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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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.

New Facebook Friend? Be Careful or You Might Find Yourself Served!

Written by Muthena Alsahlani and Edited By Wassem M. Amin

Social networking site likes Facebook and Twitter play a significant role in society and in most people’s daily life. So big, in fact, that a court ruled that Service of Process via Facebook is permissible under Federal Rules of Civil Procedure 4(f) .

Facts of the Case

The Defendants allegedly operated a scheme that tricked American consumers into spending money to fix non-existent problems with their computers. This scheme was operated in large part out of call centers located in India.

The U. S. District Court of Southern District of New York issued a temporary restraining order on the defendants’ business practices. On September 27, 2012, the Federal Trade Commission (FTC) submitted the Summons, Complaint, and related documents to the Indian Central Authority for service on defendants, in accordance with Federal Rule of Civil Procedure 4(f)(1) and The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Service Convention” or “Convention”). The FTC also sent these documents to defendants by three alternative means: (1) by email to defendants’ known email addresses; (2) by Federal Express (“FedEx”); and (3) by personal service via a process server.

The FTC moved for leave to effect service by alternative means, mainly email and Facebook, on five of the defendants. The defendants sought a preliminary injunction to prevent this method of service.

Holding

The District Court enjoys discretion of whether to order service of process under Rule 4(f)(3) . Both the United States and India are signatories to the Hague Service Convention, mentioned in Rule 4(f). Article 10 of the Hague Convention allows for service of process through alternative means, provided the destination state does not object to those means. Thus far, service by email and Facebook are not among the means listed in Article 10 and India has not specifically objected to them. As well, service via email comports with due process where a plaintiff demonstrates that the email is likely to reach the defendant.

The District Court noted that if the plaintiff proposed serving the defendants only through Facebook, without a supplemental form of service, then a substantial question of due process would arise. However, the FTC’s proposal does not suffer that defect. The FTC proposes service via Facebook in conjunction with traditional email. The plaintiffs were able to establish that the Facebook accounts identified are actually operated by the defendants. Thus, there is a likelihood that the message will be received.

Important to note that Facebook is routinely used to serve claims in Australia, New Zeland, and Britain to a lesser extent.

Implications

Foreign defendants can be served process via Facebook, in addition to email, provided that the message will likely reach its intended target, under Fed. Rule of Civil Procedure 4(f). The Court did not that “[H]istory teaches that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel.”

It’s only natural to wonder: will this open the door for an eventual change in Federal Rule of Civil Procedure, which applies to service of process for defendants residing in the U.S.? It’s plausible the traditional rules of service may evolve in order to appropriately reflect the technological shift. Electronic service is more effective and the more common mode of communication in many respects. The challenge, of course, is establishing receipt or acknowledgment of electronic service. Given the struggles of the U.S. Postal Service and the uncertain future of traditional mail, there may not be an option but to evolve and accommodate.

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

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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.


[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.