Massachusetts Legal Developments Blog

Massachusetts Legal Developments Blog

When can Law Enforcement Search Your Phone?

 

A suburban Boston man was arrested recently and charged with the receipt and possession of child pornography. The case was investigated by U.S. Immigration and Customs Enforcement’s Homeland Security Investigations as well as the FBI and Massachusetts police. The man was later charged with one count of receipt of child pornography and one count of possession of child pornography. The charge was initially made after an examination of the man’s phone revealed both images and videos depicting child pornography. The man made an initial appearance through video conference in federal court.

 

Phones play a valuable role in our lives. Unfortunately, there are several ways that law enforcement officers can lawfully access details stored on your phone, besides arrest. The following reviews some of the most common of these situations.

 

Data Stored Outside Your Cell Phone

 

A great deal of information can be stored on the cloud rather than directly on your phone. Unfortunately, if you back up details from your iPhone to Apple’s Cloud, the government can obtain details from Apple. Assuming that law enforcement proceeds through the proper channels, they can most access information that is stored outside of your device. For example, the Electronic Communications Privacy Act of 1986 states what law enforcement must do in order to obtain this information, which frequently requires a court order, search warrant, or subpoena based on what law enforcement wants to find. 

 

Data You Shared with Someone Else

 

If law enforcement wants to obtain information that you shared with someone else, a warrant is not necessary provided that the other party is willing to hand over this information. This is because you do not have a Fourth Amendment interest in messages that are received by someone else.

 

Personal Data Stored on Your Phone Through Warrant or Subpoena

 

When it comes to the information stored on your phone, there is a possibility that law enforcement cannot access the data. Sometimes, however, law enforcement can access this data. Provided that you do not have a passcode or law enforcement uses a specialized passcode-cracking program and have the warrant to do so, they can access this information. If your phone is locked with a passcode, and law enforcement cannot crack your password, the information might remain protected by the Fifth Amendment which states that you cannot be compelled to provide self-incriminating evidence.

 

You Have Passed Away

 

If you die with incriminating evidence on your phone, it is important to remember that the Fourth and Fifth Amendments often end when a person’s life does. If law enforcement is able to access data on the phone on its own, this evidence can often be obtained. If law enforcement cannot access this data, the phone manufacturer’s approach to privacy problems will often address this situation. 

 

Contact the Services of a Skilled Massachusetts Sex Crimes Defense Lawyer

 

The state of Massachusetts takes sex crimes seriously, and being convicted of such an offense can result in various penalties including lasting social stigma, fines, and imprisonment. If you need the assistance of an experienced criminal defense attorney, do not hesitate to contact attorney Edward R Molari today to schedule a free case evaluation.

 

Three Tips for Responding to Weapons Charges

 

Two people were placed in custody on July 25 following a shootout at the South Shore Plaza in Braintree that resulted in a teen bystander being injured. Law enforcement surrounded the mall after receiving reports that shots were fired. One of the men who was arrested now faces multiple weapons and assault-related charges. The man is now being held without bail at the Braintree Police Department. Law enforcement later stated that they believed the incident was a targeted incident of violence rather than a random act.

 

Weapons charges often arise in one of two situations. Law enforcement raises these charges as an add-on charge to a violent crime, or law enforcement searches a person or a vehicle after making contact for a preliminary reason like a traffic stop. To prepare you for responding to these charges, the following reviews four tips for responding to weapon charges.

 

Law Enforcement Must Have Lawfully Found Your Weapon

 

Regardless of the surrounding details, law enforcement must have lawfully found your weapon. Some lawful ways in which law enforcement can discover weapons include:

 

  • The weapon was in “plain view” when law enforcement arrived or the weapon became visible without law enforcement taking any additional action.

  • Law enforcement is permitted to “stop and frisk” someone if they have reasonable suspicion that the individual either has or is about to commit a criminal offense and that the individual is armed.

  • A search was made by law enforcement based on facts that would have led a reasonably prudent person to believe that the search would reveal a weapon.

  • When law enforcement takes an individual into custody, law enforcement can search for weapons to ensure their safety. 

