Search and Seizure defenses in criminal cases

April 19, 2020

The Massachusetts Appeals Court addresses the issue of reasonable suspicion when police observe a quick hand-to-hand transaction

As a Massachusetts Criminal Defense Lawyer, often the most promising defense in a case of drug distribution or a gun possession charge, is an attack on the Constitutional basis for the stop. In many cases, police came that a quick transaction was an illegal drug sale and use that as a basis to seize a person and search their person. When these cases make it to court, it is because the person had some illegal substance on them or illegally possessed a firearm.

That was the legal issue under the Fourth Amendment and Article 14 that the Massachusetts Appeals Court had to address in the case of Commonwealth v. Kearse, decided on April 9, 2020.

What happened in the Kearse Case?

March 31, 2020

Massachusetts Possession of Child Pornography case before SJC to turn on whether Warrant is Stale

by Michael DelSignore

The Massachusetts Supreme Judicial Court heard oral argument in a case that addresses the issue of when a warrant is stale in the case of an alleged seizure of child pornography from a defendant’s computer. The case of Commonwealth v. Robert Guastucci, argued on March 5, 2020 raised this issue before the Massachusetts Supreme Judicial Court.

A warrant under the Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights may only issue on probable cause. The information contained in the warrant must be based on facts closely related in time to the issues raised in the warrant to justify probable cause. The Massachusetts SJC has looked to two particular factors in evaluating whether a warrant is stale:

The age of the facts;

January 18, 2019

Kansas Supreme Court in State v. Glover finds 4th Amendment does not permit officer to assume registered owner is the driver in making motor vehicle stop

by Michael DelSignore

In the case of Kansas v. Charles Glover, the State of Kansas is asking the United States Supreme Court to overturn a decision of the Kansas Supreme Court, finding that the police officer did not have reasonable suspicion to stop a motor where the police had information that the registered owner did not have a valid license. The State is arguing that the police are allowed to infer without further information that the registered owner is driving the vehicle, allowing for a lawful traffic stop. In Massachusetts, under the case of Commonwealth v. Daramo, 762 N.E. 2d 815 (Mass. 2002), the police are allowed to infer that the registered owner is driving the vehicle. In light of the Glover decision, Massachusetts criminal lawyers should attempt to have the Court readdress this issue as being inconsistent with the Fourth Amendment and Article 14 of the Massachusetts Constitution.

This inference that the registered owner is the driver is inconsistent with the Fourth Amendment and requirements of reasonable suspicion as the Kansas Supreme Court correctly found. In requesting the United State Supreme Court to hear the case, the State of Kansas argued that the rule in a majority of jurisdictions is to allow an officer to infer that the registered owner is driving the vehicle. You can read the filing of the Glover case on the Scotus Blog. The State’s petition for certiorari is pending before the United States Supreme Court.

Reasoning of the Kansas Supreme Court in Glover:

January 22, 2018

Possession of a Firearm without FID card in Massachusetts and when does a seizure occur under the Fourth Amendment

by Michael DelSignore

In the case of Huertas v. United States, the defendant is requesting that the United States Supreme Court grant certiorari in his case, to address the issue of when an individual can be seized for the purposes of the Fourth Amendment. In order to trigger a defendant’s Fourth Amendment rights, the person must be seized under the law. For example, a person is not automatically seized any time there is interaction with the police. A court will look at the circumstances of the encounter and attempt to determine if a reasonable person would not feel free to leave. Cases involving flight from the police raise interesting Fourth Amendment issues.

The Branden case was a gun charge. In gun crimes, often the police will receive anonymous tips that are frequently uncorroborated that a person has a gun. In the Branden case, the defendant initially spoke to the officer. The defendant submitted to the officer’s show of authority for between 30 and 60 seconds. When the officer got out of his car, the defendant ran and discarded a gun while running from the officer.

By temporarily complying with the officer’s show of authority, the defendant argued that he was seized under the Fourth Amendment. The defendant argued that since the defendant was seized, the seizure was unlawful because it was not supported by reasonable suspicion.

January 19, 2018

Scope of Consent to Search closed containers at issue in case before the United States Supreme Court

by Michael DelSignore

The United States Supreme Court is considering an appeal in the case of Gonzalez-Badillo v. Unites States which will address the issue of whether a general consent to search justifies searching a closed container under the Fourth Amendment. In the Badillo case, the defendant gave a general consent to search as he was at a bus station. The officer inspected the bags of the defendant and thought his shoes were lumpy. The officer could see plastic inside the slit of the sole of the shoe but could not see anything illegal. The officer opened up the sole without obtaining further consent for the search.

