Boston Criminal Lawyers Blog

The Massachusetts Supreme Judicial Court recently decided a case involving a challenge to the constitutionality of a statute that criminalizes the Improper Storage of a Firearm.

G.L. c. 140, section 131L(a), which criminalizes the improper storage of a firearm that is not within the immediate control of the owner. By law, a firearm that is not within the immediate control of its owner must either be kept in a locked container equipped with a trigger lock.

In the case of Commonwealth v. John McGowan, the defendant was a licensed to carry firearms. He kept the firearm, however, loaded in his bedside table.

One evening, he got into an argument with his roommate, who took the firearm and tossed it outside in the bushes. The defendant called 911 and when police responded, they found the gun in the bushes. He was later charged with Improper Storage of a Firearm.

The defendant moved to dismiss the charges on the basis that the statute was unconstitutional as a result of the United States Supreme Court's decisions in District of Columbia v. Heller and McDonald v. Chicago.

The United States Supreme Court in Heller held that the Second Amendment to the United States Constitution protects the right of citizens to possess a handgun in the home for the purpose of self-defense. In so doing, the court ruled that the District of Columbia's ban on handguns was unconstitutional.

In McDonald v. Chicago, the United States Supreme Court held that the Second Amendment right, as explained in Heller, was incorporated into the Fourteenth Amendment and was therefore applicable to the states.

In a previous case of Commonwealth v. Runyan, the Massachusetts Supreme Judicial Court held that although a complete ban on the possession of all firearms would not be constitutional, Massachusetts is legitimately able to limit that right by requiring that all firearms that are not in the immediate possession or control of the owner or user be properly stored.

The question then became, does requiring that a firearm within the home be properly stored or locked infringe upon a citizens' constitutional right of self-defense?

The Massachusetts Supreme Judicial Court said no. Although a person's right to exercise self-defense might be delayed as a result of having the firearm in a locked container or equipped with a trigger lock, the requirement, whose purpose is to prevent accidents, does not invalidate the storage requirements.

The court explained that because the requirement that a firearm not within the immediate control of the owner/user be locked or equipped with a trigger lock is designed to prevent unauthorized access to the firearm, the statute is consistent with the right to bear arms of the Second Amendment in self-defense in one's home.

Continue reading "Massachusetts Law on Improper Storage of a Firearm and the Second Amendment" »

The Massachusetts Supreme Judicial Court recently considered whether the admission of a 911 call at trial was proper where the caller did not testify at trial, and whether admitting the call violated that defendant's constitution right of confrontation.

In this case, the defendant was charged with two counts of Assault & Battery, and prior to trial, moved to preclude the prosecutor from admitting the 911 call, in which the caller identified his as the perpetrator, and alleging that he had just beaten her.

By way of background, in the case of Crawford v. Washington, the United States Supreme Court ruled that the Confrontation Clause of the Sixth Amendment barred the admission of statements of witness who did not appear at trial [unless they were unavailable to testify and where the defendant had had a previous opportunity to cross-examine them].

However, in Davis v. Washington, the United States Supreme Court, defining what constitutes a 'testimonial statement', ruled that statements are not testimonial if they were made under circumstances to enable police assistance to an ongoing emergency. In contrast, statements are testimonial when their primary purpose is to establish or prove events relevant to a criminal prosecution.

In this case, the Massachusetts Supreme Judicial Court ruled that the 911 caller's statements were made in the course of an 'ongoing emergency', and that therefore her statements was non-testimonial in nature; and not, in other words, under circumstances to prove the facts for a criminal prosecution.

The prosecutor, therefore, was permitted to introduce the 911 call, even though the caller did not testify at trial, and according to the Massachusetts Supreme Judicial Court, this did not violate the defendant's constitutional Right of Confrontation under the Sixth Amendment.

Continue reading "Massachusetts Supreme Court Rules on Admission of 911 Call Where Caller Doesn't Testify at Trial" »

The Massachusetts Supreme Judicial Court recently decided the case of John Doe vs. Police Commissioner of Boston, ruling on the issue of whether a 2006 state law barring sex offenders from living in nursing homes or similar long term care facilities was constitutional. The Court ruled that it was not.

