Washington Appeals Court address Right to Remain Silent in recent decision

December 19, 2014,

The Constitution protects us when we make statements under police interrogation without being advised of our rights, or when we decide not to make any statements at all. One of the key rights stated in a Miranda warning is the right to remain silent. This right guarantees that a defendant will not be portrayed in a negative light before a jury simply for choosing not to respond to a question posed by police. But a Washington Court of Appeals recently ruled that a prosecutor is allowed to reference the defendant's post-arrest silence because the reference to the defendant's silence was not made with the intention proving the defendant's guilt.

The Recent Case of Washington v. Price

In the matter of Washington v. Price, the defendant was pulled over by police after they observed him run a stop sign and hit a curb while turning. During the traffic stop, the officers noticed signs of intoxication and also discovered that he was operating with a suspended license. The officers then informed the defendant that he was under arrest, and ordered him to exit the vehicle. The defendant refused to comply, so the officers tazed the defendant.

As a result of the electric shock from the taser, the defendant began to have "seizure-like" symptoms, and was subsequently transported to a hospital by an ambulance. While at the hospital, the officers conducted a DUI interview per protocol after reading him his Miranda rights. Throughout the 30-question interview, the officers asked the defendant for various information, and the defendant answered voluntarily. But when the officers asked when, where and how much alcohol he had ingested that day, the defendant did not answer. He was then charged with a DUI and for driving with a suspended license.

During the defendant's trial, the prosecutor called the officers to testify as to their observations of the defendant at the time of the stop, as well as to the responses provided by the defendant. But while the prosecutor did not prompt the officers to testify about the defendant's silence in response to the questions but his alcohol consumption, the defendant's attorney did raise his silence during cross-examination. Defense counsel elicited testimony that the defendant did not answer some of the questions in an attempt to persuade the jury that the defendant was still suffering from the shock of being tazed when the officers interviewed him at the hospital. During closing arguments, the prosecutor then referred to the defendant's silence raised by his attorney, and argued that the defendant was not mentally debilitated by the tazer but was in fact thinking clearly enough to know when to answer and when to invoke his right to remain silent in order to avoid incriminating himself. The defendant was then convicted, and appealed his conviction accusing the prosecutor of misconduct for referencing his silence during closing arguments.

The Fifth Amendment Right to Remain Silent

The right to remain silent comes from the Fifth Amendment of the U.S. Constitution, which provides that no person shall be compelled to testify against himself. But despite its longstanding existence in the Bill of Rights, it was not until the mid-20th century that the Supreme Court elaborated on the actual protections that this Fifth Amendment right guarantees. In the early 1900's, local and federal law enforcement agencies began to employ severe and brutal interrogation tactics that were physically and psychologically coercive in order to obtain confessions from their arrestees. But as these confessions were attacked by zealous defense lawyers on cross-examination, it became increasingly clear that this aggressive law enforcement frequently resulted in false confessions or inaccurate information from the interrogation subjects. This phenomenon was primarily due to the fact that interrogation subjects often believed in their desperation that providing information sought by their interrogators would end their pain sooner.

The Birth of Miranda Warnings

In 1966, the Supreme Court delivered its landmark opinion in the case of Miranda v. Arizona, explicitly rebuking police agencies for their aggressive tactics, and banning the admission of any evidence that resulted from such tactics. It is this Miranda decision that requires police to warn the defendant of his rights before the defendant is questioned (and if he is in a position where he reasonably feels as though he were not free to leave). Among these "Miranda warnings" is the right to remain silent - the right to refuse to answer any questions posed by police under those circumstances. If officers do not recite the Miranda warnings before questioning their arrestee, any statement made by the arrestee will not be admissible against the defendant in court to prove the defendant's guilt.

Following the Miranda decision, the Supreme Court has also ruled that a prosecutor could never direct the jury's attention to the fact that a defendant remained silent during police questioning. The Court reasoned that since a defendant has a right to remain silent, the jury will likely infer that the defendant chose to remain silent simply because he was conscious of his guilt. The premise is that if someone is innocent, he would feel free to answer any and all questions posed by police, and that it is only the guilty that refuse to answer in order to avoid incriminating themselves. Concerned that this incorrect inference would undermine the whole purpose of the Fifth Amendment right to remain silent, the Supreme Court forbade admission of any evidence by the prosecutor of the defendant's lack of response to police questioning.

In this Washington case, the appellate court found that since the defendant's own attorney was the first to reference his client's silence, he effectively "opened the door" to the prosecution commenting on the silence as well. And since the prosecutor argued that the defendant's silence was evidence of the defendant's ability to think clearly (rather than the defendant's consciousness of guilt), there was no prosecutorial misconduct. The prosecutor's reference to the defendant's silence in this manner was therefore permissible under the Fifth Amendment.

Police Opinion on Ultimate Issues

Another issue that arose both during trial and on appeal was the officer's opinion testimony. During the State's direct exam of the officer, the prosecutor asked the officer to state his opinion as to whether the defendant's intoxication level was inhibited his ability to drive safely. The officer replied "In my opinion, he was too intoxicated to operate a vehicle."

The defendant argued that this testimony was unlawful in that it was an opinion on the ultimate issue of fact that was supposed to be resolved by the jury alone - i.e. the question of whether the defendant was in fact intoxicated while operating his vehicle. Some state courts have held that these types of opinions are inadmissible because they come too close to the issue that is supposed to be determined by the jurors.

