Boston Criminal Defense Lawyer Blog

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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Voluntary Intoxication and Its Role in the Defense of Criminal Responsibility in Massachusetts

Published on: August 17, 2011 | by Patrick J. Murphy, Esq.

The recent case of Commonwealth v. DiPadova in Massachusetts demonstrates how extremely important it is for an experienced Massachusetts and Boston criminal homicide attorney to deviate from proposing a model jury instruction when the facts of the case necessitate a change from what is customarily used.

In the DiPadova case, the Defendant was convicted of killing his former landlady. The Defendant had a substantial history of serious mental illness and had experienced auditory hallucinations (hearing voices). He also had a long history of poly substance abuse, including marijuana, cocaine and alcohol. The defense at trial was that the defendant due to a mental disease or defect, lacked the criminal responsibility for his actions because he lacked the substantial capacity at the time of the crime to appreciate both the wrongfulness of his conduct and to conform his conduct to the requirements of the law. Commonwealth v. McHoul, 352 Mass. 544, 546-547 (1967).

There was evidence presented at trial of the interaction between the defendant’s abuse of legal and illegal drugs and his mental illness. It was no surprise that the mental health experts hired for both the defense and prosecution disagreed on the impact that the substance abuse had on the defendant’s mental state at the time of the homicide. The Defendant asserted that his drug use aggravated the symptoms of his mental illness. The court stated that the model instruction was erroneous because it only concerned the impact of drug consumption or alcohol use under circumstances in which a defendant’s mental disease or defect does not, independently, render him criminally irresponsible.
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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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Avoiding a Conviction by Agreement in Massachusetts: Accord and Satisfaction

Published on: August 5, 2011 | by Patrick J. Murphy, Esq.

A criminal complaint issues against you for assault and battery toward another individual. Can you later go to court and file an agreement between the parties that ends the case over the prosecutor’s objection? The short answer is yes. That’s exactly what happened in the case of Commonwealth v. Guzman, 446 Mass. 344 (2006). In the Guzman case a husband allegedly committed an assault and battery against his wife. The police arrived and observed that the defendant’s wife had an injury to her eye. They arrested the husband for domestic assault and battery. The defendant husband’s lawyer subsequently filed and “accord and satisfaction” agreement with the court and the judge dismissed the case pursuant to G.L. c. 276 s. 55 which essentially states that under certain circumstances the court may, in its discretion, dismiss the complaint against the defendant where the parties have voluntarily entered into an accord and satisfaction.

The case was appealed by the prosecutor but the lower court’s judgment was affirmed in favor of the defendant. The law was held constitutional because the court found that the statute did not violate separation of powers or the prosecutor’s ability to prosecute the case. To be successful, the injured party must appear before the court and acknowledge, in writing, that he or she has been satisfied. The court will inquire into the matter and decide whether or not to accept the agreement.

The accord and satisfaction statute only applies to misdemeanor cases for which a party may be liable in a civil action. The crime must also not have been committed against a law enforcement officer or by a defendant who intended to commit a felony. The judge has the discretion to accept or reject the accord and satisfaction agreement and the court must be informed of what “satisfaction” has been received by the injured party. This can be done in writing in the agreement or an affidavit or by testimony at a hearing. The injured party need only acknowledge that they have received satisfaction for an injury and indicate in the agreement that the charges should be dismissed.
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Defending Failure to Register Cases in Massachusetts: The Importance of A Strong Defense

Published on: July 27, 2011 | by Patrick J. Murphy, Esq.

Failing to Register as a sex offender pursuant to G.L. c.6, s. 178H can result in severe consequences to the individual that must register in accordance with the law. A strong and aggressive defense by an experienced Boston criminal defense lawyer is necessary when a complaint for failure to register is brought against a defendant.

The possibility of long sentences followed by lifetime community parole show how important it is to hire a Massachusetts criminal defense attorney to vigorously defend such cases rather than settle for plea opportunities made by the prosecutor. Cases such as Commonwealth v. Ramirez, 69 Mass. App.Ct. 9 (2007) and Commonwealth v. Bolling, 72 Mass. App. Ct. 618 (2008) show how important it is to have an experienced attorney present a strong defense on behalf of the client.

To prove that the defendant committed the offense of failing to register as a sex offender the Commonwealth must prove beyond a reasonable doubt each of the following four elements:

First: that the defendant either resided or intended to reside in Massachusetts or worked or intended to work in Massachusetts;

Second: that the defendant was previously convicted of the offense of that required him or her to register as a sex offender;

Third: that the defendant knew that he or she was required to register or verify registration data or notify of a change of address with the Sex Offender Registry Board; and
Fourth: that the defendant failed to register or failed to verify registration data or notify of a change of address or provided false information to the Sex Offender Registry Board.
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The Defense of Self-Defense in Massachusetts Criminal Law

Published on: July 19, 2011 | by Patrick J. Murphy, Esq.

If you have been charged with a crime of violence, such as assault and battery, in a Massachusetts court you may be entitled to raise the affirmative defense of self-defense to help win your case. In Massachusetts, a defendant is entitled to have a jury instructed on self-defense “if the evidence, viewed in its light most favorable to him is sufficient to raise the issue.” Commonwealth v. Harrington, 379 Mass. 446 (1980).

If there is evidence of self-defense the prosecutor must prove beyond a reasonable doubt that you did not act in self-defense. If the prosecutor has not proved beyond a reasonable doubt that you did not act in self-defense and that the force you used to defend yourself was not unreasonable and excessive, then the jury must find you not guilty of the crime charged. In other words, if the jury has a reasonable doubt whether or not you acted in self-defense and that the force you used was not unreasonable and excessive they must acquit you.

