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November 2004 CRIMINAL LAW UPDATE
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ABUSE PREVENTION
209A ORDER/ "SUBSTANTIVE DATING RELATIONSHIP"


C.O. v. M.M.,
442 Mass. 648 (2004):

LEGAL PROPOSITION: Substantive dating relationship. General Laws c. 209A, § 3, provides a range of protections and remedies for those "person suffering from abuse from an adult or minor family or household member."

General Laws c. 209A, § 1, now defines "[f]amily or household members" as "persons who: (a) are or were married to one another; (b) are or were residing together in the same household; (c) are or were related by blood or marriage; (d) having [sic ] a child in common regardless of whether they have ever married or lived together; or (e) are or have been in a substantive dating or engagement relationship." (emphasis added).

Rather than establishing a rigid test to be applied to all relationships, the statute directs courts to "adjudge[ ]" the existence of substantive dating relationships by considering four factors: "(1) the length of time of the relationship; (2) the type of relationship; (3) the frequency of interaction between the parties; and (4) if the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship." G.L. c. 209A, § 1 (e) (1)-(4).

The plaintiff bears the burden of proving by a preponderance of the evidence that the parties were engaged in a "substantive dating relationship" within the meaning of G.L. c. 209A, § 1.

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ADMISSIONS
FIFTH AMENDMENT/ SELF-INCRIMINATION


Commonwealth v. Collins,
440 Mass. 475 (2003):
BACKGROUND: In Commonwealth v. Mavredakis, 430 Mass. 848, (2000), the SJC affirmed that the protections against self-incrimination under Massachusetts law require that the police have a duty to inform a suspect under custodial interrogation of an "attorney's efforts to contact him for purposes of providing legal advice."

FACTUAL SUMMARY: Seekonk police officers notified the defendant of their intent to interview him about allegations of sexual abuse. The defendant delayed the interview so that he could hire an attorney. The attorney initially notified the police that he wanted to be present at any interview, but later cancelled the interview altogether. The police then arrested the defendant on a warrant.

After being advised of Miranda warnings, the defendant stated that he was embarrassed by his attorney's behavior in canceling the interview. He said that he had nothing to hide and was willing to speak to the police. The defendant then provided an incriminating statement.

ISSUE: Whether suppression is required where the defendant was not informed that several days prior to the arrest his attorney had told the police that he wanted to be present during any interview of his client?

LAW: No, suppression is not required. "The Commonwealth has the burden of establishing the validity of a Miranda waiver beyond a reasonable doubt." "To be valid the waiver must be made voluntarily, knowingly, and intelligently." In determining its validity, a court must analyze the "totality of the circumstances." Within this construct, Mavredakis established a "bright-line rule, providing that police must stop questioning and inform asuspect immediately of attempts of an attorney identifying himself or herself as counsel acting on the suspect's behalf to contact the suspect." The consequence of the failure so to inform a suspect is that any waiver of rights that has been given becomes inoperative for further admissions. In essence, a suspect cannot make an informed waiver of his Miranda rights if he is kept ignorant by police of an attorney's attempts to provide him with assistance and advice. If the waiver is not informed, it is not valid.

If, as here, a suspect volunteers that he has retained and consulted with an attorney regarding a police request to interview him, the conclusion that the suspect is fully cognizant of his right to consult with counsel is virtually inescapable. Where the police have done nothing to impede the contact or the flow of information or advice between lawyer and client (including, e.g., failing to notify the defendant of attempts by the lawyer to contact him), our concerns regarding interference with the attorney-client relationship are simply not present.

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JUVENILE STATEMENTS OBTAINED BY
SCHOOL OFFICIAL


Commonwealth v. Ira I., a juvenile,
439 Mass. 805 (2003):

BACKGROUND: Responding to a parent complaint, an assistant principal undertook an investigation of an assault on a student. The assistant principal took statements from a number of students involved in the incident, including the juvenile.

ISSUE: Whether statements obtained by a school official must be suppressed as a violation of Miranda, where a school official undertakes an investigation and questions suspects?

LAW: No. School officials acting within the scope of their employment, rather than "as [instruments] of the police [or] as [agents] of the police," are not required to give Miranda warnings prior to questioning a student in conjunction with a school investigation. Even if there was evidence in the record that the school's policy was to provide information in its possession to the police, that alone is insufficient to transform school officials into agents of the police.