By way of background, the 2006 law passed by the Massachusetts state legislature barred Level 3 Sex Offenders from living in nursing homes, infirmaries or other homes for the elderly or developmentally disabled. Sex offenders who lived in such facilities in violation of the law were then punished with imprisonment, ranging from 30 days up to 5 years for subsequent violations.

In this case, "John Doe" had been previously convicted of Massachusetts Sex Crimes, and the Sex Offender Registry Board argued that, even at his age of 65, his criminal history and suggested a "high risk of re-offense and high degree of danger."

In the case of John Doe vs. Police Commissioner of Boston, the plaintiff in that case was a Level 3 Sex Offender who, had he been deprived the opportunity to reside in a nursing home or similar facility, would have ended up homeless.

In declaring this law unconstitutional, the Massachusetts Supreme Court reasoned that the law "presumes that all members of a class of sex offenders are dangerous to every community of rest home residents...[and] affords no opportunity for [the sex offender] to demonstrate that he represents no or a minimal danger to the community the law is intended to protect and makes no provision for the necessary balancing of the plaintiffs interest in protecting vulnerable elders from sexual assault."

Now, the Massachusetts Supreme Court has ruled, sex offenders should be provided a hearing to rebut the presumption that he/she poses no or minimal risk to the community; and if denied the opportunity to reside in such a permanent facility, whether the person will likely become homeless and expose himself to harm.

Continue reading "Massachusetts Sex Offenders Get Favorable Court Ruling" »

In the recent case of Commonwealth v. Robert McGillivary, the Massachusetts Supreme Court addressed the legal issue as to whether an intoxicated driver, who only puts the key in the vehicle's ignition without turning the car on, can be found guilty of Drunk Driving in Massachusetts.

By way of background, Robert McGillivary was convicted after trial of Operating Under the Influence of Alcohol. At trial, the evidence presented by the prosecutor was simply that he was found in the passenger's seat of the car and had turned the ignition key once to activate the car's power - but not further to turn the car on. At some point, the defendant testified that he had moved from the passenger seat to the driver's seat, but did not recall ever putting the keys in the ignition. He ultimately found by the police slumped over the steering wheel. At his trial, there was absolutely no evidence that he actually drove the car at all.

McGillivary was convicted after trial and he appealed his conviction arguing that simply turning the car's power on was not "operation" for purposes of the crime of Operating Under the Influence of Alcohol or Drugs.

The Massachusetts Supreme Court, however, said that it was...

In reaching its decision, the court relied on previous Massachusetts caselaw that defined "operation" as anytime a person intentionally does an act or makes use of any mechanical or electrical agency which alone or in sequence sets in motion the motive power of that vehicle.

In following that definition, the court explained that turning the key in the ignition to the "on" position could therefore constitute a part of a sequence that would set the vehicle's engine in motion, thereby constituting "operation."

In my reading of this opinion, there is still an argument to be made that simply putting the keys in the ignition, without turning or activating the electrical power, does not constitute "operation" for purposes of Massachusetts Drunk Driving Laws.

The lesson learned here then, ladies and gentlemen, is that if you are in any way intoxicated and pass out in the car, make sure the keys are not in the ignition...

Continue reading "Massachusetts Supreme Court Rules Simply Putting Key In Ignition Enough for DUI / Drunk Driving" »

In reversing the Gun Crimes convictions of two men, the Massachusetts Supreme Judicial Court ruled that police officers can no longer frisk someone during a routine encounter unless they have 'reasonable suspicion' to believe the person is involved in criminal activity and is armed and dangerous.

