Massachusetts Criminal Defense Lawyer Blog

How does the Commonwealth prove a charge of reckless endangerment of a child

March 4, 2013 | by Michael DelSignore

For those charged with reckless endangerment of a child in Massachusetts, it often involves defendants who have not personally subjected the child to danger, but have failed to protect a child from danger. The recent case of Commonwealth v. Figueroa was recently decided by the Massachusetts Appeals Court and answered some questions of when a defendant can be convicted of reckless endangerment and when they owe a duty to protect the child.

Commonwealth v. Figueroa involved child abuse of a six month old victim. The mother of the child lived with her mother, the defendant and the defendant’s boyfriend.

On February 29, 2008, the defendant’s boyfriend was shaking the baby and then droped the child on the floor causing a head injury. The child’s mother saw this and grabbed the baby and explained what happened to the defendant and asked for a ride to the hospital. Without looking at the infant, the defendant said he would be alright and threatened to call Social services if the child’s mother tried to bring him to the hospital.

Recent United States Supreme Court decision in Bailey holds that police cannot seize an individual leaving a residence subject to a search warrant

February 28, 2013 | by Michael DelSignore

The United States Supreme Court issued its decision in Bailey v. United States on February 19, 2013 holding that its precedent in Michigan v. Summers does not allow the police to seize an individual that has left the premise prior to a search. You can read the Bailey decision here.

Background of the Bailey Case

The Bailey case involved police officers detaining an individual one mile from the premise to be searched. Police officers were given information through an informant that crack cocaine was being sold at a residence. A warrant was obtained. While the officers were conducting surveillance prior to executing the warrant, officers witnesses the target of the search leaving the premise and detailed the individual and brought him back to the premise. During the detention, police seized incriminating evidence, recovering the keys to the premises along with drugs and firearms.

Limiting the power of prosecutors in criminal cases in light of Aaron Swartz

February 24, 2013 | by Michael DelSignore

When a suspect is arrested, one of the main concerns for Massachusetts defense attorney is the power of the prosecutor who will be the person who decides what to charge a defendant with. This discretion of what to charge a suspect with gives prosecutors tremendous power in the legal system, power that many people feel has to be limited. Nowhere was this power more evident than in the case of Aaron Swartz. Swartz was arrested for downloading millions of academic articles and placing them online. The federal government stepped in to “send a message” and charged Swartz with several felonies including federal fraud and computer felonies. Swartz was faced with 35 years in prison, but the prosecutor offered a plea bargain of six months in prison, which Swartz rejected. On January 11, Swartz took his own life causing outrage over the prosecutor’s actions.

It is common for prosecutors to charge people with multiple felonies in hopes of getting a plea bargain accomplished. With Swartz, the prosecutor hoped that Swartz would take the plea bargain for six months when Swartz saw that losing at trial could potentially put him in prison for 35 years. Prosecutor’s make their name off of winning cases and charging a suspect with felonies and offering a plea bargain to a less sever crime is often an easy way to scare a defendant into agreeing.

A main reason that a prosecutor has so much power is the procedure for charging a defendant with a crime. In the Swartz case, that involved a federal prosecutor. To charge Swartz with a federal crime, the prosecutor needed to secure an indictment from a grand jury. The indictment proceeding consists of only the prosecuting attorney delivering evidence to show there is probable cause to charge a suspect with a crime. The grand jury consists of 16-23 members and if at least 12 find probable cause, and indictment is returned and the charges against the suspect are formally brought.

OUI drug charge in Massachusetts, how is the offense proven in court?

February 18, 2013 | by Michael DelSignore

OUI drug charges in Massachusetts are on the rise. What does the Commonwealth have to prove to secure a conviction?

In prosecuting an OUI drugs case, the police report will typically look very similar to an arrest for OUI alcohol, with the officer administering field sobriety tests. What typically compels an officer to bring an operating under the influence of drugs charge is an admission to ingesting drugs or the officer finding them during a search of the car. If no admission is made or no drugs found, an officer will only consider the charge after ruling out that alcohol is not the cause of the impairment.

In Massachusetts, if an officer pulls someone over who is suspected of operating under the influence of drugs, then there are certain procedural steps the officer should take to have a strong case of OUI drugs. Many officers who are not trained as a DRE will simply make an arrest and bring the charge; however, without the evaluation, there is a strong argument that there will be insufficient evidence to sustain a conviction.

New York Times Article discusses why police officers lie

February 11, 2013 | by Michael DelSignore

Recently, the New York Times Opinion Pages posted an article titled, “Why Police Lie Under Oath”. Police lying under oath is both surprising and dangerous.

While the New York Times Article discusses the issue regarding drug cases, which is particularly current in light of the Massachusetts drug lab scandal, police deception also can occur in other types of cases, such as drunk driving arrests. In a Massachusetts OUI arrest, a police officer lying could take one of two forms; a complete fabrication of what occurred or an embellishment, adding a few details in the report that cannot be verified, that someone appeared unsteady or had trouble with balance getting out of the car. Both types of fabrication undermine the integrity of police officers and it is the job of the defense attorney to point out these fabrications to the jury.

