NEWS
July 29th, 2020
In early July, 2010, Michael Earielo woke up from a weeks-long coma unable to use his arms and legs. He received several surgeries to recover from the damage that an epidural abscess in his lower back and osteomyelitis did to his body. He would only regain the use of him arms and legs after years of medical treatment. Though Mr. Earielo is now able to walk, he requires a cane and will likely always require the use of a cane and always experience significant pain.
Between June 1, 2010 and June 11, 2010, Mr. Earielo was incarcerated at the Worcester County Jail and House of Correction (the Jail) on a $1,000 bail that he could not pay. On June 1, Mr. Earielo complained of being “dope sick”, a term which refers to any number of the symptoms associated with withdraw from opiates. He was prescribed medicine for detoxification and an order was made that his vital signs be checked at the beginning of every shift. The next day Mr. Earielo began to complain about pain in his back to the nurses caring for him. He was accused of ‘faking it’ by one of the two nurses who were charged with his medical care.
The pain became stronger and, at some point, prevented him from leaving his bunk for detox medicine or to use the bathroom, meaning he was laying in him own urine and feces. He eventually began vomiting as well. By June 11th, Mr. Earielo was severely dehydrated, unable to move, and other people incarcerated with him complained about the smell. On June 11th, after 8pm, Mr. Earielo was able to see a doctor for the first time despite asking for a week and a half. He was immediately transported from the Jail to UMass Memorial Medical Center in Worcester, where he was diagnosed with the abscess and underwent emergency surgery to remove it and the sepsis that had developed.
Mr. Earielo eventually filed a suit against the Jail, a doctor, a physician’s assistant, and two nurses— Ms. Carlo and Ms. LaPointe, the defendants in this appeal—claiming that medical staff at the jail refused to act on his complaints and physical manifestations of his illness, and that their refusal to act appropriately made his injuries worse and violated his rights under the Eighth Amendment to the Constitution of the United States, which prohibits the infliction cruel and unusual punishment by the government.
The nature of this appeal was that Carlo and LaPointe claimed that, even if you credit Mr. Earielo’s version of events without a critical eye, essentially accepting all the good facts for him as true, there weren’t enough facts for Mr. Earielo to have a judge or jury find in his favor. Mr. Earielo’s claims were essentially that Lapointe and Carlo had violated his constitutional rights, namely the “right [of inmates] under the Eighth Amendment to the United States Constitution to adequate medical care.” Michael Earielo vs. Kayla C. Carlo, 19-P-421, slip op. at 11 (July 23rd, 2020) (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)).
Mr. Earielo argued that LaPointe and Carlo’s actions manifested deliberate indifference in that they knew of a substantial risk of serious harm and failed to act to mitigate the harm. LaPointe and Carlo argued that their conduct-- failing to check on Mr. Earielo, take his vitals, provide a meaningful medical response to his pain and inability to move, or otherwise respond to serious symptoms he was manifesting-- was, at most, only negligent. The Court of Appeals semmingly treated a dispositive factor in the appeal in Footnote 15. Mr. Earielo submitted expert reports from medical prfessionals which concluded that LaPointe and Carlo “failed to recognize, evaluate, and treat the plaintiff's critical illness”. Earielo vs. Carlo, 19-P-421, slip op. at fn. 15 (July 23rd, 2020). The Appeals Court further stated that, “these expert reports and the other materials in the record renders summary judgment inappropriate.” Id. The Appeals Court found that the Trial Judge correctly decided that LaPointe and Carlo had the authority to call a doctor or send Mr. Earielo to the hospital, but decided not to do that and thereby were deliberately indifferent to his medical issues.
LaPointe and Carlo argued further that Mr. Earielo’s claims did not allege a violation of clearly established law, in other words a case with very similar facts regarding deliberate indifference towards an incarcerated person. The Appeals Court was similarly unimpressed, “the purported violation is so egregious and obvious, the plaintiff does not need to identify a preexisting case on point or a consensus of persuasive authority.” Id., slip op. at 16 (citing United States v. Lanier, 520 U.S. 259, 271 (1997) and Raiche v. Pietroski, 623 F.3d 30, 38-39 (1st Cir. 2010)).
To be clear, the decision by the Trial Court judge and the Appeals Court only allows Mr. Earielo to have his day in court with LaPointe and Carlo along with the other defendants like the doctor and the Jail. However, survival of the Summary Judgement stage of a Plaintiff’s civil case means that the claims are worth more money; taking money away from institutions like jails is sadly is one of very few tools to attempt to get these institutions to change their behavior. The strategic use of expert reports gained Mr. Earielo a toehold to push to the next stage in his case.
Mr. Earielo should be commended on his use of the time that passed since July 2010 and today. A google search of his name will reveal that Mr. Earielo is now a peer mentor and credentialed substance abuse counselor in the Worcester area. We wish Mr. Earielo continued success and, eventually, some measure of justice.
