John Goodman testifies in the retrial of his OUI Manslaughter trial

October 25, 2014,

The owner of the International Polo Club Palm Beach, Mr. John Goodman, recently took the stand to testify in his own criminal trial on an OUI manslaughter charge in Florida. Goodman was operating his Bentley in 2010 when he collided with the 23 year old man Scott Wilson in his motor vehicle, causing Wilson's death.

Goodman testified that he was not intoxicated at the time of operation, although he admitted to having drank multiple alcoholic beverages immediately before the collision. According to Goodman, he was at a party where he consumed alcohol, purchased alcohol for his friends, but was nonetheless sober when he got behind the wheel of his Bentley to purchase a frosty from a local Wendy's restaurant. Rather, what caused him to lose control of the vehicle colliding with Wilson was faulty breaks in the Bentley.

Goodman was tested following the accident, and had a BAC level of twice the legal limit. Goodman explained that he actually became intoxicated after the accident, when he left the scene of the accident and drank heavily at a nearby location throughout that night. And in his second trial, he offered witness testimony corroborating this explanation. The bartender of the bar where Goodman was drinking before the accident may also be called to testify as to Goodman's sobriety at the time of the accident.

This is the second time Goodman is being tried. Goodman also testified in his first trial, and was convicted by a jury and sentenced to sixteen years. However that trial was declared a mistrial because of juror misconduct.

In the testimony earlier this week, the Judge permitted the prosecutor to ask Goodman if he heard the testimony of other witnesses and said that he had an advantage in testifying because he was present for other testimony. The judge overruled an objection to this line of question. As a Massachusetts OUI Lawyer, the judge was clearly wrong to permit this testimony because Goodman is Constitution required to be present during the testimony. This Constitution requirement should not be used to attack Goodman's credibility.

United States Supreme Court hears arguments on Fourth Amendment violations where police mistakenly conduct traffic stop

October 20, 2014,

On October 6, the U.S. Supreme Court heard arguments from defense counsel, the North Carolina State Attorney General, and the U.S. Solicitor General regarding the matter of Heien v. North Carolina. The question initially posed before the Court was whether a traffic stop premised on an officer's mistaken understanding of a state statute violates the defendant's Fourth Amendment rights. But as arguments proceeded, the issue became much more complicated, leaving some Justices concerned that this case raises more serious implications than initially anticipated.

The defendant in this case was a passenger in his own vehicle as it was operated by a friend down an interstate highway in North Carolina. A highway patrol officer noticed that only one of the defendant's two brake lights was functioning. While the state statute only requires that vehicles have only one functioning break light, the officer interpreted the statute incorrectly and stopped the defendant's vehicle to issue a warning to the defendant. The defendant then consented to the officer's request to search the vehicle. And after forty minutes, the officer discovered a plastic sandwich bag containing cocaine. The defendant was charged and convicted on the charge of trafficking cocaine.

The disposition of this case, as presented by defense counsel, depends on two main question:

  1. Whether the initial traffic stop violated the defendant's Fourth Amendment right, and if so,

  2. Whether the remedy for the defendant would be to exclude all the evidence obtained as a result of the traffic stop from being used at trial to convict the defendant.

Fourth Amendment law protects individuals from all "unreasonable" seizures and searches by law enforcement officers. And as previously decided by the U.S. Supreme Court, a brief investigatory stop - including a traffic stop - constitutes a seizure for Fourth Amendment purposes. Any traffic stop that is not founded on an officer's "reasonable suspicion" that a crime has occurred or is underway is an unreasonable seizure and a violation of the seized individual's Fourth Amendment right.

The issues in this case stem from the fact that the officer who stopped the defendant's vehicle was acting under a mistaken understanding of the state statute that really only requires one taillight to be functioning. This is called a "mistake of law," because the mistake was not in believing the defendant's vehicle had only one functional brake light (which would otherwise be a "mistake of fact") but rather that operating a vehicle with only one functional brake light was a violation of state law.

If the officer's understanding of the state law was mistaken, the question then becomes whether an officer's mistake of law could justify a lawful traffic stop. In other words, does a traffic stop violate a defendant's Fourth Amendment right if the officer misunderstood the law that he believed was violated? For the most part, the Justices seemed convinced that a traffic stop based on a mistake of law does violate the Fourth Amendment. But a subsequent question of whether an officer's mistake is excusable if it is "reasonable" also arises. However, as will be discussed below, this question remains an important issue of dispute for the Court.

If the Supreme Court decides as the Justices appeared to have leaned with regard to the question of whether a Fourth Amendment right was violated, the subsequent question would be whether the defendant is entitled to have his conviction vacated and the drug evidence excluded since it was obtained in violation of the his constitutional right. This is more of a "remedy" issue since it deals with how a court could cure the damage caused to the defendant by the officer's intrusion on his Fourth Amendment right (in contrast to the earlier issue of whether the defendant's right was violated at all).

The "remedy" question was a complicated issue for the Court because it raised a federalism problem. The defendant was stopped by North Carolina law enforcement as he was traveling on North Carolina roads. Therefore, the defendant faces violations of state laws in state court. But the defendant continues to have rights under the Federal Constitution - which are still reviewed by the North Carolina state courts for determinations as to whether any constitutional rights were violated.

A serious complication arises in comparing how North Carolina courts examined the remedy issue posed by this case under the federal Fourth Amendment in comparison to how the U.S. Supreme Court ruled on the same questions. Could North Carolina create remedies for Fourth Amendment violations where Congress and the U.S. Supreme Court have not? More specifically, the North Carolina law previously stated that the reasonableness of an officer's mistake of law is irrelevant to the question of a Fourth Amendment violation, and does not excuse that violation, thereby calling for exclusion of any evidence obtained from a search and seizure conducted in violation of the individual's Fourth Amendment right. The U.S. Supreme Court, however, ruled in the exact opposite direction in the case of U.S. v. Leon, where the Court held that evidence would not be excluded as long as the Fourth Amendment intrusion was premised on a "good faith" belief by the officer that a law was violated. Which law applies to the remedy question on Fourth Amendment violations - state or federal?

