Massachusetts Criminal Defense Lawyer Blog

Cell phone searches require a warrant under the Fourth Amendment, Supreme Court rules in Riley v. California

March 19, 2016 | by Michael DelSignore

The Supreme Court ruled in Riley v. California that a warrant is required to search a defendant’s cell phone, incident to arrest. The 4^th Amendment is having a hard time keeping up with quickly advancing technology. Virtually everyone carries a cell phone on their bodies today, and these phones hold much more information than just call logs. The Supreme Court has upheld this sentiment, making a distinction between cell phones and other items that someone may carry around with them, saying that today’s mobile devices are “in fact minicomputers that have the capacity to be used as telephones.” This advancement in technology has raised questions about where the information stored on people’s cell phones falls within the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizure.

The Supreme Court has held that cellphones are protected from warrantless searches, even incident to arrest. So much of an individual’s personal life is available on their mobile device that there needs to be the 4^th Amendment’s protection against unreasonable search. Cellphones contain private information that people might not otherwise carry on themselves, and the information is worth of the protection of the 4^th Amendment.

In Riley v. California, the defendant’s cell phone was searched incident to arrest for possession of firearms. Defendant’s cell phone had pictures of defendant making gang signs and other gang indicia. Instead of just being indicted for the possession of firearms, defendant was also indicted for separate charges of shooting at an occupied vehicle, attempted murder, and assault with a semi-automatic firearm, all charges stemming from what was discovered on defendant’s cell phone. The Supreme Court unanimously held that the search of defendant’s cell phone violated defendant’s 4^th Amendment right to be free from unreasonable searches. The Robinson warrantless search exception following an arrest exists for the purposes of protecting officer safety and preserving evidence, neither of which is at issue in the search of digital data. Police officers have the ability to preserve evidence while awaiting a warrant simply by disconnecting the phone from the network and holding it until a warrant is secured.

Right to an Impartial Jury in recent Massachusetts Domestic Assault and Battery Case

March 18, 2016 | by Michael DelSignore

In a domestic assault and battery or 209A trial, jury select can play an important role in achieving a not guilty verdict. Jurors fill out a questionnaire that provides Criminal Defense Lawyers very little information about them. Attorney can request a judge to ask additional questions.

The questionnaire that jurors previously had filled out may be used in voir dire to assist the attorneys and presiding judge. However, in the recent case of Commonwealth v. Carvalho the presiding judge declined to ask a juror a question he found redundant. Defense counsel requested that the judge ask the following question of potential jurors: “have you or any family member or a friend requested a No Harassment Order or a restraining order against another person or had a No Harassment Order or a restraining order taken out against you, a family member or a friend?”

A trial judge does have broad discretion in determining how a jury will be selected and which questions will be posed to jury members. However, even with this broad discretion, the judge must ensure that the final jury is fair and impartial. As this case involved violation of a harassment prevention order, the defense counsel wanted to clarify potential jurors experience with harassment orders. Even though the juror questionnaire gives the chance to disclose involvement with the law, there is no guidance for what specifically should be disclosed. Voir dire is supposed to be a chance for counsel to ask jurors more specifically about their questionnaire answers, and to ensure that potential biases have indeed been disclosed. Because of the vagueness of the questionnaire, there should be a chance for further inquiry to ensure that the jury is fair and impartial. In the case of Carvalho, the judge should have granted defense counsel’s request to ask jurors about any personal experience with no harassment orders to give defense counsel a chance to dismiss those jurors with potential biases. Because the judge refused defense counsel’s request, the defendant was not able to ensure that he had a fair and impartial jury. You may read the Carvalho case on the Massachusetts Lawyers Weekly Website.

New Jersey Drug Lab Scandal, Dry Labbing’ and cutting corners while testing marijuana samples

March 16, 2016 | by Michael DelSignore

The Massachusetts drug lab scandal impacted thousands of drug cases and resulted in new trials and convictions overturned in many. Now New Jersey faces a similar scandal.

