Jul 1 2013

SJC throws out gun and drug evidence from illegal search

Dr. Q

The Massachusetts Supreme Judicial Court affirmed in a recent ruling that Worcester police conducted an illegal search during a traffic stop in 2008. The Court tossed the gun and drug evidence found by police during the search, forcing prosecutors to drop the case (Source: Telegram & Gazette).

Here’s how the Telegram summarized the case:

Officer George Lavin, a five-year member of the police department, was on routine patrol at Hooper and Catharine streets about 10:30 p.m. May 18, 2008, when he saw a gray Hyundai Sonata run a stop sign at the intersection. Officer Lavin turned on his cruiser’s blue lights and the Hyundai stopped less than a block away in the parking lot of an apartment building at 42 Catharine St.

Officer Lavin got out of his cruiser, approached the vehicle and called for backup just before seeing two male passengers get out of the Sonata and walk toward the apartment building. Officer Lavin ordered both men to get back into the car. One began running toward the building while the other hastened his pace.

Fabian Perkins of 26 Ethan Allen St., the driver of the car, remained seated and identified himself to Officer Lavin. The officer ordered Mr. Perkins out of the car, pat-frisked him and asked him for identification and the names of the passengers who fled.

Mr. Perkins responded that he did not know the men. He produced a learner’s permit, which required him to have a licensed driver with him while behind the wheel of a car. Officer Lavin again asked Mr. Perkins to identify the occupants of the vehicle. He did not respond and was handcuffed.

Officer Timothy Segur, a three-year member of the police department, arrived at the scene, spoke to Officer Lavin and then entered 42 Catharine St. to look for the two passengers. He checked the first-floor common areas and hallway and immediately returned to the stopped vehicle.

Officer Segur asked Officer Lavin if he had searched the car, and Officer Lavin said he had not. One door of the Sonata was ajar and the interior light was on.

Judge Page found that the officers did not see any contraband in plain view, but conducted a search of the vehicle that yielded a firearm, marijuana and a substance believed to be crack cocaine.

At least a half-dozen additional officers arrived at the scene and entered 42 Catharine St. in search of the two men who had been in the car with Mr. Perkins.

One of them, Tareek Hendricks, now 31, of 144 Stafford St., was found in one of the apartments and was arrested. The second man, identified as Elijah Cherry, now 28, of 20 Svea St., was caught while leaving the building through a back door.

All three men were charged with firearm and drug offenses, and their cases were pending in Worcester Superior Court when Judge Page issued her ruling.

Lawyers for the three suspects argued at the hearing on the motion to suppress that the actions of the police, including the initial stop of the car, the pursuit of Mr. Hendricks and Mr. Cherry, the pat-frisk of Mr. Perkins, the warrantless search of the car and the entry into the apartment were unlawful and violated their constitutional rights.

The prosecution countered that the firearm was in plain view in the car and provided probable cause for the search of the vehicle, that the search of the vehicle was permissible as a search incident to Mr. Perkins’ arrest and that Mr. Hendricks and Mr. Cherry lacked standing to challenge the search because they abandoned the contents of the car, as well as any reasonable expectation of privacy, when they left the scene.

“This court’s finding that the officers did not see the gun in plain view, and that they only located the contraband after conducting a more intrusive search, renders the search illegal,” Judge Page wrote.

“While Lavin was justified in stopping the car for a traffic violation, and his detention of Perkins to determine whether he was properly operating the vehicle was reasonable, the Commonwealth has failed to establish that the officers needed to search the car to ensure their safety or that any other applicable exception to the warrant requirement would justify the search of the car. Therefore, the gun, cocaine and marijuana must be suppressed,” she wrote.

Prosecutors appealed the ruling to the state Appeals Court and the SJC took jurisdiction of the case on its own initiative.

“Because there was no error in the judge’s finding that the firearm was not in plain view, because the search cannot be justified as a search incident to arrest, and because the Commonwealth failed to establish that Hendricks and Cherry abandoned the contents of the automobile when they left the scene, we agree with the judge’s conclusion that the search of the automobile constituted an unlawful warrantless search requiring suppression of the evidence seized,” Judge Barbara A. Lenk wrote for the SJC.

The SJC focused on the narrow question of whether Judge Page properly suppressed the evidence found in the Sonata and did not address the propriety of Officer Lavin’s order to Mr. Hendricks and Mr. Cherry to return to the car. The court said in a footnote to its decision that it would “leave this issue for another day.”


Jun 8 2013

Excellent news: Massachusetts’ highest court upholds probable cause, judicial oversight standard for extended GPS tracking

Dr. Q

By Kade Crockford, Director of the ACLU of Massachusetts Technology for Liberty Project

This article was originally posted at the Privacy Matters blog on June 7, 2013. It has been reprinted with permission.

