Massachusetts Legal Developments Blog

Massachusetts Legal Developments Blog

Search and Seizure in the Digital Era: Warrantless Searches for Electronic Communication?

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.

Supreme Court Holds Warrant Required for DUI/OUI Blood Draw

In Missouri v. McNeely, decided on April 17th, 2013, the Supreme Court held that the police cannot force someone to give a sample of their blood during the investigation of a DUI/OUI operaing under the influence case without attempting to get a warrant, or explaining to the court why it would not have been possible to do so. 

The ordinary legal rule about searches and seizures is that the police need a warrant for any search or seizure, except where an exception to that rule applies.  For example, there are exceptions for cases where the police have a high degree of suspicion and where the only thing they are searching is a car (the 'automobile exception').  In this case, police cited the exception for cases where, if the police were required to get a warrant they could not respond in time to save the evidence they are seeking to obtain (the 'exigent circumstances exception.'). 

The argument the police made was that, if they had to take the time to get a warrant in cases where someone was arrested for driving under the influence, the time it would take them to get the warrant would allow the alcohol in that person's blood to dissipate.  What the police were asking for was a rule that in every drunk driving case, they could draw the person's blood without having to get a warrant, because every drunk driving case posed the sort of 'exigent circumstances' that justified the exception.

The Supreme Court, in an opinion written by Justice Sotomayor, held that a generalized rule to govern the whole country in every DUI/OUI case was inappropriate. Instead, in each case where the police obtain a person's blood without consent, the state will have to demonstrate that it was impractical to get a warrant.  It based this decision on the observations that blood alcohol dissipates at a relatively predictable rate, and given that police will have to transport the suspect to a medical facility, some delay is inevitable.

If you or someone you know has been charged with Operating Under the Influence (OUI) in Massachusetts, please contact my office immediately for a free and confidential consultation.

Faint Odors and Social Sharing: Recent Developments in Massachusetts’ Marijuana Laws regarding Search and Seizure and Criminal Distribution

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.

Massachusetts to Strengthen Gun Control Laws in the Wake of the Sandy Hook Tragedy?

Earlier this month, neighboring state Connecticut passed landmark legislation strengthening its firearms laws in response to the devastating shooting that took place at Sandy Hook Elementary School last year. According to the New York Post, the legislation would, among other things, create a dangerous weapon offender registry, ban over 100 firearms under the state’s assault weapons ban, mandate background checks for all firearms sales and establish rules for purchasing ammunition. The legislation passed 26-10 in the Connecticut state Senate and 105-44 in the House of Representatives. Connecticut Governor Dannel Malloy is scheduled to sign the bill into law this Thursday at the state Capitol. The legislation would place Connecticut among the states with the strictest gun control laws, including New Jersey, New York, California and Massachusetts.

Connecticut, however, is not the only state in which lawmakers have pledged to strengthen firearms laws in response to recent gun crimes. Massachusetts Governor Deval Patrick also introduced legislation this Session that aims to further strengthen Massachusetts’ already comparatively restrictive gun control laws.  H 47 would further tighten Massachusetts’ gun control laws that were last significantly strengthened in 1998. The current Bill includes measures that would:

  • Limit firearm purchases to one per month per buyer;
  • Prevent the furnishing of a machine gun to anyone under 21 years of age;
  • Bring Massachusetts into compliance with the NICS background check system, specifically by requiring that all mental health adjudications be provided to the state, which will be provided to the US Attorney General for firearms licensing purposes;
  • Create four new gun related crimes: assault and battery by means of a firearm, assault by means of a firearm, being a felon in possession of a firearm and commission of a violent misdemeanor while in possession of a weapon;
  • Require firearms dealers at gun shows to connect to the Massachusetts Instant Record Check System, and require that private gun sales be made at the business of a licensed dealer for electronic tracking purposes;
  • Allow a rebuttable presumption that an individual charged with a felony involving a firearm and physical force is “dangerous” for determining pretrial detention; and
  • Limit access to rounds of high-capacity ammunition.

