Mass. Crim. Dig.: Commonwealth v. Sheridan

Commonwealth v. Sheridan, 25 N.E.3d 875 (2015)

I. Facts

Early one morning, the defendant, Matthew J. Sheridan, was pulled over by Officer Sean Glennon for an unilluminated headlight. While Glennon was conducting the stop, Sheridan appeared nervous, his hands shaking as he “fumbled” around for his license and registration. A second officer, Scott Walker, was patrolling the area, stopped at the scene, and approached the passenger window. Walker looked in the car’s passenger window and saw a small plastic sandwich bag sticking out from under a t-shirt on the floor; the bag appeared to contain about one-ounce of marijuana.

Walker indicated the presence of marijuana to Glennon, who then ordered Sheridan out of the car; a pat frisk revealed a cell phone and $285.00 cash. Glennon handcuffed Sheridan and searched the car, recovering two additional bags of marijuana. Sheridan was transported to the police station where, during booking for possession with the intent to distribute marijuana, the officers seized the cell phone and cash. Glennon proceeded to read the text messages in the cell phone, some of which appeared to be orders to purchase marijuana.

II. Procedural History

Sheridan was charged with violating G.L. c. 94C, § 32, possession with the intent to distribute marijuana, and a civil motor vehicle infraction for the broken headlight. He filed a motion to suppress the marijuana and cell phone, including the text messages, because the officers lacked probable cause to search the vehicle. After an evidentiary hearing, the motion was denied because the judge found the officers were entitled to enter the vehicle and seize the marijuana. Further, the search of the cell phone was a search incident to arrest and the information would be allowed under the inevitable discovery doctrine. A single justice granted Sheridan’s application for an interlocutory appeal and the Supreme Judicial Court (SJC) granted his application for direct appellate review.

III. Question Presented

Whether, in light of the decriminalization of one-ounce or less of marijuana, the officers had probable cause to enter and search the vehicle to seize the marijuana?

IV. Reasoning and Analysis

On review of a motion to suppress, the SJC “accept[s] the judge’s subsidiary findings of fact absent clear error but conduct[s] an independent review of [the judge’s] ultimate findings and conclusions of law.” The automobile exception to the warrant requirement requires the police officer to have probable cause to believe that the vehicle contains contraband or evidence of a crime, and the inherent mobility of the vehicle on a public way renders getting a warrant impracticable.

In the case of marijuana, this exception is further narrowed by requiring the officer to have probable cause to believe that the vehicle contained a criminal amount of marijuana. In order to have probable cause, the officer must know enough of the facts and circumstances “‘to warrant a person of reasonable caution in believing’ the vehicle contained a criminal quantity of marijuana.” In this case, Glennon testified at the evidentiary hearing that the bag contained what appeared to be “about” one-ounce of marijuana, a noncriminal quantity of marijuana that would not give rise to probable cause. Even in conjunction with Sheridan’s shaking and nervous behavior, the facts and circumstances were not such that “tipped the scales to probable cause.”

The SJC also considered the plain view exception to the warrant requirement. The plain view doctrine requires that the officer be lawfully in the position to see the object with a lawful right of access to the object, the object’s criminal nature is readily apparent, and that the officer discovered the object inadvertently. The SJC reasoned that while the officers could see the marijuana from their lawful vantage point outside the vehicle, the officers did not have lawful access to enter the vehicle, “[b]ecause the observation of a noncriminal amount of marijuana did not alone give rise to probable cause” to justify entering the vehicle.

With regard to the cell phone search and text messages, the SJC rejected the trial court judge’s finding that the search was permissible because, upon entering the vehicle, the officer found a criminal quantity of marijuana giving rise to probable cause to arrest Sheridan and search his phone incident to his arrest. The arrest was based on the entry to the vehicle, which the SJC found invalid, thus “the thread leading to the search of the text messages is unwound, and the text messages must be suppressed.”

V. Conclusion

The SJC reversed the trial judge’s denial of the defendant’s motion to suppress and held that, in light of the decriminalization of one-ounce of marijuana, the officers lacked probable cause to enter the vehicle and seize the marijuana, arrest the defendant, and search his phone. The officer could only see a noncriminal amount of marijuana and did not have sufficient facts and circumstances to believe that there was a criminal quantity of marijuana or other evidence of a crime in the vehicle. Therefore, the entry into the vehicle, seizure of marijuana, and subsequent search of the cell phone was unlawful.

Contributing Editor: Rachel Murray

Mass. Crim. Dig.: Commonwealth v. Burgos

Commonwealth v. Burgos, 19 N.E.3d 843 (2014)

I. Facts

On July 4, 2005, Dana Haywood was shot and killed in the Monte Park neighborhood of New Bedford. Three years later, Rico Almeida contacted the District Attorney’s office about Haywood’s murder. At the time, Almeida was sharing a cell with the defendant, John Burgos, when he found out that the defendant murdered Haywood. Almeida offered to help police by wearing a concealed recording device to get the defendant’s confession on tape. In order to secure a search warrant, police submitted an affidavit, which contained information about police officers’ prior dealings with Almeida. The affidavit also detailed the background of gang involvement between the defendant’s gang, United Front, and Haywood’s gang, Monte Park. Additionally, the affidavit stated that police suspected Haywood’s death was in retaliation for a United Front member’s murder.

A Superior Court judge issued the search warrant, which allowed police officers to provide Almeida a recording device to record a conversation with the defendant. The defendant admitted on tape to being one of the shooters that killed Haywood.

II. Procedural History

Once indicted for murder and unlawful possession of a firearm, the defendant filed a motion to suppress the recorded statements. The defendant argued the Commonwealth violated the wiretap statute because “the Commonwealth had not made the requisite showing that the recording would lead to evidence about a ‘designated offense’ committed ‘in connection with organized crime.’” A Superior Court judge denied the motion, stating that the affidavit contained sufficient facts to show that “the victim’s murder was committed in connection with organized crime because the facts showed the murder was ‘gang related.’”

After being tried and convicted of first degree murder, the defendant filed a timely notice of appeal and moved for a new trial due to ineffective assistance of trial counsel. The motion was remanded to Superior Court, where it was denied. The defendant subsequently filed another timely appeal.

III. Question Presented

The Massachusetts Supreme Judicial Court (“SJC”) considered three issues: (1) whether the recorded statements were a violation of the wiretap statute; (2) whether the defendant should be granted a new trial because he was deprived of effective assistance of counsel; and (3) whether the defendant’s motion to suppress evidence of his recorded call with his brother while he was a pretrial detainee was improperly denied.

