Massachusetts Criminal Defense Lawyer Blog

Traffic stop leading to cocaine possession arrest is unconstitutional because 911 caller unreliable

September 19, 2014 | by Michael DelSignore

The highest appellate court of Nebraska recently overruled a trial judge who allowed evidence of drunk driving to be admitted during trial, where that evidence was obtained as a result of an traffic stop based on an anonymous tip. Applying recent federal case law, the Nebraska Supreme Court found that the driver’s Fourth Amendment right against unreasonable searches and seizures was violated when the officer stopped the driver without first confirming the reliability of the anonymous 911 caller’s tip, or reasonably believing a crime was committed.

State v. Rodriguez

In the matter of State v. Rodriguez, a 911 dispatcher received an anonymous call alleging that the caller was just pushed out of a moving vehicle. The vehicle was identified as a green GMC Envoy heading westbound on Highway 26. An officer was dispatched to the location, where he observed a vehicle matching the description traveling westbound past the location of the caller. The officer followed the vehicle then activated his emergency lights and began to question the driver about the reported disturbance.

Oregon appeals court rules against police forceful entry into home

September 15, 2014 | by Michael DelSignore

The Oregon Court of Appeals issued a decision prohibiting police officers from forcefully entering the home of an individual whom they believed operated a vehicle while intoxicated. Finding no emergency where the suspect was under the influence and had locked himself and his seven-year old child into their home, the Court ruled that the officers were required by the Fourth Amendment to obtain a warrant.

In the matter of State v. Sullivan, the defendant was observed by a clerk to be under the influence of alcohol while checking out of a grocery store with his seven-year-old son. The clerk followed the defendant out of the store and recorded the license plate number of the defendant’s vehicle. The clerk forwarded that information to police, which located the defendant’s home address and immediately responded.

An officer arrived at the defendant’s home address and observed the defendant’s car and a man yelling to a young boy in slurred speech. After the officer ordered the defendant to stop, the defendant pushed his son up the stairs of the apartment building, slammed the door shut, and closed the blinds in the apartment unit. The officer, joined by two other officers, immediately approached began to pound on the door to the apartment, but there was no response. After speaking with dispatch and his sergeant, the officer discovered that the defendant had a concealed weapons permit. He then received permission to forcefully enter the premises under the premise that the child’s safety was at risk. The officers then kicked the door down and drew their guns to enter the apartment .The defendant approached and was arrested, and subsequently refused to submit to a blood-alcohol test.

Video tape evidence in domestic assault and battery case results in NFL indefinite suspension for Ray Rice

September 8, 2014 | by Michael DelSignore

Video tape evidence in the domestic assault and battery incident involving Ray Rice became public today showing him punching his then fiancee in the face in an elevator. The release of the video caused the NFL to issue an indefinite suspension and also resulted in his release by the Baltimore Ravens. Players in the NFL via Twitter expressed outrage saying he should be banned from the NFL for life.

Prosecutor in Massachusetts domestic assault and battery charges are looking for video tape evidence to prosecutor domestic cases as it is prevalent in public places and even as a result of iPhone or cell phone cameras. In some cases, a Massachusetts Criminal Defense Lawyer may be able to content that video tape evidence does not show the complete picture. In this case, it would be a difficult argument to make as the video shows the couple both inside and outside of the elevator.

In a case involving a bar room fight, captured on video in part, a defendant may be able to claim that the video fails to show some act prior to the incident raising an issue of self defense. In this case, the video evidence would be difficult to overcome for a defense lawyer and may have allow the prosecution to proceed even if the criminal case was not resolved. The video in the Rice case would leave no room for interpretation, while it does not have sound, it does not appear it was anything other than an unprovoked an violent punch by Rice.

US Supreme Court to decide whether an officer’s mistake in a traffic stop invalidates a drug trafficking charge

September 3, 2014 | by Michael DelSignore

The Supreme Court of the United States has agreed to hear arguments on the constitutionality of traffic stops based on a police officer’s mistaken understanding of the law under the Fourth Amendment. The case, Heien v. North Carolina, stems from the drug trafficking prosecution of the defendant-petitioner, which resulted from a discovery of cocaine during the search of a car pulled over for a burnt brake light.

The Traffic Stop

The defendant-petitioner, Mr. Heien, was a passenger in his own vehicle as it was operated by a friend down an interstate highway in North Carolina. A highway patrol officer observed the defendant’s friend operating the vehicle with a stiff and nervous expression, “gripping the steering wheel at a 10 and 2 position, looking straight ahead.” The officer followed the vehicle until he noticed that only one of the two brake lights were functioning. While the state statute only requires that vehicles have only one functioning break light, the officer interpreted the statute incorrectly and issued a warning to the defendant, who was the vehicle’s owner. The officers then asked the defendant if he could search the vehicle, and the defendant consented. After a forty minute search of the vehicle, the officer discovered a plastic sandwich bag containing cocaine. The defendant was charged and convicted on the charge of trafficking cocaine.

Governor signs Bill creating new crimes against suspects in domestic violence

August 30, 2014 | by Michael DelSignore

Massachusetts Governor Deval Patrick recently signed into law a new senate act on domestic violence and sexual assaults. The legislation, known as Senate Bill 2334 – An Act relative to domestic violence, creates new criminal charges for domestic violence, requires the convening of special executive teams to investigate the causes and consequences of domestic violence across the state, and requires that funding be set aside for training state officers on handling domestic disputes.

