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Articles Posted in Constitutional Defenses in Drug Cases

   The Massachusetts Supreme Judicial Court will hear arguments this Friday September 7, 2018 in the case of Commonwealth v. Davis.      The case raises the issue when the police have probable cause to arrest based on a belief that someone is impaired by marijuana.  In this case, the defendant Davis was charged with Carrying a firearm without an FID card and drug possession with the intent to distribute.  He was found not guilty of Firearm offense, which carried an eighteen month mandatory minimum sentence, but convicted of the Drug possession with intent to distribute charges. 

       The Drugs were found during an alleged inventory search of the car.  The officers justified the search of the car based on the probable cause to believe that the defendant was operation under the influence of marijuana.  The issue is whether police have probable cause to arrest based on an odor of marijuana and other indicators that the officer observed. 

In this case, the evidence that the operator was impaired by marijuana was very weak.  The defense on appeal also challenged the issue of whether the inventory search was proper.  I submitted an amicus brief in this case on behalf of the National College of DUI Defense.  I am a member of the College’s amicus committee and have been a member since 2007.  Based on the officer belief that the defendant was under the influence of marijuana, the officer search the car and discover the evidence that was later used to convict the defendant of the drug charge.  

The Wyoming Supreme Court has upheld digitally transmitted court authorizations for search warrants as permissible under the Fourth Amendment. Some states, such as Wyoming, already allow judges and clerks to issue search warrants without a formal written application by the officer or prosecutor. As a Massachusetts Criminal Defense Lawyer, the use to telephonic warrants represents an erosion of the warrant requirement and its use should be limited in scope by the Court.

In the cases of Terry Smith v. Wyoming, and Dena Blomquist v. Wyoming, the defendants were individually arrested for an OUI offense. Both defendants were required to submit to a blood alcohol test after a judge remotely issued a warrant. The Supreme Court of Wyoming held that these remotely communicated warrants were lawful and afford the defendants the same protections as warrants that were formally applied for by written affidavit.

The Wyoming state legislature passed a statute authorizing officers to compel arrestees to submit to chemical tests once the officer has a search warrant issued on paper or one that is “remotely communicated.” The statute defines a “remotely communicated warrant” as a communication between a judicial officer and the police officer or prosecutor authorizing a search by voice transmission, image, or text as long as the communication is recorded. The communication may be recorded in writing, or by any other means.

As technology advances, a slew of new legal issues have found their way into courts across America. Social media networks, email, texting, and other technological communications pose new questions surrounding citizens’ privacy, the 4th amendment, and search/seizures issues for police. Recently, a Florida Supreme Court ruled that police are required to obtain a search warrant before examining the contents of an arrestee’s cell phone.

In the case of Smallwood v. State, the defendant was arrested for allegedly committing an armed robbery of a convenience store. Upon his arrest, police confiscated and examined the contents of a cell phone in the defendant’s possession at the time of his arrest. Police discovered incriminating evidence on the phone, including images of a handgun, and photos of stacks of cash that were taken after the date of the robbery. However, the defendant argued that his 4th amendment right was violated.

According to the 4th amendment, United States citizens have the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Warrants can only be obtained with probable cause and should specifically describe the place to be searched, and the persons or things to be seized. Further, to have probable cause, police must have legally sufficient reasons to believe a search is necessary. Law enforcement cannot just seize property to use as evidence without first obtaining a warrant. While evolving technology that provides instant access to a person’s bank accounts, medical records, contacts, photos, and communications pose seemingly new questions on search/seizure, the courts have faced these issues historically.

Since Commonwealth v. Cruz, the Supreme Judicial Court held that the smell of marijuana did not give an officer probable cause to conduct a search. Commonwealth v. Daniel, a recent decision by the Supreme Judicial Court, affirms the holding from Cruz. The Daniels decision may provide a defense to a drug stop for a Boston criminal defense lawyer based on the Fourth Amendment to the United States Constitution.

Boston police officer was patrolling Dorchester in the early hours of the morning when he observed a SUV without a driver’s side headlight make a left hand turn without signaling. The officer stopped the vehicle and when approaching the car noticed that the man sitting in the passenger’s seat was rocking back and forth. The officer could also smell marijuana when he approached the vehicle, and when he asked the driver if there was marijuana in the vehicle, the driver produced two small bags from her pockets. The driver also emptied all other possessions from her pocket.

