Boston Criminal Defense Lawyer Blog

Massachusetts Court Disapproves of Police Officers’ “Search” of Cell Phone

Published on: April 6, 2020 | by Patrick J. Murphy, Esq.

Earlier this month, a state appellate court issued a written opinion in a Massachusetts homicide case discussing the defendant’s motion to suppress evidence that was obtained from a cell phone that was in his pocket when he was arrested. Ultimately, the court concluded that while police officers legally seized the phone, they conducted an illegal investigatory search of the phone when they used it for “investigative purposes.”

According to the court’s opinion, the defendant was arrested on suspicion of murder. On the day of his arrest, the defendant had a cell phone in his pocket. The defendant’s brother and father went to the police station to give statements to detectives. The first question the detective asked the defendant’s brother was whether he had a cell phone. The brother responded that the defendant had his phone.

The detective continued to question the brother about the phone, asking for the code to unlock it. The defendant’s brother provided the correct code, and the detective unlocked the phone. The detective then asked additional questions about the phone, including how the phone’s screen got cracked. The defendant’s brother also told detectives he got the phone new about a year before, he gave them the phone number, and told them that the defendant used the phone “all the time.” Detectives then asked the defendant’s brother for consent to search the phone, which was given. Detectives discovered a video of the defendant discussing his role in the murder.

Massachusetts Appellate Court Finds “Open Container” Violation Is Not a Criminal Offense

Published on: March 19, 2020 | by Patrick J. Murphy, Esq.

Earlier this month, the Supreme Judicial Court issued a written opinion in a case involving a Massachusetts OUI arrest in which the defendant also had an open container of alcohol in the car. The case required the court to determine if the state’s prohibition on driving with an open container of alcohol constituted a criminal offense or if it was considered correctly a civil motor vehicle infraction. Ultimately, the court found that the open container statute was an “automobile law violation,” making it a civil motor vehicle infraction.

According to the court’s opinion, police pulled the defendant over under suspicion of driving under the influence. When police approached the defendant’s vehicle, they saw an open container of alcohol. Police charged the defendant with OUI and possessing an open container of alcohol in a motor vehicle. At trial, the jury found the defendant not guilty of OUI but guilty of the open container violation. The defendant appealed his conviction, arguing that the open container violation was not a criminal offense, and that it should have been resolved through a ticket.

The fundamental question posed to the court was whether the open container statute defined a criminal offense or a traffic violation. The court’s framework for answering the question was fairly sophisticated. First, the court noted that a “civil motor vehicle infraction” is one involving an “automobile law violation” that cannot result in imprisonment. The court then acknowledged that the open container statute did not provide for the possibility of imprisonment. Thus, the court’s next step was to determine if an open container violation was properly considered an “automobile law violation.”

Massachusetts Court Affirms Conviction Based on Accidental Discharge of Firearm

Published on: March 6, 2020 | by Patrick J. Murphy, Esq.

Earlier this year, a state appellate court issued a written opinion in a Massachusetts gun case discussing the “intent” element that must be established by the prosecution to find someone guilty of a discharging a firearm within 500 feet of a public building. Ultimately, the court determined that even an accidental discharge of a firearm can be the basis for such a charge, affirming the defendant’s conviction.

According to the court’s opinion, the defendant, who split his time between Maine and Massachusetts, owned a firearm. The defendant did not have a license in Massachusetts, but was eligible to own the gun in Maine, where no license is required. One day, the defendant had some friends over. One of the friends was interested in buying the gun from the defendant. The defendant took out the gun, showed it to his friend, and then went to put the gun back in the case. However, the defendant did not realize that there was a bullet in the chamber. When he pulled the trigger, which was necessary to do to disassemble the gun, it fired. The bullet went through his friend’s hand.

The defendant was charged and convicted of unlawful possession of a firearm, as well as with discharging a firearm within 500 feet of a public building. On appeal, the defendant argued that he could not be convicted of discharging the firearm, because he accidentally fired the gun. Thus, the court was tasked with determining whether the offense of discharging a firearm within 500 feet of a public building contained a requirement that the defendant intentionally fired a gun.

Massachusetts Appellate Court Affirms Suppression of Gun Found During Inventory Search

Published on: March 6, 2020 | by Patrick J. Murphy, Esq.

Earlier this year, a state appellate court issued a written opinion in a Massachusetts gun case involving the legality of an inventory search that was performed by the arresting officers. Ultimately, the court concluded that the inventory search was not permissible because there was a passenger in the car that could have driven the vehicle from the scene, and the officers’ failure to give the driver that option rendered the search illegal.

