Massachusetts Legal Developments Blog

Massachusetts Legal Developments Blog

What You Should Know About Massachusetts’ Wiretap Law

In August of 2018, significant attention was paid in the news to allegations that President Trump’s attorney, Michael Cohen, had secretly recorded a conversation between the two regarding Stormy Daniels. President Trump appeared surprised when he learned that Cohen had recorded this conversation. 

Due to New York’s wiretap laws, attorney Cohen’s decision to record this conversation was likely not illegal. If this case had occurred in Massachusetts, however, Cohen would have been in violation of the state’s wiretap laws.

Because this body of laws involves an important and complicated area of criminal law, it is important to understand some important details about Massachusetts’ wiretap law. If you are charged with one of these offenses, it is wise to quickly obtain the assistance of a skilled criminal defense lawyer.

What is Prohibited Under the State’s Wiretap Law?

There are several types of behavior that are strictly prohibited under Massachusetts’ wiretap law, which include:

  • Secretly listening to or recording

  • Any oral communication

  • With an interceptive device

  • Without authorization by all parties

In accordance with Massachusetts law, recording a person is still illegal even if the speaker does not have an expectation of privacy and is aware that other people might overhear the conversation. It is also important to understand that “recording” someone can include intercepting text messages by viewing and transcribing them to be used at a later date. 

It is also critical to point out that this law only applies if the recording is done in secret, which means that if a person has actual knowledge that the conversation in question is being recorded or there is evidence that the person knew he or she was being recorded but continued speaking, then the recording is not done in secret.

Exceptions to the Wire Tap Act

There are several important exceptions to situations in which the Massachusett’s wire tap act is applied. Some of the exceptions include:

  • Agents of communications carriers who work at facilities that use the transmission of wire communications

  • Financial institutions that record phone calls with institutional trading partners as part of the ordinary course of business

  • Law enforcement officers who obtain warrants to secretly record a conversation

There is currently an ongoing debate about the legality of violating the wiretap law to record conversations a person has with law enforcement officers. It currently remains uncertain, however, exactly how these issues will resolve.

Penalties Associated with the Wiretap Act 

The offense of willfully intercepting a person’s communication is classified in the state of Massachusetts as a felony. A person convicted under this body of law faces a maximum of two and a half years in the house of corrections or five years in a state prison.

A person whose rights are violated under this act is also able to initiate a civil suit to recover actual damages, punitive damages which are designed to punish the person who violated the law, and legal fees.

Contact a Skilled Criminal Defense Lawyer

If you are charged with a violation of the Massachusetts wiretap act or any other type of criminal act in the state of Massachusetts, you should not hesitate to obtain the assistance of a skilled criminal defense attorney. Contact attorney Edward Molari today to begin taking steps to make sure that your criminal case resolves in the best possible manner.

Massachusetts Governor Signs Red Flag Law

In July 2018, Massachusetts’ Governor Baker signed a law that allows courts to order firearms as well as other weapons to be taken away from a person who poses a risk of causing bodily injury to him or herself or any other person. This new law has been referred to as the “red flag” bill and is one of numerous laws that have been passed following the recent rash of school shootings. 

The Reasoning Behind the Red Flag Bill

Law enforcement in Massachusetts already has the discretion to decide whether to suspend or revoke a person’s firearm license if it believes that the individual is likely to engage in violence. These powers held by law enforcement were limited, however, in that they were not designed to revoke ownership of a firearm or any other type of weapon quickly.

This new law was created to make it easier to remove firearms when there is an indication that a person is in crisis or has the potential to engage in violence.

The Process Created by the Red Flag Bill

Under this new law, a petition for an “extreme risk protection order” is filed by a family or household member or by law enforcement in the district court or Boston Municipal Court that covers the municipality in which the firearm owner lives. This petition must state why the person filing it believes that the individual in question is likely to harm someone. Courts are granted broad discretion under this new law to determine whether a person presents a risk of harm at any time.

If the court determines that such a risk exists, it can order the respondent to hand in the firearm or weapon for a period of time of up to one year. While courts are able to respond in emergencies, many times a hearing will be scheduled within 10 days to contest the petition. If the court grants an order, it must give both the petitioner and the respondent details about crisis intervention, mental health, and substance abuse treatment.

The Standard Applied in Red Flag Cases 

While these orders refer to “extreme risk,” the standard that courts must apply is whether a risk exists of causing bodily harm, which means that responsible gun owners in some situations can end up having their firearms taken away. For this reason, firearm owners in Massachusetts are likely to challenge this law due to the amount of discretion that it gives the government.