 

Remember Your Right to Remain Silent

 

Besides constitutional arguments, many firearm offenses also require law enforcement to require proof of either specific intent or knowledge. Law enforcement is known to ask whether a person owned the firearm and what their use for the weapon was while investigating the offense. This might seem like a harmless question. In reality, law enforcement often relies on this information to prove a charge against you. If you are questioned about a weapon offense, avoid providing information about your permit, your name, or your address.

 

Understand What Happens if Law Enforcement Does Not Have a Valid Reason

 

If law enforcement lacks a valid reason for discovering your weapon, remember that the Fourth Amendment protects from unreasonable searches and seizures. If law enforcement did not find the weapon through a lawful means, this evidence is likely unconstitutional and not admissible as evidence in a court of law. If a weapon is found inadmissible, the underlying charge will likely also be dismissed.

 

Speak with an Experienced Violent Crimes Defense Attorney

 

If you or a loved one is charged with a violent crime in Massachusetts, understand that a conviction can result in serious penalties. As a result, you should not hesitate to speak with a knowledgeable criminal defense attorney. Contact attorney Edward R Molari today for assistance.

 

How a Defective Headlight can Lead to Prison

A traffic stop at the end of June 2020 for a defective headlight in Boston resulted in Massachusetts State Police seizing two firearms and arresting three men who attempted to flee from the scene. When questioned, the driver stated that he did not have a license. 

When the vehicle was about to be towed, law enforcement stated that the two passengers sprinted away and that one dropped a handgun. Law enforcement chased the men. One of the men was holding something close to his right hip as he ran, but fell to the ground and gave the item up. Law enforcement found a gun after searching for the man. In all, two fully loaded firearms were seized. 

Law enforcement officers in Massachusetts often stop motorists for moving and traffic violations, but a stop for something like a defective headlight usually does not end up in a search of a vehicle unless the officer finds reasonable suspicion that the motorist is in violation of much more serious laws.

How Law Enforcement Finds Reasonable Suspicion

For law enforcement to have a reason to validly search a vehicle, they must have reasonable suspicion that the driver or passenger is doing something illegal. Often, reasonable suspicion is the result of a law enforcement officer observing something like a person in a vehicle drinking alcohol, drugs being out in the open, or open or observable firearms in a vehicle. Without any facts that support reasonable suspicion, a subsequent arrest is often not lawful. Law enforcement also requires reasonable suspicion, which is more than a hunch, to search the stopped vehicle or this constitutes a violation of the US Constitution.

If a law enforcement officer stopped a vehicle with a broken signal, and there were no other incriminating details present, this would almost certainly not be justification to search the vehicle. If contraband or some other illegal activity was visible through the window or the officers could smell either drugs or alcohol, this might give grounds for reasonable suspicion on which to base a search.

The Role of Probable Cause

Provided that a motorist does not allow them to do so, law enforcement must have probable cause to search a vehicle. If law enforcement stops a person for a broken tail light, this does not mean that the officer now has the authority to search the vehicle. Legitimate reasons to stop a driver do not also constitute probable cause. Instead, law enforcement often will stop the driver and ask them enough questions to see if it provides grounds for probable cause and the search of the vehicle. 

This is why if you are pulled over by a police officer, you should not give any more details than what the officer requests. Other than this information, you should remain silent throughout the encounter. Any information you provide the officer during the stop can later be used against you by law enforcement. 

Speak with a Seasoned Criminal Defense Attorney

To avoid facing undesirable charges, you should not hesitate to obtain the assistance of a skilled criminal defense attorney. Contact attorney Edward R Molari today to schedule a free case evaluation.

 

Four Things to Know About Massachusetts Hate Crime Charges

A man in Revere was recently accused of painting racist graffiti, including swastikas, in his neighborhood. The man also spray-painted the phrase “white power” throughout the street. He was arrested on hate crime and vandalism charges and arraigned in Chelsea District Court. The man was later released and required to be monitored by GPS. 

Hate crimes refer to criminal acts that are committed against a victim due to the victim’s belonging to a certain protected group. Hate crimes result in serious harm to the victims, of course, but they also damage the fabric of society. Because hate crimes are an increasingly common occurrence in Massachusetts that carry especially serious penalties, it is worth understanding how these charges are prosecuted in the state.

