August 17, 2020
A question I’m often asked is, “Can the police confiscate or just take my stuff whenever they want?” And the short answer to that question is — no. You have certain rights on the constitution of both the United States, as well as Massachusetts to protect your privacy rights in your things. Those rights extend to your person, your bags, your car, your house — all of those things.
Keep This in Mind
It’s important to understand that the police can only act and take any of your items in such carefully delineated circumstances, only a few different ways. In all actuality, there are really only four different ways.
Here are the four ways to remember:
#1 – The first is if they actually have a search warrant to take the item or thing. A search warrant is where the police go to the court, they show to a neutral magistrate judge that they have probable cause to believe that evidence of a crime can be found in this particular place.
That search warrant allows them to search anything that they described within the warrant. For instance, it could apply to your house, car, a handbag, or it could apply to a computer or a cell phone, but it has to establish that there’s going to be evidence, probable cause to believe, a substantial belief to believe there’ll be evidence of a crime found within the particular place or the particular item. That would allow the police to seize that item in order to do so.
#2 – Another instance where the police are allowed to seize items from you is what they call a search incident to arrest. Now, you’re being arrested by the police for some particular crime and within your, what they call your wingspan or your lunge [inaudible] grasp, the areas that you could get to immediately, whether it be the interior of a car, the area immediately around you in the house, if you’re walking down the street, what you have in your hands, they can search those items if they have probable cause to believe either there’s going to be evidence of the crime you’re being arrested for in them, or it could be a weapon inside the particular items.
For instance, you’re walking down the street and you’re being arrested for something, say drugs, and you’re carrying a handbag. Police could look in the handbag if they have probable cause to believe there’s evidence in there or that you might be carrying a weapon. Absent that, they would need to get a search warrant.
#3 – The third reason to have probable cause to believe that there is evidence of a crime contained either within your home, your car, your bag, or whatever other belonging. They could seize and secure, they call secure that particular item or place for a period of time while they go get a warrant. In order to do this, they have to have probable cause to believe there’s going to be evidence of a crime found there and what they call exigent circumstances. And that’s where they have good reason to believe that if they don’t act immediately to take the item from you and just hold it until they get the search warrant, that the evidence might not be there. In other words, you’ve been alerted that they want to search your place and you could theoretically flush the evidence down the toilet or otherwise dispose of it. That would give the police reason to secure the place in the context of your home.
We’ve had that happen to clients quite recently where there was a fight and the police were looking for a knife. They secured the home. They moved everybody into one room. They said, “We’re not going to search right now until the warrant gets back,” and only when the warrant got back, were they allowed to search, but they can secure the area.
The same thing goes for a bag. They could take your bag from you. They just can’t open it and go inside of it. They are allowed to do that under those circumstances. They have probable cause to believe they’re going to find evidence for a crime there.
#4 – The last instance where they can take your items such as your luggage from you for a very limited purpose is if they have a lesser standard called reasonable suspicion. That’s why they have articulable facts to believe that you’re involved in some criminal activity and they can take your bag from you. They can’t open it, but they can have a dog sniff it under those circumstances. And if the dog hits on something, for example, if it’s a drug sniffing dog — and he detects some sort of illegal drugs in there or something else. That dog is trained to detect, and that may give them evidence to then go get a search warrant in order to get inside the bag.
Those are the circumstances under which the police could theoretically just take your stuff. If those things are not present, they don’t have the authority to do so under the constitutions of both Massachusetts or the United States. If you have any questions about this, your privacy rights in any of your property, whether it be your home, your car, your bags, or other belongings, please feel free to shoot me an email or give me a call. I’d be happy to speak with you about it.
July 2, 2020
In 2019, Massachusetts Courts ruled that, with limited exceptions, the results of the Breathalyzer tests taken between June 2011 and April 17, 2019 were not admissible in Court. The Commonwealth of Massachusetts was required to attempt to notify any criminal defendant who took the Breathalyzer test during this period who was:
(1) convicted at trial;
(2) took a plea; or
(3) otherwise had an adverse criminal disposition
of the effects of this decision. Those affected may be able to have their drunk driving convictions / pleas overturned by the Court and removed from their criminal record.
DO YOU QUALIFY TO HAVE YOUR DRUNK DRIVING CONVICTION OR PLEA OVERTURNED?
If your answers to the following questions are YES, then you may qualify.
