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

By Dorian Page, Law Clerk, Dhar Law LLP

      On January 14^th, 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 Gentile,  SJC-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 24^th, 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.

Top Court in Massachusetts Decides that Padilla Applies Retroactively

By Brian Pasquale, Law Clerk

While the Supreme Court does not believe that non-citizens who pleaded guilty without advice from their attorneys that the guilty plea may result in deportation do not have a right to retroactively challenge their conviction, the Massachusetts Supreme Judicial Court does believe so and expressed this in a recent decision (Read the opinion here).

Background: The defendant, a noncitizen, was arrested and charged with one count of possession of cocaine with intent to distribute and one count of a drug violation in a school zone.  The defendant pleaded guilty to simple possession of cocaine to avoid the minimum mandatory sentence of two years that results from being found guilty of a drug violation in a school zone.  As part of his guilty plea the defendant signed a waiver of rights and an alien rights notice acknowledging that if he was not a citizen of the United States, conviction of or admission to the offense may result in deportation.  Subsequent to pleading guilty, the defendant, citing the Supreme Court case of Padilla v. Kentucky[1], filed a motion to vacate his guilty plea contending that he was denied effective assistance of counsel.  During the defendant’s appeal the Supreme Court decided Chaidez v. United States[2], whereupon on the defendant filed an application for direct review, which was granted.

Analysis: In Padilla, the Supreme Court held that The Sixth Amendment requires a criminal defense attorney to provide accurate analysis regarding the deportation consequences arising from a guilty plea.  In Commonwealth v. Clarke[3], the SJC determined that for retroactivity analysis, Padilla did not announce a new rule and the Sixth Amendment right applied retroactively to cases on collateral review.  The Supreme Court, prior to Chaidez, had not ruled on whether Padilla created a new rule.  In Chaidez, the Supreme Court concluded that Padilla did in fact create a new rule and as a result the holding in Padilla does not apply retroactively.  The Court’s reasoning was that prior to Padilla, the Sixth Amendment did not require counsel to inform their clients of a conviction’s collateral consequences, but Padilla now required that thereby creating a new rule.

When the SJC issued its decision regarding retroactivity in Clarke, the court used the framework provided by the Supreme Court.  However since Clarke has been decided, the Supreme Court has greatly expanded its definition of what constitutes a “new” rule, which is at the heart of retroactivity analysis.  Under the original analysis, a “new” rule was created if the result was not dictated by precedent.  The SJC chose to apply the previous framework and not adopt the new expanded analysis that the Supreme Court applied in Chaidez.  Reasoning that it was customary in Massachusetts prior to Padilla for attorneys to warn their clients of position deportation consequences and that the ruling in Padilla simply applied a general standard, the SJC stated that Padilla did not announce a new rule.

The SJC has the ability to adopt the narrower interpretation, providing greater protection to defendants, through the Supreme Court’s decision in Danforth v. Minnesota[4].  In Danforth, the Supreme Court stated that the finality of State convictions is a matter that States should be free to evaluate, and weigh in importance of, when prisoners held in State custody are seeking remedy for a violation of Federal rights by their lower courts.

Aside from the issue of retroactivity, the court also sought to answer the question of whether Art. 12 requires defense counsel to provide defendants with accurate advice concerning the deportation consequences of a guilty plea or conviction at trial.  The court concluded that under Art. 12, defense counsel must accurately advise a noncitizen client of the deportation consequences of a guilty plea or a conviction at trial and failure to do so constitutes behavior that falls measurably below that which might be expected from an ordinary fallible lawyer.

The SJC held that as a matter of Massachusetts law, the Sixth Amendment right articulated in Padilla, was not a “new” rule and therefore defendants whose State law convictions were final after April 1, 1997, may attack their convictions collaterally Padilla grounds.

This decision was highly anticipated in the legal community after the Chaidez decision was announced because many noncitizens that pleaded guilty without knowing the severe consequences were not certain if they would still be able to challenge their guilty plea.  While the case is positive for noncitizens, there is still one major hurdle that they must pass in order to successfully challenge their plea.  They must also prove that their attorney provided them with ineffective assistance of counsel.  When a defendant asserts that his counsel was ineffective he must show two separate elements, (1) that the behavior of his counsel fell well below that of which would be expected from an ordinary fallible lawyer and (2) that it likely deprived the defendant of a substantial ground of defense.  While many who challenge their plea will state that they would have never accepted the plea had they known of the implications, they bear a substantial burden of showing that.  As difficult as a challenge may be for a noncitizen who pleaded guilty, the fact that they still have the option to challenge the plea is a much better scenario than if the SJC agreed with the Supreme Court and took this option away.