H 47 is currently before the Joint Committee on Public Safety and Homeland Security.  Additionally, according to the Governor’s website, Patrick also introduced legislation that would increase the state budget by $5 million dollars for Department of Health programs for public awareness of mental health treatment and the promotion of public safety.

Whether H 47 will pass the House and the Senate is not certain. It is, however, important to stay mindful of changes in the law as they develop. Common gun crimes that occur in Massachusetts currently relate to carrying firearms, improperly storing firearms, and possessing firearms without an FID card, but this list is subject to change. These crimes can carry serious penalties, such as severe fines and jail time.  If you have been charged with a firearm-related crime, seek out an attorney immediately.

Breaking Glass Pictures v. Swarm Sharing Hash File

Looks like someone has not been paying attention.  Just as the last of the remaining Massachusetts bittorrent cases are in the process of being severed and dismissed, Alexandra Capachietti has filed three new cases against a total of 84 individual John Does.  The cases filed are:

 1:13-cv-10732-JLT - Complaint
 1:13-cv-10734-RGS - Complaint
 1:13-cv-10733-MBB - Complaint

Each case alleges that various John Doe defendants downloaded a film titled Six Degrees of Hell, a remarkably poorly rated horror film.

Although the complaint takes pains to point out that, unlike other similar cases, the film involved in this case is not a pornographic film (a fact disclosed in the complaint in bold, capital lettering), that fact does not address the concerns that has led the judges in Massacusetts to conclude that joinder in cases such as these is inappropriate. 

The fact that other such cases have involved pornographic material was just one of several concerns for the judges who have been busy dismissing these cases from their dockets.  The primary concern, and conclusion reached after no small amount of soul searching ont the part of the courts, has been that a transaction identified by an IP address simply does not sufficiently identify a person with enough certainty to justify filing a case. 

Whether the film at issue is pornographic or not, I would expect these three cases to meet the same end as those that came before, but only time will tell.

If you have been contacted by your ISP, or anyone else, regarding one of the three above matters, contact an attorney immediately to discuss filing a motion to quash the subpoena.

Massachusetts Courts Stand Up To Trolls

The last few weeks have seen a huge change in the trajectory of copyright trolling cases in Massachusetts.  First, Judge Sorkin issued an order quashing the subpoenas issued in a Discount Videos case filed by Marvin Cable.  Then, Judge Young seemingly reversed his support for copyright trolling cases, and issued an order exercising the discretion of the court to sever and dismiss the charges against all the John Does except the first one in one of the earliest copyright trolling cases filed in this jurisdiction.

In the following weeks, three more cases have been effectively dismissed after motions to quash were allowed.  It now appears that there are at least three judges and/or magistrates who appear prepared to exercise the discretion of the court to shut down these cases.

The best news by far, however, is that Judge Sorkin has now denied a motion for early discovery.  In doing so, Judge Sorkin was unrestrained in his opinion of the merits of these lawsuits:

The discovery they seek cannot provide the Plaintiffs with sufficient information to identify the Doe Defendants. Nor have the Plaintiffs requested leave in their submissions to take depositions, either orally or upon written questions – the only discovery mechanism available to Plaintiff under the Federal Rules of Civil Procedure when seeking information from third parties, as is the case here. In light of the Plaintiffs’ counsel’s assertion at the July 30, 2012 hearing that it was prepared to take depositions (see, 12- cv-10805-NMG, Docket # 23 at 48) and in light of his concession that depositions were the only available discovery mechanism (id. at 47), the omission of any written request for depositions in the Plaintiffs’ renewed motions for discovery speaks volumes about the Plaintiffs’ lack of interest in actually litigating these cases.

Judge Sorkin went on to state that the Plaintiffs' assertions "smack of bad faith" and its conduct "suggests an improper effort to engage in judge shopping and evidences a disregard for the Court’s limited public resources."

The message is clear - copyright trolling in Massachusetts is living on borrowed time.