According to the court’s opinion, police officers noticed a car with a defective rear brake light. The officers ran the tags, and discovered that the owner of the vehicle, the defendant, had an outstanding warrant. The officers pulled over the car.

The defendant was driving. The police officers asked both the defendant and his passenger for their drivers’ licenses, at which point the officers learned that the passenger had a valid license, had no warrants, and was not a suspect in any outstanding crime. The passenger was cooperative and did not appear to be under the influence.

Massachusetts Court Grants Motion to Suppress after Defendant Exits Vehicle after Traffic Stop

Published on: February 13, 2020 | by Patrick J. Murphy, Esq.

Late last month, a state appellate court issued a written opinion in a Massachusetts gun case requiring the court to determine if the police officers legally stopped the defendant. Ultimately, the court concluded that the officers lacked reasonable suspicion to believe that the defendant was armed and dangerous. As a result, they did not have the legal authority to conduct a pat frisk of the defendant or to search his vehicle.

According to the court’s opinion, police officers noticed the defendant’s vehicle had a cracked windshield and an expired registration sticker. The officers turned on their overhead lights and, after driving for a short while, the defendant pulled into a residential driveway and got out of the car. As the officers approached, the defendant looked into his vehicle a few times. The officers ordered the defendant to stay put, and patted him down, finding a knife. The officers then asked the defendant is he had any other weapons in the car, and he admitted that there was a firearm inside. The defendant was arrested and charged with various Massachusetts gun crimes. The defendant filed a motion to suppress the gun, arguing that the officers lacked reason to search him or his vehicle.

The court began its analysis by noting that the initial traffic stop was legal, as the defendant’s car was observed to have a cracked windshield and expired registration. The court also noted that the defendant voluntarily exited his vehicle, leaving the only question for the court to answer being whether the officers had legal justification to patfrisk the defendant and to search his car.

Do Massachusetts Police Officers Need a Warrant to Take a Driver’s Blood Following an OUI Arrest?

Published on: January 20, 2020 | by Patrick J. Murphy, Esq.

One of the most common questions we get from our clients who have been arrested for a Massachusetts OUI offense is whether the police officers were allowed to take their blood without a warrant. The determination as to whether a police officer can take a motorist’s blood when they are under suspicion of driving while intoxicated is complex, and has recently been the focus of several U.S. Supreme Court decisions. Recently, a Massachusetts appellate court had occasion to weigh in on the issue in an operating under the influence (OUI) case involving a warrantless blood draw.

The facts of the case can be briefly summarized. The defendant was involved in a car accident. When police arrived, they noticed he smelled of alcohol and that there were several open containers of alcohol in the car. After being Mirandized, the defendant told police that he had been drinking and was “guilty.” Police transported the defendant to the hospital, where the officers read the defendant a pre-written statement indicating that they intended to take a “chemical test” to determine the defendant’s blood-alcohol content. Nothing was mentioned of a blood draw. The test revealed that there was alcohol in the defendant’s blood, and he was charged with OUI.

The defendant argued that the officers’ warrantless blood draw was taken in violation of his constitutional rights because he never explicitly consented to a blood draw. Consent is an exception to the warrant requirement, so when a defendant consents to a blood draw, there is no need for a warrant. However, the question as to whether a defendant’s consent is valid is complex.

Massachusetts Court Holds Police Officers Lacked Justification to Order Motorist Out of His Car

Published on: January 5, 2020 | by Patrick J. Murphy, Esq.

Recently, the state supreme court issued an opinion in a Boston drug crime case involving a large quantity of drugs that was seized after the police ordered the defendant out of his car. The case discusses the type of evidence that a police officer must have to order a motorist out of their car when the motorist is suspected of a crime.

According to the court’s opinion, police officers received an anonymous tip that a Volvo containing a large amount of narcotics would be present at a particular intersection in the Roxbury area of Boston. The police set up surveillance and watched as a pedestrian approached the vehicle. The pedestrian engaged in conversation with the driver, and the driver then reached down toward the floor of the passenger side of the car. The officers could not see if anything was exchanged between the men, but they thought that the interaction was consistent with an exchange.

The officers followed the Volvo as it pulled away, and they initiated a traffic stop based on their suspicions. When they approached the Volvo, the defendant was the sole occupant. The police officers claimed that the defendant was avoiding eye contact and breathing heavily. The officers ordered the defendant out of his car and, as the defendant was exiting the vehicle, noticed that there was a large wad of money in the compartment along the inside of the driver’s side door. The police frisked the defendant, finding nothing, and then searched the vehicle, finding a large amount of cocaine.