The Massachusetts Supreme Judicial Court, for example, specifically held that an officer's opinion testimony that a defendant's "ability to drive was diminished by his consumption of alcohol" is inadmissible. See Com. v. Canty, 466 Mass. 535 (2013). The court was concerned that a jury may be inclined to "bow" to the testifying officer's opinion, as jurors often perceive officers as experts in law enforcement. But since the law charges jurors with the responsibility to independently weigh all of the evidence presented before it to reach its own conclusions as to the defendant's guilt, exposing jurors to such testimony essentially undermines their fact-finding function.

The Washington trial court and the Washington Court of Appeals, however, both ruled that this testimony was permissible. According to the appellate court, while a witness may not opine as to the defendant's guilt, this testimony was not a direct comment on guilt or innocence, and was purely based on the officer's inferences from his own observations of the defendant. The court held that as long as the officer's opinion testimony was based on the officer's own observations and inferences, it was permissible testimony.

Winning on Appeal

While this evidence may be impermissible in Massachusetts trials, it is not necessarily the case that it would be enough to overturn a conviction on appeal. In Massachusetts, as in many other states, a defendant must demonstrate both an error in the trial proceeding, as well as harm that the defendant actually suffered as a result of this error. In many cases, while a prosecutor would make an improper statement (or a judge an improper ruling), appellate courts will refuse to overturn the conviction if there is clear evidence in the record to support a guilty verdict even if the erroneous evidence was never admitted in trial. It is a high standard for a defendant to meet, and many appeals fail to overturn a conviction because they do not persuade the appellate court that, but for the error, no rational juror would have found the defendant guilty beyond a reasonable doubt.

Hernandez defense team attempts to block evidence of prior criminal behavior from trial

December 9, 2014,

Aaron Hernandez's defense attorneys are once again asking the trial court to prevent the prosecution from raising certain evidence against Hernandez during his murder trial in the Fall River Superior Court. In particular, FOX25 News reports that the motion seeks to exclude eight separate instances of the defendant's past behavior that have no direct relation to the investigation of the Odin Lloyd murder. but, if admitted, would likely portray Hernandez in a very negative light. Among these "prior bad acts" include a TMZ photograph of Hernandez holding a gun, evidence of firearms and ammo located near Hernandez's North Attleboro home, and evidence of the Hernandez's involvement in the 2012 double murder from Suffolk County, a 2013 incident outside a Provide night club, and the Florida shooting of Alexander Bradley in 2013.

Massachusetts Evidence Rules and Trial Practice

Admission of evidence in a Massachusetts trial is regulated by common law - or case law, derived from past decisions of the state's highest courts. These courts also look to some federal law, as well as the codified federal rules of evidence, for additional guidance. Because Massachusetts does not have a codified set of rules of its own, however, there is often greater room for argument on evidentiary issues in the state's courts.

An example of an evidentiary issue that frequently arises in criminal proceedings is the question of whether certain evidence of prior bad acts or behavior by the defendant is admissible against the defendant. The general rule in Massachusetts was outlined by the Supreme Judicial Court in Com. v. Trapp, 396 Mass. 202 (1985), and Com. v. Baker, 440 Mass. 519 (2003). (It's federal equivalent is Federal Rule of Evidence 404(b).) In these, and other, cases, the Court explained that evidence of prior bad acts are not admissible if they are offered merely to show that the defendant misbehaved in the past, and so has a bad character or propensity to commit the crime with which he is currently charged. The reason is that such evidence would cause a jury to improperly assume that the defendant is guilty merely due to his bad reputation or criminal past, rather than weighing fresh evidence before it.

Although evidence of prior bad acts is generally inadmissible to show a defendant's bad character and propensity to commit crimes, the Massachusetts court did rule that such evidence may be admitted for other purposes. For example, a prosecutor may admit evidence of prior bad acts to show a pattern of operation or "modus operandi" ("M.O.") - i.e. that the defendant committed a past crime in a certain unique manner that is duplicated in this present offense. Other permissible purposes include using this evidence to prove the defendant's intent, identity, or motive.

A Look at the Hernandez Motion

In the case of Aaron Hernandez's murder trial, Hernandez's motion to exclude demonstrates two concerns on his attorney's minds: 1) that the prosecutors will misuse the prior bad acts evidence (the TMZ photograph, etc.) to persuade the jury that Hernandez is a violent criminal and so is guilty of murdering Odin Lloyd, or 2) that the jury will be too heavily influenced or "enflamed" by the prior bad acts evidence to be able to rationally assess the weight of all the evidence before it. And while trial judges to generally instruct jurors to limit their consideration of such evidence to the narrow purpose they were admitted to serve, there's always a significant concern that jurors will not be able to follow the court's instructions.

While we do not know exactly if or how the prosecutors will seek to offer this evidence during trial, it is likely the case that they will respond to the defense motion by arguing that the evidence shows serves as circumstantial proof of Hernandez's identity and opportunity. The prosecutor may argue that Hernandez has a history of being violent towards those who he perceives as challenging his sense of superiority. Law enforcement agents from Suffolk county, North Attleboro, Rhode Island, and Florida have alleged to some degree or another that Hernandez's involvement in the violent crimes in each of their respective districts are linked to some personal conflict or confrontation with Hernandez himself. This goes to prove Hernandez's identity in Odin murder, since Odin was involved in an intimate relationship with Hernandez's own girlfriend. The evidence of the discovered weapons, as well as the TMZ photograph, also go to show that Hernandez had the opportunity to commit the murder since he often had firearms in his possession.

