October 19, 2026

On September 22, 2026, the Supreme Judicial Court held that a judge may not let a jury hear an opinion that gunshot residue particles were found on a defendant as evidence that the defendant fired a gun, unless the Commonwealth first proves that the particle count is reliable evidence of having fired a shot. The jury in the case heard that police found one particle on the defendant’s hand and one on his T-shirt, even though the State Police counted both tests as negative. The Commonwealth’s own expert testified that nothing could be drawn from the results. The court vacated the defendant’s first-degree murder conviction and ordered a new trial.

A Suffolk County jury had convicted Keith Williams in 2017 of murder in the first degree, armed assault with intent to murder, assault and battery by means of a dangerous weapon, and carrying a firearm without a license. The charges arose from a shooting at a parade in Dorchester in August 2014. The Supreme Judicial Court vacated all four convictions. The Commonwealth may retry Williams for murder in the first degree. The decision is Commonwealth v. Williams, SJC-12702 (Mass. Sept. 22, 2026).

The Shooting on Blue Hill Avenue

On the morning of August 23, 2014, a crowd gathered on Blue Hill Avenue in Dorchester to watch a parade. Security cameras recorded two groups of young men with a tense encounter at a convenience store. Shortly afterward, a man in the second group pulled a handgun and pointed it toward the first group. A man in the first group then fired at least five bullets toward him. None of the bullets hit the man with the gun or his companion. One bullet killed a woman crossing the street, and another struck a woman sitting on the median in the leg.

No witness identified Williams as the shooter. A witness who lived nearby watched Williams and two companions walk away from the scene, heard one companion tell him to “get rid of it,” and saw Williams dispose of a revolver at a house across the street. Police found a .357 revolver under the porch, and ballistic testing linked it to both victims. Tests of the revolver for DNA and fingerprints were inconclusive. Police stopped and handcuffed Williams and the two companions a short distance away.

The defense at trial was that Williams was not the shooter. Witnesses described the shooter differently, and some of the details did not fit Williams. One defense witness described a shooter whose clothing matched one of the two companions.

The Gunshot Residue Tests

Police collected samples from the hands of all three men at 11:53 A.M., more than three and one half hours after the shooting. Police collected Williams’s T-shirt the next day, and a criminalist collected samples from it thirteen months later. A State Police criminalist examined each sample with a scanning electron microscope. A gunshot residue particle contains three components that are not generally found together in nature. Those components are barium nitrate, lead styphnate, and antimony sulfide.

The State Police and the Federal Bureau of Investigation require three or more particles for a positive test, and a laboratory cannot add up particles found on separate samples. Every test in the case was negative. The criminalist found one particle on one sample from Williams’s hands and one particle on the T-shirt. He found no particles on either companion. The criminalist agreed on cross-examination that there was “nothing to be drawn from” the negative results. He also agreed that the threshold exists in part to account for contamination.

The criminalist testified that gunshot residue particles are resilient and transferable, and that they persist on handcuffs and on surfaces in police cruisers and police stations. Police had handcuffed and transported all three men before collecting the samples.

The Trial Judge Admitted the Particle Counts

Before trial, the Commonwealth asked to present the expert’s testimony that one particle was found on each of the two samples from Williams. The Commonwealth acknowledged that the expert would testify that the results were negative. The Commonwealth cited Commonwealth v. Johnson, 463 Mass. 95, 108-109 (2012), and planned to argue that the jury could infer from the particles that Williams was the shooter.

Williams opposed the request. He argued that the Commonwealth was using a negative result as if it were positive, and that the particles could have come from contamination. He submitted the laboratory report on the T-shirt, which stated that no conclusions could be drawn from the results. He also submitted a Boston police policy stating that it was not yet possible to assess scientifically the significance of a gunshot residue identification. The judge allowed the testimony, ruled that Williams’s objections went to the weight of the evidence, and left it to the jury to decide what inferences to draw.

The Commonwealth then relied on the particles in its opening statement and its closing argument. In closing, the prosecutor told the jury that the three-particle threshold was “not [their] protocol” but a State Police standard, and that the jury could interpret the evidence however it wanted.

The Reliability Holding

The Supreme Judicial Court held that the judge should not have admitted the testimony as evidence that Williams was the shooter. Expert testimony is admissible under the Daubert-Lanigan standard only when the party offering it proves that it is reliable. The Commonwealth had to prove that the method is reliable and that the expert applied it reliably to the facts of this case. Commonwealth v. Hinds, 487 Mass. 212, 220 (2021); Commonwealth v. Davis, 487 Mass. 448, 453 (2021).

The court held that the Commonwealth offered no evidence that detecting one particle in each of two negative results reliably showed that Williams fired the gun. The only evidence on the point was its own expert’s statement that nothing could be drawn from the results. The Commonwealth also offered no measure of reliability for the particle counts. The Commonwealth argued that the jury could draw the inference and that Williams’s objections went to weight, but the court held that the Commonwealth had to lay the foundation first.

The Court Limits Johnson

The Commonwealth relied on Johnson, in which the Supreme Judicial Court said that the jury could infer a greater likelihood of guilt from two particles found on a sweatshirt. The court explained that in Johnson the defendant did not object to the testimony, and that the court had not decided whether particle counts below the positive threshold are reliable evidence that a person fired a gun. The court disavowed any suggestion in Johnson that such counts support the inference by themselves.

The court did not hold that a below-threshold particle count is always inadmissible. Admissibility depends on the foundation the Commonwealth lays and the inference it asks the jury to draw. The court contrasted Commonwealth v. Linton, 483 Mass. 227, 241-242 (2019), in which an expert showed that a DNA result below a minimum threshold still provided relevant data. The Commonwealth in Williams made no comparable showing.

The Error Required a New Trial

The Supreme Judicial Court held that the error was prejudicial. The prosecutor used the particles in both the opening statement and the closing argument. The prosecutor also used them to answer the defense argument that contamination explained the particles. Both companions had also been handcuffed and transported, yet no particles were found on them.

The Commonwealth’s other evidence of identity was not overwhelming. Williams was seen with the companions seconds after the shooting and disposing of the revolver, and one witness described the shooter as the largest of the three men. However, no witness or forensic test identified him as the shooter. The strongest description for the Commonwealth also included details that did not fit him. Another witness described a shooter who matched a companion’s appearance. The court could not conclude that the error had little or no effect on the jury, so it ordered a new trial on the murder, armed assault, and assault and battery charges.

Retrial for First-Degree Murder Remains Possible

Williams also argued that the evidence did not prove deliberate premeditation, which would have barred a retrial for first-degree murder. The court rejected the argument. Deliberate premeditation can form in a few seconds, and the jury could infer from the events that Williams decided to kill the man with the gun before he fired at least five rounds toward him. The Commonwealth may therefore retry him for first-degree murder.

The court separately vacated the conviction for carrying a firearm without a license. The judge had not instructed the jury that the Commonwealth must prove the defendant had no valid license. Commonwealth v. Carleton, 497 Mass. 11, 13 (2026).

Gunshot Residue Evidence After Williams

When the Commonwealth offers gunshot residue evidence that falls short of a positive result, the defense can ask the judge to exclude it unless the Commonwealth proves, before the jury hears it, that it reliably shows what the Commonwealth says it shows. The defense can ask for a hearing under the Daubert-Lanigan standard, often with a defense expert, and can use the laboratory’s own reports, its protocols, and the expert’s own statements about the threshold.

The decision also shows what a defense lawyer can ask in these cases. When did the police collect the samples? Where was the person held and transported before collection? Did the other people tested have the same contact with handcuffs and cruisers? The expert in Williams agreed that particles persist on those surfaces. The answers can support a motion to exclude the evidence and can support cross-examination if the judge admits it.

Serpa Law Office defends firearms charges in the Boston Municipal Court, the District Court, and the Superior Court. Gunshot residue testing is one of several kinds of forensic evidence that can arise in a firearms case.

Key Takeaways

• In Commonwealth v. Williams, SJC-12702 (Mass. Sept. 22, 2026), the Supreme Judicial Court vacated a first-degree murder conviction because the jury heard gunshot residue particle counts from negative test results.
• The Commonwealth must prove that expert testimony is reliable before the jury hears it, including that the method was reliably applied to the facts of the case.
• A laboratory’s own positive threshold, and its expert’s statement that nothing can be drawn from a negative result, can support a motion to exclude particle counts below the threshold.
• The court limited Commonwealth v. Johnson, 463 Mass. 95 (2012), and held that below-threshold counts are not automatically admissible as evidence that a person fired a gun.
• The court did not bar retrial for first-degree murder, and it separately vacated the license conviction under Commonwealth v. Carleton, 497 Mass. 11, 13 (2026).

Related Serpa Law Office resources

• Massachusetts Criminal Defense of Firearms Offenses
• Carrying a Firearm Without a License in Massachusetts: G.L. c. 269, § 10(a)
• When Police May Frisk a Person for a Gun in Massachusetts: Commonwealth v. Vihaan V.
• How I Use Experts in a Massachusetts Criminal Case
• Medical Expert Testimony in Massachusetts Criminal Cases: The Hsu Decision on Abusive Head Trauma
• Cross-Examination in Massachusetts Criminal Trials
• Massachusetts Criminal Charges Defense

October 16, 2026

On September 24, 2026, the Massachusetts Appeals Court upheld the convictions of a man who pursued a woman he met in high school for about fifteen years, violated the harassment prevention order she obtained against him, and threatened her family in emails sent from other women’s accounts. A Middlesex Superior Court jury convicted Michael Hayes, who represented himself at trial, of stalking, criminal harassment, violating a harassment prevention order, witness intimidation, identity fraud, attempted identity fraud, and unauthorized access to a computer system. The decision is Commonwealth v. Hayes, Nos. 25-P-347 and 25-P-607 (Mass. App. Ct. Sept. 24, 2026).

On appeal, the defendant argued that the police exceeded the search warrant for his phone, that the judge’s instructions about anonymous emails lowered the Commonwealth’s burden of proof, and that a mailing he sent from jail to a witness was protected speech. The Appeals Court rejected each of those arguments. The Commonwealth separately appealed the judge’s decision, almost two years after the original sentencing, to reduce the defendant’s sentence. The Appeals Court upheld the reduction.

The Contact, the Harassment Prevention Orders, and the Threats

The defendant met the woman in 2005, when they were high school juniors. She declined his request for a date and offered to be friends. He called her repeatedly, told her he loved her, waited outside her classes, and followed her around school. When she asked him to leave her alone, he yelled and swore at her until other people intervened. At a meeting with school officials and his parents, the defendant was told to leave her alone. He kept contacting her with notes and emails. After she went to college, his emails used profanity and became angry and threatening.