The full text of Michael Earielo vs. Kayla C. Carlo is available here. here.
Tags: Civil Litigation, Personal Injury, Civil Rights, Summary Judgement, Negligence, Respondeat Superior, Infliction of Emotional Distress
June 17th, 2020
On August 26th, 2011, Mrs. Olga Ledet was viciously attacked by a man who was off duty from his moving company job with Mills Van Lines. Mrs. Ledet was coming home to Quincy from her job at Brigham and Women’s Hospital. Mrs. Ledet escaped Mr. Robert Kootnz’ apparent attempt to rape her with bruises and a deep cut on her face below one eye. Eventually Koontz plead to the criminal charges arising out of the incident to a 10 to 13 years sentence in state prison.
The Ledets, Mrs. Ledet and her husband, Mr. Andrew Ledet, then sued Koontz and his employers, and the dismissal of this suit formed the basis of the opinion of the Court of Appeals, Olga Ledet vs. Mills Van Lines, Inc., 18-P-1452 (June 15th, 2020). The suit alleged, in essence, that Mrs. Ledet experienced physical and emotional injuries-- and that the Ledets’ relationship as a whole suffered-- due to the assault. The suit further alleged that Mills was responsible for those injuries because of their negligence in hiring and supervising Koontz.
The basic reasoning of their suit was that Mills Van Lines were liable for Mr. Koontz’ actions as his employer. There was some merit to this notion. Mr. Koontz had “an extensive criminal history and a history of drug and alcohol abuse, an extensive criminal history and a history of drug and alcohol abuse.” Ledet v. Mills Van Lines, at 2. If Mills Van Lines, MVL, followed their own procedures they would have been aware of that history. Indeed, “Koontz was first hired on May 18, 2007, while he was under indictment for possession of cocaine…. Within a week after he was hired, Koontz was arrested and charged with operating under the influence of alcohol. His employment ended with his incarceration on or about June 14, 2007. Mr. Koontz regained this employment following his release from incarceration.” Id. at Fn. 8. He also had convictions for “threatening domestic violence by use of a hammer, burglary, and aggravated theft” amongst others. Id. at 4.
Why sue Koontz’ employer? Very often the person who physically commits an act that injures another person has no money to make the injured person whole. We live in a society where working-class people often cannot afford to own a home or have significant savings. This is especially true in the case of Mr. Kootnz, who was serving a prison sentence during the litigation of Mrs. Ledet’s case. No matter how certain it was that Kootnz had caused injury to Mrs. Ledet, she would not get any significant compensation for her injuries unless Kootnz’ employer was found to had acted incorrectly where it had a duty to act correctly and, in acting incorrectly, caused Mrs. Ledet’s injuries.
Mrs. Ledet would almost certainly not have experienced her injuries without MVL. Koontz’s only reason to be in Quincy, MA from his home state of Ohio was to help move a family the next day. The company quite literally gave him a vehicle without checking to see if he had a license—he did not— and told him to go to the community, hallway across the country, where he assaulted Mrs. Ledet. Negligence, however, which was a pivotal to the Ledets being able to recover their damages from MVL, required that the injury be foreseeable. The difference between “yes” or “no” was whether Mrs. Ledet’s injuries at Koontz’s hands were foreseeable results of MVL’s negligence.
Stated more directly, the pivotal question in the appeal was whether it was foreseeable the injury Mrs. Ledet suffered was a foreseeable risk of hiring Koontz and giving him certain tasks, like driving a van. The appeals court found the law clearly denied the foreseeability. “Koontz's criminal acts, committed while Koontz was off duty and not engaged in the work for which Mills employed him, against a person with whom Mills held no commercial or other relationship, was not a sufficiently foreseeable result of Mills's hiring of Koontz, or its decision to allow him to drive a truck incident to the move to which he was assigned.” Id. at 10.
The dissenting opinion, authored by Associate Justice Amy Lyn Blake, essentially urged a change in the caselaw based on the influential Restatement (Third) of Torts, a treatise compiled by legal scholars articulating general statements about law. In this case, the articulation of Employer Liabiltiy in the Restatement did not reflect the law of Massachseutts. Associate Justice Blake argued that, in arming Koontz with the van he used to travel to Quincy, MVL should have been aware that they created a foreseeable risk to someone in Mrs. Ledet’s position. The majority opinion, authored by Chief Justice Mark V. Green, found that, under the relevant Massachusetts cases, providing Koontz the van, even in light of Kootnz’ past, was not enough to make Mrs. Ledet’s injury foreseeable. The it would have been a closer issue if the van had been used for the assault or the battery. Further they stated, essentially, that their decision would have likely been different if they attack had occurred while Koontz was on the clock, or if Mrs. Ledet was the customer of MVL.