IV. Reasoning and Analysis

The SJC first reviewed whether the secretly recorded statements should have been suppressed. The SJC looked to the wiretap statute and one of its exceptions: the one-party consent recording. This is “where the person who is conducting the surreptitious recording is an investigative or law enforcement officer investigating a ‘designated offense,’ and that officer is either (1) a party to the communication, or (2) has advance authorization from a party to the communication to intercept the conversation” (internal quotations omitted). The Commonwealth used the wiretap exception to support its argument that “the recording was carried out by law enforcement officers investigating the victim’s murder.” The defendant argued that it must be connected with organized crime. The defendant asserted that for this exception to apply, the Commonwealth must “show that the decision to intercept was made on the basis of a reasonable suspicion that interception would disclose or lead to evidence of a designated offense in connection with organized crime.” The SJC stated that the Commonwealth must show not only a nexus to organized crime but: 1) “a high degree of discipline and organization among the suspected members of the criminal enterprise” and 2) “that the designated offense was committed to promote the supply of illegal goods and services or the furtherance of an ongoing criminal business operation” (internal quotations omitted).

The SJC looked at other wiretap statute cases. In Commonwealth v. Tavares, 945 N.E.2d 329 (Mass. 2011), there was no connection to organized crime because there was no information in the police officer’s affidavit or other evidence that the crime was committed in connection with organized crime. In Commonwealth v. Hearns, 10 N.E.3d 108 (Mass. 2014), the Court found a link in connection to organized crime because the affidavit contained detailed information regarding the police officer’s direct knowledge that the alleged individuals distributed narcotics and possessed firearms. The SJC opined that Burgos’s situation is more similar to Tavares than to Hearns due to the police officer’s vague and conclusory affidavit in this case. The SJC concluded that there was nothing in the affidavit that showed these two gangs were at war with each other and that would connect the murder or the defendant to the gang’s drug dealing operations. The Court found that “a retaliatory killing alone, without a clear link to the goals of a criminal enterprise, does not amount to a connection to organized crime.” Therefore, the SJC held that the denial of the defendant’s motion to suppress was error and that a new trial should be granted.

Next, the SJC looked at whether the defendant was deprived of effective assistance of counsel because the defendant’s trial attorney decided to move for suppression of evidence from his conversation with Almeida. The defendant argued that the conversation between himself and Almeida was while he was in “custodial interrogation.” Therefore, the evidence was inadmissible because the defendant was not given his Miranda warnings before the conversation occurred. The defendant argued that his “trial attorney’s action fell measurably below that which might be expected from an ordinary fallible lawyer” (internal quotations ommited). However, the SJC found that the defendant was not in custody for Miranda purposes because he was voluntarily telling information to Almeida, whom he considered to be a friend. Therefore, the defendant’s trial attorney was not ineffective in raising the claim for suppression.

The final issue the SJC considered was whether the defendant’s motion to suppress evidence of his recorded call with his brother while he was a pretrial detainee was improperly denied. The SJC concluded that there was no error because there must be prejudice shown in order to suppress the evidence and there was none shown.

V. Conclusion

The SJC reversed Burgos’ conviction, and the case was remanded for a new trial.

Contributing Editor: Sameera Navidi

Mass. Crim. Dig.: Commonwealth v. Valentin

Commonwealth v. Valentin, 470 Mass. 186 (2014)

I. Facts

In July 1991, Timothy Bond stole cocaine from Angel Ruidiaz, who was selling drugs for the defendant’s brother, Simon. Ruidiaz paid Simon for the stolen drugs, but Simon told Ruidiaz that he was “still going to get” Bond. Later that same month, while Bond was with a group of friends, including Kenneth Stokes, Simon and the defendant approached Bond from behind and shot him in the back of the head. Bond fell to the ground and Simon shot him again in the head. Stokes testified that the defendant next stomped on the victim’s head while making a profane death threat. Then the defendant and Simon fled on foot and, as they were running away, the defendant told Simon, “Man, put the gun away, the police are coming.”

At the trial, the defendant’s primary defense was an alibi, calling three witnesses to testify that he was playing dominoes elsewhere at the time of the shooting. The Commonwealth called four witnesses, including Stokes, who were at the shooting. All four of these witnesses testified that the defendant either “kicked” or “stomped” on the victim’s head after Simon fired the second shot. However, only Stokes testified that the defendant made a profane statement while he kicked or stomped on the victim’s head. On cross-examination, two witnesses acknowledged they did not tell the police shortly after the incident that they saw the defendant stomp on Bond. Stokes, though cross-examined, was not questioned about his failure to initially tell the police about the defendant’s statement. On the second day of jury deliberations, defendant’s trial counsel, Robinson, asked for the judge’s permission to have her law partner stand in for her. Although her partner had not worked on the case and had only discussed it with Robinson, the judge granted the request without seeking defendant’s consent to the substitution.

While substitute counsel was standing in, the jury asked to be, and was, reinstructed on joint venture and premeditation. Following the reinstruction, the judge assured substitute counsel that any objections that Robinson made in the main jury charge would be preserved and that he was not waiving any of these objections. That same day, the jury found the defendant guilty as a joint venturer in premeditated murder.

II. Procedural History

On May 15, 1992, defendant Pedro Valentin was convicted of murder in the first degree by reason of deliberate premeditation. The Supreme Judicial Court (“SJC”) affirmed his conviction in 1995. In January 2012 the defendant filed a motion for a new trial, which was denied on February 6, 2013, without a hearing. Later that same month the defendant filed a petition for leave to appeal under chapter 278, section 33E of the Massachusetts General Laws. On August 1, 2013, a single justice allowed the petition to address two of the issues presented.

III. Questions Presented

The SJC considered two questions: (1) whether the defendant’s trial counsel provided ineffective assistance by virtue of failing to impeach Stokes’s testimony regarding the defendant’s murder scene statement; and (2) whether the defendant was deprived of counsel as a result of his trial counsel’s partner standing in during jury deliberations.

IV. Reasoning and Analysis

(1) In reviewing an appeal from the denial of a motion for a new trial, which alleges errors grounded in the record before the court in its plenary review, the SJC reviews for a “substantial risk of a miscarriage of justice.” “A substantial risk of a miscarriage of justice exists when [there is] a ‘serious doubt whether the result of the trial might have been different had the error not been made.’” “Errors of this magnitude are extraordinary events and relief is seldom granted . . . . Such errors are particularly unlikely where, as here, the defendant’s conviction . . . has undergone the exacting scrutiny of plenary review under § 33E.”

