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 →
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 →
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 →
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 →
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 →
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. The 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 →
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 →
The Massachusetts Appeals Court recently considered whether it was reasonable for Boston Police officers to seize and inventory the contents of a defendant’s backpack that was in the backseat of an unregistered and uninsured vehicle he was operating. In the case of Commonwealth v. Nicoleau, where the car was parked in front of the defendant’s home where he lived with his grandmother, and his grandmother was present and able to take the backpack and any other personal belongings, the Boston Police had no right to seize the backpack and search its contents pursuant to a motor vehicle inventory search. The appeals court affirmed the trial court’s order suppressing the knife that was found in the backpack. Continue reading →
The Massachusetts Supreme Judicial Court’s recent decision in Commonwealth v. Henry imposed clearer defendant-friendly safeguards on judges when imposing restitution in a criminal matter. Additionally, the SJC also held that, in cases of theft from retail stores, the amount of actual restitution is the “replacement value” of the stolen goods; unless the government proves by a preponderance of the evidence that the stolen goods would have been sold, in which case the “retail sales value” should be the amount of restitution.
It had been the longstanding practice to impose restitution in cases regardless of whether or not the defendant was employed or had any ability to pay it. Oftentimes, the defendant, by that time placed on probation, would be brought back before a judge on a probation violation hearing because he wasn’t able to pay per the court order. Way too often, the defendant had either his probation extended so he could somehow find satisfy the restitution amount; or he was ultimately sent to jail.
Moving forward, a judge must take into account a defendant’s ability to pay the restitution amount; and may not impose a longer period of probation or extend the probation because of the person’s inability or limited ability to pay that restitution. Continue reading →
In the case now being prosecuted in Suffolk County, Massachusetts, against Aaron Hernandez, the SJC has ruled that a cell phone belonging to Hernandez, given by him to his prior attorneys, must be turned over to prosecutors for the Commonwealth as a result of an anticipatory search warrant application.
Aaron Hernandez is awaiting trial for murder in connection with the shooting deaths of Daniel de Abreu and Safiro Furtado in an alleged drive-by shooting in Boston. In its investigation, Alexander Bradley told prosecutors he witnessed Aaron Hernandez shoot at 5 people in a BMW on the date of the shooting. Bradley also told prosecutors that, following the shooting, he and Hernandez communicated with one another via text message, with Bradley eventually threatening to sue and expose Hernandez’ violent conduct. Later, in June 2013, Hernandez gave his cell phone to his attorney for the purpose of seeking legal advice on several issues. Continue reading →