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Articles Posted in Search & Seizure

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 a breakthrough ruling for police and prosecutors, the state’s highest court has ruled that the Massachusetts Declaration of Rights (embodied in the state Constitution,) permits police to secretly break into a suspect’s car for the purpose of covertly installing a GPS tracking device.

Not only is the ruling a major boost to police investigators, but the Supreme Judicial Court’s (SJC) ruling was unanimous – which is somewhat of a rarity at the SJC. The decision, written by Justice Judith Cowin, upheld the drug trafficking conviction of one Everett H. Connolly, of Cape Cod. Connolly was convicted of a drug trafficking charge after he was tracked by State Police and found to be in possession of an amount of cocaine weighing 124 grams. The State Police were able to track Connolly, because in 2004, while in his vehicle, Connolly sold crack cocaine to an undercover police officer in Harwich. Police did not arrest Connolly in that undercover operation, but instead applied to a judge for a warrant to place a GPS tracking device in his van, to track his movements further. On Aug. 31, 2004, State Police installed the GPS device inside Connolly’s van while it was parked at his apartment complex.

When Connolly returned from driving to New York – where police had learned he obtained his cocaine – State Police tracked him on Route 6, stopped him and seized the van. Inside, they found the cocaine. After trial on the drug possession and trafficking charges, Connolly was sentenced to 12 to 15 years in state prison by Barnstable Superior Court Judge Gary Nickerson. On appeal, the court ruled that police use of GPS devices as an investigative tool – even when secretly breaking into a vehicle in order to install the device – does not violate the ban on unreasonable searches and seizures found in the Massachusetts Constitution. The ruling, however, requires that two conditions must exist before a GPS device could be secretly placed in someone’s vehicle: “The Commonwealth must establish, before a magistrate… that GPS monitoring of the vehicle will produce evidence” that a crime has been committed, or will be committed in the near future; and 2) The tracking units can only be installed for 15 days. By contrast, in most other matters, search warrants remain in effect for just seven days.

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