Boston Criminal Attorney Blog

It is said that “Actions speak louder than words.” The Massachusetts Supreme Judicial Court reaffirmed that very powerfully in the area of Massachusetts arrests last week, as it ruled that a person shaking his head horizontally left to right, indicating “no”, is just as powerful and effective as the spoken word when it comes to invoking the constitutional right to remain silent. This right, of course, is familiar to anyone with a television set, and is among several rights encoded in the famous Miranda Rights.

The case stems from an October 2008 arrest of a man suspected of indecent assault and battery on the Boston subway system. The suspect made incriminating statements after he had been asked by police officers for the Massachusetts Bay Transportation Authority (a/k/a the “T”,) if he wished to continue speaking with them, and he had shaken his head back and forth. Specifically, at the start of the interrogation, officers gave the suspect a typical “waiver form” advising the suspect of his right to remain silent and his right to have a lawyer present during questioning. Before the suspect had finished signing the form, an officer asked the suspect if he wished to discuss what he was being charged with. In response, the suspect asked what would happen if he didn’t speak to police. When the officer told him “nothing,’’ the suspect asked that he be allowed to go home. Clarifying, the officer then asked him, “So you don’t want to speak?’’ At that point, the suspect shook his head back and forth.

At trial, the man’s attorney later filed what is called a Motion To Suppress, arguing that his client’s incriminating statements to police should be ruled inadmissible at his trial. The SJC reviewed the case, and agreed with the defendant. This ruling is unusual, because until now in Massachusetts, the legal standard applied to determine whether or not a suspect has validly invoked his right to remain silent, has been the long-held federal standard. That standard requires that a suspect declare his right not to speak with police “with the utmost clarity.” However, the SJC ruled that a person arrested in Massachusetts has greater rights under the Massachusetts Declaration of Rights than provided under federal law on this subject.

According to newly-appointed Justice Barbara Lenk, who wrote the court’s unanimous opinion, “When law enforcement officials reasonably do not know whether or not a suspect wants to invoke the right to remain silent, there can be no dispute that it is a `good police practice’ for them to stop questioning on any other subject and ask the suspect to make his choice clear." Suffolk District Attorney Dan Conley, a prosecutor I often admire, sharply disagreed, saying the ruling will likely confuse police in their interrogations. “The high court now is rejecting the clear federal standard for a less clear standard,’’ a press spokesman for Conley said. “It widens the gray areas in police interviews rather than creating a clear line for police officers to follow." Conley said the police officers who had questioned the defendant believed the act of shaking his head was “an ambiguous response to multiple questions’’ and a simple misunderstanding of the next step in the arrest process. The defendant’s appellate lawyer said the court’ ruling makes clear that a suspect’s right to terminate police questioning must be “scrupulously honored.’’

In my opinion as a Dedham, Massachusetts criminal defense lawyer, given the court’s unanimous ruling, a federal appeal by state prosecutors is unlikely. The legal bottom line: When questioned by police in the state of Massachusetts, a person can invoke the right to remain silent with less clarity than required under federal law.

Quick question: If you’re in a Massachusetts motor vehicle accident with an off-duty police officer, and he or she prevents you from either driving away or leaving the scene of the accident until the appropriate police department arrives, is that an “arrest” for legal purposes? According to the Supreme Judicial Court (SJC), the answer is “No”, and as a result, any evidence obtained by the police who have geographic jurisdiction and are summoned to the scene by the off-duty officer, cannot be excluded at trial.

Let’s start with basics in this area of Massachusetts criminal law, then we’ll get to the facts of this case: At common law in Massachusetts, a police officer cannot generally make a warrantless arrest outside of his territorial jurisdiction. If, for an example, an off-duty Boston police officer made a warrantless arrest of a person in Westwood, that would probably be ruled to be an invalid arrest, and as a result, any evidence that the Boston police officer obtained as a result of that “arrest” would be deemed inadmissible at trial against the person arrested.

