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.

How the Massachusetts uses the NDR Report to access your out-of-state driving record

August 6, 2014,

Many drivers in Massachusetts do not realize that a license suspension or revocation, or even a conviction on a serious driving offense, leaves a long term mark on their records that can be accessed by several different types of inquirers. This blog will address the National Driver Register, and how information on your driving offenses - civil or criminal - can be stored by different states for others such as future employers and driving agencies to review.

What is the National Driver Register?

The National Driver Register - also known as the NDR - is a nationwide database maintained by the National Highway Traffic Safety Administration containing private personal and driving information on millions of drivers across the country. The NDR is the primary channel by which different states interact with one another to report problem drivers, or drivers with license suspensions/revocations and driving-related criminal convictions.

This information is typically provided by the state in which the driver committed the offense leading to the suspension, revocation or conviction. Each state maintains the history of its own drivers as well as any record of driving offense that occurred by the out-of-state driver within the state's boarders. That information typically includes the driver's full name, DOB, license number/social secutiry number (depending on state), gender, height, and whether the driver's license is valid or the driver is ineligible. Only those drivers who have had their licenses revoked or suspended, or who have been convicted of a serious driving offense, will be recorded in the database.

Who can access my NDR record?
Information stored in the NDR is accessible by several different inquirers. For example, a state in which an individual applies for a driving license may access the database to search for any record on the applicant to ensure that he is still eligible for a license. If the database returns a report that reveals license suspensions or revocations in other states, the inquiring state may choose to deny the application. Furthermore, states that have already issued licenses may impose penalties on a driver if they discover through the NDR that the driver committed a serious offense in another state. For example,
Massachusetts will impose its own penalties on drivers who violated another state's driving law and as a result are ineligible to drive in those other states.

A report from the NDR may also be requested by employers seeking to employ drivers. Employers may submit a report request by providing information to the NDR that the candidate for employment provides in his employment application. A report will then issue for the employer's review, and the employer will provide the candidate with a copy of the report.

In fact, any one may request a copy of their own report from the NDR, or the report on another through the federal Privacy Act. The NDR will always respond with a report either indicating the driver's status or indicating that no record will exist (if there has been no suspension/revocation or conviction reported). These reports are absolutely free of charge.

What to do if charged with a driving offense
The NDR is just another one of many tools by which state and federal transportation agencies communicate your personal driving information to one another and to other inquirers. Because that information is so accessible, and because it can have long lasting consequences on a driver's personal and professional life, it is important that every driver accused with a driving offense contact an experienced defense attorney who will be able to challenge the accusations and advise the driver appropriately to protect him from further unnecessary or unexpected harm.

Does a Massachusetts State Trooper have to give Field Sobriety Tests when making an OUI Arrest?

August 2, 2014,

Many arrested for OUI assume that a police officer must give field sobriety tests prior to an arrest. Under Massachusetts OUI Law, there is no requirement as to which field sobriety tests and officer must give or whether an officer give any tests at all. Most police officers will give the standard field sobriety tests, which consist of the HGN test, one leg stand and walk and turn. Other common tests include an alphabet test, number counting backwards and nose touching test called the finger to nose test.

In this Blog, I would like to discuss the common practice of a few State Troopers in the area of Wareham, Falmouth and New Bedford who commonly omit field tests or only give one admissible field sobriety test. In Massachusetts, the HGN tests is generally inadmissible as evidence in Massachusetts Courts under the Sands case. Every police officer is trained to administer field sobriety tests according to the methods of the National Highway Traffic Safety Administration.

Accordingly, in a stop for a routine traffic violation, an officer should at least give two field sobriety tests prior to forming an opinion to be fair to the motorist. However, I have increasingly seen officers administer the HGN test, a one leg stand and quickly request the motorist submit to the portable breath test and make an arrest.

If the motorist refuses a breath test at the station, the Commonwealth will be left with one one admissible field sobriety test at trial as the PBT is not considered a scientific test and does not come into evidence at court. It is used to help the officer decide whether there is probable cause to make an arrest, but does not come into evidence before a judge or jury at trial.

If the motorist takes a breathy test, the case is still winnable because the results may be excluded by a motion or challenged by other defenses. If you are arrest in the area of 195 in Massachusetts, when you read your police report look to see whether the officer gave you a full range of field sobriety tests, if it were just an HGN, portable breath test and one other exercise, you may have been arrested based on a State Trooper making an incomplete investigation and trying to make a quick decision to arrest for drunk driving.

Texas State Appeal Court Judge Arrested for DUI

July 24, 2014,

In McAllen, Texas, a state appeals court judge has been arrested for drunken driving following a traffic stop this weekend. After failing field sobriety tests and admitting to drinking five beers beforehand, the judge was charged with a DUI was subsequently released from police custody on a $2,000 bail posting based on her personal recognizance.

Judge Nora Longoria was originally pulled over for speeding, after a police officer caught her doing 69mph in a 55mph zone. According to Texas Lawyer, the police officer Longoria stated that she was driving home from having "dinner with friends" and proceeded to tell the officer that she was a judge, but the officers asked her to exit the vehicle due to the smell of alcohol on her breath, had bloodshot, glossy eyes and slurred speech during the conversation. After exiting the vehicle, Longoria failed the field sobriety tests as she had trouble with her balance and continuously had to use her arms for balance throughout the walk-and-turn and one-leg-stand tests.

