraction, officers discovered he had a warrant, searched the car and found a hand gun. Long moved to suppress the evidence of the hand gun, arguing that he was stopped based on his race in violation of the Equal Protection Clause. During the Motion to Suppress hearing, he presented a compelling statistical case of racial disparity in traffic stops.

The motion judge denied the motion despite the overwhelming statistical evidence he presented. The Massachusetts SJC found that the standard previously used by the Court to prove racial bias in traffic stops imposed too high a burden on defendants, making Equal Protection of the law an illusory concept.

September 3, 2020

1st Amendment Free Speech Protection to Revenge Porn laws

by Michael DelSignore

As a Massachusetts criminal defense lawyer, one of the more interesting defenses to a criminal charge is a First Amendment attack on whether the law is Constitutional. Recently, there have made some First Amendment challenges to the Involuntary Manslaughter Statute in Massachusetts in the Michelle Carter case. The Massachusetts Supreme Court ultimately rejected that claim finding that the involuntary manslaughter statute punished conduct and was not punishing someone for their viewpoint, but was permitted regulation of conduct that indirectly impacts speech. Revenge Porn Laws have been challenged on First Amendment grounds. The United States Supreme Court may hear a case from Illinois that deal with the criminalizing so called Revenge Porn and how it can comport with the requirements of Free Speech under the First Amendment. The case is Bethany Austin v. State of Illinois, and the filing can be found on the Scotus Blog.

How did the State of Illinois try to criminalize Revenge Porn?

Illinois passed, like many other states a Revenge Porn Law. The statute precludes online dissemination via the internet of photographic, film, videotape, digital recordings or depictions or portrays of another person engaged in sex act or with their intimate parts exposed. The Act covers any circumstance where a reasonable person would know that the person wanted the images to stay private and published them without consent.