“Pinging” for Cell Phone Location Data Unconstitutional

“Pinging” for Cell Phone Location Data Unconstitutional 

 As technology advances, it is often difficult for the court’s to keep up with changes in the world and implementing or amending laws that are fair or outdated. But this is particularly so when it comes to cell phone technology and how to balance or implement the appropriate legal safeguards so that our constitutional protections are balanced and protected in every aspect of life. 
Several years ago, Massachusetts appellate courts addressed the issue of whether a warrant is required for the police to obtain a person’s cell site location information, or “CSLI” (the data from which your cell phone connects to a cell phone tower when a call is made, thereby providing an approximate location of the device at the time of the call). The Massachusetts Supreme Court ruled that a warrant satisfying the standard of probable cause was required for the government to obtain CSLI data.
But what about real time data or “pinging” of one’s cell phone to obtain the precise location of a device? Cell phones can transmit signals, irrespective of whether a call is being made. Police or the government can “ping” or compel any particular cell phone to transmit a signal. The cell phone user would not know that his phone is being pinged and this signal would then reveal to the government the real-time location information.
Several courts across the country have addressed the issues of a person’s privacy in their cell phone data (including stored personal information and messages) and historical CSLI tracking. Both the United States Supreme Court and the Massachusetts Supreme Court have issued decisions guarding against “the power of technology” against privacy rights. Neither court, however, has, until recently, addressed whether the police action of “pinging” an individual’s cell phone to reveal its real-time location intrudes on any reasonable expectation of privacy citizens have in their cell phones.
In its recent decision in Commonwealth v. Almonor, the Massachusetts Supreme Judicial Court concluded that police action in causing a cell phone signal to emit its real-time location information does implication reasonable expectations of privacy and a search warrant is required. Individuals have cell phones for many reasons: for business; personal use; communication; e-mails/texts; internet access; but primarily to make and receive phone calls. These reasons, all legitimate, do not authorize the police, without judicial approval and oversight, to invade, manipulate or otherwise compel one’s cell phone to transmit its location information or reveal any other private information.  As such, the court reasoned that “society reasonably expects that the police will not be able to secretly manipulate our personal cell phones for any purpose, let alone for the purpose of transmitting our personal location.”
Of course, there could very well be “exigent” or emergency circumstances where a warrant would not be required to obtain real-time location information. Such circumstances might include, for example, a murder suspect or someone who is armed and dangerous and poses an immediate threat to others; tracking a person suspected of kidnapping a child; or tracking a missing person. In such circumstances, applying for and waiting for judicial approval for a warrant is often impracticable where time is of the essence.
The courts, therefore, are faced with the challenge of balancing these competing interests. The privacy interests of ordinary citizens versus law enforcement’s desire to utilize all the surveillance techniques and options at their disposal.

The Crime of Threatening to Commit a Crime in Massachusetts

The Crime of Threatening to Commit a Crime in Massachusetts

Threatening to Commit a Crime

Most people do not realize that threatening to commit a crime in Massachusetts is actually a crime itself. Someone who makes a threat against someone or property can be charged with a crime under M.G.L. Chapter 275, Section 2. While a threat to commit a crime is clearly not as serious as actually committing the crime itself, it is still a criminal matter and charges for making a threat to commit a crime should be taken and defended against seriously. The gravity of the charge is fact specific. The more serious the threat the more ardent the prosecution.

Defending Against Charges of Threatening to Commit a Crime

There is a line between what is considered to be free speech under the law and what is considered to constitute a threat made against a person or property. It is well established that free speech is protected by the First Amendment of the U.S. Constitution, but when words – either spoken or written – are of a threatening nature, the person making the threat has often gone too far.

Defending charges of making a threat can be a tough legal challenge, but there may be a free speech defense available to you. Criminal defense strategies depend on the specific circumstances of your case, and you should discuss your legal options with an experienced Massachusetts criminal defense lawyer like me as soon as possible. Your words might not rise to the level of a threat or may have been taken out of context in a way that can be misconstrued as a threat. The language of the Massachusetts statute for threatening to commit a crime is broad and ambiguous, and something what was said or written might be enough to entice a police officer to make an arrest based on probable cause, but might not be sufficient for a judge or jury to convict on the theory of beyond a reasonable doubt.

Massachusetts Case Law on The Crime of Threats

Words alone, including words that express a threat do not satisfy the elements of G.L. c. 275 Section 2. Rather, the words must be communicated to the intended victim. This can be done directly or indirectly. In other words, if someone uses threatening words to a third person without the intent of these words being passed on to the victim the charge of threatening to commit a crime cannot stand. This proposition was well articulated in the case of Commonwealth v. Furst decided by the Massachusetts Appeals Court in 2002. Based on the complicated nature on this charge, you need an experienced lawyer to review your case to make sure there actually is probable cause for a summons to issue on this charge or even rises to the level of arrest. Call me today for a free consultation.

