Immigration Arrests Inside of Courthouses

According to the U.S. Immigration and Customs Enforcement's website now that some law enforcement agencies no longer honor ICE detainers, or limit ICE’s access to their detention facilities more arrests of aliens are occurring at courthouses. Previously most aliens arrested at a courthouse would have been turned over by local authorities to ICE, upon their release from prison or jail, based upon an ICE detainer.

ICE officers will generally avoid non-criminal courts or areas of courthouses. In order to make arrests in non-criminal courts or areas of court ICE officers are required to get authorization from their Field Officer Director or their Special Agent in Charge.

ICE does not make civil immigration arrests inside courthouses indiscriminately.  ICE focuses on actions against specific targeted aliens. These aliens may have criminal convictions, be gang members, or national security or public safety threats.  Aliens who have been ordered removed rom the U.S. but have failed to deport, and aliens who have re-entered the country illegally after being removed are also targeted by ICE.

Other aliens will not be subject to civil immigration action, unless they pose a threat to safety, or they are interfering with ICE’s enforcement actions.

ICE Policy Sensitive locations where specific enforcement action will not take place include Schools such as daycares, primary, secondary and post secondary schools. Medical Treatment and health care facilities such as hospitals, doctors offices, health clinics, and urgent care facilities. Places of worship such as churches, synagogues, mosques, and temples. Religious or civil ceremonies such as funerals or weddings. Finally ICE will also regard public demonstrations such as marches, rallies, or parades as a sensitive location and not take enforcement action.

ICE may make arrests in Policy Sensitive locations only upon exigent circumstances.  These exigent circumstances must be related to national security, terrorism, or public safety.

This U.S. immigration and Customs Enforcement policy leaves room for many exceptions. It does not fully protect other non-citizens, that do not have criminal convictions, are not gang members, or are not national security or public safety threats. It does not fully protect other non-citizens having business in both criminal and non criminal courthouses, as well as ICE Policy Sensitive locations, from facing the threat of civil immigration arrests upon ICE’s discretion.

Give my office a call if you or anyone you know is facing charges that can result in deportation or exclusion from the U.S. and were detained in court while awaiting arraignment on those charges.

Field Sobriety Tests for Drug Use Behind the Wheel?

OPERATING UNDER THE INFLUENCE OF MARIJUANA

On September 19, 2017, The Supreme Judicial Court of Massachusetts ruled on the Commonwealth v. Gerhardt case. The court answered the following questions: 

1.     Whether police officers may testify to the administration and results of standard field sobriety tests in prosecutions for operating under the influence of marijuana as they do in operating under the influence of alcohol prosecutions?

 "No."  Police officers may not testify to the administration and results of field sobriety tests as they do in operating under the influence of alcohol prosecutions.  A police officer testifying to a defendant's performance on field sobriety tests need not be qualified as an expert, and such evidence may be admitted without satisfying the Daubert-Lanigan requirements.  The court held that field sobriety tests may provide information that is relevant to the question of a defendant's impairment.  A police officer may testify, as a lay witness, to his or her observations of the defendant's performance. The officer may not suggest, however, on direct examination that an individual's performance on a field sobriety test established that the individual was under the Influence of marijuana. Likewise, an officer may not testify that a defendant "passed" or "failed" any field sobriety test, as this language improperly implies that the field sobriety test is a definitive test of marijuana use or impairment. The unsettled state of the scientific research suggests that field sobriety test evidence neither should be treated as a definitive test of impairment nor excluded entirely from consideration by the finder of fact. Commonwealth v. Thomas, 476 Mass. 451, 464 (2017)

2.     Are the effects of marijuana consumption sufficiently within the common knowledge and experience of a lay person, such that a non-expert witness may offer opinion evidence whether a person is 'high' on marijuana? 

