Search and Seizure defenses in criminal cases

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 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?

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?

August 24, 2020

Does the Fourth Amendment prevent police from looking into your house from your property?

by Michael DelSignore

Is your “semiprivate” area in your home’s curtilage protected from prying eyes?

The Fourth Amendment protects all Americans from unreasonable searches and seizures. Courts define what that means everyday in terms of how far Fourth Amendment protections are extended. One case that raises an interesting issue is Cyde S. Bovat v. State of Vermont. This case may be heard by the United States Supreme Court as the defendant has filed a writ of certiorari.

The Question presented in Clyde S. Bovat v. State of Vermont was whether a police officer can access “semiprivate” areas within a home’s curtilage to conduct an investigation without a warrant.What happened in Clyde?

April 19, 2020

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

by Michael DelSignore

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.