- Were you convicted or did you take a plea to a drunk driving (OUI / DUI) case in Massachusetts between June 2011 and April 17, 2019?
- Did you take the Breathalyzer test?
- Was the Breathalyzer test result a significant factor in your decision to take a plea?
- Was the Breathalyzer test result a significant factor in the Judge or jury’s decision to convict you?
EVEN IF YOU DIDN’T RECEIVE A LETTER YOU MAY STILL QUALIFY
In February of 2020 it was widely publicized that approximately 27,000 letters were being sent to Massachusetts drunk driving defendants who took the Breathalyzer test between June 2011 and April 17, 2019. Regardless of whether you received this letter, you may be entitled to have your conviction overturned and removed from your record.
WHY SHOULD I TRY TO GET MY OUI CONVICTION OVERTURNED?
- Drunk driving convictions or pleas stay on your record forever
- If you are EVER stopped and arrested again for drunk driving (OUI/DUI), this offense will be counted in determining how many times you have done this before (i.e. 2nd, 3rd or 4th offense, etc.) and will result in much harsher penalties (i.e. potential jail time and loss of license) if convicted
Call us today to learn more and to see if your drunk driving (OUI/DUI) case qualifies to be overturned.
At Contant Law we have more than two decades of experience successfully defending people accused of crimes. Let us help you.
May 26, 2020
On May 6, 2020, the U.S. Department of Education released the much-awaited final regulations overhauling how school disciplinary matters involving sexual harassment, including sexual assault, under Title IX will be handled. While the new Title IX regulations do not take effect until August 14, 2020, there are some exciting new provisions which will make Title IX proceedings more fair, equitable and provide Due Process for all. See some of the major provisions discussed below.
Consistency to the Process
The advent of regulations has provided a clear and consistent framework that all schools who receive Federal financial assistance must follow. Prior to this, there were few rules concerning the handling of Title IX complaints. The guidance provided by the U.S. Department of Education was ambiguous at best and the case law was limited. The process for resolving Title IX complaints varied widely by school, including different requirements for public schools and private schools.
The new regulations provide a clear statement concerning the jurisdiction of Title IX complaints. As always, Title IX only relates to schools which receive Federal financial assistance. However, for practical purposes this is most schools in the United States. The new rules clarify which types of educational programs and activities fall under the jurisdiction of Title IX.
- Educational programs or activities at locations, events or circumstances over which the school exercised substantial control over both the respondent and context in which the alleged incident. This includes school owned buildings, as well as those controlled by officially recognized student organizations, such as fraternities or sororities.
- Can relate to programs and activities both on and off campus.
- Applies only to incidents of sexual harassment / discrimination “occurring against a person in the United States.”
- At time of formal complaint, the complainant / accuser must be participating in or attempting to participate in the education program or activity where the complaint is filed.
The obvious import of the new regulations is to restrict the process to those who are current students when the complaint is filed and for incidents occurring in the United States. This appears to be in line with the purpose of Title IX which is to protect equal access to education. If the accuser is not a current student of the college or university at the time of the complaint, the protection of their equal access to education is not in peril.
Beware – No Title IX Jurisdiction Does Not Necessarily Mean No Discipline
One caveat in the new regulations is that although an incident may not be within the jurisdiction of Title IX, that does not mean the school is powerless to act. Colleges and universities may address sexual harassment affecting its students or employees that fall outside of Title IX’s jurisdiction in any manner they choose, including pursuing discipline. This appears to be a double-edged sword. Although there may not be a Title IX complaint, the accused may be subject to a disciplinary process which does not contain all of the protections contained within the new regulation, as discussed below.
Protecting Constitutional Rights & Legal Privileges
Schools cannot restrict the Constitutional rights of students, teachers or faculty, including those provided by the First Amendment, Fifth Amendment and Fourteenth Amendment, or intrude on legally recognized privileges:
- Speech which falls under First Amendment cannot form the basis of a Title IX Complaint even where such speech is offensive.
- Parties cannot be restricted from discussing the allegations or gathering evidence (no “gag” orders).
- Parties may never be subject to further discipline for “retaliation” for exercising their First Amendment rights of free speech.
- Respondent presumed to be not responsible throughout process (Presumption of Innocence).
- Parties cannot be compelled to provide incriminating evidence against themselves.
- Due Process through a live hearing at which all parties and witnesses subject to cross-examination (discussed in greater detail below).
