Massachusetts Criminal Defense Lawyer Blog

New York Times Article discusses why police officers lie

February 11, 2013 | by Michael DelSignore

Recently, the New York Times Opinion Pages posted an article titled, “Why Police Lie Under Oath”. Police lying under oath is both surprising and dangerous.

While the New York Times Article discusses the issue regarding drug cases, which is particularly current in light of the Massachusetts drug lab scandal, police deception also can occur in other types of cases, such as drunk driving arrests. In a Massachusetts OUI arrest, a police officer lying could take one of two forms; a complete fabrication of what occurred or an embellishment, adding a few details in the report that cannot be verified, that someone appeared unsteady or had trouble with balance getting out of the car. Both types of fabrication undermine the integrity of police officers and it is the job of the defense attorney to point out these fabrications to the jury.

Typically, many people often equate the word “defendant” with “guilty” by the mere notion that a defendant is charged with allegedly violating the law, something for which they need to defend. Likewise, we view and trust our law enforcement officers to serve and protect-to uphold their oaths of fairness and justice. In a court setting, it is not unreasonable to suspect that a jury and a judge will take the side of the uniformed officer under oath vs. the defendant allegedly accused of a violation of law. This is what makes police lying so dangerous. One lie can ruin a life. So, why would a law enforcement officer lie?

Massachusetts Supreme Judicial Court addresses when police are permitted to search a cell phone in making a drug arrest

February 8, 2013 | by Michael DelSignore

One question that now frequently arises for Massachusetts criminal defense lawyers is:

Can the police search your cell phone?

A recent case gave an answer.

Searches in high crime areas: Are they Constitutional in Massachusetts

January 31, 2013 | by Michael DelSignore

As a Boston criminal defense lawyer, defending drug cases, often the initial police seizure will be based on the defendant being in a high crime area. The Massachusetts Supreme Judicial Court has stated numerous times that being present in a high crime area or flight from the police is insufficient to justify a stop under the 4th Amendment or Article 14 of the Massachusetts Declaration of Rights.

The Fourth Circuit Court of Appeals recently addressed this issue in the case of

United States v. Bumpers. A police officer was conducting a routine patrol. While he was driving by a local convenience store in a high-crime area, the officer noticed two men standing by dumpsters located. The officer observed the two men for five or ten seconds and then pulled into the parking lot. At that time the men began walking away from the dumpsters. The officer exited his car and told the two men that they were not free to go. One of the men, defendant Irvin Bumpers, obeyed the officer’s orders.

Analysis of oral argument in Bailey v. United States from Massachusetts criminal defense lawyer

January 20, 2013 | by Michael DelSignore

The Supreme Court recently heard oral argument in Bailey v. United States on November 1st 2012. The predominant issue in Bailey is whether or not the precedent set forth in Michigan v. Summers, 452 U.S. 692 (1981), which allows an officer to detain an individual on the premises of a location being searched, extends to the detention of an individual the officer saw leaving the location to be searched and is no longer in the immediate vicinity.

While it can be difficult to predict how the Justices will decide a case based on the oral argument, it appears as though the Justice will decline to extend the Summers case as argued by the Government. The Government argued that the stop of Bailey away from the residence to be searched was permissible under the rationale of Summers because Bailey could have returned to the residence and threatened the safety of the officers.

The defendant argues that the Summers exception to typical warrant and detention standards should not be interpreted broadly and, in fact, should be interpreted rather narrowly. Once the individual is off of the location to be searched it is not likely they will return and pose any sort of threat to the safety of the officers or the quality of the search, and Summers would not apply, as argued by the defense.

United States Supreme Court to address whether a warrant is required to obtain a blood sample from DUI suspect

January 18, 2013 | by Michael DelSignore

As a Massachusetts DUI attorney, the issue of police officers unlawfully obtaining blood samples for persons suspected of driving intoxicated often comes up during defense. The act of not obtaining a warrant prior to obtaining a blood sample in routine DUI stops is a direct violation of the 4th amendment.

This issue was recently brought to the Missouri Supreme Court in the case of Missouri v McNeely. During last week’s hour long hearing for this pending case, the Justices weighed the potential outcomes for ruling on this controversial issue. If there is any indication of how this case will prevail based on the hearing discussions, it is that the United States Supreme Court will most likely conclude that police across the nation are not allowed to order, on their own authority, the taking of blood samples from those suspected of drunk driving. They will need to obtain a search warrant, with few exceptions.

