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cell-phone-trackerThe law is ever-changing. Society changes. Ideologies change. And technology advances. It is often difficult for the court’s to keep up with changes in the world and implementing or amending laws that are fair or outdated. But this is particularly so when it comes to cell phone technology and how to balance or implement the appropriate legal safeguards so that our constitutional protections are balanced and protected in every aspect of life. In recent years, the Massachusetts courts have been at the forefront of novel and legal issues as it pertains to cell phone privacy protections.

Several years ago, Massachusetts appellate courts addressed the issue of whether a warrant is required for the police to obtain a person’s cell site location information, or “CSLI” (the data from which your cell phone connects to a cell phone tower when a call is made, thereby providing an approximate location of the device at the time of the call). The Massachusetts Supreme Court ruled that a warrant satisfying the standard of probable cause was required for the government to obtain CSLI data.

But what about real time data or “pinging” of one’s cell phone to obtain the precise location of a device? Continue reading →

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Although criminal defendants charged with 1st degree murder in Massachusetts do not have a right to bail, the Supreme Judicial Court recently ruled that a judge has discretion to afford them with a bail. In its decision in Vasquez v. Commonwealth, the SJC explained that bail had been granted in the court’s discretion in capital cases from early colonial times. This “common law” rule had not been changed or overruled by statute.

By way of background, the Massachusetts legislature rewrote the bail statute in 1971. In that amendment, c. 276, sec. 58 established a presumption of release on personal recognizance pending trial. That statute, however, specifically excludes persons charged with “an offense punishable by death”. That provision, however, was interpreted to mean that sec. 58 doesn’t apply to persons charged with murder in the first degree, even though the SJC, in 1981, ruled that the death penalty statute then in effect was unconstitutional. For that reason, sec. 58 does not preclude bail for a person charged with 1st degree murder and it is in the judge’s discretion whether or not grant it – despite that there is no “constitutional right” to be released on bail prior to trial.

With this backdrop, the SJC outlined what factors a judge should consider when a criminal defendant charged with 1st degree murder requests that he be afforded a bail. The factors or balancing test is similar to those that a judge would consider in granting bail to any other criminal defendant, including: the nature and circumstances of the allegations; the defendant’s family background, educational history, financial resources, and ties to the community. Other factors that might also be considered include the defendant’s prior criminal history and/or record of convictions; whether there is any history or record of defaults in court appearances; his character; and his mental condition. The SJC further noted that judge’s should also consider if the murder or other criminal offense charged involved any circumstances of domestic abuse or violation of a restraining order.

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In order for any criminal trial begins, a jury must be selected.  But how a jury is chosen why certain prospective jurors are excluded is not limitless. Generally, when jurors are selected from a pool (called the “venire”) they can be excluded “for cause” or because either the defendant’s attorney or the prosecutor exercised a “peremptory challenge.” A peremptory challenge is where one party excuses a prospective juror from being seated on the jury. The use of peremptory challenges, however, is not without its limits.

The Equal Protection Clause of the 14th Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights place limitations on the use of peremptory challenges. Generally, a party cannot exercise a peremptory challenge of a prospective juror if the reason is based by virtue of their membership in or their affiliation with particular defined groupings in the community, such as race, sex or religion.

When a party challenges the opponents use of a peremptory challenge, the judge must evaluate the objection based on a 3-step process:

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Oftentimes, when police are searching for a suspect of a crime, they will employ an identification procedure.  Identification procedures vary, and can include a photographic array; a lineup (as you might see on TV); or a one-on-one show up identification procedure.  Single-photograph identification procedures, akin to a “one-on-one show-up”, involve showing a witness one photograph or one person and asking if they are the person they believe to be the suspect of the crime.  One on one photo and single-photo identification procedures, however, are “generally disfavored” in Massachusetts. Continue reading →

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The Massachusetts Court of Appeals recently affirmed an order from the Superior Court holding a petitioner in contempt for refusing to abide by an order to unlock his iPhone following a request from a Middlesex County Grand Jury.