Immediate Threat License Suspensions In Massachusetts

Immediate Threat License Suspensions In Massachusetts

It can be easy to lose your right to operate a motor vehicle in Massachusetts. Law enforcement has the option to request that the RMV revoke your driving privileges for an indefinite period of time. This little-known suspension which is well-known by police departments across Massachusetts and can have a devastating impact on you if you are not familiar with its’ consequences. The suspension is known as an immediate threat suspension. These suspensions are governed by G.L. c. 90 22(a) and (b).

How Are Immediate Threat Suspensions Imposed?

Police officers can recommend this type of suspension if they feel your continued operation of a motor vehicle is a danger to public safety. All the police have to do is fill out a short form and fax it to the Driver Control Unit of the Registry of Motor Vehicles.

Immediate threat suspensions are indefinite suspensions of your right to operate a motor vehicle in Massachusetts. Indefinite means there is no specific date that your license will be reinstated.

Typically, these types of suspensions begin by a police officer or medical professional sending a request to the Registry of Motor Vehicles. The RMV will review the request and suspend or revoke the driver's license. For this suspension the RMV must find that there has been an automobile law violation and that continued operation is a threat to public safety.

Does The Registry Ever Deny The Suspension Request?

Far more often than not, the RMV will support the police officer's request and immediately suspend your right to operate a motor vehicle in the State of Massachusetts. The immediate threat license suspension will go into effect before you as the driver get to contest the suspension and tell your side of the story. You are deemed to be an immediate threat before any RMV hearing officer even meets you. To make matters worse, you will receive notification of the suspension both by regular mail and by hand delivery when a police officer comes knocking on your door to serve you with a copy in hand. Only after you have already been suspended can

you take any steps to contest the suspension. While these suspensions were meant to protect the public from serious and imminent dangers, even minor traffic violations are being met with attempts to immediately suspend driving privileges. If you or someone you love is facing this type of license suspension, take action right away to protect your rights and retain your license.

In some cases, the RMV may afford you just a little bit of flexibility and give you a notice before the suspension starts. Remember, whether you are immediately suspended or afforded 10 days advance notice, your right to operate a motor vehicle in Massachusetts will be suspended for an indefinite period. If the incident which gave rise to the police making the initial request involves any criminal charges, the RMV will oftentimes not consider your reinstatement appeal until the criminal matter has been resolved.

Reinstatement conditions will not be determined until the criminal case is resolved. This delay can often take many months to sort out, during which your license is suspended. It is critical to have an attorney who can handle both the criminal matter and license suspension matters. In addition to having to potentially resolve any criminal matters and to meet any of the RMV reinstatement conditions, there is also a mandatory $500 reinstatement fee.

Starting Your Case To Get Back On The Road

Many Massachusetts drivers are unclear about their rights. There are no hardship licenses on immediate threats. These are public safety suspensions with no specific end dates. These suspensions and how to get them resolved can be a complicated and confusing process. The RMV in many cases will continue to change requirements time and time again.


When you appear before the Board be aware the process is being recorded. The Board will address you first and explain the process. They will notify you that they have the authority to overturn the RMV’s decision, uphold the decision or hold the matter open for a period of time so that you can come back.

You will be seated at a table before the Board. A representative will be seated at another table. The representative from the RMV will speak first. They will outline the facts that lead to your suspension, if there is a police report they will read from that. They will then tell the Board if you have appeared at the RMV and what decision the RMV made. Next, they will tell the Board about your overall driving record. Lastly, they will make an argument explaining why the Board should uphold your suspension.

You will then be given the opportunity to present evidence on your behalf including letters from treatment programs or therapists and you may present witnesses. If you have an attorney representing you they will argue on your behalf and explain to the Board that you are not an "immediate threat to public safety" and that your license should be restored.

The Board may ask you questions about how the incident occurred and what steps you have taken to remedy any underlying issues. This is an important part of the hearing and it is recommended that you have an attorney with you who understands what type of information the Board is looking for.


The Board of Appeals has the authority to modify or over turn most RMV decisions. They can also choose not to act on your appeal and ask you to come back after a certain period of time. The Board will hold a matter open when they believe that not enough time has passed between the suspension and the appeal or when they want to offer you more time to file paper work or complete driving or treatment programs.

The Board will not make a decision on the date of your hearing. They will mail you the decision later that week. If you are still unsatisfied with the Board's decision you must appeal to the Superior Court within thirty days.