It’s been quite a week, what with the Guardian newspaper’s Glenn Greenwald publishing a leaked NSA surveillance order to Verizon, and then last night’s revelations about how the military has directly tapped in to the servers of major internet companies like Google, Apple, Microsoft and Facebook. What began as a major controversy about phone and internet records has exploded into the biggest surveillance story of a decade, littered with scores of privacy-bombshells.

Particularly in light of these disclosures, the Massachusetts Supreme Judicial Court Commonwealth v. Rousseau decision, released this week, deserves wide discussion.

Quite simply, Rousseau cuts to the heart of the question raised by the NSA surveillance scandal: does the government need to have any individualized suspicion to extensively spy on us, or have we done away with that most basic tenet of our constitutional protections against unreasonable government searches?

Thankfully, the court answered the right way.

In short, the state’s highest court ruled that the government must have probable cause and provide judicial oversight before tracking us for extended periods of time using GPS devices. If it were up to the Massachusetts SJC, the NSA would be barred from doing lots of what we have just confirmed it has been doing for years.

Rousseau stems from the 2007 convictions of two Massachusetts men, John Rousseau and Michael Dreslinski, on counts of arson and other crimes. State police officers had used information gleaned from a GPS tracking device placed on Dreslinski’s car as evidence that helped convict both men.

Both men appealed the convictions, arguing, the court writes, “that the warrant which authorized the State police to attach the GPS device to Dreslinski’s car for 31 days was not supported by probable cause and therefore violated the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights.”

In response, the government argued Rousseau had no right to challenge the constitutionality of the GPS tracking that helped convict him, because he was neither the driver nor the owner of the car the police were tracking.

That doesn’t make sense. Thankfully, the SJC doesn’t think so, either:

Rousseau, as a passenger in the vehicle, also has standing because he had a reasonable expectation that his movements would not be subjected to extended electronic surveillance by the government through use of GPS monitoring.

That’s great news. But it gets even better.

Furthermore, the court ruled, “under art. 14, a person may reasonably expect not to be subjected to extended GPS electronic surveillance by the government, targeted at his movements, without judicial oversight and a showing of probable cause.” (Article 14 is essentially the Massachusetts version of the Fourth Amendment; you can read it here.)

Remember three key phrases from that sentence: “extended GPS surveillance,” “judicial oversight,” and “probable cause.” The court ruled that, under the Massachusetts Declaration of Rights, if the government wants to watch our movements for an extended period of time (which at the very least is 31 days), then it needs to go to a Judge and prove that it is has probable cause to do so.

As ACLU of Massachusetts’ Legal Director, Matthew Segal, who co-wrote an amicus brief in Rousseau, says:

Today’s ruling by the Supreme Judicial Court is a huge victory for anyone who does not want the government to track their movements. Relying on the Massachusetts Declaration of Rights, the court held that the police generally cannot track someone using GPS surveillance unless they secure “judicial oversight” and make “a showing of probable cause.” Although the case itself concerned a passenger in a truck he did not own, the SJC’s ruling was not at all limited to that circumstance. Instead, the SJC made clear that its ruling applies to essentially everyone in Massachusetts.

Not only does the ruling apply to everyone in Massachusetts. The requirement to obtain “judicial oversight” and a “showing of probable cause” before the government can use GPS surveillance to track us for an extended period of time arguably extends well beyond the placement of a GPS tracking device onto a vehicle.

As an ACLU study showed, law enforcement nationwide regularly subpoena detailed information about our travel patterns from our cell phone companies. Our cell phones, too, use GPS to track us. As the ACLU writes, “While virtually all of the roughly 250 police departments that responded to our request said they track cell phones, only a tiny minority reported consistently obtaining a warrant and demonstrating probable cause to do so.”

And that location tracking, sometimes using precise GPS coordinates communicated by our cell phones, is extensive – even apart from the automated-datamart vacuum operations at NSA we are discussing this week. The ACLU reports: “According to the U.S. Department of Justice, Sprint keeps location tracking records for 18-24 months, and AT&T holds onto them “since July 2008,” suggesting they are stored indefinitely.”

Two years and indefinitely are certainly longer than the 31 days the Massachusetts Supreme Judicial Court found was “extended” in the Rousseau case.

But that’s not all.

Automatic license plate readers are increasingly compiling detailed records of everywhere motorists drive. Law enforcement at every level and even private corporations are hoarding this information in regional and even national databases. As the plate readers become cheaper and eventually ubiquitous, hanging from every intersection and attached to every police car, it’s a very real possibility that police will be able to track our every motoring move, going back months, years or even decades. In such cases, officers don’t even need to subpoena anyone for records, because they already have them.

That’s also the case with cell phone sniffing gear like the Stingray, which allows law enforcement to independently track our devices, cutting out the telecoms entirely.

