Massachusetts Legal Developments Blog

Recently in the robbery case of Commonwealth v. Mercado, a Massachusetts state appellate court issued an opinion concerning when a law enforcement officer is lawfully permitted to stop people against their will and search them. In its holding, the court found that a law enforcement officer who stopped a person had reasonable suspicion to perform a stop and frisk, and as a result, the defendant’s motion to suppress the evidence that was obtained during this search was denied.

How the Case Arose

After being held at gunpoint, four college students provided law enforcement with a description of the three people who committed the offense. The individual who was alleged to have held the gun was an African American man in a hoodie, the second man was a Latino man in a Colorado Rockies Hat, and the third man was of either Black or Hispanic origin. Soon after receiving this report, a police officer spotted three individuals nearby who matched the description. When law enforcement approached these men, a chase on foot occurred, with the three men ultimately slipping back inside of a house. When law enforcement attempted to enter this building, a woman answered and let the law enforcement officers inside. Subsequently, the three men were arrested, but the victims of the crime identified only two of the men.

The Procedural History of the Case

The defendant in the case argued that law enforcement lacked reasonable suspicion to stop him after he left the home and then re-entered. The court, however, found that the law enforcement officer did have reasonable suspicion that the man and his friends were involved in the crime. To demonstrate that reasonable suspicion existed in the case, the court pointed out that the men were wearing the same clothing that had been described by the students who were held at gunpoint.

What to do if Stopped by Law Enforcement

If, like the individuals mentioned involved in this example above, you are stopped by law enforcement, it can help to understand how to respond:

• Ask if you are permitted to leave. If law enforcement informs you that you are, walk away. If you are told that you are under arrest, you should ask what the basis for the arrest is.

• In accordance with your Miranda Rights, you have the right to remain silent, which means that law enforcement cannot punish you for refusing to answer questions.  

• Law enforcement is permitted to pat down your clothing if they suspect that you are carrying a weapon, but you always have the right and should refuse consent for law enforcement to perform any additional searches.

• Make sure that your hands remain in a place where law enforcement can see them.

• Remain calm, which means avoiding arguing or running from law enforcement.

Obtain the Services of a Skilled Criminal Defense Attorney

If you or a loved one in Massachusetts faces any type of a charge due to a search that was conducted by law enforcement, do not hesitate to contact Edward R. Molari, Attorney at Law, to schedule an initial free case evaluation. During this time, we can discuss the details of your case as well as what your various available legal options are. Contact our firm today to make sure that your case resolves in the best possible manner.

A recent report by the Boston Globe shows that three years after the state overhauled its gun laws, the Commonwealth is still struggling to send the results of their background checks to federal investigators. According to the Boston Globe, the delays in reporting stretch for weeks, or even months. This could allow individuals who are not legally allowed to procure firearms to purchase one, and potentially attack another citizen or citizens.

In fact, there has been a renewed attention on mandatory reporting laws. If the laws were followed as directed, it is possible that the church shooting in Sutherland Springs, Texas, as well as the church shooting in Charleston, S.C. would not have occurred. Both men should have been on a federal registry preventing them from purchasing firearms.

Furthermore, this shows how a state with even the most stringent gun laws can still have security loopholes. Until 2013, Massachusetts did not even report mental health conditions to the federal database. Similarly, according to the Boston Globe, Massachusetts did not report misdemeanor domestic violence convictions or substance abuse convictions. After the shooting at Sandy Hook Elementary in Newtown, Connecticut, the Commonwealth changed their policies and began more aggressively reporting convictions to the federal database.

The Commonwealth has since backtracked and added more than 20,000 convictions in the last several years, most dating back to the mid-1990s. However, as new cases have come in, Massachusetts has struggled to incorporate them into the federal database in a timely fashion.

“I’m very concerned. We need a system where nobody can slip through the cracks, and we’re unfortunately in a situation now where someone can potentially fall through the cracks,” state Representative David Linksky said while pushing for a new system in 2014.

Even gun rights advocates are outraged by Massachusetts’ inability to keep the database updated with the convictions of domestic abusers and violent felons. “I thought this was all taken care of, I didn’t realize this was still going on. This is something that needs to get fixed. Certainly, we don’t want people who have severe mental health [or other disqualifying] issues to have firearms.”

Many Massachusetts residents are questioning the delays. According to the DCJIS, officials must manually sort through all criminal convictions to determine which ones need to be reported to the federal database. Then, once those offenders are identified, prosecutors need to fill out a form that complies with the federal requirements, according to officials, this tedious process can take weeks or even months. Gun control advocates worry that this is the exact amount of time for a recent convict to seek out a gun with the intention of harming another person.

Sadly, the slow and incomplete reporting of mentally ill individuals or convicted felons is a nationwide problem. While funding increases and regulatory changes have helped boost the number of records in the federal database, much work remains to fill the gaps.

Massachusetts, for its part, plans to create an automated system for processing the records which it hopes will ultimately serve as a model for real-time input into the federal gun database.