In 2009, the woman found her car keyed from top to bottom. She reported the damage to the police and obtained an order requiring the defendant to stay away from her. A few years later he twice approached her at a gym. She gave up her membership. In December 2015, while he was hospitalized after a stroke, the defendant emailed her at work to say that he would not stalk her but would always love her. She then obtained a one-year harassment prevention order that barred all direct and indirect contact.

During that year the woman received emails that apparently came from the defendant through anonymous addresses. The emails threatened suicide, blamed her family, and asked her to have the order lifted. The defendant also told her mother on Facebook that the order was ruining his hopes of a career in law enforcement, and that he would make the family come back to court every year to renew the order. In December 2016, the woman obtained a permanent harassment prevention order.

After she obtained the permanent order, the woman began receiving alerts about attempts to log in to her social media accounts. In March 2019, a stranger who described himself as a hacker texted her that someone had tried to hire him to break into her Facebook and Google accounts. She reported the text to the police. In November 2019, she received five unanswered calls in quick succession, the last from a number she connected to the defendant. The police then obtained a warrant for his arrest and a search warrant for his electronic devices.

After the police searched his devices, the defendant was charged with violating the harassment prevention order. The threats continued while that charge was pending. One email told the woman that the sender had succeeded in what he was attempting to do and would embarrass her if she did not stop going forward with the trial. Another email, sent to her mother, threatened to have the woman arrested for possession of child pornography and to ruin her teaching career. In August 2020, the mother received emails threatening to kill her and her husband.

The August 2020 emails came from the accounts of four women. Each woman testified that she did not know the defendant and did not send the emails. Each woman also had private Snapchat photographs that had been compromised. The police obtained a second arrest warrant and a second search warrant. The defendant remained in custody after that arrest. The threats to the family then stopped.

The Search of the Defendant’s Phone

The 2019 search warrant for the defendant’s electronic devices authorized the police to search for internet search history and communication history relating to the woman or her mother, login history for email and social media applications, and data related to software that could be used to break into the woman’s accounts. The police found screenshots of login pages for other people’s accounts, including the woman’s, and screenshots of his conversations with the hacker. The Notes application held entries titled “Hacking Facebook profiles” and “Hacking Snapchats.” A pictures folder held a folder with the woman’s name and a photograph altered to make her appear partially nude.

The defendant argued that the warrant did not authorize the police to search photographs, screenshots, or notes. The Appeals Court held that a search of electronic devices “may be as extensive as reasonably required to locate the items described in the warrant.” Commonwealth v. Dorelas, 473 Mass. 496, 502 (2016). When a warrant does not name particular files or applications, the police may search any file or application that could reasonably contain the evidence the warrant describes. Commonwealth v. Henley, 488 Mass. 95, 119-120 (2021).

A defendant who claims that the police exceeded a warrant bears the burden of showing that the search went beyond its terms. Commonwealth v. Carleton, 497 Mass. 11, 29 (2026). The Appeals Court held that the warrant’s authorization to seize login history included the screenshots of login pages. The authorization to seize communication history and data about software for breaking into accounts included the screenshots of the conversations with the hacker. The police could reasonably open a folder bearing the woman’s name, because communications can be stored in photographic form. The Notes entries about hacking fit the warrant’s description of data about breaking into her accounts.

Authentication of an Anonymous Email

Much of the Commonwealth’s evidence consisted of emails, texts, and calls from anonymous addresses or other people’s accounts. The Commonwealth must authenticate an email or a text, with evidence that the defendant wrote it, before a jury may consider it as the defendant’s message. The judge first decides “whether there is evidence sufficient, if believed, to convince the jury by a preponderance of the evidence that the item in question is what the proponent claims it to be.” Commonwealth v. Purdy, 459 Mass. 442, 447 (2011). The jury then decides for itself, by a preponderance of the evidence, whether the defendant wrote the message.

The defendant argued that the jury had to decide beyond a reasonable doubt who wrote the emails, because authorship was an element of nearly every charge. Authentication, however, is a preliminary question of fact. A preliminary question of fact requires only a preponderance of the evidence, even when the question is closely tied to an element of the crime. Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 366-367 (2014). The jury must still decide whether the Commonwealth proved each element of each charge beyond a reasonable doubt.

The jurors asked the judge twice which standard applied to authorship of the emails. The judge told the jurors to decide whether it was more likely true than not true that the defendant wrote an email before considering its content. He told them to disregard any email they could not attribute to the defendant by that standard and to decide the charges on the remaining evidence. He also told them that the Commonwealth always had the burden of proving each charge beyond a reasonable doubt. The Appeals Court held that those instructions were correct and presumed that the jury followed them.

In Commonwealth v. Alden, 93 Mass. App. Ct. 438, 444 (2018), the Appeals Court explained that “authenticity and identity are different legal concepts.” A defendant can still challenge an email after the judge admits it. The defendant can attack the reliability of the email and argue to the jury that someone else wrote it. The jury weighs those arguments with the rest of the evidence. Commonwealth v. Meola, 95 Mass. App. Ct. 303, 313 (2019).

A Mailing From Jail as Witness Intimidation

In March 2021, while he was in custody awaiting trial, the defendant mailed the hacker a printout of the hacker’s driver’s license information, including his date of birth and home address. The printout had a photograph of the hacker’s face with a swastika drawn on the forehead, along with handwritten insults and slurs that named people involved in the prosecution. The return address identified the defendant as an inmate at the jail. The jury convicted the defendant of witness intimidation under G.L. c. 268, § 13B for that mailing.

The defendant argued that the witness intimidation statute punishes only speech that the First Amendment does not protect, and that the mailing was not a true threat. The Appeals Court agreed that the statute may not punish protected speech. The court held, however, that the jury could find the mailing to be a true threat. A court measures a true threat objectively, by asking “whether, in light of the attendant circumstances, the words justifiably caused the recipient to fear violence.” Commonwealth v. Cruz, 495 Mass. 110, 113 (2024).

The jury could find that the defendant targeted the hacker because the hacker had helped start the investigation. The jury could also find that the mailing showed the hacker that the defendant could obtain his personal information and send mail to his home while sitting in jail. In addition, the Commonwealth must prove that the defendant was at least aware that others could regard the communication as threatening violence. The United States Supreme Court set that requirement in Counterman v. Colorado, 600 U.S. 66 (2023). The defendant did not raise that element on appeal.

The Reduced Sentence

After the trial, the judge sentenced the defendant and denied his timely motion to revise or revoke the sentence under Rule 29 of the Massachusetts Rules of Criminal Procedure. The judge treated the defendant’s later filings as a motion to reconsider that denial. The judge then asked the Probation Department for a Brief Risk Assessment for Violent Offending, known as a BRAVO report, from a program that did not exist at the original sentencing. After a hearing, almost two years after the original sentencing, the judge reduced the time the defendant had to serve in custody and revised his probation terms.

The Commonwealth argued that the judge could not rely on a report that did not exist at sentencing. On a motion to revise or revoke, a judge may not consider the defendant’s conduct after sentencing, which is a question for the parole board. Commonwealth v. DeJesus, 440 Mass. 147, 152 (2003). Commonwealth v. McGuinness, 421 Mass. 472, 476 n.4 (1995). The judge in Hayes stated that he did not rely on any rehabilitation after sentencing. He used the BRAVO report to analyze the information that existed at sentencing and to impose a just sentence. The Appeals Court held that the judge acted within his discretion.

Stalking and Harassment Prevention Order Cases After Hayes

Many stalking, criminal harassment, and harassment prevention order cases depend on messages from anonymous numbers, new accounts, or accounts that belong to someone else. In Hayes, the evidence connecting the messages to the defendant included screenshots and notes on his devices, account information on his devices for the women’s accounts that sent the threats, records of calls that matched the five missed calls, and the end of the threats once he was held in custody. A person accused of sending anonymous messages can contest each piece of that evidence, first when the judge decides whether to admit a message and again before the jury.

A person seeking a harassment prevention order should keep every message, login alert, and call record, and should report each one to the police when it happens. The woman in Hayes reported the keyed car, the email from the hospital, the hacker’s text, the missed calls, and the threats to her family. Serpa Law Office represents both plaintiffs and defendants in harassment prevention order cases, and defends people charged with stalking, criminal harassment, and violating a harassment prevention order.

Key Takeaways

• A phone search warrant that lists categories of evidence authorizes the police to search any file or application that could reasonably contain that evidence, including photographs and notes. Commonwealth v. Dorelas, 473 Mass. 496, 502 (2016).
• A defendant who claims that the police exceeded a search warrant bears the burden of showing that the search went beyond its terms.
• A jury may consider an email or text as the defendant’s message only if the jury finds, by a preponderance of the evidence, that the defendant wrote it. Commonwealth v. Meola, 95 Mass. App. Ct. 303, 313 (2019).
• The Commonwealth must still prove every element of every charge beyond a reasonable doubt.
• A mailing that uses a witness’s photograph and personal information to frighten the witness can be a true threat and witness intimidation under G.L. c. 268, § 13B.
• On a motion to revise or revoke a sentence, a judge may use a new assessment tool to analyze the information that existed at sentencing, but may not consider the defendant’s conduct after sentencing.
• In Commonwealth v. Hayes, Nos. 25-P-347 and 25-P-607 (Mass. App. Ct. Sept. 24, 2026), the Appeals Court upheld every conviction and the reduced sentence.

Related Serpa Law Office resources

• The Effort to Expose Cornell’s Jane Doe: Doxing, Misogyny, and the Law
• Charged With Violating a Massachusetts 258E Harassment Prevention Order: Contact, Defenses, and Penalties Under G.L. c. 258E, § 9
• Massachusetts Stalking Defense (M.G.L. c. 265, § 43)
• Massachusetts Criminal Harassment Defense (M.G.L. c. 265, § 43A)
• Digital Evidence in Massachusetts Criminal Cases: Admission and Objection
• Massachusetts Text Message and Phone Evidence FAQs
• Phone, Computer, and Digital Device Searches in Massachusetts
• Intimidation of a Witness (G.L. c. 268, § 13B)
• Threats to Commit a Crime in Massachusetts (G.L. c. 275, § 2)
• First Amendment Limits in Massachusetts Criminal Harassment and 258E Cases
• Correcting a Massachusetts Criminal Sentence: Rule 29, Rule 30(a), and the Limits of Finality
• Massachusetts 258E Harassment Prevention Orders: Defense and Plaintiff Representation

October 16, 2026

On September 30, 2026, the Massachusetts Appeals Court ordered the dismissal of gun charges against a juvenile whom Boston police had frisked after a 911 call reporting “three guys with guns” in a Dorchester backyard. The police ordered the juvenile out of a car at the scene, pat frisked him, and found a handgun in his waistband. The Appeals Court held that the officers had no specific facts showing that this juvenile was armed and dangerous. The frisk was therefore unlawful. The Juvenile Court judge should have suppressed the gun and the ammunition.