Moreover, Miranda warnings were not required prior to questioning because the juveniles were not subject to "custodial interrogation." A trip to the principal's office for an interview is not a "formal arrest," nor does it suggest to the student that he or she faces such an arrest. It is unrealistic to expect school officials who are responsible for addressing student behavioral issues to refrain from investigating allegations of students' harming each other, and the mere fact that such officials are in positions of authority over students does not transform every interview of a student into a custodial interrogation.
ANCILLARY LEGAL POINT RE "DISCOVERY": Information known to an independent witness, but unknown to the prosecution, is not within the possession and control of the prosecution unless that witness has acted, in some capacity, as an agent of the government in the investigation and prosecution of the crime.

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JUVENILE STATEMENT/WAIVER OF MIRANDA RIGHTS

Commonwealth v. Alfonso,
438 Mass. 372 (2003):

LEGAL PROPOSITIONS: For purposes of establishing a valid waiver by a juvenile under the age of fourteen years, we require the Commonwealth to show "that a parent or an interested adult was present, understood the warnings, and had the opportunity to explain his rights to the juvenile so that the juvenile understands the significance of waiver of these rights."

However, where a juvenile is fourteen years of age or older, the rule is more flexible: "[T]here should ordinarily be a meaningful consultation with the parent, interested adult, or attorney to ensure that the waiver is knowing and intelligent. For a waiver to be valid without such a consultation the circumstances should demonstrate a high degree of intelligence, experience, knowledge, or sophistication on the part of the juvenile." Actual consultation between the juvenile and a parent, interested adult, or attorney was not required, as long as there was a "genuine opportunity" for such consultation. "It is the juvenile's opportunity to consult that is critical, not whether he avails himself of it." The ultimate question is whether the juvenile has understood his rights and the potential consequences of waiving them before talking to the police.

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ARREST
ARREST WARRANT/ EXECUTION AT SUSPECT'S RESIDENCE


Commonwealth v. Silva,
440 Mass. 772 (2004):

BACKGROUND: The defendant filed a motion to suppress heroin seized by the police after arresting him under an arrest warrant. He argued that the police lacked the authority to execute the arrest warrant in his apartment.

ISSUE: What standard must police meet under article 14 of the Massachusetts Declaration of Rights to justify entry into a suspect's residence pursuant to a valid arrest warrant--probable cause or a reasonable belief?

LAW: An arrest warrant "encompasses the power to enter a [suspect's] residence for the purpose of executing the warrant." A separate search warrant is not required. The Supreme Court of the United States has held that for the purposes of the Fourth Amendment, "an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives where there is reason to believe the suspect is within."

Article 14, like the Fourth Amendment, requires that police, with a valid arrest warrant, have [1] a reasonable belief that the location to be searched is the arrestee's residence, and [2] a reasonable belief that the arrestee is in his residence at the time the arrest warrant is executed.

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BAIL
FLIGHT RISK


Querubin v. Commonwealth,
440 Mass. 108 (2003):

BACKGROUND: The defendant used an alias, eluded several police officers when they sought to arrest him on outstanding default warrants, failed to appear before the court after being indicted on a charge of cocaine trafficking, and tried fleeing to Mexico.

ISSUE: Can a justice of the superior court hold a defendant in lieu of bail as a "flight risk" pursuant to G.L.c. 276, § 57?

LAW: Yes. General Laws c. 276, § 57, provides, that a Superior Court judge "may inquire into the case and admit such prisoner or witness to bail if he determines that such release will reasonably assure the appearance of the person before the court and will not endanger the safety of any other persons or the community."

This statutory provision, rather than G. L. c. 276, § 58, is applicable to the setting of bail in the Superior Court.

A defendant does not have a constitutional right to be released on bail prior to trial.

"[T]he Government has a substantial interest in ensuring that persons accused of crimes are available for trials and, ultimately, for service of their sentences, [and] confinement of such persons pending trial is a legitimate means of furthering that interest."

The essential purpose of bail is to secure the presence of a defendant at trial to ensure that, if the defendant is guilty, justice will be served.

The appropriate standard is preponderance of the evidence.

