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?  

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:

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.

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”.

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