The Helpful Element of the New Law

Under the new Red Flag law, a person is able to seek orders based on concerns for another person and the desire to obtain help for this individual. The new law also gives individuals who are engaged in dangerous situations the ability to work toward defusing conditions that could eventually lead to violence.

Contact a Skilled Criminal Defense Lawyer

If you or a loved one has been subject to the Red Flag law or any other body of criminal code in Massachusetts, you should not hesitate to contact attorney Edward Molari today for assistance.

California Eliminates Cash Bail; Boston to Follow

Bail

California has now become the first state to pass legislation aimed at eliminating the cash bail system. According to the reporting, instead of fixing a monetary amount of bail, the court will use a scoring system to determine the person's likelihood of appearing in court, and the seriousness of the alleged crime. People who are deemed too dangerous to be released would be held in custody, and people who need incentives to appear would be released on conditions including things like GPS monitoring.

Of course, not everyone is happy about the legislation. David Quintana, a lobbyist for the California Bail Agents Association is quoted as saying “You don’t eliminate an industry and expect those people to go down quietly,” “Every single weapon in our arsenal will be fired.” If they decide to pick a test case and put up a fight, the association might find support in the fact that the eighth amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed.” Where pretrial detention without bail is explicitly provided for in the statute, and amounts in some ways to “excessive bail,” they might just have an argument. More interestingly still, the bail provision of the constitution is one of the last provisions that has not been explicitly applied to the states. The Supreme Court has only recently gotten around to addressing the second amendment's application to the states, and the law on determining how to make that decision has been called into question by the conservative wing of the Court.

Meanwhile, in Massachusetts, the race for District Attorney in Suffolk County (ie. Boston) has been heating up. Primaries are coming up for election to a seat left vacant after Dan Conley announced he would not run again. Most of the candidates support eliminating cash bail, and may look to California as test-run. Massachusetts currently has many of the mechanisms in place to effectively eliminate cash bail -- including a system of pretrial detention where a person is found to be too dangerous to release, and the Brangan v. Commonwealth case decided in 2017 holding that where judges set a bail that the defendant cannot post the judge must state his or her reasons for doing so on the record.  Massachusetts also has no bail bondsmen because when bail is set in Massachusetts it is set in a cash amount and a bond amount which is 10x the cash amount, making the use of a bondsman redundant. Interestingly, Suffolk County under Dan Conley has been much more judicious in its use of the dangerousness statute, but that may change under the next administration if expanding its use is necessary to offset the elimination of cash bail as a means of detention. Governor Baker has voiced support for expanding the use of dangerousness hearings and suggested that legislation to that effect would be forthcoming.

A leader in the field for whom I have enormous personal respect is Shannon McAuliffe. Shannon ran the ROCA program, which targets people known to engage in violent conduct, and tries to provide job training and support services to give those people a way out of the life.  I personally watched her work tirelessly. Her leadership in the DA's office would set an example for a progressive and smart approach to prosecution and crime reduction, which is why she has been endorsed by (among many others) Suffolk County Sheriff Steve Tompkins.

Whoever wins the primary will face off against Michael Maloney -- who is running as an independent -- and who is also a good friend of mine, and who currently works (as I do) in criminal defense.

Boston Police Arrest 29 People in Operation Nor'Easter

Operation Nor'Easter  - Gun and Drug Arrests

The Boston Globe is reporting that 29 people -- including one Boston city employee -- have been arrested and are facing state and federal charges relating to a drug and gun trafficking investigation. Three of the individuals involved have already been indicted by a grand jury. The press release, put out by the Suffolk County District Attorney's Office states that the three targets of the investigation are charged with distribution of heroin and distribution of firearms, and are all three charged as habitual offenders.

Under the habitual offender statute, if the defendant has been convicted and sentenced to state prison for not less than three years for two separate offenses in the past, upon a third conviction the defendant cannot be sentenced to less than the maximum state prison sentence provided by law.

Dana Brown and Vito Gray are charged with distribution of a class A substance -- carrying a maximum of 10 years. They allegedly sold 20 and 26 grams of heroin to undercover officers. Since the lowest threshold for trafficking heroin is 18 grams, it is fair to infer that the sales total weight was sold over the course of several transactions (unlike federal court, prosecutions in Massachusetts do not aggregate the weight of all alleged sales). 