 "No."  A lay witness may not offer an opinion that another person is "high" on marijuana.  Where there is no scientific consensus on what, if any, physical characteristics indicate marijuana intoxication, no lay opinion can be admissible as common knowledge or understanding on that subject.  A lay witness may testify concerning a defendant's observable appearance, behavior, and demeanor, but may not offer an opinion as to the defendant's sobriety or intoxication.  See State v. Schories, 827 N.W.2d 659, 666 (Iowa  22 We caution the Commonwealth that "a prosecutor who elicits from a police officer his or her special training or 21  2013) (expert testimony preferred on cause of intoxication for substances other than alcohol); State v. Noback, 309 Mont. 342, 346 (2002) ("we are not persuaded that lay people are sufficiently knowledgeable about common symptoms of drug consumption . . . to offer lay opinion testimony"); State v. Bealor, 187 N.J. 574, 587 (2006) (court declined "to place lay opinion testimony regarding marijuana intoxication on the same footing as lay opinion testimony as to alcohol intoxication").  See also Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 330 & n.43 (2010) (lay witness may not testify that individual suffers from mental illness, but may testify to observed behavior).

3.     Whether a police officer may testify, without being qualified as an expert, to the effects of marijuana consumption and may offer an opinion that a defendant was intoxicated by marijuana?

"Yes."  A police officer may testify to observed physical characteristics of the driver such as blood shot eyes, drowsiness, and lack of coordination.  The officer is not permitted to offer an opinion that these characteristics mean that the driver is under the influence of marijuana.  "A lay opinion . . . is admissible only where it is '(a) rationally based on the perception of the witness; (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge.'"  Commonwealth v. Canty, 466 Mass. 535, 541 (2013), quoting Mass. G. Evid. § 701 (2013).  In the alcohol context, "a lay [officer] . . . may offer his opinion regarding a defendant's level of sobriety or intoxication but may not opine whether a defendant operated a motor vehicle while under the influence of alcohol or whether the defendant's consumption of alcohol diminished his ability to operate a motor vehicle safely."  Canty, supra at 544, citing Commonwealth v. Jones, 464 Mass. 16, 17 n.1 (2012).

4.      May a juror rely on their own experience and common sense about the effects of marijuana as they may do in an operating under the influence of alcohol?

"Yes."  Jurors are permitted to utilize their common sense in assessing trial evidence.   As a general rule, trial judges routinely instruct jurors, and jurors are urged by counsel, "not [to] leave their common sense outside the jury room."  See Commonwealth v. Mutina, 366 Mass. 810, 820 (1975).  Jurors may use their common sense in evaluating whether the Commonwealth introduced sufficient evidence to satisfy its burden of proof.  See Commonwealth v. Cole, 380 Mass. 30, 35-36 (1980) (in context of criminal responsibility, jurors may rely on facts and circumstances surrounding crime to determine whether Commonwealth established defendant's sanity).  We rely on the judge's limiting instructions to inform jurors about the proper use of FST evidence.  See Commonwealth v. Jackson, 384 Mass. 572, 579 (1981).

Restitution and your ability to pay

COMMONWEALTH V. KIM HENRY

475 Mass. 117

FEBRUARY 10, 2016 – AUGUST 8, 2016

FACTS:  Defendant was a cashier for nearly 12 years at a Walmart store in Salem. Walmart video camera videoed defendant placing store items into bags without scanning them.

- November 2013 a complaint issued in Salem District Court alleging that the defendant stole property of Walmart of a value more than $250 pursuant to a single larcenous scheme on various dates between July 20- Sept. 4, 2013.

-April 2014 defendant admitted to facts sufficient to warrant a finding of guilty.  The judge continued her case without a finding for 18 months.  The defendant was placed on administrative probation for 18 months with no contact with Walmart.

-At a restitution hearing in Sept. 2014 Walmart stipulated their loss was $5,256.10. A different judge ordered restitution in that amount be paid.

-Oct. 2014 defendant filed a motion to revise and revoke the order of restitution. Allowed

- Nov. 2014 a restitution hearing before another judge. Walmart’s loss prevention manager calculated the sales price of the items stolen totaled $5,256.10.  The defendant testified that she was ineligible for unemployment, was unable to find employment, had no income, had been evicted from her apartment, and was staying with a friend, but not paying rent.  The Judge ordered that restitution in the amount of $5,256 be paid during the period of probation at a rate to be determined by the probation department. The defendant appealed, and the court allowed appellate review.