The Trial Judge's Role as Gate-Keeper

Whatever the trial court decides, it will do so after carefully weighing the arguments by both parties. Generally speaking, as long as the evidence does not elicit the inference that a defendant is guilty on a present charge merely because he has committed bad acts in the past, Massachusetts courts are open to admission of such evidence. However, the analysis conducted by the trial judge as the "gate-keeper" of evidence is a bit more complex. That's primarily because the evidentiary question is rarely as clear cut as the rules suggest. The decision ultimately requires a trial judge to weigh the value of the evidence to satisfy whatever purpose its proponent is offering it for, against the risk of unfair harm to the defendant case by enticing jurors to make an impermissible inference as to the defendant's character. See Com. v. Yelk, 19 Mass. App. Ct. 465, 471-472 (1985)

Courts are more inclined to allow evidence that is not too remote in time, or that is sufficiently connected to the facts of the present case. Admissible evidence of prior bad acts is always purely circumstantial; that is, it does not speak directly to the defendant's commission of the present act, but provides support for the inference that the defendant did commit the act. But because of its circumstantial nature, a party's use of prior bad acts evidence must be limited strictly to the narrow purpose for which it was admitted (i.e. to prove intent, identity, motive). Courts do not approve of a party's attempts to use this evidence beyond the scope of the circumstantial purpose that it was initially intended to serve.

In my opinion as a Massachusetts criminal defense attorney, we can expect the trial judge in Hernandez's case to look at each "bad act" carefully, both independently as well as in light of the remaining evidence in this case, to determine which, if any, will be admitted or excluded, and whether the prosecutor will be able to limit the use of this evidence to its specific circumstantial purpose.


Supreme Court hears Fourth Amendment challenge to warrantless police searches of hotel guest lists

December 8, 2014,

The U.S. Supreme Court has agreed to hear the City of Los Angeles' appeal of a Ninth Circuit decision holding that a city ordinance requiring hotels to maintain detailed records of each guest's identity and personal information unconstitutional. In a split decision, the Ninth Circuit found the ordinance to violate the Fourth Amendment on its face, and prevented LA police from accessing the register without a search warrant or the hotel's consent.

Hotel Registries and the Right to Privacy
In most jurisdictions, each hotel guest is required to provide certain personal identification information. Not only does this information serve basic record keeping functions necessary to hotel management and guest services, but it may also be used by law enforcement under a legislative enactment. For example, a current Massachusetts statute requires hotel administrators to maintain a registry of names of hotel guests, and to produce this information to law enforcement upon request. And unlike various other forms of searches and seizures, the state Supreme Judicial Court has upheld this statute as constitutional under the Fourth Amendment.

This is primarily the issue in the City of LA's appeal with the Supreme Court. Like Massachusetts, the City of LA enacted an ordinance requiring hotel owners and managers to maintain a registry of guests, and to make this registry available to police upon request. Analogizing to the facts of the Massachusetts case of Com. v. Blinn, 399 Mass. 126 (1986) (where the SJC unanimously held that no search warrant was needed since hotel operators do not have a reasonable expectation of privacy in the registry), the City of LA argues that the Ninth Circuit was incorrect in deciding that consent or a search warrant is needed for LAPD to access the registry.

However, a distinguishing factor between the Massachusetts statute and the LA ordinance is the amount of information called for by the ordinance - not only the name of the guest (which is all that is required under the Massachusetts statute), but information about their stay, identification numbers, vehicle registration information, and credit card/financial information as well. The LA ordinance is therefore much more expansive, providing LA police with access to substantially more information on a hotel's guests.

Hotel Registries as Private Property

Unlike the Massachusetts decision, the Ninth Circuit also had two distinct bases for its ruling against the City - the hotel had both a privacy interest in its records, as well as a property-based right to exclude others from property. Under the second basis, the Ninth Circuit ruled that the Fourth Amendment expressly protects "papers" (such as the hotel's business records and registries) as the hotel's private property. As such, the hotel has a right to exclude others from prying into the contents of its record property. Therefore, the ordinance raises constitutional problems on both right-to-privacy grounds as well as on the basis of a property owner's right to exclude. The latter basis was never addressed by the Massachusetts Supreme Judicial Court.

Potential Changes in Law
Although this issue is not as ripe as others which the U.S. Supreme Court has preferred to hear in the past, the case has been accepted and so will likely lead to a landmark decision effecting many jurisdictions across the nation with similar legislation. If the Supreme Court affirms the Ninth Circuit decision, states such as Massachusetts may need to revisit their legislation to ensure compliance with the Supreme Court's decisions, since the U.S. Supreme Court has supreme authority in addressing of federal constitutional rights. This would likely translate to more federal constitutional protection for defendants.

Regardless of the outcome, this decision is an important reminder for the need of an experienced Massachusetts appellate attorney to identify and argue the relevant issues of a case. In the present case, the hotel's attorneys mounted a powerful defense in opposition to the City's appeal, which may ultimately benefit criminal defendants both in LA as well in Massachusetts, among others.

United States Supreme Court to determine whether threats are protected free speech under First Amendment

December 6, 2014,

Many crimes require proof that the defendant specifically intended to cause the harm alleged by the crime. In Massachusetts, obtaining a civil harassment protective order requires the complainant to prove that the defendant intentionally placed someone in fear of harm using their words or acts. Just recently, however, the Supreme Court heard arguments to determine whether the First Amendment actually protects such expressions, if the speaker/actor did not intend to place anyone in fear.

