MA Top Court Raises Safeguards Against Police Home Intrusion When Serving an Arrest Warrant

By Dorian Page, Law Clerk, Dhar Law LLP

      On January 14th, 2014, the Massachusetts Supreme Judicial Court issued an opinion reaffirming the Court’s commitment to safeguarding the sanctity of the home against illicit government intrusion.  The case, Commonwealth v. Conan GentileSJC-11372, clarified further the meaning of the terms “reasonable suspicion” and “reasonable belief” as they relate to the degree of knowledge that the police must have before a person’s home can be entered while the police execute an arrest warrant.

FACTS

      On June 24th, 2010, troopers of the Massachusetts State Police, along with three Leominster police officers, went to an apartment in Leominster to execute two arrest warrants for driving-related matters for the defendant.  One of the troopers had encountered the defendant one week earlier on an unrelated issue and had noted that the defendant possessed a state identification card listing his home address as being at the apartment.

      A trooper knocked on the rear door of the apartment, which was answered by a teenage girl who then called her mother to the doorway.  The mother was asked if the defendant was in the apartment, and she replied twice that the defendant was not there.  After speaking with the mother briefly, the trooper entered the apartment and pushed open a bedroom door, where he found the defendant.  The trooper also noticed the end of an antique musket protruding from underneath the defendant’s bed.  The trooper then searched under the bed and found two shotguns in gun cases.  While the trooper searched under the bed, the defendant was screaming that the police were illegally searching his bedroom.  The defendant was arrested and the firearms were seized.

     After being taken to the State Police Barracks and interrogated by the troopers regarding recent burglaries from which firearms and a sword had been stolen, the defendant told the police that the stolen items were in his apartment.  He told the troopers that he had received the items from someone else, who had committed the burglaries.  The defendant then gave consent for the police to return to his apartment to search for the stolen items, which they did.

      The defendant was charged with five counts of receiving stolen property, one count for each item seized from the defendant’s apartment.

HISTORY

     By August of 2010, the defendant was facing five indictments in superior court for the stolen goods.  He filed a motion to suppress all of the evidence taken from his home, as well as the statements he made during custodial interrogation at the State Police Barracks.  The judge denied the defendant’s motion and allowed the evidence to be introduced at trial.  The defendant was convicted by a jury of two counts of receiving stolen property.  The defendant appealed and the Supreme Judicial Court transferred the appeal directly to itself, bypassing the intermediate Appeals Court.

SUPREME JUDICIAL COURT’S RULING

      The defendant’s appeal was based on the trial judge’s denial of the motion to suppress evidence.  The defendant argued that the police never had a “reasonable belief” that he was present in the apartment, as required to enter the home while serving an arrest warrant.  Although the police may have had a reasonable belief that the defendant lived at the apartment, more is required to “reasonably believe” that the defendant was present in the apartment at the time the police entered for the purpose of arresting him.

      The Commonwealth responded by arguing that the evidence heard by the original judge was enough to conclude that the police did, in fact, reach reasonable conclusions that the defendant was in the home.  The Commonwealth argued that while the trooper was at the back door, he heard sounds of movement coming from elsewhere in the apartment.  The trooper had stated that while he was speaking with the mother, she had replied twice that the defendant was not present, while turning her head to look at the bedroom door each time.  The trooper also said that he had developed a sense of when people were lying to him about the presence of those being sought.

      The Supreme Judicial Court (“SJC”) looked to their previous holdings in Commonwealth v. Grandison and Commonwealth v. Silva, which required that the police have “specific articulable facts” from which to conclude that the person sought is actually at the place the police enter, at that time, to arrest the person.  The SJC stated that, while the belief need not rise to the level of probable cause, the belief cannot simply be a hunch or an ambiguous suspicion that is not based on valid reasons.