Getting back on the road can be done with my help. I have helped clients throughout the Commonwealth get through these devastating suspensions and get back on the road. At the Law Office of Kerri Reed, I offer practical advice and a clear plan of action. Call me, today at 978-792-5035 or contact me online at kerri@kerrireedlaw.com for a free consultation.

From her Amesbury office, attorney Kerri Reed represents clients all over the state of Massachusetts. Fill out the form on this page or call the office today to connect with her and set up a free consultation. Kerri will discuss your case in the office or even online and determine the best way forward for your unique situation.

Can the Police Test Your Blood Without Your Consent? The Massachusetts Appellate Court May Decide.

Can the Police Test Your Blood Without Your Consent? The Massachusetts Appellate Court May Decide.

 The Massachusetts statutes state that when a chemical “test or analysis” of a defendant’s blood-alcohol content is made by or at the direction of police, it is admissible in court only if the defendant consents. In the case of Commonwealth v. Eric Moreauthe police obtained a warrant to seize blood drawn from the defendant by hospital personnel and then tested it in the State Police Crime Lab without the defendant’s consent. This case is pending before the Massachusetts Appellate Court and asks whether the result of the test is admissible in the prosecution of the defendant.

What happened in the Moreau case?

In September of 2020, Officer Willis of the Gardner Police Department responded to a report of a  car that struck a tree. The officer observed Moreau to be unsteady on his feet, glassy eyed, and slurring his speech. He was transported to the hospital for an evaluation. The officer obtained a search warrant for Moreau’s blood. The warrant was executed but there was no evidence that Moreau consented.

Moreau was charged in Gardner District Court with operation of a motor vehicle while under the influence of liquor and negligent operation of motor vehicle. Moreau filed a motion to suppress the results of the blood alcohol analysis.

The judge denied Moreau’s motion to suppress the blood alcohol results on the theory that the OUI statute only prohibits police from drawing a defendant’s blood without his consent but does not prohibit the police from then testing that blood without his consent.

Moreau is appealing this result on the theory that the judge misinterpreted the statute. The first reason is that the Massachusetts legislature provided residents with more protection than the United States Constitution. The statute plainly requires consent for Blood Alcohol Content analysis and cannot be read to only apply to blood draws. 

 The legislature intended to create protections for OUI defendants that exceed those protections provided by the Constitution and the Declaration of Rights. The history of the statute supports that the legislature understood the scope of protection it was granting.

The involuntary collection of a blood sample is a search and seizure and therefore violates the defendant’s right to privacy. One’s blood and all the information contained in it, is private.

Sealing or Expunging Your Criminal Record

Sealing or Expunging Your Criminal Record

Does your criminal record need to be cleaned up? It is important to understand the impact that your criminal record and associated criminal history may have on employment, volunteer opportunities, coaching youth organized sports, field trips, and other endeavors. Whether the person looking into your criminal record has access to your criminal history information depends upon the manner in which you were charged, whether you were arrested, the type of case you were charged with (misdemeanor or felony) how long ago you resolved your case and how old you were at the time. These factors will play a role in whether your history is visible to the person who wants a copy of your record. There different levels of access to a criminal record and whether a person looking for your criminal history will be granted access would be determined in part by the factors listed above. The important question is how to limit this access even further. This brings me to the advice I would give anyone with a criminal record whether juvenile or adult – look into the ability to seal or expunge your criminal record. If you seal your criminal record, then the ability to access that information is limited to law enforcement and the like. If you fall into the small number of cases in which expungement is an option – you may be able to remove the case from your record as if it never happened.

Although the need for access to a person’s criminal history may be necessary, that does not mean that your particular case needs to fall within this category. There are two different ways to petition a court to seal or expunge your criminal record. The first option is based upon the amount of time that has passed since the incident occurred and the second is a direct petition to the judge regardless of the time since the case was resolved. The ability to seal based upon meeting the minimum time requirements is an easier hurdle than petitioning the court to seal your criminal record before the expiration of those minimum time standards. If your case is successfully sealed – Massachusetts law requires that any record check returned indicate “no record” instead of indicating the existence of a sealed charge/conviction.


The ability to expunge a criminal record requires the highest showing of need; that either you meet the minimum standards set by the Board of Probation and fall into the category of individuals contemplated when implementing this legislation (predominantly individuals 23 or younger) or you can show the court that some sort of major mistake was made with respect to your case. The process of obtaining an expungement is relatively new as it only came into effect at the end of 2018. However, if you do meet the standards as set forth by the legislature, this option may be your best option and can accomplish your ultimate goal of cleaning up your criminal record.