Threats and First Amendment Protection
It is a federal offense to transmit any communication threatening to injure another person. The Supreme Court has repeatedly held the First Amendment does not protect individuals who threaten others, whether in person, by phone, email, or even social networking programs. But until today, the Court has never explained how a trial judge should determine what a "true threat" is, such that it would not be protected by the First Amendment. More specifically, the Court has not determined whether a threat is only a true threat if the speaker/actor intended to place another in fear, or whether it is enough that a reasonable person would be put in fear.

Relevance of Subjective Intentions
In the case of Elonis v. U.S., the defendant was charged and indicted on five counts of the federal offense of making threats, including one against his ex-wife and another against a FBI agent. The defendant's wife moved out of the family home with their children, causing the defendant to suffer an emotional breakdown. The defendant began to publish postings on Facebook that included violent rap lyrics and photographs, particularly directed at his ex-wife. The defendant's Facebook page subsequently caught the attention of the FBI, which visited the defendant to investigate further. After his in-house interview with the agent, the defendant created more violent rap lyrics, this time referring to the FBI agent, and posting them on his public Facebook page.

The defendant challenged the prosecutor's case, arguing that the First Amendment protects his statements as free expressions, unless the prosecutor could prove that the defendant actually intended to threaten or place others in fear. In other words, it is not enough that either his ex-wife or the agent felt threatened; it is not an objective analysis as to whether a reasonable person would feel threatened. Instead, the defendant argued that for the charge to survive the constitutional challenge, the prosecutor must satisfy a subjective standard - that the defendant subjectively intended to threaten others. The trial court applied the objective standard, however, and instructed the jury accordingly. This is also how the Massachusetts Supreme Judicial Court interprets its own state laws on this issue as well. See Our First Circuit Court of Appeals, however, applies the objective standard.

Supreme Court Seeks Balance
During arguments, the Supreme Court seemed very on edge and troubled by the question of how it should instruct lower courts to distinguishing "true threats" (which are criminal offenses) from seemingly threatening statements that are protected free speech. The Court heavily questioned the attorneys, seeking a prudent balance between freedom of expression as weighed against the public's interest in safety and the government's interest in preventing harm to its citizens. The defendant's appeal warned that lowering the threshold for "speech crime" by adopting an objective standard would result in the unintended and unforeseeable consequences of innocent citizens being imprisoned "for negligently misjudging how others would construe his words," which would "erode the breathing space that safeguards the free exchange of ideas."

Since this case falls under both federal statutes as well as the First Amendment, the Supreme Court's decision will only trump state court decisions applying federal law. Massachusetts courts, however, may choose to extend protection to defendants under the Massachusetts declaration by continuing to require proof of specific intent. A Massachusetts criminal defense attorney may therefore continue to argue that the state courts ought to protect the defendant's expressions under the Declaration of Rights, requiring state and county prosecutors to continue to prove specific intent on charges based on state crimes.

Marijuana Breath Tests in Development at Washington State University may result in increased OUI Drugs arrests

December 4, 2014,

A Washington State University professor is currently developing the first portable breathalyzer that tests for marijuana substance consumed by a driver. Washington law enforcement agencies are particularly enthusiastic about the test, as more and more drivers are operating while under the influence of marijuana in one of only two states who have legalized marijuana.

Currently, law enforcement can only test for marijuana consumption through blood tests at a lab. These tests are time consuming, complicated, and expensive. The new marijuana breath test is designed to detect a primary chemical ingredient - THC - in the driver's breath immediately after the driver is pulled over. A portable breath test for marijuana will enable officers to more accurately identify drivers who operate while under the influence of marijuana, by allowing them to rely on the breathalyzer's measurements rather the officers' own observations.

Like most alcohol breathalyzers, marijuana breathalyzer devices will likely be susceptible to error. There are currently several ways for an experienced criminal defense attorney to challenge the results of an alcohol breathalyzer - from the manner in which the test was administered to the significance of the chemical ingredients that a breathalyzer actually detects and measures. These challenges could also be expected in a prosecution relying on a marijuana breathalyzer test result. But still, the invention of a marijuana breathalyzer is likely to lead to substantially tougher prosecution of this type of offense - not only in Colorado and Washington where driving while under the influence of marijuana is explicitly a crime, but in other states as well. USA Today along with several media outlets reported on this story.

Under existing Massachusetts law, for example, a person could be charged with operating under the influence of drugs, which is distinct from the charge of operating with a BAC level greater than .08 percent (the "per se" charge) and even the charge of operating under the influence of alcohol. Prosecutors could (and frequently do) charge drivers with a combination of these offenses, since the OUI charges only address impaired driving due to consumption of a substance, while the per se offense requires only a showing that a driver's blood-alcohol-content level was greater than the statutory limit. Equipped with these new marijuana breathalyzer devices, Massachusetts law enforcement is likely to increase OUI Drugs arrests.

This technology would be the newest tool in the state's large arsenal used for regulating and prosecuting individuals for substance use. It is expected to be completed by the end of this year, and will be tested throughout 2015.

United States Supreme Court may address whether statements to mandatory reports are testimonial under the Confrontation Clause

December 1, 2014,

The U.S. Supreme Court will soon determine whether it will hear an appeal on the 6th Amendment Confrontation Clause rights of a defendant convicted of assault and domestic violence on his girlfriend's children. The petition requesting Supreme Court review was filed by the State of Ohio after the Ohio Supreme Court ruled that a defendant had a 6th Amendment right to confront the child victim of his alleged criminal acts, and that testimony of teachers and physicians acting as mandated reporters violated his constitutional right to confront his accuser.

