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In a Massachusetts gun charge of possession of a firearm without an FID card, there are typically three common defenses that are successful in fighting the case:
1. That you did not possess the firearm
2. That the seizure of the firearm from you was unlawful
A judge in Iowa recently dismissed “Bachelor” Chris Soules constitutional challenge to an Iowa law, which requires any surviving driver involved in a fatal accident to remain at the scene until law enforcement arrives. Soules’ argument comes as he is trying to avoid prison, after fatally rear-ending a neighbors tractor; Soules was ultimately charged with leaving the scene of a fatal car crash, a class D felony charge, for his role in the April accident that resulted in the death of his neighbor. If convicted of the crime, Soules could face up to 5 years in an Iowa State prison.
The law in which Soules is seeking to challenge states specifically that “a surviving drier shall promptly report the accident . . . and should immediately return to the scene of the fatal accident or inform law enforcement where he or she can be located following the accident”. Prosecutors in the case are making their arguments clear that Soules completed neither of the above-mentioned requirements. He left the scene following the accident and did not attempt to make his whereabouts known to authorities.
Soules attorneys worked to highlight many of the steps Soules took following the incident to help his neighbor; he called 911 following the accident and identified himself as being involved in the accident, administered CPR to the suffering victim, and remained at the scene until the ambulance arrived. The major issue surrounding the case is that Soules was driven home before law enforcement arrived.
As a Massachusetts Criminal Defense Lawyer, the outcome of serious criminal cases can often come down to very specific facts developed during a motion to suppress. In the case of Commonwealth v. Aderito Barbosa, the defendant was charged with Human Trafficking. This is a criminal offense that carries up to twenty years in a Massachusetts State Prison; if found guilty of the crime you are required to serve a minimum mandatory five-year state prison sentence. If the victim is under the legal age in Massachusetts, you could be looking at a life sentence.
In this case, the police raided the defendant’s hotel room at the Park Plaza in Boston. Upon exiting the elevator, the defendant was greeted by the police. Knowing what they were there for, he requested an attorney and said he would exercise his Miranda rights. He tried to flee and was alleged to have resisted arrest and, at that time, requested a lawyer. As part of an arrest, police are permitted to conduct a search incident to arrest. A search incident to arrest is a search conducted by the police during the actual arrest; they are legally permitted to search the person being arrested, including his or her immediate surroundings.
Federal laws mandate that the police may search for weapons, contraband, or evidence of a crime, even if it is not related to the crime for which the individual is being arrested for. However, in Massachusetts, police are only granted the authority to search for evidence which is related to the crime.
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.
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.
In the case of Earley v. New Jersey, the defendant has asked the United States Supreme Court to address the issue of the standard to be applied when the police destroy evidence.
The leading case from the United States Supreme Court addressing this issue is Arizona v. Youngblood. In that case, the United States Supreme Court held that the State violates a defendant’s due process rights when the police destroy potentially exculpatory evidence and the defendant can show bad faith on the part of the police. Under this standard, the meaning of bad faith has been left to individual courts to define.
There are varying standards Courts have applied:
In February, the United States Supreme Court will hear a case which sheds light on whether or not the prosecution can legally use a defendant’s previously-obtained incriminating statement as evidence at a preliminary or probable cause hearing; the Supreme Court will ultimately decide whether or not this violates a person’s fifth amendment.
The fifth amendment of our constitution guarantees that “no person … shall be compelled in any criminal case to be a witness against him or herself”. The main issue, in this case, is that if the Fifth Amendment is violated when a criminal defendant is compelled to incriminate himself, should the statement be allowed as evidence in a probable cause hearing?
The case, City of Hays, Kansas v. Vogt, is a case that will challenge the scope of the fifth amendment self-incrimination clause. The defendant in the case, Matthew Vogt, was a police officer in Hays, Kansas, but was in the interview process with the police department in another town, Haysville. During the interview process, Vogt disclosed that he had kept a knife that he obtained while working for the City of Hays.
In December, the Supreme Court began oral arguments in a Colorado case, where a shop owner denied service to a same-sex couple looking to purchase a cake. As the arguments ensued, it began clear that the justices were sharply divided and highlighted many of the issues, on both sides, in the case: religious beliefs and anti-discrimination laws.
The Colorado case dates back to 2012 when a gay couple, Charlie Craig and his partner David Mullins, walked into a cake shop requesting a cake to celebrate their same-sex marriage; their wedding was to be held in Massachusetts, but their cake was for a reception they were holding in Colorado for their friends and family. The owner of the shop, a religious man named Jack Phillips, declined to make them a cake due to his Christian values.
The rules governed by anti-discrimination agencies in Colorado suggest that Phillips’ refusal to provide a cake for a same-sex marriage celebration violated laws and that, legally, he had no right, by free speech, to turn down the cake request by the two men. Phillips was informed that if he was to make wedding cakes for heterosexual weddings, he is also legally required to do so for weddings where the two parties are of the same sex.
Together, African American narcotics officers and the Guardian Civil League have filed a federal lawsuit against the city of Philadelphia, the Philidelphia Police Department, and two narcotics supervisors; the basis for this lawsuit arose from the officers’ claims of racial discrimination and retaliation. The discrimination, officers’ say, is a result of their not wanting to cooperate with the narcotics bureau commanders orders to falsify drug-arrest paperwork.
The civil rights lawsuit highlighted a few of the major issues circulating within the Philidelphia Police Department; narcotics bureau commanders told their officers to disregard and ultimately ignore the department’s rules, withhold and change the names of the informants as well as other information used during drug prosecutions. By refusing to carry out such arrests, the African American narcotics officers say they have since been racially discriminated against.
The Guardian Civic League represents African American Police Offices in PA.
Since August of this year, breath test evidence has not been used in Massachusetts as a result of discovery violations that occurred during the Alcotest 9510 litigation in the Concord District Court that was heard before Judge Brennan. Now New Jersey, has also had an issue impacting breath test evidence Statewide. New Jersey uses the same Breath test used in Massachusetts.
Nearly 20,000 DWI cases with breath test results are currently on hold in New Jersey after a State Police Sergeant was accused of incorrectly calibrating the breath test machines used in police departments across the state. The issue arose out of a lawsuit filed in federal court by a woman who was convicted in 2016 of DWI after blowing a breath test reading of .09.
The Attorney General’s office in New Jersey has charged Sergeant Marc Dennis with records tampering, arguing that he overlooked and incorrectly handled the Alcotest breath test machine in the 6-month recalibration of the machine. All of the Alcotest instruments produced and manufactured by Draeger Safety Diagnostics were required to undergo the said 6-month recalibration.
Massachusetts Criminal Defense Lawyer Blog