Drug Crimes

The Constitutionality of Strip Searches in Massachusetts

Published on: August 24, 2011 | by Patrick J. Murphy, Esq.

The United States Supreme Court will decide in its upcoming term the issue of whether or not a person entering a jail has a right to be free from strip search absent additional facts or individualized reasonable suspicion justifying the search. The Supreme Court has already held that the Fourth Amendment right to be free from unreasonable searches applies to strip searches and it held that there must be a greater justification from officials for strip searches than less intrusive searches. In Safford v. Redding, the Supreme Court held that public school officials violated the Fourth Amendment rights of a young teenager while at school when they searched her for drugs and subjected her to a strip search without any facts suggesting that drugs were hidden under her clothing.

This begs the question in a case where a defendant has been arrested by police in Massachusetts: What is the current law here and does it afford greater individual protections than what the United States Supreme Court has already recognized under the Fourth Amendment? In Massachusetts, searches and seizures of individuals by the police may be conducted at the time of an arrest or at a later point when the defendant arrives a the place of detention. However, for a strip search to be constitutionally permissible, the police must have probable cause to believe that the individual possesses concealed illegal contraband on his person or under clothing that would not be discovered by a routine pat down frisk that is usually performed upon an arrest. See Commonwealth v. Thomas, 429 Mass. 403, 409 (1999). What is probable cause? Probable cause is said to have been met when the facts and circumstances within the police officers knowledge and which they had reasonably trustworthy information are sufficient to “warrant a man of reasonable caution in the belief that an offense has been or is being committed.” See Commonwealth v. Hason, 387 Mass. 169, 174 (1982)

Therefore, the law in Massachusetts requires that there be probable cause to believe that the items sought by the police are actually related to the criminal activity that they are investigating and they can be reasonably expected to be found in the place searched based upon the known facts and circumstances at the time. See Commonwealth v. Truax, 397 Mass. 174, 178 (1986). The Massachusetts standard applying the probable cause analysis to strip searches and visual body cavity searches is greater than the Supreme Court Fourth Amendment analysis, which requires only that police have “reasonable suspicion” before conducting these intrusive searches.
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Citizen Tipster Helps Police with Gun and Drug Arrests in Boston, Massachusetts

Published on: August 10, 2011 | by Patrick J. Murphy, Esq.

Two Boston men were caught by police after a citizen tipped-off investigators. As a result of the tip, police recovered a handgun and crack cocaine when they arrested the pair on Monday, August 8, 2011 as reported in the Boston Herald. Both men pleaded not guilty to firearm and drug charges but were held on bail of $25,000-$30,000.

How will their lawyers likely handle defending them? One area that an aggressive and relentless Boston, Massachusetts criminal defense attorney must vigorously explore in this case is the nature of the tip from the informant, in this case, a citizen as indicated by the Boston Police. In the criminal law area of stop and search or frisk, the veracity, reliability and basis of knowledge prongs must be applied to the tip information. This information must be determined to justify the use of the tip by police to make a stop and/or seizure of evidence by police. If the proper protocols are not followed the lawyer may be able to suppress any evidence from the stop.

How did the tipster, a citizen, learn what he or she claimed to know? Was there any personal observation made by the tipster? What is the tipster’s veracity? In other words, was the tipster credible and worthy of belief under the circumstances with the information provided? Is the citizen providing the tip named or unnamed? Where the identity of an unnamed citizen is not revealed, that person actually is an anonymous informant and different rules apply. Anyone can call the police and make up an accusation. Where the identity of a concerned citizen in not provided to police, the citizen is an unknown informant and his or her reliability must be shown.The reliability of that citizen must be demonstrated by the prosecution an a hearing on the motion to suppress. Commonwealth v. Rojas, 403. Mass. 483, 485 (1988).
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Criminal Law Defense of Entrapment in Massachusetts

Published on: June 23, 2011 | by Patrick J. Murphy, Esq.

Entrapment has been defined as the act of officers or agents of the government in inducing a person to commit a crime not contemplated by him, for the purpose of instituting a criminal prosecution against him. According to the generally accepted view, a law enforcement official, or an undercover agent acting in cooperation with such an official, perpetrates an entrapment when, for the purpose of obtaining evidence of a crime, he originates the idea of the crime and then induces another person to engage in conduct constituting such a crime when the other person is not otherwise disposed to do so. Sorrells v. U.S., 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413.

In order to use the entrapment defense in Massachusetts, some evidence of inducement that goes beyond a mere solicitation by a police officer or government agent must be presented at the criminal trial by the defense. Entrapment is a defense to be raised only at trial and is not presented by way of pretrial motion to dismiss. Once raised properly, the burden is then on the prosecutor to prove beyond a reasonable doubt that the defendant was initially predisposed to commit the crime and was therefore “ready and willing to commit the crime whenever the opportunity might be afforded.” Commonwealth_v_Doyle_67_Mass_App_Ct_846_2006.

If the defendant on trial has a prior criminal history of distribution of drugs or possession with intent to distribute drugs then that history can be used by the prosecution to show that the person was already predisposed to commit the offense and thereby negate the defense of entrapment. See Commonwealth v. Vargas, 417 Mass. 792, 632 N.E.2d 1223 (1994).
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