According to the press release, Terrell Walker is charged with unlawful sale and possession of a firearm. Unlawful sale of a firearm carries a maximum of 10 years, and unlawful possession carries only 2 years, unless the possession occurred not at home or work (ie. “carrying a firearm”) in which case the maximum is 5 years. Second, third, and fourth offense offenses for carrying a firearm have higher maximum sentences, but the press release does not say that Walker is charged with carrying, nor does it say that the charge is a subsequent offense.

In fact, the press release says that although Walker was previously convicted of murder in the shooting death of a Boston Police Detective, it also says that conviction was overturned on appeal. The press release does say that all three defendants have prior convictions for violent offenses such as robbery, which could possibly subject them to higher maximum sentences and mandatory minimums under the Armed Career Criminal (also known as ACC or 10G) statute, but I have never met a judge or prosecutor who believes it is legal to apply the habitual offender enhancement to an armed career criminal sentencing enhancement, so even though they may face sentences as high as 15 to 20 years, the most those charges could add is 5 years to the 10 year minimum they face as habitual offenders charged with distribution of heroin. 

Make no mistake, 10 or 15 years is a lot of time, but these are prosecutions that the state clearly put a lot of time and effort into. They went as far as to invoke the habitual offender statute. It is remarkable, therefore, that it looks like the real exposure for these defendants is not higher. Meanwhile, the Commonwealth has yet to prove their guilt in court, they are presumed innocent.

The Supreme Court Issues New Ruling on Parked Cars and Warrants

There are some important rules that motor vehicle operators must remember regarding the powers that law enforcement has when it comes to searching motor vehicles.

For many years, it has been established law that law enforcement must have a legitimate reason to stop a driver. In June 2018, the United States Supreme Court ruled that protections offered by the Constitution require law enforcement to obtain a search warrant before searching a parked car. This ruling stands in significant contrast to other laws that do not require a permit for law enforcement to closely examine motor vehicles that are parked on public roads.

No matter the exact situation regarding a person’s motor vehicle, it is a wise idea to contact an experienced criminal defense attorney if you have any questions regarding how Massachusetts law applies to protections created by the Fourth Amendment.

The Automobile Exception to the Fourth Amendment

The “automobile exception” to the Fourth Amendment states that in any situation in which law enforcement has probable cause to think that a motor vehicle contains evidence of a crime or any tools used to commit a crime, law enforcement is able to search a vehicle as well as any containers withi it that might contain the items in question.

It is also critical to remember that if the search of an automobile is valid, law enforcement is permitted to tow a vehicle and search it at a later date.

Due to these laws, law enforcement in Massachusetts has been able to justify motor vehicle searches in a number of situations.

The Details of This Case

The case in question arose from a man in Virginia who was convicted of stealing a motorcycle. After conducting a search for an orange and black motorcycle, law enforcement found a similarly-colored motorcycle on Facebook and tracked the vehicle to a private residence. Law enforcement entered the residence in question, lifted the tarp covering the vehicle, and took several photographs.

After the man was arrested, he claimed that the search in question was unconstitutional due to the automobile exception of the Fourth Amendment. The man later appealed his case all the way to the United States Supreme Court.

The Rationale Behind the Court’s Decision

In support of the court’s decision, the Supreme Court cited the long-established rule that law enforcement intrudes on the rights of individuals by entering private property and examining a house without looking for evidence.

The rights that are violated in these situations are those granted by the Fourth Amendment, which protects against unreasonable searches and seizures and extends to situations involving a person’s home and private property.

In reaching its decision, the Supreme Court also cited a 2013 ruling that held that law enforcement is prohibited from bringing a drug-sniffing canine onto a front porch without first obtaining a search warrant.

Speak with an Experienced Criminal Defense Attorney

This case involves one of the more complicated decisions involving the Fourth Amendment. While it is important to remember that protections offered by the Constitution now extend to parked motor vehicles, it is still critical to maintain a level of caution regarding how privacy laws apply to automobiles.

If you are charged with any type of criminal offense, you should not hesitate to speak with an experienced criminal defense attorney. Contact attorney Edward Molari today to schedule a free case evaluation.

Know Your Massachusetts Firearm Charges

Most people are familiar with the Second Amendment to the United States, which guarantees each individual the right to possess firearms. While the Constitution grants individuals some definite rights regarding firearms, the extent of these laws is not absolute. Instead, each state has the ability to pass laws that regulate and restrict the use of firearms.

