Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Massachusetts Man Arrested For Murder Loses Privacy Rights

Aaron C., 30, of Attleboro (hereinafter, the “Defendant”) may be a bit angry today. As I write this, he may even be on the phone calling his attorney to look into suing the authorities for invading his privacy.

It appears that he was making a telephone call and the authorities listened to the conversation…and then they arrested him.

Well, perhaps the surrounding circumstances are worth noting. He was in a police station in Providence Rhode Island at the time. He was being questioned about the murder for which he was thereafter arrested.

You see, the Defendant has been accused of shooting and killing a 67 year-old woman in her Attleboro home.

While Rhode Island did not have the jurisdiction to charge him for the murder, they held him on a charge being a fugitive from justice. The next step was to go to court on that charge and see if he would waive extradition back to Massachusetts.

The woman’s body was discovered because of a 911 call made to the police.

Which brings us back to the topic of telephone calls.

It turns out that the call the Defendant had made just prior to being arrested had been to the victim’s son.

The legal term is “Chutzpa”!

Attorney Sam’s Take:

There are a couple of instructive points to this story.

First of all, the days of leaving the state in order to successfully escape prosecution have long since ended. Today, states are able to contact one another rather quickly to be on the look-out for individuals. There are also Extradition Agreements between the states that mandate the return of an individual to the location of the crime. Being a fugitive from justice means that there is an arrest warrant in existence for the Defendant.

By the way, the same is true with treaties between many other countries and the United States.

The second point is a bit more curious. One can only guess what moved the Defendant to call the son of the victim and make inculpatory statements.

There is nothing illegal about people listening to someone on the telephone if it simply overhearing a call made in public. If the words spoken by the Defendant alone were overheard, then there is really no issue any more than there would be if I were standing behind someone at a telephone booth (remember them?) overhearing the conversation.

Further, it is silly for one who is clearly being investigated for murder to assume that lines at a police station are not tapped. However, an experienced attorney might be able to raise some issue with the listening to the call on other grounds.

We do not know if the Defendant had been advised of his Miranda Rights prior to his questioning. Often, the police will put off such advising in hopes to trick a suspect into making inculpatory statements. However, if the rights are not given, there is a question of whether the interrogation was lawfully obtained under search and seizure law.

“But how can they do that, Sam? We all know that they have to advise you of the Miranda rights.”

Not necessarily. They have to do so if the Defendant is in custody. If the Defendant is not considered in custody and so there was no coercion, they do not have to give those rights.

And so, then, here is the issue.

Was the Defendant in custody? Likely, the police would say that he was not in custody, which is why they did not have to give him the Miranda rights. If this is the case, then a defense attorney could make the argument that, if the line was tapped, the Defendant had an expectation of privacy when making the private call and that the Commonwealth should not be able to use the contents of the inculpatory conversation.

On the other hand, if the Defendant was in custody, he would likely be found to have lost said right to privacy when making the call, as he would if in jail. But then, if he had been in custody, then he should have been advised of his rights before the interrogation had begun.

The bottom line is that the Commonwealth may have to choose between the product of the pre-call interrogation and the contents of the phone.

Of course, there are many facts in this case that we do not yet know. It will be interesting to watch, though. That is, if the Defendant retains experienced counsel.

If you are under investigation or prosecution for any crime, let alone murder, you want to have experienced counsel by your side. If you or a loved one are in such trouble and wish to discuss the matter with me, please feel free to call me at (617) 206-1942.

For the full articles upon which today’s blog is based, go to , http://www.bostonherald.com/news/regional/view/20091005mass_man_arrested_in_attleboro_homicide_case/srvc=home&position=recent# and http://www.bostonherald.com/news/regional/view/20091006police_bust_suspect_in_attleboro_slaying/
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