The officer advised Longoria that she was being arrested for driving while intoxicated, which is when Longoria became emotional and refused to be handcuffed. Longoria stated the officer was "ruining her life" and that she had "worked hard for 25 years to be where I am today". The officer told Longoria she would be charged with resisting arrest if she did not comply with the officer's requests but Longoria was further uncooperative and asked to speak with a supervisor. The supervisor allowed the judge to be handcuffed with her hands in front of her to put her at ease and she was eventually taken back to the station, where she admitted to drinking 5 beers that night and refused additional procedures, including an interview and the breathalyzer test. Longoria was later released from jail after posting a $2,000 personal recognizance bond.

Those facing a DUI commonly experience Judge Longoria's concerns about the impact of her arrest. A DUI jeopardizes not only the driver's career, but it can also affect their social ties and overall reputation. Most people in Judge Longoria's situation would feel hesitant to fight their case, as they would believe that statements about how much alcohol they had to drink would be detrimental to their case and that failed field sobriety tests result in an instant guilty verdict. However, these assumptions are false and it is important to understand that during trial, DUI attorney can file the relevant motions to dismiss certain evidence, such as admissions of guilt or field sobriety test results, from trial. This case appears very defensible and it shows that it is easy to get arrested, but securing a conviction at trial is a much higher standard.

Defending Drug Offenses in Plymouth County in light of recent SJC ruling limiting police searches in drug cases

July 18, 2014,

The Massachusetts Supreme Judicial Court recently published an important decision on Commonwealth v. William White, Jr. vacating a trial judge's conviction and ruling that a police officer acted unlawfully when he searched the defendant and opened medical vials found in the defendant's pockets and vehicle. This decision limits the scope of police authority to search an individual and his vehicle for drugs upon an arrest - even where the individual is arrested on a warrant issued for a prior drug crime.

The defendant in this case was pulled over by two Cambridge police officers when the officers ran his vehicle registration and discovered two outstanding arrest warrants issued against the defendant. The first warrant was for a violation of a protective order, and the second was for a drug offense. After confirming that the driver of the vehicle was the owner who had the warrants issued against him, the cops ordered him to exit the vehicle and arrested him with handcuffs.

One of the officers then pat frisked the defendant, and felt a small prescription pill container in a pant pocket. The defendant told the officer that it was a vial of blood pressure medication, but the officer still removed it from the defendant's pocket for a closer look. The container was labeled with the defendant's name on it, and had one pill inside. The officer then discovered another small vial which he officer knew normally would contain the thin strips used with a blood sugar testing kit. But after shaking the container and hearing a sound of pills rather than testing strips, the officer opened that container and saw a different type of pills inside. The officer seized this container for further testing. The officer then entered the defendant's vehicle to lock he vehicle and remove the keys at the defendant's request, and while doing so found another prescription pill container, unlabeled, on the front passenger seat, with pills identical to the unknown pills discovered in the defendant's pocket. This container was also seized for further investigation.

At the station, the officer compared the physical characteristics of the unknown pills to an Internet database and identified them as 10 mg methadone pills. The defendant was charged with illegal possession of a class B substance. The defendant moved to suppress all the evidence seized during the arrest, but the trial judge denied the motion. The defendant later admitted to having possessed the pills without a prescription, and was then found guilty and convicted.

In reviewing the appeal of this case, the SJC addressed three types of legal doctrines that enable police officers to search arrestees and their vehicles: 1) search incident to arrest; 2) weapons search or "pat frisk"; 3) inventory search; and 4) the "plain view" doctrine.


1) Search incident to arrest

Ordinarily, under federal law and its interpretation of the Fourth Amendment, officers may conduct a "search incident to arrest" for warrants and contraband whenever it is reasonable to do so. The SJC, however, cited to a Massachusetts statute (G.L. c. 276, § 1) that was enacted to provide more protection against searches and seizures then does the U.S. Constitution. Under the state statute, a police search incident to an arrest is reasonably only if conducted:

a) for the purpose of seizing evidence of the crime for which the defendant was arrested, in order to prevent the evidence from being destroyed or concealed; or
b) for the purpose of removing weapons that might be used by the defendant to resist or escape.

The SJC finds here that the officer did not act reasonably in conducting the search incident to the arrest because there was no evidence known to the officer to lead him to reasonably believe that the defendant either possessed evidence of a crime. Even when the Court considered the officer's knowledge of the outstanding arrest warrants, the warrants were for a drug offense and a violation of a protective order, both from an unknown time in the past. According to the Court, therefore, the officer could not have reasonably believed that evidence of those crimes was still on the defendant's person at the time of his arrest.

The only other grounds for a search incident to arrest would be to search for weapons that may be sued to resist or escape the arrest. Such a search is essentially similar to a pat frisk, but a bit more thorough.