The traditional law is that the U.S. Supreme Court has the final say on how the federal constitution (and federal legislation) is to be interpreted, whereas state supreme courts have the final word on how state law is to be interpreted. However, because this a question of "remedy" rather than "right," the Supreme Court was thrown off guard since remedies are usually within the sphere of state law, and unfortunately neither party to the appeal had actually submitted a brief specifically on this question of remedy. But defense counsel did suggest in arguments that the state's decisions on remedies should be respected by the federal court. Even more, defense counsel asked that should the Court find its decision on remedies to be the binding rule, that it should specifically articulate a decision where it states that the same "good faith exception" does NOT apply to the constitutional right.

A corollary issue to this case was the question of what constitutes a "reasonable" mistake of law, excusing a Fourth Amendment violation. If the issue of whether the defendant's Fourth Amendment right was violated rests on the more narrow issue of whether the officer's mistake of law was reasonable, what exactly would differentiate a "reasonable" mistake from an "unreasonable" mistake?

Although the Justices questioned the attorneys on this question, the Court did not state what it thought constituted "reasonable" mistake. Instead, the Justices continued to express strong concern that, by allowing officers to act only on a "reasonable" understanding of the law (rather than the correct understanding of the law), the Court would essentially be granting officers the discretion to choose whether or not to act in a way that may violate a constitutional right whenever there's an ambiguity in the law. That type of law enforcement would undermine both the function of officers as enforcers of actual law (rather than of mistaken understanding of the law) and would jeopardize society's trust in police authority.

This issue is only one among many that the Court may or may not decide to opine on when announcing its decision several months from now.

Attorney General appeals Illinois court decision to U.S. Supreme Court arguing traffic stop did not violate Fourth Amendment

October 15, 2014,

Often times, what initially begins as a traffic stop for a civil offense (such as speeding) unexpectedly becomes an investigation into a criminal offense, ultimately leading to criminal charges. Under Fourth Amendment law, police officers conducting a traffic stop can investigate for criminal activity so long as the investigation was reasonably derived from the officer's initial suspicion that a traffic offense had been committed. Very recently, the Illinois State Attorney General filed an appeal with the U.S. Supreme Court to determine whether an officer can continue to hold the defendant even after the officer's initial suspicion had already dissipated.

The case of Illinois v. Cummings
The petition for appeal was filed under Illinois v. Derrick Cummings, earlier this past summer. This case arose out of a traffic stop where a driver was charged with operating a vehicle without a license. The officer who conducted the traffic stop testified that he initially suspected the vehicle registration had expired. But after running the registration number through the database, the officer discovered that the registration was not expired but that the car was registered under a woman who had an arrest warrant issued against her. The officer then pulled the vehicle over and approached the driver. The driver was not a woman, but was the defendant, Mr. Derrick Cummings.

Despite the officer realizing that the driver was not the subject of the arrest warrant, the officer requested that the driver produce his license and registration per standard police protocol. The driver was unable to produce a license, and was subsequently charged with a felony under Illinois state law.

The defendant successfully argued before the Illinois Supreme Court that the evidence of the driver's failure to produce a license should be excluded from trial since the initial purpose for the traffic stop was already achieved prior to asking the driver to produce a license. According to the defendant and the Illinois trial and appellate courts, the officer was only permitted to stop the defendant to determine whether the driver was in fact the object of the warrant, and then to execute the warrant if the driver was the correct person. But since the officer quickly realized that the driver could not have been the woman against whom the warrant was issued, it was unreasonable to continue the seizure and to require the defendant to produce a license.

Terry v. Ohio and Traffic Stops
Over the past few decades, both state and federal courts have applied the famous ruling in Terry v. Ohio to traffic stops. Under the Terry doctrine, a traffic stop (also known as an "investigative detention") constitutes a warrantless seizure under the Fourth Amendment, but is permissible as long as it is supported by the officer's reasonable suspicion that the driver has committed, or is about to commit, a crime. The stop is lawful so long as it is "reasonable" - if it is initially justified by suspicion of an offense, and only lasts as long as reasonably necessary to complete the investigation into the suspected crime.

Massachusetts Law on Traffic Stops
Massachusetts courts have ruled that an officer's questioning of the driver and/or passengers must be reasonably related to the initial reason for the stop. If the officer finds that his/her suspicion of an offense was unfounded, the officer must release the driver. If, however, the officer finds no real evidence for the suspected offense but evidence of another crime (such as drug possession) during the course of his questioning the driver, the officer may conduct a more thorough investigation that is more closely tailored to that criminal offense rather than the initial traffic offense.

Because of the wide latitude officers are granted while conducting traffic stops, a simple stop for a broken tail light could quickly lead to a full blown car search for weapons or drugs, if the officer finds evidence of drugs or weapons as he discusses the tail light with the driver. The good news, however, is that Massachusetts courts have interpreted Article 14 of the Massachusetts Constitution (Declaration of Rights) as providing more protection than the Fourth Amendment. Therefore, a defendant in a Massachusetts state court theoretically has more privacy protection under the state constitution, and is often more successful in defending him/herself against warrantless searches and seizures by law enforcement.

Ohio Supreme Court rules in favor of DUI defendant challenging breathalyzer

October 12, 2014,

DUI defense attorneys in Ohio have recently won a substantial victory in the Ohio Supreme Court that will allow defendants to bring stronger challenges to the validity of breathalyzer tests. The Ohio court's decision will require states to comply with discovery requests by the defendant, and produce critical data and records relating to their breathalyzer devices.

In the case of Cincinnati v. Ilg, the defendant was questioned and tested for intoxication after he lost control of his vehicle and struck a fence, sign, and pole. The officer who responded to the accident administered a breath test using the state's device, the Intoxilyzer 8000. The device revealed that the defendant had a BAC reading that was almost twice the legal limit. The defendant was subsequently charged with an OUI.

Before trial, the defendant's attorneys requested that the prosecutor produce records of the defendant's test, as well as test data, maintenance records, and results produced by the Intoxilyzer 8000 machine used to test the defendant. The purpose of this request was to compile enough evidence to demonstrate the inaccuracy of the defendant's breath test on the night of the accident, and so to prevent his BAC results from being introduced in trial. The defendant requested records from his own test, as well as for tests conducted three years prior to his arrest, and three months following.