Typically, many people often equate the word “defendant” with “guilty” by the mere notion that a defendant is charged with allegedly violating the law, something for which they need to defend. Likewise, we view and trust our law enforcement officers to serve and protect-to uphold their oaths of fairness and justice. In a court setting, it is not unreasonable to suspect that a jury and a judge will take the side of the uniformed officer under oath vs. the defendant allegedly accused of a violation of law. This is what makes police lying so dangerous. One lie can ruin a life. So, why would a law enforcement officer lie?

Massachusetts Supreme Judicial Court addresses when police are permitted to search a cell phone in making a drug arrest

February 8, 2013 | by Michael DelSignore

One question that now frequently arises for Massachusetts criminal defense lawyers is:

Can the police search your cell phone?

A recent case gave an answer.

Searches in high crime areas: Are they Constitutional in Massachusetts

January 31, 2013 | by Michael DelSignore

As a Boston criminal defense lawyer, defending drug cases, often the initial police seizure will be based on the defendant being in a high crime area. The Massachusetts Supreme Judicial Court has stated numerous times that being present in a high crime area or flight from the police is insufficient to justify a stop under the 4th Amendment or Article 14 of the Massachusetts Declaration of Rights.

The Fourth Circuit Court of Appeals recently addressed this issue in the case of

United States v. Bumpers. A police officer was conducting a routine patrol. While he was driving by a local convenience store in a high-crime area, the officer noticed two men standing by dumpsters located. The officer observed the two men for five or ten seconds and then pulled into the parking lot. At that time the men began walking away from the dumpsters. The officer exited his car and told the two men that they were not free to go. One of the men, defendant Irvin Bumpers, obeyed the officer’s orders.

Analysis of oral argument in Bailey v. United States from Massachusetts criminal defense lawyer

January 20, 2013 | by Michael DelSignore

The Supreme Court recently heard oral argument in Bailey v. United States on November 1st 2012. The predominant issue in Bailey is whether or not the precedent set forth in Michigan v. Summers, 452 U.S. 692 (1981), which allows an officer to detain an individual on the premises of a location being searched, extends to the detention of an individual the officer saw leaving the location to be searched and is no longer in the immediate vicinity.

While it can be difficult to predict how the Justices will decide a case based on the oral argument, it appears as though the Justice will decline to extend the Summers case as argued by the Government. The Government argued that the stop of Bailey away from the residence to be searched was permissible under the rationale of Summers because Bailey could have returned to the residence and threatened the safety of the officers.

The defendant argues that the Summers exception to typical warrant and detention standards should not be interpreted broadly and, in fact, should be interpreted rather narrowly. Once the individual is off of the location to be searched it is not likely they will return and pose any sort of threat to the safety of the officers or the quality of the search, and Summers would not apply, as argued by the defense.

United States Supreme Court to address whether a warrant is required to obtain a blood sample from DUI suspect

January 18, 2013 | by Michael DelSignore

As a Massachusetts DUI attorney, the issue of police officers unlawfully obtaining blood samples for persons suspected of driving intoxicated often comes up during defense. The act of not obtaining a warrant prior to obtaining a blood sample in routine DUI stops is a direct violation of the 4th amendment.

This issue was recently brought to the Missouri Supreme Court in the case of Missouri v McNeely. During last week’s hour long hearing for this pending case, the Justices weighed the potential outcomes for ruling on this controversial issue. If there is any indication of how this case will prevail based on the hearing discussions, it is that the United States Supreme Court will most likely conclude that police across the nation are not allowed to order, on their own authority, the taking of blood samples from those suspected of drunk driving. They will need to obtain a search warrant, with few exceptions.

In McNeely, a Missouri driver was pulled over for allegedly driving while intoxicated. After failing all field sobriety tests and refusing a Breathalyzer, the police officer drove him to the local hospital. The driver verbally refused a blood sample, but the officer told the lab technician to proceed. In court, the officer stated he did not think he needed a warrant because he read that Missouri law allows an officer to obtain a blood sample if consent is merely “implied”. However, when the trial court judge ruled in favor of the defendant, Missouri officials took the case to the Supreme Court, arguing that there is a split between state and federal courts on the issue of when officers may obtain blood samples without a warrant.

Breath test results in Pennsylvania excluded from evidence based on challenge to the linear accuracy of the breath test machine

January 11, 2013 | by Michael DelSignore

For Massachusetts OUI lawyers, the recent decision of the Pennsylvania Superior Court may be used to challenge the admissibility of breath test results in Massachusetts.

In the recent case of Commonwealth v. Schildt, the defendant’s Attorney Justin McShane argued that the breath test machine was incapable of producing accurate and reliable results outside a linear range of .05 to .15. This argument was made because Pennsylvania does not test its breath test machine for accuracy outside of those values. The victory in the case by Attorney McShane was the results of years of dedication to understanding the science of involved in DUI cases which has made him one of the leading DUI lawyers in the United States.

Pennsylvania law, like Massachusetts OUI law has a provision that any breath test result over .08 results in a presumption that the individual is under the influence of alcohol. This is considered a per se violation because if the breath test results is admitted into evidence and deemed reliable, there is a presumption of impairment.