Massachusetts Legal Developments Blog

Massachusetts Legal Developments Blog

Massachusetts Appellate Court Decides Miranda Warnings Case

Recently, a Massachusetts state appellate court decided Commonwealth v. Cawthrona, a drug trafficking case which involved the question of whether evidence that was seized by law enforcement violated the constitutional rights of the person being charged. More specifically, this case asked the court to decide if the defendant should have received Miranda warnings before being questioned by law enforcement. In the court’s opinion, it was decided that even though the party being was not free to leave at the time the questions were asked, the party was also not in custody, which would requiring the reading of Miranda rights.

How the Case Arose

A law enforcement officer was entering a store when the officer overheard a person on the phone. The officer suspected that the person on the phone was arranging a drug transaction and as a result, the officer began to follow the defendant. Soon after, the party being followed met with another individual and the two traded unknown objects. In response, the law enforcement officer separated these two individuals. While one of the defendants received some version of the Miranda rights, the other defendant was not read the Miranda rights at all. Despite the reading of these rights, both defendants made statements that resulted in incriminating pieces of evidence being discovered in their vehicles.

The Procedural History of the Case

The defendants in this case filed a motion to suppress the incriminating evidence because it was only discovered due to unlawful activity by law enforcement. The trial court partially granted each of these suppression motions, which led to the prosecution’s appeal. The appellate court later reverse this decision and found that neither of the suppression motions should have been granted. Instead, the court found that Miranda Warnings are required as soon as a person is subject to custodial interrogation. The court concluded that the defendants had not been subject to custodial interrogation. However, the court noted that at the time of the interrogation, the defendants were not free to leave.

What are Your Miranda Rights?

The concept of Miranda rights arose in the case of Miranda v. Arizona, which held that law enforcement is required to inform an individual of certain facts after an arrest, which include:

  • The right to remain silent.

  • The knowledge that anything a person says can be used against him or her in a court of law.

  • The knowledge that a person has the right to have an attorney present during any questioning.

  • The knowledge that if a person cannot afford an attorney, legal counsel will be appointed for that person.

These rights arise if a person is in custody or deprived of his or her freedom of action in any significant way.

Contact an Experienced Massachusetts Criminal Defense Lawyer

If you or a loved one faces criminal charges in Massachusetts, it is a wise idea to speak with an experienced attorney who can make sure that your case resolves in a positive manner. Contact Edward R. Molari, Attorney at Law today to schedule an initial free consultation. Attorney Molari has helped numerous individuals navigate the complicated issues that can arise in criminal cases and knows what it takes to provide the strong legal defense strategy that you need.

Marijuana Linked to Increase in Fatal Car Accidents

A recent study suggests that marijuana use may cause fatal car accidents. The study, released by JAMA Internal Medicine, found that there were more fatalities and car accidents on April 20, a “holiday” of sorts for cannabis enthusiasts, compared to the same period of time a week beforehand and a week afterward. This study comes on the heels of a push by legislators and public policy experts to determine the effects of marijuana on driving habits, and consequently, to establish an objective standard for measuring intoxication by the drug.

To measure the effect of marijuana on car accidents, the researchers gathered data on car accidents on April 13, April 20, and April 27. April 20 is widely “celebrated” by marijuana users, and 4:20 PM on that day is traditionally regarded as a time to imbibe on the once-illicit drug. Consequently, researchers looked at the number of car accidents between 4:20 PM and midnight on April 20 and compared the results to the statistics during the same time period a week earlier and a week later.  The researchers compared the data over a 25-year period and in several different locations throughout the country. The results showed a 12 percent increase in fatal accidents between 4:20 PM and midnight on April 20. Further, the increase in car accidents was particularly notable in drivers under the age of 20.

While marijuana is generally regarded as safer than alcohol, its effects on driving are still hazy and most studies show some degree of impairment for drivers on the drug. Drivers under the influence of THC, the active ingredient in marijuana responsible for the “high,” have slower reaction times, are more likely to drive at erratic speeds, and are less likely to remain in their lane. Despite this evidence, driving while high is “surprisingly common” according to the JAMA Internal Medicine Study. Many public policy experts point towards difficulty enforcing driving while impaired laws for marijuana and a general perception that driving while impaired by marijuana is safe as the reason for this problem. Because cannabis remains a Schedule II drug by the federal government, meaning the drug has “no acceptable medicinal use,” the ability to research the drug is severely limited.