The SJC concluded that the simple fact that the police were aware that the defendant usually resided in the apartment was insufficient to believe he was physically present when they executed the warrant.  The trooper’s conclusion that he could sense when someone was lying was likewise not a valid reason to believe the defendant was there.  The Court said that if the trooper’s “sense” was enough to be an objectively “reasonable belief”, then the privacy of people in their homes could be violated by the police every time the police had a subjective feeling that crime was occurring in any house.  The trooper never asked the mother if there was anyone else besides the defendant in the home, which could have provided an innocent explanation for the “sound of movement” that the trooper heard.  Nor did the troopers conduct any form of surveillance on the apartment prior to knocking on the door, which could have either confirmed or denied the defendant’s presence.  The SJC noted:

Because the trooper arrived at the residence after the commencement of the normal work day and had obtained no information that the defendant was there, any information supporting a reasonable belief that the defendant was inside the residence only could have been obtained after the trooper knocked on the door and before he entered the residence.

      The SJC pointed to the sheer lack of any objectively valid “specific articulable facts” for the police to believe the defendant was present when they entered the home.  The Court said that a “hunch is still a hunch, even if it turns out to be correct.  And if the belief were reasonable, it would remain so even if the defendant was not in the residence.”  The SJC ruled that the illegal entry by the troopers, in the absence of “reasonable belief”, so tainted the evidence obtained afterwards that all of the evidence should have been excluded from the trial.  The defendant’s convictions were reversed and the SJC ordered that the charges be dismissed.

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MA SJC Expands Defendants’ Rights by Excluding Any Statements Made Six Hours After Arrest

By Brian Pasquale, Law Clerk

Under a rule first established in Commonwealth v. Rosario[1] (“the Rosario rule”), if an individual under arrest makes a statement more than six hours after the arrest, the statement is inadmissible in evidence due to a delay in arraignment.  In Commonwealth v. Fotunato[2], the Supreme Judicial Court, the top court in Massachusetts, affirmed this principle after a defendant made statements to an officer more than six hours after the defendant was arrested and given his Miranda rights.  (View the opinion of the court here)

In the case at hand, the defendant was arrested on suspicion of a bank robbery that had occurred.  After being administered his Miranda warnings, the defendant declined to speak with the officers and was transported to a holding cell.  Later that evening, more than six hours after being arrested, the defendant requested to speak to the officers.  The officers brought the defendant to an interview room, and without providing the defendant with any type of waiver; the officers began questioning him resulting in the statements in question.

The Rosario rule sets out to provide protection for a defendant’s right to prompt arraignment and presentment.  Prior to the rule being established, the duty to arraign a defendant was “as soon as is reasonably possible.”  By creating an unambiguous temporal boundary in which police may question defendants, the rule creates a bright-line rule for prosecutors, judges, police and defense attorneys.  The Commonwealth argued in this case that because the remarks were unsolicited and spontaneous, the statements were not the result of police pressure.  While the SJC declined to rule on whether the Rosario rule applies to statements that are not the product of police questioning, the court made clear that the purpose of the Rosario rule is not to solely deter improper police questioning.  The Rosario rule also provides assurance that individuals arrested will be able to consult counsel as well as be made aware of the alleged charges by a judge or magistrate.  Second, the SJC declined to accept the Commonwealth’s argument that the statements were not made as part of police questioning.  The defendant had been questioned four hours earlier, remained in the custody of the same police department and same police station without arraignment or an intervening event and the interviewing officer was aware the defendant wished to discuss the pending charges, thus being considered an “interview.”

While the SJC did not provide clear guidance on the issue of whether statements made six hours after being arrested that are not considered police questioning will be suppressed, the court made clear the importance of a defendant’s right to be arraigned.  Additionally, by stating that the Rosario rule is in place to provide other protections aside from improper police questioning, it provides incentives for police officers to follow the proper procedures upon arresting an individual.


[1] 422 Mass. 48, 56 (1996)

[2] SJC-11314 (October 3, 2013)

ICE Ramping Up Its Hunt for Illegal Workers

ICE Enforcement Actions

By Wassem Amin, Esq.