- Schools may not rely upon or seek disclosure of information protected under a legally protected privilege (medical, psychological, priest, attorney, etc.), unless the person holding the privilege freely and voluntarily waive it in writing.
Equal Access to Information
Both parties now have equal access to information throughout the investigation. The school will be required to provide to all parties and their advisors:
- Written notice of the allegations with sufficient detail of the conduct constituting sexual harassment and allow the accused sufficient time before being required to provide any response.
- Written notice of any investigative interviews, meetings or hearings.
- Prior to the completion of the investigative report, copies of all evidence directly related to the allegations, even if the investigator does not intend to use it in making their determination, with at least 10 days to review and respond.
- Copies of all investigative reports which fairly summarize the evidence and allow at least 10 days to provide a response.
- Training materials for all Title IX personnel concerning new grievance procedures and how to serve impartially (must be on school’s website or otherwise accessible to public).
Under prior practice, very little information was required to be given to the accused before making them provide a response and/or meet with an investigator. Schools were not required to turn over any of the statements of the accuser or witnesses. In many instances, only if the investigator chose to include some portion of this information in their report would the accused ever know of its existence.
Live Hearings with Cross-Examination
Under the current Title IX grievance process, many schools do not have any type of live hearing, opting instead for some version of what is known as the “single investigator” model. In this model, the school’s investigator decides:
- Who to speak with and what documents to obtain;
- Credibility and how much weight to give any evidence;
- Whether they find the accused responsible; and
- In some cases what sanction is appropriate.
The investigator’s finding is generally rubber-stamped buy the Title IX Coordinator. For those schools that do have some type of live hearing, it often amounts to little more than a formality.
Under the new Title IX regulations, all colleges and universities must have a live hearing, with decision-maker(s) (i.e. hearing panel, judge, etc.) who cannot be either the school’s investigator or Title IX Coordinator. Effectively eliminating the “judge, jury and executioner” days of the single investigator model. Some of the more important requirements of the hearing include:
- Give all parties an equal opportunity to present both fact and expert witnesses, as well as any other inculpatory or exculpatory evidence;
- Live oral cross-examination, including relevant follow-up questions to be asked by the party’s advisor to any other party or witness;
- If a party or witness does not submit to cross examination, the decision maker(s) cannot rely on any statement of that person in reaching a determination regarding responsibility.
- School must create a record of the live hearing, which can be either audio, audiovisual or a transcript.
- Following the hearing the decision-maker(s) must issue a written decision, which must include:
- Finding as to whether respondent is responsible for the charges;
- Findings of fact and conclusions about whether the conduct occurred;
- Rationale relating to each allegation;
- Any disciplinary sanctions to be imposed; and
- Any whether any remedies will be provided to the complainant.
This article does not address all of the provisions of the new Title IX regulations. Just some of the major ones which we believe will be a game-changer going forward to protect the rights of the accused and provide a fair and equitable process for all in the Title IX grievance process.
At Contant Law we strive to guide students, faculty and staff through the stressful and difficult process of being accused of a Title IX violation. Please contact us with any questions or for additional information.
May 20, 2020
In response to the dramatic economic consequences of Covid-19, Governor Baker signed the Massachusetts Eviction and Foreclosure Moratorium Act. This act prevents evictions and foreclosures, except for emergency evictions, for 120 days beginning April 20, 2020.
What this Means for Renters
If you rent your home, you cannot be evicted for failure to pay rent, or causes that are not “emergency causes of action”. Emergency evictions are defined as, “Any eviction that involves allegations of criminal activity or lease violations that are detrimental to the health and safety of other residents, health care workers, emergency personnel, anyone who is lawfully on the property, or the general public.”
As long as you are being a law-abiding and responsible tenant, you cannot be evicted for non-payment of rent during these challenging financial times. You will still owe your landlord all the back rent and should make arrangements with them now, so they are clear that you have a plan to catch up on the rent when the moratorium ends. They have maintenance and upkeep of the property and may have a mortgage to pay on it as well, so there is financial hardship for them, too.
What this Means for Homeowners with a Mortgage
The act prevents mortgage holders from initiating any foreclosure procedures, publishing a foreclosure sale or exercising a power of sale or right of entry. Residential borrowers who submit a request to their lender during the moratorium stating that they experienced “financial impact from COVID-19” will be granted a reprieve from all fees, penalties, and interest beyond their scheduled and contractual payments for up to 180 days.