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REVOCATION HEARING / SUBSEQUENT OFFENSE

Paquette v. Commonwealth,
440 Mass. 121 (2003):

LEGAL PROPOSITION: If a defendant is charged with committing a new offense during the period of his release on a prior charge, the third paragraph of G.L. c. 276, § 58, requires a judge before whom the new charge is pending to make two inquiries in determining whether the defendant's bail on the prior charge may be revoked and the defendant held without bail. First, the judge must ascertain whether there is "probable cause to believe that the person has committed a crime during said period of release." G.L. c. 276, § 58, third par. Second, the court "shall then determine, in the exercise of its discretion, whether the release of said person will seriously endanger any person or the community." Id. A judge making this second determination must consider the factors set forth in the statute. If the probable cause and dangerousness inquiries are satisfied, then the judge "may revoke bail on the prior charge and may order said person held without bail pending the adjudication of said prior charge, for a period not to exceed sixty days."

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CONTINUANCE WITHOUT FINDING
PRETRIAL PROBATION OVER COMMONWEALTH'S OBJECTION/ DISTRICT OR JUVENILE COURT


Commonwealth v. Tim T,
437 Mass. 592 (2002):

BACKGROUND: A Middlesex County grand jury indicted the juvenile as a youthful offender for child rape and indecent assault and battery on a child. The juvenile filed a motion for pretrial probation followed by dismissal of the charges upon the successful completion of that probation.

The Commonwealth opposed the motion, and the District Court reported a question.
ISSUE: Whether a court may place a defendant on pretrial probation pursuant to G.L. c. 276, § 87, with dismissal at the end of the probationary period, over the Commonwealth's objection?
HOLDING/LAW: No. G.L. c. 276, § 87, cannot be used to dispose of the case in this manner.

G.L. c. 276, § 87, permits pre-trial probation, but does not provide a method for disposing of a case.

The use of pretrial probation under G.L. c. 276, § 87, as a step leading to disposition is permissible when used in conjunction with G.L. c. 278, § 18, which sets the requirements for using pretrial probation as a dispositional device:

[A] defendant . . . shall be allowed to tender a plea of guilty [or admission to sufficient facts] together with a request for a specific disposition. Such request may include [a] request that a guilty finding not be entered [and that] . . . the defendant be placed on probation pursuant to the provisions of [G.L. c. 276, § 87].

If the Commonwealth consents to pretrial probation under G.L. c. 276, § 87, an admission to sufficient facts or guilty plea is not required.

In effect, absent compliance with G. L. c. 278, § 18, the use of a substantial period of pretrial probation under G.L. c. 276, § 87, as a "disposition" of a case may only be undertaken with the Commonwealth's consent.

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PRETRIAL PROBATION OVER COMMONWEALTH'S OBJECTION/ SUPERIOR COURT/ANY MASSACHUSETTS COURT/ SEPARATION OF POWERS
Commonwealth v. Cheney,
440 Mass. 568 (2003):

BACKGROUND: A grand jury returned four indictments charging the defendant with child rape. The defendant filed a motion for pretrial probation followed by dismissal of the charges upon the successful completion of that probation. At the conclusion of the term of probation, the Superior Court held a hearing under Commonwealth v. Brandano, 359 Mass. 332 (1971), and dismissed the case in the "interests of public justice" without a verdict, finding, or guilty plea.

ISSUE: Whether prior to a verdict, finding, or guilty plea a valid indictment may be dismissed in the "interests of public justice," where the Commonwealth objects?

LAW: No. In Brandano, the Supreme Judicial Court approved a continuance without a finding and the ultimate dismissal, over the Commonwealth's objection, of a prosecution for the receipt of a stolen motor vehicle brought under G. L. c. 266, § 28. That statute outlined the dismissal procedure to be followed in such a case. Implying that the procedure might be applicable to all cases, the court added, "[W]e believe that the procedure, utilized in this case either generally or under the statute, would not be constitutionally offensive." (emphasis added).
In the instant case, the court concluded that such a practice would offend the separation of powers provision in article 30 of the Declaration of Rights: "[T]he judicial [department] shall never exercise the . . . executive powers . . . ."

In the context of criminal prosecutions, the executive power affords prosecutors wide discretion in deciding whether to prosecute a particular defendant, and that discretion is exclusive to them. Once commenced, the decision to nol pros a criminal case is within the discretion of the executive branch of government, free from judicial intervention. The effect of dismissing a complaint without a trial is like that of quashing or entering a nolle prosequi of an indictment. Judicial review of decisions which are within the executive discretion of the prosecutor would constitute an intolerable interference by the judiciary in the executive department of the government and would be in violation of art. 30 of the Declaration of Rights.