A Juvenile Court judge tried the juvenile, whom the Appeals Court calls Vihaan V., without a jury on charges of carrying a firearm without a license under G.L. c. 269, § 10(a), and possessing ammunition without a firearms identification card under G.L. c. 269, § 10(h). A Juvenile Court judge who finds that a juvenile committed an offense adjudicates the juvenile delinquent instead of finding the juvenile guilty. The judge adjudicated Vihaan V. delinquent on both charges. The Appeals Court set aside both findings and ordered the complaint dismissed. The decision is Commonwealth v. Vihaan V., No. 25-P-500 (Mass. App. Ct. Sept. 30, 2026).

The 911 Calls in Dorchester

At 6:33 P.M. on May 16, 2021, a woman called the Boston police, gave her name and telephone number, and reported that many people were on her Dorchester property playing dice, smoking marijuana, and riding mopeds. She was not at home, but her children were. Seven minutes later she called 911 again and reported that someone at her home had said that “three guys with guns” were in her backyard.

The caller’s son was watching from a window and describing the men to her. According to the son, all three men were Black and skinny. One wore a black Nike sweater, black jeans, and black Nike Air Force shoes, and another wore all black. Some of the people were in a gray Mercedes-Benz. The dispatcher called her back a few minutes later. The caller then reported that the men were still in the backyard, that one of them had left on a moped with a gun, and that the police should look inside the bag of the man in the orange sweater.

The Frisk of the Juvenile

Two Boston police officers responded and found a large group of people who were “pretty upset and hostile” toward the police, including a man in an orange sweatshirt. The gray Mercedes-Benz was empty. One of the officers had responded to a report of shots fired in the same area three days earlier. The police pat frisked several people and found nothing.

One officer then noticed four people sitting in a green Honda Accord. The back seat passenger on the driver’s side wore black Nike Air Force shoes and all black clothing, which matched one of the descriptions. The officer did not notice anyone else in the Honda who matched a description. The juvenile sat in the front passenger seat, wearing a navy blue Nike hoodie and a red face mask. The police ordered all four occupants out of the car. An officer pat frisked the juvenile and found a handgun in his waistband.

The Standard for an Exit Order and the Stricter Standard for a Patfrisk

Massachusetts courts apply one standard when police order a passenger out of a car and a stricter standard when police pat frisk a person. Under Commonwealth v. Torres-Pagan, 484 Mass. 34, 38 (2020), police may order a passenger out of a car during a traffic stop when they reasonably believe that the safety of the officers or others is threatened, when they have reasonable suspicion of criminal activity, or when they are searching the car on other grounds.

Police need more to justify a patfrisk than an exit order. The Supreme Judicial Court held in the same case that the police must have “a reasonable suspicion, based on specific articulable facts, that the suspect is armed and dangerous.” Torres-Pagan, 484 Mass. at 38-39. The police must have reasonable suspicion that the particular person they frisk is armed and dangerous. At a hearing on a motion to suppress, the Commonwealth must prove that the officers had a lawful basis for the exit order and the frisk.

The Juvenile Court judge denied the juvenile’s motion to suppress. The judge ruled that once the back seat passenger matched a description, the police could reasonably order the other occupants out of the car to see whether they matched as well. The Appeals Court did not decide whether the exit order was lawful. The court held that, even if the exit order was lawful, the Commonwealth had not met the stricter standard for the frisk.

The Officers’ Testimony About the Juvenile

Neither officer described any fact at the suppression hearing suggesting that the juvenile was armed. One officer testified that the juvenile “was pretty calm” and “didn’t act in any particular way that was kind of alarming.” The Appeals Court contrasted Commonwealth v. Karen K., 491 Mass. 165 (2023), in which officers saw a juvenile angle her body away from them, change direction suddenly to avoid them, and adjust her waistband. The court also contrasted Commonwealth v. Johnson-Rivera, 104 Mass. App. Ct. 533 (2024), in which an officer testified that the juvenile wore a cross-body bag, appeared nervous, and had open criminal charges.

The Appeals Court rejected two other facts as reasons for the frisk. The juvenile was sitting in the Honda with the back seat passenger who matched a description. The court held that the juvenile’s presence in the car did not give the police reasonable suspicion that the juvenile was armed and dangerous, even if the police had reasonable suspicion about that passenger. One officer had also responded to a shots-fired report in the area three days earlier. Under Commonwealth v. Sertyl, 101 Mass. App. Ct. 836, 843 (2022), an unconnected report of shots fired in the area does not show that a particular person is armed and dangerous.

The Commonwealth’s Three Arguments for the Frisk

A Report of Guns

The Commonwealth argued that the 911 report involved guns, which are inherently dangerous. The Appeals Court answered with the rule stated in Commonwealth v. D.M., 100 Mass. App. Ct. 211 (2021), that “a tip suggesting a concealed firearm, with nothing more, [cannot] provide reasonable suspicion for a stop.” At oral argument, the Commonwealth also relied on the officer’s testimony that a handgun can easily pass from one person to another. The court held that the police could not rely on the hypothetical possibility of a transfer, because nothing indicated that anyone had passed a gun to the juvenile.

A General Description

The Commonwealth argued that the juvenile was one of a group of young men roughly matching the reported age range, and that his navy blue clothing was close to the “all black” clothing of the second man the son described. The Appeals Court quoted the Supreme Judicial Court’s statement in Commonwealth v. Palmer, 498 Mass. 117, 127 (2026), that “[t]he fact that an individual matches a broad, general description does not alone amount to reasonable suspicion, particularly if that description could fit many people in the area where the stop takes place.”

The descriptions in the 911 calls were vague, and the clothing they described was common. The officer who conducted the frisk testified that he noticed no one else in the Honda who matched a description. On that record, the Appeals Court concluded that the police knew little more than that the juvenile was “a random [B]lack male in dark clothing,” the phrase the Supreme Judicial Court used in Commonwealth v. Warren, 475 Mass. 530, 540 (2016), when it held that the police in that case lacked reasonable suspicion for a stop.

Frisks of Other People

The Commonwealth argued that the frisks of several other people had turned up no gun, which gave the police reason to keep frisking people, including the juvenile. The Appeals Court rejected that argument as one that “comes perilously close to saying that everyone in the area should be subject to police search.” The court pointed to the Supreme Judicial Court’s statement in Commonwealth v. Johnson, 454 Mass. 159, 163 (2009), that the many law-abiding people who live in, work in, or visit so-called high crime areas are entitled to protection against being stopped and frisked just because of the neighborhood.

Suppression of the Gun and Dismissal of the Complaint

The Juvenile Court judge should have suppressed the firearm and the ammunition, because the Commonwealth did not prove that the police had reasonable suspicion that the juvenile was armed and dangerous. The Appeals Court set aside both findings of delinquency and ordered the complaint dismissed. The court decided the appeal on the frisk alone and did not decide two other questions. The first is whether the police lawfully ordered the juvenile out of the Honda. The second is whether the 911 information was reliable, given that the caller was away from home and her son never identified himself to the police.

Frisk Cases in Massachusetts After Vihaan V.

The armed and dangerous standard applies to adults as well as juveniles. Before any patfrisk, the police must know specific facts about the person, such as the person’s movements, conduct, or statements, that give them reasonable suspicion that the person is armed and dangerous. A report of guns in the area, a companion who matches a description, an earlier shooting nearby, and frisks of other people that found nothing are not enough by themselves. The defense can move to suppress the gun, the ammunition, and any other evidence the police found during a frisk that was not based on facts about the person frisked.

A motion to suppress in a frisk case depends on what the police knew at the moment of the frisk. The record of what the police knew includes the 911 recordings, the dispatch information, the officers’ reports and testimony, and any body-worn camera video. In Vihaan V., the Appeals Court reviewed the body-worn camera video itself. The court also relied on an officer’s own testimony that the juvenile was calm. An adult charged after the same kind of frisk in Dorchester would ordinarily face arraignment in the Dorchester Division of the Boston Municipal Court, where Serpa Law Office defends firearms charges.

Key Takeaways

• Police may pat frisk a person only when they have reasonable suspicion, based on specific articulable facts, that the person is armed and dangerous. Commonwealth v. Torres-Pagan, 484 Mass. 34, 38-39 (2020).
• The standard for a patfrisk is stricter than the standard for ordering a passenger out of a car.
• The police need facts about each person they frisk. A 911 report of guns, a companion who matches a description, an earlier shooting nearby, and frisks of other people that found nothing are not enough by themselves.
• Matching a broad description that could fit many people in the area does not, by itself, give the police reasonable suspicion.
• In Commonwealth v. Vihaan V., No. 25-P-500 (Mass. App. Ct. Sept. 30, 2026), the Appeals Court held that the Juvenile Court judge should have suppressed the gun and the ammunition, set aside the findings of delinquency, and ordered the complaint dismissed.

Related Serpa Law Office resources

• Carrying a Firearm Without a License in Massachusetts: G.L. c. 269, § 10(a)
• Possession of a Firearm or Ammunition Without an FID Card in Massachusetts: G.L. c. 269, § 10(h)
• Illegal Searches and Seizures in Massachusetts: Motions to Suppress
• Massachusetts Traffic Stops, Exit Orders, and Pretext Searches: Your Rights Under Article 14
• When a Police Chase Becomes a Seizure: Commonwealth v. Palmer
• What to Do When Your Child Is Arrested or Charged in Massachusetts: Juvenile Delinquency and Youthful Offender Defense
• Massachusetts Criminal Defense of Firearms Offenses
• BMC Dorchester: A High-Volume Division, Immigration Stakes, and Firearms Defense
• Gunshot Residue Evidence in a Massachusetts Murder Trial: Commonwealth v. Williams

The Massachusetts Supreme Judicial Court affirmed the denial of expungement after a Juvenile Court judge terminated a harassment prevention order against a fourth grader. In Piper P. v. Barron B., SJC-13854, decided October 5, 2026, the Court declined to recognize an exception for orders later vacated for insufficient evidence. The judge had found that the evidence did not establish harassment, but had not found fraud on the court.

