August 20, 2020
“Can the police locate me by pinging my cellphone, like you see on TV shows like NCIS and FBI and all that?”
Well, IT DOESN’T work the way it’s portrayed in TV shows where law enforcement can simply “ping” a phone (even underground, per a recent Hawaii Five-0 episode!) and see on a screen who it is and where it is just like that!
BUT, in some and right circumstances, they may be able and allowed to do that with help from cellphone providers and of course, if granted by court.
WARRANT is one important word you should remember if you feel you’re being tracked by law enforcers. Aside from “exigent circumstances” or emergency situations, warrants would always be required!
Under a federal law which allows police to track data, like cellphone information, with a court order based on:
- Facts granting “reasonable grounds to believe”
- The records are “relevant and material to an ongoing investigation”
REMEMBER: You have the rights to privacy of your sensitive data, and police can’t just try to search the data stored on your computer or portable electronic device, or seize it for further examination somewhere else. If this happened, know that any evidence they find as a result of that, could get SUPPRESSED in court.
For questions about this pinging of your cellphone, or anything related to criminal law, criminal defense, you can trust us! Gain deeper understanding of this matter and protect your rights, email or call us today!
August 20, 2020
“Once my son turned 18, he would surely be granted a fresh start, and those teenage blemishes on his record are just part of the past!” – Are you one of those people who believes that a juvenile record would vanish when a youth becomes an adult?
We’re here to correct that popular belief!
Even though juvenile record is kept separate from the adult records, it still happened, it is still in existence and it stays in existence FOREVER.
Obstacles in Adulthood You Might Face With a Juvenile Record include:
- Job Seeking
- Arrested For A New Crime
- Applying for Gun License
- Getting to Military
- Getting Into College
- Receiving Financial Aid
- And Many More . . .
REMEMBER: It is essential to fight those cases when they come in as a juvenile to ensure your child’s protection and his/her future.
If you have any questions about the juvenile delinquency process or the criminal process, please feel free to give us call or shoot us an email. Make sure everything is done correctly. We’re here to help!
August 20, 2020
A question asked all the time is, “Can the police detain you without arresting you? And the short answer is, under the right set of circumstances, they can.” Those circumstances are where they have what they call reasonable suspicion to believe you’re involved in some sort of criminal activity. However, they have to be able to point to specific and articulable facts that show why they believe you’re involved in this. Maybe someone said they saw someone matching your description doing something unlawful. The police themselves may have observed something that they believe might be criminal activity. It has to rise to a certain level in order to make even a slight detention of you for a short period of time.
During this brief detention they’re supposed to be investigating the reason they stopped you o determine whether or not you actually did anything. They’re allowed under those circumstances to stop you for a brief period of time, perhaps interact with you, ask you some questions about it and to make the determination whether or not they believe there’s probable cause to actually arrest you for some type of crime.
If the police also have reason to believe you might be armed and presently dangerous to them or someone else, they could also pat down the outside of your clothing. You see that on TV, up against the wall, assume the position. The police do this pat down of the clothing to try and find a weapon of some kind. Now that is permissible under the right set of circumstances. However, if the police hold you too long, if they do something that’s unusually aggressive, that may no longer be considered a brief stop. For instance if the police don’t have a lot of information, but they pull their guns on you, order you to the ground and throw handcuffs on you, that is no longer this type of brief detention. The police action can transform the stop into arrest for which they would need probable cause (a higher standard). The courts look at it based upon proportionality of what the police do in relation to the circumstances. How long was the detention in relation to the type of crime being investigated? Was the crime serious or otherwise violent? What was the nature of this particular detention? Did it pass the smell test in relation to the crime that’s actually being investigated? Or was it excessive?
These are the types of things we look at to decide whether or not this detention is one of those brief stops or whether it amounts to arrest of which the police have to have a much higher standard called probable cause. Probable cause basically where the police have substantial to believe that you in fact were involved in some kind of criminal activity.
If you have any questions, if you’ve been stopped by the police and you have any questions about that or what the police can do in those circumstances, please feel free to give me a call or shoot me an email, and I’d be happy to speak with you about it. Thanks and have a great day.
August 20, 2020
If you find yourself facing criminal charges, you want a clerk magistrate’s hearing if the offense allows for it.
