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The Massachusetts Supreme Judicial Court heard oral argument on April 2 in the Commonwealth v. Long. This case raises the issues of the detection of marijuana and probable cause to search a commercial building.  

In this case, two officers were conducting patrol when they noticed two vehicles parked behind a commercial building. Another officer arrived on scene, and all three secured a perimeter around the building. Upon doing so, the officers detected an overwhelming odor of unburnt marijuana. The officers also noticed that the ventilation inside the building was covered with plywood. The building was being leased to Defendant Long, who had a criminal drug history. The owner of one of the vehicles also had a prior drug history. Using these facts as support for probable cause, an application for a search warrant was made and a search warrant was issued. Defendant Long was charged with trafficking more than fifty but less than one hundred pounds of marijuana. Long filed a Motion to Suppress and the case is currently before the SJC.

The Justices will have to determine whether the untrained nose can reliably detect, based on odor, the presence of a criminal amount of marijuana in a building as opposed to in a vehicle. The Justices also have to determine whether the presence of a vehicle registered to an owner who has a marijuana conviction is sufficient to establish probable cause. The answer to these questions will provide useful guidance to law enforcement officers.

The Massachusetts Supreme Judicial Court will decide whether the failure to secure a child properly in a car seat can result in an involuntary manslaughter conviction.  The case is Commonwealth v. Hardy, where the defendant Hardy was convicted by a jury of involuntary manslaughter.  On appeal, Hardy argues that her failure to secure her child in a booster seat is a legally insufficient basis for her conviction as to manslaughter and reckless endangerment of a child.  A manslaughter conviction requires the Commonwealth to prove, “the defendant unintentionally caused another’s death during the commission of wanton or reckless conduct,” and said conduct, “created a high degree of likelihood that substantial harm would result to the victim.”

Similarly, a conviction for reckless endangerment of a child requires the Commonwealth to show the defendant recklessly engaged in conduct that caused substantial risk of serious bodily injury to a child… or wantonly or recklessly failed to take reasonable steps to alleviate such risk when there was a duty to act.  G.L. c. 265, §13L.

Was Hardy’s conduct, failing to secure Dylan in a booster seat, wanton or reckless?  Was Hardy aware that her failure to use the booster seat created a high degree of likelihood that substantial harm would befall Dylan?  Courts have defined recklessness as conduct involving a grave risk of harm to another that a person undertakes with indifference to or disregard of the consequences.  Commonwealth v. Welansky, 316 Mass. 383, 399 (1944).  Hardy submits her act of merely using the seatbelt and not the booster did not rise to the requisite level of wanton or reckless conduct.  She further alleges that the Commonwealth provided no evidence as to whether Dylan may have survived the crash if a booster seat had been utilized.  In her brief, Hardy argues that at most, the Commonwealth is alleging her conduct was merely negligent and as a matter of law, a legally insufficient basis for the conviction of manslaughter.  She further asserts that an individual who fails to secure a child in a vehicle at all might engage in wanton or reckless conduct, but she took steps to mitigate, the inherent risk associated with any passenger in a vehicle by making sure Dylan was at least wearing a seatbelt.

The Massachusetts Supreme Judicial Court will be asked to decide whether clerk magistrate hearings where the clerk finds probable cause but declines to issue the complaint should be open to the public.  As a criminal defense lawyer that has handled many clerk magistrate hearings, clerks do sometimes find probable cause but do not issue the complaint and essentially keep the case open at the clerk level.  This typically happens in very minor cases, like leaving the scene of property damage or negligent operation of a motor vehicle.  In most cases, the person has no record so the clerk’s resolution of the case approximates what would have happened in court. In all most all of these situations, the police department is in agreement with the resolution of the case in this manner.  The clerk magistrate hearing helps the court reduce the backlog of cases in the court and allows for a practical resolution that does not result in the defendant receiving a criminal record for a minor offense.

Who are the Judicial Clerk-Magistrates?

Judicial Clerk-Magistrates have their authority under statute G.L. c. 218, § 35A, case law, and standards set by the Massachusetts Judiciary.  They act as a filter between the police and the prosecutor and were intended as a way to weed out cases not likely to result in a conviction or cases that were relatively minor in nature where a resolution could be better sought outside the court system.  Currently, cases declined for prosecution are sealed and later destroyed.

The Massachusetts Supreme Judicial Court will soon address what right the media has to access criminal records.  The case involves the request of the Boston Globe for a booking photograph of an officer after an arrest.  Attempts by the media to gain access to criminal files has been a big issue in the news recently.  One of the major issues in the Robert Kraft case will be whether the media will be allowed to see the surveillance video of the spa.  The case before the SJC involves similar issues of the right of public access versus the right of someone charged with a criminal offense not to be unduly shamed and harmed publicly by the publication of evidence of the criminal case.  Having a booking photo posted online, is in someway more damaging to someones career and reputation than a criminal conviction.  Normally, the media will access the police report and booking photographs through copying the court file which is public record; the case on appeal involved a clerk magistrate hearing where the complaint did not issue and another case where the court file was sealed.  Clerk magistrate hearing are not open to the public; however, another lawsuit by the Boston Globe is attempting to challenge the privacy of clerk magistrate hearings.