In this case, a driver’s automobile collided in Woburn with a vehicle driven by an off-duty Somerville police officer. That off-duty Somerville officer suspected that the driver who hit him was operating under the influence of alcohol in Massachusetts, and the officer prevented the driver from leaving the scene until the Woburn police arrived. Upon arrival, the Woburn police arrested the driver for Massachusetts OUI/DUI, and the driver was later indicted for operating while under the influence of alcohol and for operating with a suspended license and operating with a revoked license. This defendant’s attorney did what as a Dedham, Massachusetts OUI lawyer I would have done in similar circumstances: Filed what is called a ‘Motion to Suppress’, arguing that any evidence that was obtained by the Woburn police, should be excluded at trial in the prosecution's case against the defendant.

The defendant’s argument was that the off-duty Somerville officer’s actions in preventing the defendant from leaving the scene until Woburn police arrived, in effect constituted what’s known legally as an “extraterritorial arrest” of the defendant – i.e., an arrest by a police officer outside of his geographic jurisdiction, without a warrant. In making this argument, the defendant’s attorney here was saying that, as the arrest was invalid, any evidence obtained from it (BAC readings, roadside sobriety tests, alcohol found in the vehicle, etc.) should be ruled inadmissible. A Superior Court judge denied that motion, and the defendant appealed that judge’s ruling to the SJC, which upheld the judge’s ruling. As a result, all the evidence obtained by the Woburn police against the defendant in this case, was allowably used at trial against the defendant.

In making this ruling, the SJC recognized that under the common law, a police officer cannot generally make a warrantless arrest outside of his territorial jurisdiction. However, they found that the off-duty officer’s actions in telling the defendant to step out of the car and preventing him from leaving the scene until local police arrived, fell short of an ‘arrest.’ Instead, the court found that the off-duty officer’s actions more closely resembled an investigatory ‘stop,’ which is not an actual arrest. The court found it reasonable for the off-duty officer — as it would be for a private citizen — to prolong the ‘stop’ until the Woburn police arrived, “in order to ensure the safety of the public and of the defendant himself." According to the ruling, “Viewed objectively, the defendant in this case was not under arrest until … the Woburn police arrived and placed him under arrest. Not only did [the off-duty Somerville officer] not subjectively intend to arrest the defendant, he also did not objectively communicate such an intention to the defendant. As the motion judge found, ‘[the off-duty officer] did nothing to suggest to [the defendant] that he was placing him under arrest.’ As such, Kelleher’s actions here were more akin to a reasonable investigatory stop .. not an arrest. Therefore, the evidence collected by [the Woburn police] Officer Simonds was not obtained in violation of the … law and need not be excluded. …”

So, bear in mind that sometimes, when it comes to police arrests, things can get creative.
The case is Commonwealth v. Limone (Lawyers Weekly No. 10-164-11)

Most Massachusetts drug offense prosecutions involve challenges to how police obtained the illegal drugs that a defendant is charged with possessing. As a Dedham, Massachusetts drug crimes lawyer, I try to prevent this evidence from being admitted at trial, through what are called pre-trial “Motions to Suppress.” The legal bases of these challenges typically revolve around the validity of searches, whether search warrants that might have been issued were valid, whether police had probable cause to conduct a warrantless search, and a variety of other legal reasons.

One method for a police search for illegal drugs was recently challenged in federal court in Boston, with an interesting outcome.

A suspect was arrested for operating a motor vehicle without a license, a Massachusetts motor vehicle violation. However, he police officer who stopped the suspect quickly came to suspect that more than just a traffic violation was taking place. The officer was told by a confidential informant whom the officer knew well and trusted, that suspect had inserted a package of crack cocaine into his rectum just prior to his being arrested. Because the arresting officer trusted the confidential informant due to the informant’s supposedly having produced reliable information for a considerable period of time previously, the officer asked the suspect to submit to a rectal examination for evidence of concealed drugs. The suspect refused. No surprise there.

Following this refusal, the officer then sought a search warrant. In an affidavit supporting the warrant application, the officer stated the information provided to him by the confidential informant and noted the informant’s favorable track record. A state court judge issued the search warrant, which specifically authorized a medical examination of the suspect’s rectum for the presence of hidden cocaine. The suspect was taken to a local hospital so that doctors could perform the search. When a digital (finger) search of the suspect’s rectum revealed no contraband, the doctor then ordered an X-ray of the suspect’s abdominal area. The type of X-ray ordered by the doctor reveals images of the stomach, kidneys and other organs surrounding the rectum. The X-ray revealed no foreign objects in the plaintiff’s rectum, or upper or lower gastrointestinal tract, after which the suspect was released by police and no drug-related charges were filed against him.