In McNeely, a Missouri driver was pulled over for allegedly driving while intoxicated. After failing all field sobriety tests and refusing a Breathalyzer, the police officer drove him to the local hospital. The driver verbally refused a blood sample, but the officer told the lab technician to proceed. In court, the officer stated he did not think he needed a warrant because he read that Missouri law allows an officer to obtain a blood sample if consent is merely “implied”. However, when the trial court judge ruled in favor of the defendant, Missouri officials took the case to the Supreme Court, arguing that there is a split between state and federal courts on the issue of when officers may obtain blood samples without a warrant.

Breath test results in Pennsylvania excluded from evidence based on challenge to the linear accuracy of the breath test machine

January 11, 2013 | by Michael DelSignore

For Massachusetts OUI lawyers, the recent decision of the Pennsylvania Superior Court may be used to challenge the admissibility of breath test results in Massachusetts.

In the recent case of Commonwealth v. Schildt, the defendant’s Attorney Justin McShane argued that the breath test machine was incapable of producing accurate and reliable results outside a linear range of .05 to .15. This argument was made because Pennsylvania does not test its breath test machine for accuracy outside of those values. The victory in the case by Attorney McShane was the results of years of dedication to understanding the science of involved in DUI cases which has made him one of the leading DUI lawyers in the United States.

Pennsylvania law, like Massachusetts OUI law has a provision that any breath test result over .08 results in a presumption that the individual is under the influence of alcohol. This is considered a per se violation because if the breath test results is admitted into evidence and deemed reliable, there is a presumption of impairment.

Communication tips for Massachusetts OUI lawyers from John Maxwell

January 2, 2013 | by Michael DelSignore

As a Massachusetts OUI lawyer, when someone hires me to defend their OUI charge, my primary task is to find a way to communicate to the jury that they were not under the influence of alcohol, to find a theory that challenges the officer’s observations so that the jury returns a verdict of not guilty. In preparing for trial, I typically practice my opening and closing countless times with the goal of making my argument, interesting and persuasive. Just as professional athletes all have coaches, in this Blog I want to discuss a lecture that I have listened to several times and find extremely valuable.

As a trial lawyer, my job is in communication and to improve those skills I look to experts in the field. Recently, I listened to an excellent lecture from John Maxwell that I purchased in the Success Magazine online store.

John C. Maxwell is a New York Times best-selling author, speaker, and pastor who focuses primarily on leadership. His lecture “Everyone Communicates Few Connect begins by addressing how it is difficult to communicate effectively and be understood in today’s world. There is a lot of noise and distractions, especially with the rise of technology. However, it is absolutely necessary to connect with people to aptly influence and persuade them.

This is applicable because for successful leadership, there must be persuasive influence in order to have a strong connection. However, connecting with people is not always an easy task. It must be approached in the right manner and successfully followed through until the end. In order to make the process of forming a connection easy to understand, Maxwell breaks it down into five clearly defined principles:

1. Connecting increases your influence

2. Connecting is all about others

3. Connecting goes beyond words

4. Connecting requires energy

5. Connecting is more a skill than a natural talent

All of these principles are consistent with Maxwell’s value-based approach. Once these are in place, he goes into more detail:

Maxwell goes on to explain how these principles are applicable to a variety of situations
and settings vary depending on the situation at hand. They can be applicable to the environment, number of people, and more. He also goes onto talk about social media’s significant impact on modern-day communication. People now no longer have to solely rely on face-face communication. With the rise of Twitter, Facebook, Tumblr, etc. communication has become much more complex. Maxwell speaks of lots of different stories and anecdote and successfully applies these strategies depending on the situation. Some argue that Maxwell’s principle can be too simple. However, the easier people can follow these principles, the more successful they will be.

As Maxwell states, having a strong connection is essential to any form of communication. While Maxwell’s teachings are aimed at the business community, his advice on communication and connection are valuable to all criminal trial lawyers and in particular OUI lawyers in Massachusetts, looking to effectively lead and influence six individuals toward a verdict of not guilty. The joy of being a trial lawyer is that few jobs in today’s society depend so heavily on being able to tell another’s story persuasively to a group to influence the group to action.
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New Mexico v. Herring may clarify law on waiver of Miranda rights for Massachusetts criminal attorneys

December 29, 2012 | by Michael DelSignore

As a Massachusetts criminal defense lawyer, the issue surrounding Miranda rights often arises in felony and misdemeanor cases. Recently, in the case of New Mexico vs. Herring, a defendant successfully argued at appeal that they did not understand the Miranda rights read to them by a detective during a custodial interrogation. This case in particular brings up several issues of Miranda rights that may be further explored in the United States Supreme Court. You can read the filing from the Herring case on the Scotus Blog.