The Order and the School Investigation

According to the opinion, a fourth grade student sought a 258E harassment prevention order against a classmate in April 2024. A judge declined to issue an order without notice. At a two-party hearing on May 2, the plaintiff testified that the classmate pushed her into a corner during gym class, kicked her in the head, and stepped on her hand. The judge credited that testimony and issued an order through November 1, while stating that he would revisit the order after the school district completed its investigation.

The school district interviewed students and staff but did not substantiate intentional physical contact or the repeated targeting required for a finding of bullying. After another hearing in July 2024, the judge terminated the harassment prevention order. He initially allowed a motion to expunge the records as well. The Massachusetts Probation Service intervened and sought reconsideration, and the judge then vacated the expungement ruling. The child appealed.

The Court’s Reasons for Affirming the Denial

Justice Georges wrote for the Court. The majority concluded that G.L. c. 258E gives judges neither express nor implied authority to expunge an order from the statewide domestic violence record keeping system because later evidence fails to support it. The Court applied its reasoning in Vaccaro v. Vaccaro, 425 Mass. 153 (1997), which concerned the registry record of a 209A abuse prevention order.

The majority also declined to expand the courts’ inherent authority beyond the recognized exception for fraud on the court. A later failure of proof does not itself establish intentional deception. The Juvenile Court judge had expressly found no fraud, and the child did not challenge that finding on appeal. The Court therefore affirmed the denial of expungement.

The Concurrence and Dissent on Proceedings Involving Children

Justice Kafker, joined by Justice Wendlandt, concurred. They urged the Legislature to clarify the treatment of 258E harassment prevention orders involving children under twelve. The concurrence questioned how those proceedings fit with the 2018 criminal justice reform legislation, which excluded children under twelve from delinquency jurisdiction, and how violations by those children could be enforced.

Chief Justice Budd dissented. She would permit a judge to consider expungement where the plaintiff is a child under twelve and the judge finds that the underlying allegations lack factual support or are untrue. Her proposed approach concerned a child who was the reporting party, rather than an adult who listed children as additional plaintiffs. Balancing the government’s interest in retaining the record against the harm to the child in this case, she would have ordered expungement.

The Decision’s Effect and Further Guidance

The majority left any broader expungement remedy to the Legislature. The decision does not create an insufficient-evidence exception for an order against a child. The statewide record continues to show the order and its termination.

The firm’s guide to expunging a Massachusetts 209A restraining order or 258E harassment prevention order explains the governing standard, registry correction, motion procedure, and frequently asked questions. The separate expungement FAQ page addresses additional questions about records and access.

The defendant in Commonwealth v. Goncalves installed a camera high on the living room wall of his basement apartment in Edgartown and aimed the camera at the couch. In December 2021, the defendant and the victim, whom the defendant had met through an online application, had a sexual encounter that began on the couch. The defendant used the camera to photograph the nude victim without the victim’s knowledge.

Two weeks later, the defendant sent the victim a photograph from the encounter. The evidence at trial showed that the defendant sent the photograph only to the victim.

A jury in the Edgartown District Court found the defendant guilty of photographing an unsuspecting nude person under G.L. c. 272, § 105(b), and of disseminating the photograph under G.L. c. 272, § 105(c). On October 6, 2026, the Supreme Judicial Court (SJC) decided the defendant’s appeal under two rules. Commonwealth v. Goncalves, No. SJC-13880 (Mass. Oct. 6, 2026).

The first rule governs the photographing. The Commonwealth must prove that the defendant photographed the victim intentionally and intended to keep the photographing secret. The SJC held that the evidence was sufficient to prove an intent to record in secret and upheld the conviction for photographing an unsuspecting nude person.

The second rule governs dissemination. The Commonwealth must prove that the defendant disseminated the image to at least one third party, meaning a person other than the person shown in the image. Sending a secretly recorded image only to the person shown in the image is not dissemination under § 105(c). The SJC reversed the dissemination conviction and directed the entry of a judgment of not guilty, because the defendant sent the photograph only to the victim.

This post explains each rule, the evidence at trial, and how defense counsel uses the decision in a pending case.

Secretly Photographing a Nude Person and Disseminating the Image Under G.L. c. 272, § 105

Section 105(b) punishes a person who willfully photographs, videotapes, or electronically surveils another person who is nude or partially nude, with the intent to secretly conduct or hide the photographing, videotaping, or surveillance. The Commonwealth must also prove that the person photographed would reasonably expect privacy from being photographed in the place and circumstances where the photographing occurred. The photographing must have occurred without the knowledge and consent of the person photographed.

A judge may sentence a person convicted under § 105(b) to up to two and one half years in a house of correction, a fine of up to $5,000, or both. The § 105(b) offense is a misdemeanor.

Section 105(c) punishes a person who willfully disseminates the visual image of another person, knowing that the image was obtained in violation of § 105(b), without the consent of the person shown in the image. Section 105 does not define the word “disseminates.”

A judge may sentence a person convicted under § 105(c) to up to two and one half years in a house of correction or up to five years in state prison. The judge may also impose a fine of up to $10,000, instead of or in addition to imprisonment. Dissemination under § 105(c) is a felony under G.L. c. 274, § 1, because § 105(c) provides for a state prison sentence.

Section 105 applies to video and electronic surveillance as well as to photographs. Section 105(a) defines “electronically surveils” as viewing, obtaining, or recording a person’s visual image with a camera, cell phone, computer, television, or other electronic device. The SJC used the words “photograph” and “photographing” in Goncalves because the witnesses and the parties used those words.

A hidden camera can also record sound. The police can apply for a complaint under the Massachusetts wiretap statute, G.L. c. 272, § 99, against a person who secretly records a conversation without the prior authority of every party to the conversation.

The Evidence at Trial

The defendant’s profile on the online application stated, “I will never make videos.” On December 6, 2021, the victim came to the defendant’s apartment. The sexual encounter began on the living room couch, where the victim sat nude, facing the camera. The victim did not notice the camera or any other sign of recording. After about ten minutes, the defendant and the victim moved to the defendant’s bedroom.

The defendant had mounted the camera high on the living room wall, near a dark-colored pipe and a dark gap between the ceiling and the wall. The defendant had pointed the camera directly at the couch.

The defendant and the victim next communicated two weeks later, when the victim sent the defendant a text message. The defendant responded with a photograph from the December 6 encounter, showing the defendant and the victim, both nude, in the living room. The victim wrote back and questioned the defendant about “secretly recording guys that come over.” The victim also raised the possibility of reporting the defendant to the Edgartown police. The defendant replied, “Block u[.] Bye.”

Police later searched the apartment and saw the camera installed in the living room. The police also found the empty box in which the camera was sold, inside a dresser drawer in the defendant’s bedroom. The defendant had posted no signs in the apartment telling visitors about recording.

The police found no photograph or other recording of the victim in the defendant’s possession. The camera contained no memory card at the time of the search. The police could not open the defendant’s cell phone.

The defendant later told a police officer, “So I make porno,” and laughed.

A jury heard the case in the Edgartown District Court in March 2024. The defendant presented no evidence. The jury found the defendant guilty on both charges. The judge sentenced the defendant on each conviction to ninety days in a house of correction, with ten days to serve and the balance suspended for one year. The judge ordered the two sentences served at the same time and also imposed one year of administrative probation.

The SJC granted the defendant’s application for direct appellate review. The SJC therefore decided the appeal without a decision from the Appeals Court.

The Intent to Record in Secret Under § 105(b)

The SJC held that the evidence was sufficient for the jury to find that the defendant willfully photographed the victim in the nude and that the defendant intended to keep the photographing secret. The parties agreed that “willfully” means “intentional[ly] and by design[,] in contrast to that which is thoughtless or accidental.”

The defendant argued that the photographing was accidental. The SJC rejected the defendant’s argument that the evidence supported a finding of accident as strongly as a finding of willful photographing. The SJC pointed to five facts.

• The jury could infer from the empty camera box in the defendant’s dresser that the defendant installed the camera while living in the apartment.
• The defendant installed the camera high on the living room wall and pointed the camera directly at the couch where the sexual encounter began.
• The defendant showed that he knew he had photographed the encounter when he answered the victim’s text message with a photograph from the encounter.
• The defendant did not claim that the recording was accidental when the victim questioned him about “secretly recording guys that come over.” The defendant instead replied, “Block u[.] Bye.”
• The defendant told the police, while laughing, that he had made “porno.”

The SJC held that the jury could find that the defendant’s reply to the victim and the defendant’s statement to the police showed consciousness of guilt, meaning an awareness that he had done something wrong. The SJC described the statement to the police as an apparent attempt to minimize the defendant’s conduct.

The SJC also held that the evidence supported the jury’s finding that the defendant intended to keep the photographing secret. The jury could find that the defendant chose the camera’s location to make the camera less noticeable to visitors. The defendant never told the victim about the camera and never asked for the victim’s consent. Moreover, the jury could find that the defendant wrote “I will never make videos” in his profile to reassure prospective visitors.

The defendant argued that evidence of his failure to seek consent could not also prove his intent to hide the photographing, because lack of consent is a separate element of § 105(b). The SJC disagreed with the defendant. The SJC held that the defendant’s failure to tell the victim about the camera, considered together with the camera’s placement, tended to prove that the defendant intended to keep the photographing secret.

Dissemination to a Third Party Under § 105(c)

The SJC held that dissemination under § 105(c) requires dispersing the image to at least one third party. In the SJC’s words, “sending a photograph of a victim solely to the victim himself or herself does not amount to ‘disseminat[ing]’ the photograph.” The Commonwealth offered no evidence that the defendant sent the photograph to anyone other than the victim. The SJC therefore held that the Commonwealth did not prove the dissemination charge.

The SJC began with the ordinary meaning of the word “disseminates.” Dictionary definitions describe dissemination as spreading, dispersing, or scattering widely. From those definitions, the SJC concluded that the plain meaning of “disseminate” involves “spreading or dispersing material.”

The SJC also relied on the penalties in § 105. The Legislature set the penalties for dissemination under § 105(c) at twice the penalties for photographing under § 105(b). The SJC read the higher penalty as the Legislature’s recognition that spreading a secretly recorded image to other people causes a distinct and greater harm than creating the image.

The SJC identified the harm of dissemination as the exposure of the image to people such as friends, family members, employers, co-workers, teachers, classmates, and strangers on the internet. Sending the image only to the person shown in the image, the SJC wrote, “while no doubt in many cases a source of intense distress to the victim, does not entail these same harms.”