The Wall Street Journal reports that the U.S. government has launched an aggressive campaign against employers suspected of hiring illegal immigrants.  It is reported that the Immigrations and Customs Enforcement (ICE), the agency responsible for these investigations, have notified nearly 1,000 business across the country that they were being audited.   The so called “silent raids” by ICE have targeted a wide range of industries, including restaurants, food processing, high-tech manufacturing, agriculture, and others.  Despite immigration reform languishing in Congress, the latest raids suggest that the government is not suspending its enforcement actions.

The primary worksite enforcement mechanism used by ICE is the so-called I-9 Audit, together with the administrative fine procedure in the Immigration and Nationality Act.  Business selected for audits undergo a comprehensive review of I-9 forms and payroll records.  As part of the continuing investigation against the employer, employees that are detained will be interrogated and are often asked to give damaging testimony against the company.

Employers should know that current enforcement priorities focus on the employers rather than the employees.

Audits may result in civil penalties and may form the basis for criminal prosecution of employers who knowingly hire undocumented workers or commit other egregious violations.  The investigation may ultimately lead to criminal sanctions and/or civil fines against employers for hiring or harboring undocumented workers and/or for money laundering. Asset forfeiture tools will also utilized to seize any assets that have been deemed products of the unlawful activity.

An employer selected for an audit must immediately seek counsel from an attorney who is familiar with the intricacies of ICE investigations.

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Wassem M. Amin, Esq., MBA is an Attorney at Dhar Law, LLP in Boston, MA. Wassem has extensive experience as a business advisor and consultant, domestically and abroad (in the Middle East region), having worked as a consultant for over 9 years. Wassem focuses his practice on Business Immigration and Corporate/Business Law and is also the Vice-Chairman for the Middle East Division of the ABA and the Vice-Chairman for the Islamic Finance Committee of the ABA. For more information, please visit http://www.dharlawllp.com and email Wassem at wassem@dharlawllp.com.

Disclaimer: These materials have been prepared by Dhar Law, LLP for informational purposes only and do not constitute legal advice. This article is not intended to create, and receipt of it does not constitute, a lawyer-client relationship, and readers should not act upon it without seeking professional counsel. This material may be considered advertising according to the rules of the Supreme Judicial Court in the Commonwealth of Massachusetts. Reproduction or distribution without prior consent of the author is prohibited.

Highly Anticipated Fifth Amendment Decision by Supreme Court in Salinas v. Texas Leaves Many Disappointed

By Brian Pasquale

Background

On December 18th, 1992, two men were shot and killed inside their home in Houston.  There were no witnesses but a neighbor informed the police that she had observed someone run out of the house and speed away in a dark-colored car.  The investigation led police to Mr. Salinas (“Petitioner”), who was at the victim’s house the previous night attending a party.  When police arrived at Petitioner’s house he agreed to give them his shotgun for ballistics testing and voluntarily go to the police station for questioning.

The interview at the police station was noncustodial and the Petitioner was not read his Miranda rights.  Throughout the interview the Petitioner answered all of the officer’s questions.  However, when the officer asked whether the Petitioner’s shotgun “would match the shells recovered at the scene of the murder,” Petitioner declined to answer and looked down at the floor and “began to tighten up.”  The prosecutor initially declined to prosecute due to a lack of evidence; however, several days later, police obtained a statement from a man who stated that he had heard Petitioner confess to the killings.  The Petitioner did not testify at trial, and key evidence from the State included the use of Petitioner’s reaction to the officer’s question during the interview.  After being found guilty, Petitioner argued that the use of his silence violated his Fifth Amendment right.  The Court of Appeals rejected Petitioner’s argument as did the Texas Court of Criminal Appeals.

Issue

Whether the prosecution may use a defendant’s assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief?

Analysis

One of the few exceptions to the principle that the Government has the right to everyone’s testimony is the privilege against self-incrimination.  However, one who wishes to use the protection must claim it at the time that he relies on it.  This restriction provides the government with an opportunity to either offer the suspect a grant of immunity or argue that the testimony could not be self-incriminating.  The Supreme Court has established two exceptions to this requirement that the suspect assert his right.  The first is that a defendant does not need to take the stand and assert the privilege at his own trial, and the second is when law enforcement coerces the statement and thus renders the privilege involuntary.

