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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often difficult for the court’s to keep up with changes in the world and implementing or amending laws that are fair or outdated.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.
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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 Moreau , the 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 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.
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.
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.
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.
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.