The defendant was held in custodial interrogation for the death of her 3-year-old child. T

The defendant argued that prior to her interrogation, the detective read her Miranda rights in such a hurried and garbled manner that it was unintelligible and therefore she did not understand them. The State argued that the respondent never indicated any difficulty understanding her rights because she indicted she was familiar with Miranda rights from “television” and that she further implied agreement by proceeding to talk with the detective for 5 hours after her rights were given. During this time she admitted to the detective that prior to her son’s death she “slapped him twice and punched him in the head with a closed fist.”

Warrantless search of vehicle raises 4th amendment issues regarding the automobile exception to the search and seizure clause

December 23, 2012 | by Michael DelSignore

As a Boston Criminal defense attorney, one of the most important factors I consider when deciding a defense for a criminal charge is whether the obtained evidence was found during a warrantless search. Evidence obtained during an unwarranted search is not usually admissible in a criminal trial. However, automobiles are a major exception to the search and seizure clause of the Fourth Amendment, so it is important to understand the Constitutional defense available in car searches.

Due to the automobile exception to the search and seizure clause, it is common for police officers to purposely find a justification to use as a pretext for searching an automobile without a warrant. The case of United States v. Scott decided by the 9th Circuit brought up issues regarding the automobile exception to the warrant requirement under the search and seizure clause of the Fourth Amendment. Although this is an out of state case, it raises important issues that could come into play in a Massachusetts firearm or drug case.

After discovering evidence of an illegal drug operation in a Nevada home, police arrived at the home and arrested the suspect at the scene with charges of controlled substance and firearm possession. Upon entering the home, officers claimed that not only could they smell marijuana on the premises, but they also saw the defendant stuff multiple stacks of cash into plastic bags in an effort to conceal them.

Massachusetts OUI Checkpoints to be Plentiful New Year’s Eve

December 19, 2012 | by Michael DelSignore

As Massachusetts revelers prepare to ring in the New Year, law enforcement agencies are gearing up for the launch of an aggressive effort to arrest drunk drivers.

Massachusetts OUI lawyers are also prepared. We know that these blitzkrieg law enforcement attacks are often riddled with technical errors. Police tend to be so concerned with volume during these operations that they often compromise the quality of the arrest.

This is particularly true during the course of sobriety checkpoints, which must adhere to very strict legal protocol. While the U.S. Supreme Court has upheld the legality of checkpoints, so long as they adhere to these protocol, which includes stopping vehicles at random and having a supervising officer on scene at all times.

Meanwhile, there are 12 states where checkpoints have been barred. One of those, Texas, is the scene of ongoing debates regarding the merits and pitfalls of these operations. These discussions serve to shed light on how we currently operate.

In Texas, checkpoints have been outlawed for the last 20 years. Police in San Antonio are now urging the state Legislature to reconsider. Such proposals have been unsuccessfully proposed just about every year in the Lone Star state since 1994.

Still, others, such as the director of the Texas Civil Rights Project, suggests that the debate is mostly political posturing. The fact is, checkpoints aren’t necessary, they are ineffective, expensive and they expand police power. As the director put it, “Every time you do that, they have more discretion and they can use it in discriminatory ways.”

That is what often concerns Boston DUI lawyers. Discrimination can be easily alleged when officers at checkpoints fail to follow the proper numeric format of stopping every, say, fourth vehicle. This may seem fairly simple, but when you’re stopping hundreds of vehicles within an hour or so, there can be a certain level of confusion and details can be missed.

Another proposal Texas is considering is “No Refusal Weekends.” These are operations in which a judge is on site during checkpoints or traffic stops to sign off on warrants compelling suspected drunk drivers to submit to blood or breathalyzer tests, even when they have refused. Massachusetts has considered such operations as well, with our state being the second-highest state in the country where suspected drunk drivers refuse testing (41 percent, according to the National Highway Traffic Safety Administration). The problem with the No Refusal Weekend continues to be that if a judge is processing these warrant requests in assembly-line fashion, how much consideration is truly being given to each case? A strong argument could be made that it isn’t much of one.

Ultimately, what we want you to understand as you set out to celebrate this New Year’s Eve, is that no matter the circumstances surrounding your arrest, we are prepared with a defense.

There have been numerous successful challenges made with regard to the results of both breathalyzers and blood tests, as well as arrests made in traffic stops where probable cause was faulty or police reports were inaccurate.

We want you to have a safe and happy holiday celebration. If you are arrested, don’t let it ruin the new year. Call us to see how we can help.
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