If you or a loved one is charged with a firearm violation in Massachusetts, contact an experienced criminal defense attorney who can make sure that your case resolves in the best possible manner. It also helps to understand various firearm laws, which is why this article will review the most common firearm offenses in Massachusetts with which a person can be charged.

Illegally Carrying Firearms

Law in Massachusetts prohibits a person from illegally and knowingly possessing a firearm under certain circumstances. It does not matter whether the firearm is loaded or unloaded. These circumstances include if a person is present in a place of business, lacks a required firearm license, or possesses an illegal weapon.

Being charged with carrying a firearm in these situations can result in a person facing a mandatory sentence of at least 18 months in prison. Given these very strict laws, it is critical that a person who wants to carry a firearm under any circumstances, first makes sure that doing so is not against the law. It is also important if you charged with carrying an illegal firearm to immediately contact a seasoned criminal defense lawyer.

Possession of an Unlicensed Firearm

Massachusetts prohibits a person from possessing a firearm without a license or permit even if the individual only possesses the weapon at home or work.

Violations of these laws can result in a person facing up to two years in prison. As a result, you should make sure to perform adequate research about firearm laws before possessing one, which might include speaking with a seasoned criminal defense attorney.

Illegally Discharging a Firearm

It is important for individuals in Massachusetts to remember that it is illegal to discharge a firearm within 500 feet of any dwelling without first obtaining the permission of the dwelling’s owner.

While this might seem like a small offense, the illegal discharge of a weapon can result in a person facing up to three months in prison. Given the seriousness of these laws, it is important to properly screen an area before discharging a firearm. If you are charged with violating the law in this way, you should not hesitate to speak with a seasoned defense lawyer.  

Carrying a Loaded Firearm While Intoxicated

It is against the law in Massachusetts for a person to carry a loaded firearm on their body or in a vehicle while under the influence of alcohol or drugs.

A penalty of this nature can result in a person facing up to two and a half years in prison in addition to a $5,000 fine. For this reason, it is important to avoid carrying a loaded firearm while under the influence of alcohol or drugs.

Speak with a Seasoned Criminal Defense Attorney

A conviction involving a firearm offense can result in a person facing particularly serious penalties, including large fines and jailtime.

Fortunately, Attorney Edward Molari has significant experience helping individuals create a strong defense against a variety of firearm charges. If you are charged with a firearm-related offense, do not hesitate to contact our law office today for a free case evaluation.

Understanding Vehicular Manslaughter Charges

It is critical to exercise the utmost caution while driving a vehicle. Despite this, each year numerous people are killed due to drivers who operate vehicles in an excessively dangerous manner. Driving a vehicle in a negligent or reckless way can result in serious charges that can significantly disrupt a person’s life.

Individuals who are facing these charges often find it critical to obtain the assistance of a skilled criminal defense attorney who can make sure that they have a strong legal defense. It is also critical to understand that not all vehicular homicide cases are the same, and the charges a person faces will be influenced by what type of offense a person commits.

Misdemeanor Vehicular Homicide

While people are used to associating the word “misdemeanor” with less serious crimes, a cnonviction for misdemeanor for vehicular homicide in Massachusetts can still result in significant penalties.

A person who is convicted of misdemeanor vehicular homicide can end up facing a minimum of 30 days in jail as well as a potential $3,000 in fines and a 15-year loss of license. For this reason, individuals who face even misdemeanor charges associated with vehicular manslaughter should not hesitate to obtain the assistance of an experienced criminal defense attorney.

Vehicular Homicide Involving Alcohol or Drugs

A person who kills another individual while driving under the influence of alcohol can end up facing vehicular homicide charges.

If a motorist was intoxicated and driving recklessly at the time that a person was killed, that motorist can end up facing felony charges that result in jail time, steep fines, and a minimum license suspension of 15 years.

Because convictions associated with this offense require the prosecution to establish that a person was traveling above the legal limit, a skilled criminal defense attorney is often able to help attack these charges in a number of ways.

Vehicular Manslaughter

Some individuals who kill others while driving under the influence of alcohol or drugs can also end up facing a charge of vehicular manslaughter. This charge is similar to vehicular homicide but involves alcohol or drugs and results in more severe penalties.

A person who is convicted of vehicular manslaughter can end up facing a maximum of 20 years in prison and fines of up to $25,000. Given the serious nature of these charges, people who are charged with vehicular manslaughter should not hesitate to obtain the assistance of a seasoned criminal defense lawyer.