Thus, when a judge, "[w]ithout any legal basis . . . preempt the Commonwealth's presentation of its case [t]hat action effectively usurp the decision-making authority constitutionally allocated to the executive branch. Only an attorney authorized by the Commonwealth to represent it has authority to declare that he will not further prosecute a case in behalf of the Commonwealth.

The conclusion that judicial power does not extend to authorize a judge to dismiss an otherwise legally adequate indictment, prior to verdict, finding, or plea, in the "interests of public justice" is inescapable.

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COUNSEL
SIXTH AMENDMENT RIGHT


Commonwealth v. Torres,
442 Mass. 554 (2004):

BACKGROUND: A grand jury returned indictments against the defendant. The defendant subsequently made statements to State Police troopers at the Hampden County House of Correction.

ISSUE: Whether the defendant had a Sixth Amendment right to counsel following the return of indictments?

LAW: Yes. The Sixth Amendment right to counsel is triggered at or after the time that judicial proceedings have been initiated whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.

Thus, while arraignment is one procedural step in criminal proceedings that will trigger the Sixth Amendment right to counsel, other steps occurring prior to arraignment may operate to initiate criminal proceedings and trigger those rights at an earlier stage.

A person is entitled to counsel once the government has committed itself to prosecute, and the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.

Here, the Commonwealth proceeded by way of direct indictment. The formality of an indictment, with the prosecutor's presentation of the case to the grand jury and the grand jury's return of a true bill, represents the commencement of proceedings against the defendant for purposes of the Sixth Amendment. That the defendant had not yet been arraigned on the indictment did not preclude his Sixth Amendment rights from attaching.

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CRIMINAL HARASSMENT

Commonwealth v. Clemens,
61 Mass. App. Ct. 915 (2004):

LEGAL PROPOSITION: The harassment statute, G.L. c. 265, § 43A, in relevant part, reads: "(a) Whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment." The Appeals Court, addressing this statute for the first time since its enactment in 2000, stated that the statute's words were taken directly from the criminal stalking statute. Referring to that statute, the Appeals Court said that the decisions have made it clear that the quoted words require a showing of not less than three separate incidents of willful and malicious conduct, intended to alarm a specific person, that have the intended effect, and that would cause a reasonable person to suffer substantial emotional distress.

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HOME INVASION
"ENTRY"


Commonwealth v. Stokes,
440 Mass. 741 (2004):

LEGAL PROPOSITION: To obtain a conviction of home invasion, the Commonwealth must show that the defendant (1) "knowingly enter[ed] the dwelling place of another"; (2) "knowing or having reason to know that one or more persons are present within"; (3) "while armed with a dangerous weapon"; and (4) "use[d] force or threaten[ed] the imminent use of force upon any person within such dwelling place whether or not injury occur[red], or intentionally cause[d] any injury to any person within such dwelling place." G.L. c. 265, § 18C.

The word "enter" is not defined in the statute. At common law, it was well settled that it is a sufficient entry when the thief breaketh the house, and his body, or any part thereof, as his foot or his arm, is within any part of the house. An entry for purposes of the home invasion statute occurs when there is "any intrusion into a protected enclosure by any part of a defendant's body."

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MALICIOUS DESTRUCTION OF PROPERTY
VALUE OF PROPERTY


Commonwealth v. Deberry,
441 Mass. 211 (2004):

LEGAL PROPOSITION: General Laws c. 266, § 127, as amended through St.1994, c. 168, § 4, provides, in pertinent part: "Whoever destroys or injures the personal property, dwelling house or building of another in any manner or by any means not particularly described or mentioned in this chapter shall, if such destruction or injury is wilful and malicious, [be guilty of a felony]; if the value of the property so destroyed or injured is not alleged to exceed two hundred and fifty dollars, [the offender shall be guilty of a misdemeanor]."

This case considers the proper method for determining the value of the property so destroyed or injured under G.L. c. 266, § 127, proof of which is an essential element of this felony offense.