In order to determine the reasonableness of the force used by a defendant the jury can consider such matters as the size and strength of the alleged victim and the defendant, the type of weapons used, if any, by either party and whether or not there was a means of retreat or escape available to the defendant. Also, the jury can consider evidence of specific acts of violence or threats of violence perpetrated by the alleged victim if the defendant knew of any instances of violent acts or threats. Finally, the jury can consider evidence of the victim’s reputation as a violent individual if the defendant knew of such a reputation. Commonwealth v. Pidge, 400 Mass. 350, 353 (1987); Commonwealth v. Fontes, 396 Mass. 733, 735 (1986); Commonwealth v. Edmonds, 365 Mass. 496, 501 (1974).
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Immigrant Crime and Homeland Security’s Secure Communities Task Force in Boston, Massachusetts

Published on: July 11, 2011 | by Patrick J. Murphy, Esq.

The federal government says that it has made it a priority to protect the communities it serves by administering the Secure Communities program which they argued was a simple and common sense way to carry out the goal and priorities of U.S. Immigration and Customs Enforcement (ICE) by removing criminal aliens that pose a threat to public safety of the United States.

When it comes to enforcing our nation’s immigration laws, U.S. Immigration and Custom Enforcement (ICE), the Federal Bureau of Investigation (FBI) and state and local law enforcement share information that they say helps locate and identify only those people that are criminal aliens. Our state and local law enforcement officials in Massachusetts had been cooperating with these agencies by sharing certain identifying information and fingerprints to locate immigrant aliens charged with crimes in Massachusetts. When immigration detainers have been lodged against alleged criminal aliens in our courts the government can hold people in jail and start deportation proceedings against them.

Yesterday, Boston Mayor Thomas M. Menino announced in a letter to federal officials that he will consider withdrawing the Boston Police from the Secure Communities program because ICE has been heavy-handed and has not limited its deportations to only those immigrants involved in serious crimes like rape and murder.

The Obama administration has already heard so much criticism from members of his Democratic base and others in Congress that it has considered changing or altering the way the program is administered. The outrage stems from the fact that immigrant aliens, many of whom are hard working and peacefully living in this country, are being detained and deported at an alarming rate. Many have only had a minor brush with the law but are being needlessly detained by the government. Also, victims of domestic abuse, witnesses, and people who were arrested but not convicted are being negatively affected by the Secure Communities Program.
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Domestic Abuse Law in Massachusetts and Use of the Spousal Privilege to Preserve the Marital Relationship

Published on: July 6, 2011 | by Patrick J. Murphy, Esq.

You have just gotten into an loud argument or minor altercation with your spouse and someone calls 911 and the police come and arrest you and take you into custody away from your family. There are no witnesses to the alleged incident except for you and your spouse. Nevertheless, the police make an arrest on the spot because they believe domestic violence is involved. The police have somehow determined at the scene that a domestic assault and battery just occurred and someone is the responsible party. What do you do in such a circumstance and how can you protect and preserve your private marital relationship after such an event? The police are there to investigate crime and to protect individuals but often times their hunch can be wrong and this can be devastating to the family unit.

The spousal privilege law in Massachusetts states that a spouse can not be forced by the prosecution to give testimony in a trial or other criminal hearing brought against the other spouse. The privilege is set forth in G. L. c. 233, § 20. The spousal privilege may only be claimed by the witness spouse and it does not apply to civil proceedings or in any prosecution for non-payment of support, child incest, child abuse or neglect of parental responsibilities.

In order to use the privilege you must be married to the other party that is subject to a criminal prosecution. The privilege is valid even though the spouse was not married at the time of the incident that was the reason for a criminal prosecution or trial. (See Commonwealth v. DiPietro, 373 Mass. 369, 382, 367 N.E.2d 811, 819 (1977)). However, there is no common-law privilege, like the spousal privilege, applicable to unmarried individuals living together. (See Commonwealth v. Diaz, 422 Mass. 269, 274, 661 N.E.2d 1326, 1329 (1996)).
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Bail Procedure in Massachusetts: The Presumption is Personal Recognizance

Published on: June 29, 2011 | by Patrick J. Murphy, Esq.

Under M.G.L. c. 276 § 58, bail is made the exception to the release of an individual on personal recognizance. In other words, there is a presumption in the law that someone arrested should be released upon their promise to appear back in court on a given date. The exception to the rule is in capital or murder cases. If you have been arrested you must be brought before the court promptly for an arraignment or formal notification of the charge and to determine whether bail is necessary.

Under the bail statute, the District or Municipal Court justice will make a bail determination by taking into account:

“the nature and circumstances of the offense charged, the potential penalty the person faces, the person’s family ties, financial resources, employment record and history of mental illness, his reputation in the community, his record of convictions, if any, any illegal drug distribution or present drug dependency, any flight to avoid prosecution or fraudulent use of an alias or false identification, any failure to appear at any court proceeding to answer to an offense, whether the acts involve abuse. . . or violation of a temporary or permanent restraining order . . . or whether the person has any history of [such] orders . . . and whether he is on release pending sentence or appeal for any conviciton.”

A judge may also set special conditions of release restricting a person from having contact with an alleged victim of the crime and any witness to the case. A judge also has inherent authority to revoke bail and hold a defendant for breach of any imposed restriction, including picking up any new offenses while awaiting trial on the original offense. See Paquette v. Commonwealth, 440 Mass. 121, 128 (2003).
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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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