The full text of Olga Ledet v. Mills Van Lines is available here.
Tags: Civil Litigation, Personal Injury, Negligence, Respondeat Superior, Employer Liability, Infliction of Emotional Distress, Assault, Battery.
February 5th, 2020
The Supreme Judicial Court recently published Commonwealth v. Wilson Goncalves-Mendez, SJC No. 12743 (February 3rd, 2019), a decision which seriously affects the rights of drivers.
Boston Police stopped a vehicle in August, 2016, because they reasonably believed the vehicle had a malfunctioning brake light (it didn't but the light was covered by a loose piece of cardboard). Upon receiving the license and registration of the driver, police discovered a warrant for his arrest. They also became aware that the passenger had a driver’s license. The passenger appeared to be safe to drive and had no outstanding warrants. The police made the decision to arrest Mr. Goncalves-Mendez.
The police did not offer to have the passenger drive the car away and Mr. Goncalves-Mendez did not request that the passenger be allowed to take control of the car. The police merely informed Mr. Goncalves-Mendez that his vehicle would be towed. Pursuant to the Boston Police Department’s policy for vehicle impoundment, they searched the vehicle and discovered a gun. Mr. Goncalves-Mendez informed the police that the gun was his; the passenger left the scene on foot.
One gun can get someone in a lot of trouble. The single gun that police found allowed them to charge Mr. Goncalves-Mendez with Carrying a Loaded Firearm Without a License in violation of G. L. c. 269, § 10 (n); Carrying a Firearm Without a License, G. L. c. 269, § 10 (a); and Possession of Ammunition Without a Firearm Identification Card, G. L. c. 269, § 10 (h) (1). When Mr. Goncalves-Mendez told the police the gun was his--- more on this later--- all they needed to do to have enough evidence to prove the man guilty was have the officer take the stand at a trial and say, “… and Mr. Goncalves-Mendez claimed the weapon was his.”
Since he was not indicted, Mr. would receive “not less than 18 months… a jail” for Carrying a Firearm Without a license, then he would serve some additional sentence (ranging from one day to two and a half years) for carrying the gun without a license while loaded. So, if the fact that police discovered the firearm was admitted at a trial, Mr. Goncalves-Mendez would face no less than 18 months in jail, and possibly significantly more. The numbers would have gone up were the case to be indicted and tried in Superior Court.
So Mr. Goncalves-Mendez found himself in the unfortunate position of having a bullet-proof case against him against him that would incarcerate him for no less than a year and a half, likely more. The only recourse presented to him was to allege that police acted illegally in investigating his case and, for that reason, the evidence found in the car (the gun and his statements that the gun was his) should not be used against him. This challenge was most effectively stated in a simple question: why didn’t the police let the passenger drive the car away?
Here is where the true value of the Supreme Judicial Court’s ruling for Massachusetts drivers was created. If a driver is going to be arrested, the police are entitled to have a policy that requires them to prevent the vehicle from being left in such a way that creates a risk to public safety. They can also have a policy that entitles them to make an inventory of the interior of the vehicle to prevent claims of damage to the property in the towed car or claims by the owner of the vehicle of damage or theft of stuff in the car (in reality this is often just a search for illegal guns, drugs, or other evidence of a crime). But the law requires police to only tow the vehicle when it is reasonably necessary. Previously Massachusetts courts issuing significant decisions on whether an impound was reasonably necessary or not had found that it was reasonably necessary unless the vehicle was parked lawfully.
The vehicle in this case was parked in the travel lane of a major road in Boston; clearly it could not be left there. Equally obvious was the fact that there was a licensed person in the passenger seat who could have, with consent from the driver, moved the car to safety. The court flatly rejected the notion that it was Mr. Goncalves-Mendez's obligation to request an alterative to impoundment, “We have never held that police may disregard a readily apparent alternative to impoundment simply because a defendant does not request that a passenger be allowed to leave with the vehicle.” Commonwealth v. Goncalves-Mendez, Supreme Judicial Court, No. 12743, slip op. at 10 (February 3rd, 2020).
They further stated that because the police made no effort to actually determine whether a tow was necessary, the tow was illegal. Because the tow was illegal, the inventory search that stemmed from the tow was also illegal, and therefore the gun found in the car would be inadmissible. This is a powerful ruling takes away a police incentive to simply arresting a driver of a vehicle and perform a search of the vehicle they otherwise would not be able to perform.
As usual, I have to take a moment to discuss the Golden Rule of Criminal Defense: Silence is Golden. Because Mr. Goncalves-Mendez admitted that the weapons were his, it took the Supreme Judicial Court boldly clarifying that police have an affirmative obligation to at least make some inquiry into alternatives to towing a vehicle to give this guy chance. Cases charging a crime are named The Commonwealth of Massachusetts v. Wilson Goncalves-Mendez because it really is the entire might of the state, with nearly unlimited resources, against a criminal defendant and his or her attorney. It’s hard enough to get good results in a criminal case without giving the police and the government additional, powerful evidence of guilt in the form of, “That’s my gun.” As counter-intuitive as it seems… less is more. Exercise your right to remain silent, ask to speak to your lawyer.