Speak with an Experienced Criminal Defense Lawyer

Killing another person with your vehicle can not only be traumatic, it can result in some particularly severe consequences. As a result, if you or a loved one has been charged with vehicular homicide, it is a wise idea to contact an experienced criminal attorney Edward Molari. Contact attorney Molari today to schedule a free case evaluation.

Mashpee Police Investigating Officer Involvement in Fatal Cotuit crash

According to the article in the Cape Cod Times, a high speed chase being pursued by a Mashpee Police Officer resulted in a horrible crash and the death of at least two person, and life threatening injury to another.

Rescuers were called at 12:14 a.m. Saturday to 4782 Falmouth Road, near the intersection of Route 130, to find three people involved in the crash, Barnstable Police Sgt. Jason Laber said.

A Toyota sedan was on fire and split in two with both occupants ejected from the vehicle, according to a statement from Cotuit Fire, Rescue and Emergency Services.

When the officer in purusit was asked for the reason for the high speed chase, he cited "erratic operation, speeding, marked lanes, [and] multiple stop sign violations."

An analysis of the turret tape recording in this case provides reason to believe that the officer involved in the chase is one of the officers involved in a case of mine from 2016 in the Falmouth District Court. That case resulted in the independent investigation of the officer for excessive use of force, and verdicts of not guilty against the indivudual he claimed had assulted him. 

The parties involved cotinue to litigate a claim for damages.

If it is true that this horrible incident involves the same officer, it raises further and grave concerns about his judgement and regard for the safety of those he is employed to serve.

“We are in the early stages of what is going to be a comprehensive and thorough investigation into our involvement of the facts and circumstances leading up to this terrible tragedy,” Mashpee Police Chief Scott Carline said in a release. “Our heartfelt condolences go out to the victims and their families at this time.”

Norfolk County Negligent Motor Vehicle Homicide Case

Two people have been indicted in relation with an accident that killed two young pedestirans who were crossing the road.  The Boston Globe article reports that the indictments include motor vehicle homicide, aggravated assault and battery with a dangerous weapon, manslaughter, negligent motor vehicle homicide.

Negligent motor vehicle homicide cases are tough because they are essentially nothing more than a negligent operation of a motor vehicle case gone horribly wrong.  There are very few times when someone can go to jail simply for being negligent -- which means failing to exercise the care that a reasonable peson would. Most criminal statutes require "mens rea" or a criminal intent, but negligent motor vehicle homicide is an exception.  Even worse for the defendant in such cases, the fact that the person driving the other car might also have been negligent is not a defense.  Meanwhile, as is the case here, everyone's first thought is with the families who have lost a loved one in the tragedy.

These are difficult cases. They have to be defended carefully and require a lot of attention. The jury has to see who the defendant is, and be persuaded not to jump to the conclusion that just because someone died, and there is someone else sitting in the defendant's chair, that the right thing is to find that person guilty.

Haymarket Drug Arrest by Boston Drug Control Unit

On July 21st, Boston Police Drug Control Unit arrested an employee of the famous open-air Haymarket for using the market as cover for illicit drug sales.  According to the media reports, police observed the defendant make a drug sale behind a dumpste.  The Officers followed him to Haymarket and saw him enter a produce tent where he appeared to be employed. "About an hour later, police allegedly saw another customer do an apparent drug deal with [the defendant] next to the tent."  The officers then arrested the defendant and found "43 bags of heroin weighing approximately 20 grams along with 14 bags of cocaine and $638 in U.S. currency."

Police are only allowed to arrest a person when they have developed "probable cause."  Probable cause is that amount of evidence that would lead a reasonably prudent person to believe that a crime has occurred.  Cases like this one -- where police make an arrest based on nothing more than observing hand to hand transactions -- are dealt with in court by analyzing what the courts call the 'silent movie.'  Basically, the court looks at each movement the officer observed and determines whether, when they are all put together, there is probable cause to arrest.

Usually, the problem for the officers is that they have no way of saying what was being exchanged.  That is, even if the officers can be credited with having seen a hand-to-hand transaction, there is no way for them to say they saw whether it was for a bag of white powder, or a phone, or fresh fruit (for instance). 

If the court finds that the police officer's observations are equally consistent with innocent activity, the arrest is thrown out, along with all the evidence that came from it. In this case, that would mean the heroin and cocaine found on the defendant would be excluded from evidence, and the case would have to be dismissed.

He could also get the $638 back.

Call now for a free confidential consultation if you, or anyone you know, needs the help of an experienced criminal defense attorney.

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