The Case of Ohio v. Clark
The case, Ohio v. Clark, stems out of a grand jury indictment against the defendant on five counts of felonious assaults on children, two counts of endangering children, and two counts of domestic violence. The child victims in this case, two and three years old at the time, were dropped off at a Head Start program by the defendant when one of the daycare teachers noticed bruises and markings on the children. After asking the children several times about the bruises, the children mentioned a name later discovered to be the defendant's nickname.

The injuries were then reported to Ohio's department of children and family services, where social workers conducted interviews of the children, who implicated the defendant as the abuser once again. The social worker subsequently notified law enforcement, and took both children to the hospital to be examined by a physician, who concluded that the children were victims of recent abuse. A jury convicted the defendant of all but one charge, and the defendant was sentenced to a total of 28 years.

Confrontation Clause Challenge
Defense counsel attempted to exclude any testimony about the statements made by the children incriminating the defendant as the abuser. During the trial, defense counsel successfully argued that the children were incompetent to testify because of their young age. Since the children were barred from testifying, defense counsel raised a Confrontation Clause challenge to the admission of any of the children's statements through any of the mandated reporters who investigated this case as "testimonial," since the declarant children would not be available for cross-examination. The trial judge overruled the objection, and allowed the daycare teachers, investigating social workers and police officers to testify to the statements made by the children incriminating the defendant.

The Ohio Supreme Court agreed with the defendant by a slim majority, finding that the testimony of all the teachers, social workers, and police officers violated the defendant's Confrontation Clause. Under U.S. Supreme Court precedence outlined in Davis v. Washington and Michigan v. Bryant, every defendant has a 6th Amendment right to confront his accusers. This right of confrontation requires the trial court to exclude any "testimonial" out-of-court statements by a declarant incriminating the defendant, where the defendant has not had an opportunity to cross-examine the declarant on those statements.


In the case of Ohio v. Clark, the Ohio Supreme Court found that the children's statements to the teachers, social workers, and police officers were in fact testimonial, and so barred from evidence since the children were not competent to take the stand and be subject to cross-examination. The court's determination relied on an analysis of the function of mandated reporters and the nature and purpose of the children's incriminatory statements to the reporters.

Mandated Reporters as Agents of Law Enforcement

First, the court found that mandated reporters are effectively agents of law enforcement. By statute, teachers and social workers (among others) are obligated by law to report child abuse and neglect primarily to protect children. However, the court found that the legislature contemplated an inherent obligation to identify the perpetrators to law enforcement so that they may be prosecuted and prevented from causing more harm to the victim children. When mandated reporters identify such perpetrators to law enforcement, they are effectively acting as agents of law enforcement with the primary purpose of prosecuting the perpetrator. Therefore, any statements obtained by mandated reporters are testimonial and subject to the Confrontation Clause.

Testimonial vs. Non-Testimonial

Second, the court also found that the statements of the child victims to the teachers and social workers were in fact testimonial. A statement is testimonial if its primary purpose was to assist law enforcement in the investigation of a possible crime. Non-testimonial statements, which do not trigger the Confrontation Clause, are distinguishable in that their primary purpose is to assist law enforcement in meeting an ongoing emergency. Supreme Court case law emphasizes the importance of timing in these types of analyses - when viewed objectively, the circumstances surrounding a testimonial statement indicate that the statement serves a future goal of apprehending and prosecuting a criminal offender, whereas a non-testimonial statement is primarily relevant to an imminent and ongoing emergency.

The teachers and social workers did questioned the children both to determine the cause of their injuries and to identify their abusers in order to prevent them from causing the children more harm. In other words, the reporters were acting out of their statutory reporting duties when they questioned the children about their injuries. They did not question the children in order to provide emergency medical attention, and the children neither needed nor requested medical attention. Therefore, since the children made their statements in response to the repeated questioning of the mandated reporters acting as agents of law enforcement, the statements were testimonial.

To date, the U.S. Supreme Court has not determined whether the Confrontation Clause applies to statements made to non-law enforcement. To avoid infringing on the Supreme Court's federal constitutional law jurisdiction, the Ohio Supreme Court interpreted the state legislation on mandatory reporting broadly so as to find mandatory reporters to be agents of law enforcement. By doing so, the Ohio court was able to apply Confrontation Clause review - which is applicable to only law enforcement personnel - to mandatory reporters as well. If the U.S. Supreme Court chooses to hear arguments in this case, defense attorneys will expect the Court's decision to substantially impact a defendant's Sixth Amendment rights, and possibly trigger changes in mandatory reporting legislation all across the country.

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Judge's Decision in Etan Patz Case Highlights the Significance of False Confessions

November 28, 2014,

A recent decision in New York has highlighted the role of false confessions in a case outcome. New York judge, Maxwell Wiley, has ruled a confession admissible despite the defendant's low IQ and the lengthy duration of the interrogation process.

The Confession
Pedro Hernandez, who was 19 at the time, was accused of luring and killing 6-year old Etan Patz in a New York City case that occurred 33 years ago. Patz was on his way to school bus stop when he was allegedly lured into the basement of a convenience store and choked to death; his body disposed of in the trash. Although Patz' body was never found, Hernandez confessed to the murder when he was brought in for questioning back in May 2012.

Over 2 days, Hernandez was subjected to a 7 ½ hour police interrogation, a 20-minute video statement after the interrogation and another statement at the district attorney's office the following morning. According to a CNN report, Hernandez claimed he "did a bad thing and killed a boy in New York". It is not clear whether Hernandez was ever interviewed in the initial case. Hernandez had no prior criminal record and his residential neighbors spoke highly of his character to authorities.