This suspect later filed a federal civil rights suit in U.S. District Court in Boston, alleging violation of his civil rights and privacy rights as a result of the medical searches performed on him at the hospital. Essentially, the now-plaintiff argued that the medical examinations constituted and unreasonable search, which he claimed violated his Fourth Amendment protections against unreasonable searches and seizures. More specifically, the plaintiff’s argument was that the police aggravated the intrusion by searching beyond the scope of the search warrant, by searching his stomach as well as his rectal cavity.

A federal judge quickly found in favor of the police officers and the hospital. But that didn’t stop this person – he went on to file an appeal with the federal appeals court in Boston, which is the 1st Circuit Court of Appeals.

The result? No lucky breaks for this suspect: The unanimous appeals court panel of three judges affirmed the lower court’s ruling in favor of the police and the hospital. The court noted the importance of tackling this type of question, writing: “We have not yet considered the circumstances under which the police may be justified in compelling a suspect to submit to an x-ray search of a part of his body. This case raises interesting questions regarding the constitutional limits of searches conducted by the police with the aid of modern technology and medical professionals.” But the court found no constitutional violations in search warrants authorizing an x-ray search of a suspect’s internal body cavities." In weighing the reasonableness of an intrusion of a suspect’s bodily integrity, a court “must consider the strength of the suspicion driving the search, the potential harm to the suspect’s health and dignity posed by the search, and the prosecution’s need for the evidence sought. “We hold today that … although the x-ray was an encroachment on the appellant’s privacy interests, this encroachment was plainly outweighed by other factors… A diagnostic x-ray is a routine medical procedure that is brisk, painless, and generally regarded as safe.” The court also noted that the evidence sought in the X-ray search was unavoidably necessary to confirm or deny the officers’ belief that the suspect had committed a Massachusetts drug crime.

So, it seems that if someone is stopped by police and is in possession of illegal drugs, the phrase “shove it” won’t help much.

The decision is Spencer v. Roche, et al.

Here’s an interesting point: Most people would be able to tell you that if you are questioned by police in a police station or in an environment where your ability to leave is otherwise restricted, police must read you your Miranda Rights. This type of questioning is referred to legally as “custodial interrogation.” Miranda Rights, as anyone with a television set knows, are the rights that persons are afforded by the United States Constitution, whenever a person is the subject of custodial interrogation. These rights were first created by a famous U.S. Supreme Court case, Miranda v. Arizona.

But what if a person is questioned in his home by police? Is he entitled to be provided his Miranda Rights in that setting? A federal Appeals Court recently took a look at that, and had an interesting answer. It all started when a U.S. naval officer living in Maine, claimed that when he was questioned by police in his home as part of a crime investigation, he was effectively “in custody”, and that because police did not provide him his Miranda Rights, any statements that he made to them as part of that questioning should be inadmissible in court.

Do you think most people would agree? Well, the U.S. Court of Appeals for the 1st Circuit did.

As I always say, the Devil is in the details, so here they are: It seems the defendant sold his personal computer to someone. The buyer found child pornography on the computer, a sex offense in Maine (and also a Massachusetts sex offense,) so he called the local police, who dutifully teamed up with the Maine state computer crime unit to investigate. Because of the fact that the suspect was a naval officer at Maine’s Brunswick Naval Air Station, the police also involved the Naval Criminal Investigative Service, or NCIS. State police obtained a warrant to search the residence where the suspect lived with his pregnant wife and child, and they made plans to conduct the search at a time when they knew that the suspect would be on duty at the naval station. Meanwhile, NCIS staffers asked the suspect’s commanding officer to order him to report to them at the base, where they instructed him to go directly home. They gave the suspect no explanation.