Lab technician Kamalkant Shah was found to have “dry labbed” suspected marijuana samples. Shah was observed writing ‘test results’ for suspected marijuana that was never actually tested. Shah recorded anticipated results and recorded those anticipated results without properly conducting the analysis. This disclosure has called thousands of test results into question.

In May 2015, a case of ‘dry labbing’ was reviewed by the Massachusetts Supreme Court to determine how many cases need to be looked over again. Over 40,000 cases may have been tainted by Annie Dookhan may have been tainted by Annie Dookhan, a forensic scientist who pleaded guilty to forging initials of other chemists, intentionally contaminating samples, and just glancing at samples during analysis, instead of actually testing them. Dookhan pleaded guilty to tampering with evidence in 2013, and is serving 3 to 5 years.

‘Serial’ and what does Ineffective Assistance of Counsel mean in a Criminal Trial

March 5, 2016 | by Michael DelSignore

The Podcast ‘Serial’ follows the investigation of the trial of Adnan Syed in 2000. This Podcast has gained a following with its compelling look into the ineffective counsel of Syed’s attorney in failing to call an alibi witness. Ineffective assistance of counsel is a claim raised by a convicted criminal defendant that their attorney’s performance was so ineffective that it deprived them of the constitutional right guaranteed by the Assistance of Counsel Clause of the Sixth Amendment to the United States Constitution. Lawyers harm their clients when they do not provide effective assistance of counsel, and the mistakes are potentially career ruining. In Syed’s case, the harm came in the sentence of life imprisonment for the murder of his girlfriend. To this day, the mistakes of Syed’s counsel are being examined in the Maryland Court of Appeals.

A 17 Year Old Alibi

One of Syed’s attorney’s most harmful mistakes was when she failed to call as an alibi witness, crippling Syed’s defense. Alibi witness Asia Chapman claimed that she had a conversation with Syed at the library during the time prosecutors say the murder took place. Chapman was never contacted for her testimony, a move that Syed’s current attorneys say amounts to ineffective counsel. No alibi could be given for Syed, and therefore prosecution was able to convince a jury that it was possible Syed was able to be at the scene of the crime.

Opening Statements and Will I Tip off the Government as to my theory of defense

February 29, 2016 | by Michael DelSignore

How much detail should you reveal in your opening statement?

Some lawyers fear revealing their defense in the opening statement and allowing the Government to adjust their case based on the opening. That can occur; what I do to prevent that is focus on the facts that I know for sure I can prove in the opening, that the Government cannot dispute. Having a motion hearing, allows a lawyer to give a more detailed opening statement because the testimony is locked in.

I prefer to make as detailed opening statement as I can. I do not believe in the theory of holding back for fear of tipping of the Government for a few reasons; first, the Government, likely knows your theory of defense. Second, when you leave things out, you do not deliver as effective and confident opening statement. The more facts and details you can get into from the start the better. There has been research showing that a jurors begin to decide cases immediately. Most believe that by the time the Closing Statements are delivered, most jurors would know how they are going to vote. It is important to start getting jurors to accept your theory of the case from the start of the trial.

Massachusetts SJC Holds That A Violation While “On Release” Constitutes A Revocation Of Bail

February 26, 2016 | by Michael DelSignore

In a recent Massachusetts SJC decision, Commonwealth v. Morales, the Court confirmed its authority to revoke a defendant’s bail after being out “on release” and had defaulted by not appearing to his pretrial hearing and subsequently committed a new crime. The decision essentially means that when a defendant has a bail set to insure his appearance at a hearing, he is conditionally out “on release”. If the conditions are violated and he is not in custody after defaulting, he is still considered “on release” and therefore bail may be revoked.