In the case of Commonwealth v. Jamal Martin, that defendant had been convicted of Carrying a Firearm Without a License, Carrying a Loaded Firearm, and Assault & Battery on a Police Officer. The incident occurred on October 8, 2006, when, at 10:30 a.m., Boston Police Officers were patrolling a 'high crime area' in which 'numerous shootings' had occurred and looking for a specific juvenile to execute an arrest warrant. During their patrol, they observed a young man wearing a sweatshirt with the hood up around his face and walking in the opposite direction from which the police were traveling. Although the police could not see his face, they 'thought' that this person might have an outstanding default warrant...[how does that make sense when they couldn't see his face?]

The police turned their cruiser around and engaged the young man, a teenager, in conversation. Although the police quickly realized this young man was not the person they were looking for, and simply because the young man refused to continue to speak with the police, they proceeded to ask him if he had any weapons. Despite that Martin responded that he did not, the police nonetheless continued to frisk them "for their safety." The frisk revealed a loaded gun.

In reversing Martin's conviction, the Massachusetts Supreme Judicial Court held that when an individual is stopped and searched, the police conduct must satisfy two conditions.

1. The investigatory stop must be lawful. In a street encounter, that requirement is met with the police officer reasonably suspects that the person apprehended is committing or has committed a crime.


2. To then engage the person in a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.

The police can't just go up to people, without legitimate reason, and just detain and search them...In my opinion, the Massachusetts Supreme Court's recent decision serves as a message to law enforcement officers to pull the reigns a bit on questionable police practices.

Continue reading "Massachusetts Supreme Court Rules Police Need 'Reasonable Suspicion' to Conduct Pat Frisks" »

United States District Court Judge Ricardo M. Urbinia, in the Federal District Court of Columbia, recently applied the Supreme Court's decision in District of Columbia v. Heller which created a constitutional right to have a gun.

In Heller, the United States Supreme Court rejected a government's ban on handguns along with a separate requirement that guns in someones home be kept locked or disassembled. The Heller case marked the first time the U.S. Supreme Court interpreted the Second Amendment as guaranteeing the right to have a firearm. The Supreme Court stated that "[a] ban on handgun possession in the home violate[d] the Second Amendment, as its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense."

The Supreme Court did go on to say, however, that some form of gun control or regulation could still be valid despite the Second Amendment Right to Bear Arms.

The District of Columbia's new gun laws, which were upheld by Judge Urbina in light of the Heller ruling consist of:

1. All guns must be registered.


2. An assault weapons ban.


3. A ban of large capacity magazines.

In Massachusetts, Gun Control Licenses vary, depending on the city in which you apply. Generally, to apply for either a Class A or Class B Firearms Identification Card, you must submit a written application; show proof of having attended a Firearms Safety Course confirming your having been educated with the proper use and safety of firearms; and submit to a 'test' by the local police department demonstrating your use of a firearm.

Continue reading "2nd Amendment Gun Laws Upheld by District Court" »

If you have been following this blog, you have seen several recent posts about criminal convictions being reversed as a result of the Melendez-Diaz and Crawford decisions. These decisions have dramatically changed the landscape of permissible 'testimonial' evidence against a defendant at trial, but the scope of these decisions is limited.

In the recent case of Commonwealth v. Dale McMullin, the Massachusetts Supreme Judicial Court pulled the reigns, so to speak, on the scope of Melendez-Diaz. The criminal defendant in this case was charged with several drunk driving related offenses, including Operating of a Motor Vehicle While Under the Influence of Liquor, Fourth Offense (M.G.L. c. 90, section 24(1)(a)(1); Operating After Suspension, Second Offense (M.G.L. c. 90, section 23); and Failure to Stop for a Police Officer (M.G.L. c. 90, section 25). After his criminal conviction, the defendant appealed challenging the admissibility, competency and sufficiency of the public records used to establish his prior convictions.

Although the defendant acknowledged that the admissibility of Registry of Motor Vehicle records was permitted by Commonwealth v. Maloney, he argued that the Maloney decision was based on the Confrontation Clause analysis in Commonwealth v. Verde, which was later overturned by Melendez-Diaz.