2) Pat frisks

Pat frisks are conducted by officers to search for weapons, or items that may be used as weapons, on the individual's person. Pat frisks are generally limited to the individual's outer clothing, and are conducted to ensure the safety of the officers and the public during the police interaction with the individual.

In this case, the Court found that it was reasonable for the officer to pat frisk the defendant and to examine the first hard object that the officer felt in the defendant's pocket. The Court suggested that it would be reasonable to believe that the medicine vial contained a razor blade in the closed container. However, once the officer shook the container and heard the sound of pills inside, it was no longer reasonable to believe that it contained a blade or any other weapon, and so the officer was not authorized to open the container.


3) Inventory Searches

Although the first vial could be searched under the pat frisk doctrine, the second vial in the defendant's pocket and the third vial on the front passenger seat could not be examined as part of a weapons search/pat frisk because they were clearly not weapons. But the Court discussed yet another doctrine, which is often used by cops after an arrest. This is the "inventory search" doctrine.

Inventory searches are lawful when they are conducted under standard written procedures for the purposes are safeguarding the arrestee's property, to protect police against false claims of theft or stolen property, and to keep unlawful items out of jails and prisons. These searches must be "noninvestigatory," meaning an officer is only permitted in observing the obvious qualities of the item for the purposes of categorizing it in the inventory log. The officer should not examine the items closely, as if to investigate the items.

Although the officer in the defendant's case may have acted permissibly in examining the outside of the second vial found in the defendant's pockets for the purposes of logging it into the inventory of, the officer was not authorized to seize the pills inside the vial and cross reference them with the internet database. This conduct was clearly investigatory - it was to investigate the identity of the pills in order to criminally charge the defendant. The Court held that this search required a warrant, and the trial judge should have suppressed these pills from coming into evidence.


4) Plain view

A fourth search doctrine addressed by the Court is the "plain view" doctrine, and it applies to items which the officers observe in plain open view, without searching the defendant or his property. The Court considered this doctrine with regard to the final vial found on the passenger seat of the defendant's vehicle as the officer entered the vehicle to retrieve the keys from the ignition at the request of the defendant himself.

The plain view doctrine authorizes police officers to seize objects in plain view only where:
i. The officer is lawfully in a position to view the object;
ii. The officer has a lawful right of access to the object;
iii. The object is clearly unlawful, or indicative of criminal activity of which the police is already aware; and
iv. The officer comes across the object inadvertently.

The Court found that that the third element above was lacking in the case of the defendant. The officer arrested the defendant on an outstanding warrant for violation of a protective order and a drug offense; on those grounds alone, the Court held that the officer could not have reasonably believed that the medicine vial on the passenger seat is related to either one of those crimes for which an arrest warrant was issued against the defendant.

In sum, the Court ultimately ruled that the trial judge incorrectly allowed the evidence of the pills seized by the officer and compared to an Internet database to be presented into evidence. And since the defendant was only charged with unlawful drug possession as a result of the officer's investigation of those pills, the conviction was vacated and the Court ordered a new trial for the defendant.

This decision severely limits the prosecution's efforts to charge the defendant for unlawful possession of the methadone pills, since the pills seized where the most important piece of evidence for the prosecution. Furthermore, this decision also affirms the Court's stance against unreasonable searches and seizures, limiting police searches and ensuring that experienced Massachusetts defense attorneys have the tools they need to raise the defenses necessary to protect their client's constitutional rights.

Warrantless Search of Cell phones declared Unconstitutional by the Supreme Court

June 28, 2014,

The Supreme Court has just issued a landmark ruling banning law enforcement officers from searching an arrestee's cell phone or mobile device without a warrant. According to all nine justices of the Supreme Court, a warrantless search of a mobile device, even a search incident to an arrest, is unconstitutional as a direct infringement on an arrestee's sacred Fourth Amendment protections.

The Cases on Appeal

The ruling arrived as a decision on two companion cases: Riley v. CA and U.S. v. Wurie. In the matter of U.S. v. Wurie, which was litigated here in the U.S. District Court in Boston, police officers arrested the defendant after observing him sell two bags of crack cocaine out of a car. After the arrest, the officers performed a routine warrantless search of the defendant's person (known as a "search incident to arrest") and seized more than $1000 cash, keys, and two cell phones. One of the cell phones - a flip phone - was repeatedly receiving calls from a number labeled "my house;" the officers recorded the calling number and entered it into an online telephone directory. Their investigation led to a residence alleged to belong to the defendant, where they discovered more crack cocaine, marijuana, cash, a firearm, and ammo. Defendant was charged with three federal offenses.

In the matter of Riley v. CA, originating in the CA state courts, officers searched the defendant's smartphone after he was arrested for driving an unregistered vehicle. While searching the smartphone, state police officers discovered texts, videos, and other data connecting the defendant to heavy gang activity, an attempted murder, and a prior incident involving an assault with a semi-automatic. The defendant was convicted on all counts by a state trial court, and the conviction was affirmed by the appellate court. After the California Supreme Court refused to accept another appeal, the U.S. Supreme Court decided to hear the matter together with U.S. v. Wurie.