What is Juvenile Diversion?

Juvenile Diversion aimed at rehabilitation and an understanding of consequences for one’s actions. In April of 2018, Massachusetts passed a Crime bill that allows greater flexibility to juvenile judges as it relates to certain charges and associated penalties. The law expands the ability of the Judiciary to adopt Juvenile Diversion programs. The law’s approach to juvenile crime can often be confusing and difficult to navigate. If a minor (Under the age of 18) has committed a crime, it’s possible that the juvenile would qualify for a “restorative justice” or juvenile diversion program. Juvenile diversion programs may vary depending on the crime, but usually involve offenders taking responsibility for their actions by helping them understand the consequences of their crimes, and providing an opportunity for making restitution. It permits an opportunity for the juvenile to address the matter and minimize the impact to their criminal record.

According to Session Law, chapter 69, restorative justice constitutes a “voluntary process whereby offenders, victims and members of the community collectively identify and address harms, needs and obligations resulting from an offense, in order to understand the impact of that offense; provided, however, that an offender shall accept responsibility for their actions.”

In layman’s terms, the juvenile diversion program may mandate that the offender complete community service, undergo counseling, enter and complete programming for drugs or alcohol, write a letter of apology, complete a driving course, etc. The goal of the program is to have the juvenile learn from their mistake, correlate the punishment to the offense and prevent the juvenile from committing the same offense or hopefully another criminal offense again.

It is important to note that participation in juvenile diversion is voluntary. These programs may be recommended pre-arraignment or at any stage during a case as long as the district attorney and the victim give their consent. Successful completion of a community-based restorative justice program or more commonly referred to as juvenile diversion will result in the charge being dismissed, while any violation of the program will cause the case to be returned to court.

Some offenders are wary of participating in a diversion program, fearing that it amounts to an admission of guilt, that is not the case. Taking part in these programs does not reflect guilt, nor can any statement made during the course of the program be held against them in court.

Restorative justice has become an increasingly popular option in courts all across the country. This method actually has the highest rate of victim satisfaction and offender accountability compared with more traditional methods. Studies also suggest that it makes offenders far less likely to reoffend because rather than merely administering punishment, it actually educates the offender.


A defendant is not eligible for community-based restorative justice programs if they have been charged with a sexual offense, an offense against a family or household member, or an offense resulting in serious bodily injury or death.

What are My Miranda Rights and My Right to Remain Silent?

Under the United States Supreme Court case Miranda v. Arizona, a defendant has specific Miranda Rights including the right to remain silent and the right to be represented by an attorney. Once a defendant invokes his or her Miranda Rights, the officers are no longer permitted to question the witness and must honor that right to remain silent and stop questioning immediately. While biographical questions can be asked such as name, address etc. can be asked and those answers and those answers can be admitted, any question that is deemed investigatory must be suppressed. The assertion of a right to remain silent or to be represented by counsel must be conveyed clearly to the police. It must be an unquestionable assertion of the Miranda Rights before the Commonwealth is compelled to honor that right. However, once one of the Miranda Rights is invoked to one officer, knowledge of that invocation is imputed to the remaining officers under current case law. At that point, the officers are no longer able to question the defendant.


May the police resume questioning at a later time? The answer is complicated and dependent upon whether that right has been “scrupulously” honored by police. Further, the court have used several factors to determine whether an officer can reassume questioning after a defendant asserts one of his Miranda Rights, specifically the right to remain silent or be represented by counsel. The court will consider time elapsed, nature of questioning, location of questioning, topic of questioning and the individual asking the questions. Furthermore, the court will look to see if the defendant was reread his Miranda Rights and whether there was a voluntary and intelligent waiver of those rights.

The court puts a heavy emphasis on a defendant’s right to remain silent and his right to counsel. Prevailing caselaw dictates that the rights be honored and questioning only permitted to be resumed once the Commonwealth can prove beyond a reasonable doubt that the defendant understood those rights and voluntarily waived the rights previously

asserted. If you believe that your Miranda Rights have been violated, give me a call today for a free consultation.

What to do if you are stopped for suspicion of Operating Under the Influence of Alcohol/OUI in Massachusetts

Know Your Rights

It is also your right to say “no” to a portable breath test (PBT) or field sobriety tests. This is the way the police officer will gain probable cause that you are drinking and driving. Don’t give them evidence against you. Instead, know and exercise your constitutional rights. In most cases, the fact that you refused a field sobriety test cannot be used against you in court. If the officer does arrest you or ask you to take a breathalyzer test or blood alcohol test, you can still refuse. The consequence will usually be a driver’s license suspension. However, if you are not convicted of a OUI, the suspension can often be reversed.Whether you are innocent or guilty, it is normal to be stressed during a OUI traffic stop. 