The question is important because its answer determines the criminal penalties to which the defendant may be subjected. If "the value of the property so destroyed or injured" is less than $250, the defendant may be convicted of a misdemeanor only, which carries substantially lower penalties than a felony conviction under the statute. Where only a portion of property has been damaged, it is possible to consider three definitions for the "value of property": the fair market value of the whole property (here the house); the fair market value of so much of the property as is destroyed or injured (here the wall); or the pecuniary loss (here measured by the reasonable cost of repair).

Where damage is caused to a portion of the property as a whole and may be replaced or repaired, the value of the property is to be measured by the pecuniary loss, in this case the reasonable cost of repair necessitated by the malicious conduct.

The holding in this case applies also to the felony offense of wanton destruction of property.

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MOTOR VEHICLE
OUI DRUGS/RIGHT TO INDEPENDENT MEDICAL EXAM


Commonwealth v. Mandell,
61 Mass. App. Ct. 526 (2004):

BACKGROUND: Defendant was arrested for OUI drugs. He filed a motion to dismiss the complaint arguing that he should have been advised by the police that he had a right to an independent medical examination to test for drug impairment.
ISSUE: Whether Article 12 of the Massachusetts Declaration of Rights, or the 6th or 14th Amendments of the United States Constitution, require police to advise an individual arrested for operating under the influence of drugs of the right to an independent medical examination?
LAW: No. G.L. c. 263, § 5A, provides in pertinent part:
A person held in custody . . . charged with operating a motor vehicle while under the influence of intoxicating liquor, shall have the right, at his request and at his expense, to be examined immediately by a physician selected by him. The police official in charge . . . or his designee, shall inform [such a person] of such right immediately upon being booked, and shall afford him a reasonable opportunity to exercise it.

This statute restricts itself to offenders charged with driving under the influence of alcohol. It contains no language concerning operation of a motor vehicle while under the influence of marijuana or any other drug. A defendant accused of driving while under the influence of drugs has neither a state nor federal due process right to be advised that he can arrange for an independent medical examination which might produce exculpatory information.

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OUI/ MISSING WITNESS INSTRUCTION

Commonwealth v. Rollins,
441 Mass. 114 (2004):

BACKGROUND: A District Court jury convicted the defendant of operating a motor vehicle while under the influence of intoxicating liquor. The defendant testified that before his arrest, he and his friend, Linda Doane, went to the apartment of another friend, Richard Adrien. The defendant drove Doane home, returned to Adrien's apartment for a short time, and then left for his home. Adrien testified for the defense, but Doane did not. Over the defendant's objection, the judge provided a missing witness instruction, and in the closing argument the prosecutor reminded jurors of the missing witness.

ISSUE: Whether the judge properly gave a missing instruction witness to the jury?

LAW: Yes, the judge properly gave the instruction by weighing the following factors: (1) whether the case against the defendant is strong and whether, faced with the evidence, the defendant would be likely to call the missing witness if innocent; (2) whether the evidence to be given by the missing witness is important, central to the case, or just collateral or cumulative; (3) whether the party who fails to call the witness has superior knowledge of the whereabouts of the witness; and (4) whether the party has a 'plausible reason' for not producing the witness.

The Commonwealth's case by itself was strong, While some of Doane's testimony would likely have been cumulative of Adrien's testimony, the defendant overlooked the significance of her testimony concerning whether he had been drinking in the vehicle (particularly in light of the open forty-ounce bottle of beer), and her observations of the defendant's condition while he drove her home. The fact that the Commonwealth could have called Doane does not render the adverse inference impermissible, because the defendant was more closely acquainted with her and would "be naturally expected to call" Doane in light of the facts of the case. Also, the prosecutor's reference to the missing witness was not improper.

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OUI / PUBLIC WAY/CLOSED SHOPPING MALL

Commonwealth v. Kiss,
59 Mass. App. Ct. 247 (2003):

LEGAL PROPOSITION: The parking lot of a closed shopping mall, where services are available and could be accessed notwithstanding the fact that the stores in the mall are closed, is still a "way" for purposes of an OUI prosecution.

Prior to 1961, G.L. c. 90, § 24(1)(a), criminalized operation of a motor vehicle upon a way or place "to which the public has a right of access." In 1961, the Legislature amended the statute to include also "any way or in any place to which members of the public have access as invitees or licensees." The amendment was apparently directed toward those persons operating a motor vehicle while under the influence of alcohol in places such as public parking lots or chain store parking lots.