Understanding “Protected Groups”

The First Amendment to the U.S. Constitution guarantees every citizen a right to free speech, but this does not protect hate crimes. While posting disparaging comments on your personal social account might represent free speech, threatening to injure or kill someone because of their race of gender identity is a crime. Some of the protected characteristics that may not be targeted without being charged with a hate crime include:

  • Color

  • Disability

  • Gender

  • National origin

  • Race

  • Religion

  • Sexual orientation

If the perpetrator of a crime mistakenly targets a victim because of their perceived membership to a protected group, even if that person is not really a member of that group, the person who committed the crime can still be charged with a hate crime. For example, if someone assaults someone else because they are Jewish, but the victim turns out to be Christian, the attacker can still be charged with a hate crime.

How Hate Crimes are Categorized

Hate crimes can be committed against a person, several people, or an institution. Not all crimes committed against members of a protected group are hate crimes. A hate crime must be committed against a victim because of his or her membership in that group. 

To convict a person of a hate crime, the prosecution must establish that the crime was motivated by the victim’s protected status. To determine this element, the prosecution will often look for evidence of the defendant’s use of slurs against the protected group. These statements are often provided by witnesses, emails, or social media posts. 

 

Defenses to Hate Crimes

If you have been charged with a hate crime, one of the best things to do is to retain the assistance of an experienced criminal defense attorney. Some of the defenses used to respond to hate crime charges include arguing that:

  • The prosecution lacks sufficient evidence on which to base a charge.

  • The person being charged was unaware of the other party’s protected class.

  • There was a mistaken identity.

  • The crime in question was not motivated against the supposed target group.

  • A person’s words can be taken out of context and perceived as a threat.

  • The allegations can be the underlying result of tensions in a neighborhood and workplace and the person charged might be used as a scapegoat for a greater problem. 

Speak with a Hate Crimes Defense Attorney

Hate crime convictions carry serious repercussions, including a tarnished social reputation. If you need the assistance of an experienced criminal defense attorney, do not hesitate to contact attorney Edward R Molari today.

Three Things to Understand About Defeating Drug Distribution Charges in Massachusetts

A man was arraigned in Ayer District Court recently after he was found to have been in possession of cocaine with a street value of $16,8000 and marijuana estimated at approximately $2,850. The man was also in possession of two illegally-owned handguns. 

The arrest was the result of an investigation into an alleged cocaine distribution scheme in the Westford area. A search of a home and a Tyngsboro storage locker led to the discovery of crack cocaine and powdered cocaine. The suspect was also found in possession of marijuana with an estimated street value of $2,850, two illegally-owned handguns, $45,8000 in cash, and drug packaging materials.

Based on a report provided by the district’s attorney’s office, the suspect was engaged in a long-standing cocaine distribution network. The suspect was charged with trafficking cocaine over 100 grams, conspiracy to violate drug laws, possession with intent to distribute a Class B substance, possession of a Class D substance, possession of a Class B substance, and possession of a firearm without a license.

Defeating Distribution Charges in Massachusetts

One of the most powerful ways to beat distribution charges in Massachusetts is by attacking the basis of the Commonwealth’s evidence regarding drug possession. While cocaine charges are often easier to resolve than those involving Fentanyl or heroin, no charge is without its defenses. This article reviews four of the most common techniques used to weaken the prosecution’s argument.

The Prosecution Must Establish Distribution

To prove distribution, the prosecution must establish that the person being charged “intentionally or knowingly” distributed the substance. Massachusetts law defines distribution as any method of delivery, which involves the process of transferring a controlled substance from one person to another. If law enforcement cannot show that a person distributed drugs, a distribution conviction will not stand. 

Establishing Constructive Transfer

Constructive transfer occurs if the prosecution can show that a person was aware of a transaction and in control of the transaction. A person need not have physically been present at the time of distribution. Instead, “constructive transfer” can be shown if there is proof of communication between the person being charged and the individual who actually transferred the drugs.

Probable Cause Was Lacking

Before searching a home, Massachusetts law enforcement obtains a warrant by arguing that there was probable cause for such a warrant to be issued. Judges in Massachusetts only issue search warrants in drug offenses when a law enforcement officer prepares an affidavit proving probable cause to believe that the drugs will be found in the place to be searched. Many search warrants rely on information supplied to law enforcement by confidential informants, but law enforcement officers can only rely on this information if it is classified as both reliable and trustworthy. As a result, it is often possible to attack the constitutional basis of a search warrant by arguing that the motion should have been suppressed.