The state refused to hand over the requested information, stating that it was too costly and time consuming to produce all of the requested records, and that state legislation does not require release of that information. The defendant then asked the court to issue an order compelling the state to release those records, but the state continued to refuse. The court subsequently imposed sanctions no the state prosecutor, forbidding any evidence of the breath tests from being presented into trial. The state appealed.

The Ohio Supreme Court agreed with the trial court's decision because it did not believe that the state was protected by statute from disclosing the information sought by the defendant. The Ohio legislature had previously passed a statute requiring courts to accept the results of an state-approved breathalyzer machine as generally scientifically erliable. This legislation was designed to allow courts to avoid having to hear lengthy expert testimony and arguments by both parties regarding the general scientific accuracy of the results of these state-approved machines.

However, the Ohio Supreme Court distinguished the statute from the defendant's discovery attempt, interpreting the defendant's request to fall outside the scope of the statute. According to the Ohio Supreme Court, the statute only prevents defendants from attacking the general accuracy and scientific reliability of the test procedure and machine approved by the state. The defendant in this case, however, only sought to challenge the accuracy of the results produced by the specific breathalyzer test used in his own specific case. And since the defendant's discovery request is consistent with his attempt to challenge the specific test results in his case, rather than the general scientific reliability of breath tests, the Ohio Supreme Court upheld the trial court's sanctions against the state for failing to comply with the request and court order.

Breathalyzer test results are among the most controversial forms of evidence presented by prosecutors against DUI defendants all across the nation. Breath tests are often found to be unreliable because the BAC readings are often effected by too many unmeasured variables that are inherent in human physiology and metabolism of alcohol. This case is a substantial victory for Ohio defendants, and it comes at a time where many courts in different jurisdictions are beginning to take a closer look at the accuracy of breath tests and the actual reliability of their readings.

First Degree Homicide conviction overturned in a Georgia Hit-and-Run case

October 11, 2014,

Under state statute (G.L. c. 90 § 24), all drivers in Massachusetts have a legal obligation to stop and identify themselves whenever they know that their vehicle has collided with another vehicle, property, or a person. If the driver collides with another person, leaving them dead or unconscious, the driver must stay at the scene and provide information to another motorist or officer, or leave the scene to find a telephone to report the accident to authorities. Failure to do so could result in license suspension or criminal offenses.

Other states, such as Georgia, also require drivers to provide injured parties "reasonable assistance," including providing, or arranging for, transportation of the injured parties for medical attention. Under Georgia statutes OCGA 40-6-270, a driver could be charged with a felony hit-and-run for failing to provide such assistance. Another statute, OCGA 40-6-393, also allows for a driver who fails to stop as required under 40-6-270 to be charged with first degree vehicular homicide if he injures a person and that person subsequently dies. Under the second statutory provision, a person could be sentenced to up to 15 years in prison, in comparison to the five years under the hit-and-run provision.

The case of Henry v. State, heard by the Court of Appeals of Georgia, demonstrates the different legal issues that come into play in such hit-and-run cases. In Henry v. State, the defendant was operating a vehicle with a passenger down a public road in Georgia after midnight, when he struck two fourteen year-old boys walking in the grass along the road. The passenger testified that he felt an impact and saw one boy's head hit the hood of the defendant's pickup truck, and screamed to the defendant: "You just killed somebody. Stop Henry." The passenger also testified that he was certain that this boy died on impact. Rather than stop to provide assistance as the statute requires, the defendant sped home and later abandoned the truck in a field with the intention of reporting it stolen.

The deceased boy was found dead by emergency responders at the scene of the accident, near the second boy who suffered substantial injuries. Aside from the actual crime scene and the passenger's testimony at trial, there was no other evidence regarding whether or how long the deceased boy survived the impact. The abandoned truck was found in a field the morning after the incident.

The defendant was subsequently charged with two counts of felony hit-and-run, and one count of first-degree vehicular homicide. He was also found guilty on all three charges and was sentenced to the maximum penalty of 15 years in prison under the vehicular homicide charge. Defendant appealed the trial court's finding of guilt on the vehicular homicide charge, arguing that although he was in fact guilty of the hit-and-run, the state did not meet its burden in proving that his failure to remain at the scene contributed to the victim's death. The Appeals Court agreed, and remanded to the trial court to reduce the sentence term.

The reason the defendant succeeded in his appeal was due to the manner in which the Court interpreted the language of the Georgia statute for first degree vehicular homicide. The Court noted that causing a death through failing to stop and render assistance was materially different from causing a death and then failing to stop and render assistance. The difference in interpretation is key here because the state in Henry v. State only proved that the defendant's collision with the boy likely killed the boy on impact, rather than that the boy died partly as a result of the defendant failing to stop to provide assistance. Since the boy died on impact, the defendant could not be held liable under the first degree vehicular homicide charge since there was no evidence that the boy's life may have been saved had the defendant actually stopped the vehicle. As the Court notes, the flaw is really in the language of the statue, which only the legislature could correct. And the legislature did in fact revise the statute following this decision.

Judge in Aaron Hernandez murder trial excludes evidence obtained from house search in violation of the Fourth Amendment

October 7, 2014,

In a recent hearing before the Bristol County Superior Court, Judge Garsh ruled that she will not be allowing the prosecutor to introduce evidence obtained during a police house search in the murder trial of former NFL player Aaron Hernandez. According to a local news reporter, the judge explained that the application for the warrant authorizing the search was defective, and so police had no authority to execute a search using that warrant.

Searching Aaron Hernandez's Home
The warrant was for the search of Aaron Hernandez's home in Franklin, MA. Law enforcement applied for a search warrant in order to seize the cell phone of Carlos Ortiz, a co-defendant of Hernandez in the Bristol County murder trial. And since the cell phone of Ortiz was known by authorities to be at Hernandez's Franklin home, authorities applied for a warrant to search that location for the cell phone. During the search, police also seized several other pieces of evidence, including dozens of ammunition rounds for various firearms, lease and rental agreements under Hernandez's name, receipts, mail and checks written to Hernandez, and even keys to a Hummer SUV.

