Articles Posted in Evidence Issues

Technology – especially internet and smart phone technology – is moving at light speed. The law is trying to catch up to these changes, and a decision yesterday by the Massachusetts Supreme Judicial Court (SJC) made more headway in that race.

The decision, Commonwealth v. Augustine, deals with whether or not police or law enforcement investigators have to first secure a search warrant before they can be given someone’s cell phone records from a wireless carrier. Smart phones are essentially a homing device, due to the fact that the cellular carrier’s network constantly tracks the phone’s location. Almost all smart phones these days – millions of them – contain GPS chips that determine the phone’s location, down to a few feet. Even without a GPS chip, the cellular network can produce information about the phone’s geographic location through cell tower tracking. This type of prosecutorial evidence is increasingly important in a variety of cases, such as Massachusetts rape charges, Massachusetts drug offense charges, Massachusetts assault & battery charges, and Massachusetts larceny and robbery charges.

The SJC’s ruling stems from the 2004 murder of a Malden woman named Julaine Jules. Police suspected her former boyfriend, Shabazz Augustine, and obtained Augustine’s cellphone records from Sprint Nextel Corp., his wireless carrier, to ascertain his whereabouts at the time of the killing. Augustine was arrested in 2011 and charged with Jules’ murder; he is awaiting trial.

Whether you know it or not, your smartphone just got a lot smarter – for police departments and prosecutors, that is.

In an important ruling released on Wednesday of this week, the Supreme Judicial Court (SJC) ruled that police officers can conduct a limited search of an arrested person’s cell phone, to determine if recent calls were made or received on the phone, which might relate to the crime for which the suspect was arrested. This is a pretty significant ruling, because to tap a person’s phone or request phone records of someone, police must usually seek a search warrant first.

Very importantly, the justices went to some lengths to emphasize that the ruling allowed only limited searches of cell phones – specifically, only to the cell phone’s calls list – not to other areas of the phone – which, these days, store just about every piece of data imaginable about the user, including emails, texts, web searches, even GPS locations. As to those extremely important constitutional questions surrounding these other areas of a person’s cell phone, the court pointedly did not address those questions, leaving examination of those questions “open for another day” to quote the opinion’s author, Justice Margot Botsford.

Should the world know about all the shenanigans and unethical behavior involving James “Whitey” Bulger and the government?

That is the question that was just brought to US Magistrate Judge Marianne Bowler last week in Boston.

Bulger’s lawyers want to be able to speak publicly about the documents that the government has on Bulger – all 300,000 of them – because they want to tell the world what these documents say. However, they can’t do that right now.

A significant effort to enact a bill allowing convicted inmates to gain access to DNA testing in order to prove their innocence has passed both branches of the Massachusetts Legislature and been signed into law by Governor Deval Patrick. Under the provisions of the new law, a convict who believes that DNA testing could establish his or her innocence will be given the right to request that a court order DNA tests of the evidence that police and prosecutors introduced at trial against the defendant.

This new law is especially important. While the public wants guilty criminals locked up, especially those convicted of violent crime, that same public appears to have nowhere near the appetite to hear the true stories of prison inmates who have been wrongfully convicted based on poor and shoddy forensic and scientific evidence. As a Norfolk County Massachusetts criminal defense lawyer, I can assure you, this type of injustice happens far more often than people think. If anyone doubts this, they should visit and study the shocking stories of people who have been convicted and locked up in prison based upon faulty scientific evidence, at The Innocence Project. Far more than one conviction involving Massachusetts sexual assault & rape charges, Massachusetts murder charges, Massachusetts drug charges and Massachusetts OUI/DWI charges have been later discovered to have been based on faulty scientific evidence.

The law requires that any convict requesting DNA analysis must satisfy two prerequisites: First, the inmate must demonstrate that the particular DNA testing that is being requested was not scientifically or pragmatically available when the inmate was convicted. Second, the inmate must persuade a judge that the requested DNA testing could possibly produce new evidence that could potentially exonerate the inmate or alter his or her original conviction. Hence, the bill is not a “free pass” for every prison inmate who thinks DNA testing can reverse his or her conviction. A judge stands between the inmate and approval of the testing, and they will apply the two threshold tests very carefully.