In the current case, the Court stated that is clear that neither of the exceptions apply to the Petitioner, as he voluntarily went with the police from his home and he was free to leave the interview at any time.  Thus, he was outside the scope of Miranda and the use of his silence by the prosecution did not violate the Fifth Amendment.

Reaction

While many in the legal community were anticipating the Court’s decision in Salinas v. Texas, after the ruling was handed down many of those people were left disappointed.  The Issue that many were hoping to see be resolved was whether the Government could use a suspect’s reliance on the Fifth Amendment when the suspect had not already been arrested.  However the Court announced early in its opinion that it was not necessary to resolve that question because the Petitioner did not assert the privilege.

US Supreme Court: K-9 Dog Sniff Sufficient to Establish Probable Cause

On February 19, 2013, the Supreme Court decided the case of Florida v. Harris, and held that use of a drug dog to establish probable cause to search a vehicle does not violate the Fourth Amendment of the United States Constitution.

Facts: Respondent was pulled over by a law enforcement officer for a routine traffic stop.  While speaking to the respondent, the officer noticed that the respondent was becoming increasingly nervous and also observed an open beer can.  Respondent refused the officer’s request to search the vehicle; the officer subsequently executed a sniff test with his trained narcotics dog, Aldo.  The dog alerted at the driver’s side door, leading the officer to determine that he had probable cause to search the vehicle.  The search did not provide anything that the dog was trained to detect, but did reveal ingredients that are used to manufacture methamphetamine.  When the respondent was released on bail he was pulled over by the same officer who again had Aldo do a sniff of the vehicle, this time producing nothing.  The respondent moved to have the evidence from the stop suppressed, arguing that the officer did not have probable cause to search his vehicle based on the dog’s alert.  The trial court held that the officer had probable cause and denied the motion to suppress.  The respondent then entered a no-contest plea, reserving the right to appeal the trial court’s ruling.  After an intermediate state court affirmed, The Florida Supreme Court reversed.

Florida Supreme Court: The Florida Supreme Court held that the officer lacked probable cause to search the defendant’s vehicle under the Fourth Amendment.  The court went on to say that “When a dog alerts, the fact that the dog has been trained, and is certified, is simply not enough to establish probable cause.”  The court held that the State needed to produce a wider array of evidence to demonstrate a dog’s reliability.  The Florida Supreme Court gave several examples: the dog’s training and certification records; an explanation of the meaning of the particular training and certification; field performance records; and evidence concerning the experience and training of the officer handling the dog.

Supreme Court’s Ruling: The Court began by tracing the history of probable cause and establishing the foundation for the Courts decision.  The Court stressed that, in determining whether the State has met the probable cause standard, the Court has consistently looked to the “totality of the circumstances” test.  Foreshadowing its ultimate decision, the Court noted that in Gates, the Court abandoned the old test for assessing the reliability of informant’s tips “because it had devolved into a “complex superstructure of evidentiary and analytical rules.” (1)  The Court continued, describing probable cause as a “fluid concept-turning on the assessment of probabilities in any particular factual context-not readily, or even usefully, reduced to a neat set of legal rules.”  The Supreme Court determined that this is exactly what the Florida Supreme Court did in its decision, created a strict evidentiary checklist, which requires the state to mark off each item.

Rather than having the “strict evidentiary checklist” that the Florida Supreme Court determined was the best approach, the Supreme Court held that evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert.  “If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume that the dog’s alert provides probable cause to search.”

Regarding a probable-cause hearing on a dog’s alert, the Court gave guidance to the lower courts on how these should be administered.  The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure.  After evaluating the proffered evidence to decide what all the circumstances demonstrate; if the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause.  However, if the defendant has challenged the State’s case, then the court should weigh the competing evidence.  Overruling the Florida Supreme Court test, the Court once again stated that the question is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonable prudent person think that a search would reveal contraband or evidence of a crime.

(1)    Illinois v. Gates, 462 U.S. 213, 235 (1983)