The full text of Commonwealth v. Goncalves-Mendez is available here.
Tags: Criminal Defense, Vehicle Impound, Inventory Search, Firearm, Mandatory Minimum, From and After.
October 1st, 2019
On April 4th, 2017, Mr. Keyshaun Johnson was detained on a $10,000 bail for violating G.L. c. 269 § 10(n), which provides an additional punishment when a person without a license to carry a firearm carries a loaded gun. He was held on a bail for about 7 months. Ultimately he was found not guilty because the government failed to charge him with carrying a firearm without a license. Read the first sentence of this article again: in order to be found guilty of carrying a loaded firearm without a license, you have to be charged with carrying a firearm without a license—more on this later.
Not long after Mr. Taylor was found not guilty by the judge, the Commonwealth charged him with carrying a firearm without a license; Mr. Taylor’s attorney argued that such a charge was barred by the Double Jeopardy clause of the Fifth Amendment to the United States Constitution. The argument of the defense was that Mr. Taylor had already been put in jeopardy (tried to a verdict of not guilty) on this conduct and that his continued prosecution would violate the constitution. A person has been placed in Jeopardy when 1) a jury is sworn and 2) they render a verdict (or the judge renders a verdict on the facts of the case). The jury is sworn after the they agree to, “[W]ell and truly try the issue between the commonwealth and the defendant, according to your evidence; so help you God.” M.G.L. c. 278 § 4. The second part is more complicated, as we’ll see.
After hearing the arguments for whether Mr. Taylor’s second prosecution would violate the Double Jeopardy clause, the judge then reported questions to the Appeals Court under Massachusetts Rule of Criminal Procedure 34. The most significant of these questions was whether Mr. Taylor could still be tried on the new case in light of what happened with the old case. A ‘Rule 34 Report’ is a special circumstance where “a question of law arises which… is so important or doubtful as to require the decision of the Appeals Court”. M. R. Crim. P. 34.
A little background on the relationship between trial courts and appeals courts is helpful in understand why such a circumstance exists. Trial courts, essentially, assess the facts of a case and apply the law to those facts. Appeals courts are, with some significant exceptions, charged with the review of mistakes, at least according to the person seeking the appeal, made by the trial court. Appeals courts specialize in determining which laws apply to the facts gathered in the trial courts.
An appeal is essentially one side of a legal dispute taking issue with a decision by a court. Generally, the appeal challenges a judge’s determination that certain laws and certain facts require a certain judicial action—a ruling that evidence is inadmissible at a trial, the denial of certain funds for preparation of the defense of a poor person’s case, or a finding of guilt. For the most part, a party is only allowed to bring such a challenge under certain circumstances determined by the rules and cases. The idea here is to not clog the appellate courts with trivial issues. Massachusetts Rules of Criminal Procedure Rule 34 provides a trial judge with a right to acknowledge that not all legal issues are clearly analyzed by prior case law and request they be clarified by the Appeals Court before being addressed by the trial judge.
The court ultimately ruled that Mr. Taylor had never been in jeopardy because the original charge against him was always void--- “… a nullity, ‘misbegotten in the inception’”. Commonwealth v. Taylor, Massachusetts Court of Appeals, No 18-P-1310, slip op. at 15 (Citing Commonwealth v. Norman, 405 Mass. App. Ct. 82, 90 (1989)). In other words, a court never could have even ruled on the case because it did not have the right to do so-- technically the right of a court to rule on a case is referred to as jurisdiction.
Furthermore, the Court of Appeals ruled that even if jeopardy had attached, the ruling provided by the judge did not reach the facts of the case. The ruling was, according to the appeals court, based entirely on the law of the case-- Mr. Taylor must be charged with unlawfully having a firearm to have the sentence increased for unlawfully possessing a loaded firearm. The judge in the first trial did not touch on the facts of the case; Jeopardy had not attached and could not have attached.
The tragedy is that Mr. Taylor sat incarcerated on a bail that he could not pay for more than half a year-- for a case that the government could never prove—and at this point has nothing to show for it. Technically a judge is not obliged, in the event Mr. Taylor is tried again and convicted, to consider Mr. Taylor’s previous unlawful incarceration. It also does not take a particularly creative person to play out what would have happened had the attorney in the first trial not challenged the adequacy of the criminal complaint against Mr. Taylor: he could have been convicted by a jury, sentenced, and served roughly a year of additional time on an illegal sentence. We wish Mr. Taylor luck seeking justice through either his continued prosecution or an appeal of this decision to the Supreme Judicial Court.