The Fifth Circuit found that the search was lawful because once the officer told the defendant that he was looking for anything illegal, the defendant could expect that he would search any item that might contain drugs. The Court further concluded that the boots were suspicious and that the defendant failed to object during the search made the consent valid.

Dissenting Justice Elrod of the Fifth Circuit found that a general consent to search cannot be interpreted as authorization to destroy personal property during the search. Justice Elrod found that consent to search which includes unlocked containers cannot be said to include the right to damage property found within the containers.

October 6, 2016

Cell phone search Violated Fourth Amendment Massachusetts SJC rules as officer must establish specific reason to support evidence of criminal activity on the cell phone

by Michael DelSignore

The Massachusetts Supreme Judicial Court has excluded evidence obtained from the cellphone of the defendant in Commonwealth v. Onyx White following the Boston Police’s failure to prove probable cause for the warrantless seizure of the phone. The court affirmed that the warrantless seizure of a cell phone in the robbery-homicide investigation could not be justified by the detective’s personal judgment as to whether or not the cell phone contained important information relating to a case. The SJC ruled that the 68 day delay in the respective search warrant application was was unreasonable and that the Boston Police department should have prioritized the application for the respective search warrant or released the cell phone back to the defendant.

About the Case

After speaking with an administrative at the defendant’s high school based on his connection to a robbery-homicide, the administrative had informed the detective that she was in possession of the defendant’s personal cell phone as part of school policy. After gaining approval from his supervisor, the detective seized the cell phone in order to prevent the defendant from tampering with any potential evidence stored in the phone. A search warrant was issued 68 days later following the emergence of new information. Although the detective did not search the phone prior to the search warrant, the forensic search revealed evidence significant to the investigation.

November 17, 2015

Protective Sweep found Unconstitutional by Massachusetts Appeals Court

by Michael DelSignore

Search and Seizure that occur in the home are subject to the highest scrutiny by the Court. The case of Commonwealth v. Colon addresses whether a protective sweep complies with the Fourth Amendment and Article 14 of the Massachusetts Declaration of Rights.

What happened in the Colon Case?

Officers arrived at the home of Robert Colon and knocked on the door, waiting for the defendant to open it. Upon opening the door, the officers identified a “strong odor” of fresh marijuana. This prompted the officers to handcuff the defendant and preform a protective sweep of his apartment.

A protective sweep a search done when there is a reasonable belief based on “specific and articulable facts that the area could harbor a dangerous individual”.

October 11, 2014

First Degree Homicide conviction overturned in a Georgia Hit-and-Run case

by Michael DelSignore

Under state statute (G.L. c. 90 § 24), all drivers in Massachusetts have a legal obligation to stop and identify themselves whenever they know that their vehicle has collided with another vehicle, property, or a person. If the driver collides with another person, leaving them dead or unconscious, the driver must stay at the scene and provide information to another motorist or officer, or leave the scene to find a telephone to report the accident to authorities. Failure to do so could result in license suspension or criminal offenses.

Other states, such as Georgia, also require drivers to provide injured parties “reasonable assistance,” including providing, or arranging for, transportation of the injured parties for medical attention. Under Georgia statutes OCGA 40-6-270, a driver could be charged with a felony hit-and-run for failing to provide such assistance. Another statute, OCGA 40-6-393, also allows for a driver who fails to stop as required under 40-6-270 to be charged with first degree vehicular homicide if he injures a person and that person subsequently dies. Under the second statutory provision, a person could be sentenced to up to 15 years in prison, in comparison to the five years under the hit-and-run provision.

The case of Henry v. State, heard by the Court of Appeals of Georgia, demonstrates the different legal issues that come into play in such hit-and-run cases. In Henry v. State, the defendant was operating a vehicle with a passenger down a public road in Georgia after midnight, when he struck two fourteen year-old boys walking in the grass along the road. The passenger testified that he felt an impact and saw one boy’s head hit the hood of the defendant’s pickup truck, and screamed to the defendant: “You just killed somebody. Stop Henry.” The passenger also testified that he was certain that this boy died on impact. Rather than stop to provide assistance as the statute requires, the defendant sped home and later abandoned the truck in a field with the intention of reporting it stolen.