A defendant’s right to counsel in a criminal case entails the right to “effective assistance of counsel.” In order to establish a claim of constitutional ineffectiveness of counsel, the defendant must show “that his attorney’s performance fell ‘below an objective standard of reasonableness’ such that there is a ‘probability sufficient to undermine confidence in the outcome.’” In cases where an attorney’s defense strategy proves unsuccessful, judicial examination of counsel’s performance should be highly deferential so as to avoid “the distorting effects of hindsight.”

For claims of ineffective assistance of counsel raised under both the Sixth Amendment to the U.S. Constitution and Article Twelve of the Declaration of Rights of the Massachusetts Constitution, the SJC is tasked with determining whether there has been a “serious incompetency, inefficiency, or inattention of counsel—behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer—and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available substantial ground of defence.” Although counsel’s failure to pursue an “obviously powerful form of impeachment” can rise to the level of unreasonableness such as to constitute ineffective assistance, the failure to impeach a witness does not necessarily, on its own, constitute ineffective assistance.

Here, counsel did extensively cross-examine and impeached Stokes based on a series of inconsistent statements. Thus, even though counsel did not extensively question Stokes about the defendant’s alleged statement, she did undermine the veracity of his entire testimony. Further, trial counsel’s decision not to impeach Stokes on this particular statement was a strategic one to avoid highlighting it. Thus, the Court found that this was not manifestly unreasonable.

However, even if it was unreasonable, the Court noted that this error did not lead to a substantial risk of a miscarriage of justice. That is because there was substantial additional evidence upon which the jury could have relied in determining that the defendant shared Simon’s intent to kill Bond. Finally, “[w]hether the defendant actually made the statement in question was not the linchpin of the defense.”

(2) In Massachusetts, jury deliberations are considered a critical stage of the proceedings when the jury communicates a request that is of legal significance. At this stage, assistance of counsel requires that a judge consult with counsel regarding the appropriate response to the jury’s request. The jury’s requested reinstruction was on joint venture and premeditation, two issues of legal significance in this case. Since this issue arose at a critical stage of the proceedings, it would be a structural error resulting in a new trial if the defendant was actually or constructively denied counsel. In cases of structural error, the defendant has a right to a new trial without a showing of prejudice.

The defendant claimed that the absence of his informed consent to substitute counsel during jury deliberations amounted to a structural error. “Structural errors are ones that render the ‘adversary process itself presumptively unreliable’ or that constitute ‘constitutional error[s] of the first magnitude’ that simply cannot be cured even if the error was ultimately harmless.” The Supreme Court has recognized that “[c]ircumstances of [this] magnitude may be present on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” However, constructive denials of counsel rarely meet this order of magnitude.

Here, substitute counsel’s representation of the defendant for this brief period did not constitute structural error because substitute counsel was not fundamentally incapable of representing defendant during the brief period of representation. Substitute counsel did actively render assistance to the defendant by preserving objections to the challenged instructions by trial counsel. Thus, any error involved in permitting substitute counsel was not structural and therefore requires a showing of prejudice in order to warrant a new trial. However, even if defendant was not constructively denied counsel outright, he is still entitled to effective assistance of counsel.

Unlike constructive denial of counsel, however, a claim for ineffective assistance of counsel, if performance was substandard, requires the defendant to show prejudice and that better performance might have accomplished something material for the defense. In considering a claim for ineffective assistance of counsel, the court uses an objective standard to determine whether the conduct fell within a range of professionally reasonable judgments based upon the professional norms that existed at the time of representation.

The defendant claimed that he was prejudiced by substitute counsel’s failure to object to the “joint venture” reinstruction. Specifically, the defendant argued that substitute counsel’s failure to object to the judge’s omission of “not guilty” on the “joint venture” reinstruction was prejudicial. However, the jury was previously instructed, generally and specifically, with respect to joint venture that they could find the defendant not guilty and, even if counsel had objected, it is unclear that the judge would have repeated the full instruction. The Court considered whether not pursuing this argument was “manifestly unreasonable” so as to give rise to a “substantial risk of a miscarriage of justice,” and determined there was no such risk.

“In a postappeal, collateral attack that raises an issue regarding jury instructions, we consider whether a reasonable juror could have used the instruction incorrectly, in light of the instruction as a whole and in the context of the trial.” Although the judge’s supplemental instructions could have been more clear in distinguishing between general malice and premeditation, the jury would have understood that the judge’s instruction regarding deliberate premeditation related to the intent to kill and not an intent to inflict grievous bodily harm. “Even though he could have made certain objections regarding the supplemental instructions, substitute counsel’s actions did not fall below what we would expect from an ordinary fallible lawyer, and the defendant was not significantly prejudiced by substitute counsel’s performance such that he is entitled to a new trial.”

V. Conclusion

For the foregoing reasons, the SJC affirmed denial of the defendant’s motion for a new trial.

Contributing Editor: Sarah Gage

Mass. Crim. Dig.: Commonwealth v. Leclair

Commonwealth v. Leclair, 469 Mass. 777 (2014)

I. Facts

On May 2, 2012 the defendant was arraigned on charges of assault and battery, following an incident between him and his girlfriend that occurred earlier that day at Matthew Sheehan’s (“Sheehan”) apartment. The case went to trial on August 1, 2012, and it was on that day that the Commonwealth first disclosed its intent to call Sheehan as a witness. The judge appointed an attorney to represent Sheehan and to counsel him regarding the potential assertion of his Fifth Amendment privilege against self-incrimination. After consulting with Sheehan about the questions he could expect upon examination, his attorney informed the court that Sheehan intended to invoke his privilege. Sheehan sought to assert this privilege in order to refuse answering questions that might expose him to criminal charges for possession of a controlled substance and conspiracy to violate the drug laws. After an in camera hearing on this issue, the judge ruled that Sheehan would not be permitted to invoke this privilege. As grounds for this ruling, the judge stated that Sheehan failed to demonstrate that he faced an actual risk that his testimony would “tend to indicate involvement in illegal activity, as opposed to a mere imaginary, remote, or speculative possibility of prosecution.”

The case proceeded to trial and Sheehan took the stand as the first witness. During the cross-examination, defense counsel posed questions to Sheehan regarding his use of illegal drugs on the night of the incident. Sheehan responded by invoking his privilege against self-incrimination. The judge then instructed Sheehan to answer the question at which time Sheehan testified that he had used cocaine that night. Defense counsel then proceeded to ask Sheehan further questions regarding his cocaine use. Despite the judge’s prior instruction, Sheehan responded each time by invoking his Fifth Amendment privilege and refusing to answer, as instructed by his attorney.