The full text of Commonwealth v. Taylor, 18-P-1310 (September 26th, 2019) is available here.
Tags: Motion to Dismiss, Double Jeopardy, Pretrial Detention, Firearm, Firearm License, Firearm Identification Card, FID Card.
May 12th, 2019
When I was a child, my mother made the phrase "Comfort the afflicted, afflict the comfortable" into a playbook. Her dedication to doing the right thing manifested in late night and early morning trips all over Comal County and points beyond; in deep dives into her checking account for whatever the occasion called for; in short and long term stays at our house for students kicked out of their parent's houses, the newly homeless, cousins, and every unwanted, mangy animal she could lay hands on. There was never a question of "Can...?" but "How do...?", occasionally punctuated by mauling some fool who failed to get out of the way when she was on a mission. My mother set the bar for the women, and men, in my life in the best possible way. I've since been blessed to know many remarkable, powerful women, each of whom made me a better man. The reason I invite, rather than fear or despise, powerful women is my mother modelling what being a woman and a mother meant to her, despite a world which feared and despised her for being herself.
Tragically, many people will not be able to see their mother’s today because their mothers are incarcerated. It is often unnecessarily difficult to see parents because of the location of jails and the costs associated with those visits, amongst other reasons. It’s an established fact that poor communities are disproportionately scrutinized by police, making poor people disproportionately incarcerated. The difficulty posed in visiting jails and prisons for these often-poor families is compounded because they now lack whatever support that this mother provided to the family unit.
We must do better than this as a society. My impression is children overwhelmingly benefit significantly exposure to their mothers, even when their mothers are incarcerated. If I’m wrong, it’s a question of degree and not category. Children, even poor children whose parents made did bad things or made bad decisions-- or had only bad decisions to choose from— deserve access to their mothers.
Thanks mom, you're still my hero, I love you always.
March 18th, 2019
Donne Agogo was being watched by two detectives as he stood near the stoop of what was presumably his apartment building in Bellingham Square, Chelsea. Commonwealth v. Donne Agogo, SJC No. 12592 (March 15th, 2019). Mr. Agogo occasionally drifted inside the building for roughly thirty seconds, only to return to the front of the building. He was standing next to a woman, who at some point joined him as he briefly went inside. The Detectives watching Mr. Agogo considered the Bellingham Square to be a “high crime” area. They believed the repeated trips inside the apartment building were a part of a pattern of “re-upping” drugs. The notion a “re-up” is that drug dealers hide the bulk of their drugs far enough away from where they are selling so, if they are arrested and searched, only a small amount of drugs will be found on them. Police observed several brief conversations between Mr. Agogo and people passing by on the street. On one such occasion, Mr. Agogo and another man, James Foster, took their conversation around the corner. Police, suspecting drugs and cash were about to be exchanged, followed the two.
When Police came around the corner, they observed what was reasonably interpreted as the final steps of a drugs transaction: Mr. Agogo handed something small to Mr. Foster, who was soon after searched to remove a knife Foster admitted to having in his pocket. During this search Mr. Foster was found to be in possession of cocaine.
At this point, Mr. Agogo was speaking to one of the detectives and seemed to be “animated and not complying with [the detective]’s demands”. He was “pat frisked”, meaning police patted the exterior his body to assure he did not possess any weapons potentially dangerous to them. During the pat frisk, police found a twenty-dollar bill. Police noted this was roughly the equivalent of the value of cocaine seized from Mr. Foster.
A note on this “pat frisk” search: this Supreme Judicial Court, SJC, decision resulted from an appeal of a decision by a trial judge in District Court. The trial judge suppressed a subsequent strip-search of the defendant; this is the focus of the SJC case and this article. However, pat frisks are intended to only be so intrusive to detect harmful objects on the person a police officer is interacting with, not twenty-dollar bills. The defendant did not challenge the trial judge’s ruling on appeal, which ultimately was beneficial to the defendant but incorrectly stated that this pat frisk was constitutional. The Supreme Judicial Court did not analyze the issue of this separate bad search. Police pat frisks such as the one conducted in this case should NOT be intrusive enough to discover innocuous items like currency. Commonwealth v. Santos, 65 Mass. App. Ct. 122, 125 (2005).
Mr. Agogo was arrested and brought to the police station for booking. The Detectives stopped booking to perform a strip search on Mr. Agogo. Mr. Agogo became upset at this point and protested. Then Mr. Agogo’s “shoes and socks, as well as his shirt, pants, and underwear” were removed. Officers “saw a red bandana and seized it from his groin area.” The bandana contained seven bags of cocaine.
This brings us to the primary question of this case: under what circumstances do police have the right to perform a strip search?
