CORONAVIRUS UPDATE: Click Here to Learn What We Are Doing to Protect Our Clients

Articles Posted in Cyber Crimes

In Part One of my previous post on this subject, I discussed the Supreme Judicial Court’s recent ruling upholding the validity of a search warrant issued for the defendant’s computer, when the warrant was issued seven months previous to the computer’s seizure.  That case is  Commonwealth vs. Guastucci, SJC-12829, and the defendant was convicted of uploading and possessing child pornography on his computer.  A video of oral arguments before the SJC can be viewed by clicking here, courtesy of Suffolk University Law School.

Before going further, let’s define the legal standard that police and law enforcement must establish, in order for a judge to issue a search warrant.  Very briefly, it’s called “probable cause”.  Basically, this means that a judge must find that a substantial basis exists to believe that evidence of criminal activity may reasonably be expected to be located in the location searched “at the time the search warrant issues”  (Commonwealth v. Long, 482 Mass. 804, 809; 2019). Generally speaking, it is not overly difficult for police or a law enforcement agency to obtain a search warrant.   That being said, what made the Guastucci case notable was that the defendant didn’t deny any other elements of the crime he was charged with – it was his “staleness” argument over the search warrant that was at issue.   On appeal from his conviction, the defendant argued that the passage of seven months between the alleged upload of child pornography and the application for a search warrant rendered the warrant stale so that it lacked probable cause.

This legal argument failed. The SJC affirmed Defendant’s conviction of two counts of possession of child pornography, holding that the information in the search warrant was sufficient for a magistrate to have found probable cause, and that the information in the trooper’s application for a search warrant did not render the warrant so stale so that it lacked probable cause.

Search warrants have traditionally been the focal point of many an appellate court’s decisions in the area of criminal law.  This area of law is governed by the Fourth Amendment to the U.S. Constitution and here in Massachusetts by Article 14 of the Massachusetts Declarations of Rights, and is extremely important because it governs when and under what circumstances the government can search and/or seize items in your possession.  This is true whether those items are located in your home or on your person.

As a Massachusetts internet crimes attorney, I can assure readers that the fact that personal computers and smartphones are a now ubiquitous element of our everyday life, has elevated legal issues surrounding search warrants to a very high degree.  This fact was illustrated in a recent case on this legal topic decided by the Massachusetts Supreme Judicial Court, in Commonwealth vs. Guastucci, SJC-12829. Continue reading

In an important legal decision upholding the convictions of two defendants for criminal harassment, the Massachusetts Supreme Judicial Court (SJC) ruled that internet harassment (or “cyber-harassment”) does not constitute free speech, protected under the First Amendment to the U.S. Constitution.

Veteran Boston Herald courthouse reporter Laurel Sweet reported on the story, noting that the case under review, Commonwealth v. William P. Johnson, involved two Andover real estate developers named William and Gail Johnson. Both of these defendants were convicted of criminal harassment in Lawrence District Court in 2011. William Johnson was sentenced to 18 months in jail; his wife Gail Johnson was sentenced to six-months in jail for her role in the harassment scheme. The pair wanted to subdivide and develop land in Andover, but an abutting neighbor, James J. Lyons Jr., and his wife, Bernadette Lyons, opposed their plans, as well as did other neighbors. Both the District Court in Lawrence as well as the SJC found that the Johnsons launched their harassment campaign after the Lyons opposed the Johnsons’ development plans. According to the SJC, the Johnsons’ harassment included William Johnson falsely reporting to the state Department of Children and Families that James Lyons had sexually abused a boy. “They literally tried to have our kids taken away from us,” James Lyons, who is now a state representative, commented that “These people invested [their] time and money to torture my wife, my boys, and myself.”

The Johnsons also paid a third party to post false information online that claimed that the Lyons’ had property they wished to sell or give away, resulting in their phone lines and email accounts being deluged by strangers responding to the false ads. The postings even included Craigslist ads which advertised free golf carts on their yard for pickup by anyone, providing the Lyons’ address and phone number. Even worse, the Johnsons paid this third party to also post an online ad under the Lyons’ name, claiming that the Lyons’ had were selling their deceased son’s Harley Davidson motorcycle for $300. The Lyons never lost a son. All in all, abominable behavior.

Contact Information