When the suspect arrived home, an officer told him that he was not going to be arrested and reassured him that the police were concerned not so much with the fact that child pornography was on his computer, as where it was downloaded from. When questioned, the suspect first denied that he had downloaded the material, but he eventually admitted he had. After about an hour of questioning, the police asked the suspect if he would come to the police station for more formal questioning. He agreed. Once there, he was advised of his Miranda Rights, per standard police procedure. Notwithstanding, he agreed to talk and signed a waiver of his rights.

As a result of questioning, he was charged with unlawful possession of child pornography. His attorney filed a Motion to suppress his statements to police while in his home, and when the motion was denied, he pleaded guilty. Notwithstanding, as part of his plea, he reserved the right to appeal the court’s decision denying his motion to suppress the statements he made to police in his home. A federal appeals agreed with him, and reversed the lower court’s denial of the defendant’s motion to suppress his statements. The court ruled that “We think the record speaks with a fair measure of clarity in showing that the combined law enforcement authorities [involved] deliberately planned to subject [the defendant] to unwarned questioning under conditions that would make it difficult for him to avoid them.” “We … infer that [the defendant]’s situation at the house would have left any member of the armed services reasonably feeling that he lacked free choice to extricate himself, and sufficiently compelled to answer to authority.” As a Boston, Massachusetts criminal defense attorney, I can tell you that the key to this reasoning is that here, the defendant had been ordered by his military superiors at the naval base to go to his home, where police were waiting for him as part of an orchestrated plan. The court didn’t feel that a member of the service in the defendant’s position would feel free to leave his own house under those circumstances: “To begin with, we think [the defendant] was in custody at the house under conditions that required the Miranda warnings, the want of which compels suppression of the statements given there. The dispositive basis for our [decision] goes to the weight to be assigned to the influence of military authority on someone in [the defendant’s] position when subject to the order he was given on the morning he was questioned.” [I]t is fair to say that whenever a member of the services is questioned in circumstances mandated by a superior’s order, he is in the situation that Miranda was meant to address, where the line between voluntary and involuntary response is at least so blurred that the Fifth Amendment guarantee is in jeopardy.”

Given the offense that was involved in this case, a lot of people might find this decision objectionable. I can understand that. But why is this case important? First, because as I said above, a lot of Massachusetts residents now have a family member serving in some branch of the armed forces – whether full-time or National Guard. That exposes them to potential interrogation scenarios such as existed in this case. Second, even if someone isn’t in the military, if police question someone at their home within an atmosphere that leads the person being questioned to believe that he is not free to leave the interview, that situation likely triggers Miranda Warnings. If those rights are not provided, statements made to police while in your home may be inadmissible in court. Third, Miranda Rights are among rhe most important and admirable of criminal law rights in America, and once they are chipped away at, we're all at risk of losing those rights.

Always remember: If you are ever questioned by police, ask if you are free to leave or otherwise terminate the interview. In general, when questioned by police in a criminal matter, it is best to have a Massachusetts criminal defense lawyer present.

Courts – especially appellate courts – usually exist to apply the law, not advocate for specific changes in the law. Advocacy of that nature is typically the responsibility and territory of legislators, lobbyists and activists.

So it was with not a small amount of notice in the legal community in Massachusetts, that two Justices of the Supreme Judicial Court (SJC,) yesterday took the unusual step of advocating that the Massachusetts Legislature enact a change in a crime-fighting law that has existed since the late 1960’s. Enacted in 1968, this law is a wiretap law, which allows police and law enforcement investigators to use wiretaps only when the targets of the investigation are engaged in organized crime. In the case that was before the court for review, a man was recorded on tape admitting to a 2007 drive-by killing in Brockton. Prosecutors attempted to use the tape against the defendant at his Superior Court trial, but the tape recording was excluded from evidence by the trial judge, who ruled that the defendant’s activities did not fall under the definition of “being in connection with organized crime.” The Commonwealth appealed her ruling, and the SJC agreed to hear the case.

