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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Law Enforcement’s Use of License Plate Detection Technology Raises Privacy Concerns

This past Monday, the Boston Globe discussed the increased use of license-plate reading cameras and other technology law enforcement organizations around Massachusetts have utilized over the past several years.[1]  The cameras have proven to be incredibly effective for law enforcement in detecting vehicles that are stolen, unregistered or uninsured.  Moreover, they have proven to be a remarkable return on investment.  One Sergeant insisted that the camera on his vehicle paid itself back within a matter of the first 11 days on the road.

An effective and efficient piece of technology to assist law enforcement, what’s not to love?  Not surprisingly, the technology’s popularity is on the rise in police departments throughout the Commonwealth.  They are useful in solving crimes, mainly because they are able to better track the movement of vehicles. “Most of the departments that deploy license plate readers use them primarily for traffic enforcement. But the scanners — sometimes called by the acronym ALPR — are also used for missing persons, AMBER alerts, active warrants, and open cases.”

But is this technology empowering government to the detriment of our civil liberties?  After all, nobody wants to live in a society where their every movement is monitored and recorded.

Should this useful technology be utilized to help law enforcement? 

Some would argue no.  As Benjamin Franklin once stated: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

Many citizens would not go as far as Dr. Franklin.  Indeed, most Americans are willing to forego some privacy for the sake of enhanced security.

Of course, there is a larger question of what is a reasonable expectation of privacy?  Many of us have smartphones with GPS tracking technology, have we already ceded some of our privacy?  In the course of an ordinary day, most Americans come in contact with several forms of technology (smartphones, debit cards, laptops, tablets, etc) that make it easier to track our habits and whereabouts.  Again, what is reasonable?

If so, how do we prevent this technology from creating a dystopian, 1984-like society? 

The Boston Globe highlighted various instances of abuse by other Police Departments utilizing this technology.  Our law enforcement agencies are neither above the law nor infallible.  There must be a check on their usage of this data.

Currently, many police departments lack any formal policies and procedures to guide their use of the data collected.  This is clearly problematic.  Uniform policies and procedures must be established across the Commonwealth; and regular testing and reviews must be conducted to ensure compliance.  A good example to follow is Brookline.  As noted in the article: Brookline’s policy prohibits using camera scanners to intimidate or harass, to infringe free speech, or to conduct discriminatory surveillance based on race, gender, sexual orientation, disability, or other protected characteristics. The Brookline policy also requires civilian oversight and biannual audits for the town’s camera scanner system, which will be online within the next two months ….”

This technology is a boon to law enforcement.  It can and should be utilized, but it must be closely monitored and scrutinized with the utmost deference to the right to privacy.

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.

Real Estate: Lack of Physical Possession Does Not Invalidate Foreclosure

A Land Court Judge held a mortgage lender established possession of property despite inactivity on the premises for almost 20 years.  The court found the lender, a now fee simple owner of property, had established possession by entering for the purpose of foreclosure, recording a certificate pursuant to Massachusetts’ statutory requirements, and maintaining peaceful possession for three years.

Judge Keith Long Stated, “After making peaceful entry following the breach of a mortgage condition, and recording his certificate, [the defendant] did “all that is necessary to affect a foreclosure.”

Currently, there are two methods of foreclosing property in Massachusetts — power of sale and foreclosure by entry.

Power of sale

Power of sale is the most common and quickest method of foreclosure in Massachusetts. Usually held at foreclosure auctions, power of sale requires that sales be made pursuant to the power of sale clause in the mortgage.  In Massachusetts, notice of the foreclosure must be published and mailed to the borrower. There is no requirement for the borrower to actually receive the notice, merely for the lender to make a diligent effort to locate the borrower.  The actual sale must be conducted at the date, time, and place specified in the notice.  A proper sale prevents the borrower from exercising any right to reclaim the property through redemption.

Foreclosure by entry

A less common method of foreclosure, foreclosure by entry, allows lenders to foreclose by lawfully taking possession of a premise for a statutory required 3 years. After which, the title will have the lenders name.  Lawful recovery of possession can be done in 3 ways:

  1. Lender may file a lawsuit and obtain a court order granting possession
  2. Lender may enter peaceably and take possession or
  3. Lender may obtain borrower’s proper consent to entry.

The statutory language of Massachusetts’ foreclosure by entry statute, G.L.c. 244 §1 allows recovery of possession “by an open and peaceable entry thereon, if not opposed by the mortgagor or other person claiming it … and possession so obtained, if continued peaceable for three years from the date of recording of the memorandum or certificate as provided … shall forever foreclose the right to redemption.

Judge Long concluded that though it was conceded that the defendant never had physical control over the property, under G.L.c. 244 §1 it wasn’t required.   Further in interpreting past court decisions, Long notes that courts “have long held that a mortgagee who has made peaceful entry on the property and duly recorded a certificate of entry need not do anything further to establish possession.”

“Long added, that once possession has been “acquired by peaceable entry and the recording of the certificate in the registry of deeds, that possession continues until the mortgagor takes some act that is adverse to the mortgagee’s possession.  Absent proof of some act done to defeat or interrupt the mortgagee’s possession, the mortgagor is treated as a tenant at will of the mortgagee, and ‘they are assumed to hold under him, and their possessions are his, during the three years, until the completion of the foreclosure.’”

Here, Plaintiff failed to establish an adverse possession claim or to prove that defendant’s possession was interrupted.  As a result, the court held that Defendant did all that was required to establish foreclosure proceedings despite inactivity on the premise.

 The Case is:HS Land Trust v. Gonzalez, Lawyers Weekly No.14-077-12

MA State Crime Lab Scandal and Implications for Defendants and Convicts

In what is the latest development of the controversy with the state crime lab, on Monday Governor Patrick accepted the resignation of John Auerbach, The Massachusetts Public Health Commissioner.  The story began to receive attention in late August when the Hinton State Laboratory Institute in Boston was shut down after it was revealed that a chemist working in the laboratory had failed to follow testing protocols.

Prosecutors are estimating that the chemist is alleged to have handled nearly 60,000 samples and affecting over 30,000 drug cases.  As reported by the Boston Globe, several statistics are quite alarming when read and raise questions as to why this chemist was not looked into before this year.  For example, the chemist allegedly performed more tests on drug samples than any other chemist at the laboratory for seven straight years.  Further, in 2005 the chemist nearly doubled the next closest chemist in regards to samples tested.  It is likely that state employees working on this case for the foreseeable future will wish that questions were asked earlier.  Another alarming statistic reported by the globe was that a supervisor for the lab discovered the chemist was tampering with evidence in June of 2011 and did not report this information until eight months later.

Implications for Criminal Defendants

One direct example of how this may impact convicted offenders is that the chemist is accused of tampering with the weight of the samples and the weight of the narcotics is often a primary factor in the length of sentencing.  Another example that has serious consequences is for immigrants who were convicted of a crime involving drugs and then deported back to their home country.

This has the potential to impact the judicial system in several ways.  First, the courts already have the reputation of being overcrowded and the possibility that 34,000 cases were handled by this chemist is certainly going to result in a large volume of appeals.  Second, there is a high likelihood that there are individuals who are currently incarcerated and did not receive a fair shot at justice.  Third, state resources that would regularly be used to bring justice on behalf of families affected by serious crimes such as rape or manslaughter will now have to be used to sift through thousands of cases and determine if this chemist had any impact on the case.

If you would like more information please contact Wassem M. Amin at wassem@dharlawllp.com or (617)880-6155.