As Supreme Court Justice Sonia Sotomayor wrote in a concurring opinion in the landmark Fourth Amendment case US v Jones,

GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. The Government can store such records and efficiently mine them for information years into the future. And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: “limited police resources and community hostility.”

Sotomayor’s concerns pertain equally to location tracking by way of mobile phone, physical GPS device, and stored automatic license plate reader data.

Citing Jones, the Rousseau decision in Massachusetts makes clear that law enforcement in this state cannot use GPS to track us for an “extended” period of time unless they show probable cause to a judge. That ruling applies to GPS tracking in cell phones. It arguably also applies to detailed license plate reader databases, some of which already contain hundreds of millions of records showing where we drive, and when. These databases are only set to grow, and the vast majority of states have set no limits on how long police departments are allowed to store our location information.

Right now you may be thinking: ‘Who cares about whether or not the SJC said the cops need probable cause to spy on me like this? The NSA is already doing it!’ This is obviously a serious concern and we need to stop it. But the Rousseau decision still matters for people in Massachusetts, in a very big way.

That’s because, even if the Boston or Massachusetts State Police got access to NSA records showing where you went or for how long, they most likely wouldn’t be able to use that evidence against you in a Massachusetts court. Furthermore, the NSA probably isn’t in the business of sharing its preciously hoarded information with state and local police officers, except in highly extraordinary circumstances.

Even more importantly, many of us live in communities wherein we know people who work at the local prosecutors’ office, or are police officers. Local law enforcement is much more integrated into our lives than is the secretive, shadowy NSA. Therefore suspicionless, unaccountable surveillance at the local level poses unique threats to the sanctity of our lives, our dignity as private persons, and even our physical safety.

At the federal level, we need to repeal the FISA Amendments Act so that the military cannot routinely collect and store our private communications, associations and habits. But state law is incredibly important, as well.

That’s why we here in Massachusetts are working to pass legislation to deal with both warrantless cell phone tracking and unregulated license plate tracking, which we hope will become law sooner rather than later. (Join us and add your voice.)

Legislatures have a way of moving very slowly, however, and so in the meantime it’s heartening to see that our state’s highest court agrees on a basic principle, the violation of which underlies the entire NSA and PRISM scandal: if the police want to track our movements over an “extended” period of time, they need to have individualized suspicion and probable cause, and show that evidence to a judge.

It sounds almost quaint this week, but that’s how we do in Massachusetts.


Sep 23 2011

Massachusetts Supreme Judicial Court Approves Charging Innocent Ticket Recipients

Dr. Q

This article was originally published at TheNewspaper. It has been reprinted with permission.

Motorists issued a traffic ticket in Massachusetts will have to pay money to the state whether or not they committed the alleged crime. According to a state supreme court ruling handed down yesterday, fees are to be imposed even on those found completely innocent. The high court saw no injustice in collecting $70 from Ralph C. Sullivan after he successfully fought a $100 ticket for failure to stay within a marked lane.

Bay State drivers given speeding tickets and other moving violations have twenty days either to pay up or make a non-refundable $20 payment to appeal to a clerk-magistrate. After that, further challenge to a district court judge can be had for a non-refundable payment of $50. Sullivan argued that motorists were being forced to pay “fees” not assessed on other types of violations, including drug possession. He argued this was a violation of the Constitution’s Equal Protection clause, but the high court justices found this to be reasonable.

“We conclude that there is a rational basis for requiring those cited for a noncriminal motor vehicle infraction alone to pay a filing fee and not requiring a filing fee for those contesting other types of civil violations,” Justice Ralph D. Gants wrote for the court. “Where the legislature provides greater process that imposes greater demands on the resources of the District Court, it is rational for the legislature to impose filing fees, waivable where a litigant is indigent, to offset part of the additional cost of these judicial proceedings.”

The court insisted that allowing a hearing before a clerk-magistrate instead of an assistant clerk, as well as allowing a de novo hearing before a judge constituted benefits that justified the cost. Last year, the fees for the clerk-magistrate hearings generated $3,678,620 in revenue for the courts. Although Sullivan raised the issue of due process during oral argument, the court would not rule on the merits of that issue.

“I am disappointed that the SJC did not consider my due process argument,” Sullivan told TheNewspaper. “I suppose that some other driver who gets charged with a moving violation will need to consider doing that. At least this decision will give them a blueprint for a focused due process argument.”

Sullivan, an attorney, is not planning on further appeal to the US Supreme Court.

“While the decision did not go my way, I am safe in the knowledge that I gave it my best shot,” Sullivan said. “I took on this case because I felt that it was the right thing to do.”

Source: Salem Police Department v. Sullivan (Massachusetts Supreme Judicial Court, 9/21/2011)