The judge warned Sheehan that a refusal to respond on the improper assertion of the Fifth Amendment privilege could lead to criminal contempt or sanctions. At this time, Sheehan’s counsel informed the judge that she had advised her client not to testify and to continue to so refuse on self-incrimination grounds. Sheehan’s attorney also requested a stay of criminal sanction, arguing that if it was determined on appeal that Sheehan had no valid grounds to invoke this privilege, he would testify immediately and “purge the contempt.” However, the judge declined to grant such a stay, and renewed his warning of the possibility of an immediate sanction of incarceration if Sheehan continued to refuse to testify. Sheehan also sought immunity from the prosecution for his drug use, but was only offered an oral assurance and written statement that the Commonwealth had no present or future interest in prosecuting Sheehan for such use based upon his testimony. Despite this offer and the risks, Sheehan’s counsel informed the court that Sheehan would continue to assert his privilege. The judge then warned Sheehan directly of the possibility of facing incarceration and fines if he responded in the manner in which his attorney had stated.

Despite the warnings, on continuance of the examination, Sheehan again declined to answer questions regarding his drug use on Fifth Amendment grounds. The judge immediately held Sheehan in contempt for his “mistaken claim of the Fifth Amendment privilege” and ordered that he be incarcerated for ninety days, pending the resolution of the interlocutory appeal.

II. Procedural History

After Sheehan was held in contempt, he filed a motion for reconsideration of the order, which was denied. Sheehan then appealed the contempt ruling and sentence to the Massachusetts Appeals Court. The matter was then transferred to the Supreme Judicial Court (“SJC”) for consideration on their own motion.

III. Question Presented

The SJC considered two main questions: (1) whether Sheehan was justified in invoking his Fifth Amendment and Article 12 of the Massachusetts Declaration of Rights privilege against self-incrimination; and, if so (2) whether the contempt order was proper. An ancillary question considered by the court was whether Sheehan had waived his Fifth Amendment privilege by responding to the answers.

IV. Reasoning and Analysis

In considering questions regarding claims of privilege, the court applies the federal standard. The federal standard dictates that the Fifth Amendment privilege against self-incrimination should be liberally construed in favor of the person asserting the privilege in order to allow for broad protection under this fundamental principle. Specifically, the Court states that this privilege must be upheld whenever invoked, “unless it is perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency to incriminate.”

In determining whether the privilege was appropriately invoked, the court looks to the nature of the testimony called for in the questions and whether it has the potential to incriminate the witness. A witness’s invocation of the privilege is considered justified whenever the witness “reasonably believes that the testimony could be used in a criminal prosecution or could lead to other evidence that might so be used.” This is true whether or not the judge believes the witness’s motive for not testifying.

Applying this standard to Sheehan, the Court found that the questions posed to him regarding his use of illegal drugs provided more than sufficient grounds for him to invoke his Fifth Amendment privilege. The Court found that had Sheehan truthfully responded to this nature of questioning, he would have placed himself at risk of being linked to criminal activity for which he could be prosecuted, regardless of whether the testimony itself would be sufficient for an actual conviction. Further, the Court determined that the Commonwealth’s promise not to prosecute Sheehan did not render his invocation unjustified because whether an actual prosecution would result is not relevant to the consideration of the use of the privilege. As such, the Court held that Sheehan’s refusal to testify on Fifth Amendment grounds was justified and that the contempt order was improper.

The Court also rejected the argument that Sheehan waived the protection of the privilege by answering two of the questions during cross-examination. The Court held that there was no such waiver because Sheehan responded only after the judge instructed him to, and because Sheehan had invoked the privilege multiple times prior to his response.

V. Conclusion

The Court held that Sheehan validly invoked his right against self-incrimination, he should not have been compelled to testify, any response did not constitute a waiver, and the contempt order was improper.

Contributing Editor: Taylore Karpa

Mass. Crim. Dig.: Commonwealth v. Guzman

Commonwealth v. Guzman, 469 Mass. 492 (2014)

I. Issues

There are three main issues in this case:

  1. Whether the imposition of the Global Positioning System (“GPS”) is mandatory under chapter 265, section 47 of the Massachusetts General Laws;
  2. Whether the statutory mandate violates substantive and procedural due process under the Fourteenth Amendment of the U.S. Constitution and Articles 1, 10, 11, and 12 of the Massachusetts Declaration of Rights; and
  3. Whether the statutory mandate constitutes unreasonable search and seizure under the Fourth Amendment of the U.S. Constitution and Article Fourteen under the Massachusetts Declaration of Rights.

II. Facts

Jose A. Guzman (“Guzman”) was indicted on August 15, 2011, for dissemination or possession of obscene matter and dissemination of visual material depicting a child in a state of nudity or sexual conduct. The defendant, Guzman, acquired child pornography through LimeWire, an internet-based file sharing system. The defendant’s default settings allowed other users to access his files, thus satisfying the dissemination requirement. The defendant plead guilty to the charges. The Commonwealth’s sentencing memorandum proposed that the defendant should be sentenced to five years incarceration with ten years probation. Whether he should wear a GPS monitoring device during the probation period was considered during his plea colloquy. The superior court judge sentenced the defendant to one year of incarceration and a five year probationary period without a GPS.

III. Procedural History

The Commonwealth filed a motion for another hearing and argued that the inclusion of GPS during probation for dissemination of visual material depicting a child in a state of nudity or sexual conduct was not discretionary, but mandatory. The judge again declined to impose the GPS system, reasoning that the statute was “‘problematic’ for its failure to distinguish between contact sex offenders and noncontact offenders.”

The Commonwealth then filed a petition for relief requesting a single justice to vacate the defendant’s sentence and remand it further. The defendant filed a motion against the petition for relief and the single justice reserved and reported the case to the full court.

IV. Analysis

A. The GPS Monitoring Device Is Mandatory Under Chapter 265, Section 47 of the Massachusetts General Laws

The Court found that to determine whether a statute is mandatory, they needed to first look at the plain language of the statute. In doing so, the Court quoted the statute: “Any person who is placed on probation for any offense listed within the definition of ‘sex offense’ . . . shall, as a requirement of any term of probation wear a global positioning system device.” The Court reasoned “shall” means a mandatory obligation.

With this determination the Court concluded that the superior court sentencing judge was wrong in not adding the GPS to the sentence of the defendant. There is no discretion to decide whether a GPS should apply in certain circumstances. Therefore, GPS during probation is a mandatory part of sentencing.