Following the trend of other East Coast states, Massachusetts recently legalized marijuana for recreational purposes and is now looking for an objective measurement to issue operating while impaired tickets. The highest court in Massachusetts recently ruled that sobriety tests for alcohol can be offered as evidence of a driver’s impairment by marijuana, but the result of the test will not be dispositive by itself. Until the Commonwealth can locate an objective measurement, it will be the responsibility of juries to weigh all of the evidence and determine whether a driver was operating under the influence. For this reason alone, anyone who has been charged with a marijuana-related crime should discuss legal options with a Massachusetts criminal defense attorney experienced in these types of cases.

Massachusetts Begins Process to Reform Criminal Justice System

Massachusetts began the process of reforming its criminal justice system recently when legislators released a comprehensive criminal justice bill. The bill is a result of a compromise between a six-member conference committee that joined the separate reform bills passed in the House and Senate last year. While the bill still has to pass the House and Senate, it is widely expected to be signed into law in the next few weeks.

The new bill is comprehensive and widespread in its reach. First, the law reduces mandatory minimum sentences for some “low-level” drug offenses, including first and second offenses for possession of cocaine. In contrast, fentanyl and carfentanil, the powerful opioids responsible for many deaths across the country, traffickers will now face a mandatory minimum prison sentence of three and a half years. Individuals possessing (without the intent to distribute) these synthetic opioids will also be subject to enhanced penalties. Previously, a loophole in the state law required 10 grams of pure fentanyl to be present in order for a successful possession conviction, which was problematic because the drug labs were not equipped to run this specific test.

Individuals with low-level crimes committed before the age of 21 will be able to have their convictions expunged and all Massachusetts residents will be able to have their records expunged for crimes no longer considered illegal in the Commonwealth. This will be especially helpful for individuals with marijuana-related convictions in Massachusetts.

Several vulnerable groups also received special attention in the new bill. For children, the age of criminal responsibility will be increased from 7 to 12 and solitary confinement will no longer be allowed for children of any age, a ban that also extends to pregnant women. The new bill will require district attorneys to create pre-arraignment diversion programs for military veterans and Massachusetts residents with mental health or substance abuse issues. A provision will also allow for the compassionate release of terminally ill patients.

The comprehensive criminal justice reform bill also targets bail reform in the state. Going forward, a person accused of a crime in the state will not be imprisoned because of his or her inability to pay court fees or fines. The threshold for felony larceny will increase from a pithy $250 to $12,000. Those operating under the influence in Massachusetts will face new penalties upon receiving their sixth, seventh, eighth, or ninth OUI conviction.

In addition to the reforms in sentencing and criminal law, the bill also includes portions meant to improve prison conditions and reduce recidivism. State Sen. Will Brownsberger, chair of the Senate Judiciary Committee told Boston Magazine, “The agreement we have reached today is about lifting people up instead of locking people up. It is about cutting the chains that hold people down when they are trying to get back on their feet.

The far-reaching bill has received praise from lawmakers and criminal justice reform advocates. Gov. Baker said he is “pleased” that the lawmakers came to an agreement.

Suicides Increase in Massachusetts Prisons

Suicides in prisons have reached a three-year high in 2017, right on the cusp of Massachusetts passing a comprehensive criminal justice reform bill. According to state and county data, there were 14 suicides in Massachusetts jails last year. With the suicide of New England Patriots star Aaron Hernandez last year, there has been an increased scrutiny on the safety of prisoners in the state’s jails.

Jails are typically meant for individuals awaiting crime and individuals convicted of a crime with a sentence less than two and a half years. Overall, there are 13 sheriff-run jails throughout the Commonwealth that house approximately 10,000 inmates each day. According to the Boston Globe, there have been 65 suicides between 2006 and 2017 in Massachusetts jails equaling a rate of approximately 78 suicides per 100,000 inmates. This makes the suicide rate higher than the national average for jails (at 50 suicides per 100,000 inmates) and higher than the rate for Massachusetts prisons (at roughly 30 per 100,000 after a reform effort was implemented in 2007).  Nationwide, there are 13 deaths by suicide for every 100,000 people.

While the fact that jails are more dangerous than prison is relatively unsurprising, the rate of suicides at Massachusetts prisons has decreased in recent years, while the suicide rate for the state’s jails have only increased. Jail inmates are typically straight off the streets and may be struggling with untreated mental health problems or substance abuse issues. For individuals going through withdraws, the confinement of jail can be especially haunting.

Furthermore, there is a distinct lack of mental health treatment for those in Massachusetts jails. Just because of the transient nature of jail populations, it is difficult establishing and implementing a long-term care program for inmates suffering from depression or drug addiction. However, the problem is further compounded by a lack of mental health experts in the state jails. In Hampden County, there are only 10 full-time mental health experts for approximately 1,400 inmates. Bristol County has even fewer doctors on staff with only three mental health experts for roughly 1,350 daily inmates. According to state officials, there is no standardized medical or mental health care in county jails and there is no statewide protocol to screen for potentially suicidal inmates entering the jails.