Do Not Hesitate to Speak with a Knowledgeable Criminal Defense Lawyer

Drug charges are a serious matter. If you need the assistance of an experienced criminal defense attorney today, do not hesitate to contact attorney Edward R Molari.

 

Discharging a Firearm Defense

A Mattapan man faces charges after law enforcement found him carrying a firearm, live ammunition, and drugs in Dorchester. 

The charges came after law enforcement officers heard multiple gunshots and saw a vehicle leaving a parking lot at a high speed. Officers approached the vehicle and ordered the driver out, but he refused. Consequently, law enforcement forcibly removed the driver from the vehicle and discovered a firearm. The officers also seized 20 rounds of live ammunition located in a gun box in the vehicle’s trunk as well as a medium-sized bag in the vehicle’s center console containing a drug-like substance.

The man was charged with carrying a loaded firearm without a license, unlawful possession of a firearm and ammunition, discharging a firearm within 500 feet of a building, and possession of class A drugs. 

Massachusetts General Laws Chapter 269 section 12E states that it is a criminal offense for a person to discharge a firearm within 500 feet of any building or dwelling without the consent of the occupant or owner. Because a conviction of this offense can result in a person facing fines of up to $100 and imprisonment for a maximum of three months, people must understand how they can defend against these charges.

Defenses That do Not Work

There are some common misconceptions about what defenses work in response to the charge of discharging a firearm. Some strategies that will not be sufficient in response to these charges include:

  • You were not firing live ammunition. A person can be charged with the offense whether they discharged blank rounds or live ammunition.

  • You fired at night or early in the morning. The purpose of the law is to protect the occupants of buildings. As a result, these laws apply during any time of the day or night.

  • You did not know you were discharging the firearm within 500 feet of a dwelling. You can still be convicted of this offense even if you did not know that you were discharging a firearm within 500 feet of a dwelling.

Successful Defenses to This Charge

Several defenses work in response to these charges, which include:

  • Lack of evidence. The prosecution must establish beyond a reasonable doubt that your firearm was discharged within 500 feet of a building or dwelling. It can be challenging for the prosecution to collect adequate evidence to support a charge.

  • Why You Discharged the Weapon. There are several recognized exemptions to discharging a firearm. Some of these exemptions include people who discharged a firearm in defense of life or property and law enforcement officers who discharged their firearm while in the line of duty.

  • Where You Discharged the Weapon. Despite the 500 feet law, there are some locations where a person can discharge a weapon. For example, a person can discharge a firearm in a license shooting gallery. A person can also discharge blank cartridges for athletic, ceremonial, theatrical, firing square, or firework displays.

Speak With a Massachusetts Criminal Defense Attorney

If you are charged with a criminal offense, you should not hesitate to speak with a knowledgeable attorney. Contact attorney Edward R. Molari today to schedule a free case evaluation.

How to Respond if You are Falsely Accused of a Sex Crime

In May, a Natick man was arrested in his home and charged with enticing a child under the age of 16. This arrest is the result of a video in which the man was confronted by a vigilante group that targets Massachusetts sex predators. The group, called Predator Poacher Massachusetts, proceeded to post a video on YouTube of the confrontation in which the group alleges that Brown tried to meet a 14-year-old child.

Not all sex crime accusations in Massachusetts are legitimate. False reports of sex crimes are not uncommon. A review of research by the National Sexual Violence Resource Center found that false reporting makes up anywhere between 2% to 10% of claims.

If you are falsely accused of a sex crime in Massachusetts, you might not be sure about how to proceed. The following reviews some important things to do if you are falsely accused of a sex crime.

Take the Allegation Seriously

It is critical to understand that you have been charged with a serious offense, and a conviction would result in substantial penalties. Unfortunately, many people who are falsely charged with sex crimes discover that this has an impact on their reputation in the community. This can substantially impact a person’s career and lifestyle. You cannot afford to be dismissive about these charges or take them lightly.