If the "physical circumstances of the way are such that members of the public may reasonably conclude that it is open for travel to invitees or licensees," this element of the statute is satisfied. Some of the usual indicia of accessibility to the public include (1) a paved road, (2) the absence of signs prohibiting the public access, (3) street lights, (4) curbing, (5) houses, (6) crossroads, and (7) traffic.

While the use of a parking lot after closing hours would be significantly diminished, services at the mall, such as pay telephones and newspaper distribution boxes, created the reasonable expectation among members of the public that they were welcome to operate their vehicles in the parking lot in order to access those services.

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MOTOR VEHICLE HOMICIDE
STATUTORY LICENSE REVOCATION


Stockman v. Board of Appeal,
62 Mass. App. Ct. 159 (2004):

BACKGROUND: In 1990 the defendant was convicted of OUI. Over two years later, following an incident in which the defendant killed a woman with his car, a jury convicted him of involuntary manslaughter and felony motor vehicle homicide (which includes OUI as an element).

After the return of the verdict, the trial judge dismissed the motor vehicle homicide conviction as duplicative of the manslaughter conviction.

The Registry of Motor Vehicles then suspended the defendant's license for ten years pursuant to G.L. c. 90, § 24(G)(c). Upon discovering that the defendant had a prior OUI conviction in 1990, the Registry revoked the defendant's license for life pursuant to G.L. c. 90, § 24(1)(c)(4) (revocation authorized by two OUI convictions if the Registry determines one offense resulted in a fatality).

The defendant appealed and claimed that revocation was not warranted because he lacked two OUI convictions. He argued that the involuntary manslaughter conviction did not indicate drunk driving, and the dismissal of the felony motor vehicle homicide conviction necessarily eliminated the OUI element.

ISSUE: Whether the Registry of Motor Vehicles may consider a conviction that is dismissed as duplicative for purposes of license revocation?

LAW: Yes. Where a conviction of felony motor vehicle homicide (including an OUI element) is dismissed for the reason that the jury also convicted the defendant of manslaughter for the same conduct, the Registry properly treats the manslaughter conviction as a conviction for felony motor vehicle homicide.

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PROBATION
CONDITIONS


Commonwealth v. Williams,
60 Mass. App. Ct. 331 (2004):

BACKGROUND: The District Court placed the defendant on probation for a violation of an order under G.L. c. 209A. He subsequently committed a new offense involving an assault. As part of a sentence imposed by the District Court, the defendant had to refrain from using alcohol.

ISSUE: Whether the District Court may impose a condition of probation that restricts the use of alcohol, where there was no evidence that alcohol was used in the underlying offense?

LAW: Yes. A judge has broad discretion to impose conditions of probation which are reasonably calculated to control the conduct of the defendant. Judges are permitted great latitude in imposing conditions of probation. Here, the prosecution and defense agreed that the defendant should enter an anger management program. It was a small step for the judge to add alcohol abstention where anger management counseling was indicated. The judge could reasonably conclude that the consumption of alcohol would not improve the defendant's chances of dealing successfully with his problems with anger and violence. In the future, it would be helpful for the judge to articulate his reasons for imposing this type of condition.

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SEARCH AND SEIZURE
MOTOR VEHICLE/ "IMPOUNDMENT"


Commonwealth v. Goncalves,
62 Mass. App. Ct. 153 (2004):

FACTS: Officers from the Brockton Police Department arrested the defendant for driving with a suspended license. Before towing his illegally parked car, one of the officers noticed that the driver's side door was open, and that the engine was still running. The officer walked over to the defendant's car, leaned inside, and turned the ignition off. As he leaned into the vehicle, he spotted the barrel of a handgun on the driver's side floor.

ISSUE: Whether the police officer's actions in leaning inside the defendant's car and turning off the ignition constituted an unlawful search?

LAW: 1. No. The procedure of leaning into the vehicle to turn off the ignition is a minimally necessary act to accomplish the impoundment of the vehicle and did not constitute an inventory (for which the police lacked any written policy).