Discussing suicide prevention methods at his jail, Sherriff Thomas Hodgson, who runs the Bristol County Jail and House Correction, said his facility used suicide-resistant cells, provided tear-resistant clothing to suicidal inmates, and grouped inmates at high-risk of suicide with other inmates or put them on “suicide watch.”

According to prison reform advocates, providing mental health services to inmates is the most effective way to prevent suicide. Advocates also state that mentally ill inmates are less likely to commit suicide when housed with other inmates instead of alone. This largely reflects concerns with the effect of solitary confinement on a person’s mental health. Advocates for mental health and prison reform are increasing pressure on the state government to track the suicides in county jails.

Massachusetts Case Raises Important Lesson About Search Rights


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

How the Case Arose

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

The Procedural History of the Case

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

What to do if Stopped by Law Enforcement

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

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

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

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

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

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

Obtain the Services of a Skilled Criminal Defense Attorney

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



Admissible Evidence in a Court Trial


Evidence in a criminal case is supposed to prove that a defendant is guilty without reasonable doubt or innocent of all charges. Sometimes evidence may have been tampered with or destroyed, wrongfully obtained, or produced from witnesses that lack honesty. In these instances, the guilt of the defendant may not be proven without reasonable doubt.

In the past, the Massachusetts Supreme Judicial Court (SJC) has called for new trials involving cases of a lack of scientific reliability of field tests in drug-related offenses, mishandling of evidence by police, and the absence of credibility involving scientific evidence experts. In these situations, the admission of such evidence can be prejudicial and erroroneous. If you are facing a drug-related charge or a criminal offense, you should speak with a criminal defense attorney who will examine all the evidence to ensure you have a fair trial to prove your innocence.

Types of Evidence Used in a Court Trial

Scientific evidence is important in criminal trials. Scientific evidence uses scientific methods to establish credibility in a case. Scientific evidence goes further than the knowledge of a judge or jury. The evidence has been tested and accepted by the scientific community at large.

Scientific evidence can be paramount in drug possession charges. It must meet specific standards to be admitted in a court. The scientific or forensic evidence is considered physical evidence and is presented as an exhibit in a criminal case. Other examples of physical evidence may include:

  • Drugs, drug paraphernalia, or drug money (unlawful contraband)

  • Footprints or tracks

  • DNA from blood, hair, or other bodily samples

  • Videos and photos

Inadmissible Evidence in a Court Trial

For evidence to be admissible in court, the evidence must be relevant in proving or disproving an element in a criminal trial. If the evidence is not relevant to the case, it will be considered inadmissible. Also, the evidence must be reliable and come from a credible source or witness.

While most evidence can be used in a court trial, there is some evidence that cannot be used in a courtroom. Defendants in criminal trials have certain rights that are protected by the U.S. Constitution. Evidence that violates their rights cannot be admissible, which may include:

  • Character Evidence

  • Forged Evidence

  • Tainted Evidence

  • Self-Incrimination

  • Plea Bargains

  • Out of Court Testimony

  • Unfairly Prejudicial information

  • Misleading or Unreliable Witnesses

  • Planted Evidence

  • Suppressed Evidence

Contact a Criminal Defense Attorney in Boston

Evidence in a court trial is key to proving a defendant's innocence or guilt. If you or a loved one is accused of a drug offense or criminal charge, you want the evidence to be thoroughly examined by a criminal defense attorney who can ensure that you receive your entitled rights and protection under the law. The presentation of evidence is crucial to your case and proving your innocence during a court trial.

Boston criminal defense attorney Edward Molari will provide you with legal advice that may help reduce your punishment, lessen your charge, or dismiss your case altogether. He cares about your situation and provides personalized legal services in every case. Contact attorney Edward Molari at 617-942-1532 for a free consultation.



Massachusetts Slow to Record Gun Background Checks into Federal Databases

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

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

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

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

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

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

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

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

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


Drugged Driving an Increasing Problem in Massachusetts

According to Massachusetts data license revocations, OUI, or operating under the influence charges are up a whopping 65% in the last three years, according to NBC Boston. According to Massachusetts State Police Trooper Patrick Mahady, many Massachusetts drivers do not know the amount of a drug, especially marijuana, that actually impairs them to the point they should not be driving on the road.