Avoid Making Statements to Anyone

If you have been falsely accused of a sex crime, it can be tempting to tell everyone that you meet that you are innocent. This is a bad idea. Instead, it is better to resist the urge to comment on your situation at all. You should abstain from engaging in discussions or making any statements about your involvement. Saying nothing is simply the best way to protect yourself, even if you are concerned that this might make others think you have something to hide.

Teach Yourself About Sex Crimes

Although your attorney will likely do a lot of the heavy lifting, you should still educate yourself on the legal process and what you might expect if your case goes to court. It is important that you be fully involved in your defense and that you make decisions based on knowledge rather than on gut instinct. 

That does not mean you should assume you know more than your attorney does; it simply means that you should take an active role and be able to provide information that could help your defense team obtain a favorable outcome.

Do Not Go it Alone

If you are facing a sex crime charge, you will almost certainly need the assistance of an experienced criminal defense attorney. The best lawyers can help explain your rights as well as create a strong defense strategy. The sooner you involve a lawyer with your case, the more likely that you are to see a positive outcome.

Speak with an Experienced Sex Crimes Lawyer

If you have been falsely accused of a sex crime in Massachusetts, you cannot rely on the criminal justice system to show you are not guilty. Instead, you should promptly retain the assistance of an experienced Massachusetts criminal defense attorney. Contact attorney Edward Molari today.

Common Mistakes People Make After an Arrest

Boston law enforcement in May arrested a man after he allegedly fired several rounds at officers. Fortunately, neither the man nor any law enforcement officers were injured in the event. The police received reports of a man threatening people with a firearm, and when they confronted the man, he fled toward Chester park. 

The suspect ended up firing his weapon to lock-back, which means he emptied of all the ammunition from a firearm. Even after law enforcement apprehended the man, he violently struggled to get free. The suspect now faces several charges including assault with intent to murder. 

Getting arrested is a scary process. Any mistakes that you make during this process can end up jeopardizing the future of your case. Many people, however, instinctively panic during an arrest. The following are some critical mistakes to avoid during an arrest because they will likely harm your case.

Admitting Incriminating Details

In accordance with the Constitution, a person has the right against self-incrimination. If a law enforcement officer inquires about how an offense occurred, you are not obligated to answer that question. Afforded by the Fifth Amendment, you have the right to keep quiet following an arrest. Law enforcement officers are known to utilize various strategies to extract information from those in custody, which includes lying to you so that you will admit to a criminal offense.

Trying to Resist Arrest

If law enforcement tells you that you are under arrest and you try to resist or elude them, you can quickly end up facing additional charges. You can also face charges if you push, shove, or in any way assault a law enforcement officer. Instead, if you are told that you are under arrest, the best strategy is to simply comply.

Acting as Your Own Lawyer

If you are arrested, it can be easy to think that communicating personally with the police is the best step that you can take. In actuality, this is a mistake. If you speak to law enforcement without an attorney present, the chances are high that you will end up doing or saying something that will damage your case. Remain silent until your attorney arrives, and then only have a conversation with your lawyer.

Over-Explaining

People who think that they were wrongly arrested will often attempt to explain a situation before law enforcement even begins questioning. You should avoid the urge to explain your situation to the police. Whatever you say during an arrest can later be used against you. Instead of over-explaining, you should avoid the urge to offer up any unnecessary information.

Speak with an Experienced Criminal Defense Attorney

Being arrested is a frightening process, and it is common for the anxiety and stress to end up clouding your judgment. If you need the assistance of an experienced criminal defense attorney, do not hesitate to contact attorney Edward R. Molari.

How to Respond (And How Not to) if You Have a Warrant Issued

 

Waltham police recently arrested two teenagers with the help of a SWAT team. Following a spotting by law enforcement officers days before the arrest, the teenagers ran off which led law enforcement to call for backup. After learning that one of the parties was not going to cooperate and given the severity of the charges, law enforcement called in a SWAT team to help. 

After the SWAT unit arrived, it went into the teenager’s apartment and talked to one of the young adults, who was in his bedroom with a knife. Rather than work with law enforcement, the teenager later climbed out of his bedroom window. Law enforcement instructed the teenager to drop his knife several times before he listened and was arrested. 

