In a decision issued yesterday, a judge of the Bristol County Superior Court denied the motion of former New England Patriots star Aaron Hernandez to suppress evidence obtained during the execution of a search warrant for his residence in North Attleboro on June 18, 201boxes_icon_023.   While the decision itself was, I’m sure, unwelcome news to the accused murderer of Odin Lloyd, it was far from a definitive decision and Hernandez’ attorneys preserved for appeal an important, unresolved, issue relating to whether the government can use against a defendant information obtained through the violation of someone else’s constitutional rights.

The court’s decision is governed by the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, which require a magistrate to determine that probable cause exists before issuing a search warrant. Com. v. Escalera, 462 Mass. 636 (2012).  By statute, a person seeking a search warrant must appear before a person authorized to issue search warrants, usually a clerk magistrate, and make application, in the form of an affidavit, which must contain the facts, information, and circumstances upon which the person relies to establish probable cause for the issuance of the warrant.  M.G.L. c. 276, § 2B; See Com. v. Welch, 420 Mass. 646 (1995) (to justify search warrant, a magistrate must examine the facts and circumstances presented and determine whether probable cause exists). To establish probable cause, the affidavit must contain a substantial basis for concluding that the items sought are related to the criminal activity under investigation and may reasonably be expected to be located in the place to be searched at the time the search warrant issues.  Com. v. Kaupp, 453 Mass. 102 (2009).

When a defendant challenges the factual sufficiency of a search warrant application, as Hernandez did, the analysis is limited to “the four corners of the affidavit”, meaning no facts other than those in the affidavit can be considered to determine whether probable cause exists. Com. v. Clagon, 465 Mass. 1004 (2013).  Further, a defendant can ask that the court strike from the affidavit any evidence obtained due to prior constitutional violations, thereby limiting the universe of facts the court can consider.  Com. v. DeJesus, 439 Mass. 616 (2003) (court will strike from search warrant affidavit information gained from prior constitutional violation).

Hernandez attempted to have excised from the affidavit any information provided by his girlfriend, Shayanna Jenkins, claiming that police obtained it as the result of an unconstitutional seizure of her person. Specifically, in the evening following the early morning murder, Jenkins dropped Hernandez at the North Attleboro police station to be interviewed.  As she drove off, a State Police Trooper followed Jenkins out of the parking lot of the police station in his cruiser and flashed his blue lights on and off, causing her to pull over adjacent to the station.  According to the affidavit, upon questioning, Jenkins provided Hernandez’ cell phone number and that of her sister, who dated Lloyd; information about the surveillance system in Hernandez’ home; and, most importantly, information that Hernandez’ was not home ‘all night’ the previous night.

With regard to the stop of Jenkins, the court noted that “activation of a police cruiser’s blue lights behind a citizen’s vehicle is a display of authority, equivalent to a command to stop, which signals to a reasonable person that she is not free to leave.” Com. v. Smigliano, 427 Mass. 490 (1998) (a reasonable person, on the activation of a police cruiser’s blue lights, would believe that he or she is not free to leave).  Because the officer was investigating a crime, Jenkins was “seized” in a constitutional sense and must have had legal justification for the stop.  In Massachusetts, a police officer can conduct an investigatory stop of a vehicle only if he has a reasonable suspicion, based on specific, articulable facts, that an occupant committed, was committing, or was about to commit a crime.  Com. v. Watson, 430 Mass. 725 (2000).  As there were no ‘articulable facts’ in the affidavit suggesting that Jenkins had committed a traffic violation or was otherwise involved in a crime, the stop was clearly unconstitutional, but the consequences to Hernandez’ case were not as clear.

Recognizing that the Fourth Amendment and art. 14 rights are personal rights that cannot be asserted vicariously, the court stated that “Hernandez … is not entitled to have the information obtained from Jenkins excised from the warrant affidavit unless he has standing to raise the violation of Jenkins’s constitutional rights.”  Com. v. Kirschner, 67 Mass. App. Ct. 836 (2006).  Based on the current state of the law, the court rejected Hernandez’ attempt to apply the doctrine of “target standing”, which allows one who is the target of a police investigation to challenge the use against him of evidence obtained as a result of unconstitutional conduct toward a third party. See Com. v. Scardamaglia, 410 Mass. 375 (1991).   The court noted, however, that the Supreme Judicial Court has not ruled out the possibility of recognizing target standing as a remedy for egregious police misconduct because, as the SJC has stated’ “[u]nconstitutional searches of small fish intentionally undertaken in order to catch big ones may; have to be discouraged by allowing the big fish, when caught, to rely on the violation of the rights of the small fish, as to whose prosecution the police are relatively indifferent.” Com. v. Manning. 406 Mass. 425 (1990).

In the event that Hernandez is convicted, his attorneys have identified and properly preserved one of what is sure to be many issues for appeal.

Andrew is a trial attorney representing criminal defendants and parties to civil actions – both plaintiffs and defendants – in the Massachusetts State, Federal and Appellate court systems.  He can be reached through his website, andrewberman.com, or by email at adb@andrewberman.com.

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