The Massachusetts Supreme Judicial Court will hear oral arguments next month to determine whether a Superior Court judgment allowing press access to certain criminal record information should be overturned. In February all parties in the case of Boston Globe Media v. Dept. of Criminal Justice Information Services, Massachusetts State Police, and the Boston Police Dept. filed their briefs before the SJC.

This case stems from a series of public records requests made by the Boston Globe. When a Globe reporter requested booking photographs of law enforcement officers who had been arrested in the summer of 2015, his request was denied by the Massachusetts State Police on the basis that the disclosure of those photos was prohibited by the CORI (Criminal Offender Record Information) Act. On a separate occasion when The Boston Globe requested an incident report involving a Massachusetts state district judge, the request was denied for the same reason.  

How long must one be deprived of his freedom before the deprivation is considered “absolute?”  For what time period must a person be away from her job, her family, or her home before the loss of liberty is no longer considered a “mere diminishment of a benefit?”  And what is the appropriate amount of time an indigent arrestee must wait to receive the same benefit as someone more affluent?  On April 1, 2019, the Supreme Court of the United States denied a petition for a writ of certiorari filed in the case of Maurice Walker v. City of Calhoun, Georgia, a case which would have allowed it to consider these very questions.  

In late 2015, Maurice Walker was arrested and charged with being a pedestrian under the influence of alcohol.  At the time of the arrest, Mr. Walker had a mental illness which prevented him from working, and he received $530 per month in disability.  Although the offense with which he was charged carried no jail time, the city of Calhoun, Georgia had a policy of requiring a cash bail for misdemeanor and traffic offenses.  Not uncoincidentally, the cash bail amount equaled the amount of the fine an arrestee would pay if found guilty of the offense plus certain fees.  The bail in Mr. Walker’s case totaled $160.  Mr. Walker had the bad luck of being arrested during a week leading up to a holiday Monday in a small town with only one Municipal Court judge. Because Mr. Walker could not afford the bail, he was set to remain in jail for thirteen days awaiting a hearing which only occurred on non-holiday Mondays.  Instead, Mr. Walker filed suit and was released after six days in jail on an appearance bond, and the City quickly modified their policy to allow for release of indigents after a maximum of forty-eight hours of incarceration.

The district court granted a preliminary injunction in favor of Mr. Walker, which the 11thCircuit vacated finding that the lower court had erred in applying heightened scrutiny to Mr. Walker’s argument.  This formed the basis for the petition for certiorari.  In his petition, Mr. Walker argued that under the Equal Protection and Due Process clauses of the Fourteenth Amendment to the U.S. Constitution, one could not be subjected to imprisonment solely because one was indigent.  One of the judges on the divided 11th Circuit panel had agreed with Mr. Walker; Judge Martin argued that heightened scrutiny should apply because Mr. Walker, and those like him, suffered an absolute deprivation of liberty.

R. Kelly faces numerous counts of aggravated sexual abuse; it is alleged that the girls were underage at the time of the incident.  In Massachusetts, when someone has sex with an underage person, the crime is referred to as statutory rape.  With a crime like statutory rape, consent is not a defense to the crime.  The only potential defense is to deny that any sexual contact ever occurred.  In Massachusetts, the age for consent is 16 years old.

As matters stand now, R. Kelly made his first court appearance on Saturday, February 23, 2019, and a judge set his bond at $1 million dollars.  He was charged with 10 counts of aggravated criminal sexual abuse and turned himself in to police the Friday prior to his bond hearing.  The charges were based on a grand jury indictment that listed four victims.  Three of the victims were younger than 17 at the time of the alleged abuse, which occurred between May 1998 and January 2010. These charges come amidst a Lifetime documentary which detailed numerous Tsurvivors account of the alleged sexual abuse at the hands of R. Kelly.

Kelly’s conditions of release were similar to what a defendant charged with a similar crime would face in Massachusetts.  He was ordered to have no-contact provision with witnesses, alleged victims, or anyone age 18 or younger.  He also had to turn in his passport.

Robert Kraft’s lawyer filed a motion to suppress challenging how the police obtained the video evidence against Kraft and the basis of the traffic stop where Kraft’s identity was learned.  In Kraft’s case, the motion to suppress is essentially the entire case assuming the video depicts what the police claim it shows.  This is true in many types of criminal cases like, gun crimes, drug offenses and crimes like possession of child pornography where the legal issues in the cases determine whether the case is dismissed or resolved by plea.

In this Blog, I will look at the motion to suppress that has been field.  The motion challenges the basis of the warrant.

Kraft’s best defense is to challenge the Warrant authorizing the search and hidden cameras.