It is said that “Actions speak louder than words.” The Massachusetts Supreme Judicial Court reaffirmed that very powerfully in the area of Massachusetts arrests last week, as it ruled that a person shaking his head horizontally left to right, indicating “no”, is just as powerful and effective as the spoken word when it comes to invoking the constitutional right to remain silent. This right, of course, is familiar to anyone with a television set, and is among several rights encoded in the famous Miranda Rights.

The case stems from an October 2008 arrest of a man suspected of indecent assault and battery on the Boston subway system. The suspect made incriminating statements after he had been asked by police officers for the Massachusetts Bay Transportation Authority (a/k/a the “T”,) if he wished to continue speaking with them, and he had shaken his head back and forth. Specifically, at the start of the interrogation, officers gave the suspect a typical “waiver form” advising the suspect of his right to remain silent and his right to have a lawyer present during questioning. Before the suspect had finished signing the form, an officer asked the suspect if he wished to discuss what he was being charged with. In response, the suspect asked what would happen if he didn’t speak to police. When the officer told him “nothing,” the suspect asked that he be allowed to go home. Clarifying, the officer then asked him, “So you don’t want to speak?” At that point, the suspect shook his head back and forth.

At trial, the man’s attorney later filed what is called a Motion To Suppress, arguing that his client’s incriminating statements to police should be ruled inadmissible at his trial. The SJC reviewed the case, and agreed with the defendant. This ruling is unusual, because until now in Massachusetts, the legal standard applied to determine whether or not a suspect has validly invoked his right to remain silent, has been the long-held federal standard. That standard requires that a suspect declare his right not to speak with police “with the utmost clarity.” However, the SJC ruled that a person arrested in Massachusetts has greater rights under the Massachusetts Declaration of Rights than provided under federal law on this subject.

Quick question: If you’re in a Massachusetts motor vehicle accident with an off-duty police officer, and he or she prevents you from either driving away or leaving the scene of the accident until the appropriate police department arrives, is that an “arrest” for legal purposes? According to the Supreme Judicial Court (SJC), the answer is “No”, and as a result, any evidence obtained by the police who have geographic jurisdiction and are summoned to the scene by the off-duty officer, cannot be excluded at trial.

Let’s start with basics in this area of Massachusetts criminal law, then we’ll get to the facts of this case: At common law in Massachusetts, a police officer cannot generally make a warrantless arrest outside of his territorial jurisdiction. If, for an example, an off-duty Boston police officer made a warrantless arrest of a person in Westwood, that would probably be ruled to be an invalid arrest, and as a result, any evidence that the Boston police officer obtained as a result of that “arrest” would be deemed inadmissible at trial against the person arrested.

In this case, a driver’s automobile collided in Woburn with a vehicle driven by an off-duty Somerville police officer. That off-duty Somerville officer suspected that the driver who hit him was operating under the influence of alcohol in Massachusetts, and the officer prevented the driver from leaving the scene until the Woburn police arrived. Upon arrival, the Woburn police arrested the driver for Massachusetts OUI/DUI, and the driver was later indicted for operating while under the influence of alcohol and for operating with a suspended license and operating with a revoked license. This defendant’s attorney did what as a Dedham, Massachusetts OUI lawyer I would have done in similar circumstances: Filed what is called a ‘Motion to Suppress’, arguing that any evidence that was obtained by the Woburn police, should be excluded at trial in the prosecution’s case against the defendant.

Most Massachusetts drug offense prosecutions involve challenges to how police obtained the illegal drugs that a defendant is charged with possessing. As a Dedham, Massachusetts drug crimes lawyer, I try to prevent this evidence from being admitted at trial, through what are called pre-trial “Motions to Suppress.” The legal bases of these challenges typically revolve around the validity of searches, whether search warrants that might have been issued were valid, whether police had probable cause to conduct a warrantless search, and a variety of other legal reasons.

One method for a police search for illegal drugs was recently challenged in federal court in Boston, with an interesting outcome.

A suspect was arrested for operating a motor vehicle without a license, a Massachusetts motor vehicle violation. However, he police officer who stopped the suspect quickly came to suspect that more than just a traffic violation was taking place. The officer was told by a confidential informant whom the officer knew well and trusted, that suspect had inserted a package of crack cocaine into his rectum just prior to his being arrested. Because the arresting officer trusted the confidential informant due to the informant’s supposedly having produced reliable information for a considerable period of time previously, the officer asked the suspect to submit to a rectal examination for evidence of concealed drugs. The suspect refused. No surprise there.