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Articles Posted in Search and Seizure defenses in criminal cases

The Fourth Amendment protects people from unreasonable intrusion and promises that citizens will not have their “persons, houses, papers, and effects, against unreasonable searches and seizures.” 

 

Carlisle v. Kentucky asks the question of whether courts can adopt a categorical rule allowing law enforcement to prolong every traffic stop by performing a criminal records check, or on the other hand, whether the Fourth Amendment requires an individualized, case-by-case approach that allows checks only when the government offers some evidence that the check related to the officer’s safety. The circuits are split concerning this issue.  This case is current pending a petition for certiorari before the Untied States Supreme Court.  

 

Five courts allow law enforcement to perform a criminal record check in every traffic stop in theory and agree that these checks are inherent to officer safety. On the other hand, two courts have adopted a case-by-case basis for officers searching a criminal record. These courts adopt the approach where the court will evaluate the specific circumstances of the particular stop to determine whether the officer’s safety was so at the risk that the search of criminal records was appropriate. 

The case of Commonwealth v. Josiah Zachery that is current before the Massachusetts Supreme Judicial Court raises the issue of whether there is a reasonable expectation of privacy in data from the Charlie Card, which is used to ride the commuter rails in Boston. This issue is likely to reoccur as all cards now track location, from CVS cards, to cards to reflect tolls paid in the highway.  The Massachusetts SJC heard oral argument on November 6, 2020 and a decision should follow within three to four months.

What happened in the Zachery Case?  

In February of 2015, Donte Henley and the defendant were allegedly shoveling snow with the ROCA, a non-profit program for high-risk youth that provides job training. Henley told the defendant to shoot another member of the crew, Lamour, who was a member of a rival gang. The defendant still denies the shooting and contends that there is a lack of forensic evidence against him. The shooter was described as a young, black, male wearing all black with a grey sweater. The defendant matched this description, and he was walking on the side of the road carrying a shovel. The officers determined that he matched the description and decided to check him out. He was searched for weapons, none were found, and they placed him inside the police vehicle. 

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.

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? 

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?  

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?

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?  

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:

  1. The age of the facts;

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:

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.

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