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April 21, 2014

Promised Immunity Under Proffer Agreement Requires Suppression of Evidence

In a recent opinion, a judge at the United States District Court, District of Massachusetts ruled that the evidence obtained by the government pursuant to the defendant's agreement to provide it in exchange for immunity may not be offered against the defendant, despite the government's arguments that the defendant waived his immunity under the proffer agreement and that its use of the evidence constituted a permissible "derivative use" under the agreement.

In United States v. Scott, the defendant learned that he was the target of a federal investigation into alleged mortgage lending fraud in February 2009. The defendant entered into a proffer agreement with the U.S. Attorney's Office, drafted by the government, which provided him certain immunities. Specifically, the proffer agreement provided that "no statements made or other information" provided by the defendant would be used directly against him (with certain exceptions not relevant), but the government would be permitted to "make derivative use of, or may pursue any investigative leads suggested by, any statements made or other information" provided by the defendant.

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February 19, 2014

SJC Rules Warrant Required to Obtain Cell Phone Data

Yesterday, in a 5-2 decision, the Massachusetts Supreme Judicial Court (SJC) ruled that state law enforcement may not compel cellular telephone service providers to provide historical cell site location information for a particular cell phone without first obtaining a valid search warrant. In other words, under Article 14 of the Massachusetts Declaration of Rights, the government may not use a person's cell phone records to track that person's physical location unless they have first obtained a search warrant supported by probable cause.

Cell phone service providers use cell sites or cell towers placed throughout particular regions, which send and receive signals from a subscriber's cell phone that is operated within the particular region. When a subscriber makes or receives a call, a record is created of the cell site used. This information enables a cell phone service provider to approximate the location of an operating cell phone within its network based on the cell phone's communication with cell sites in the area. The greater number of cell sites in a region, the greater the accuracy of the cell phone's location.

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January 13, 2014

Convictions Reversed Based Upon Unlawful Police Entry Into Apartment During Execution of Arrest Warrant

Today, the Massachusetts Supreme Judicial Court (SJC) reversed a defendant's two convictions on the grounds that both convictions were based on evidence that was seized by the police during an illegal entry into the defendant's home to execute an arrest warrant.

In Commonwealth v. Gentile, a police trooper spoke with the defendant about one week prior to his arrest, and viewed the defendant's identification card which listed the defendant's address as an apartment in Leominster. The trooper later learned that there were two outstanding arrest warrants for the defendant. After he confirmed that the Leominster address matched the defendant's address on his driver's license, the trooper went to the apartment to execute the arrest warrants.

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January 6, 2014

Drug Trafficking Conviction Reversed Based Upon Invalid Warrantless Search of Vehicle

In many cases, the evidence obtained against a criminal defendant can and should be suppressed in court, based upon the police's violation of the defendant's constitutional rights in obtaining that evidence. Generally, if the police did not follow constitutional procedure, then a jury may not know about the evidence obtained as a result of the constitutional violation. A recent Massachusetts Appeals Court case illustrates this concept.

In Commonwealth v. Diaz, the defendant was convicted of trafficking cocaine in an amount of 28 grams or more, based upon two packages of cocaine that the police seized from the defendant's vehicle during a warrantless search of the vehicle. Several months prior to his arrest, the police had obtained information from a confidential informant that the defendant sold drugs, including at a building where a business named Family Oil was located, and that he packaged drugs there.

The police observed the defendant's vehicle parked behind the Family Oil building, located on private property, and entered the property. They saw the defendant exit the building and quickly place his jacket into his car and try to go back into the building. The police immediately seized and restrained the defendant. They then entered the building, searched the occupants, and found cocaine on two of them. Returning outside, the police searched the defendant's vehicle, without a warrant to do so, and found two bags of cocaine.

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