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The United States Supreme Court handed down somewhat of a shocking decision this week in the case of Maryland v. King, regarding the constitutionality of law enforcement collecting DNA of arrestees without a warrant.

At issue was a Maryland state statute, which allowed for the warrantless collection of DNA from a suspect following an arrest for a “serious offense,” which under Maryland law includes crimes of violence or burglary.

Here is what is deeply disturbing about this decision, and why all Americans should be concerned– this law does not require a warrant for the taking of your DNA. Under this law, and those being passed across the country, the collection of DNA is being treated in the same manner as the collection of your finger prints or booking photograph.

What’s so wrong with that, some might ask? What’s troubling about that is the fact that the burden for making an arrest is already low, and the potential for misuse or misplacement of DNA samples, and thus potential for abuse to an individual’s unique DNA is incredibly high. Leaving wholly aside the way in which this revelation could completely circumvent constitutional rights of individuals implicated in other crimes, we are now saying that it is ok to collect DNA after what could be an almost non-existent criminal case.

For example, if an individual happens to be present at the scene of the crime, and the police arrive following an anonymous 911 tip, the fact that the person is there could alone raise a strong suspicion, and thus provide a probable cause for an arrest. Even if you were not involved in the burglary at all, the fact that you are there could supply the probable cause for an arrest, and now the government can lawfully collect your DNA. Does that scenario bother you? It should. So much so that one of, if not the, most conservative justices on the court, Antonin Scalia, sided with three of the most liberal, Ruth Bader Ginsburg, Elena Kagan, and Sonya Sotomayor, in a scathing dissenting opinion, which he personally read aloud in the courtroom.
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Boston authorities announced the allegedly successful execution of a series of raids, which they referred to as “Operation H.”

The crackdown targeted various individuals suspected of drug trafficking, gang activity, and violent crime.

A spokesperson for the local district attorney’s office said that 75 people are potentially facing charges, which includes the 33 arrested Tuesday.

The Police Commissioner said in a statement, that this operation evidences the departments commitment to get drugs and violent criminals off of the street. He further stated that detectives have been videotaping the suspects selling illegal drugs in various location, by means of an undercover operation.

Thus far, at least 40 defendants have been arraigned pursuant to these raids, with bail set between $500 and $7,500.

Police stated that as of Tuesday night, they were still looking for 10 suspects.
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Earlier this month, four criminal defendants pleaded guilty to charges stemming from a September 2011 armed robbery and shooting, which resulted in the injuring of an on duty police officer.The men pleaded guilty to various charges, which included:

  • armed assault with intent to murder
  • masked armed robbery
  • assault & battery with a dangerous weapon causing serious bodily injury
  • larceny
  • possession of a firearm while committing a felony

Two of the men additionally pleaded guilty to misleading a police investigation and being an accessory after the fact to masked armed robbery. The four defendants received sentences ranging from 7-8 years in state prison to 25-30 years in prison, all with probation following prison time.

They were additionally ordered to refrain from any contact with any witnesses or victims, and were ordered to pay restitution for the lost wages and medical expenses of the two police officers involved in the shooting.
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A little known fact within the Massachusetts criminal justice system, is the potential for any criminal defendant to be put on pretrial probation in lieu of criminal charges. You read that right, any potential defendant.The relevant statute reads as follows:

The superior court, any district court and any juvenile court may place on probation in the care of its probation officer any person before it charged with an offense or a crime for such time and upon such conditions as it deems proper, with the defendant’s consent, before trial and before a plea of guilty, or in any case after a finding or verdict of guilty;

Therefore, in addition to stating that any person may be placed on probation, it also states that the terms of such probation to be those that it deems proper. This allows the court the flexibility to customize the terms based upon the individual case at hand. As you can imagine, however, the reality of actually securing a pretrial diversion in lieu of criminal charges depends upon a variety of factors. Most notably among these is the experience and persuasiveness of your defense attorney.

In practice, the pre-trial probation, which is technically referred to as pre-trial diversion, is a court approved agreement reached between the defendant and the prosecutor prior to trial or the entering a guilty plea. Therefore, if you enter a guilty plea prematurely, such as if you decide to forego the advice of counsel, you effectively waive your right to this potential option.