Judge Garsh stated in her 8-page order that the search warrant application filed by the authorities simply failed to provide the proper basis for the lawful issuance of the warrant. Therefore, any evidence obtained during execution of the warrant violated Hernandez's constitutional protection against unlawful searches and seizures, and so could not be offered into evidence by the prosecutor at trial.

Search Warrants
A search warrant grants law enforcement the authority to intrude on an individual's privacy by searching their private space - such as a home, office, vehicle, or even their person. Most often, police officers would apply for a search warrant with a magistrate at a local court by submitting a formal application form and attaching an affidavit by the applicant explaining the reason and purpose of the warrant that they seek. Magistrates are allowed to issue the warrant only if the affidavit provides sufficient information to establish that a certain location likely contains evidence pertaining to a crime which the applicant is investigating.

If the magistrate is convinced, a warrant would be issued specifying the particular location, time, and date on which the search should be executed, as well as the particular types of evidence that should be sought during the search. The warrant is then given to law enforcement, which would then execute the warrant but are limited by the specific boundaries in the warrant, including the time, place, and date of execution, as well as the evidence sought. If the executing officers exceeded those boundaries during the execution, any evidence they seize would be held inadmissible as a violation of the suspect's constitutional right to privacy.

In the case of the search warrant of Hernandez's Franklin home, Judge Garsh explained that the application attached to the search warrant was deficient in that it failed to state facts establishing a link between Hernandez, Ortiz, and the murder of Lloyd. According to the judge, it is not enough that the affidavit simply state that the police have been conducting an investigation that leads them to believe evidence would be found in the Franklin home. Instead, Judge Garsh stated that the application had to state more specific reasons justifying Hernandez's Franklin home. And since it failed to do so, any evidence seized would be excluded.

This decision highlights the importance of protecting every criminal suspect's constitutional rights in the face of any criminal investigation. Judge Garsh made clear that Hernandez's rights cannot be violated, despite the officers' good faith and the severity of the criminal charges at stake.

Appellate Court dismisses DUI charge where police violated Fourth Amendment rights

September 25, 2014,

The right of against unreasonable seizures in the Fourth Amendment to the U.S. Constitution is invoked frequently in the context of traffic stops, where officers temporarily "seize" a driver and his vehicle for questioning. It is established law, however, that an officer is only authorized to stop a vehicle where there the officer makes specific and articulable observations of the driver that lead him to reasonably suspect that the driver is operating unlawfully - such as while under the influence of alcohol. Where the officer arrests a driver under the pretense that the driver was operating under the influence without the officer being able to refer to specific articulable observations leading to his suspicion, the courts have ruled that the seizure or subsequent arrest is completely unlawful - regardless of whether the driver was in fact intoxicated.

The Court of Criminal Appeals of Tennessee's recent decision in State v. Wild, is one such example. The court overturned a trial judge's finding that an officer lawfully stopped a driver suspected of drunk driving because the State prosecutor was unable to establish that the officer truly had reasonable suspicion to seize the defendant.

The only evidence of suspicious activity that was offered by the prosecutor was the testimony of the police officer involved, along with one-minute's worth of video footage from the officer's cruiser camera. The officer explicitly testified that he did not remember any observations of the driver on the day of the incident, and deferred the trial court's attention to the unclear camera footage and the officer's statement that the defendant had crossed the lane multiple times, as the officer's voice was recorded in the video. On this evidence alone, the trial court accepted the state's argument that the defendant was in fact swerving or "straddling" across her lane after the court itself supplied more information as to the road design on its own accord, since the video footage was too unclear. Based on the video testimony and the trial judge's own recollection of that road, the trial court found there to have been reasonable suspicion that the defendant was operating while under the influence. The Court of Appeals, however, completely disagreed.

The Court of Appeals was determined that the evidence provided by the prosecutor was clearly insufficient to establish probable cause. The officer had testified that he did not recollect the events, thereby leaving the unclear video footage to be the only evidence for the trial court's determination. The fact that the trial judge based his final determination on information that he himself provided to supplement the video footage indicated to the Court of Appeals that the State had failed its burden of proving the officer had reasonable suspicion to seize the defendant. In other words, the State had clearly failed to demonstrate that the officer specifically articulate facts or observations that justify his suspicion of the defendant. The seizure was therefore unconstitutional, and the Court of Appeals dismissed the charges against the defendant.

Although this case was relatively simple, it still serves as an important example of the need for an experienced defense attorney representing you in your DUI case before the court. In most cases such as this, the state is able to easily establish reasonable suspicion because the standard of proof is so low. However, as this case demonstrates, there are times where the state may not be able to meet even such a low standard. In those rare times, the defendant's Fourth Amendment rights are held to have been violated, and the defendant is entitled to relief from the charges against him. Because even the simplest cases brought against a person could have subtle flaws that are fatal to the state's case, it is absolutely critical that you find a diligent defense attorney to protect your rights before the court and to ensure that you are not held liable where the state does not meet its burden as required under law.

Traffic stop leading to cocaine possession arrest is unconstitutional because 911 caller unreliable

September 19, 2014,

The highest appellate court of Nebraska recently overruled a trial judge who allowed evidence of drunk driving to be admitted during trial, where that evidence was obtained as a result of an traffic stop based on an anonymous tip. Applying recent federal case law, the Nebraska Supreme Court found that the driver's Fourth Amendment right against unreasonable searches and seizures was violated when the officer stopped the driver without first confirming the reliability of the anonymous 911 caller's tip, or reasonably believing a crime was committed.

State v. Rodriguez
In the matter of State v. Rodriguez, a 911 dispatcher received an anonymous call alleging that the caller was just pushed out of a moving vehicle. The vehicle was identified as a green GMC Envoy heading westbound on Highway 26. An officer was dispatched to the location, where he observed a vehicle matching the description traveling westbound past the location of the caller. The officer followed the vehicle then activated his emergency lights and began to question the driver about the reported disturbance.

During the questioning, the officer noticed a strong odor of alcohol emanating from the driver, who had a flushed face, slurred speech, and bloodshot watery eyes. The driver was subsequently tested for intoxication, and the officer determined that the driver was heavily intoxicated. During booking, the officer collected the driver's personal belongings for inventory purposes, when he noticed two clear plastic baggies in the driver's wallet. One of those baggies was later determined to be cocaine, while the other baggie did not contain any controlled substance.