B. Constitutional Arguments
1. The Statutory Mandate for the GPS Does Not Violate Procedural or Substantive Due Process

The Court then looked at the defendant’s constitutional arguments. First, the defendant argued that the mandatory nature of imposing the GPS device violated the defendant’s substantive and procedural due process rights. The defendant further argued analysis of the statute should inquire into whether the condition of probation is “reasonably related” to the goals of sentencing and probation.

However, the Court determined that because the statute mandatorily required the GPS, the appropriate test was “rational basis.” The Court previously held that the “[l]egislature has great latitude to . . . prescribe penalties to vindicate the legitimate interests of society.” In looking at the rational basis test, the Court determined that the legislature has permissible objectives concerning criminal sentencing—namely deterrence, isolation, incapacitation, retribution, moral reinforcement, reformation, and rehabilitation. There is a great danger of recidivism with sex offenders and the legislature determined that the risk of repetition might be deterred by GPS monitoring.

Furthermore, the Court noted the legislature’s floor debate discussing this issue and that the purview of the legislature is to determine whether this is appropriate for the crime. The Court is not in the position to legislate from the bench, nor place their opinion above what the legislature has already determined necessary through their process. The distinguishing factor between contact and noncontact had not been made by the legislature. The legislature is in the best place to determine what punishment fits the crime; therefore whether the sex offense crime was contact or noncontact has no bearing.

The Court held that there was no violation of the defendant’s substantive or procedural due process rights. The statute passed the appropriate “rational basis test” because the legislature’s determination of the punishment was rationally related to its purpose in deterrence.

2. The Record Does Not Support a Finding for the Search and Seizure Argument

The Court declined to consider the constitutional issue of the reasonableness of a search and seizure under the Fourth Amendment of the U.S. Constitution and Article Fourteen of the Massachusetts Declaration of Rights. There was no issue raised in the underlying proceedings so the record was lacking. The Court stated “neither the Commonwealth nor the defendant presented evidence concerning the details of the GPS monitoring to which the defendant is subject.” The determination of reasonableness under the Fourth Amendment is incredibly fact-specific and with no record to explain those facts the Court declined to rule on that issue.

V. Conclusion

In conclusion, the Court held that the mandate in chapter 265, section 47 of the Massachusetts General Laws to place a GPS device on a person convicted of a sex offense crime is mandatory, and not open for discretion by a sentencing judge. The defendant’s substantive and procedural due process rights were not violated by the statute’s mandate because the punishment of the GPS system was rationally related to the legislature’s objectives of deterrence. The Court refused to rule on the Fourth Amendment search and seizure argument because the record was lacking facts for them to make that determination.

Contributing Editor: Wendy Hansen

Mass. Crim. Dig.: Commonwealth v. Howard

Commonwealth v. Howard, 469 Mass. 721 (2014)

I. Facts

On January 28, 2009, Maurice Ricketts was shot in the head while working at Bay State Pool Supplies in Cambridge. The defendant, Clyde Howard, was a handyman at Bay State. After taking out the trash, the defendant entered the warehouse and spoke with the victim. There was yelling, and the defendant “pulled out a gun, and pointed it at the victim,” and then chased him through the warehouse. The defendant fired his gun once, missed the victim, and then continued to follow him out of the warehouse. The operations manager alerted the branch and assistant managers and called 911. The managers ran toward the warehouse and heard two shots fired. They saw the defendant “facing the back of the dumpster with his arm outstretched and pointed slightly downward, and then heard two additional shots.” They then “saw the defendant walk toward the back door, stop, return to the dumpster area, and fire an additional shot.” After the final shot, the defendant “ran to a white van, and drove away.” The victim was found behind the dumpster with a faint pulse and later died at the emergency room.

Later, a police officer discovered the defendant sleeping in the white van. The police officer removed the defendant from the van and proceeded to perform a pat and frisk to find dangerous weapons. The police officer asked the defendant if he had a weapon and the defendant stated he threw it in the Charles River. The police officer arrested the defendant, transported him to the police station in Roxbury, and read him his Miranda rights. During booking the defendant made unsolicited comments. Subsequently, police officers moved the defendant to the Cambridge police department, during which the officer smelled alcohol on the defendant’s breath. Though his speech was slurred and he appeared unsteady, “he was not slipping, falling, or stumbling.” During this twenty-five-minute period, the defendant also made more unsolicited comments. After he arrived at the police station and was booked he still appeared somewhat impaired, and the police officers decided to wait until the following day to interview him. The next morning the defendant was asked if he would consent to an interview. The officers then read him his Miranda rights. He indicated he would speak to the officers, but that there were “certain things that might be kind of like sensitive.” He was then asked to initial and sign the Miranda waiver. After a brief period of questioning, the police stopped to administer a Rosairo waiver (explaining his right to a prompt arraignment), which was signed, and then questioning resumed. However, the defendant “stated that he ‘would kind of deviate from the more sensitive matters.’” He further stated that he “would like to stop at that point because it [be]comes more intricate now and who knows what’s going to happen.” However, the officers continued to question the defendant before taking a break and subsequently resuming questioning.

II. Procedural History

The superior court jury found the defendant “guilty of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty.” The defendant appealed, arguing: (1) the judges denial of the defendant’s pretrial motion to suppress statements was an error; (2) the court “focused on prior bad acts and character evidence during trial”; (3) the prosecutor made prejudicial statements during his closing argument that “warrant a new trial”; (4) “the jury instruction on mental impairment and the voluntariness of the defendant’s statements were erroneous and warrant reversal of his convictions.”

III. Question Presented

The Massachusetts Supreme Judicial Court (“SJC”) considered four questions: (1) whether the judge’s denial of the defendant’s motion to suppress statements made during his arrest and interview was an error; (2) whether the superior court “impermissibly focused on prior bad acts and character evidence during trial”; (3) whether the statements made by the prosecutor during his closing argument were prejudicial and warranted a new trial; (4) whether “the jury instruction on mental impairment and the voluntariness of the defendant’s statements were erroneous and warrant[ed] a reversal of his convictions.”