The Judge's Decision
Hernandez's attorney argued that Hernandez's low IQ- which ranges borderline-mild retardation- combined with his diagnosis of schizophrenia, makes Hernandez's confession unreliable and therefore inadmissible.

Wiley cited two experts who had both met with Hernandez and testified to his competence. He stated that Hernandez's ability to acknowledge and waiver his Miranda rights is indicative of his overall understanding of the case. Therefore, Hernandez's diagnosis of schizophrenia and low IQ are not enough to dismiss the confession. This means that the confession will be presented during trial and the jury will have to decide for themselves whether Hernandez's statements are reliable or not, given the circumstances.

The Significance for Defense Attorneys
Once police obtain an admission of guilt, it significantly increases the chances of the prosecution securing a conviction at trial. They are a powerful type of evidence at trial and are often enough to persuade the jury to convict, which is why a motion to suppress a confession should be made when necessary.

It is important for all criminal defense attorneys to understand false confessions, as they are not limited to homicide cases. According to the Innocence Project, 30% of all DNA exonerations involve cases with false confessions from a defendant.

Lengthy interrogations, sleep deprivation and denial of medical attention and water are all techniques in which police officers may attempt to obtain a confession while holding a defendant in custody.

It is difficult to understand why anyone would confess to something he or she is not responsible for, so defense attorneys can educate the jury about the possibility to decrease the persuading value of a false or misleading statement.

Should I testify at my DUI Trial?

November 24, 2014,

The two most difficult decisions for any Massachusetts OUI Attorney are typically:

  • Should the client testify;
  • And should we elect a bench or jury trial.

In this Blog, I will discuss the decision whether or not to testify at trial. When preparing for trial, a client will have some piece of evidence they want to get in; either about the weather, what they were wearing or contesting something that the officer said at trial is not true. If the client does not wish to testify, and there is no other witness to contest or disputes any of these points, than the jury will not hear this evidence.

One of the calculations in determining whether to testify is whether the evidence that you want to dispute from your testimony is more important than the additional evidence that the prosecution may gain from your testimony. For Example, if you told an officer that you had four beers, and nothing else, your testifying would bring out the following facts:

1. When you had those beers
2. Over what period of time
3. And the District Attorney would ask if it was really four, could it have been more.

If you had those beers over a short time period, it may be more harmful to the case to testify even if that means that they only way to challenge other statements of the officer is by minimizing it during cross examination. When your attorney cross examines the police officer, it is an opportunity to tell your story through the arresting officer. While it will not have the same effectiveness as if you testified, in many cases it can bring out your story sufficiently to dispute a point made by the officer.

Under the Fifth Amendment to the Constitution, no individual can be compelled to testify at a criminal trial. In fact, on request of the defense, the judge will instruct the jury that it can draw no adverse inference from the failure of the defendant to testify during the trial.

In most of the cases that I take to trial, the defendant will not testify at trial. While some attorneys call their clients more frequently, my belief is that often the best decision is to remain silent and hold the Government to their high burden of proof, of beyond a reasonable doubt. However, the client always has the right to insist on testifying even against the advice of their lawyer because it is such an important decision in the case.

Fourth Amendment challenge to breath test refusal statute rejected by Appellate Court

November 14, 2014,

Most drivers don't realize that every state requires a driver suspected of drunk driving submit to a blood-alcohol test or face mandatory license suspension. This requirement is outlined in "implied-consent statutes." Although the U.S. Supreme Court has partially addressed the constitutionality of these statutes, a recent defendant in Illinois unsuccessfully appealed with the state Appellate Court challenging the constitutionality of such statutes under the Fourth Amendment.

The Arrest
The case of the People of Illinois v. Gaede involved a defendant who was arrested for drunk driving associated with a hit-and-run incident. The defendant was operating a motorcycle when he was stopped by an officer responding to reports of a hit-and-run. After failing field sobriety tests, the defendant was arrested for an OUI and transported to the county jail where he was read his rights and warnings. The defendant then chose to refuse the required chemical breath test, and as a result, his license was immediately suspended. The jury found the defendant guilty of the OUI, and the defendant appealed.

Defendant's Appeal
The defendant's argument on appeal consisted of two attacks on the state's implied consent statute:


  1. First, a blood-alcohol test is an unreasonable search and seizure under the Fourth Amendment, and so requires that officers obtain a search warrant before measuring the blood alcohol content without the defendant's consent; and

  2. Since the state's implied consent statute requires that defendants submit to blood alcohol or otherwise be penalized, the statute effectively violates the Fourth Amendment on its face since the defendant would punished for exercising his right to privacy in his body and its contents.

Court's Response
The defendant's argument that the implied consent statute is facially unconstitutional was rejected by the Appellate Court of Illinois for two main reasons:


  1. The defendant does not have grounds to argue that the statute is facially unconstitutional under the Fourth Amendment since he not only was permitted to, but did in fact, withdraw his consent to the blood alcohol test; and

  2. The state's heavy interest in law enforcement and preserving public safety outweighs the defendant's right to privacy under the Fourth Amendment, and so justifies the state's intrusion under the implied consent statute.

With regard to the court's first conclusion, the court found that the defendant was given an opportunity to refuse the blood alcohol test, and did choose to withdraw his consent to it after his arrest. As a result, no test was ever administered and so the defendant's Fourth Amendment rights could not have been violated. And since a facial constitutional challenge against the statute requires that there be no possible way for the statute to not violate the Fourth Amendment, the defendant's argument here fails.