Impoundment of a car and an inventory search of a car are not synonymous, and thus, the constitutional analysis is not the same. A vehicle may be impounded for noninvestigatory reasons when such action is supported by public safety concerns or by the danger of theft or vandalism to a vehicle left unattended. Turning off the ignition and closing the car door were, in fact, physically necessary to accomplish the impoundment. Having established that this officer did not transgress constitutional limits by leaning into the car to turn off the ignition, the seizure of the gun is justified by reference to the plain view doctrine.

The Appeals Court noted: It has been sixteen years since the Supreme Judicial Court announced in Bishop "that the Declaration of Rights requires the exclusion of evidence seized during an inventory search not conducted pursuant to standard police procedures, which procedures, from now on, must be in writing." It is troubling that a major police force apparently has yet to propound such written search procedures.

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MOTOR VEHICLE/ "INVENTORY SEARCH"

Commonwealth v. Silva,
61 Mass. App. Ct. 28 (2004):

FACTUAL BACKGROUND: A police officer arrested the defendant and prepared to have the defendant's car towed. The officer entered the car and intended to retrieve the registration from the glove compartment. While in the car, the officer spotted bags of cocaine wedged between passenger seat and back seat. At the suppression hearing, the Commonwealth did not introduce evidence of a written inventory policy that authorized the officer to enter the car and retrieve the registration.

ISSUE: Whether a police officer may enter a car to obtain the registration from the glove compartment in the absence of any written inventory policy?

LAW: No. The lawfulness of the officer's entry into the car to search for the registration depends on whether the Commonwealth proved that there is a constitutionally adequate written police policy. Here, not only was no written policy introduced by the Commonwealth, but thepolice officer stated merely that he "believed" a written policy of some sort existed and could proffer only vagaries concerning what such a believed-to-exist written policy encompassed with respect to procedures for entering a car to provide registration information to a towing operator.

A warrantless entry into and search of an automobile undertaken pursuant to a lawful inventory search procedure may provide an exception to the warrant requirement. However, such warrantless automobile searches are permissible under art. 14 of the Massachusetts Declaration of Rights only when conducted pursuant to written inventory guidelines, as to which the government has the burden of proof. In considering whether the government has met that burden of proof, the written inventory policy is the best evidence, and the document memorializing the police policy should be offered in evidence and admitted as an exhibit.

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SCHOOL SEARCH/
NOT DIRECTED BY LAW ENFORCEMENT AUTHORITY


Commonwealth v. Lawrence L., a juvenile,
439 Mass. 817 (2003):

BACKGROUND: The Lynn Public Schools, Lynn Police Department, and Essex County District Attorney's Office entered into a "memorandum of understanding." Under the terms of the memorandum, the school department agreed to report certain unlawful acts of students to the police.

Subsequently, the vice principal of the Middle School noticed that one of his students reeked of marijuana. Based on his knowledge of a previous incident in which he found the juvenile in possession of marijuana while in school, coupled with the strong odor, the vice principal asked the juvenile to empty his pockets. The juvenile removed a folded piece of paper from his back pocket that contained marijuana. Pursuant to the memorandum of understanding, the vice principal contacted the juvenile's parents and the police.

ISSUES: 1. Whether the memorandum of understanding between the police and school made school officials agents of the police? 2. Whether school officials who are not acting as agents of the police must have a minimal level of suspicion before searching students?

LAW: 1. No. The memorandum of understanding did not result in the school officials becoming agents of the police.

The memorandum requires school officials to notify police if a student is found to possess a controlled substance illegally, but does not require school officials to search students for controlled substances. In fact, the memorandum only advises school officials that they may search a student's clothing at the discretion of the principal if "there is a reasonable basis for believing that the student is concealing [illegally possessed controlled substances]." This memorandum, correctly describing the principal's authority to conduct a search, does not transform the principal into an agent of the police, or transform a search by a school official into one undertaken at police instigation.

While the memorandum specifies that certain criminal acts are to be reported to the police (termed "mandatory reportable act"), there is no penalty for the nonreporting of infractions, or any other enforcement mechanism to ensure school officials report such infractions. This reporting policy is consistent with the unique responsibility of school officials to maintain a safe scholastic environment; it seeks to ensure that school officials act in a consistent manner in the event that illegal activities are uncovered on school property. There is no evidence that the police directed, controlled, or otherwise initiated or influenced the vice principal's search of the juvenile, nor does the memorandum serve to elevate him to an agent of the police.