IV. Reasoning and Analysis

The SJC first reviewed the defendant’s argument that: (1) the statements he made during his arrest should have been suppressed because he was intoxicated and thus were involuntary, and (2) the statements made during his interview “were obtained in violation of his Miranda rights.” First, to determine voluntariness, the Court must look at the totality of the circumstances to determine if the defendant’s will was overcome to such an extent that his statements were not free and voluntary. The Court looks at relevant factors, such as any promises or inducements by the police, age, education, intelligence, experience, physical and mental condition of the defendant, as well as “whether the defendant was under the influence of drugs or alcohol.” However, just because one factor is present does not mean the statements made were involuntary. Additionally, just because a defendant is under the influence of drugs or alcohol does not make a statement involuntary. Here, the Court held that the defendant’s statements were voluntary. Even though he was intoxicated, the Court agreed with the superior court: “his mind was rational and his faculties were under control.” Second, to determine if the statements obtained from the defendant during his interview violated his Miranda rights, the Court must consider: (1) whether the officers were required to seek clarification because the defendant’s waiver of his Miranda rights were conditional, and (2) whether he invoked his right to remain silent. First, if the defendant’s waiver of his Miranda rights was conditional, the officers would have been required to seek clarification to continue the interview. Here, the Court held that when the defendant assented to the interview and signed the Miranda waiver he made “an unequivocal, knowing, voluntary, and intelligent waiver of his right to silence.”

Second, if the defendant invoked his right to remain silent, the officers should have stopped questioning him when he stated he “would like to stop at that point.” A defendant can invoke his right to remain silent at any time, however it “must be clear and ‘unambiguous,’” to the extent that “‘a reasonable police officer in the circumstances would understand the statement’ to be an invocation of the Miranda right.” This is determined based on the totality of the circumstances. Here, the Court held that the defendant invoked his right to remain silent when he stated he wanted “to stop at that point.” As such, the officers should have sought clarification, rather than continuing to question and then take a subsequent break. Similarly, they did not honor his right to be “free from interrogation” before additional questioning under the Mosely factors used to make this determination. Thus, they did not honor the defendant’s right to remain silent and it was not a harmless error.

Next, the Court examined the defendant’s argument that the prosecutor introduced character evidence and evidence of prior bad acts, which was unfairly prejudicial. Evidence of bad acts is not admissible to show a propensity for the crime charged or bad character, but may be introduced for some other reason, such as “to show a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive [or state of mind].” Here, there were three separate instances of prior bad acts admitted by the superior court: (1) a prior forklift incident with the victim; (2) a prior forklift incident with another individual; and (3) comments made by the defendant about Haitian women. The Court held that the bad acts were admissible because the evidence provided a clearer picture to the jury concerning the relationship between the defendant and the victim, the defendant’s state of mind, motive, and intent.

The Court then looked to the defendant’s argument that the prosecutor’s closing statments were prejudicial. The Court held that the prosecutor’s closing arguments were improper for two essential reasons: (1) the statements used to illustrate the defendant’s state of mind were obtained in violation of his Miranda rights and (2) the use of propensity-based argument. First, the prosecutor improperly referenced statements made by the defendant after he invoked his right to remain silent. Second, admitting the prior bad acts into evidence was not an abuse of discretion since it was only admitted for a limited purpose. The prosecutor’s propensity-based use of the prior bad acts at trial was improper.

Lastly, the Court examined the defendant’s argument that the judge’s jury instructions on malice, mental impairment, and voluntariness were in error. First, the Court held that the Commonwealth possessed the burden to prove malice, not the “intent to commit first degree murder by deliberate premeditation or extreme atrocity or cruelty.” Second, the judge’s instruction did not allow the jury to consider the defendant’s possible mental impairment. Finally, the judge’s instructions allowed the jury to consider exculpatory statements, which have not been used previously in jury instructions. Here, the Court held that in such cases where the defendant’s mental impairment is important to the case, there is a risk that a jury could misuse exculpatory statements to determine mental incapacity. Ultimately, the jury instructions were in error.

V. Conclusion

For the aforementioned reasons, the SJC reversed the defendant’s first-degree murder conviction.

Contributing Editor: Kristy Wilson

Mass. Crim. Dig.: Commonwealth v. Thomas

Commonwealth v. Thomas, 469 Mass. 531 (2014)

I. Facts

In the early morning of July 6, 2006, a three-story Brockton house erupted in flames. The first-floor occupants were unharmed; however, second-floor residents and guests threw the children out the window to a passerby and then jumped themselves. Those on the third floor could not escape on their own. While firefighters saved three people, including the one-month-old baby, the baby’s mother was trapped in the bathroom and later died of smoke inhalation at the hospital.

Michelle Johnson rented the first-floor apartment. The defendant, Chiteara M. Thomas, and her boyfriend, Cornelius Brown, stayed in the first-floor apartment with Johnson. Prior to the fire, Johnson demanded that Thomas move out. The defendant, angry at being tossed out, repeatedly threatened “to kill Johnson and burn the house down.”

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Mass. Crim. Dig.: Commonwealth v. Vacher

Commonwealth v. Vacher, 469 Mass. 425 (2014)

I. Facts

On December 16, 2008, sixteen year-old Jordan Mendes’s body was found burning in a pit in Hyannis. Mendes was stabbed in the neck and face twenty-one times, and was shot in the chest. The previous day, he went to his half-brother Charlie’s home on Arrowhead Drive after school. The defendant, Robert Vacher, was dropped off at Charlie’s home with Charlie and John R. around the same time as Jordan. That evening, Charlie arranged to test drive a black Nissan Maxima that a classmate was selling for $11,000. Charlie, John R., and the defendant test drove the vehicle and had it in their possession for approximately four hours, returning it at 8:00 p.m. At that time, Jordan’s friend Diana had expected to see him at the Arrowhead Drive house; he did not arrive, and she telephoned him throughout the night but was ultimately unable to reach him. The next morning, Diana drove Charlie and the defendant to a car dealership in Hyannis, where they purchased a silver BMW for $10,995 in cash. Charlie, John R., and the defendant were later seen at a gas station with the BMW and a red gasoline can.

Jordan’s grandmother became concerned about his whereabouts because she had not seen him since the previous day. She and Jordan’s sister went to look for him, ultimately arriving at a place in the woods where Jordan and his sister often played as children. Jordan’s grandmother and sister noticed a fire burning in a pit, and found Jordan’s body at the bottom. A certified accelerant detection dog twice alerted to the presence of gasoline.