At the point the Detectives conducted the strip search they had observed: the fact that Mr. Agogo was present in a “high crime” area, suspicious movements in and out of the apartment by Mr. Agogo which they believed to be consistent with drug dealing, Mr. Agogo hand something to Mr. Foster, cocaine and a pocket knife in Mr. Foster’s pocket, the money on Mr. Agogo’s person which was roughly how much Mr. Foster’s cocaine should have cost, and Mr. Agogo’s agitation when the announced they would be strip searching him.
The SJC readily dismissed the observations of agitation on Mr. Agogo’s part because, “the risk is that such a reaction to being told of an imminent strip search readily could be induced, and then used to justify the search.” In other words, a reasonable person would express displeasure at being stripped in front of strangers against their will, and that reaction doesn’t add much to the evaluation of whether police had enough incriminating evidence to perform the search. Furthermore, if the court did decide that the agitation/displeasure brought on by the threat of a search could provide valid grounds to search, it would incentivize the police to threaten strip searches where they otherwise wouldn’t be able to perform them.
Imagine sitting in your house and hearing a banging on your door. You see several armed men outside telling you they want to talk. You may or may not know these men are police, they don’t show you a court order allowing them to search your home (they don’t have one). You then move away from the door instead of allowing them inside. The police had come to your house to look for stolen goods. To the police, you backing away from them may look to them like you are going to try to escape or destroy evidence of the crime.
Can the police break down your door without a warrant in these circumstances? It’s called an exigent circumstance in legalese. If police can create an exigent circumstance by scaring people simply by showing up at their homes in large numbers with guns, there really wouldn’t be much reason to go get the warrant that Massachusetts law requires them to get. Police in Massachusetts are forbidden from an exigency and then using that as an excuse for not getting a warrant. Cf Commwealth v. Alexis, 481 U.S. 91, 99 (2018).
The SJC also found little support for the strip search from the facts that remained: it all looked like a pretty run-of-the-mill street level drug deal. In fact, while the SJC did not particularly cite this fact, the original suspicion of the police that led them to investigate, that Mr. Agogo was storing his drugs in the apartment building, cut directly against the need to invasively search his person for drugs.
That’s the central holding of the case, but some deserve more discussion.
“High crime” areas are a flawed legal concept that only serves to allow police-overreach and stigmatization of poor neighborhoods and neighborhoods comprised of black and brown people. While judges are allowed to consider the location of a police investigation in determining whether police officers had sufficient information to support their investigatory actions— for example stopping cars, pat frisking people, or receiving a search or an arrest warrant— this notion remains poorly undefined. Illinois v. Wardlow, 528 U.S. 119 (2000). In other words, a high crime area can be, and is, totally based on the whether the officer says it is a high crime area. The “high crime” area argument can be used to support even the barest and most baseless police investigation.
Judges are not deaf to this notion, “[…] this factor must be considered with some caution because many honest, law-abiding citizens live and work in high crime areas. Those citizens are entitled to the protections of the Federal and State Constitutions, despite the character of the area.” Commonwealth. v. Holley, 52 Mass. App. Ct. 659 (2001). As it is currently defined, the concept of “high crime” areas has no place in a modern and fair legal system and should be abolished.
Although it is not as classicist and racist as the notion of a “high crime” area, the same could be said for the habit of hanging out on the front porch and occasionally returning inside. In my neighborhood-- which could probably be considered a “High Crime” area if the police thought it would help an investigation-- my wife and I regularly congregate on our front porch on pretty much any day the weather permits. We greet friends, neighbors and strangers. We shake hands and chat. I often dart inside to make sure whatever I’m cooking is stirred or salted; sometimes I go inside to grab a beer or to use the restroom.
A final thought: when interacting with police officers, it is important to remember that the innocuous details of everyday life form the basis for nonconsensual stops and searches. Innocent explanations people provide as answers to questions police ask provide basis for investigating and ultimately charging crimes. If police are talking to someone, police are likely investigating a crime, possibly one they think the person they are talking to committed. People can and should exercise their right to remain silent. Mr. Foster attempted to answer a police question about why he was nervous by explaining that he had a knife in his pocket. This in turn facilitated a search of his person and the discovery of cocaine on his person. The facts of this case were focused on Mr. Agogo so it’s not clear whether the police would have had a valid search of Mr. Foster absent his statement. In any event, Mr. Foster would have probably benefitted from remaining silent, which the law provides an absolute right to do.
The full text of Commonwealth v. Agogo is available here.
Tags: Possession Class B, Distribution of Class B, Unlawful Search, Strip Search, Probable Cause.
February 20th, 2019
This February, the Supreme Judicial Court published Commonwealth v. Maurice Pridgett, SJC No. 12574 (February 12th, 2019), which provides an interesting analysis of the knowledge requirements of Massachusetts theft laws. A District Court ruled that the arrest of Mr. Pridgett was invalid and that all evidence gained as a result of the arrest could not be used at a trial; the Prosecutor challenged this decision before the Supreme Judicial Court, SJC.