After being charged with an OUI, third offense, and drug possession, the defendant asked the court to exclude any evidence obtained by officers during incident. The defendant argued that the evidence was obtained by violating the defendant's Fourth Amendment right. After both the trial judge and the intermediate appellate court disagreed with the defendant's arguments, the Nebraska Supreme Court overturned the lower courts and ordered that evidence of the defendant's intoxication and cocaine possession be excluded

Recent Fourth Amendment Law

In reaching its determination, the Nebraska court referred to recent case law from the U.S. Supreme Court that addresses Fourth Amendment violations in the context of traffic stops. There were three particularly important cases:

  1. In the U.S. Supreme Court case of Alabama v. White, 496 U.S. 325 (1990), police officers received an anonymous tip from a caller alleging that the defendant was to leave a particular location at a particular time and in a particular vehicle to reach another location where the defendant would be in possession of cocaine. Police officers corroborated the tip by observing the defendant leave from the time and place alleged and arrived at the destination point alleged. The Supreme Court held that the officers had correctly relied on the tip after they confirmed its reliability by observing the defendant behave as predicted.
  2. In the matter of FL v. J.L., 529 U.S. 266 (2000), the Supreme Court found that an anonymous caller's allegation that "a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun" was inadequate to provide a reasonable basis for officers to stop and frisk the defendant for weapons. The Supreme Court required that the tip be reliable in its assertion that the crime was committed, and not simply in identifying a particular person and accusing him of a crime.
  3. The most recent federal case which the Nebraska court relied on is the matter of Navarette v. California, 134 S. Ct. 1683 (2014). The U.S. Supreme Court in this case reviewed an arrest that was executed after officers received an anonymous tip that the defendant ran the caller off the road and was operating the vehicle erratically down the road. The majority found that this caller's tip was not only reliable in identifying the driver, but also provided enough evidence for officers to reasonably suspect that the driver was operating the vehicle while intoxicated. Furthermore, the caller identified an ongoing crime, not a past isolated event.

Applying this case law to the facts of the defendant in State v. Rodriguez, the Nebraska Supreme Court found the case to be most similar to the circumstances in FL v. J.L., where the investigatory stop was found to be a violation of the defendant's Fourth Amendment right. The only information provided by the caller and corroborated by police observations was the description of the vehicle and the general location of the incident. The caller's tip, however, did not establish any reasonable basis for police to believe that the driver had committed an offense, and so the officers could not have lawfully relied on the caller's tip to execute a traffic stop. Furthermore, the Nebraska court found that the reported crime was not ongoing, and so could not have justified the traffic stop on the premise that there was an ongoing emergency to be investigated, as in Navarette v. California .

Criminal Implications of Minor Traffic Stops

Federal constitutional law on the Fourth Amendment has developed substantially over the past few decades, particularly due to traffic stops becoming a much more common basis for larger police investigations. Defendants are often surprised to learn that a burnt tail light or expired inspection sticker could, and often do, provide the bases for police to thoroughly investigate the driver for any criminal activity. Because a traffic stop could result in a substantial imposition on a driver's (or passenger's) privacy, it is important that all defendants in traffic stops facing criminal charges retain an experienced criminal defense attorney to protect their constitutional rights in order to avoid unlawful prosecution.

Oregon appeals court rules against police forceful entry into home

September 15, 2014,

The Oregon Court of Appeals issued a decision prohibiting police officers from forcefully entering the home of an individual whom they believed operated a vehicle while intoxicated. Finding no emergency where the suspect was under the influence and had locked himself and his seven-year old child into their home, the Court ruled that the officers were required by the Fourth Amendment to obtain a warrant.

In the matter of State v. Sullivan, the defendant was observed by a clerk to be under the influence of alcohol while checking out of a grocery store with his seven-year-old son. The clerk followed the defendant out of the store and recorded the license plate number of the defendant's vehicle. The clerk forwarded that information to police, which located the defendant's home address and immediately responded.

An officer arrived at the defendant's home address and observed the defendant's car and a man yelling to a young boy in slurred speech. After the officer ordered the defendant to stop, the defendant pushed his son up the stairs of the apartment building, slammed the door shut, and closed the blinds in the apartment unit. The officer, joined by two other officers, immediately approached began to pound on the door to the apartment, but there was no response. After speaking with dispatch and his sergeant, the officer discovered that the defendant had a concealed weapons permit. He then received permission to forcefully enter the premises under the premise that the child's safety was at risk. The officers then kicked the door down and drew their guns to enter the apartment .The defendant approached and was arrested, and subsequently refused to submit to a blood-alcohol test.

Before his trial, the defendant's counsel filed a motion to suppress all evidence derived from the home entry, claiming that the officers violated both his state constitutional rights as well as his Fourth Amendment right to privacy against unreasonable searches and seizures. According to the defendant, the officers had no authority or justification to forcefully enter his home without first obtaining a warrant. The trial judge disagreed with the defendant, on the basis that the defendant's child was in immediate risk of harm, thereby warranting police interference even without a warrant.

The Court of Appeals recognized that the trial court implicitly relied on the doctrine of the emergency aid, which is an exception to the warrant requirement where there is an objectively reasonable belief that warrantless entry is required to provide immediate aid or assistance to someone who is suffering or is threatened with suffering serious harm. The Court of Appeals, however, did not find that the circumstances known to the officers were sufficient to form an objectively reasonable belief that the defendant's son was at risk of suffering imminent harm to the child. The officers had merely received reports that the defendant appeared intoxicated, and had only observed the child being urged into the apartment home by the defendant-father. From these circumstances alone, the Court of Appeals concluded, there is no reason to believe that the defendant posed a risk of harm to his son.

Although the Oregon Court resolved this issue only under state law, the Massachusetts Supreme Judicial Court has previously found that a warrantless entry into a suspect's home is a violation of the suspect's Fourth Amendment rights under the U.S. Constitution. See Com. v. Forde, 367 Mass. 798 (1975). A similar result is expected in the Massachusetts courts when the same question is considered under article 14 of the Massachusetts constitution.