Can Massachusetts Police Officers Assume a Driver Is the Vehicle’s Owner When Deciding Whether to Pull Someone Over?

Published on: December 26, 2019 | by Patrick J. Murphy, Esq.

Police officers make assumptions every single day. For example, a police officer may observe a motorist drift over the center line once or twice and assume that the driver is under the influence of drugs or alcohol. In this example, the officer relies on the assumption that a driver is intoxicated because they are not able to maintain a single lane of travel.

Massachusetts criminal law allows police officers to make certain assumptions, within reason. Recently, the United States Supreme Court heard oral arguments in a case involving whether police officers can assume that the driver of a vehicle is also the owner of the vehicle. The case is important for Boston criminal defense lawyers and their clients to understand because, if the court sides with the prosecution, police officers across the country can make similar assumptions when deciding whether to pull over a vehicle.

The case arose after a police officer ran the tags on a pick-up truck and noticed that the owner of the truck had a suspended license. Assuming that the driver of the vehicle was the vehicle’s owner, the officer initiated a traffic stop. During the stop, the officer confirmed that the defendant owned the vehicle and then issued him a citation.

Issues with Massachusetts Breathalyzer Tests

Published on: December 16, 2019 | by Patrick J. Murphy, Esq.

For years, law enforcement officers in Massachusetts and across the country have relied on breath tests to determine an approximation of a driver’s blood alcohol content (BAC). These devices typically consist of a tube that is connected to a small machine. When an officer believes that a driver is under the influence of alcohol, the officer can ask the driver to take a breath test. If the test result indicates that the driver’s BAC is greater than .08, they can be arrested and charged with driving under the influence.

The use of breath alcohol tests is extremely prevalent. However, the use of breath alcohol testing devices can raise several legal issues in Boston DUI cases. One of the major limitations of breath testing machines, from a law enforcement perspective, is that they currently only test for alcohol. However, some jurisdictions have begun working on breath testing machines that could also be used to test for narcotics, such as marijuana, cocaine, or heroin.

Massachusetts law provides that all drivers must take a breath alcohol test when a police officer makes such a request. However, being required to take a breath test along the side of the road is an intrusion into drivers’ privacy interests. Thus, officers must base their request for a driver to take a test on articulable facts supporting a belief that the driver is intoxicated. If an officer is unable to point to any evidence suggesting that the motorist was drunk, the test results may need to be excluded. Of course, this introduces an element of subjectivity into the mix because an officer’s observations that a driver was “acting drunk” are rarely captured on video. This raises the issue of police officer credibility, especially when a motorist recalls a vastly different series of events leading up to their arrest.

Massachusetts Court Discusses Show-Up Identifications in Recent Robbery Case

Published on: November 27, 2019 | by Patrick J. Murphy, Esq.

Earlier this month, a state appellate court issued a written opinion in a Massachusetts robbery case discussing show-up identifications and when they are permissible under state law. Following an arrest, one of the most important things law enforcement can do to further an investigation is to get a positive identification from the victim of the crime. However, eyewitness identifications have come under scrutiny in recent years, as studies have repeatedly shown that they are not as accurate as once thought.

Law enforcement can conduct identifications in several ways. The gold-standard when it comes to identification is a double-blind photo identification. The term double-blind refers to the fact that neither the eyewitness nor the law enforcement officer administering the procedure know who the suspect is. In a double-blind photo array, one detective puts the suspect’s photograph with several other people’s picture, and provides the photos to another detective who is not involved in the case. That detective then asks the alleged victim to make an identification. Double-blind photo arrays eliminate the concern that the detective administering the array could give a clue to the alleged victim.

In the case mentioned above, the defendant was identified by way of show-up identification. A show-up identification occurs shortly after an arrest. Law enforcement will transport the alleged victim to the arrestee, and ask the alleged victim if the arrestee was the doer of the crime. Of course, there are many problems with a show-up identification based on its inherently suggestive nature. For example, in this case, both alleged victims were transported in the same police car to the defendant’s location, where he was handcuffed up against a wall, surrounded by police officers. As the officer with the alleged victims arrived, he shined a bright spotlight onto the defendant, and both of the complaining witnesses immediately identified the defendant. The defendant was ultimately convicted and appealed his conviction based on the suggestiveness of the show-up identification.