The case arose out of Boston Municipal Court, where the trial judge decided that because the defendant defaulted, he was no longer “on release” within the meaning of G. L. c. 276, § 58, and therefore his bail could not be revoked. In August 2014, the defendant was arraigned in the Boston Municipal court on the charge of larceny of property over $250. The defendant was put on notice for bail revocation and was released on personal recognizance. At the subsequent pretrial hearing, the defendant failed to appear and a default warrant was issued. By April 2015, the warrant was still outstanding when the defendant committed a new crime of assault and battery of a family or household member.

During the defendant’s arraignment hearing for the new charge, the Commonwealth filed a motion to revoke the defendant’s bail or recognizance in the larceny matter and also requested bail in the new assault and battery matter. A judge from Boston Municipal Court denied the motion, reasoning that because he defaulted in the prior larceny matter he was no longer “on release” within the meaning of G. L. c. 276, § 58, sixth par. The Commonwealth filed a petition to appeal from the denial of its motion to revoke the defendant’s bail. The single justice reserved and reported the matter to the full court. The Massachusetts SJC disagreed with the lower court and remanded the case to county court.

Bill To remove license suspension for Massachusetts Drug offenses stalls in Senate

February 24, 2016 | by Michael DelSignore

Last month the House voted unanimously for a bill that would repeal the 1989 Massachusetts law requiring automatic license suspensions for drug offenses, regardless of whether or not offenses had a driving component. The Bill was passed by the Senate last year. However, Republican House members added an amendment to the Bill restoring the five year license suspension for drug trafficking charges. In an effort to uphold the purpose behind the Bill, the Senate added an amendment abolishing the drug trafficking exception, effectively repealing the House’s amendment and stalling the Bill.

The automatic license suspension for drug charges arose under a federal law created during the “War on Drugs” that called for automatic license suspensions for drug offenders but allowed states to opt out. 34 other states have repealed similar suspensions. As the law stands now anyone who has been convicted of a drug offense faces a six month to five year license suspension and additional fees to reinstate. The license loss is also reported on their Registry of Motor Vehicles record, which can be accessible by employers.

Oral Arguments in Utah v. Strieff: The Future of the Exclusionary Rule

February 22, 2016 | by Michael DelSignore

The Supreme Court will be back in action next week, and will hear a case about the future of the exclusionary rule when it hears the arguments of Utah v. Strieff on February 22^nd. The specific question is whether evidence seized incident to arrest on a minor traffic warrant, discovered during a concededly unconstitutional detention, is inadmissible under the “attenuation” exception to the exclusionary rule.

Breaking the Chain of Events

Evidence seized after an illegal search or detention may be admitted under three exceptions to the exclusionary rule:

(1) the independent source exception,
(2) the inevitable discovery exception,
and (3) the attenuation exception.

The attenuation exception applies where the police engaged in unlawful conduct, but the unlawful conduct was not the proximate cause by which the police obtained the evidence, because of an intervening circumstance breaking the causal chain. Under the attenuation exception, the intervening act is one that was made voluntarily by the defendant, such as a confession or consent to search given after illegal police action. The defendant’s voluntary act is sufficiently independent to break the legal connection to the primary violation, and therefor the evidence will not be excluded.

The 5 AM Miracle and Why Lawyers should Read it

February 12, 2016 | by Michael DelSignore

I read self improvement and motivational books all of the time. I think it is easy to say that these books are all essentially the same. However, many times the author will remind you in a new way of helpful things to improve your life or work or have you think differently about your day and goals. That is what Jeff Sanders does in his book The 5 AM Miracle, Dominate your day Before Breakfast.

While he suggests the benefits of waking up at 5 AM, the point of the book is not about the time you wake up, but that once you are up you have a plan and immediately being to take charge of your most important goals.

Sanders suggests, having an plan for your entire day to get the most out of it. He suggests having a list of morning habits to start your day.

The DUI Breath Alcohol Per Se limit should not be lowered from .08

February 8, 2016 | by Michael DelSignore

Lowering the legal limit should be rejecting as punishing social drinking; it would not have any impact on reducing serious DUI accidents as these are not being caused by individuals with breath test results under .08.