One of the teenagers was arrested on several charges including assault and battery on a law enforcement officer as well as motor vehicle larceny, receiving stolen property, resisting arrest, failing to stop for a police officer, and assault with intent to murder. The second teenager had a warrant out for resisting arrest and was also charged with carrying a dangerous weapon. 

Having a warrant for your arrest can be a confusing situation. Because many people are not certain about how this process works, they end up making mistakes that jeopardize the outcome of their case. Realize that whether or not you are innocent or committed the criminal offense to which the warrant relates, there are some actions that you should and some that you should not take in responding. 

How to Respond to Warrants

There are some critical safety suggestions to remember if you find out that a warrant has been issued for your arrest:

  • Always address the warrant. While you might hope that it will, the warrant will never go away. Trying to stop thinking about the warrant will not make it go away. Instead, a criminal defense lawyer can help you turn yourself into law enforcement on your terms. This way you can avoid having the police burst into your home like they did in the story above. 

  • Never to try to run from a warrant. In this situation, you will only end up facing additional charges in addition to the previous offenses. These charges often include failing to stop for law enforcement or resisting arrest. This means not just driving off, but also not flying or traveling in any way.

  • Even though a criminal defense lawyer will often recommend that you surrender yourself to law enforcement, it is almost always a better idea to discuss this strategy with an attorney first.

Speak with a Massachusetts Criminal Defense Attorney

If you discover that a warrant has been issued for your arrest, one of the best steps that you can take is promptly speak with a knowledgeable lawyer who can help you determine the best strategy to respond. 

Contact attorney Edward R Molari today to schedule a free case evaluation. 

 

Advice on Carrying a Loaded During Law Enforcement Interaction

 

During a gathering for a homicide victim in Massachusetts, law enforcement prevented a potential future tragedy by arresting two teenagers with a loaded weapon. The arrest came after law enforcement officers acting on a tip stopped one vehicle and recovered an AK-47 loaded with a 30 round magazine. Both the driver and passenger of the vehicle now face firearm charges. 

If you are stopped by law enforcement while carrying a loaded weapon, there is more reason than normal to be nervous about how the encounter and the charges that might result. While the encounters can occur in many ways, most often result from law enforcement stopping vehicles. One factor that makes these interactions complex is that Massachusetts is a concealed carry state, but if stopped, you still must disclose to law enforcement that you are carrying a weapon.

To minimize the negative consequences of these stops, it helps to remember some critical safety precautions and strategies, some of which will be reviewed in this article. 

Remain Calm

Law enforcement stops are often surprising. One moment, you are driving around and the next, you are being questioned by a law enforcement officer. 

During this confusing time, it is critical to remain calm. After spotting the approaching lights of a law enforcement vehicles, you should make sure to safely pull over your vehicle which means putting on your emergency flashers, pulling into a well-lit location, putting your car into park, and if they are easily accessible locating your identification as well as your motor vehicle insurance information. 

As the law enforcement officer gets out of his or her vehicles and approaches, it is a good idea to take some deep breaths and remain calm.

Utilize The Right Approach

You should strive to answer law enforcement during these interrogations in an as polite and informative way as possible. There are also other manners in which people try to respond to law enforcement, which frequently do not lead to positive results. For example, many people attempt to utilize humor in these situations, which often indirectly communicates to the officer that you are not taking the situation seriously enough. 

On a similar note, it is critical to realize that being sarcastic is not charming and will not have the effect of building rapport. Also, people should avoid arguing about the merits of the stop. Instead, it is not a good idea to let your attorney create a strong argument to these charges at a later date. Instead, it is best to directly and immediately inform the law enforcement that you are carrying a firearm.

Know How to Approach the Situation

After informing a law enforcement officer that you have a firearm, there are often three ways that the situation will resolve. First, law enforcement sometimes allows people to keep a firearm. Second, the officer might remove the firearm. In these situations, you should make sure to follow the instructions provided by the police officer. Third, the law enforcement officer might order you to hand them the firearm. In these situations, you should listen carefully to the law enforcement officer’s instructions, repeat these instructions back, and narrate your actions as you respond. 

Speak with a Knowledgeable Criminal Defense Lawyer

Being charged with firearm offenses in Massachusetts can result in serious penalties. This is why it is critical to construct a strong legal strategy to respond to these charges. Contact attorney Edward R Molari today to schedule a free case evaluation.

 

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