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Gun crimes in Massachusetts often involve issues of whether there was a Constitutional basis for police action.  Here are some common legal issues:

  1.  Was there Reasonable suspicion to stop your car;
  2. if there was reasonable suspicion, was there a basis to order you from the car;

Those facing a Massachusetts Drug Distribution or Trafficking charge often contest the Constitutional basis of the search and seizure as part of the defense to the case.  This was the case in Commonwealth v. Costa, which began as a drug distribution case out of the New Bedford District Court and was decided by the Massachusetts Appeals Court on April 10, 2020.

The Appeals Court found that a search warrant was not based on probable cause as it did not establish the relialbiity of the confidential informant.  In drug distribituion and trafficking offenses, it is very common that the police will obtain a warrant to search a house based on information provided by a confidential informant.  The informant will provide information that results in the police obtaining a warrant.  The Costa case involved this type of investigation by the New Bedford police department where they seek to search a house based on probable cause being established as a result of a controlled drug buy.

I have handled many drug cases where the New Bedford police have used an informant to attempt to get a warrant.

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;

The Massachusetts Supreme Judicial Court heard oral arguments in the case of Commonwealth v. Bohigian on February 10, 2020, dealing with the issue of the admissibility of a blood test in a OUI case involving Serious Bodily injury.  The case arose out of the Westboro District Court.

What is Serious Bodily Injury?  

Serious Bodily injury is defined as creating a substantial risk of death, involves total disability, the loss of any bodily function for a substantial period of time or involves substantial impairment of any bodily function for a substantial period of time.

The Massachusetts Supreme Court will address the issue of when a seizure occurred in the case of Commonwealth v. Evelyn.  The Evelyn case is SJC-12808 and was argued on January 7, 2020.

This case involved a young black man running from the police while the police were investigating a shooting in the Roxbury section of Boston.  This decision will have important implication for how black males are treated by the police and what it means for the police to have reasonable suspicion.

Under the United States Constitution, the US Supreme Court has interpreted the 4thAmendment to find that if a defendant runs, there is not seizure until the defendant submits to the authority of the police.  The United States Supreme Court announced this rule in the case of California v. Hodari D, 499 U.S. 621 (1991).  In that case, the defendant fled and the United States Supreme Court held that he was not seized until the police physically stopped him.  While running, the defendant threw cocaine from his pocket.  If there was no reasonable suspicion prior to the flight, the evidence would have been suppressed, but since the court held that the defendant was not seized until he was stopped, the court declined to suppress the evidence.  The Massachusetts SJC does not follow this rule as State Court are free to interpret their State Constitution different from how the US Supreme Court interprets the United States Constitution.

The Massachusetts Supreme Judicial Court heard oral arguments on March 3rd in the case of Commonwealth v. Edward Long, SJC-12868, that deal with the issue of disparity treatment and discriminatory enforcement of traffic laws by the Boston police.  In this case, the defense lawyer presented a compelling statistical case that race played a role in the traffic stop.  Under the Equal Protection Clause of the 14th Amendment and Article 1 Section 10 of the Massachusetts Declaration of Rights, a defendant who shows discriminatory enforcement of the laws can have the case dismissed.

What happened in the Long Case?  

The Long case involved two officers on the gang unit who were essentially profiling cars, finding minor reasons to stop the car, with the hopes of discovering further evidence that would lead to an arrest.  Two officers were involved in the stop of the defendant, Officer Rodriguez and Lopes.  The defendant was stopped for an expired inspection sticker after the officers randomly ran his plate, according to their testimony at the motion hearing.  Officer Rodriguez testified that giving traffic citation was not a primary concern of the gang unit; he testified that he gave out 5 citation out of 1000 cars that he stopped for traffic violations.  He testified a lot of arrests start out as average traffic stops.

Yesterday, the Supreme Court heard oral arguments in a major abortion case.  This is the first time since Justices Neil Gorsuch and Brett Kavanaugh joined the Bench, creating a strong conservative majority, that abortion will be addressed by the Court.  That case, June Medical Services v. Russo addresses whether the Louisiana law requiring abortion providers to have privileges in a hospital within 30 miles of their clinic is constitutional. The Louisiana law at issue in this case is virtually identical to the Texas law that was struck down by the Court in Whole Women’s Health v. Hellerstedt in 2016.

What could happen is anyone’s guess.  The Court could

  • follow the June Medical Services argument to follow stare decisisand rule, as it did with Whole Women’s Health, the law unconstitutional. Or, it could

Massachusetts District Attorneys will be mailing out notices to those individuals who took a plea on OUI cases involving breath tests that there were potential inaccuracies with the test results.  As a result of the litigation in Commonwealth v. Ananias, many of out clients went to trial on OUI cases from 2012 to 2019 without the breath test coming into evidence.  Attorney Delsignore was involved in the litigation from its inception; attending the first meeting of lawyers on this issue at the CPCS office in Worcester, Massachusetts.  Clients with good cases based on the observations, had their cases stayed until the litigation was resolved.  Ultimately, those clients went to trial without breath test evidence coming into evidence during the trial.  

However, many individuals charged with OUI may have plea to an OUI charge without the benefit of having a lawyer that was aware of the litigation or could have represented themselves pro se without knowing that the breath test evidence would not be part of the case at trial.  Although breath test evidence can be inaccurate and unreliable as it was in Massachusetts, it tends to be misunderstood by the public in terms of its reliability.  

Based on these recent developments, if you admitted to an OUI, you may want to consult an attorney to see if your case can be reopened.  It is possible if the officer is around that the Commonwealth could still prosecute the case without the breath test results.  In other words, there are two theories that the Commonwealth relies on to prove an OUI offense.  First, the per se theory.  This means that if you took a breath test and it is over .08, you are in violation of the per se law.  The second theory is the impairment theory used when the breath test is excluded from evidence or when a breath test is refused.  Under this theory, the Gov contents that based on the driving, the observations of the officer and your performance on the field sobriety tests, that you were impaired in the officers opinion.  If a judge or jury believes this opinion, beyond a reasonable doubt, you can be convicted of OUI under an impairment theory.  It is possible that the Commonwealth could seek to retry the case under an impairment theory.  Since you would have completed probation and already lost your license, the Commonwealth may be satisfied with vacating the conviction and dismissing the charge.  In some cases, witnesses may not be around to prove the case.  Each case will be reviewed on a case by case basis in terms of what happens if the plea or conviction is vacated.  

Massachusetts OUI Lawyers will once again have to deal with breath test evidence as most police departments have complied with the reforms required by Judge Brennan as part of the Ananias litigation.  Last week I spoke at the Plymouth Country Bar Association on Breath test evidence.  It has been a long time since many lawyers have had to try to keep a breath test out of evidence as a result of the Ananias litigation.  But it is back.  

What do lawyers need to know about breath test evidence?  

All breath test data is now online; you can get all the periodic tests and annual certifications for each breath test machine in the online portal. As part of the reforms required by Judge Brennan, the Office of Alcohol testing is suppose to be more transparent about what it is doing with the breath test machines, the documents that it has and be more forth coming with discovery requests.  While all the documents are online, it is still the Commonwealth’s burden to introduce and provide these documents at the time of trial.  The online portal means that defense lawyers do not have to wait for the Commonwealth to produce these documents to begin determining if the breath test documents would be admissible and show that the machine is reliable.  

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