Another way to have approached this case is to have challenged the basis on which the officers believed they had probable cause to enter. In order to receive a warrant to enter, or to enter a home without a warrant, the officers must first establish a reasonable belief based on specific articulable facts that a crime had been committed or was about to be committed, and that the defendant is the perpetrator. Here the officers were relying on a store clerk's brief observations of a man with a child checking out of a grocery store. The defense attorney could have moved to dismiss this case on the grounds that neither the clerk's observations, nor the officer's very brief observations, were sufficient to establish probable cause. A trained and knowledgeable defense attorney is very valuable in such cases where officers act out of a hunch and speculation, rather than specific and articulable evidence.

Video tape evidence in domestic assault and battery case results in NFL indefinite suspension for Ray Rice

September 8, 2014,

Video tape evidence in the domestic assault and battery incident involving Ray Rice became public today showing him punching his then fiancee in the face in an elevator. The release of the video caused the NFL to issue an indefinite suspension and also resulted in his release by the Baltimore Ravens. Players in the NFL via Twitter expressed outrage saying he should be banned from the NFL for life.

Prosecutor in Massachusetts domestic assault and battery charges are looking for video tape evidence to prosecutor domestic cases as it is prevalent in public places and even as a result of iPhone or cell phone cameras. In some cases, a Massachusetts Criminal Defense Lawyer may be able to content that video tape evidence does not show the complete picture. In this case, it would be a difficult argument to make as the video shows the couple both inside and outside of the elevator.

In a case involving a bar room fight, captured on video in part, a defendant may be able to claim that the video fails to show some act prior to the incident raising an issue of self defense. In this case, the video evidence would be difficult to overcome for a defense lawyer and may have allow the prosecution to proceed even if the criminal case was not resolved. The video in the Rice case would leave no room for interpretation, while it does not have sound, it does not appear it was anything other than an unprovoked an violent punch by Rice.

Rice accepted a plea agreement to probation in the case. In many domestic assault and battery matters, a victim will not wish to go forward resulting in the dismissal of the charges. Prosecutors in Massachusetts typically look for other ways to prove the case without an alleged victim, such as with a 911 tape, video evidence or admissions of the defendant.

While domestic assault and battery allegations are unfortunately common, high profile cases like this incident will result in courts and the legislatures to toughen punishment. For a non-citizen or a person needing a clean background check for employment, this type of charge may have to be won at trial to avoid these adverse consequences.

US Supreme Court to decide whether an officer's mistake in a traffic stop invalidates a drug trafficking charge

September 3, 2014,

The Supreme Court of the United States has agreed to hear arguments on the constitutionality of traffic stops based on a police officer's mistaken understanding of the law under the Fourth Amendment. The case, Heien v. North Carolina, stems from the drug trafficking prosecution of the defendant-petitioner, which resulted from a discovery of cocaine during the search of a car pulled over for a burnt brake light.

The Traffic Stop

The defendant-petitioner, Mr. Heien, was a passenger in his own vehicle as it was operated by a friend down an interstate highway in North Carolina. A highway patrol officer observed the defendant's friend operating the vehicle with a stiff and nervous expression, "gripping the steering wheel at a 10 and 2 position, looking straight ahead." The officer followed the vehicle until he noticed that only one of the two brake lights were functioning. While the state statute only requires that vehicles have only one functioning break light, the officer interpreted the statute incorrectly and issued a warning to the defendant, who was the vehicle's owner. The officers then asked the defendant if he could search the vehicle, and the defendant consented. After a forty minute search of the vehicle, the officer discovered a plastic sandwich bag containing cocaine. The defendant was charged and convicted on the charge of trafficking cocaine.

The Issues in Dispute

The defendant in this case argued that the initial traffic stop violated his Fourth Amendment right against unreasonable searches and seizures because the stop was based on a mistake of law on account of the officer. The law on the validity of traffic stops is pretty well established - an officer may not conduct a traffic stop (or temporarily seize the vehicle) unless the officer reasonably suspects that a traffic law was violated, or that a crime has or is about to be committed. The law does not expect the officer to be completely correct in his suspicions each time; there will certainly be times where the officer makes observations that he believes, based on his experiences, suggest that criminal activity is afoot, but where in reality there was just a mistake of fact - no crime, just seemingly suspicious behavior. The officer must only have a reasonable basis for the suspicion as recognized by law, even though the officer may sometimes be mistaken.

The issue in this case, however, is not that the officer mistakenly believed that the defendant's had a burnt brake light. That would constitute a mistake of fact, which courts usually excuse. Instead, the challenge raised by the defendant was that the officer mistakenly believed that a single non-functional brake light constituted a violation of the state statute requiring vehicles to be equipped with "a stop light." The latter issue is a mistake of law - where the officer misinterprets the law and applies this misinterpretation to the driver.

A Criminal Defense Attorney's Thoughts

Two different aspects of this case make it especially striking. The first concerns the initial basis on which the officer suspected and followed the vehicle. In this case, the officer began to follow the vehicle after observing the driver's stiff demeanor, holding the steering tightly at 10 and 2, and looking straight ahead. In other words, the fact that the driver's behavior completely conformed to state driving laws served as the basis of the officer's reasonable suspicion to follow, and subsequently stop, the vehicle. While the officer's suspicion may seem understandable in practical terms, it was nonetheless illogical. Here, the vehicle was initially suspected and followed because the driver of the vehicle was in seemingly full and perfect adherence with safe driving practices - holding the steering wheel at 10 and 2 and focusing on the road ahead.

The second striking aspect of this case is the reasoning on which the courts of North Carolina premised their decisions to uphold the trial judge's denial of the defendant's motion to suppress. The North Carolina Supreme Court in this case stated that "so long as an officer's mistake is reasonable, it may give rise to reasonable suspicion" for purposes of infringing on the driver's Fourth Amendment freedom from police seizures. Almost half of the North Carolina Supreme Court justices, however, picked up on the flaw in this reasoning and dissented. The dissenting justices recognized that it would be unjust to require citizens to know the law or face punishment, while at the same time excusing law enforcement officers from that same requirement. If citizens are generally held culpable for acts that constitute crimes, despite their lack of knowledge that an act was criminal, it is only fair to require officers charged with enforcing the laws to have a good understanding of the laws so that enforcement is effected in a fair and predictable manner. By excusing officers from infringing on a citizens constitutional rights based on a misunderstanding of the law they are charged with enforcing, the courts effectively shield officers at the expense of the citizenry's constitutionally protected rights.