On December 18, the defendant drove with a friend to Wellfleet. During the drive, he admitted that he killed Jordan in the basement of the Arrowhead Drive house after attempting to rob him (Jordan and his cousin Charlie sold drugs and often carried around large amounts of cash with them). The defendant also admitted to facts related to the killing while at dinner with his girlfriend. After leaving his friend’s house later that night the defendant was stopped by police, who had a “be on the lookout” alert for the BMW registered to the defendant. The defendant was read his Miranda rights and voluntarily agreed to go to the police station to speak with the detectives about a recent homicide. During the defendant’s interview, he claimed that he remained at the Arrowhead Drive house for the remainder of the day after having been dropped off there and that he had spent all of the following day at his own home in South Yarmouth—these statements were inconsistent with other evidence as to his whereabouts.

Following a search of the Arrowhead Drive house, the Nissan, and the BMW, forensic experts concluded that traces of blood found in these locations were consistent with the victim’s DNA profile. The expert also found DNA that was consistent with the defendant’s DNA profile.

II. Procedural History

The superior court jury found Robert Vacher “guilty of murder in the first degree, on theories of deliberate premeditation, extreme atrocity or cruelty, and felony murder.” Vacher appealed, looking for the Court to recognize “target standing,” various constitutional issues including witness immunity, and deficient jury instructions.

III. Question Presented

The Massachusetts Supreme Judicial Court (“SJC”) considered three questions: (1) whether “target standing” was available to the defendant under art. 14 of the Massachusetts Declaration of Rights; (2) whether the witness immunity statute, chapter 233, sections 20C–20E of the Massachusetts General Laws, was constitutional; (3) whether the superior court erred in admitting testimony from a police officer who identified the defendant in surveillance footage; and (4) whether the judge’s failure to instruct the jury pursuant to Commonwealth v. DiGiambattista prejudiced the defendant.

IV. Reasoning and Analysis

(1) The SJC first reviewed “target standing,” which the defendant asked the Court to recognize for the first time. Target standing is a concept where the “real target” of a police investigation should have standing to assert a violation of the constitutional rights of coventurers in litigating the defendant’s own motion to suppress. The Court provided an example to explain the concept: “Unconstitutional [police conduct directed at] small fish intentionally undertaken in order to catch big ones may have to be discouraged by allowing the big fish, when caught, to rely on the violation of the rights of the small fish, as to whose prosecution the police are relatively indifferent.” During the investigation, police interviewed both Charlie and John R. in connection with the crime. At the time, the police had information to suggest that both Charlie and John R. could have played a significant role in the victim’s death; therefore they, too, were considered “big fish” and targets of the investigation. The Court held that the defendant could not establish that he was the prime target of the police investigation and therefore his target standing challenge was properly denied.

(2) The Court then reviewed the defendant’s argument that the prosecution’s reliance on immunized witnesses undermined his federal and state constitutional rights to protect him from conviction based on false evidence, challenging the constitutionality of the witness immunity statute, chapter 233, sections 20C–20E of the Massachusetts General Laws. Chapter 233, section 201 of the Massachusetts General Laws provides that a defendant cannot be convicted by immunized testimony alone. The Court found that no violation of chapter 233, section 201 of the Massachusetts General Laws occurred because nonimmunized witness testimony corroborated the immunized witnesses’ testimony. Furthermore, the Court found no constitutional violation of chapter 233, section 20E of the Massachusetts General Laws because there was no error or misconduct in the use of the immunized witnesses: the judge had clearly instructed the jury that they could consider the witnesses’ grant of immunity in determining his or her credibility and that the jury could not convict solely on the grounds of the immunized testimony.

(3) Finally, the Court addressed the issue of whether the superior court erroneously admitted prejudicial testimony from a police officer identifying the defendant as the person seen in the convenience store surveillance footage. A witness’s opinion about the identity of persons in surveillance footage or photography is only admissible if the witness is more likely than the jury to correctly identify the defendant. Because there was no evidence that the witness was more capable in making this determination than the jury, the officer’s testimony was improperly admitted. However, there is no evidence that the improper testimony prejudiced the defendant because the defendant admitted to being in the convenience store on that night and the testimony did not overwhelm the other convincing, properly admitted evidence.

(4) The Court then analyzed whether the superior court judge’s failure to give the jury instructions pursuant to Commonewealth v. DiGiambattista prejudiced the defendant. The DiGiambattista instructions state that:

when the prosecution introduces evidence of a defendant’s confession or statement that is the product of a custodial interrogation or an interrogation conducted at a place of detention . . . and there is not at least an audiotape recording of the complete interrogation, the defendant is entitled (on request) to a jury instruction advising that the State’s highest court has expressed a preference that such interrogations be recorded whenever practicable, and cautioning the jury that, because of the absence of any recording of the interrogation in the case before them, they should weigh evidence of the defendant’s alleged statement with great caution and care.

The Court held that the superior court erred in failing to give a DiGiambattista instruction because the recording of the defendant’s interrogation at the police station was incomplete; however, the failure to supply this jury instruction did not prejudice the defendant. The missing portions of the recording were introductory in nature. The interrogator’s introduction, notification that the interrogation would be recorded, and the defendant’s waiver of Miranda rights were included in the recording. The jury therefore had sufficient information to determine the voluntariness of the defendant’s statements in the recording.

V. Conclusion

For the foregoing reasons, the SJC affirmed the defendant’s convictions.

Contributing Editor: Catherine S. Flaherty

Mass. Crim. Dig.: Moe v. SORB

Moe v. Sex Offender Registry Board, 467 Mass. 598 (2014)

I. Issue

In Moe v. Sex Offender Registry Board, the Massachusetts Supreme Judicial Court (“SJC”) considered: (1) whether the July 12, 2013 amendments to the sex offender registry law (“SORL”) are retroactive as applied to those classified as level two offenders on or before July 12, 2013; (2) whether the Legislature intended for retroactive application; and (3) if so, whether such application violates due process under the Massachusetts Declaration of Rights.

II. Holding

The SJC held that: (1) the July 12, 2013 amendments to the sex offender registry law are retroactive as applied to those classified as level two offenders on or before July 12, 2013; (2) the Legislature intended for retroactive application; and (3) such application violates due process under the Massachusetts Declaration of Rights.

III. Facts

Under MASS. GEN. LAWS ch. 6, § 178E (e) or (f), sex offenders must register with the Sex Offender Registry Board (“SORB”) within five days of sentencing. Following their registration, each sex offender receives a classification of level one, level two, or level three. Level two classification results “[w]here [SORB] determines that the risk of reoffense is moderate and the degree of dangerousness posed to the public is such that a public safety interest is served by public availability of registration information . . . .” In comparison, a level three classification results “[w]here [SORB] determines that the risk of reoffense is high and the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active dissemination . . . .”