The Court's Landmark Decision

The ruling in these two cases marks an enormous victory for criminal defense attorneys, free speech advocates, and criminal defendants all across the nation. Not only did the Supreme Court unanimously extend Fourth Amendment protections to cell phones and mobile devices, but it also rejected all arguments and suggestions offered by both the U.S. attorneys and the California state attorneys seeking any leeway for law enforcement officers to search these devices.

The Supreme Court made no compromises in this decision; it categorically refused to allow any search of any mobile device when the officers do not have a warrant and when no emergency exists. The reasoning underlying this broad decision stems from the Court's recognition that cell phones and mobile devices in today's society require substantially more protection because of their storage capacity and their interconnectivity to remote servers (also known as "a cloud").

Unlike past cases where defendants challenged (unsuccessfully) a search of their suitcase or vehicle after an arrest, the Supreme Court recognized that modern cell phones and mobile devices house incredibly vast amounts of information on their carrier. A search of a common smartphone may enable law enforcement officers to view messages, emails, photos, videos, financial information, personal documents, call log data, contacts, web history, and GPS information on the carrier's locations - among other things.

Since most smart phone users store (either knowingly or not) hosts of private information on their cell phones and in "a cloud," permitting a warrantless search of a cell phone would render the owner substantially more vulnerable to intrusion on privacy than if law enforcement officers were to search every corner of the owner's home. And under American law, a home is traditionally the most protected space by the Constitution - a fundamental constitutional protection that the Founding Fathers highly treasured and fought to protect from infringement by Great Britain. This decision therefore equates - if not raises - protections over mobile devices to those over homes.

Implications of the Court's Decisions
The greatest concern that immediately arises from this decision is whether law enforcement officers will be able to adequately protect the public given the heavy restrictions on searches imposed by this decision. In the words of the Supreme Court: "We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime." The being said, however, the Supreme Court affirms: "Privacy comes at a cost."

Furthermore, the decision still allows police to search cell phones and mobile devices where they reasonably believe that an emergency exists. An emergency in this context would require that either the public or police officers are in immediate danger, or that evidence may be at immediate risk of being destroyed. Outside of these two sets of circumstances, however, it would be unreasonable - and so unconstitutional - to search an arrestee's cell phone.

The Supreme Court also reassured law enforcement agencies all across the nation that its decision neither overturns any past decision, nor does it render mobile device data completely immune from searches. Instead, all the Court's decision requires is that a warrant be sought and obtained prior to searching the cell phone. Outside of emergencies, officers may always seize the cell phone, apply for a complaint, and then search the cell phone once the warrant issues. And as the Court notes, several jurisdictions have recently allowed expedited warrants through email, telephone, and other electronic transmission. A warranted search of a cell phone, therefore, should not be too delayed from the time of arrest.

Ultimately, the Court does not believe its decision is too intrusive on law enforcement. In the words of Chief Justice Roberts, the solution is simple - "Get a warrant"

Lawyers for Aaron Hernandez argue that the prosecution taint the Grand Jury proceeding in motion to dismiss

June 20, 2014,

Defense attorneys for Aaron Hernandez appeared before the Fall River superior court on Monday to ask the court to dismiss the murder indictment against Hernandez. The defense attorneys premised their motion to dismiss on the argument that the prosecutors injected unfair prejudice into the grand jury proceeding to bias the grand jury against Hernandez without meeting their burden of proof to establish probable cause. From the perspective of a Massachusetts criminal defense attorney, this is a common motion filed by defense lawyers.

According to one of the defense attorneys, the prosecutors presented highly harmful and irrelevant evidence before the grand jury in 2013 to portray Hernandez as a violent individual who does not abide by the law. In doing so, argued the defense attorney, the prosecutors predisposed the grand jury against Hernandez without truly establishing probable cause to charge Hernandez with the murder of Odin Lloyd. The underlying premise is that in predisposing the grand jury against a defendant, the defendant is deprived of his constitutional right to due process of law. My Fox Boston reported on the motion to dismiss and had video footage of the argument.

Hernandez's defense attorneys have a very heavy burden to meet in order to succeed on this motion. Courts will not generally look into the validity or quality of the evidence presented to a grand jury. A court will only review a grand jury indictment if there is insufficient evidence to support a finding by the grand jury that the defendant likely committed the alleged offense, or if the defendant argues that the prosecutor has impaired the integrity of the grand jury proceeding. See Commonwealth v. Freeman, 407 Mass. 279 (1990), This second claim is the one raised by the prosecutors in the Hernandez matter, and it essentially alleges that there was prosecutorial misconduct at the time of the grand jury proceeding.

In order to succeed on their motion, the defense attorneys needed to demonstrate that the prosecutor actually presented to the grand jury false or misleading testimony, which the prosecutor knew or should have known was false or misleading, and nonetheless used this evidence to obtain an indictment. Furthermore, there has to be some probability that the prosecutor's deception or misconduct actually influenced the grand jury's determination. See Commonwealth v. Richardson, 37 Mass. App. Ct. 482 (1994).

In the case of Hernandez, the prosecutor argued that there was sufficient evidence presented to the grand jury to not only establish that Hernandez was with Lloyd on the night of the murder, but was also the murderer. The prosecutor alleged he presented ample evidence to establish modus operandi or a pattern of violent behavior that Hernandez exhibits following night club fights, linking his murder of Lloyd to other violent acts committed by Hernandez on similar nights. The judge took the motion under advisement. The motion is likely to be denied by the judge.