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[1]130 S. Ct. 1473,1486 (2010)

[2] 133 S. Ct. 1103, 1105 (2013)

3. 460 Mass. 30, 34 (2011)

[4] 552 U.S. 264, 282 (2008)

 

First Circuit: Wrongfully Incarcerated Protected Under Fourth Amendment from Malicious Prosecution

Hernandez-Cuevas v. Taylor

Background: In 2004 a joint federal-Commonwealth task force consisting of FBI agents and local police officers opened a special investigation targeting a drug and money laundering conspiracy in Carolina, Puerto Rico.  The task force had two confidential informants (“UI-1”) and (“UI-2”), who had arranged a meeting with a target of the investigation.  After the crime had been committed the surveillance officers observed one of the vehicles drop an individual involved in the crime off at a multi-unit building where the plaintiff lived.  Throughout the next year the FBI was unable to identify the individual who exited the vehicle that day and in a rush to indict someone, two officers and UI-1 conspired to manufacture evidence implicating the plaintiff as the individual from the day of the crime.  The officers carried out a tainted photo identification even though the plaintiff bared very little resemblance to the individual described on the day of the crime.  On December 3, 2007 police arrested Hernandez, charging him with delivering $321,956 in drug proceeds to the undercover informant.  He was transferred to a federal prison in New Jersey where he was held for three months while awaiting further proceedings.  On February 29^th he was released and on April 18, 2008 the United States Attorney for the District of New Jersey dismissed the charges against him.

On March 2, 2009, the plaintiff filed his complaint alleging that the conduct of the officers caused him to be held in federal custody for three months without probable cause.  The defendants argued that the case should be dismissed because the statute of limitations had passed as any Fourth Amendment claim had accrued on the day of his arrest.  While the court agreed with the defendants that the statute of limitations had passed on a straight forward Fourth Amendment false arrest claim, the statute of limitations for malicious prosecution does not begin to accrue until the day that the proceedings terminate in the plaintiffs favor (the dismissal of charges in April of 2008).  The defendants then filed another motion to dismiss, arguing that as police officers, they were entitled to qualified immunity.  The court denied their motion and the defendants filed the interlocutory appeal.

Issue: Whether the facts alleged show that the officer’s conduct violated some constitutional right

Analysis: The court began by highlighting the fact that neither the First Circuit nor the Supreme Court has determined that the Fourth Amendment includes a malicious prosecution claim.  However, each of the eight Courts of Appeals who have directly tackled the issue has concluded that individuals are protected under the Fourth Amendment against pretrial detention without probable cause.  In a common law malicious prosecution claim, the plaintiff must demonstrate that the officer acted with subjective malice.  In a purely constitutional Fourth Amendment claim, the plaintiff only needs to establish that his seizure was objectively unreasonable.  The approach taken by the Court was similar to that of other Court of Appeals who had been presented with the issue in the past; Fourth Amendment protection does not end when an arrestee becomes held pursuant to legal process.

The Court further stated that a plaintiff may bring such a claim under Section 1983 if he or she can establish that the Defendant (1) caused (2) a seizure of the plaintiff pursuant to legal process unsupported by probable cause, and (3) criminal proceedings terminated in plaintiffs favor.  In this case, the police officers acted with reckless disregard by blatantly making false statements in the warrant to arrest the Plaintiff in addition to the fact that the description given by the surveillance officer on the day of the incident did not resemble the plaintiff at all.  Finally, the case ended in the Plaintiff’s favor as the prosecutor dismissed the charges against him.

Massachusetts Extends Padilla Protections for Noncitizen Criminal Defendants to Include Trial Convictions

In Commonwealth v. Marinho, although the Massachusetts Supreme Judicial Court denied a non-citizen defendant’s request for a new trial, it significantly increased a non-citizen defendant’s protection under the Sixth Amendment.

Facts:

On February 17, 2010, the defendant, Allesandro Marinho was convicted of assault and battery causing serious bodily injury. He was sentenced to two and one-half years in a house of correction, nine months to serve with the balance suspended.  The defendant was not a United States citizen and was deported after being convicted.

The defendant filed a motion for a new trial alleging ineffective assistance of counsel, claiming that his lawyer failed to (1) advise him of the immigration consequences of an assault and battery conviction, (2) explore a plea resolution, and (3) advocate for a sentence that might have mitigated such immigration consequences.

Holding:

In order for a defendant to successfully claim ineffective assistance of counsel, a two-prong test, known as the Saferian test, must be satisfied.  First, the defendant must show serious incompetency, inefficiency, or inattention of counsel– behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer.  If that is found, the defendant must then show that the claimed ineffective assistance has deprived him of an otherwise available, substantial ground of defense.[1]

As the number of deportable offenses has continued to increase in recent history, the United States Supreme Court recently addressed the issue of a noncitizen defendant’s Sixth Amendment rights with respect to assistance of counsel.[2]  The Supreme Court, in Padilla v. Kentucky, held that constitutionally competent counsel would have advised the defendant that a guilty plea for drug distribution made him subject to automatic deportation.  The Court’s reasoning focused mainly on the landscape of federal immigration law and the significant changes that have occurred.