People are often afraid it will look bad if they don’t cooperate, so they tell the police far too much. The truth is you don’t have to say a word. It is your constitutional right to stay silent, even if your Miranda rights are not read. This typically does not occur until an officer intends to make an arrest. Before that time, the officer will do anything he can to get you to incriminate yourself. But without the evidence you give him, an officer will have no probable cause for arrest. Always stay calm and polite. Respectfully, tell the officer your name and address. Then, say “I will not give anymore information until my attorney is present.” This is just one of many ways to protect yourself in a drunk driving investigation. 

Police officers have a close relationship with prosecutors and are well-trained in interrogation techniques. They may appear friendly or docile in an effort to get your guard down so you admit your own guilt to help them build their case. They might tell you that you won’t serve jail time if you simply confess. This is simply not true.. A judge is the only one who determines sentencing. While it is perfectly legal for a police officer to lie, it can be devastating to your case if you lie to an officer. 

Most states require an arresting officer to observe a driver for 15 minutes before giving a breath test. However, this step is often overlooked. Many officers may even lack probable cause for the traffic stop. Often they will cut corners during field sobriety tests or ask questions that violate a citizen’s rights. If you avoid self-incrimination, a skilled attorney can use police error to have evidence excluded from trial or possibly obtain a dismissal.

If you are charged with a OUI, it is crucial to remain calm. Find an attorney with experience in OUI cases. The police do not want you to know your rights. If you or a loved one has been charged with OUI, I invite you to contact me for a free consultation. Please contact me at 978-792-5035.

What To Do If You Are Arrested

If you are arrested,  if is imperative that you invoke your right to remain silent, and inform the police  you wish to speak with an attorney.

Do not make any statements.

Do not attempt to explain your way out of the situation. The police are only interested only in gathering evidence against you, which can be used to prosecute you in a court of law.

Remain silent. Ask for an attorney.

Does a trial by Zoom violate a Defendant's rights? The Massachusetts Supreme Judicial Court to Decide.

A Criminal defendant in this country has a right to trial in front of a jury of their peers or one in front of a Judge. Additionally, the Sixth Amendment of the United States Constitution and Article Twelve of the Massachusetts Declaration of Rights guarantees a defendant’s right to confront a witness at trial. 

However, it has been nearly two years since the inception of COVID-19 pandemic, and day to day life is just starting to get back to a "new normal" while the judicial system also tries to adjust. The case of Commonwealth v. Curran will decide whether Zoom proceedings interfere with a defendant’s rights. 

What happened in Curran

On August 24, 2020, Curran was on Zoom, while his attorney was in the Fitchburg District Court because the case was scheduled for a bench trial. A bench trial is a trial in front of a judge, rather than a jury. During the trial, Curran was at the Worcester County House of Correction. The Court conducted a colloquy with the defendant regarding only the waiver of his constitutional right to be tried by a jury. Witnesses testified over Zoom and alleged that Curran choked and ripped the hair out of a female victim whom he lived with. Curran was convicted of one count of assault and battery and sentenced to a year in jail. 

Curran argues that the colloquy given for a jury trial waiver is inadequate as a matter of law. He asserts that it fails to fully apprise the criminal defendant of the rights he is giving up by being tried remotely. These rights include the right to be present during a trial, the right to a public trial, the right to confront and cross-examine the witness, and the right to effective assistance of counsel, which should afford the defendant the opportunity to consult with his lawyer during trial. Curran alleges that he was deprived of all of these rights in his case due to the virtual nature of the case, and the trial judge never made an inquiry in that regard. A colloquy is conducted by the court to determine that a defendant’s waiver of rights is both known and voluntary. However, due to the unprecedented nature of the pandemic, the judge did not properly conduct a colloquy with Curran, and as a result, Curran argues that he was waiving rights and privileges that come with an in-person trial. 

Additionally, the Sixth Amendment’s “Confrontation Clause” gives a criminal defendant the right to confront their witness during a criminal trial, with limited exceptions. It is easy to see that confrontation over a computer screen is not the same as in-person confrontation. In Curran’s case, the trial judge did not make any inquiry as to the defendant’s rights to be physically present and to confront his witnesses in person. 

Finally, Curran argues that he was denied his right to effective assistance of counsel. Curran and his attorney could not confer during the trial because they were in two different locations. Curran could not participate in his own trial and instead could only observe virtually. He could not discuss the trial with his attorney or decide whether to testify. 

Curran hopes that in the future that judges will be required to advise a criminal defendant on the potential rights they are surrendering by having a trial remotely.