Retrograde Extrapolation discussed as a defense at a OUI Trial by Massachusetts Appeals Court

June 16, 2014,

In a recent blog, I discussed a problematic decision by the Massachusetts Appeals Court in Com. v. Dacosta upholding a defendant's conviction on the charge of unlawful operation with a BAC of .08 or greater, when the defendant's BAC level was tested approximately an hour after the traffic stop. In so ruling, the Appeals Court denied the defendant the right to present "retrograde extrapolation" evidence, which may have relieved the defendant of criminal culpability in this case.

The defendant in Dacosta asked the trial judge to require the Commonwealth to present retrograde extrapolation evidence confirming that the defendant's BAC level did not rise between the time of the stop and the time the breath test was taken. Without such evidence, argued the defendant, no reasonable jury could infer the BAC level at the time the defendant was actually operating the vehicle. And since the jury convicted on a per se charge only, the conviction must be vacated since the Commonwealth failed to establish the defendant's precise BAC level at the time of operation. You can read the DaCosta decision by following this link.

The doctrine of retrograde extrapolation essentially stands for the scientific phenomenon whereby an individual's BAC level in the past can be determined from a later measurement by factoring the amount of alcohol consumed, the timing of the consumption, the individual's weight, and any food he may have eaten while or after he consumed the alcohol. In some instances where the doctrine is applied, the individual's BAC level at a point in time soon after consumption may be lower than the BAC level later in time. That is because BAC is a measure of the amount of alcohol that is absorbed in the blood at the time it is measured; as time passes, the body (liver) metabolizes and eliminates alcohol absorbed in the blood at a consistent rate, while the rate at which the alcohol is absorbed in the blood may vary depending on the amount of food consumed and the weight of the individual. Therefore, as in the Dacosta matter, the defendant's BAC may have actually been below the statutory limit at the time of operation an hour earlier than when he was tested, depending on his meal earlier that evening.

The science underlying retrograde extrapolation is not novel; it has been used by prosecutors across the nation to convict defendants on per se charges for several years. However, as the science developed over the years, it has advanced our knowledge of how alcohol is absorbed into the blood, and how rates of absorption may vary depending on several different factors. Because of these advancements, defense attorneys may now call expert testimony to present evidence that the defendant's BAC was actually lower at the time of operation than it was later in the evening due to the differing rates of absorption.

Although the defendant had no burden of proof by virtue of the fact that he is presumed innocent until proven guilty, the defendant's attorney may have opted to call his own expert witness to testify to the likelihood that the defendant's BAC level was actually below .08 at the time of operation. And since information on the defendant's weight, alcohol consumption, and meal earlier that evening can probably only be provided by the defendant himself, the Commonwealth would have likely failed to rebut this testimony.

The unfortunate reality I have encountered as an OUI Lawyer in Massachusetts
is that resources such as expert witnesses are not equally available to the Commonwealth and the defendant. Expert witnesses are rarely called by defendants in such cases because they are very expensive, and many defendants are indigent or simply unable to pay such high charges in addition to attorney fees and taking time off from work to attend court hearings. The only relief for individuals such as Dacosta, therefore, is for the SJC to review this Appeals Court decision, and require the Commonwealth to present expert testimony on the principles of retrograde extrapolation since the burden rests on the Commonwealth to establish the defendant's guilt if it chooses to prosecute.

When Can Police order Field Sobriety Tests in a Massachusetts OUI Arrest?

June 15, 2014,


Police Authority to Order Sobriety Tests

You were stopped for speeding after having consumed alcohol? Can a police officer order you to take field sobriety tests in Massachusetts. This Blog will explain under what circumstances field sobriety tests can be ordered and the type of legal motion an OUI Lawyer can make to challenge the officer's conduct.

Police officers have the authority to conduct field sobriety tests if they reasonably suspect that the driver was operating his or her vehicle while under the influence of alcohol. This standard, known as the "reasonable suspicion" standard, is the lowest criminal standard used by courts, and its application to roadside sobriety tests makes drivers much more vulnerable to arrest.

In the matter of Blaise v. Commonwealth, the state's Supreme Judicial Court ruled that an officer does not necessarily need to have the same level of conviction to order a sobriety test as he would to arrest or search a driver. The standard applied by the court to determine the constitutionality of a search or seizure is the probable cause standard. This standard requires a higher showing that the defendant likely committed the alleged offense, thereby authorizing the police officer to arrest and conduct a search incident to the arrest.

The primary distinction between the reasonable suspicion test used to constitutionally conduct a brief stop and frisk an individual (known as a "Terry stop") and the probable cause test needed before a full search and seizure is in the level of evidence needed to satisfy each standard. If the standards were to be compared on a spectrum, reasonable suspicion would be on one end of the spectrum requiring minimal evidence, while the trial standard of "beyond a reasonable doubt" would fall on the opposite end of the spectrum requiring a complete conviction that the defendant committed the offense. In between the two extremes would be the probable cause standard, used for searches and arrests.