The Supreme Court will be hearing arguments from both the defendant and the State of North Carolina on October 6, 2014. The Court has also granted permission to the U.S. Solicitor General to argue why the Supreme Court should not hold that a police officer's reasonable mistake of law cannot support reasonable suspicion. The Court is expected to issue a decision months after arguments are heard.

Governor signs Bill creating new crimes against suspects in domestic violence

August 30, 2014,

Massachusetts Governor Deval Patrick recently signed into law a new senate act on domestic violence and sexual assaults. The legislation, known as Senate Bill 2334 - An Act relative to domestic violence, creates new criminal charges for domestic violence, requires the convening of special executive teams to investigate the causes and consequences of domestic violence across the state, and requires that funding be set aside for training state officers on handling domestic disputes.

Assault and Battery on Household Members

Section 26 of the Senate bill amended chapter 265 of the Massachusetts General Laws by creating several new criminal charges where none previously existed. For example, an assault or an assault and battery on a family or household member is now punishable by imprisonment in the house of correction for up to 2 ½ years and a fine of $5000. This sentence applies only to first time offenders; subsequent offenders are punishable by up to 5 years imprisonment in state prison.

For the purposes of this charge, the act defines a "family or household member" as any married couple, any set of parents - regardless if they ever married or lived together, or individuals who are in a "substantive dating or engagement relationship." Note, however, that the proper interpretation of this definition is yet to be defined by the courts, with guidance provided in the language of the legislation itself.

Suffocation and Strangulation

The act also created a criminal statute prohibiting strangling and suffocating any individual. Under this new legislation, strangulation or suffocation of another is punishable by up to 5 years imprisonment in state prison, 2 ½ years in a house of correction, and a fine of $5000. As with assault and battery on a household member, these sentencing guidelines apply only to first time offenders. The act punishes offenders with up to 10 years imprisonment in state prison, 2 ½ years in a house of correction, and a fine of up to $10,000 if:
- the offender is a repeat offender,
- the victim suffers serious bodily injury,
- the offender knows, or had reason to know, that the victim is pregnant, or
- the offender acted despite knowing that an abuse prevention or no contact order is in place against him by the victim.

Other Important Provisions

The act contains a number of other controversial provisions, one of which bans the public disclosure of information pertaining to domestic violence or sexual assault cases. There is some concern over this provision primarily because it protects the offender's identity from public eye. But in doing so, the act also protects victims from further harassment, suffering, and embarrassment that may be instigated by unauthorized third parties who are related to, or sympathize with, the offender.

Another provision affects the time after which a person incarcerated for violating one of these offenses may be released pending his trial. The new law delays bail by 6 hours. The purpose of the new bail delay provision is to allow victims an opportunity to flee or relocate safely without being harassed by offenders. However, courts may soon see arguments by defendants claiming their constitutional rights to due process are violated by this provision since the defendants are being deprived of their freedom beyond the necessary time for a court or magistrate to set bail.

Given the length, complexity, and controversy surrounding this act, there is no doubt that various provisions will be raised into question throughout Massachusetts courts, and possibly even the U.S. Supreme Court. Until cases are brought before the courts challenging the charges against the offenders, both police officers and other state agents will be attempting to interpret and execute these provisions by their own interpretations. That is why it is especially important for individuals charged under these new crimes to retain an experienced Massachusetts defense attorney who will be able to protect their rights and ensure that any abuse or misapplication by state agents is raised to the court's attention for relief.

SJC lowers the burden for Sealing Criminal Records in Massachusetts

August 22, 2014,

As a result of the increasing difficulties former defendants in criminal prosecutions are facing in obtaining employment and housing because of their criminal records, the Massachusetts Supreme Judicial Court recently ruled to lessen the legal burden on former defendants who wish to have their criminal records sealed after an entry of nolle prosequi or dismissal. This decision effectively opens the door for more individuals to seal their past criminal records, thereby preventing most employers and landlords from accessing their criminal information, and creating more opportunity for obtaining gainful employment and comfortable housing.

In the matter of Commonwealth v. Peter Pon, the defendant was charged with an OUI and leaving the scene of property damage following an accident. After admitting to the facts alleged by the Commonwealth, a Boston Municipal Court judge ordered that the case be continued without a finding for one year and a 45-day license suspension. Since the defendant complied with the conditions of the continuance, his case was subsequently dismissed but a judge denied the defendant's petition that his records be sealed in order to prevent any employment or housing discrimination resulting from his criminal history. Although the Commissioner of Probation ultimately sealed the records before the Supreme Judicial Court issued its ruling on appeal, the Court nonetheless used this case to reconsider the current law on criminal record sealing and impoundment.

The OLD Standard for determining whether to seal records

Prior to the Peter Pon decision, Massachusetts state courts relied on the reasoning of the Supreme Judicial Court in a case titled Commonwealth v. Doe (420 Mass. 142 (1995)). The Doe decision ultimately adopted the First Circuit court's ruling that the public has a First Amendment right to access criminal records of individuals who face criminal prosecution. The First Circuit's decision (published under Global Newspaper Co. v. Pokaski, 868 F. 2d 497), as adopted in Doe, required a defendant to establish that the value of sealing clearly outweighs First Amendment right of the public to access the records. The defendant was also required to show that he risks suffering specific harm if record remains unsealed.

State Legislation Since Doe

Almost twenty years after the Doe decision, the Massachusetts high court decided to lower the bar for defendants seeking to seal a record of a nolle prosqui or dismissal. Finding that the state legislature's reforms to the CORI legislation in 2010 were intended to protect defendants seeking employment by limiting who and when employers may inquire about their criminal history, the legislature intended to effectively minimize discrimination in the hiring process since criminal records often play a bearing hiring.