The second conclusion relies heavily on earlier U.S. Supreme Court case law that addresses blood alcohol tests. Although the Supreme Court did previously conclude that a blood alcohol test is a "search" within the Fourth Amendment, that does not necessarily mean that it is always an "unreasonable search" requiring a warrant. Under the cases of Missouri v. McNeely (133 S.Ct. 1552 (2013)), Schmerber v. California (384 U.S. 757 (1966)), and Skinner v. Ry. Labor Executives' Ass'n (489 U.S. 602 (1989)), a warrantless blood alcohol test is permissible if the delay in procuring a warrant would result in the destruction of evidence critical to the state's interest in law enforcement. In an OUI context, the relevant evidence is the alcohol in the defendant's body, which naturally dissipates to an unmeasurable size after a certain period of time, leaving the prosecution's case without persuasive evidence. The test, under the Supreme Court cases requires that courts consider the totality of the circumstances.

Every state has adopted some form of the "implied consent" statute, requiring drivers to agree to submit to blood-alcohol tests as a condition of licensure. In Massachusetts, every driver agrees to this condition when he signs the paperwork at the RMV to receive his state license. If a driver refuses to consent, the RMV automatically imposes a license suspension, rendering the driver incapable of commuting to work until the case is favorably resolved. Mass. Gen. Laws ch. 90, § 24( I)( f)( I) (2007). Because OUI charges have such drastic consequences that immediately take effect, it is critical that a defendant critically retain an experienced defense attorney who will be able to persuade the prosecutor to reduce the penalties or otherwise obtain a "hardship" license for the defendant.

ACLU Petition for Improved Response to Annie Dookhan drug lab cases

November 10, 2014,

Surpreme Judicial Court Justice, Associate Justice Margot Botsford, has requested that state's highest court dismiss thousands of the drug convictions that Annie Dookhan had handled evidence for. Based on a petition filed by the American Civil Liberties Union (ACLU), Botsford submitted a five-page report, in which she also describes the need for a more 'systematic approach' to the convicted cases tied to Dookhan. Supported by the ACLU, Botsford believes the Dookhan case needs to be taken more seriously, and that the issue of mishandled evidence is more profound than the court believes.

Background
Annie Dookhan was arrested and charged in 2012 with a total of 27 charges- including counts of obstruction of justice, tampering with evidence and perjury. In November 2013, the chemist pleaded guilty and was sentenced to 3-5 years jail time. Responsible for over 40,000 cases during her 10 year career at the Boston lab, Massachusets govenor Deval Patrick closed the entire lab and ordered prosecutors to reevaluate cases tied to her work.

The ACLU Petition
In the petition filed by the ACLU, the union suggests that the state failed in serving the convicted defendants involved cases tied to Dookhan's work. The ACLU argues that the state should increase their effort in alerting defendants about both the possibility of tainted evidence and the possibility of a new hearing.

If the petition goes fourth, there are a couple of things that would happen:
• The court would dismiss all cases linked to Dookhan and prosecutors would be given 90 days to decide whether they want to re-prosecute.
• If prosecutors wish to re-prosecute, they are disallowed from seeking harsher sentences than had originally been given.
• Although every case tied to Dookhan will be considered as 'suspicious', defendants are responsible for proving that they would not have pleaded guilty if they were aware that their evidence could have been mishandled.

According to the Boston Globe will hear the petition, Suffolk District Attorney Daniel Conley believes the court is likely to reject the request, describing it as "transparent, self-serving demands to exploit a crisis that is finally under control".

The criminal investigation in the Dookhan matter highlights the role of mishandled evidence in criminal cases, and the profound impact that it has on the outcome of a case. Botsford is essentially accusing the court of disserving convicted defendants, denying them of full access to justice. If a case is based on tainted evidence, it can damage the entire outcome of the case. Scientific evidence is highly valued by the court and can often sway a verdict, misinforming expert witnesses, misleading the jury and disheartening an innocent defendant.

As a Massachusetts Criminal Defense Lawyer, it is clear that the petition should be allowed. Given the criminal activity in the State lab, the evidence that lead to convictions is unreliable and cannot support the standard required for a criminal conviction of proof beyond a reasonable doubt. Had the Commonwealth had video cameras at the crime lab, perhaps the extent of the criminal activity could have been known. But with no way to limit the scope of the contamination of evidence the Court should acknowledge there is only one proper solution to vacate the convictions.

Tips for being a Top DUI Trial Lawyer

November 3, 2014,


One of the most important qualities of a successful trial attorney is the ability to present the client's case in a manner that enables jurors to adopt the attorney's arguments as the truth. But doing so requires more than mere persuasion. According to a recent article by prominent trial attorney Paul Luvera, clever and persuasive arguments may in fact be counterintuitive if the attorney is not authentic - not authentic about the weaknesses in his case, and not authentic about his own weaknesses as well.

Authenticity as the Key to Acceptance

Attorney Luvera, who was inducted into the American Trial Attorneys Hall of Fame, refers to the research of Professor Brene Brown at the University of Houston on how relationships are formed, and the role of vulnerability, courage, worthiness and shame on people's ability to relate to others. Professor Brown states that one of the most important keys to a successful relationship is the ability of one individual to relate to another, which is only possible if each party is able to identify with another's beliefs, values, characteristics, or qualities. But it is impossible to truly accept and identify with another without each party being honest with the other and themselves.