The Commonwealth argued that a victim who receives a secretly recorded image may treat the message as a veiled threat that the sender will send the image to others. The SJC responded that sending the image only to the victim does not cause the same harms as sending the image to third parties.

The Commonwealth also asked the SJC to apply the definition of “disseminate” in G.L. c. 272, § 31. Section 31 defines “disseminate” as to “import, publish, produce, print, manufacture, distribute, sell, lease, exhibit or display.” The SJC declined the Commonwealth’s request. The Legislature had expressly limited the § 31 definition to listed sections of chapter 272. Section 105(c) is not one of the listed sections.

Under the rule of lenity, a court resolves an ambiguity in a criminal statute in the defendant’s favor. The SJC held that any ambiguity about whether sending an image only to the victim is dissemination had to be resolved in the defendant’s favor.

The SJC described the case in terms of “sending” the photograph because the defendant sent the photograph to the victim. The SJC noted that a person can also disseminate an image by other methods.

The Jury Instructions on Intent and the SJC’s Model Instruction

The defendant argued for the first time on appeal that the judge’s instructions to the jury were flawed. According to the defendant, the instructions allowed the jury to convict him upon finding an intent to take photographs in general, without finding an intent to photograph the victim in the nude. The defendant’s trial counsel had not objected to the instructions. The SJC therefore applied the standard for errors that counsel did not raise at trial, asking whether any error created a substantial risk of a miscarriage of justice.

The SJC found no error in the instructions. The judge told the jury that the defendant’s act had to be intentional, “and not accidental or due to some inadvertence or inattentiveness,” and that the victim had to be nude or partially nude at the time. The defendant did not dispute that he was in the room with the nude victim at the time of the photograph. The SJC held that a reasonable jury would therefore have understood that a conviction required a finding that the defendant willfully photographed the victim while the victim was nude.

The SJC also set out a model jury instruction for the § 105(b) offense in an appendix to the opinion, for use in future cases. Defense counsel in a § 105(b) trial should compare the judge’s proposed instructions with the SJC’s model instruction and object at trial to any instruction that misstates an element. Counsel who objects at trial preserves the claim of instructional error for appeal.

Defending a § 105 Charge After Goncalves

The SJC upheld the § 105(b) conviction on circumstantial evidence of an intent to record in secret. The SJC relied on where the defendant placed the camera, where the defendant aimed the camera, what the defendant told prospective visitors in his profile, and how the defendant responded when the victim confronted him. Defense counsel in a § 105(b) case examines the same kinds of facts.

The facts to examine include who installed the camera, for what purpose, and what the camera was set to record. The facts also include whether visitors could see the camera or were told about the camera, and whether the person photographed would reasonably expect privacy from being photographed in the place where the photographing occurred.

Under Goncalves, the Commonwealth must prove that a person charged with dissemination under § 105(c) disseminated the image to at least one third party. Defense counsel can raise the third-party requirement at three stages of a § 105(c) case.

• At a clerk-magistrate hearing, counsel can argue that a § 105(c) application describing a message only to the person shown in the image does not establish probable cause of dissemination.
• Counsel can file a motion to dismiss a § 105(c) count when the complaint application describes a message only to the person shown in the image.
• At trial, counsel can move for a required finding of not guilty under Mass. R. Crim. P. 25 when the Commonwealth offers no evidence that anyone other than the person shown in the image received the image.

In a dissemination case, defense counsel examines who received the image, when, and by what method. The evidence of who received the image usually includes the messages themselves, phone extraction reports, records from the messaging platform or social media account, and the testimony of anyone who claims to have received the image.

Secretly Recorded Images Sent On or After September 18, 2024

The defendant in Goncalves sent the photograph in December 2021. An Act to Prevent Abuse and Exploitation took effect on September 18, 2024. In that Act, the Legislature added an offense to the criminal harassment statute, G.L. c. 265, § 43A(b), for the nonconsensual distribution of intimate images.

Section 43A(b) punishes the knowing distribution of visual material depicting another person who is nude, partially nude, or engaged in sexual conduct. The Commonwealth must prove that the distribution caused the person depicted physical or economic injury or substantial emotional distress. The Commonwealth must also prove one of two mental states.

• An intent to harm, harass, intimidate, threaten, coerce, or cause substantial emotional distress.
• Reckless disregard of the likelihood that the person depicted will suffer harm, harassment, intimidation, threat, coercion, or substantial emotional distress, of the person’s lack of consent to the distribution, and of the person’s reasonable expectation that the material would remain private.

Section 43A(b) contains a different word, “distributes.” Section 43A defines “distribute” as to “give, sell, transfer, disseminate, publish, upload, circulate, broadcast or engage in any other form of transmission, electronic or otherwise.” In Goncalves, the SJC interpreted the word “disseminates” in § 105(c), for conduct that occurred before § 43A(b) took effect. The SJC did not decide whether sending an intimate image only to the person shown in the image is distribution under § 43A.

For a secretly recorded image sent on or after September 18, 2024, the police can apply for a complaint under § 43A(b) as well as under § 105.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. The telephone number for Serpa Law Office is 617.936.0201.

Key Takeaways

• The Commonwealth must prove that a person charged with photographing an unsuspecting nude person under G.L. c. 272, § 105(b) photographed the person intentionally and intended to keep the photographing secret. In Commonwealth v. Goncalves, No. SJC-13880 (Mass. Oct. 6, 2026), the SJC held that the jury could find an intent to record in secret from the camera’s placement and aim, the defendant’s silence about the camera, and the defendant’s reply when the victim confronted him.
• The Commonwealth must prove that a person charged with dissemination under § 105(c) disseminated the image to at least one third party. Sending a secretly recorded image only to the person shown in the image is not dissemination. The SJC set aside the dissemination verdict in Goncalves and directed the entry of a judgment of not guilty.
• Dissemination under § 105(c) is a felony. A judge may sentence a person convicted of dissemination to up to five years in state prison. A judge may sentence a person convicted under § 105(b) to up to two and one half years in a house of correction.
• The SJC set out a model jury instruction for the § 105(b) offense in an appendix to the opinion.
• In Goncalves, the SJC interpreted only § 105(c). Since September 18, 2024, G.L. c. 265, § 43A(b) has also punished the nonconsensual distribution of intimate images. Section 43A defines “distribute” to include “give” and “transfer.”

Related Serpa Law Office resources

• Hidden Camera and Secret Recording Charges in Massachusetts
• Massachusetts Revenge Porn and Nonconsensual Intimate Image Law
• Massachusetts Revenge Porn and Nonconsensual Intimate Image FAQ
• Massachusetts Deepfake and AI-Generated Intimate Image Defense
• Secret Recordings and the Massachusetts Wiretap Statute (Mass. Gen. Laws ch. 272, § 99)
• Massachusetts Clerk-Magistrate Hearing Lawyer
• How Criminal Cases Get Dismissed in the Massachusetts District and Municipal Courts
• Rule 25: The Motion for a Required Finding of Not Guilty in Massachusetts
• Felonies and Misdemeanors in Massachusetts

September 28, 2026

Shortly before 2 A.M., a Cambridge police officer walking through Harvard Square saw Shyam Khadgi striking a woman in the face and arms. The officer saw Khadgi strike her ten to fifteen times, hard enough to lift his own foot off the ground. The officer separated the two people, arrested Khadgi, and called an ambulance. The woman was extremely distraught and could not speak to the officer at first. Her face was bruised and she was crying, and photographs later showed large bruises on her face and scratches on her arm. After the ambulance arrived and she began receiving medical care, she told the officer that Khadgi had been beating her for about eight minutes before the officer arrived, that he had kicked her, and that the two of them had been dating for seven years. The woman did not testify at trial. A judge of the District Court, sitting without a jury, found Khadgi guilty of assault and battery on a family or household member under G. L. c. 265, § 13M.

Read the full decision: Commonwealth v. Khadgi, No. 25-P-1208 (Mass. App. Ct. Sept. 24, 2026).

The confrontation issue

The Sixth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights give a defendant the right to confront and cross-examine the witnesses against him. Under Crawford v. Washington, 541 U.S. 36 (2004), the prosecution cannot introduce a testimonial out-of-court statement against a defendant unless the person who made the statement testifies and is cross-examined. A statement is testimonial when a person makes it to establish past events for a later prosecution, rather than to help the police respond to an ongoing emergency.

Because the woman did not testify, the Commonwealth proved its case entirely through the responding officer, including the woman’s statements to him. Before trial, a District Court judge ruled that the statements were admissible as spontaneous utterances, meaning statements made under the stress of a startling event. On appeal, Khadgi did not challenge that hearsay ruling. He argued instead that the statements were testimonial, so admitting them violated his right of confrontation.

Why the Appeals Court described the confrontation argument as strong

The Appeals Court agreed that Khadgi had a strong argument that the statements were testimonial. By the time the woman spoke to the officer, Khadgi was already under arrest, the officer had personally witnessed the assault, and the woman was receiving medical treatment and was about to be taken to a hospital. The court explained that statements are ordinarily testimonial when the emergency has ended and the statements describe past events rather than help the police address a present danger. See Commonwealth v. Rand, 487 Mass. 811, 826 (2021). See also Commonwealth v. Rodriguez, 90 Mass. App. Ct. 315, 326 (2016).

Why the conviction still stood: harmless error

The Appeals Court affirmed Khadgi’s conviction. The court did not decide whether admitting the statements violated the confrontation right, because it held that any error was harmless beyond a reasonable doubt. When a defendant preserves a confrontation objection at trial, an appellate court upholds the conviction only where it is satisfied beyond a reasonable doubt that the improperly admitted evidence did not affect the verdict. The court weighs the properly admitted evidence and the improperly admitted evidence together across the whole record. See Commonwealth v. Gordon, 496 Mass. 554, 584-585 (2025).

Two features of the record made the error harmless. First, the officer personally witnessed the beating and the photographs showed the woman’s injuries, so the woman’s account of the beating added nothing the properly admitted evidence had not already proven. Second, the Commonwealth had to prove that Khadgi and the woman were family or household members, which for this charge means that they were or had been in a substantive dating relationship. In the Commonwealth’s own case, only the woman’s statements established that relationship. Khadgi, however, testified in his own defense that the woman was his girlfriend and that they had lived together for seven years.

The rule that a defendant’s own testimony counts against him

The Appeals Court relied on Commonwealth v. Mendes, 463 Mass. 353 (2012). In Mendes, the Supreme Judicial Court held that a court deciding whether a constitutional error is harmless considers both the Commonwealth’s case and the defendant’s case. The defendants in Mendes had testified about the drugs after the prosecution introduced drug certificates that the United States Supreme Court later held were improperly admitted testimonial hearsay in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). The Supreme Judicial Court considered the defendants’ own testimony and concluded that the error was harmless. Applying that rule, the Appeals Court held that Khadgi’s testimony about the seven-year relationship established the family or household member element, so any confrontation error was harmless beyond a reasonable doubt.