Based on this behavior, the officer suspected that the defendant was concealing something more, so her ordered the driver to pull over further and ordered that the passenger and then driver exit the vehicle. The officer searched the passenger and subsequently the driver, finding no contraband on either person. The officer then searched the vehicle and found a firearm in the glove box.

As a Boston criminal defense lawyer, defending drug cases, often the initial police seizure will be based on the defendant being in a high crime area. The Massachusetts Supreme Judicial Court has stated numerous times that being present in a high crime area or flight from the police is insufficient to justify a stop under the 4th Amendment or Article 14 of the Massachusetts Declaration of Rights.

The Fourth Circuit Court of Appeals recently addressed this issue in the case of

United States v. Bumpers. A police officer was conducting a routine patrol. While he was driving by a local convenience store in a high-crime area, the officer noticed two men standing by dumpsters located. The officer observed the two men for five or ten seconds and then pulled into the parking lot. At that time the men began walking away from the dumpsters. The officer exited his car and told the two men that they were not free to go. One of the men, defendant Irvin Bumpers, obeyed the officer’s orders.

The Supreme Court recently heard oral argument in Bailey v. United States on November 1st 2012. The predominant issue in Bailey is whether or not the precedent set forth in Michigan v. Summers, 452 U.S. 692 (1981), which allows an officer to detain an individual on the premises of a location being searched, extends to the detention of an individual the officer saw leaving the location to be searched and is no longer in the immediate vicinity.

While it can be difficult to predict how the Justices will decide a case based on the oral argument, it appears as though the Justice will decline to extend the Summers case as argued by the Government. The Government argued that the stop of Bailey away from the residence to be searched was permissible under the rationale of Summers because Bailey could have returned to the residence and threatened the safety of the officers.

The defendant argues that the Summers exception to typical warrant and detention standards should not be interpreted broadly and, in fact, should be interpreted rather narrowly. Once the individual is off of the location to be searched it is not likely they will return and pose any sort of threat to the safety of the officers or the quality of the search, and Summers would not apply, as argued by the defense.

One issue a criminal defense lawyer may use in defending a Massachusetts drug crime is to challenge the use of “Knock and Talk” searches often utilized by law enforcement.

“Knock and Talk” is a law enforcement tactic that police officers practice when they lack sufficient evidence, probable cause, or reasonable suspicion to obtain a search warrant. Typically, working off a tip, an officer will arrive at the suspect’s home, engage in conversation at the door, and then attempt to gain consent from the suspect to search the premises. This does not violate the 4th Amendment that guards against an unlawful searches or seizures so long as the suspect gives consent to search. However, a court will take into consideration if a reasonable person would have felt pressure by the officer to allow the search. “Knock and Talk” procedures are on the edge of being unlawful because this tactic has a great risk for abuse that may challenge the 4th amendment.

A criminal defense attorney in the North Carolina Court of Appeals was recently successful in challenging “Knock and Talk” tactics when the court ruled that Marijuana plants seized during a routine “Knock and Talk” violated the plain view doctrine, State v. Grice, No. COA12-577, North Carolina App. Ct. (2012).

The Massachusetts Supreme Judicial Court addressed an important legal issues that arose once the Massachusetts legislature decriminalized simple possession of under one ounce of marijuana. Does the smell of burnt marijuana justify an order that a motorist exit a motor vehicle. In the case of Commonwealth v. Cruz, decided April 19, 2011, the SJC held that the smell of burnt marijuana alone does not justify an exit order.

The Cruz case involved the following facts. The defendant was a passenger in a car parked in front of a fire hydrant. The windows were rolled down in the car and the officers could see the driver light a cigar known to mask the smell of marijuana. The officers recognized the defendant and testified at the motion to suppress hearing that they saw the defendant smoking marijuana earlier in the day. Significantly, the defendant was not known to the officers as a dangerous person and even was counseled by one of the officers to “do more than hang out.” The driver was unknown to the officers. The officers further testified at the motion hearing that the defendant was smoking a cigar, that they could smell an odor of burnt marijuana and that the driver appeared nervous. The defendant and the driver were ordered out of the car.