In a 7-0 ruling, The SJC stated that the language of the existing statute makes clear the specific type of criminals that police officials are allowed to surreptitiously tape record: Individuals in “a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services.’’ In the Tavares case, the court found that while this murder suspect (Tavares) and two other suspect under investigation by State Police were part of a “putative street gang,’’ Tavares did not qualify as being an “organized crime” figure. They concluded this because prosecutors did not introduce evidence that Tavares was part of what Massachusetts law describes as a “pecuniary enterprise, such as drug, gun, or contraband trafficking, or promoted some other unifying criminal purpose.’’

While a lot of people won’t like this, Justice Robert Cordy wrote that street gang members enjoy the same legal rights as any other person in Massachusetts, and absent police and prosecutors producing the type of evidence that the law requires, wiretap evidence is inadmissible in criminal trials where the defendants’ activities don’t meet the definition of being engaged in “organized crime.”

Criminal defense and appellate lawyers know how to read between the lines, and it was clear that among the 7 justices voting here, more than one was holding his nose as they voted on this case. They were upholding the law, but it was clear that it wasn’t a pleasant process (as many of these tough decisions aren’t pleasant.) But two of the Justices, Ralph D. Gants and Judith Cowin, took the unusual step of writing a separate but concurring opinion, in which they openly urged the Legislature to wake up and change this law, so that it can be applied to appropriately prosecute street gangs.

In writing a forcefully worded concurring opinion, Justices Gants and Cowin strongly suggested that the legislature should delete five words from state law, which would have the effect of applying the law to members of street gangs, thus rendering secretly recorded conversations of such gangs admissable in court. “The legislative inclusion of five words, ‘in connection with organized crime,’ means that electronic surveillance is unavailable to investigate and prosecute the hundreds of shootings and killings committed by street gangs in Massachusetts, which are among the most difficult crimes to solve and prosecute using more traditional means of investigation,’’ Gants wrote (emphasis added here.) He and Justice Cowin urged the legislature to correct this omission.

In the interests of fairness and honesty, police officials and prosecutors have a point to make here. The more serious Massachusetts drug crimes and violent crimes, are very often the product of street gang activity. As a Boston, Massachusetts criminal defense lawyer, I do not disagree with this approach, as long as any change in this statute is done in accordance with appropriate legislative procedure, and after requisite hearings before the appropriate legislative committees, including the Joint Judiciary Committee.

In my previous post, I discussed a recent Massachusetts Supreme Judicial Court (SJC) ruling, concerning the admissibility of jail inmates’ recorded phone conversations. More accurately put, the decision concerns not so much the admissibility of these recordings in and of themselves, but in how the recordings must be obtained by prosecutors, before the recordings will be allowed as admissible. The court’s unanimous decision ruled that in prosecutors unilaterally drafting and presenting this subpoena to jail officials (a sheriff in this case,) and in obtaining these recordings in this manner without first obtaining a judge's approval, prosecutors violated the Massachusetts Rules of Criminal Procedure by not obtaining prior court approval for the subpoena. Justice Margot Botsford, writing for the court, said that the requirement to seek prior court approval for pretrial subpoenas “seems especially appropriate in a case like this one, where the information sought recordings of the defendant's telephone conversations are at least arguably confidential in some sense, whether entitled to constitutional protection or not." The high court referred the case back to Middlesex Superior Court for a hearing to determine whether Odgren's constitutional rights were violated in the first place, by the initial issuance of the subpoena for the recordings.

A central issue here, is leveling the playing field between prosecutors and defense attorneys on the issuance of pre-trial subpoenas. As a Boston criminal defense lawyer, I can assure you that this issue is always lurking beneath the surface, in courtrooms across the state. The reason is that historically, District Attorneys’ offices in Massachusetts had always claimed that they had the authority to unilaterally issue subpoenas for the pretrial production of evidence in a criminal case, without having to obtain a judge’s prior approval - whereas defense attorneys were required to obtain judicial approval for such subpoenas. Doesn’t sound too fair, does it? Notwithstanding, Middlesex County District Attorney Gerry Leone responded to the SJC ruling, by saying that prosecutors will continue to seek recordings of inmates’ phone conversations. "This decision clarifies the process that the commonwealth must follow to obtain communications made by incarcerated defendants who have previously been informed that their calls are being recorded," Leone said. "It continues to be our position that this and other incarcerated defendants do not have an expectation of privacy regarding their jail calls. We will now move forward with the process the court has outlined to obtain those calls and are confident that we will prevail in these efforts."