2. Yes. Under the Fourth Amendment, for a school search to be reasonable it must have been justified at its inception and limited in its scope to the circumstances which justified the intrusion in the first place. Because the vice principal was not acting as an agent of the police, he was exempt from obtaining a search warrant, and must only demonstrate that the search was reasonable in all of the circumstances.

The search here was proper. Facts known to the vice principal provided not only a reasonable suspicion that the juvenile possessed marijuana, but also provided probable cause.

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SEARCH WARRANT/DETENTION OF OCCUPANTS

Commonwealth v. Catanzaro,
441 Mass. 46 (2004):

BACKGROUND: Following two controlled purchases of cocaine from the defendant using an informant, the Cape Cod drug task force obtained a warrant to search the defendant's apartment for cocaine. Before executing the warrant, officers saw the defendant and a female walk away from the apartment down a long driveway for approximately 75 feet. The officers confronted the individuals in the driveway and informed them of the warrant. The female blurted out that it was her apartment and returned with the officers to the apartment. Once inside, the defendant told the police that his girlfriend had drugs in her purse. The officers searched the female's purse and found two bags of cocaine.

ISSUE: Whether federal and state constitutional principles authorize police officers executing a search warrant to detain the occupants of the premises?

LAW: Yes. The United States Supreme Court has held that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted. The government has an interest in preventing flight by the occupants, minimizing the risk of harm to the officers, and facilitating the orderly completion of the search. Here, the defendant and the female had walked fifty to seventy feet down the driveway when the police stopped them, as soon as practicable after they had left the apartment. The detention of the female just outside her apartment comported with the requirements of the Fourth Amendment.

Under article 14 of the Massachusetts Declaration of Rights, the police needed reasonable suspicion that the female was committing, had committed, or was about to commit a crime, to justify detaining her and bringing her back to the apartment. The female's spontaneous acknowledgment that it was her apartment provides such a basis, because a neutral, detached magistrate had already determined there was probable cause to believe narcotics were being sold there. For the purposes of article 14, like the Fourth Amendment, it is constitutionally reasonable to require a citizen to remain while officers of the law execute a valid warrant to search his home.

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FROM THE LEGISLATURE

SHOW CAUSE HEARING
FELONY ALLEGATION

G.L. c. 218, § 35A has been amended, effective July 1, 2004, to allow for a show cause hearing in felony cases under the following circumstances:

1. If the complainant is a law enforcement officer and the officer requests a show cause hearing, the clerk-magistrate must offer a hearing to the accused;

2. If the complainant is a private citizen, the clerk-magistrate may, in his or her discretion, offer a show cause hearing to the accused.

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GUILTY PLEA
COLLOQUY/ALIEN WARNINGS


House Bill 4135, effective October 27, 2004, amends G.L. c. 278, § 29D, "Conviction Upon Plea of Guilty or Nolo Contendere."

Under this new law, a judge is required to advise all defendants who tender a plea that the plea or admission may have deportation consequences. The judge must verbally advise the defendant, "If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States."

A defendant who later faces one of the mentioned consequences may file a motion to withdraw the conviction/admission, even if the defendant has already been deported from the United States. A defendant is presumed not to have received the advisement, unless it can be shown by either "an official record, or a contemporaneous written record kept in the court file that the court provided the advisement as prescribed in this section, including but not limited to a docket sheet that accurately reflects that the warning was given as required by this section."

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SAFE PLACEMENT OF
INFANTS AND NEWBORNS


G.L. c. 119, § 39A, effective October 28, 2004, allows parents of newborns to abandon their babies at either a hospital, police or fire station, within 7 days of birth, without being charged criminally of abuse or neglect based solely on that abandonment. DSS will take custody of the newborn and initiate a petition to terminate parental rights.

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Thanks Gil - some good info there. Does anyone have any more info on the Malicious Destruction property value area?? The update states "Where damage is caused to a portion of the property as a whole and may be replaced or repaired, the value of the property is to be measured by the pecuniary loss, in this case the reasonable cost of repair necessitated by the malicious conduct." Does this apply to vehicles as well? I was always under the impression that if someone, for example, broke an antenna off of a vehicle, you could consider the value of the entire vehicle and, therefore, have powers of arrest because any vehicle is valued over $250.
 

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Not anymore Dreezi..The value is limited to what was damaged....Just another way to take away some arrest power,,,,The law is updated in schefts books...
 
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