A grand jury hearing facts in an ongoing investigation in Middlesex County involving an alleged assault and battery on two children requested that the prosecutor seek an order from a Superior Court judge ordering a person to produce the PIN code and/or password for his iPhone.  A search warrant had issued out of the Lowell District Court authorizing a search of the phone, but the person refused to provide the PIN code. Following a hearing, a superior court judge entered an ordered detailing protocol how the petitioner would enter the PIN code so that the search warrant could be executed. This order also barred the prosecutor from introducing evidence against the petitioner’s “act of production” of providing the PIN code in any prosecution against him.

As a result, the person was held in contempt following his refusal to comply with the judge’s order and, thereafter, petitioned to the appeals court on the question of whether (a) he could be forced to provide the PIN/passcode to the iPhone; and (b) consequently, whether the contempt order was lawful. Continue reading →

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In a recent decision in Commonwealth v. Garvey, the Massachusetts Supreme Judicial Court agreed with the defendant that the habitual criminal statute required that the underlying convictions be based on separate incidents of criminal episodes. Because, in this case, the prosecutor failed to submit evidence to the grand jury that the prior criminal episodes arose from separate incidents, the supreme court affirmed the trial court’s dismissal of the habitual offender indictments. Continue reading →

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In the execution of a search warrant by Boston Police of a multi-family home, the Massachusetts Supreme Judicial Court upheld a superior court ruling that the seizure of a shotgun was improper. Clarifying the protections of the 4th Amendment to the United States Constitution, the SJC affirmed intrusion into the “curtilage” of a common area of the multi-family property intruded into a constitutionally protected area and required suppression.

The seizure, therefore, violated the warrant requirement of the Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights. Continue reading →

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The Massachusetts Appeals Court last week upheld a District Court judge’s suppression order of a firearm found in a car after it was unlawfully impounded by police.

The defendant in the case was charged in the case was charged in the district court with unlawfully carrying a firearm without a license, and unlawful possession of a firearm or ammunition.  The car in which he was a passenger was stopped at 3:00 a.m. by police after they observed it to be parked on the street and across from a church. They noted that the car’s engine was running and its lights were off. Inside the car were two people, the driver and the defendant-passenger. According to police, they saw the occupants make “furtive movements”. Continue reading →

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The Massachusetts Appeals Court recently reversed the conviction of a man who was found guilty after trial in the Cambridge District Court of gun/firearms charges, including unlawful possession of a firearm. Timageshe issue on appeal concerned the pre-trial motion to suppress challenge of the defendant, who argued that he was unlawfully seized and searched by police because they lacked reasonable suspicion to stop him.

The case arose in 2006 when a woman reported that her car was struck by a bullet as she was driving in Cambridge, Massachusetts.  At 10:50 p.m., Cambridge Police Officers met with the woman near the location where the shots were believed to have been fired. She told police that, immediately after the shots, she saw a group of young black males run into the courtyard of a housing complex. Notably, she stopped short of saying that the group was involved with the shooting of her vehicle, and she was not able to provide any descriptive information about the males she saw running. Continue reading →

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A criminal defendant appealed his conviction for possession of a loaded firearm without a license after trial where he was acquitted of the “predicate” offense of unlawful possession of a firearm.  The Massachusetts Appeals Court held that a conviction on these verdicts could not stand because the crime of possession of a loaded firearm is a “sentencing enhancement”, which does not apply without a conviction for the predicate offense on the firearm possession.

In the case of Commonwealth v. Dancy, the defendant was with a group of people attending a festival in Boston’s Dorchester. Someone stopped a Boston Police Officer and told him that a man had a gun, and pointed to the small group of black males that the defendant was with. Police officers followed this group and noticed that the defendant was walking at a fast pace, suddenly slowed down near a vehicle and then hard a noise that be believed was a gun hitting the pavement. The police stopped the group, questioned them, and found a gun under a parked gun.  The defendant was arrested and charged with possession of a firearm without a license; possession of ammunition; and possession of a loaded firearm. Continue reading →