In Massachusetts, whenever the police are trying to charge you with any misdemeanor, you have the right to have a hearing before a clerk magistrate to decide whether or not these charges will ever be issued. These hearings are also called “show cause” hearings. It’s really important to take this seriously, because this is your best opportunity to keep these charges from ever issuing, to keep this off of your record so you never have to see the judge, have to deal with the DA or worry about any kind of punishment.
What Happens at The Hearing?
At this hearing, the clerk magistrate is the one making the decisions. The clerk not a judge, but they work for the court system and have a lot of power. Their job at this hearing is to decide whether or not these charges ever get to go before the judge.
Typically speaking, what they’re supposed to be deciding is whether or not the police have probable cause to have these charges. At the hearing someone from the police department, not necessarily the officer that you dealt with on that particular day or evening, will come in and read from the police report. That’s usually how they set up their facts to say, “Hey, listen, we have probable cause and we want this person charged.”
You have the right to be there. You can bring a lawyer, but you don’t have to have a lawyer. You can testify on your own behalf. You can ask the officer questions. You can bring other witnesses, photos, videos or other documents that might be able to shed some light on your side of the story.
This hearing usually it doesn’t take very long — usually about 20 minutes to a half an hour is typical. The clerk will listen to everything and then make a decision. Generally speaking, they will do one of three things.
Three Possible Outcomes
The clerk magistrate can say there’s enough evidence to establish probable cause and I’m going to issue these charges and you’re going to have to go see the judge and go through the normal court process.
Option two — after listening to everything, they can decide that either based upon the facts or the law, that there’s not probable cause and the charges shouldn’t issue in which case you’re all set and the charges never issue. You go on your way, don’t have to worry about anything.
The third option is somewhere in between One and Two. This happens pretty often, especially with people who are first time offenders, charged with minor crimes. The clerk might say, “Well, you know what? There could be probable cause here, but I’m considering the person.” And this is where we come in. We are able to argue on your behalf, “Listen, this is a good person. They don’t have a prior record. It was a simple mistake. It wasn’t malicious or anything like that.”
In the interest of justice, we’re asking the clerk to use their discretion to say, “Hey, listen, we don’t have to issue the charges here.” Now the clerk can use that discretion and do a kind of hybrid outcome. The clerk. might say, “I’m not going to issue the charges.” Or they could ask you to do something. They might ask you to do something like community service or take a class in some cases. This happens a lot with minor driving offenses. Maybe they’ll have you do what they call a national driver safety program, something like that. But they have a wide range of discretion.
Many times they just say, “Hey, listen, we’re going to keep this open for the next six months. If you stay out of trouble, then we’re going to close it out and these charges will never issue. But if you do screw up during those six months, we’re going to bring the charges back in and you’re going to be charged with these as well.”
The clerks have a lot of discretion as to what they can do at these hearings. It’s in your best interest to keep these charges from ever issuing. It’s very important to take this seriously and to make sure you put your best foot forward at a clerk magistrate’s hearing. This is your best opportunity to stop the criminal charges that the police are trying to bring against you.
If you have any questions about the criminal process, about a clerk magistrate’s hearing; whether you think you should have one for your case and whether you can request one, please feel free to give me a call or shoot me an email and I’ll be happy to speak with you about it.
August 20, 2020
Just because the police aren’t allowed to search you under certain circumstances and maybe you know that now, it’s important that you don’t do anything that’s going to get you into further trouble. What this means is if you believe the police don’t have the right to search you and they do so anyway, you can’t physically interact with them in a way that’s going to be violent towards them. You shouldn’t try to run away or take off if they’re trying to detain you.
Never Give Up Your Rights, But Do It Properly
What you should be doing is simply never giving up your rights, making sure that if they ask you for consent to search something that you’re saying, “No.” If they’re asking you to answer questions, you say, “No, I want a lawyer. I’m not answering any of your questions.” So, you do it in a nice, polite manner. You don’t want to get violent. You don’t want to run away. You don’t want to do anything that’s going to get you into further trouble.
Because what can happen sometimes is when someone knows their rights and believes the police are violating them, and they get into it with the police. They start what they call resisting arrest in the case of they’re being arrested, or you start pushing away or running away or doing something just makes the situation worse.
So, in these circumstances, obviously, never give up your rights, never agree or consent. The best you can do under these circumstances is to document what you can document. Make sure you’re very clear with your lawyer in the event that you are arrested and something goes wrong and you go to court and you are arrested. It’s really important that you just communicate that with your lawyer, and let your lawyer do his job.
