Massachusetts Legal Developments Blog

Unlike some other countries, the United States does not subscribe to the proposition that the government is entitled to intercept all of the communications of the American people. The government’s ability to use information obtained under certain circumstances is further limited by criminal procedure laws. That being said, technology has outrun the law, creating a tug-of-war between search and seizure law and handheld electronic devices that can store enormous amounts of private information. “Cloud-based” storage and sync programs and most cellular phones now allow users to obtain and store large amounts of sensitive and private information that they can either transfer to various devices, or carry with them on a handheld device, such as an iPhone. Though various software companies, for example Spideroak, and programs, such as the Apple Text Messaging Protocol, can offer higher levels of security to users, increasingly tech-savvy law enforcement officers can now pull most information from a file or phone.

In this climate, it is not surprising that politicians, advocacy groups and judges are hotly debating the applicability requirement for a warrant when searching the phone of an arrested person. While the issue is far from being universally settled, several state Courts and the Seventh Circuit District Court have rendered decisions on warrants for cell phone searches. United States Senators have also sponsored legislation that would help to settle the issue.  

According to CNet.Com, the starting point for discussion regarding search and seizure of electronic communications is the 1986 Electronic Communications Privacy Act. Under that Act, law enforcement officers are entitled to seize e-mail messages more than 180 days old with an administrative subpoena, which does not require the probable cause element that a warrant does. In 2010, the Sixth Circuit Court of Appeals held in US v. Warshak, that Americans have a reasonable expectation of privacy in their e-mail communications. The most recent development with regards to the ECPA comes from the United States Congress. The Electronic Communications Privacy Act Amendments Act of 2013, sponsored by Senate Judiciary Committee Chairman Patrick Leahy of Vermont and Senator Mike Lee of Utah, was introduced this March. According to Senator Leahy’s website, the legislation would amend the ECPA by establishing a search warrant requirement to obtain e-mails and other electronic communications, when those communications are stored using a “cloud based” system. The legislation would also require that the government notify individuals that their e-mails and other communications have been disclosed within ten days of obtaining the warrant. Several states, such as Florida, Delaware, Maryland and Oklahoma have introduced similar legislation at the state government level.

In addition to the legislation, state courts have issued a variety of opinions on the more specific issue of warrantless cell phone searches. The New York Times reports that an Ohio court ruled that police needed a warrant to search a cell phone because it could contain much more information that the traditional notepaper carried in one’s pocket. Meanwhile, a Rhode Island judge suppressed evidence obtained from a cell phone, while a Washington court ruled that text messages are comparable to voicemail messages, and therefore do not require the protection of privacy laws. The Seventh Circuit U.S. Court of Appeals ruled on the issue this March, holding that law enforcement officers do not require a warrant to search an arrestee’s cell phone, because a cell phone is akin to a diary.

The law on the search and seizure of information on an arrestee’s cell phone, or other electronic communication is far from clear cut. If you have been arrested and your electronic information has been obtained by law enforcement officers, an experienced attorney may be able to determine whether the search and seizure was lawful. An experienced attorney can represent you in court and help you understand the charges against you. Contact an experienced attorney immediately for a confidential consultation.

In recent years, Massachusetts voters have called for significant change in Massachusetts’ drug offense law. For example, in January 2009, a voter approved referendum to decriminalize the possession of one ounce or less of marijuana went into effect in Massachusetts. The law, Massachusetts General Law C.94c, S. 32L, established that possession of one ounce or less of marijuana by a person eighteen years old or older, is a civil offense in Massachusetts, punishable by no more than a $100 fine and forfeiture of the marijuana. As simple as it seems, the law is far from straightforward in its application. In fact, the measure’s impact on criminal laws and criminal procedural laws, specifically those pertaining to search and seizure and criminal distribution, have been a subject of recent scrutiny by the Massachusetts Supreme Judicial Court.

In the last couple of years, the Massachusetts SJC has had occasion to develop its jurisprudence on the harmonization of the marijuana decriminalization law and the Fourth Amendment’s restriction against unreasonable search and seizure. The SJC rendered its first landmark decision in 2011 in Commonwealth v. Cruz. In that case, the Commonwealth sought to appeal the lower court’s ruling that evidence that the defendants were in possession of drugs was suppressed because it was obtained unlawfully when police ordered the defendant out of his vehicle and searched it based on a “faint odor” of marijuana and the defendant’s statement that he had smoked marijuana earlier that day. In reviewing the factors the police set forth as warranting reasonable suspicion to search, the SJC held that reasonable suspicion must be based on criminal activity as opposed to infractionary conduct, and that the “faint odor” coupled with the defendant’s statement that he had smoked earlier in the day suggested that any marijuana in the defendant’s possession would have been less than one ounce. The SJC affirmed the lower court’s decision to suppress the evidence.

The SJC further expanded its analysis of the decriminalization law in terms of search and seizure in 2012 in Commonwealth v. Daniel. The Defendants in Daniel had moved to suppress evidence of firearms based on the marijuana decriminalization law after they had been stopped and searched for a motor vehicle infraction by Boston police. The lower court suppressed the evidence, and the Commonwealth appealed the decision to the SJC. The SJC found this case distinguishable from Cruz, where police only smelled the faint odor of marijuana. In Daniels, the police smelled the odor of freshly burnt marijuana, and the driver handed the police two baggies of marijuana after police questioned her. The driver had also been driving erratically. Based on these factors, the SJC reversed the lower court’s decision to suppress the evidence based on the decriminalization law.

Finally, in a case decided this April, 2013, the SJC showed its intent to give full effect to the voter’s intentions in passing the decriminalization law. In Commonwealth v. Jackson, the SJC was presented with a case involving the issue of whether the sharing of a joint fulfilled the elements of criminal distribution of marijuana. Until the SJC’s decision on this issue, it was believed throughout Massachusetts that even though possession of one ounce or less of marijuana was not a crime, the sharing of a joint containing an ounce or less of marijuana was still criminal distribution. The SJC clarified the law, holding that the social sharing of marijuana is akin to simple possession, and that such conduct does not violate the distribution statute.

Massachusetts’ marijuana laws are often difficult to navigate and, as illustrated above, are rapidly changing. If you have been charged with a marijuana-related offense, you should seek out the assistance of an experienced attorney immediately.