-May 11, 2015 a notice of violation issued for defendant’s failure to pay the required amount and a warrant issued for her arrest for failure to appear at the probation violation hearing on May 22.  The warrant was recalled on June 4, she stipulated to a violation at a hearing on July 15.  The judge restored her to the same terms and conditions of probation, also ordering restitution payments of $30 per month. Defendant made required monthly payments, on October 28, 2015 the day her probation was set to expire a second notice of violation for her failure to pay the balance of $5,176 was issued.  The probation hearing was continued in light of the pending appeal.

ISSUES:  1. Whether a defendant’s ability to pay should be considered by the judge in deciding whether to order restitution as a condition of probation and in deciding the amount of any such restitution.

2.  Where goods are stolen from a retail store, whether the amount of the victim’s actual economic loss for purposes of restitution is the replacement value or the retail sales value of the stolen goods.

HOLDING/RATIONAL:  1. In deciding whether to order restitution the judge should “consider whether the defendant is financially able to pay the amount ordered.”  Nawn,394 Mass. At 7, citing Model Sentencing and Corrections Act Sec. 3-601(d), 10 U.L.A. 322 (Supp. 1984), and ABA Standards Relating to Probation Sec. 3.2(d)(1970).  “The amount of restitution is not merely the measure of the value of the goods and money stolen from the victim… the judge must also decide the amount that the defendant is able to pay and how such payment is to be made.” Nawn, supra at 8-9.

The judge must make two findings in deciding restitution:  1. The judge must determine the amount of the victim’s actual economic loss connected to the crime. See McIntyre, 436 Mass. at 834.  The Commonwealth bears the burden of proof as to this finding.  See Nawn, 394 Mass. at 7-8.  The order of restitution may not exceed this amount.  See Commonwealth v. Rotunda, 434 Mass. 211, 221 (2001).      2.  The judge must determine the amount the defendant is able to pay.  See Nawn supra at 8-9.  Where a defendant claims that they are unable to pay the full amount of the victim’s loss, the defendant bears the burden of proving an inability to pay.  Commonwealth v. Porter, 462 Mass. 724, 732-733 (2012).

A judge is required to consider the defendant’s ability to pay when setting restitution because a judge may order restitution in a criminal case only as a condition of probation.  The collection of restitution is enforced by the threat of a criminal sanction for violation of a probation condition.  See Commonwealth v. Denehy, 466 Mass. 723,737 (2014).  A defendant can only be found in violation of a probationary condition where the violation was willful. The failure to make a restitution payment that the probationer is usable to pay is not a willful violation of probation.  See Commonwealth v. Canadyan, 458 Mass. 574, 579 (2010).  Burdening a defendant with risks by imposing restitution that the defendant is unable to pay violates the fundamental principle that a criminal defendant should not be subjected to additional punishment because of their poverty.  See Canadyan, supra; Gomes, supra at 212-213.

The judge erred in failing to consider the defendant’s ability to pay in determining the restitution amount, the judge’s restitution order was vacated and the case was remanded to the District Court for further proceedings.

2.  Where items are stolen from a retail store, the actual loss to the store is the replacement value of the items, their wholesale price, unless the commonwealth proves by a preponderance of the evidence that the items would have been sold had they not been stolen, in which event the actual loss would be the retail price of the items, United States v. Ferdman,779 F.3d. 

Here the theft occurred when the defendant’s friends brought items to her checkout line and the defendant scanned only some of the items. The judge reasonably could have inferred that had the defendant scanned all items her friends would have paid for them.  The judge did not err in finding that the store’s loss was the retail price of the items stolen.  

iCall the criminal defense team at Boyle & Carbone, P.C. to discuss how we can help try your case and what your financial obligations may be. (978) 342-3422 or www.bclawma.com.