What the decision means for a person charged with domestic assault in Massachusetts

A complaining witness who does not appear at trial does not always end the Commonwealth’s case. Where a police officer witnessed the assault, or where photographs or other evidence prove the assault independently, a Massachusetts court can find that the admission of the absent witness’s statements did not affect the verdict. The decision also shows the consequence of a defendant’s own testimony. For a charge of assault and battery on a family or household member, the Commonwealth must prove the qualifying relationship, and that relationship is often provable only through the complaining witness. A defendant who confirms the relationship from the witness stand can supply the element the Commonwealth needs, and an appellate court will consider that testimony when it decides whether an error at trial was harmless. The decision whether a defendant should testify is a serious one, and a person facing a domestic assault charge should make that decision with the advice of a lawyer who has weighed what each element of the charge requires.

Key Takeaways

• The Confrontation Clause bars a testimonial out-of-court statement unless the person who made it testifies and is cross-examined. See Crawford v. Washington, 541 U.S. 36 (2004).
• A statement to the police is more likely to be testimonial once the emergency has ended and the statement describes past events.
• Even where a court admits a statement in violation of the confrontation right, an appellate court upholds the conviction if it is satisfied beyond a reasonable doubt that the error did not affect the verdict.
• A court deciding whether an error was harmless considers the defendant’s own testimony along with the rest of the record. See Commonwealth v. Mendes, 463 Mass. 353 (2012).
• In Commonwealth v. Khadgi, the defendant’s testimony that he had dated the complainant for seven years established the family or household member element, so the Appeals Court affirmed the conviction.

Related Serpa Law Office resources

• Arrested for Assault and Battery on a Family or Household Member in Massachusetts
• Boston Domestic Violence Defense Lawyer
• Massachusetts Criminal Law Updates

September 28, 2026

At about 1 A.M. on September 2, 2024, Boston police officers on patrol in Dorchester saw that the registration on an Acura sport utility vehicle had expired. The officers confirmed through their database that the registration was expired and non-renewable, activated their lights, and stopped the vehicle. The driver, Lorenzo Beechman, was the only person in the vehicle, and he pulled off the road into a gasoline station as directed. The vehicle belonged to his girlfriend. One officer testified that he intended to tow the vehicle the moment he stopped it, because his commanding officer had instructed him to impound, tow, and inventory any vehicle with an expired registration. The officers had the vehicle towed and searched the passenger compartment. Under the front passenger seat they found a loaded firearm. The Commonwealth then charged Beechman with unlawful possession of a firearm and related offenses under G. L. c. 269.

Read the full decision: Commonwealth v. Beechman, No. 25-P-1082 (Mass. App. Ct. Sept. 21, 2026).

The motion to suppress and what the Superior Court judge decided

A motion to suppress asks a judge to exclude evidence that the police obtained in violation of the Fourth Amendment to the United States Constitution or Article 14 of the Massachusetts Declaration of Rights. Beechman filed a motion to suppress the firearm, and a Superior Court judge held an evidentiary hearing. The judge allowed the motion and ordered the firearm excluded from evidence. The judge found that impounding the vehicle was not reasonably necessary and that the officers had acted against their own department policy. The judge found that the vehicle was not obstructing traffic, was not on a public way, and could have been parked to await a tow truck in a number of locations. The judge also found that the officers never asked Beechman or his girlfriend whether either of them wished to arrange an alternative to a police tow.

What the Appeals Court decided

The Appeals Court affirmed the Superior Court judge’s order allowing the motion to suppress. The court decided the appeal through an unusual procedure. The appeal began before a three-justice panel, and after the panel circulated a proposed majority opinion and a proposed dissent, all of the justices of the Appeals Court decided to participate under G. L. c. 211A, § 11. The justices then split evenly. When the Appeals Court divides equally, the court affirms the lower court’s order in the case before it, but the decision does not create binding precedent that other courts must follow. Eleven justices, in an opinion by Justice D’Angelo, concluded that the firearm was properly suppressed. Eleven justices, in an opinion by Justice Meade, would have reversed the suppression order and allowed the firearm into evidence.

Because the appeal was an interlocutory appeal, meaning an appeal the Commonwealth took before trial, the Superior Court will now try the case without the suppressed firearm.

When Massachusetts law allows the police to impound and inventory a vehicle

An inventory search is a warrantless search that the police conduct to catalog the contents of a vehicle they have taken into custody. The lawfulness of an inventory search depends on whether the police lawfully impounded the vehicle in the first place. Impoundment happens when the police take custody of a vehicle and arrange to have it towed and stored.

The Supreme Judicial Court has held that an impoundment must serve a legitimate, non-investigatory purpose, and it must be reasonably necessary based on the totality of the circumstances. See Commonwealth v. Goncalves-Mendez, 484 Mass. 80, 83 (2020). See also Commonwealth v. Oliveira, 474 Mass. 10, 13 (2016). The concurring justices identified the recognized purposes that can justify impoundment. The police may impound a vehicle to protect the vehicle and its contents from theft or vandalism, to protect the public from dangerous items inside the vehicle, to protect public safety where the vehicle as parked creates a dangerous condition, or to spare a private property owner the burden of a vehicle left behind after the driver is arrested. See Oliveira, 474 Mass. at 13-14.

The concurring justices held that the Commonwealth did not meet its burden to justify the impoundment under any of these purposes. Beechman was not under arrest when the officers decided to impound the vehicle. The vehicle sat in a gasoline station lot, not on a public way, and it created no hazard. Under Goncalves-Mendez, when a passenger or another person is available to take custody of a vehicle, the police must consider that practical alternative before impounding the vehicle. The officers here never asked Beechman or his girlfriend whether she wished to retrieve her own vehicle. On these findings, the concurring justices concluded that the impoundment was not reasonably necessary, so the inventory search that produced the firearm was unlawful.

What the decision means for a driver stopped in Massachusetts

A traffic violation, including an expired registration, does not by itself give the police authority to impound and search a vehicle. The Commonwealth must prove that the impoundment served a legitimate, non-investigatory purpose and that impounding the vehicle was reasonably necessary under the circumstances. Where the driver is not under arrest, where the vehicle is parked safely off the roadway, and where another person is available to take the vehicle, a Massachusetts judge can find the impoundment unreasonable and suppress whatever the inventory search produced.

The equal division of the Appeals Court also shows that experienced judges disagree about how these rules apply to a stopped vehicle. A defendant charged after a vehicle search should expect the Commonwealth to defend the impoundment, and the specific facts of the stop, the location of the vehicle, and the available alternatives to a police tow will shape the outcome of a motion to suppress.

Key Takeaways

• An inventory search of a vehicle is lawful only when the police lawfully impounded the vehicle first.
• The Commonwealth must prove that an impoundment served a legitimate, non-investigatory purpose and was reasonably necessary under the totality of the circumstances.
• When another person is available to take custody of the vehicle, the police must consider that alternative before impounding it. See Commonwealth v. Goncalves-Mendez, 484 Mass. 80 (2020).
• In Commonwealth v. Beechman, an equally divided Appeals Court affirmed the suppression of a firearm found during an inventory search after officers impounded a lawfully parked vehicle without asking whether the owner wished to retrieve it.
• A decision by an equally divided Appeals Court affirms the order in that case, but it does not create binding precedent for later cases.

Related Serpa Law Office resources

• Illegal Searches and Seizures in Massachusetts: Motions to Suppress
• Massachusetts Criminal Defense of Firearms Offenses
• Massachusetts Criminal Law Updates

September 23, 2026

The Holyoke police chief denied Randy Westbrook a license to carry a firearm, pointing to charges filed more than a decade earlier that never led to a conviction. Westbrook asked a court to overturn the denial. The Supreme Judicial Court has now agreed to decide whether the Massachusetts suitability standard, which allows a licensing authority to deny a license to an applicant it considers a risk to public safety, is consistent with the Second Amendment after the United States Supreme Court decided New York State Rifle & Pistol Association v. Bruen. This post describes the case, the licensing standard now in force, and what the decision could change for a person who applies for a license or faces a firearms charge in Massachusetts.

The Massachusetts Suitability Standard

A person in Massachusetts needs a license to carry to possess a handgun. A resident applies to the local police chief or the Colonel of the State Police. The 2024 firearms law, St. 2024, c. 135, recast the licensing scheme so that under G.L. c. 140, § 131(d), the licensing authority shall issue a license to an applicant who is neither a prohibited person nor found unsuitable under G.L. c. 140, § 121F. The suitability limit is the part of the scheme the Court will examine.

The licensing authority may find an applicant unsuitable only on a defined basis. Under G.L. c. 140, § 121F, a determination of unsuitability shall be based on reliable, articulable, and credible information that the applicant has exhibited or engaged in behavior that suggests that, if issued a license, the applicant may create a risk to public safety or a risk of danger to self or others. The authority states the specific reasons for a denial in writing.

A person denied a license to carry may petition the District Court for review within 90 days under G.L. c. 140, § 121F. The court may order the license issued where it finds no reasonable ground for the denial and finds that the applicant is not prohibited by law from holding one. Westbrook took that review path after the Holyoke chief denied his application. His case reached the Supreme Judicial Court from there.

What the Second Amendment Requires After Bruen

The Supreme Court held in Bruen that the Second Amendment protects an individual’s right to carry a handgun in public for self-defense. The Court struck down a New York law that issued a carry license only to an applicant who showed a special need for protection beyond that of the general public. The Court rejected that kind of open-ended discretion, under which an official weighed whether an ordinary applicant had a good enough reason to exercise the right.

The Court distinguished two kinds of licensing systems. A system that grants an official broad discretion to decide who may carry, based on the official’s own judgment of need or worthiness, is unconstitutional. A system that issues a license to any applicant who meets objective criteria, such as a background check, a training requirement, and defined disqualifications, remains permissible. In a footnote the Court cautioned that even an objective system can be applied in a way that denies ordinary, law-abiding citizens their rights through lengthy delays or standards that operate as open-ended discretion in practice.

Massachusetts amended its statute after Bruen to fit the permissible category, replacing discretionary issuance with a shall-issue rule and a defined suitability exception. Whether the suitability exception, as written and as applied to an applicant like Westbrook, is the objective screening the Court approved in Bruen or the open-ended discretion the Court rejected is the question now before the Supreme Judicial Court.