In rejecting the defendant's argument, the Massachusetts Supreme Court explained that Melendez-Diaz explicitly acknowledged that a clerk's affidavit authenticating an official record is not 'testimonial' for purposes of the Confrontation Clause. Rather, business and public records are generally admissible and not confrontational because they have been created for the administration of an entity's affairs and not for the purposes of proving some fact at trial.

Continue reading "Court Documents Admitted in Drunk Driving Trial Not Violative of Sixth Amendment's Right to Confrontation" »

In the recent case of Commonwealth v. Jorge Vasquez, Massachusetts Supreme Judicial Court recently overturned the conviction of the defendant, who had been tried and convicted of Possession of Cocaine, as well as Distribution of Cocaine. Despite his criminal defense lawyer's failing to object at trial to the admission of the Massachusetts State Police Crime Laboratory Certificates of Drug Analysis, the Supreme Judicial Court still reversed his convictions as a result of his being deprive of his Right to Confrontation under the Sixth Amendment to the United States Constitution.

At his criminal trial, the prosecutor did not call the Massachusetts State Police Crime Analyst at trial, but simply admitted the 'Drug Certificates'. The Drug Certificates were signed by the analyst, but the court found a Sixth Amendment violation because the defendant had no opportunity to cross-examine the drug analyst. Although this was the preferred practice not too long ago, in the recent case of Melendez-Diaz, the United States Supreme Court ruled that drug certificates are testimonial in nature whose admission into evidence against a criminal defendant triggers the protections of the Sixth Amendment Right to Confrontation.

The Massachusetts Supreme Court further ruled that, without the admission of the Drug Certificates or testimony certifying the seized substances were, in fact, cocaine, the defendant's convictions on the charges could not stand and must be reversed. Although there was evidence that the 'substances' were "consistent with cocaine" and testimony from police officers relating to the likeness of the substances with cocaine, this was simply circumstantial evidence. Although a conviction can stand on only circumstantial evidence, the convictions in this case had to be reversed because the court could not say whether a jury would still have convicted had the improperly introduced Drug Certificates not been introduced.

Notably, that the defendant's criminal defense attorney did not object at trial to the admission of the Drug Certificate was not held against him during at his appeal of his convictions. The Supreme Court explained that, because an objection to the admission of the Drug Certificate would have been futile, the rationale for denying the defendant review on this issue doesn't apply.

Continue reading "Drug Conviction Overturned for Constitutional Violation" »

In the case of Commonwealth v. Jason Loadholt, the Massachusetts Supreme Court ruled on whether a defendant's criminal prosecution for Unlawful Possession of a Firearm and Ammunition is violative of a person's 'right to bear arms' as guaranteed by the Second Amendment to the United States Constitution.

In his appeal to the SJC for his Gun/Firearms Charges, the defendant claimed that Massachusetts could not prosecute him for the various gun and ammunitions charges for not first having obtained a Firearms Identification Card because the United States Constitution guaranteed him, via the Second Amendment, his 'Right to Bear Arms'.

In rejecting the defendant's Constitutional claims in his appeal, the Massachusetts Supreme Judicial Court reasoned, citing United States v. Cruikshank, that the Second Amendment "does not by its own force apply to anyone other than the Federal Government." Rather, the Second Amendment means that it shall not be infringed any further by Congress, as opposed to the States. The Court explained that the Second Amendment "is one of the amendments that has no other effect than to restrict the powers of the national government."

At the end of the day, the Massachusetts Supreme Court ruled that the Second Amendment guarantees only an individuals right to keep and bear arms for defensive purposes. Without explicit saying as much, the Court seems to have upheld the requirement of obtaining a Firearms Identification Card for purposes of firearms and ammunition possession.

Continue reading "Massachusetts Supreme Court Rejects Challenge for Gun Rights" »

In a stunning decision to many in the criminal defense bar, the Massachusetts Supreme Judicial court recently ruled that police officers are not required to give a criminal suspect his Miranda warnings if he has had the opportunity to consult with his attorney and that lawyer is present during police questioning. In a 4-3 decision in the case of Commonwealth v. Wally Jacques Simon, the Massachusetts Supreme Court's majority held that a criminal suspect's protections on the issue of Miranda warnings are safeguarded if the lawyer is present and can stop questioning at any time. Unbelievable...