Mr. Pridgett was found sitting in a stolen motor vehicle by Boston Police and arrested based on the police officer’s belief that they had observed enough reliable information to believe Mr. Pridgett had knowingly received a stolen motor vehicle. After arrest, Mr. Pridgett made statements which indicated he knew the vehicle was stolen, confirming the arresting officer’s hunch. The question in this case was whether police had probable cause to legitimately arrest Mr. pridgett.
If Mr. Pridgett’s arrest was legitimate, in other words if police had sufficient information to arrest him for receiving a stolen vehicle, then his statements would go to help the government’s case. If the arrest was NOT legitimate, then Mr. Pridgett’s statements would not be admissible at a trial and the government would certainly not be able to prove their case. More on talking to the police later, first we’ll look at the the arrest and how it was challenged at a Motion to Suppress in the District Court.
The case turned on whether the police reasonably believed Mr. Pridgett knew the vehicle was stolen. Some background information is helpful here. In order for an arrest to be made based on the observation of a crime, the officer making the arrest needs to see or otherwise observe each part of the crime. Every crime has at least a couple of parts (called ‘elements’ in by judges and lawyers), which are needed to prove a crime occurred. The idea behind breaking crimes down into multiple parts is to rule out people whose conduct shouldn’t be punished--- for example bumping into someone while you’re slipping down an icy sidewalk should not be a criminal act, so the law requires a harmful touching was intended by the an accused person in order to even preliminarily charge them with the crime of assault and battery.
The crime of Receiving a Stolen Motor Vehicle has three of these parts: 1 that the accused person received or possessed a motor vehicle, 2 that the vehicle had been stolen, and 3 that the accused person knew or believed it had been stolen. No one was arguing that vehicle was not stolen and the SJC found that there wasn’t much merit to the notion that Mr. Pridgett did not possess the motor vehicle. The question became what police had observed that lead them to reasonably believe Mr. Pridgett knew he had a stolen vehicle by the time they arrested him.
The question of what’s going on in someone’s mind is a tricky one. Sometimes people verbally announce their thinking but as I sit in my office and decide to get another cup of coffee while writing this article, I don’t say “I’m going to stand up to get coffee” out loud before I get up to do so. The world would be much louder if people announced their every intention. The law allows people--- police officers investigating crimes and jurors or judges deciding the final question of guilt or innocence--- to make reasonable inferences (beliefs or conclusions) from what is observable to determine what someone knows or wants to do. This makes sense. When I stand up and walk to the coffee machine I’m probably not looking for a sandwich… I’m looking for a cup of coffee!
Mr. Pridgett was observed by police to be leaning on and sitting in the motor vehicle before his arrest. The police knew that the vehicle was stolen because they ran the plates. Was it reasonable to believe that Mr. Pridgett, by virtue of having access to the car and being around the car, knew it was a stolen vehicle? The Supreme Judicial Court said “No”.
The Prosecutor argued that the property was recently stolen. A person in possession of recently stolen property can be reasonably suspected of knowing the property is stolen. Commonwealth v. Burns, 388 Mass. 178 (1983). They said that, because the original license plates were still attached to the vehicle, it was probably recently stolen and changing the license plates is a trick utilized by car thieves to avoid detection while they transport the vehicle. The Prosecutor’s argument was a clever attempt to save a flawed police investigation, but an argument that didn’t have a factual basis.
The only testimony the SJC could consider in this case was what one police officer said at the Motion to Suppress. He provided the facts we’ve already discussed: Mr. Pridgett being near/in the car, the fact that the car was certainly stolen and that he knew that because he ran the plates… however the officer provided no information about WHEN the car was stolen, and therefore the SJC declined to say that a car which still had the original plates on was certainly recently stolen, instead essentially telling the Prosecutor that proving the vehicle was recently stolen, and therefore that Mr. Pridgett knew it was stolen, required more specific information about when the case was stolen. It's worth mentioning that often times, in defending a criminal case, less is more. Had Mr. Pridgett and his attorney decided to call a witness, or ask too many or the wrong questions to the officer that did testify, they may very well have given the Prosecutor the facts the Prosecutor needed to "fix" their case. Instead, the record just didn't have enough facts to fill in the gaps at the appeallate level.
Now back to Mr. Pridgett talking to the police following his arrest. Mr. Pridgett was detained for three months while his attorney tried to prepare for trial and the Motion to Suppress. Looking at how it all turned out, it may be difficult to see why he was jailed. Essentially, the police never had sufficient information to arrest him in the first place and he therefore shouldn’t have even been accused of a crime.