The Question in Pratt v. Westbrook

Pratt v. Westbrook, SJC-13822, asks whether the Massachusetts suitability standard for a license to carry violates the Second Amendment as the United States Supreme Court construed it in Bruen. The Holyoke police chief denied Westbrook’s application after finding him unsuitable. The finding rested on charges from more than a decade earlier that did not result in a conviction. The Second Amendment Foundation and other organizations filed an amicus brief supporting the challenge.

The challenge argues that a denial based on old, unproven allegations is the discretionary judgment the Court rejected in Bruen, because it lets an official disarm a person who was never convicted of anything, on the official’s own assessment of future risk, without objective disqualifying criteria. The Commonwealth’s position is that the suitability standard is the kind of objective public-safety screen the Court preserved in Bruen, applied on reliable, articulable, and credible information rather than on an official’s unguided preference. The Supreme Judicial Court construed the public-safety suitability standard after Bruen in the nonresident licensing context in Commonwealth v. Marquis (2025). Pratt v. Westbrook presses the question for a resident denied on old charges that never led to a conviction. The Supreme Judicial Court will decide which description the standard fits.

The case remains pending before the Supreme Judicial Court, which has not yet ruled. Nothing here predicts how the Court will decide it.

What the Decision Could Change for Applicants and Defendants

A ruling in Pratt v. Westbrook would affect two groups directly. The first is applicants denied a license on suitability, particularly on a record of old charges that never led to a conviction. A decision narrowing the suitability standard would limit the reasons a licensing authority may give for a denial. A decision upholding the standard would confirm the authority’s ability to deny on credible public-safety information.

The second group is people charged with a firearms offense. A person who possesses or carries a firearm without the required license faces prosecution whatever the reason the license was denied. Carrying a firearm without a license is charged under G.L. c. 269, § 10(a). Possessing a firearm or ammunition without a firearm identification card is charged under G.L. c. 269, § 10(h). A person denied a license on suitability who then possesses a firearm anyway is exposed to those charges. Because the license determines who may lawfully possess and carry, the standard that governs a denial also shapes who ends up charged. A defendant who was denied a license under a standard the Supreme Judicial Court later limits may have an argument that depends on the Court’s reasoning. Counsel would assess that argument against the specific record and the decision as written.

Key Takeaways

• The Supreme Judicial Court agreed to decide in Pratt v. Westbrook, SJC-13822, whether the Massachusetts firearm suitability standard for a license to carry is consistent with the Second Amendment after New York State Rifle & Pistol Association v. Bruen.
• Under the standard now in force, a licensing authority may find an applicant unsuitable where reliable, articulable, and credible information shows the applicant may create a risk to public safety or a risk of danger to self or others.
• The Holyoke police chief denied Randy Westbrook a license based on charges from more than a decade earlier that never led to a conviction, a denial Westbrook then challenged in court.
• Under Bruen, a licensing system built on objective criteria is permissible and one that gives an official open-ended discretion over who may carry is not, so the outcome depends on which description the suitability standard fits.
• The suitability standard governs who may lawfully hold a license, so it also affects who can be charged with carrying a firearm without a license under G.L. c. 269, § 10(a) or possessing a firearm or ammunition without a firearm identification card under G.L. c. 269, § 10(h).

Related Serpa Law Office resources

• Carrying a Firearm Without a License in Massachusetts (G.L. c. 269, § 10(a))
• Possession of a Firearm or Ammunition Without an FID Card (G.L. c. 269, § 10(h))
• Massachusetts Firearms Charges and Gun Crime Defense

The court upheld the admission of testimony that the child’s injuries were “consistent with” abusive head trauma. It also approved the trial judge’s decision to prohibit experts from stating that abusive head trauma caused those injuries. The distinction explains why a defense challenge can address both the scientific basis of an opinion and the precise conclusion the expert proposes to give.

The decision concerns a child’s fatal head injuries. Its discussion of reliability, alternative explanations, and limits on expert testimony also offers guidance for counsel preparing domestic violence cases, assault and battery cases, and other criminal trials involving disputed medical evidence. Applying that guidance requires attention to the particular injury and opinion, rather than assuming that every case requires the restrictions approved in Hsu.

The Decision and the Disputed Medical Evidence

In Commonwealth v. Shu Feng Hsu, No. SJC 13855 (September 9, 2026), the defendant challenged the admission of expert testimony concerning abusive head trauma. The appeal required the Supreme Judicial Court to consider the medical acceptance of the diagnosis, the risk associated with the word “abusive,” and testimony about whether a short fall could explain the child’s injuries.

Abusive head trauma describes a medical diagnosis encompassing several possible mechanisms, including blunt impact, shaking, or a combination. The court considered evidence that national and international medical organizations recognize the diagnosis and that physicians evaluate it through clinical history, examination, laboratory findings, and imaging.

The defense disputed the reliability of the diagnosis and relied on contrary scientific materials. The court concluded that scientific unanimity was unnecessary and that the trial judge had acted within the judge’s discretion on the record presented. The Supreme Judicial Court affirmed the conviction.

General Acceptance and the Particular Opinion

Under the Daubert-Lanigan standard discussed in Hsu, a judge examines the reliability of proposed expert testimony before allowing the jury to consider it. General acceptance in the relevant scientific community can establish reliability. A disagreement among scientists does not, by itself, require exclusion.

That conclusion requires counsel to identify precisely what the expert claims. Acceptance of a medical diagnosis and the explanation for a particular patient’s injuries are related but distinct questions. A defense review should examine the medical history, the images and other findings, the proposed mechanism of injury, and the reasons the expert accepts or rejects alternative explanations.

The distinction also affects the assignment given to a defense consulting or testifying expert. Reviewing whether the prosecution’s opinion has adequate support is different from offering an affirmative opinion about what caused the injury. Counsel should determine which work the evidence requires before deciding who should testify.

The Limits on the Word “Abusive”

The trial judge recognized that the word “abusive” could influence the jury beyond the medical information the experts were qualified to explain. The judge allowed testimony that the injuries were consistent with abusive head trauma but prohibited testimony that abusive head trauma was their cause.

The Supreme Judicial Court approved those limits as a way to reduce unfair prejudice and preserve the jury’s responsibility to determine guilt. A medical expert could explain the injuries and the possible mechanism without deciding the defendant’s legal culpability.

The court upheld that exercise of discretion. It did not require every judge to use the same wording in every injury case. Nor does adding “consistent with” establish reliability by itself. Counsel still needs to examine what the opinion means, what supports it, and what the witness can reliably conclude from the findings.

Short Falls and Alternative Explanations

The trial judge prohibited a categorical statement that short falls cannot cause abusive head trauma. The experts nevertheless testified that the particular child’s injuries were inconsistent with the short falls described in the case.

The Supreme Judicial Court found no violation of the order. A general assertion about all short falls differs from an opinion based on a particular child’s injuries and a particular proposed fall.

For the defense, that distinction requires a specific medical inquiry. Counsel should identify the proposed fall, the surface, the height, the position of the body, and the findings the expert relies on to reject that explanation. A general statement that falls can cause injuries does not answer whether the proposed fall explains the findings in the case.

The same preparation supports cross-examination of a medical expert. Counsel can ask which findings support the opinion, which alternatives the expert considered, and which assumptions would change the conclusion.

The Question About Shaking Without Impact

The court did not resolve the scientific reliability of shaking alone, without blunt impact, as the explanation for the injuries associated with abusive head trauma. The case involved blunt impact, and the court distinguished that record from the disputed shaking-only theory.

A future case alleging shaking without impact therefore requires examination of that specific mechanism and the evidence offered to support it. Hsu should not be cited as a decision resolving a question the court left unanswered.

Medical Evidence in Assault and Domestic Violence Trials

Injury evidence can affect several disputed questions in an assault prosecution: what contact occurred, how much force was involved, when the injury occurred, and whether the prosecution’s account fits the medical findings. Counsel should separate those questions rather than treat the presence of an injury as proof of the entire accusation.

In a prosecution for assault and battery by means of a dangerous weapon, for example, a dispute may concern the alleged mechanism or the extent of an injury. Testimony about abusive head trauma is also offered in prosecutions for assault and battery on a child under G.L. c. 265, § 13J. In a domestic violence case, counsel may need to compare medical findings with photographs, recordings, and the sequence described by the witnesses. These are applications of the evidentiary questions discussed in Hsu, not additional holdings about those offenses.

The medical testimony must remain tied to what the witness can explain reliably. Counsel should distinguish the physical findings from assumptions about the event and from the elements the Commonwealth must prove.

Pretrial Motions in the Superior Court

In a Superior Court prosecution involving disputed injury evidence, counsel should address the proposed expert testimony before trial. A motion in limine can identify the opinion, explain the objection, and request either exclusion or specific limits on the testimony.

Hsu illustrates why counsel should state alternative requests. If the judge admits the diagnosis, counsel can still seek limits on causal conclusions, emotionally charged terminology, or categorical assertions that exceed the supporting science. The requested order should identify the particular statements the witness may and may not make.

After the judge rules, counsel should compare the testimony with the order and raise an objection when the expert exceeds the permitted testimony. The broader rules for evidence, examination of witnesses, and courtroom procedure appear in the firm’s Massachusetts criminal court practice guide.

Reviewing a Case Involving Medical Testimony

A useful review identifies the complete medical record, the expert’s precise opinion, the scientific basis for that opinion, and the explanations the expert considered and rejected. Counsel then determines what to challenge before trial and what to address through cross-examination.

Hsu permits the testimony the judge admitted on that record. It also demonstrates that the wording and scope of a medical opinion remain subjects for a specific defense motion. Both parts of the decision belong in the preparation of a case involving disputed injury evidence.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and represents defendants in the District Court, Boston Municipal Court, and Superior Court. Serpa Law Office can be reached at 617.936.0201.

This article provides general information based on a published court decision. It is not legal advice and does not create an attorney-client relationship. It may constitute attorney advertising.

Police-misconduct scandals in Massachusetts have reopened many old convictions. Hood marks the limit of that remedy. Corruption proven in one investigation does not, by itself, undo a plea in a different case.

The Decision in Commonwealth v. Hood

In June 1995, Craig Hood pleaded guilty to two counts of murder in the second degree and related firearm charges. The charges arose from the 1993 shooting deaths of two women in the Mattapan section of Boston. By pleading guilty to second-degree murder, Hood avoided the risk of two mandatory sentences of life without the possibility of parole.