As explained by the SJC in Blaise, the probable cause standard is used in cases involving arrests and full searches because such cases pose a significant intrusion on the individual's 4th Amendment right under the US Constitution and article 14 rights under the Massachusetts Declaration of Rights. In contrast, however, the SJC found that a field sobriety test does not imply a similar infringement on the driver's privacy rights. Instead, the court ruled that a field sobriety test that follows a typical traffic stop is comparable to a brief detention of the driver while the officer checks his ID - in neither instance is the defendant's privacy rights implicated.

In reaching this decision, the SJC expanded the US Supreme Court's ruling in the famous case of Terry v. Ohio, which permits officers to conduct a temporary stop and frisk of individuals if the officers have reason to suspect that the individuals pose a threat to public safety. The SJC in Blaise held that a field sobriety test is constitutionally permissible as long as it is reasonable under the circumstances to suspect that the driver may have been operating while under the influence.

In the case of Blaise, the officer initially pulled the defendant over for a traffic stop because the defendant was speeding and had one blown headlight. After stopping the defendant, the officer testified to having observed the defendant with glassy red eyes and slurred speech. The officer asked the defendant if he had any alcohol, and the defendant replied that he had a couple of beers.

Under these circumstances, the SJC ruled that it would be reasonable to suspect that the driver was in fact operating under the influence, and so the officer was justified in ordering the defendant to exit the vehicle for field sobriety tests.


Motions Challenging an Officer Decision to Order Field Sobriety Tests

To challenge an officer decision to order field sobriety tests, a defense attorney would file a motion to suppress, contesting the stop and the exit order. The attorney would argue that both the stop and exit order were unlawful, and that the officer unreasonably prolonged the duration of the stop in ordering field sobriety tests. While many times this motion will be denied, it is a useful step in trial preparation and one that I recommend in most cases.

Motion to Suppress Next Step in Aaron Hernandez Fall River Superior Court Murder Charge

June 13, 2014,

This past Thursday there was another important development in the prosecution of Aaron Hernandez. The Bristol County District Attorney's Office filed a response to Hernandez's earlier motion asking the court to prevent evidence discovered at Hernandez's home from coming into trial. According to a recent article, the Fall River Superior Court will hear arguments on the motion and the prosecutor's response this coming Monday, June 16.


Filing a Motion to Suppress

The prosecutor's submission Thursday was in opposition to what is referred to as a "Motion in Limine" or a "Motion to Suppress," filed by Hernandez's attorneys. In short, both motions are mechanisms by which a party asks the court to preclude certain evidence or statements/testimony from being presented at trial because the evidence was not obtained lawfully or the statements were coerced and/or are unreliable.

In the case of Hernandez, officers obtained a search warrant from a clerk magistrate and searched Hernandez's home after Odin Lloyd's body was discovered in a nearby industrial park. The officers conducting the search seized multiple tablet computers, cell phones, and Hernandez's home video surveillance system. It is this evidence that Hernandez's attorneys seek to suppress from admission at trial.


The "Probable Cause" Standard

What makes this evidence problematic is the way it came into the custody of the investigative officers. In order to seize the cell phones, tablets, and surveillance system, the officers applied for and obtained a search warrant authorizing the search. But obtaining a search warrant is not a simple procedure; the applicant is required to present to the magistrate reviewing the application enough evidence to establish "probable cause" that evidence of a crime exists at a certain location. Courts have defined probable cause as reasonably trustworthy information sufficient to warrant a prudent man in believing that a evidence of a crime exists (or will exist) at a certain location. The officers were therefore burdened with presenting sufficient evidence leading a person to believe that evidence related to the murder of Odin Lloyd was likely at Hernandez's home. It is a question of probability, not absolute certainty, so it is much easier to obtain a search warrant than it is to convict Hernandez of the crime.


Arguments to Expect

Hernandez's defense attorneys will argue Monday that the officers did not have enough evidence to establish probable cause in support of their application for the search warrant. As a result, the warrant was invalid and any evidence discovered using the search warrant is inadmissible as an unconstitutional infringement on Hernandez's right to privacy.

The prosecutors will rebut, however, by arguing that the home's proximity to the industrial park, Hernandez's relationship with Lloyd (Lloyd was dating the sister of Hernandez's girlfriend), and his presence with Lloyd on the night of the murder is sufficient to suspect Hernandez in the death of Lloyd, and in turn to search Hernandez's home for evidence such as a murder weapon.

Defenses can be raised against evidence seized by search warrants not only because of the insufficiency of the warrant application, but also because of the manner in which the warrant was executed at the search site, leading to the discovery of the evidence. To be valid, search warrants must be supported by probable cause and must state with particularity the place to be searched and items to be seized. In executing the warrant, the officers must make sure not to cross the limits of their authority as dictated by this particular language of the warrant itself. In other words, if the warrant specifically states that the officers may enter the residence of Aaron Hernandez in search of weapons, the officers may only search places within the home where it would be reasonable to suspect that Hernandez was storing or hiding a weapon. If officers acted outside the authority dictated in the warrant, any evidence they discovered accordingly could be suppressed.