According to the terms of a pre-trial diversion agreement, the defendant is placed on probation under the care of a probation officer, either supervised or unsupervised, for a defined period of time, and according to certain agreed upon terms. Once the defendant successfully completes the probation term, the charges will be dismissed completely.

However, if the defendant violates any condition of his probation, the charges will not be dismissed, and the case will proceed normally. Meaning charges will be formally filed, and the defendant could face a trial, and potentially jail time. However, a defendant cannot be jailed for violating this pretrial probation, since technically, that individual has not been found guilty of anything yet. However, the court could then decide to hold a person without bail, if it so decides.
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Last month, the U.S. Supreme Court issued a landmark decision in the area of Driving Under the Influence (DUI) Blood Alcohol Content (BAC) evidence collection, and the rammifications of the case are certain to have an impact on police departments everywhere.

The case, Missouri v. McNeely, dealt with an ordinary enough sounding traffic stop. The defendant in the case, Tyler McNeely was pulled over by a Missouri police officer for speeding and crossing over the centerline. He then exercised his right to refuse a breathalyzer test (the refusal of which the Supreme Court ruled, in South Dakota v. Neville, is permissible as evidence against a defendant in a subsequent trial, and could potentially be construed as evidence of guilt). He was then arrested and transported to a nearby hospital for blood testing. He refused consent, but the officer directed the lab technician to take the sample anyway. His blood tested significantly above the limit, and he was charged with Driving While Intoxicated (DWI).

McNeely motioned to suppress the blood test results, arguing that they violated his Fourth Amendment rights against a warrantless search. The trial court and state supreme courts agreed with McNeely, stating that there was no evidence of exigent circumstances justifying the officer’s failure to first secure a search warrant.

The U.S. Supreme Court agreed with the lower courts, holding that the warrentless nonconsensual test violated McNeely’s Fourth Amendment rights. The opinion holds that the natural metabolization of alcohol is not a sufficient exigent circumstance to justify a per se rule that warrantless nonconsensual blood tests are permissible in every case. It further remarks on the fact that the metabolization argument is flawed for the fact that the process will occur during the transport from traffic stop to hospital anyway.
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The tragic bombings and related events surrounding the Boston Marathon were felt by us all in Boston and nationwide. My heart goes out to the victims affected by the violent acts.Following the capture of Dzhokhar Tsarnaev, who is believed to be behind the attacks, many people have begun to debate the validity of granting a public safety exception in order to circumvent the requirement that Mr. Tsarnaev be informed of his right to remain silent and be represented by counsel. During questioning on Sunday morning by FBI agents during this special period, he admitted to his role in the attacks, and stated that he did not know of any additional plots, and that he and his brother had acted alone.

In the complaint, which was filed in U.S. District Court, Tsarnaev is charged with two federal crimes, including “Use of a Weapon of Mass Destruction,” and “Malicious Destruction of Property Resulting in Death.” The complaint details the terrorism task force FBI agent’s reviewal of evidence, including video surveilance from nearby businesses.
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Police are accusing a Boston area man of several crimes related to allegedly using a filed down key to gain entrance into a police bait car, and then removing several small items before being apprehended.At the arraignment last week, the client plead not guilty to the charges, which included:

  • possession of a motor vehicle master key
  • breaking and entering in the night to commit a felony
  • and larceny over $250

Attorney Patrick J. Murphy argued that his client had been set up by police. He stated that this was essentially a victimless crime, wherein all of the property involved in the allegations is owned by the city of Boston, and that the entire case was essentially a ruse set up by the Boston Police Department.

He further pointed out that his client had not been charged in any other break-ins, despite contentions otherwise by the Assistant District Attorney. Attorney Murphy expressed concern that all of the alleged prior charges recounted by the ADA during the hearing were not even for the correct defendant. In fact, the court documents listed the client with two different names, even though only one of them happened to be correct. This included documents reflecting the incorrect age for Murphy’s client in at least one place.