According to Prof. Brown's research, the average person has the instinctual ability to detect when someone is guarded or is not being honest about himself. When inauthenticity is detected, it leads people away from trusting one another, and so destroys any opportunity for one to relate to another. Prof. Brown argues that people are inauthentic because of their own insecurities about themselves - they are unwilling to clearly expose themselves to others because they are afraid that their imperfections will lead to rejection or pain. That is why Prof. Brown asserts that it takes courage - courage to accept oneself for who he is with all his imperfections. It is only when one can accept himself with all his imperfections that he allows himself to be who he truly is, and so to lower the barriers thereby allowing others to relate to him.

Authenticity and Trial Practice
Prof. Brown's research is critical to the success of any trial attorney. In a jury trial, the verdict often hinges on the jury's acceptance of the evidence and arguments presented by the attorneys, which is heavily influenced by the jury's impression of each trial attorney. As Attorney Luvera notes, the panel of 6 or 12 jurors spend hours, if not days, observing and attending to the language, social cues, and body language of the attorneys arguing before them. If the jury detects that the attorney is guarded, not forthcoming about certain facts, and insecure about the case, the jury will likely form a negative impression of the attorney, failing to relate to him, and so unwilling to accept him.

The solution is for the attorney to be authentic - "A trial lawyer who projects to the jury an unguarded and authentic person coupled with honesty and truthfulness about his case is someone who is trusted," says Attorney Luvera. And authenticity will require both the attorney and the case to be more vulnerable than they otherwise would be; the attorney will need to be honest about his imperfections as well as the imperfections of the case. As Attorney Luvera warns: "Jurors can be entertained by the illusion of perfection for only so long before they begin to question the performer's authenticity - and that's the end of the show.

The lawyer must strike a balance between completely exposing the weaknesses of his client's case and falsely presenting his case as faultless and foolproof. The lawyer's ethical obligation is to the client first and foremost, and so must present both himself and the case in the light that would be most favorable to the client. However, the lawyer should not attempt to pass himself or the case for something that is not true - there is no such thing as a perfect lawyer or a perfect case. And jurors are certainly wise enough to see through the false illusion of perfection. A successful trial attorney is one that can be honest in presenting his case, while persuading jurors to accept the case for its strengths and regardless of its weaknesses. The jury doesn't need a perfect case, but it does need a case and an attorney that it can trust and accept, for both their strengths and their imperfections.

Can Medical Reports be used in a Massachusetts OUI Trial?

November 1, 2014,

An OUI trial in Massachusetts is governed by rules and laws that allow and prohibit certain statements, reports, and objects from admission into evidence. Once a statement or item is admitted into evidence, it may be considered by the judge or jury for the purposes of reaching a verdict. In Com. v. Schutte, the MA Court of Appeals considered the admissibility of a doctor's report which corroborated the defendant's own testimony that he was suffering from an impairment that caused him to fail his sobriety tests.

The defendant in this case was pulled over after the officer observed him driving erratically on the road. The officer testified that he had smelt alcohol, and asked the defendant whether he had been drinking. The defendant replied that he a couple of bears. The officer then decided to conduct field sobriety tests.

The officer administered the alphabet test, and then asked the defendant to perform the one-legged stand and the walk-and-pivot test. The defendant passed the alphabet test, but before taking the remaining two tests, informed the officer that he had thirteen ear operations which effect his equilibrium. Despite this admission, the officer allowed the defendant to take the remaining two tests - and the defendant lost his balance in both.

At trial, the defendant testified that he suffered from an impairment that effected his balance and equilibrium, and offered medical records from his hospital and treating physicians that documented his ear surgeries. The defendant then sought to offer a report by his physician stating that the defendant had degenerated balance which is associated with his ear surgeries. The prosecutor, however, challenged admission of that evidence and the trial judge prohibited it from admission. The prosecutor subsequently relied on the fact that the defendant failed the walk and one-legged stand tests to persuade the jury to convict the defendant. The defendant appealed.

The Appeals Court disagreed with the trial judge's treatment of this report, and reversed the conviction on the grounds that the medical reports were admissible under a state statute (G.L. 233 § 79G). According to the Appeals Court, a written report of an examining physician that speaks to a disability or incapacity that proximately results form a condition that the physician observed is admissible. The court found that the report was drafted by a physician who treated the defendant, and that it stated the cause of the defendant's imbalance. Furthermore, the defense attorney took the proper steps to inform the court and the prosecutor ahead of time of his intent to introduce this evidence. Under these circumstances, the evidence is admissible, even if the report was written in preparation for trial.

Since the prosecutor relied substantially on the lack of evidence that speaks directly to the defendant's imbalance in order to convict, the Appeals Court also ruled that the conviction should be set aside. The jury likely relied on the officer's testimony that the defendant did not pass his sobriety tests when it returned a guilty verdict. But the officer's conclusion was highly misleading, given the fact that the defendant would have failed the tests regardless of whether he was intoxicated (because of his balance impairment). And since the trial judge prohibited the doctor's report which evidenced the defendant's impairment, the defendant was deprived a critical opportunity to bolster his defense theory that his loss of balance was not a result of intoxication but rather a medical impairment.

All trials are heavily regulated by rules and statutes, which govern the types of questions and arguments raised in court, as well as the kind of evidence offered by either party. Many of these rules are highly technical, and can mean the difference between a guilty and innocent verdict. This case is an excellent example of the need for diligent and experienced legal representation in any criminal case, since failure to adhere and properly apply these rules may result not only in a conviction but also sanctions against the negligent attorney.

John Goodman testifies in the retrial of his OUI Manslaughter trial

October 25, 2014,

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

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

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

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

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

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

October 20, 2014,


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

October 15, 2014,

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


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

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

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


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


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

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