If They Arrest You, We Will Take Care of It
Really, when the police aren’t allowed to do something and they do it anyway, we can fight that — It happens more than you think. We fight that out in court, and that’s where the fight should happen. The fight should not happen there in the street. All you should do, like I said, is simply assert yourself, meaning assert your rights by saying, “No, I do not consent to that.” Be vocal about it, but never get physically combative or confrontational.
If they’re going to arrest you, they’re going to arrest you. Let them take you, and then we can deal with any of the police illegalities for illegal searches or anything like that when we get to court. And that’s one of the first things we look for when we’re reviewing police reports and things like that. Any good criminal defense attorney is going to be looking for that type of thing. Did the police search you illegally? Did the police obtain a statement when they shouldn’t have done so? They didn’t give you Miranda or otherwise violate your rights.
So, if you have any questions about what you should do in the event that you believe your rights have been violated by the police, please feel free to give me a call, shoot me an email, or leave me a comment here. I’d be happy to speak with you about it.
August 19, 2020
Let’s talk about our nation’s veterans and what the courts can do to help them if they’re charged with a crime. There are a number of programs in place for veterans who’ve been charged with crimes. These are what they call diversion programs and a diversion program, at essence, is simply kind of like a form of probation, but if you’re successful, it typically involves some type of treatment. Sometimes this ends up being community service, but if successful, you’re never arraigned on the charge. It never appears on your record and you’re able to keep your record clean as a result.
The first program is called the Valor Act, which is available to anyone with what they call a history of military service. That includes the service you would normally think of, such as the Army, Air Force, Marines, Coast Guard, Navy of course, as well, as well as service in the National Guard. It doesn’t require you to have participated in a war or anything like that, but have that history of military service. And don’t worry, that’s all going to get confirmed by probation. There’s nothing specific you have to bring in. It’d be helpful if you brought in your discharge papers, your DD214 or something like that. But probation will confirm that with the Department of Veterans Affairs. So you don’t have to worry about if you don’t have paperwork proving your military service. It’ll be able to be shown by probation.
The other thing you have to have is no prior adult convictions of any crime. What I mean by adult is, anything since you turned 18. So, if you have a juvenile offense for something, that doesn’t count for the Valor Act. It has to be no prior adult convictions for anything. This is only going to apply to either the District Court or the Boston Municipal Court, both sort of what they call district level courts. If you have a case in the Superior Court, which is typically speaking much more serious, the Valor Act doesn’t apply to any charges brought in the Superior Court. The other requirement you have to have is that the charge itself has to be serious enough that there is potential for imprisonment. In other words, in the statute, say, as opposed to just a hundred dollar fine, that you could go to jail and with all that you could qualify under the Valor Act.
Now how this works — when you go to court for the first time to be arraigned, prior to being arraigned, which you want to do when you check in with the probation officer. It’s important to tell them that you’re a veteran, you have some history of military service, so they can confirm that that’s true. What’s going to happen from there is you have to ask the court for permission to continue your arraignment. In other words, you’re not going to get arraigned that day, but you do need the court’s permission to continue that arraignment, and typically speaking, the Act talks about 14 days. It can be longer if the court allows for it, but it’s usually no less than 14 days the arraignment is continued. And that’s so that you can get an assessment done. The assessment is done by the Department of Veterans Affairs, Veteran Services or a related health specialty. So in other words, if you have mental illness or something like that, you can get an assessment by a doctor that’s allowed and approved by the courts in order to do this.
During those 14 days, essentially what’s going to happen is you’re going to get this assessment done. You’re going to go in, talk to the particular psychiatrist, a psychologist or doctor, and they’re going to write a report. That report is to talk about any potential issues you have and how you could benefit from some form of treatment. Treatments are what we’re talking about here. For this particular diversion program, they want to put you in, again, some type of a treatment program. It doesn’t mean that you’re going to be locked up during the treatment, but it’s just that you receive some sort of treatment, usually outpatient treatment, whether it means talking to a counselor, a psychologist, in a group setting. But the idea is the report is going to outline for the judge what type of treatment might be beneficial to you.
