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.

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.