Unlike alcohol, for which a Blood Alcohol Test can clearly and accurately define when a driver is too intoxicated, no such test exists for marijuana, which is a widely used drug, especially since it became legal last month. While the effects of marijuana on a person’s driving ability are uncontested – with a slower reaction time and decreased motor skills, the drug still lacks a test to tell when a person is operating under the influence of cannabis. According to NBC Boston, even a small hit of marijuana can have devastating consequences. With the introduction of legalized cannabis throughout the state in 2018, the police worry that impaired driving may only increase.

According to the National Highway Traffic Safety Administration, an ideal drugged driving test would include:

“A field sobriety test for marijuana use would detect that a suspect is impaired by marijuana. Such a test would have high specificity, meaning that the test would only detect impairment due to marijuana use and nor for any other reason. Law enforcement would not use a test that had false positives, in other words falsely suggested someone was impaired by marijuana when they were not. At the same time, the test would ideally be appropriately sensitive to the effects of marijuana and not indicate that someone was not impaired by marijuana when they were driving.”

Unfortunately, no such test exists. Therefore, determining intoxication is typically up to the cop’s discretion when he or she performs a field sobriety test. Because most officers lack consistent training on the effects of marijuana and how a person under the influence behaves in a sobriety test, this method is often unreliable. Only 10% of the Commonwealth’s police force has received the training required to identify drugged drivers.

Speaking to NBC Boston, Massachusetts State Police Trooper Patrick Mahady said, “If people get pulled over and the cop isn’t trained in identifying the type of drugs that they’re suing or he’s not trained in identifying the types of impairment, the message will get out ‘It’s OK. He let me go.’ The worst-case scenario is that they let [a person under the influence of drugs] back on the roads.”

Massachusetts hopes to have a mechanism similar to the breathalyzer that can accurately and precisely identify when a driver is under the influence of marijuana. According to Jeff Larson, director of highway safety for Massachusetts, the Commonwealth hopes to implement this new drug testing technology by summer 2018.


Massachusetts Court Rules Search Under Car Hood Violation of Constitutional Rights

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

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

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

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

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

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

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

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

Massachusetts Supreme Judicial Court: Bail Must be Affordable to Defendants

In a unanimous ruling, the Massachusetts Supreme Judicial Court reminded prosecutors, judges, and criminal defendants across the Commonwealth that bail should be affordable to the person charged with a crime. A Massachusetts lawyer that specializes in criminal law will be able to answer any questions about whether this new court ruling applies to your specific case.

In Brangan v. Commonwealth, the Massachusetts Supreme Judicial Court, the highest court in the Commonwealth, ruled that bail cannot substitute for a pretrial detention order. The Supreme Court justices correctly note that all defendants in a criminal trial are guilty until proven innocent and it is necessary to leave the defendants as unencumbered as possible in order to reduce the burden on these presumably innocent individuals and ensure they have access to a fair trial. A bail that is set above the level affordable to a criminal defendant cannot be paid, which means that individual cannot work at his or her job or see his or her family, a massive disruption in the criminal defendant’s life. Perhaps even more importantly, though, a person who is in a holding cell will not be able to meaningfully contribute to his or her defense, a potentially ominous violation of his or her Constitutional rights.

For prosecutors seeking to keep a person charged with a crime in detention until a trial has completed, the Massachusetts justices noted that the proper legal avenue was through a pretrial detention order. Prosecutors should not simply seek a bail amount set so high above the defendant’s means and ability that there has been a de facto pretrial detention order, without the judge actually approving one. According to the Massachusetts Supreme Judicial Court, this amounts to a violation of the Due Process rights guaranteed in the United States Constitution and the Constitution of Massachusetts.

Importantly, the prosecutor still has the option of asking a judge to declare a criminal defendant “dangerous” and thus keep him or her incarcerated until the trial has completed. The judge may also set bail at an unaffordable level if there is a serious flight risk, and therefore incarcerating the criminal defendant would be necessary to ensure the person showed up for his or her trial.

In Brangan v. Commonwealth, Justice Geraldine S. Hines writes, “A bail that is set without any regard to whether a defendant is a pauper or a plutocrat runs the risk of being excessive and unfair.” In a footnote, the Court also drew attention to the racial disparities that exist in bail hearings, where ethnic and racial minority groups are disproportionately affected by excessive bail.

As noted by the Boston Globe, the focus on whether bail is fair or not to individuals charged with a crime has recently come into the national spotlight. In a bipartisan move, Senators Kamala Harris and Rand Paul have introduced legislation meant to nudge states away from excessive bail requirements.

Speak to a Massachusetts Criminal Defense Attorney Today

If you have been charged with a crime or believe that your bail is excessive or unaffordable, then you should contact a Massachusetts criminal law attorney who can advise you of your legal options and answer any questions that you may have about your specific case.