How were Jupiter PD officers able to obtain video footage of the act?  Hidden cameras were used to catch Kraft and others on video via delayed-notice search warrants.  According to CNBC, these “sneak-and-peak” warrants allowed the Jupiter PD to secretly install cameras inside of a private business to monitor illegal activity. Delayed-notice warrants have been used in the United States since the 1970’s, and were formalized under §213 of The USA Patriot Act.  In a typical warrant situation, law enforcement will give immediate notice that the warrant is being executed.  A delayed-notice warrant allows law enforcement, with a judge’s explicit permission, the ability to execute the warrant without notifying the subject of the search for a limited period of time.  Most importantly, the underlying reason behind granting a delayed-notice warrant, thus waiving the immediate notification requirement, is to prevent the following: danger to life or safety of an individual, flight from prosecution, destruction of or tampering with evidence, intimidation of witnesses, or other serious jeopardy to an investigation.

Jupiter PD and prosecutors cite that the case is and was a human-trafficking investigation, however none of the affidavits that have been released describe trafficking occurring at the Orchids of Asia Day Spa.  The Motion to Suppress argues that the police made misrepresentation in order to obtain the warrant about what was occurring in the Spa.

An additional issue is the basis to stop Kraft after he was leaving the spa.  The prosecution would have to argue that they were monitoring the camera and saw what occurred prior to the stop.  If the camera was being monitored, the prosecution would argue that they had probable cause based on the video from the camera to make a motor vehicle stop based on reasonable suspicion that Kraft committed criminal activity.  If the police were not contemporaneously monitoring the camera, but stopping everyone that left to obtain their names, that would have violated the 4th Amendment as there would not have been reasonable suspicion at the time of the stop.


On March 18, 2019 the Palm Beach County State Attorney’s Office offered Kraft, along with the 24 other men who were charged, a diversion plea.  Pretrial Diversion Programs with no formal admission required but a requirement that Kraft admit that he would have been found guilty at trial.  Typically, pretrial diversion programs do not require an admission of guilt.  In this case, given Kraft has no record the State should be offering a diversion without an admission or an outright dismissal of the case.  A prosecutor has a duty to ensure that police comply with the law.  The prosecutor should have serious issues with the police conduct in the case and do the right things and offer a dismissal of the case.  As a practical matter, the public embarrassment is a more stringent penalty than any court imposed penalty.

The NFL Potential Repercussions

On top of his potential criminal liability, everyone in the NFL, including owners, are subject to the NFL’s personal conduct policy.  According to ESPN, the policy covers “conduct by anyone in the league that is illegal, violent, dangerous, or irresponsible, puts innocent victims at risk, damages the reputation of others in the game, and undercuts public respect and support for the NFL,” per its text. Owners and club or league management are held to higher standards under the policy and are “subject to more significant discipline when violations … occur.” League owners have previously faced large fines and suspensions for admissions of guilt relating to substance related charges, and the Patriots themselves have suffered fines, loss of draft picks, and suspensions for spying and “Deflategate.”

For further reading, Chloe Leshner from ABC6 Continue reading

In this Blog, I address many of the common questions and concerns about Court someone would typically have when faced with a first offense OUI.  I help people everyday understand the court process and make the best decision for them as to how they should handle the case.  In many incidents, that involves taking the case to trial.  But here are some of the most common questions I have been asked over the years.  

Important note if you recently took a breath test: Breath test evidence is not currently being offered into evidence during Massachusetts OUI trials.  Accordingly, the breath test result will not be considered by a judge or jury.

  1. When can I get my license back and can I get a hardship license? 

The Massachusetts SJC held today in Commonwealth v. Richard Sherman, Jr. that in a rape trial, when the sexual encounter starts consensual and it is alleged that the victim withdrew her consent, that the defendant is entitled to a jury instruction that a consensual sexual encounter can become rape if the victim withdraws her consent during the intercourse and the defendant continues with sex by force or threat of force.  The SJC held that the instruction is required when the jury asks a question on this issue.

The Court found that the error was harmless in this case because the victim testified that the sexual encounter was never consensual while the defendant claimed that it was always a consensual sexual encounter.  The defendant was acquitted on the charge of oral rape which the court held meant that the jury could have concluded that the victim consented to oral sex but not penetration.  While these are two different theories of rape, the jury questions and the lack of instructions on an important element of the law does not seem to be harmless error.

Should the trial judge have admitted evidence of cocaine use?

The Massachusetts Supreme Judicial Court heard oral argument in the case of Commonwealth v. Brain Harris that raised the issue whether Massachusetts law denies nonresidents the right to bear arms by exposing them to criminal penalties for not having an FID card. This case was argued in November with a decision likely in the next month or two.

In the Harris case, the defendant, Harris, was charged with possession of a firearm without an FID and possession of a Large Capacity Firearm out of the Lowell District Court.  The defendant got into an argument with his then-girlfriend who called the police.  When the defendant’s girlfriend called the police, she told the police he had guns; the police came to the apartment with guns drawn.  Harris showed the police a license to carry in New Hampshire and lead the police to the guns.

Where did the defendant Reside?

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