Odgren’s lawyer had argued that prosecutors were required to appear in front of a judge to request the tapes, and further that prosecutors needed to request specific days and times that were recorded, instead of large spans of recordings so they could try to “mine” the recordings for anything useful for the Commonwealth’s case. The court agreed, and as I read this opinion as a Norfolk County Massachusetts criminal defense attorney, it appears to me that the court may have left the door open to a future ruling that depriving a juvenile of any opportunity to communicate privately with his family about his case, might constitute a violation of constitutional rights. The other side to this argument, of course, (and not a completely illegitimate one,) is the fact that inmates, and those who are either visiting them personally and/or talking with them over the phone, are clearly informed beforehand that their conversations are being recorded.

Odgren, who remains in jail awaiting trial, faces life in prison without the chance of parole if convicted of first-degree murder in Massachusetts. He is scheduled to appear in Middlesex Superior Court on Oct. 26 for a pretrial conference.

In the constant tug-of-war between Massachusetts prosecutors’ offices and criminal defense attorneys over admissible evidence, the Massachusetts Supreme Judicial Court (SJC) yesterday issued a ruling against prosecutors, and in favor of defendants who are incarcerated and awaiting trial.

The case concerns a shocking event that occurred in January 2007, at Lincoln-Sudbury Regional High School, which I’ve blogged about previously (actually, it was my very first post on this blog). The defendant was a then-16 year old high school student by the name of John Odgren, now a guest of the Commonwealth at the Middlesex Jail in Cambridge (he was previously held at a juvenile facility in Plymouth, until he turned age 17). On January 19 2007, Odgren is accused of luring a fellow student into a boys bathroom in the high school - a student he didn't even know and had apparently no history with - and plunging a 13-inch carving knife into his heart five times, killing him in a savage bloodbath. When the attack was finished, Odgren openly admitted to bystanders that he killed the boy. Witnesses reported that he even helped to try and stop the victim’s bleeding. His attorney does not dispute that Odgren committed this murder. His defense will be based on a legal principle known as "Lack of Criminal Responsibility," which essentially means that the defendant lacked the mental capacity to understand the criminality of his act, or to conform his actions to the law. Reportedly, this defense will be based on Odgren’s assertion that he suffers from "Asperberger’s Syndrome" – a type of autism that can allegedly cause uncontrolled, violent behavior.

Prosecutors aren’t buying this claim, and to prove that Odgren does not suffer from any such mental disorder, Middlesex County District Attorney Gerald Leone’s office tried to obtain tape recordings of Odgren’s phone calls to family and friends outside the jail, as well as recordings of his conversations with visitors inside the jail (visitors are separated from inmates by a glass pane, and the inmate must communicate with such visitors through a phone). Inmates and visitors are advised in writing that all such conversations will be tape-recorded. The District Attorney wanted tapes of Odgren’s conversations, presumably to use them as evidence at trial to try to prove that he relates in a perfectly normal manner to other people – that he does not suffer from a mental disease or defect. If a jury were to hear recordings of conversations that Odgren has had with friends, family and visitors while in jail - in which he displayed no discernible evidence of a failure to understand his actions or exhibited no other evidence of mental illness - that would present a formidable problem for the defense.

From a prosecutorial point of view, that's not a bad strategy. But it's the manner in which prosecutors had tried to obtain the tapes, that resulted in the SJC's ruling here - not the tapes themselves. The vehicle by which prosecutors tried to obtain the tapes is known as a “subpoena dues tecum." This is an instrument that is used to obtain documents from a witness (in this case, prison administrators who kept the tapes of Odgren’s recorded conversations). Subpoenas are usually issued automatically by a court clerk, and must be served personally on the party being summoned. In this case, prosecutors issued the subpoena to jail administrators without prior court approval, and the jail turned the tape recordings over in lieu of a hearing in front of a judge. Note to county sheriff's and state prison administrators: Think twice about this from now on.

I’ll tell you what the SJC specifically had to say about this, and why, in my next post.