It’s impossible to tell exactly why a judge decided to incarcerate (jail) Mr. Pridgett prior to trial. One thing that didn’t help Mr. Pridgett securing his pre-trial freedom— freedom which would allow him to fight his case from outside a jail cell, where he could go about his life, prevent potential loss of housing or employment, and help his attorney investigate his case— was the fact that Mr. Pridgett gave the police officer the facts he needed to prove that the officer’s guess was right. After his arrest, Mr. Pridgett told police knew the car was stolen.
As tempting as it can be to try and fix a situation in the moment, talking to police officers who suspect a person of a crime is never advisable. If police are asking a person questions, it is likely that they suspect that person of a crime. A person should invoke their right to remain silent and to speak to an attorney by saying, “I want to speak to a lawyer”. Sometimes police will continue to ask questions, and at that point the previous statement controls: that person wants to speak to an attorney and will not answer questions.
The full text of Commonwealth v. Pridgett is available here.
Tags: Recieving Stolent Property, Recieving a Stolent Motor Vehicle, Arrest, 5th Amendment, Right to Remain Silent.
February 10th, 2019
Massachusetts defense attorneys have been waiting for years for a tidal wave of cases alleging Operating under the Influence of Marijuana; that wave hasn’t arrived yet. In January, the Supreme Judicial Court, the Court, published Commonwealth v. Mark Davis, SJC No. 12484 (January 14th, 2019), which is significant to Massachusetts drivers.
Testimony at the motion to suppress, the most significant part of the proceedings in this case for purposes of the Court’s decision, established the following facts:
Mr. Davis was pulled over for speeding and tailgating by a State Trooper on a summer afternoon in the Boston Metro. The Trooper approached the vehicle and observed Mr. Davis and his two passengers to have some of the classic signs of marijuana use: red eyes, trouble staying awake, and eyelids drooping during conversation. All three people told the officers they had smoked marijuana earlier that day. The Trooper smelled both burnt and unburnt marijuana coming from the car when he made his initial contact with Mr. Davis, the driver. The Court found, upholding prior decisions, that the Trooper could use observations of driving, the driver’s appearance, the odor of intoxicants in making the decision to arrest Mr. Davis for Operating under the Influence of Marijuana.
The interesting portion of the decision was the Court’s analysis of the search of the car. After Mr. Davis was arrested for the OUI, troopers searched the vehicle and what they found netted Mr. Davis additional charges for a handgun, ammunition, and marijuana found in the trunk and cocaine and oxycodone found in the locked glove compartment. The question was whether police had a legal basis to conduct the searches that yielded this evidence.
The Court rejected the reasoning put forward by the commonwealth-- the search was conducted for administrative reasons as opposed to find further evidence of a crime-- and adopted by the trial judge. Instead, the Court went forward with a much more dangerous approach: the Trooper had observed enough information (probable cause in this case) to both arrest Mr. Davis for the crime of OUI Marijuana and to search the entire passenger compartment of the vehicle, including the locked glove compartment, for evidence of the crime of OUI Marijuana.
“We conclude that the officers had adequate grounds to secure the vehicle and thereafter promptly to search the glove compartment for evidence related to the offense of operating the vehicle while under the influence of marijuana.” Commonwealth v. Davis, Supreme Judicial Court, No. 12484, slip op. at 21 (January 14th, 2019). The Court relied on the facts discussed above, as well as the Trooper’s observation of loose pot leaves on the back seat after the passengers left the vehicle.
This case would have been very different without Mr. Davis’, and his passengers’, admission to smoking marijuana earlier that same day. Any person, including people driving cars, has a right to remain silent. If Mr. Davis had simply decided that he wasn’t going to provide the Trooper with ironclad information to support the Trooper’s suspicion, he may have been spared a trial because a judge may have determined that there was not enough information to arrest him or to search his vehicle. The Trooper testified that Mr. Davis was driving very quickly and close to other cars. He also acknowledged that Mr. Davis didn’t drive in multiple lanes or over the solid yellow line, in other words that his driving didn’t seem to be impaired.
The court, in this decision, acknowledged the ambiguity and vagueness that surround the traditional signs of marijuana intoxication. Field Sobriety Tests administered to detect the affects of Alcohol on drivers are accepted by our court system as imperfect tools with some scientific validity. The things police officers look for to determine signs of Marijuana intoxication more closely resemble folkways or stereotypes than science.
This field of law is new and rapidly developing, using your right to remain silent can keep your name out of the next case that helps define the law. A person stopped by police has a right to remain silent and the right to consult with an attorney to help them protect their right to remain silent. It’s natural to want to explain a situation to a police officer in an attempt fix potential problems, but the officer’s job while investigating a crime is to see guilt where innocence may exist, not to view the facts favorably to someone he suspects of criminal activity.
The full text of this ruling is available here.
Tags: DUI, OUI, Operating Under the Influence, Marijuana, Intoxication, Admissions, Inventory Search, Motor Vehicle Search.