The case involved a Winchester, Massachusetts, home invasion that led to one man being murdered, and his brother being seriously wounded. The brother was able to call 911 and give a description of the alleged perpetrator. After obtaining the man's identity and a few days after the murder, Massachusetts State Police Officers located and followed the criminal suspect to a parking lot in Medford, which ended up being outside his attorney's office. The defendant was allowed to go into his attorney's office and speak with him, and was then questioned by police, with his attorney present, in the lawyer's conference room.

In his Interlocutory Appeal, the defendant claimed that, because the police never provided him with his Miranda Warnings, any statements he made should be suppressed or excluded from the criminal trial against him. In ruling that the police were not required to specifically provide the criminal defendant with his Miranda Warnings prior to being questioned in this case, the Massachusetts Supreme Judicial Court held that Miranda was not necessary because the defendant had an opportunity to consult with his attorney before questioning, and the attorney was present during the questioning.

In reaching its decision, the Court relied on language in the United States Supreme Court's decision in Miranda v. Arizona, which stated that there can be "other fully effective means...to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it."

The Massachusetts Supreme Court's decision in this case inexplicably now puts the burden on the criminal defendant because it reasoned that the presence of an attorney during interrogation and the opportunity to consult with his lawyer beforehand is an adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege. In other words, with a lawyer is present, the attorney can detect and describe even the most subtle coercive or suggestive influences, and thereby terminate the interrogation.

Although the Court emphasized that there are many other jurisdictions around the country that have concluded that Miranda warnings are not necessary when an attorney is present during questioning and that criminal suspect has had an opportunity to consult with him, Massachusetts has historically and proudly offered greater Constitutional protections under Article 12 of the Massachusetts Declaration of Rights than does the 5th Amendment to the United States Constitution.

There are so many reasons why the Massachusetts Supreme Court made the wrong decision in this case and opened up a "Pandora's Box" for future Constitutional violations on the issue of Miranda warnings...

Continue reading "Police Not Required to Give Miranda if Suspect's Lawyer is Present During Questioning!?" »

The Massachusetts Supreme Judicial Court's recent decision of Commonwealth v. Porter P., a juvenile, focused on whether a person temporarily staying in room in a homeless transitional center is entitled to a 'reasonable expectation of privacy' against unlawful searches and searches. The Massachusetts Supreme Judicial Court, in a 5-2 decision, ruled that they do!

By way of background, the juvenile defendant and his mother had moved into a room at the Roxbury Multi-Service Center Family House Shelter in March 2006, which provides temporary housing for homeless families and assists them towards securing a permanent home. A few months later, the shelter's director heard rumors that the juvenile defendant had a gun and then contacted the Boston Police Department. The next morning, five Boston Police Officers arrived at the shelter, and with the permission from the Roxbury shelter's directors, searched the juvenile's room and found a .40 caliber Glock firearm. The juvenile was immediately arrested for Unlawful Possession of a Firearm; Unlawful Possession of Ammunition; and Delinquency.

The Massachusetts Supreme Judicial Court, in ruling for the juvenile defendant, found that

"the room that the juvenile and his mother shared at the shelter was a transitional living space, but it was nonetheless their home...".

Justice Ralph Gants, the author of the Massachusetts Supreme Court's decision in this case, ruled that even the shelter's director did not have the 'actual authority' to consent to the police entry into the room to search for a gun. Justice Gants explained that the Roxbury shelter's director was not a co-inhabitant of the room, and although the shelter's guidelines permitted them to call the police, the guidelines did not expressly authorize the police to enter a resident's room and to search for evidence of a crime without consent or a warrant.