Assault and Battery on Household Members

Section 26 of the Senate bill amended chapter 265 of the Massachusetts General Laws by creating several new criminal charges where none previously existed. For example, an assault or an assault and battery on a family or household member is now punishable by imprisonment in the house of correction for up to 2 ½ years and a fine of $5000. This sentence applies only to first time offenders; subsequent offenders are punishable by up to 5 years imprisonment in state prison.

SJC lowers the burden for Sealing Criminal Records in Massachusetts

August 22, 2014 | by Michael DelSignore

As a result of the increasing difficulties former defendants in criminal prosecutions are facing in obtaining employment and housing because of their criminal records, the Massachusetts Supreme Judicial Court recently ruled to lessen the legal burden on former defendants who wish to have their criminal records sealed after an entry of nolle prosequi or dismissal. This decision effectively opens the door for more individuals to seal their past criminal records, thereby preventing most employers and landlords from accessing their criminal information, and creating more opportunity for obtaining gainful employment and comfortable housing.

In the matter of Commonwealth v. Peter Pon, the defendant was charged with an OUI and leaving the scene of property damage following an accident. After admitting to the facts alleged by the Commonwealth, a Boston Municipal Court judge ordered that the case be continued without a finding for one year and a 45-day license suspension. Since the defendant complied with the conditions of the continuance, his case was subsequently dismissed but a judge denied the defendant’s petition that his records be sealed in order to prevent any employment or housing discrimination resulting from his criminal history. Although the Commissioner of Probation ultimately sealed the records before the Supreme Judicial Court issued its ruling on appeal, the Court nonetheless used this case to reconsider the current law on criminal record sealing and impoundment.

The OLD Standard for determining whether to seal records

Federal Judge charged with domestic assault and battery

August 19, 2014 | by Michael DelSignore

U.S. District Court Judge Mark Fuller was recently arrested and detained in an Atlanta jail resulting from an allegation of domestic violence raised by his wife. A CNN article reports that local police received a 911 call after 10pm on August 9 from the Ritz-Carlton hotel regarding an alleged assault. The caller stated that she was assaulted by her husband, Judge Fuller. The caller was treated on-site by EMTs.

The federal judge faces a criminal misdemeanor charge of battery resulting from domestic violence. After police responded to the hotel room, Judge Fuller was transported to a county jail, where he spent the night. While at the county jail, the federal judge appeared before a Chief Magistrate Judge by video conference for a bond hearing. The chief magistrate granted a signature bond of $5,000, which the federal judge posted later that same day.

From the details reported in the CNN article, it appears that Judge Fuller underwent the same process most suspects of a domestic violence will face after a 911 call from the victim. When officers appear on site, they will generally immediately separate the suspect from the victim, and question both parties with regard to the incident leading to the 911 call. In Massachusetts domestic assault charge, officers must make an arrest when dispatched to a domestic call.

Looking ahead to trial in the police shooting of Missouri teenager Mike Brown

August 16, 2014 | by Michael DelSignore

Residents from Fergusen, Missouri have been protesting in the streets for days as a result of the tragic death young Mike Brown, an 18-year old Ferguson college student who was shot by a local police officer. Outrage continued to erupt today as the local police chief released the name of the officer involved in the shooting. According to a CNN article, the officer is currently on paid administrative leave.

The question remains as to whether the officer will be charged with any crimes resulting from his interaction with Brown, leading to Brown’s death. Reporters have so far interviewed three individuals who claimed to be eye witnesses to the shooting, and whose description of the events substantially differ from the statements released by local police.

Different Accounts of the Shooting

How the Massachusetts uses the NDR Report to access your out-of-state driving record

August 6, 2014 | by Michael DelSignore

Many drivers in Massachusetts do not realize that a license suspension or revocation, or even a conviction on a serious driving offense, leaves a long term mark on their records that can be accessed by several different types of inquirers. This blog will address the National Driver Register, and how information on your driving offenses – civil or criminal – can be stored by different states for others such as future employers and driving agencies to review.

What is the National Driver Register?

The National Driver Register – also known as the NDR – is a nationwide database maintained by the National Highway Traffic Safety Administration containing private personal and driving information on millions of drivers across the country. The NDR is the primary channel by which different states interact with one another to report problem drivers, or drivers with license suspensions/revocations and driving-related criminal convictions.

Does a Massachusetts State Trooper have to give Field Sobriety Tests when making an OUI Arrest?

August 2, 2014 | by Michael DelSignore

Many arrested for OUI assume that a police officer must give field sobriety tests prior to an arrest. Under Massachusetts OUI Law, there is no requirement as to which field sobriety tests and officer must give or whether an officer give any tests at all. Most police officers will give the standard field sobriety tests, which consist of the HGN test, one leg stand and walk and turn. Other common tests include an alphabet test, number counting backwards and nose touching test called the finger to nose test.

In this Blog, I would like to discuss the common practice of a few State Troopers in the area of Wareham, Falmouth and New Bedford who commonly omit field tests or only give one admissible field sobriety test. In Massachusetts, the HGN tests is generally inadmissible as evidence in Massachusetts Courts under the Sands case. Every police officer is trained to administer field sobriety tests according to the methods of the National Highway Traffic Safety Administration.

Accordingly, in a stop for a routine traffic violation, an officer should at least give two field sobriety tests prior to forming an opinion to be fair to the motorist. However, I have increasingly seen officers administer the HGN test, a one leg stand and quickly request the motorist submit to the portable breath test and make an arrest.