The Court also recognized the importance of gainful employment for defendants who have been charged with a past offense from reverting back to committing criminal offenses. According to the Court, one of the keys to a lawful and happy life is being able to find employment that provides a good job, a good wage, and the ability to raise a family, and this vision is promoted through sealing past records. In the Court's exact words: "Sealing is a central means by which to alleviate the potential adverse consequences in employment, volunteering, or other activities that can result from the existence of such records."

The NEW, LOWER Standard of Proof

The new legal test articulated by the Court in Peter Pon reflects this understanding and legislative intent. Although the Court keeps the final decision of whether to seal records in the hands of the judge, the Court did provide a very specific outline for judges to follow in assessing whether the state's interest in removing barriers to opportunities resulting from unsealed criminal records outweighs the public's interest in accessing those records.

The Court ultimately rejected the First Circuit's ruling that the public has a constitutional right to access criminal records under the First Amendment, thereby removing constitutional protections from the Commonwealth's argument against sealing. The Court then ruled that a defendant must only establish "good cause" for sealing the records. In determining whether good cause exists to seal, the presiding judge must balance the public's interest in accessing the records against the interests of the defendant and the state in keeping the records private in order to reduce recidivism, facilitate reintegration, and ensure self-sufficiency by promoting housing and employment opportunities for former defendants, among other factors.

Big Changes in Procedure

Another important implication of the Peter Pon decision is the procedure by which a record is sealed. The Court in Peter Pon reduced the earlier two-stage hearing to a single hearing on the merits where the judge first determines whether a prima facie case has been made in the pleading, and then hears the arguments from both sides. At the conclusion of his analysis, the judge must make specific findings on the record. This ensures that judges act cautiously in sealing records to ensure that the public's interest in accessing records is carefully considered.

Because of the enormous impact that a criminal record - even if just a dismissal - could have on one's future livelihood, it is critical that a defendant inquire about the possibility of sealing his records. While not all records can be sealed, many records - such as the nolle prosqui determinations discussed in Peter Pon - can be protected from the eyes of employers or landlords. Therefore it is important to retain an experienced Massachusetts criminal defense attorney to determine whether you have a case, and to successfully petition the court to seal your records.

Federal Judge charged with domestic assault and battery

August 19, 2014,

U.S. District Court Judge Mark Fuller was recently arrested and detained in an Atlanta jail resulting from an allegation of domestic violence raised by his wife. A CNN article reports that local police received a 911 call after 10pm on August 9 from the Ritz-Carlton hotel regarding an alleged assault. The caller stated that she was assaulted by her husband, Judge Fuller. The caller was treated on-site by EMTs.

The federal judge faces a criminal misdemeanor charge of battery resulting from domestic violence. After police responded to the hotel room, Judge Fuller was transported to a county jail, where he spent the night. While at the county jail, the federal judge appeared before a Chief Magistrate Judge by video conference for a bond hearing. The chief magistrate granted a signature bond of $5,000, which the federal judge posted later that same day.

From the details reported in the CNN article, it appears that Judge Fuller underwent the same process most suspects of a domestic violence will face after a 911 call from the victim. When officers appear on site, they will generally immediately separate the suspect from the victim, and question both parties with regard to the incident leading to the 911 call. In Massachusetts domestic assault charge, officers must make an arrest when dispatched to a domestic call.

In the case of Judge Fuller, because the incident occurred late into the night, a bond hearing was not conducted until later that morning. In Massachusetts, a clerk magistrate will typically set bail if a defendant cannot be taken to court immediately. At the arraignment, a judge can review the issue of bail. Once bail is issued, the defendant has an opportunity to post bail in order to be released. The defendant will then be given another court date on which he will need to appear.

Looking ahead to trial in the police shooting of Missouri teenager Mike Brown

August 16, 2014,

Residents from Fergusen, Missouri have been protesting in the streets for days as a result of the tragic death young Mike Brown, an 18-year old Ferguson college student who was shot by a local police officer. Outrage continued to erupt today as the local police chief released the name of the officer involved in the shooting. According to a CNN article, the officer is currently on paid administrative leave.

The question remains as to whether the officer will be charged with any crimes resulting from his interaction with Brown, leading to Brown's death. Reporters have so far interviewed three individuals who claimed to be eye witnesses to the shooting, and whose description of the events substantially differ from the statements released by local police.

Different Accounts of the Shooting
The eye witnesses' retelling of the events are consistent with one another. The officer and Brown were struggling near the officer's patrol car in the middle of the street as the officer, who was seated in the driver's seat of the patrol car, attempted to pull Brown into the car through the window. Shots were then fired, and Brown began to flee from the patrol car, until he was shot at least once by the officer. At that point Brown stopped running and raised his arms in the air, at which point the officer fired several rounds at Brown until Brown collapsed to the ground.

According to the local police chief, however, the officer fired his gun after having been assaulted by Brown and shoved into his patrol car. Brown allegedly attempted to reach for the officer's gun, which the resulted in the officer discharging his gun at Brown, till Brown fell to the ground.

The Value of Eye Witness Testimony in a Trial
Should murder charges be filed against the officer, and should the officer plead not guilty and pursue a trial, both witness testimonies and police reports completed by the local police department will likely be introduced into evidence. As with any trial, both the testimonies and the police records will be introduced to provide the differing accounts of the incident to the jury. At the conclusion of the trial, the attorney for both the state and the officer will present closing arguments to the fact-finder in an attempt to persuade the fact-finder to accept the interpretation of the evidence that is most favorable to their client. After closing arguments, however, it will be up to the fact-finder alone to issue the verdict.

In reaching a verdict, the fact-finder will have access to all of the evidence presented at the trial - both eye witness testimony as well as testimony or other evidence presented through the police department. The fact-finder will then need to conduct an independent analysis of the evidence, choosing how much weight and credibility to assign to each piece of the evidence.

The fact-finder could very well decide to completely discredit certain evidence in favor of other evidence. For example, should the officer in the Brown shooting go to trial, the jury may find that the police department's explanation of the event that occurred were not credible or trustworthy. In doing so, the jury will then adopt the testimony of the three eye-witnesses. The evidence, whether it be eye-witness testimony or official police statements, is therefore constitute only a summary of the different sides to the story.