Continue reading "Massachusetts Supreme Court Rules Homeless Shelters Entitled to 4th Amendment Privacy Protections" »

The Massachusetts Supreme Judicial Court recently reversed the conviction of a man who had been convicted in 2004 for the crime of Trafficking Cocaine of over 28 grams. In the case of Commonwealth v. Mario M. Perez, the Supreme Judicial Court reversed the jury's guilty finding on the grounds that the defendant's Sixth Amendment Right to Confrontation was violated by the introduction of the Certificate of Drug Analysis without the chemist's testimony.

The defendant's reversal for the crime of Trafficking follows the United States Supreme Court's decision in Crawford v. Washington, which essentially ruled that the Drug Certificates were testimonial evidence. At the time of this appeal, the United States Supreme Court had granted certiorari but not yet decided United States v. Melendez-Diaz, which now prevents the prosecutor from proving its case by way of ex-parte court affidavits and without the proponent being subject to cross-examination.

This case is particularly interesting because the District Attorney's Office attempted to convince the Massachusetts Supreme Court to adopt a broader rule of law that would allow them to bypass having to call a drug chemist at trial. Massachusetts prosecutors are trying hard to convince the Court to allow them to prove what a particular substance is through the use of 'police expert' testimony only. In this way, the prosecutors could attempt to prove the controlled substance at trial through their usual police witnesses and without having to bring in the chemist who tested the drugs.

In Commonwealth v. Perez, the Suffolk District Attorney's Office argued that a police officer who had experience with a particular drug, packaging, street-selling prices, and based on his experience, could then offer the required proof that a substance is a particular drug without having the chemist testify.

The Massachusetts Supreme Court said, no, but nice try...

Continue reading "Massachusetts Court Reverses Drug Conviction, Police 'Expert Testimony' Still Live Issue In Drug Cases" »

In a recent decision, the U.S. Supreme Court instituted a new rule when it comes to criminal law, police questioning and the safeguards surrounding the scope of Miranda. On February 24, 2010, the Supreme Court ruled that if a criminal suspect requests to speak with his lawyer, the police must stop their questioning and cannot restart interrogating him until 14 days has passed. This new rule, outlined in Maryland v. Shatzer narrows the Court's previous ruling on this issue.

In the 1981 case of Edwards v. Arizona, the Supreme Court established a clear rule to protect a criminal suspect who invokes his 5th Amendment right to an attorney against the pressures and coercion of police in the custodial interrogation setting. In short, the rule was that if a criminal suspect wants to speak with his lawyer, the police must stop their questioning and cannot restart their interrogation of him unless the suspect himself initiates the questioning on his own - otherwise the presumption would be that any subsequent waiver of Miranda would be the result of coercion. The Supreme Court's decision in Maryland v. Shatzer limits that rule, now permitting to the police to essentially ignore the criminal suspect's earlier request for a lawyer and reinitiate questioning after a period of 14 days if there had been a sufficient break in the custodial interrogation.

The Supreme Court's decision on this critical criminal law issue appears to provide the police a bright-line rule of what they are and are not permitted to do. One might agree that the police and law enforcement in general need to have a checklist of 'do's and dont's spelled out for them, otherwise we might invite them to engage in unconstitutional police practices...

Continue reading "Police Can Resume Interrogation Following Criminal Suspect's Request for Lawyer After 14 Days" »

The U.S. States Supreme Court recently ruled that a defendant's Constitutional Right (per the 6th Amendment) was violated when the court refused to allow his uncle from watching the jury voir dire process at his criminal trial. As a result the ruling, the man had his cocaine trafficking conviction overturned.

In general, because the public has a First Amendment Right to access the jury voir dire process, a criminal defendant also has a Sixth Amendment Right to a public trial. In other words, the Supreme Court essentially stated that it doesn't make sense for the public to have the right of access to public proceedings, but to then deny a defendant his right to to a public trial.

In this particular case, Presley v. Georgia, the criminal defendant's lawyer objected to the trial court from excluding the defendant's uncle from sitting in the same room with prospective jurors. The U.S. Supreme Court ruled that, in a criminal trial, the courts are obligated to accommodate the public access.

Continue reading "Criminal Defendants' Right to a Public Trial Extends to Jury Selection Process" »