In finding the exit order improper under Article 14 of the Massachusetts Declaration of Rights, the court stressed that by decriminalizing possession of under an ounce of marijuana the voters changed the status of the offense, meaning that the voters intended possession of marijuana under an ounce to be treated different from other serious drug crimes. Accordingly, the SJC concluded that the changed status of the offense implicates police conduct and requires some additional facts other than the smell of burnt marijuana to justify an exit order.

Under Massachusetts law, police must have a basis to support an exit order under Article 14 of the Declaration of Rights. An exit order is permissible in Massachusetts in one of three circumstances:

1. The police have a reasonable belief that their safety is in danger;
2. The officer has reasonable suspicion that the defendant is committing a criminal offense, other than a traffic violation.
3. The officer can order a defendant from the car if there is a legal basis for a warrantless search of the vehicle under the automobile exception to the warrant requirement.

Massachusetts provides greater protections to citizens under Article 14 than under the Fourth Amendment to the United States Constitution as under the Fourth Amendment as interpreted by the United States Supreme Court, the police do not need any basis to order a motorist from the vehicle.

In Cruz, the Commonwealth argued that the exit order was justified based on the officer’s belief that the defendant was engaged in criminal activity. The SJC held that there were no facts that would support the conclusion that a criminal amount of narcotics were in the vehicle. Further, the court rejected the reasoning of other State courts finding probable cause to believe a vehicle has any quantity of marijuana is sufficient to justify a warrantless search based on the likely presence of other contraband. In rejecting these other State court decisions, the SJC stressed that the standard to determine the validity of a warrantless search is the same used by a magistrate issuing a warrant. Applying this reasoning, the SJC concluded that under the facts of the case a magistrate could not issue a search warrant.
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In many Massachusetts drug arrests, the police will claims as a basis for obtaining a search warrant of a residence that a confidential informant provided information that the residence was being used for drug trafficking or distribution.

As a Massachusetts drug crimes lawyer, it is sometimes necessary to file a motion to require the Commonwealth to disclose the identity of the informant in order to prepare a defense to the charges. In some cases, an informant may provide relevant information for the defense while in other cases a court order for disclosure may force the Commonwealth to dismiss the case rather than to disclose the informant’s identity.

In Commonwealth v. Shaughessy, 455 Mass. 346 (2009), the Massachusetts Supreme Judicial Court held that in order to obtain disclosure of the identity of a confidential informant a defendant has the burden of showing that the informant would provide information that is material to the defense. If this showing is made, then the privilege can be overcome. The purpose of the privilege is to assist the police in obtaining information without the informant fearing retribution as a result of cooperating with the police. This privilege has limitations under the Sixth Amendment Confrontation Clause of the United States Constitution. The leading case on the issue of disclosing confidential informants in drug cases is the United States Supreme Court case of Roviaro v. United States, 353 U.S. 53 (1957).

Recently, the National Association of Criminal Defense Lawyers submitted an amicus brief to the Court of Appeals of Maryland in the case of Elliot v. State on the issue of whether the Maryland court improperly denied the defendant access to the identity of the confidential informant. Click here to read the brief of the National Criminal Defense Lawyers.

In Elliot, the defendant argued that there was no need for the privilege as the identity of the informant was already known and secondly that disclosure of the informant was necessary as a matter of fairness as the informant would potentially be a material witness for the defendant. In defending the charge of possession of drugs with the intent to distribute, the defendant in Elliot claimed that the informant entrapped the defendant and asserted as his defense that he had no knowledge that there were drugs in his car. Clearly, cross examination of the informant may provide strong evidence for the defendant in providing a motive for the informant to frame the defendant in attempt to gain favor with the police; further, disclosure of the informants identity would allow the criminal defense attorneys to gain other valuable discovery, such as the criminal record of the informant to uncover a motive to lie on the part of the informant.

As a Massachusetts criminal defense lawyer, I believe that the Maryland Court of Appeals should reverse the lower court’s decision and its decision may provide valuable precedent in defending Massachusetts drug crimes. To read the decision of the Maryland Court of Appeals in Elliot v. State click here.
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