Further supporting the fact that the supposed prior crimes were not committed by this client is the fact that the client would only have been 15 years old at the time these purported crimes occurred. This means that even if we were to pretend that they were true, they would have been handled within the juvenile system. Attorney Murphy stated that he is working diligently to figure out how the improper criminal record was attributed to his client.
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Massachusetts’ highest state court ruled last week that so called “social sharing” of marijuana is not a crime. The decision dealt with four separate cases that fell within the purview of a voter approved initiative which decriminalized possession of less than an ounce of marijuana.

In one case, a man was apprehended by police after they witnessed him sharing a marijuana cigarette with two of his friends, and also happened to notice a plastic bag containing marijuana sticking out of his pocket. Police then searched his backpack, which led to the discovery of an additional 10 small bags of marijuana, with the total weight of everything in the man’s possession amounting to less than an ounce.

The state had argued that the arrest was justified because the officer had reason to believe that the man was set to distribute the marijuana illegally. However, the court disagreed. It ruled in favor of the defendant, emphasizing the small amount in the man’s possession, and noting the fact that the man’s crime was only scrutinized in this situation because he was smoking with friends. Therefore, the law’s protection extends to group activity as well.

The other cases involve similar arguments, that individuals sharing marijuana were charged with intent to distribute based on their objective act of sharing the marijuana between them.

However, the court upheld the police’s actions in a case where officers found less than an ounce worth of plants growing in his closet, after he was served with a warrant. This finding dealt with the 2008 voter initiative’s reach regarding the cultivation of marijuana, which the court ruled it does not alter. Therefore, according to this ruling, the initiative protects the act of possessing an ounce or less, only.
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There have been multiple reports, and in fact even indictments of several employees of drug processing crime labs in Massachusetts in recent months. Additionally, two crime labs used by the state to process drug samples have been closed down until the allegations regarding the mishandling of evidence have been thoroughly investigated.In one of the cases under investigation, Sonja Farak, was charged with tampering with drug evidence, where she in some cases allegedly removed small amounts of heroin and cocaine from test samples for personal use, and then replaced the drugs with other substances. Officials maintain that she removed the drugs from already tested samples, which would in theory therefore not affect the outcomes of the tests, or the cases for which they were conducted. She handled drug evidence at the Amherst Drug Laboratory on the University of Massachusetts campus, which has been closed pending an investigation by the State.

Annie Dookhan, 34, was indicted following her September arrest for charges of falsifying drug evidence in thousands of cases. According to investigators, her mishandling or falsification of evidence may have affected some 10,000 people convicted or accused of crimes based on evidence that she processed at the Hinton lab in Jamaica Plain where she worked. State officials said that hundreds of people had been released from prison pending new trials.

Additionally unsettling, is the fact that according to sources, the Hinton lab was not ­accredited, unlike the Boston police crime lab, and other labs countrywide. It remains unclear why unaccredited labs would be used by the state for criminal cases, whereby the outcomes could determine whether individuals lose their liberty.
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According to an announcement by Police Commissioner Edward F. Davis, there has been a significant drop in crimes in Boston during the first quarter of the year. The Commissioner believes that this is due in large part to dedicated police work and inclement weather, which keeps people inside.

According to police department statistics, crime rates from January 1 through March 18 of this year are as follows:

  • 7 homicides (compared with 8 during the same period last year)
  • 25% decrease in rape/attempted rape
  • 7% decrease in robberies
  • 16% decrease in aggravated assaults
  • 8% decrease in burglaries
  • 17% decrease in larceny
  • 14% decrease in vehicle thefts

However, shootings and firearm-related arrests are on the rise. By March 18, there were six shooting deaths in Boston, compared with five in the same period last year; nonfatal shootings are up 20 percent and firearm-related arrests are up 11 percent. Police believe that these sorts of incidents are typically the result of retaliatory action.

Authorities also credit the engagement of police officers within the areas they patrol, and the effectiveness of community watch organizations. But several prominent police authorities caution not to look too much into the declines, and warn that once the harsh winter clears, the lower numbers will likely not continue to trend.

Regardless of the true cause for the decrease, the police and many others within the community are satisfied that less crimes are occurring.
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