Although that is the route used in the Hernandez investigation, a search warrant is not the only way for officers to gain entry onto a premises to search for evidence. Both Massachusetts and federal law allow for certain exceptions to the warrant requirement; officers need not obtain a warrant if they are conducting a search incident to an arrest, or if they have probable cause to believe evidence exists at a location but may not remain there long enough to wait for a warrant. There are several other exceptions under the case law that are not as relevant to the Hernandez matter.

Almost as important as the motion to dismiss filed by Hernandez's attorneys last month, this motion to suppress will set the stage for the success or failure of the prosecution. If the defense's motion to suppress is granted, the prosecutors will be severely limited in the amount and quality of evidence they present to a jury. And the less potent evidence they present, the weaker the link between Hernandez and the murder of Lloyd, and the greater the likelihood that a jury would not convict.

Colorado State drug lab denounces lab test results used in prosecution of DUI cases

June 12, 2014,

A state forensic lab has just announced that it will no longer endorse several of its test results used in the prosecution of DUI cases. The Colorado Department of Public Health and the Environment's Chief Medical Officer stated last Thursday that the State's blood test lab will not stand by 33 of the 12000 test results reviewed during the investigation. Experienced defense attorneys may soon take advantage of this breaking news to possibility vacate their client's OUI convictions or dismiss the charges all together if the prosecution has relied on lab reports released from the state's lab.

The Department's Chief Medical Officer sent a letter to a local police chief stating that an internal investigation led to the discovery of an incorrect procedure followed by one of the lab's employees over the span of 7 months in 2013-2014. According to the letter, this was strictly an isolated incident of human error, and does not effect the results of any other test conducted by the lab.

This news comes less than a year after the criminal sentencing of Annie Dookhan who pleaded guilty to more than two dozen counts of filing false reports, tampering with evidence, and misleading police officers.

The primary distinction between the controversy in Colorado and Dookhan is in the actual validity of the evidentiary reports released by each lab. The criminal investigation in the Dookhan matter revealed that the reports released by the Hinton lab in Boston were falsified, thereby completely undermining the validity of those tests.

In contrast, the Colorado lab's problematic reports were not explicitly invalid. According to the Chief Medical Officer's letter, the Department is unable to endorse the 33 reports merely because of failures to meet the state quality control measures in those tests. An employee of the state lab evidently failed to properly calibrate the specific Intoxilyzer 9000 device that was used in those 33 tests, thereby resulting in the tests falling outside the acceptable range of quality control calibration checks. Nonetheless, the Chief Medical Officer assured the Police Department that while the Department can no longer endorse the results due to state Board of Health regulations, the results of this investigation do not suggest that the test results are invalid.

This announcement still raises serious concern for the 33 cases reported to have been affected by the state employee's errors. When a driver submits to a chemical test or provides a blood sample to police, the police department transports the sample to the state lab (or third party contractor) for testing. After the lab analysts test the blood for alcohol/drug content, they release a report to the state prosecutor's office. The prosecutor then attempts to admit the test results into evidence during trial, or uses them as leverage in a plea bargain, to reach some form of conviction.

A discovery such as the one made by the Colorado state lab jeopardizes the reliability and credibility of the entire state lab, and presents the possibility for an appeal on prior convictions or a dismissal of ongoing prosecutions.

Breath Test Manual Appeal Heard by Massachusetts Appeals Court

June 7, 2014,

A panel of Justices of the Massachusetts Appeals Court heard oral arguments this Thursday, June 5th, on the admissibility of breathalyzer test results where Commonwealth failed to comply with defense counsel's discovery request for the operator's manual to the breathalyzer device used. The arguments were raised in the matter of Com. v. Kristopher Cormier (2013-P-1923. This issue is of critical importance for Massachusetts OUI Lawyers as a result for the defendant in this case could result in the suppression of breath test results.

The issue is whether the Commonwealth should be allowed to rely on breathalyzer test results during trial where the test results were offered through a testifying police officer who administered the test, and without allowing defense counsel an opportunity to review the manual in preparing his case for trial.

This case was brought to the Appeals Court on an interlocutory appeal filed by the defendant after a trial judge of the Fitchburg District Court denied the defendant's motion to suppress the breathalyzer test results.

In presenting his arguments to the Appellate Court, the defense lawyer referred to the Code of Massachusetts Regulations, chapter 501 section 2. This section of the CMR outlines the purpose and duty of the state's Office of Alcohol Testing (OAT) in creating an alcohol testing program, certifying officers to administer breathalyzers, and regulating alcohol testing procedures. Most importantly for this case is section 2.04(f), which delegates to the OAT the responsibility of "creating and maintaining the Breath Test Operator's Manual." The regulation also charges the Director of the OAT with the duty to "establish a uniform statewide training and certification program for Breath Test Operators." 501 CMR §2.07(1).

The defense argued that the Commonwealth should be precluded from presenting breathalyzer test results in his case because the defendant was not provided with a copy of the operator's manual and so was unfairly deprived of the opportunity to scrutinize the breathalyzer test results and the training of the officer administering the test. The essence of the argument, raised by Attorney Steven Panagiotes was that the OAT failed to comply with the regulation, thus resulting in the Commonwealth failing to provide the manual to the defendant.