The judge can review the report and they can make the decision to allow you to continue towards this diversionary program under the Valor Act. From there, if they agree, they will continue your case for at least 90 days. The 90-day period is so that you can try to complete this particular program. Now let’s just say the program takes longer. The particular program at issue says is a six-month program, that’s okay. You’re going to come back after 90 days. Your progress will be explained to the judge by probation, by your lawyer. Typically speaking, they will allow for further continuances and further stays of the prosecution, meaning no arraignment, nothing going forward with the case while you’re in treatment. And that’ll happen until you get through the treatment.
If you complete the treatment, you get through all the treatment and the conditions that they set for you and they talked about in the report, the court has the discretion at that point to say you’ve completed your diversion program and your case may get dismissed. This is not an automatic thing. Just because you do everything the court said you’re supposed to do, it’s still on the judge’s discretion. Everything in this thing is discretionary upon the judge. If you read the law, it says the judge may give you the 14-day continuance. Judge may stay the case for 90 days. The judge may dismiss the case at the end of your diversion program. So it’s really important to understand that even though this is a law that’s put out there and most of the judges subscribe to it, the particular circumstances of anyone’s case could cause a judge to say, “I’m not going to do that.” It’s very much in the judge’s discretion. That’s why they use the word may throughout.
Many times, most of the provisions of this Act are very similar to the Valor Act. You need to have history of military service. You also need to have no prior adult convictions for any type of crime. You can’t have any open warrants or cases anywhere. In addition, one of the other requirements is that you also can’t have any prior convictions for drunk driving, including alcohol or drugs or any sort of drunk or drug driving. Additionally, you can’t have any prior convictions for those in order to qualify for that which includes juvenile. So if you’re 14 or 17 years old and you picked up a drunk driving case, the Brave Act isn’t going to be able to help you.
Another requirement that is different from the Valor Act is you have to have been diagnosed with either a traumatic brain injury, a mental illness or substance abuse, which can be shown by the doctors and medical personnel to be somehow connected to your military service. So a traumatic brain injury could be obvious. Maybe you served in combat and you were involved in some sort of an explosion or, again, you were just attacked in some way. It caused traumatic brain injury. Concussion is a type of traumatic brain injury. Substance abuse, again, some people suffer from PTSD and they have to self-medicate. So they develop coping mechanisms through alcohol and drugs to deal with the different issues that were caused by their service. Mental illness sort of speaks for itself. But again, you’re suffering from some form of mental illness that’s connected to your military service, not something that you essentially had before, or at least not to this particular degree. You’d have to demonstrate that by a doctor.
Other than that, the requirements are very similar. Regarding continuing the case for those 14 days to get an assessment, to show that there is some form of treatment that could be beneficial to you. And again, just like the Valor Act, your participation in these programs, if you’re successful, it could result in your case getting dismissed.
Let’s discuss another scenario — say “ I got into the program and the judge seems to be on board with this, but I screwed up. I got kicked out of the program or I picked up another case or I did something I wasn’t supposed to do. What happens to me then?” And essentially what happens in that case, in both the Brave and the Valor Act is the court?
They could say, “You screwed up. You’re getting kicked out of the program. We can give you another chance and try and get you into a different program or back into the same one, or we can just prosecute the case. In other words, we’re going to bring the case forward. We’re going to reign you on the case and you’re going to be prosecuted just like anybody else, because we gave you the chance and you didn’t follow through, and this is the penalty for not doing so.”
And then you get to defend the case like you could in the beginning. So if you have a good defense to the case, you can bring it. The point of the Valor and the Brave Act isn’t to strip you of that, but it’s just to make it a little bit easier to keep this off your record and make sure the case goes away prior to arraignment if you’re doing the right things.
Now, the good thing to keep in mind too, is because you’re providing all this information, potentially to the doctors, to the courts, is that anything you said, so if you said anything during an assessment or during treatment that implicates you in the case, those statements can’t be used against you. So they want you to be open and free while talking to both the assessing therapist, as well as any therapist related to the case. Any statements you made during those assessments or anything related to the Brave or Valor Act while you’re participating, they’re not going to use those statements against you later if they’re going to try and prosecute you in the event you did get kicked out.
If you have any questions about either the Valor Act or the Brave Act, whether your case qualifies or anything like that, please feel free to leave a comment, shoot me an email, give me a call, I’d be happy to speak with you about it.
Side note: Particularly, we are grateful to our nation’s veterans here. My dad and grandfathers all served in the military. I didn’t have the privilege of doing so, but I am grateful to all the members of the military and the veterans who’ve helped this country.