Judge Searns Orders Plaintiffs to Explain Joinder

On Septebmer 21st, New Sensations v. Does 1-201, 12-cv-11720, a judge in the District of Massachusetts has ordered the plaintiffs in these peer-to-peer cases to show cause why all the does should not be severed.  What makes this remarkable is that Judge Searns entered the order without any such order being requested by the Does.  This is a strong indication that the court is prepared to revisit the issue of joinder which was allowed in the Liberty Media case (discussed here).

Forcing the plaintiffs to pay an up-front filing fee for each John Doe defendant could spell the end of these peer to peer cases, and if judges are willing to make that sort of order even before the subpoenas go out, the plaintiffs may ultimately conclude that the game just isn't worth the candle.

SBO Pictures, Inc. v. Does 1 - 46, 12-cv-11723

Case Title: SBO Pictures, Inc. v. Does 1 - 46

Docket Number:  12-cv-11723

Court: Massachusetts District Court, Boston

Plaintiff's Attorney: Marvin Cable

Complaint: 12-cv-11723 - Complaint

Complaint Attachments: Exhibit A, Exhibit B, Exhibit C

Content Title: My Personal Message

Content for Sale: (Unknown!)


Marvin Cable has filed a complaint for copyright violation, alleging that 46 John Doe defendants have downloaded a file titled "My Personal Mesage"  The copyright was registered in February of 2012.

As of 09/19/2012, I have been unable to find any web page offering this particular title for sale.

The complaint in this case includes (1) direct infringement, (2) vicarious infringement, (3) Parental liability and (4) contributory liability.

If you, or someone you know, has been contacted regarding this case, contact me immediately to discus your options.

New Sensations, Inc. v. Does 1 - 201, 12-cv-11720

Case Title: New Sensations, Inc. v. Does 1 - 201

Docket Number:  12-cv-11720

Court: Massachusetts District Court, Boston

Plaintiff's Attorney: Marvin Cable

Complaint: 12-cv-11720 - Complaint

Complaint Attachments: Exhibit A, Exhibit B, Exhibit C

Content Title: Dirty Little Schoolgirl Stories #4

Content for Sale: CD Universe


Marvin Cable has filed a complaint for copyright violation, alleging that 201 John Doe defendants have downloaded a file titled "Dirty Little Schoolgirl Stories #4."  The copyright was registered in May of 2012.

As of 09/19/2012, this title sells on CD Universe for $24.29.  This case includes allegations of copyright infringement for the same work listed in New Sensations v. Does 1-175, except that the alleged dates of infringement in this case range from April to May of 2012, whereas New Sensations v. Does 1-175 range from May to August.

The complaint in this case includes (1) direct infringement, (2) vicarious infringement, (3) Parental liability and (4) contributory liability.

If you, or someone you know, has been contacted regarding this case, contact me immediately to discus your options.


On September 21st, in this case, District Judge Richard Stears ordered the plainitffs to show cause why all the Does except Doe number one should not be severed.  You can read the order here.

New Sensations, Inc. v. Does 1 - 175, 12-cv-11721

Case Title: New Sensations, Inc. v. Does 1 - 175

Docket Number:  12cv11721

Court: Massachusetts District Court, Boston

Plaintiff's Attorney: Marvin Cable

Complaint: 12-cv-11721 - Complaint

Complaint Attachments: Exhibit A, Exhibit B, Exhibit C

Content Title: Dirty Little Schoolgirl Stories 4

Content for Sale: CD Universe


Marvin Cable has filed a complaint for copyright violation, alleging that 175 John Doe defendants have downloaded a file titled Dirty Little Schoolgirl Stories 4.  The copyright was registered in May of 2012.

This case includes allegations of copyright infringement for the same work listed in New Sensations v. Does 1-201, except that the alleged dates of infringement in this case range from May through August of 2012, whereas New Sensations v. Does 1-201 range from April to May.

The complaint in this case includes (1) direct infringement, (2) vicarious infringement, (3) Parental liability and (4) contributory liability. 

If you, or someone you know, has been contacted regarding this case, contact me immediately to discus your options.