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.


      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.


     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.


      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.

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)

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.


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.


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).


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”.


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.”


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.

Criminal Procedure: Duty to Inform and Waiver of Miranda

Criminal Procedure:  Law Enforcement’s Duty to Inform Defendant of Counsel is Ineffective UNLESS Complete

Commonwealth v. McNulty (Slip Opinion) available here:

Holding: When counsel for a defendant calls a police station during a defendant’s custodial interrogation and instructs law enforcement: (1) to inform the defendant that he is represented; (2) to tell the defendant that he want to speak to him; (3) to instruct police to inform defendant NOT to speak; and (4) to inform defendant he would be there shortly, a waiver of Miranda rights is ineffective because it will not be knowing and intelligent UNLESS defendant is informed of EVERY instruction that Counsel conveyed, and not merely a general statement informing the defendant that an Attorney called for him.

Why Important?  McNulty requires law enforcement to convey specifically what counsel wants the defendant to know, including an instruction to remain silent.  Failure to do so and failure to allow immediate contact with the defendant renders any subsequent statements inadmissible. 

Practice Pointer: Counsel, when calling a police department to contact the defendant during questioning, must explicitly inform police to convey to the defendant the instruction to remain silent and any other critical information – failure by law enforcement to do so almost certainly renders any subsequent statements and any waiver of rights inadmissible.

Facts of the Case:

Police took the defendant, Jerome McNulty, into custody for the murder of his girlfriend in the morning. A custodial interrogation was conducted at 9:12 a.m. After a break at 10 a.m., the interview resumed 15 minutes later. At 10:27, an attorney was appointed to represent the defendant. He immediately drove from Boston to the Salem police station to meet with his client. According to his phone records, he called the police station a few minutes after being appointed and identified himself as the defendant’s attorney but was not allowed to speak with the defendant. After a second call and a lapse of about ten minutes he relayed the following message: “to tell the defendant not to talk to the police and that he would be there shortly.”

The Essex County first assistant district attorney told the police to tell the defendant that an attorney had been appointed to represent him and wanted to speak with him. The defendant had finished his statement and was reviewing a hand-written summary of what he had said when he was told he could end the interview and speak with his attorney. The sergeant then spoke to the defendant, informed him of the appointment of counsel and said it was his choice whether he wanted to stop the interview or continue speaking to the police. The defendant said he wished to keep talking to the officers. At 10:52 a.m., he acknowledged with his signature “that the statement accurately reflected what he had been told concerning Attorney Buso.” From 10:52 to 11 a.m., the officers read the statement to the defendant and had him sign it. When Buso arrived at the station at 11 and asked to speak to the defendant “right away,” the sergeant denied the request, stating that “he had informed [the defendant] that an attorney had called and that he had passed the message on that [Buso] asked him to, and that [the defendant] wished to continue talking.” It was not until about 20 minutes after his arrival that Buso was permitted to speak to his client. That meeting occurred 50 minutes after he first contacted the police. Superior Court Judge David A. Lowy declined to suppress the statement. The defendant was eventually found guilty of murder.  The Supreme Court reversed and rendered the statements inadmissible.

Court’s Reasoning

The majority’s reasoning was based on an earlier decision, Commonwealth v. Mavredakis, which requires that police adequately inform defendants of communications from his attorney that bear on the right to counsel. The court concluded that the communications here were exactly that type. The attorney’s communications were a set of instructions for the defendant relating to his right to counsel. The failure by the police to communicate them made his Miranda waiver ineffectual.

Be on the lookout for an appeal:

Justice Gants wrote a strong dissent opposing the majority opinion. Notably, the case was heard by only five of the seven SJC justices; two of the justices who were in the four judge majority are no longer on the court. The district attorney indicated he would appeal for a re-hearing by the entire court. The majority’s opinion substantially broadens the duty to inform standard. A comment which focused on the substance of the duty to inform and analyzed the trio of cases the majority and dissent discuss would be very interesting.

Wassem M. Amin