Lenders may not report negative mortgage payment information for late or missed payments during this time to a consumer reporting agency. The Act’s moratorium also allows for mortgage counseling by video conference, rather than in person, during the moratorium.
As with rent payments and collections, the Act explicitly states that no borrower is relieved of their obligation to pay their mortgage, and no creditor or mortgagee is restricted from ultimately recovering mortgage payments
What this Means for Small Business Owners who rent their property
A “small business premises unit” is property occupied by a tenant for commercial purposes, whether the tenant is a for-profit or not-for-profit entity. However, the definition is limited. Tenants who operate in multiple states, operate in multiple countries, are publicly traded or have 150 or more full-time employees are not included in the definition of a “small business premises unit.”
If your small business qualifies as a small business premises unit based on the above definition and exclusions then, just as with residential tenants, you cannot be evicted for failure to pay rent, or causes that are not “emergency causes of action”.
It is important for small business owners to note that the Act’s moratorium does not include evictions of tenants in a small business premises unit if the lease expires or a tenant’s default under the terms of its lease or tenancy that occurred before the Governor’s emergency declaration.
The Act does not cover borrowers or lenders of any commercial property.
What You Need to Do
You will still owe the money to your landlord or mortgage holder. You need to communicate clearly, in writing, with your landlord or mortgage holder your situation and make arrangements to pay the money you owe over that time.
These are challenging times for everyone. The Massachusetts Eviction and Foreclosure Moratorium Act is an effort to provide time and peace of mind to address financial issues without worrying about losing your home. We will all get through this together.
What to Do if Your Landlord or Mortgage Holder Violates this Act
You are protected from eviction or foreclosure for 120 days starting April 20, 2020. If eviction or foreclosure proceedings are begun against you, get help. You can reach out to the Massachusetts’ Attorney General’s Office and if their assistance does not stop the eviction or foreclosure, then get legal help. Contact Contant Law. Call or text us at 617-227-8383.
Put Contant in your contacts.
May 6, 2020
Finding opportunities to stay fit while we are striving to follow the stay home advisory is not always easy. Gyms and fitness studios are closed, online workouts are not for everyone and even on a walk down Main Street, keeping 6 feet apart can be challenging. Balancing the challenge with the need to get out of the house or to get the kids moving and burning off their excess energy may have you lacing up your running shoes or putting air in the bike tires on a nice sunny day.
Even with fewer cars on the road, though, you must be careful of the risks of running on the roads. It is important to teach young children the right way to walk and ride on roads. If you need a refresher on bike rules you can read more here.
Once out on the roads, if you find yourself in an accident, there are things you should do. If the accident is minor, you should gather important information about the scene and the driver and share your information with them. Review our article “Information to Gather at an Accident Scene” to help you and seek legal help if you require it.
Unfortunately, accidents involving bicycles or pedestrians and automobiles can leave the cyclist, walker or runner with serious injuries. If you find yourself seriously injured by a negligent driver while you were cycling, running or walking, we can help you obtain the compensation you deserve. Read more about bike accidents to find how we can help you if you are injured.
If you find yourself in a bicycle or pedestrian accident and you are in need of legal help, contact us. Contant Law is available to guide you through the legal process and ease your mind. Call or text us Contant Law 617-227-8383.
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April 21, 2020
Covid-19 has turned the world upside down.
Weeks of isolation and social distancing, growing numbers of people falling ill, an economy that has taken a sharp downturn, and overwhelming job losses are the substance of the nightly news.
It is likely that once the coronavirus emergency is under better control and treatments become available, we will be able to come out of isolation, the economy will improve, and many jobs will come back.
In the meantime, many people find themselves struggling to pay their bills right now. Some were in precarious financial circumstances prior to this national crisis and are finding their savings rapidly depleted. With little or no income coming in, keeping financially afloat isn’t always possible. In this type of situation, sometimes people find themselves considering filing for bankruptcy in order to get out from under debt they will never be able to repay.
Bankruptcy has long-term consequences and is not always the solution, but it might be the best option in some situations. To consider what it involves, review some of the frequently asked questions about bankruptcy.
If you find yourself considering bankruptcy, or are in any type of legal trouble, we can help. Contact Contant Law. Call or text us at 617 227 8383.