“These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction.  The importance of accurate legal advice for noncitizens accused of crimes has never been more important.  These changes confirm our view that, as a matter of federal law, deportation is an integral part-indeed, sometimes the most important part- of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”[3]

In light of Padilla, the SJC held that defense counsel is required to inform a non-citizen client that a conviction at trial may carry immigration consequences.  In announcing their holding on this issue, the SJC expanded on Padilla and now provides additional protection to non-citizen defendants.  Thus, as defense counsel was required to inform the defendant of any consequences resulting from a conviction, the first prong of the Saferian test was not met.

The SJC also stated defense counsel’s failure to discuss plea resolution with the defendant and failure to advocate for a lesser sentence also failed the first prong of the Saferian test.

After concluding that defense counsel’s performance fell below the standard set out in Saferian, the SJC then had to determine whether the second prong was met; whether the defendant was prejudiced by the ineffectiveness of defense counsel.  The SJC determined that while satisfying the first prong, the defendant failed to provide sufficient proof of prejudice and therefore, the defendant is not entitled to a new trial.

While defense counsel’s failure to discuss the possibility of a plea with the defendant falls below the level of professionalism for attorneys, in order to show prejudice the defendant must:

“Demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel.  Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution cancelling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law.”[4]

The SJC reasoned that the evidence provided by the defendant only establishes that defense counsel failed to engage in plea negotiation or discussing that option with the defendant and there is no evidence to suggest that the prosecutor would have offered the defendant a plea deal.  Finally, the SJC held that had the defendant been given a lesser sentence, there is nothing to suggest that it would have resulted in the defendant “flying under the radar” and avoiding deportation.

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[1] Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

[2] Padilla v. Kentucky, 130 S.Ct. 1473, 1476 (2010).

[3] Id. at 1480.

[4] Missouri v. Frye, 132 S.Ct. 1399, 1410 (2012).

Mass. SJC Upholds Limited Warrantless Cell Phone Searches

Wassem M. Amin

On December 5, 2012, the Supreme Judicial Court, in two cases with almost identical fact patterns, upheld the warrantless search of a defendant’s cell phone as a search incident to an arrest.  Although the cases certainly were a disappointing setback for privacy rights advocates, it is critical to note what the SJC did not rule on.  An in-depth reading of both opinions reveals that the Justices carefully limited their holding to the specific facts at issue.  The result is that police may in fact still need a warrant for many cell phone searches that fall outside the scope of these holdings.

The twin cases are Commonwealth v. Phifer, Slip-Op SJC-11242 (December 5, 2012), and Commonwealth v. Berry, Slip-Op SJC-11056 (December 5, 2012).

Facts

The Defendants in Phifer and Berry were lawfully arrested after Boston Police Detectives observed them engaging in a drug sale.  After the arrest, officers seized the cell phones that were in the defendants’ possession.  Subsequent to the seizure, the officers scrolled through the list of the incoming and outgoing calls on the cell phones.  In both instances, the police reasonably believed that the recent call list would reveal evidence related to the drug distributions, justifying the “search”.

Holding

The SJC upheld both searches as a “search incident to an arrest (SITA).”  A SITA is an exception to the warrant requirement for searches which is justified by the need to search for weapons, evidence of a crime, or instruments of escape–only when a person is taken into official custody and lawfully detained.

The SJC, however, expressly articulated a very limited scope for its holdings.  The act of searching the recent call lists was upheld because “…police conducted a very limited search of the cellular telephone, pressing one button to view the recent call list…[and] the police had reasonable grounds to believe that the recent call list would reveal evidence related to the drug distribution crime for which the defendant was arrested….”

Aware that modern-day “smartphones” are capable of storing vast amounts of personal data that extend far beyond incoming and outgoing calls, the SJC noted, repeatedly throughout both cases, that this same outcome may not “necessarily be true with respect to the privacy of the myriad types of information stored in a cellular telephone that [a defendant] is carrying at the time of arrest.”  Although the Justices declined to address the constitutionality of, for example, a search of a defendant’s emails and text messages, they made it clear that their holding did not apply to the “type of intrusion into a more complex telephone or other information storage device.”

Conclusion

Despite what was initially reported by most news outlets, the SJC’s rule is very limited in scope.  It is not a carte blanche for law enforcement.  It applies only to a brief search of the call list on a  lawfully seized cell phone stemming from an arrest.  Justice Gants, in a separate concurrence succinctly stated:

“[The SJC] has not yet ruled whether a more intrusive search of a smartphone, or any other device capable of storing highly personal information, may be conducted as a search incident to arrest, even where the police may have probable cause to believe that evidence of the crime of arrest may be found in text messages, e-mails, or other data storage area of the telephone….”

Therefore, the rule would certainly not apply to an extensive search of a smart phone or another more complex data storage device, such as a tablet.  As the law continues to play catch up with technology, we are likely to see the SJC address these other issues in the near future.