Under the 1999 amendments to the SORL, “active dissemination” of level three sex offender information involved a “community notification plan” that required police departments to notify community organizations and specific individuals who were likely to encounter the offenders. It was not until 2003 that the Legislature included internet publication within the definition of “active dissemination.” However, the 2003 amendments specifically prohibited internet publication of information regarding sex offenders below level three. The 2013 amendments addressed here effectively change the definition of “public availability” (contained in the definition of level two classification) to include internet publication of level two sex offenders.

IV. Procedural History

After the amendments’ passage, but prior to enactment, plaintiffs filed for declaratory and injunctive relief in the county court. The single justice of the county court preliminarily enjoined the internet publication of any registry information regarding individuals classified as level two sex offenders on or before July 12, 2013. The single justice reserved and reported the plaintiffs’ complaint to the SJC for final adjudication. The plaintiffs essentially sought to render the preliminary injunction permanent.

V. Reasoning

A statute is retroactive if “the new provision attaches new legal consequences to events completed before its enactment.” Here, the contested amendments are retroactive because “they mandate a substantial new legal consequence” to determinations made prior to their enactment by requiring internet publication of a level two sex offender’s registry information. Previously, level two sex offender information was known only to police; only level one sex offenders were made publicly available under the law.

The Court then found that the Legislature intended the amendments to apply retroactively, regardless of the date of classification. The intent was necessarily implied by the Legislature’s requirement that SORB “‘make the sex offender information contained in the sex offender registry’ of level two offenders ‘available for inspection by the general public’ on SORB’s Web site.”

Determining whether the retroactive operation comports with due process required a reasonableness inquiry. A retroactive statute is reasonable when “it is equitable to apply [it] against the plaintiffs.” In determining reasonableness and equity, the Court examined the amendments from three perspectives: (1) the nature of the public interest that motivated the Legislature’s enactment, (2) the scope of the statute’s impact, and (3) the nature of the rights that the amendments retroactively affect.

Regarding public interest, the Court acknowledged that the amendments’ purpose was to provide easier public access to sex offender registry information to mitigate the risk of sexual assault. As to the scope of the impact, the amendments would subject 6,000 currently classified level two sex offenders to potentially permanent employment and housing discrimination, the negative stigma of being identified as a sex offender, and the risk of being harassed or assaulted. Lastly, regarding the nature of the rights retroactively affected, the Court distinguished between level three and level two sex offenders. Although the Court formerly found internet publication of level three sex offenders’ registry information constitutional, this was based on the notion that level three classification already required “active dissemination” by definition. Here, level two sex offenders classified prior to the 2013 amendments were deemed “not so dangerous that the interest of public safety required Internet publication of the offender’s registry information . . . .” Those offenders who did not challenge classification likely relied on such an understanding. Such offenders may have opted to challenge the determination had internet publication been included as a consequence of level two classifications.

After balancing these perspectives, the Court found the amendments as applied to individuals classified as level two sex offenders prior to July 12, 2013, to be unreasonable and unconstitutional.

VI. Judgment

The SJC remanded the matter to the county court for entry of an order permanently enjoining the internet publication of registry information regarding those individuals classified as level two sex offenders on or before July 12, 2013, because the recent SORL amendments are unconstitutionally retroactive.

Contributing Editor: Kevin C. Mortimer

Mass. Crim. Dig.: Commonwealth v. Duncan

Commonwealth v. Duncan, 467 Mass. 746 (2014)

I. Facts

On a “bleak, snowy, and freezing” January day, a neighbor went to retrieve a borrowed shovel from Heather Duncan’s residence; although no one was home and the gate was locked, she observed two dead dogs in Duncan’s yard and heard a third dog barking. Responding to the neighbor’s subsequent call, police officers heard a dog whimpering as if in distress. Stepping on a tall, nearby snowbank and gazing over Duncan’s six-foot privacy fence, they saw two dogs who were apparently frozen and a third dog “alive but emaciated”—they couldn’t see any food or water left out for the dogs. The yard’s gate was padlocked, so officers tried numerous ways to contact the homeowner, to no avail. The officers then contacted the fire department, which removed the padlock from the gate, and animal control took custody of the dogs—in total, police were on scene for less than two hours.

II. Procedural History

Heather Duncan was charged with three counts of animal cruelty under G.L. c. 272, § 77. The defendant filed a motion to suppress the observations by police and any physical evidence, and after an evidentiary hearing the judge allowed the motion, stating “[o]ur courts have not as yet applied the emergency exception to animals.” Under Rule 34 of the Massachusetts Rules of Criminal Procedure, the judge reported the question of law, and trial was continued pending the resolution of the question.

III. Question Presented

Whether the emergency aid exception to the warrant requirement of the Fourth Amendment and Article 14 of the Massachusetts Declaration of Rights extends to “police action undertaken to render emergency assistance to animals.”

IV. Reasoning and Analysis

The SJC first reviewed the emergency aid doctrine, which the Court stated was a narrow exception. A warrantless entry must meet two strict requirements: (1) “there must be objectively reasonable grounds to believe that an emergency exists”; and (2) “the conduct of the police following the entry must be reasonable under the circumstances.” There must be an “‘exigent circumstance’ that obviates the need for a warrant,” and “[t]he need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.” Probable cause is not necessary in emergency aid situations because the police action is not the investigation of criminal activity.

Next, the Court questioned whether the underlying public interest in the emergency aid exception applies equally to nonhuman animals. The SJC reviewed legislative enactments and policies, and found that Massachusetts “statutes evince a focus on the prevention of both intentional and neglectful animal cruelty.” Furthermore, the Court wrote, it would be illogical to punish dog owners after-the-fact for exposing their dogs to conditions that would seriously injure or kill them while not allowing police to prevent said activity.

V. Conclusion

The SJC held that “under both the Fourth Amendment and [Article] 14, the exception permits the police in certain circumstances ‘to enter a home without a warrant when they have an objectively reasonable basis to believe that there may be [an animal] inside who is injured or in imminent danger of physical harm.’”

V. The Case’s Impact

The SJC is not the only court of last resort to conclude similarly. Additionally, although the exception now applies to nonhuman animals, the Court clarified that the ruling “does not expand the exception or alter the essential framework for determining when a warrantless police search of the home is permissible under it.” Going forward, factors to consider include whether humans caused the harm, the species of the animal, the privacy interest at issue, the efforts to obtain consent of the property owner prior to the intrusion, and the intrusion’s extent. In sum, “[t]he reasonableness of the search must be determined on a case-by-case basis upon consideration of the totality of the circumstances.”

Contributing Editor: Sean P. Murphy