One Justice stated we wouldn't be here if OAT complied with the regulation and [OAT] didn't seem to even care." The defendant therefore did not have access to the detailed procedures and methods used by the testifying officer in administering the test, and so was unable to adequately cross-examine the witness.

In disputes arising from breathalyzer testing, the details really are of upmost importance to a defendant's case. In failing to provide a defendant with the detailed description of the procedures and protocols in breathalyzer testing, the Commonwealth essentially shields testifying police officers from having to answer difficult questions that may lead to the discovery of a mistake in their tests.

Furthermore, even if it is more challenging for a defendant to examine an officer's qualifications or knowledge of the testing protocol without access to the officer's training material, the requirement of creating a manual may still not address the underlying problem at all. As suggested by one of the panel justices and later admitted by the Commonwealth in its own oral arguments, the regulation does not explicitly require that officers be trained on the operator's manual. In other words, even if the manual did exist at the time of the defendant's arrest (as was required under the regulation), there is no requirement that the certification process for the officers include training on the manual. Under this version of the regulation, police officers are shielded from rigorous scrutiny from all sides.

The Appeals Court is likely to issue a decision within two months. Any result could eventually be appealed further to the Massachusetts Supreme Judicial Court.

Breathalyzer test results struck down by Massachusetts Appeals Court as unreliable

June 5, 2014,

In the recent matter of Commonwealth v. Hourican, the Appeals Court reversed a trial judge's denial of a motion to suppress breathalyzer test, ruling that the test results were invalid under state regulations. The Appeals Court's decision is a significant victory for Massachusetts OUI defense attorneys as the Court placed a greater burden on the Commonwealth requiring prosecutors to offer more reliable evidence to establish a defendant's BAC level to reach a conviction.

The defendant in Hourican was operating a pickup truck late at night when he collided with a Boston police patrol wagon. A Boston police officer observed signs of intoxication and arrested the defendant after the defendant failed multiple field sobriety tests. The defendant later consented to two breathalyzer tests, the first read a BAC level of .121 percent, and the second read .143 percent. The breathalyzer device used was the "Alcotest 9510".

Although both results were above the statutory limit of .08 percent, the results were problematic in that they differed by .022 percent. Massachusetts state regulations provide that a breath test sequence (two consecutive tests with a time lapse of a few minuets in between) is only valid if the results are within +/- .02 percent of one another.

The issue before the trial judge, and subsequently the Appeals Court, was whether the third digit in the differential between the defendant's BAC two results should be truncated so as to preserve the validity of the results under the regulation, or whether the third digit automatically invalidates the results as it sets the differential outside the +/- .02 range specified in the regulation.

After reviewing the history of the relevant Massachusetts regulation enacted by the Executive Office of Public Safety, the Appeals Court decided to interpret the regulation literally so as to require the sequential BAC results to be within +/- .020 of each other. Any differential figure outside of this range would invalidate the results and require the Commonwealth to present a valid sequential test.

This holding particularly applies to breathalyzers utilizing a "gas calibration standard" - such as the Alcotest 9510 used in this case - rather than the "liquid calibration standard" used by other devices. The distinction stems from the language of the state regulation itself, which specifically requires that the results of a gas calibrated breathalyzer test be reported to three decimal places, in contrast to liquid calibrated breathalyzer results which are only required to be reported to at least two decimal places. See 501 Code Mass. Regs. § 2.15(1) (2010).

Although the language of the regulation seems clear, the confusion arises from the different sections of the regulations which were drafted at different points in time. More specifically, the regulation was first drafted in 2006 and contained a provision (501 Code Mass. Regs. § 2.56(5) (2006)) requiring that any third or subsequent decimal place be truncated prior to comparing the results. This same 2006 version of the regulation also provided the +/- .02 range within which BAC results in a sequential test must fall, in 501 Code Mass. Regs. § 2.57 (2006).

In 2010, however, a new regulation was enacted requiring that results using the gas calibration standard be reported in three decimal places. 501 Code Mass. Regs. § 2.15(1) (2010). This new regulation, however, did not revise the language used in § 2.57 in the 2006 version which provided the range of validity for sequential results in only two decimal places (.02). Confronted with this inconsistency, the Appeals Court determined that the regulation should be read literally so as to interpret +/- .02 to the third decimal place as +/- .020, thus invalidating the results in this case.

In so ruling, the Appeals Court reaffirmed the Commonwealth's heavy burden of demonstrating police compliance with state regulations in breathalyzer test administration. The Court reasoned that the critical objectives of Massachusetts DUI law is to require breathalyzer testing to be accurate and reliable. Reading the state regulation broadly, as the Commonwealth suggested, will only damage the reliability of the Commonwealth's inculpatory evidence, thus increasing the likelihood that an otherwise innocent driver might be convicted unlawfully.

The Appeals Court encouraged law enforcement officers to exercise more caution and diligence in utilizing breathalyzer testing equipment, and invited the Secretary of the Executive Office of Public Safety to revise the regulation so as to be more specific if a different result was intended by the regulation.