The highest court in Massachusetts ruled on an important Fourth Amendment search and seizure case last week. The case concerns an incident in 2015 when a driver in Holyoke was stopped by police officers. The officer then asked the driver if there were any drugs or guns “in the vehicle.” The driver responded, “No, you can check,” thereby providing police consent to search the vehicle, or at least the interior and trunk of the vehicle, according to the driver.

Police then removed all three passengers from the vehicle and brought a K-9 unit to the vehicle, meant to smell both drugs and firearms. The police dog did not indicate any contraband in the car. However, the officers proceeded to search not only the interior and trunk of the vehicle but also underneath the hood of the car – including the air filter inside the engine.

While the search of the interior of the car and its trunk did not turn up any illegal contraband, once the police popped the hood and searched the air filter, they located a black bag containing two firearms. While the driver admitted to granting the police consent to search his vehicle, he did not consent for the police to search underneath the hood of the car, and especially not the air filter in his engine.

The outraged driver said he never consented to have the hood of his vehicle searched. In a divided opinion, the Supreme Judicial Court of Massachusetts agreed with the driver.

According to Supreme Court Chief Justice Ralph Gants, “a typical reasonable person would understand the scope of such consent to be limited to a search of the interior of the vehicle, including the trunk – not the engine compartment.”

Justice Gant further writes, “The most generous understanding of the defendant’s consent, in this case, is that it was ambiguous whether it included the engine area under the hood and whether it authorized the police to remove the air filter. But the police are not allowed to take advantage of such ambiguity when they have the ability to resolve it with clarifying questions.” Therefore, the search would have been perfectly acceptable if the cops had only asked the driver if they could search under the hood, and the driver had acquiesced to their request.

In the dissent, authored by Justice Ellie Cypher, she failed to see the difference between the trunk and the engine – if the driver consented to having the trunk searched, then why would an engine not apply under the same logic? In her opinion, “Both are beyond the passenger compartment and must be opened separately.”

Going forward in Massachusetts, if a person grants permission to a police officer to search his or her vehicle, it is likely to only include the interior of the car and the trunk. If a police officer wants to search underneath the hood of the vehicle, then he or she should also get explicit permission from the driver, absent any exigent circumstances. The driver’s conviction for possession of firearms was thrown out as a consequence of the search and seizure, illegal under the Massachusetts Constitution.

In a bizarre scandal with far-reaching consequences, state prosecutors in Massachusetts are set to throw out over 8,000 convictions that occurred in the Commonwealth over an eight-year period between 2005 and 2013. This is the second case in the Commonwealth in recent years in which a chemist has tampered with evidence and consequently, produced possible false reports that were used to convict people of drug crimes. This is also the second case in which a judge has admonished the prosecution for delaying its findings about the effects of the tainted lab results, or what the judge in this case called, a “fraud” and potential “prosecutorial misconduct.”

According to The Washington Post, the convictions relied on the drug testing at a lab in Massachusetts and were handled by chemist Sonja Farak, who has said that she used some of the drugs she was supposed to be testing. Farak admitted to smoking crack on a daily basis but also used “methamphetamine, amphetamine, ketamine, ecstasy and LSD,” according to the Washington Post. In one particularly egregious violation of the law in 2012, Farak siphoned off 100 grams of cocaine from the police department and used it to create crack-cocaine in the Amherst lab where she worked. Farak’s eight-year bender on the confiscated drugs ended in 2013 when her co-workers finally noticed that drugs were missing and then apparently found “chunks of crack at Fark’s workstation.”

The scandal that led to Farak’s arrest and conviction was only one year after a similar scandal in Massachusetts. In 2012, Annie Dookhan was charged with a long-running scheme of creating false drug analysis for the police and courts. In that case, criminal defense attorneys were able to dismiss almost 24,000 cases with over 20,000 defendants. The Commonwealth of Massachusetts only sought to preserve 1.5% of the convictions that relied on evidence tested by Dookhan. With the second case of long-running incompetence and fraud at a drug testing lab now surfacing, many critics are calling for an overhaul of drug testing policies and more oversight over the facilities charged with handling this sensitive evidence.

In this case, prosecutors are planning to throw out 8,000 convictions where the judge or jury relied, at least in part, on Farak’s lab analysis. According to CNN, that only leaves 40 cases involving Farak that the prosecutors do not plan on dismissing. The American Civil Liberties Union along with several Massachusetts criminal defense attorneys are seeking to have all cases involving Farak dismissed.

The conduct of Farak has been compounded by what many have viewed as prosecutorial misconduct. Since the Commonwealth has become aware of Farak’s behavior, prosecutors have been slow to notify defendants or reveal the full scope of Farak’s conduct. Scolding the prosecution, the judge said that the prosecutors committed “intentional, repeated, prolonged and deceptive withholding of evidence from the defendants…. That constitutes a fraud upon the court.”

If you are charged or convicted of a crime and have any questions about your possible legal options in light of recent developments, you should contact a knowledgeable Massachusetts criminal lawyer.