In July 2020, Hood moved to withdraw his pleas. He argued that the Commonwealth had failed to disclose exculpatory evidence, that newly discovered evidence undermined his guilt, that his plea counsel was ineffective, and that his pleas were involuntary. His arguments drew on the investigation into the murder of Boston police Detective John Mulligan, an investigation later shown to have been compromised by serious police corruption. Some detectives worked on both the Mulligan investigation and the investigation into the murders to which Hood pleaded guilty.

A Superior Court judge held an evidentiary hearing and denied the motion. The Supreme Judicial Court granted direct appellate review and affirmed.

The Standard for Withdrawing a Guilty Plea

A motion to withdraw a guilty plea is treated as a motion for a new trial under Mass. R. Crim. P. 30 (b). A judge may allow it “any time it appears that justice may not have been done.” Commonwealth v. Scott, 467 Mass. 336, 344 (2014).

On appeal, the reviewing court asks whether the motion judge abused her discretion or committed a significant error of law. Commonwealth v. Henry, 488 Mass. 484, 490 (2021). Where the judge held an evidentiary hearing, the appellate court accepts findings supported by the record and defers to the judge’s credibility determinations. The court decides for itself whether the judge applied constitutional principles correctly.

The Materiality Requirement

Hood’s claims about withheld evidence, newly discovered evidence, and ineffective assistance all depended on one showing. He had to prove a reasonable probability that he would not have pleaded guilty had he known the Mulligan investigation material, and that rejecting the plea offer would have been rational. Commonwealth v. Lastowski, 478 Mass. 572, 577 (2018). The question is not whether the information had some arguable value. The question is whether it “would have materially influenced” the decision to plead guilty. Scott, 467 Mass. at 360.

The court held that the material failed that test. Some of it addressed who killed Mulligan, not who killed the two women three days later. Some of it was cumulative, because plea counsel already possessed the core facts of the third-party culprit theory. A third-party culprit defense requires acts “so closely connected in point of time and method of operation” that they raise doubt about the defendant’s identification. Commonwealth v. Andrade, 488 Mass. 522, 532 (2021). Motive alone does not satisfy that standard.

The court also weighed the strength of the Commonwealth’s case. That case included a detailed confession containing facts only the killer would have known, ballistics evidence, and a witness who placed Hood at the scene. Against that evidence, Hood identified no substantial defense that would have made rejecting the pleas rational.

Egregious Government Misconduct and the Nexus Requirement

Hood also argued that police corruption rendered his pleas involuntary. A plea may be defective where government misconduct that has since been discovered induced it. To withdraw a plea on that ground, a defendant must show two things. First, that egregious government misconduct took place in connection with his case and preceded the plea. Second, that the misconduct was material to his decision to plead. Commonwealth v. Hallinan, 491 Mass. 730, 744 (2023); Commonwealth v. Claudio, 484 Mass. 203, 206 (2020).

The first requirement decided the case. It demands a nexus between the misconduct and the defendant’s own case. Commonwealth v. Ruffin, 475 Mass. 1003, 1004 (2016). The court found no such nexus. The corruption proven in the Mulligan investigation gave those officers a specific incentive to short-circuit that investigation. No comparable evidence connected the corruption to the investigation of the two murders here.

The court rejected the broader argument that a poisoned investigation poisons every investigation it touches. Shared detectives, shared witnesses, and shared leads do not transfer corruption from one case to another. The inquiry asks whether misconduct infected the investigation of this defendant.

The Limits of the Drug-Laboratory Presumption

Hood asked the court to presume that egregious misconduct occurred in his case. Massachusetts law does provide a conclusive presumption of government misconduct in narrow circumstances. The court created that presumption for defendants affected by a State drug-laboratory chemist’s misconduct, because there it would have been impossible for those defendants to show the required nexus. Scott, 467 Mass. at 352; Hallinan, 491 Mass. at 747.

Those conditions were absent here. Hood did not show that establishing a nexus was impossible. The presumption is a remedy for systemic misconduct that taints an entire category of cases, not a substitute for proof in an individual case.

Challenging the Voluntariness of a Confession

Hood argued last that the officers coerced his confession. A voluntary statement is the product of a rational intellect and a free will, not induced by physical or psychological coercion. Commonwealth v. Williams, 486 Mass. 646, 659 (2021).

The court explained an important distinction. Evidence that an officer engaged in misconduct in other matters may serve as impeachment material. Matter of a Grand Jury Investigation, 485 Mass. 641, 652 (2020). It does not, without more, establish that a confession in a separate case was involuntary. Hood identified no coercive act during his interrogation. The content of his confession, corroborated by independent evidence, supported the finding that it was reliable.

What the Decision Means for Defendants

Hood confirms that later-discovered police misconduct can support a motion to withdraw a guilty plea in Massachusetts. It also confirms the limit on that remedy. The defendant has the burden of tying the misconduct, or the withheld evidence, to his own case and to his own decision to plead.

That burden is a factual one, and it is met with a developed record. An effective motion identifies the specific evidence, shows how it connected to the defense, and explains why an informed defendant would have gone to trial. A defendant who believes that misconduct or nondisclosure affected his conviction should have the record reviewed by counsel, because the strength of the motion depends on the connections the record can prove.

Attorney Joe Serpa represents people seeking to challenge convictions and guilty pleas in Massachusetts. This office reviews the plea record, the discovery history, and any later-discovered evidence to assess whether a motion for a new trial is supported.

Official reporter citations have not yet been assigned to these decisions, so each is cited by docket number and decision date. This survey covers the published decisions issued in the period. It follows the July 2026 roundup, and it opens with the three Supreme Judicial Court decisions that issued in the final three days of July, after that survey closed.

Commonwealth v. Shaw: What an Attested Copy of a Prior Conviction Requires

In Commonwealth v. Shaw, No. SJC-13852 (Mass. July 29, 2026), the Commonwealth proved a 2002 drug conviction, the predicate for a sentence enhancement under G. L. c. 269, § 10G (a), with a nine-page copy of a District Court docket. Every page carried an embossed court seal and five pages carried the clerk-magistrate’s stamped signature. No page carried a written certification that the copy was correct.

The Supreme Judicial Court held the copy was not properly authenticated. Self-authentication of an official record under Mass. R. Crim. P. 40 (a) (1) requires an attestation, and an attestation is a written, signed certification by the custodian that the document is a correct copy. The court drew the distinction plainly: an attestation certifies accuracy, and a seal identifies the source.

The court did not need to decide whether the District Court is a department of the Commonwealth under G. L. c. 233, § 76, because that statute requires the same attestation and the document failed under either provision. Commonwealth v. Deramo, 436 Mass. 40, 47 to 48 (2002), supplied the governing definition.

The conviction was affirmed anyway. Trial counsel had not objected, and in fact referred to the docket as evidence of the prior conviction, so review was for a substantial risk of a miscarriage of justice. The court declined to apply the usual practice of measuring the Commonwealth’s case with the improper evidence removed, reasoning that the defect was one the Commonwealth could readily have cured had it been raised at trial.

The practical lesson is about timing rather than about appeals. On any subsequent-offense or armed career criminal proof-up, examine the tendered docket copy for a written, signed certification and object on the record when it is missing. An objection made at trial forces the Commonwealth to produce an attested copy or live testimony. An objection made for the first time on appeal will not succeed.

Commonwealth v. Dorsey: What a New Trial Affidavit Must Establish

In Commonwealth v. Dorsey, No. SJC-13232 (Mass. July 30, 2026), the Supreme Judicial Court affirmed a conviction of murder in the first degree and the denial of a motion for a new trial that alleged ineffective assistance of counsel. The defendant argued that counsel abandoned an investigation into post-traumatic stress disorder and failed to investigate the victim’s history of violence.

The court rejected the first claim on the record counsel made. Counsel had retained an expert to inquire into the disorder, and the defense expert concluded that the conduct was likely the product of marijuana and PCP resulting in a temporary psychosis, on which counsel built an actual defense of lack of intent. Because trial counsel’s own affidavit left out what the retained expert concluded, the claim rested on speculation.

On the Adjutant evidence of the victim’s prior violence, the court assumed without deciding that the investigation was inadequate and found no substantial likelihood of a miscarriage of justice. The supporting affidavits came from people close to the defendant, surfaced years late, and described conduct that would not have changed the verdict. The court put the proportionality point directly: slapping, punching, and scratching are markedly different from threatening someone with a deadly weapon.

The court also held that the failure to present expert testimony that a palm laceration was a defensive wound was not ineffective assistance, because the proffer of the proposed expert’s credentials was weak and counsel had elicited the same point from the treating paramedic and argued it in closing.

For postconviction practice the message is about the record rather than the merits. When taking trial counsel’s affidavit, establish what each expert was asked, what each concluded, and why counsel stopped. An affidavit that recites counsel’s conclusion without those facts invites the court to treat the claim as speculation, and gaps in the movant’s own affidavit are held against the movant.

Hall, petitioner: Postconviction Claims Belong in the Superior Court

In Hall, petitioner, No. SJC-13657 (Mass. July 31, 2026), a defendant whose first degree murder convictions had been affirmed on direct appeal filed a petition in the county court seeking state habeas corpus relief under G. L. c. 248. He alleged that the Commonwealth withheld exculpatory evidence and engaged in prosecutorial misconduct. A single justice denied the petition without a hearing.

The Supreme Judicial Court affirmed. Habeas relief must rest on grounds distinct from the issues at the indictment, trial, conviction, or sentencing stage. Claims about errors in the criminal proceedings themselves belong in a motion under Mass. R. Crim. P. 30, and because the convictions had been affirmed, that motion must be filed in the Superior Court rather than in the Supreme Judicial Court.

Review of the denial of such a motion is then available only by leave of a single justice under the gatekeeper provision of G. L. c. 278, § 33E. A petition filed in the county court in the first instance cannot be used to get around that requirement.

Counsel advising a client after an affirmed first degree murder conviction should route every constitutional claim through a rule 30 motion in the Superior Court and preserve each issue before the single justice, because the court refused to enlarge the record to reach issues never presented there.

Commonwealth v. Sanders: Treatment Records and the Criminal Responsibility Defense

Commonwealth v. Sanders, No. SJC-13552 (Mass. Aug. 6, 2026), is the most consequential decision of the period for trial practice. The defendant was convicted of two counts of murder in the first degree in the killing of her two young sons. There was no dispute that she committed the killings, and the only issue at trial was criminal responsibility.

Her expert based his opinion that she was grossly psychotic on two interviews, seven hours of testing, and thousands of pages of treatment records from MCI-Framingham and the Worcester Recovery Center and Hospital. Those records documented paranoid delusions and hallucinations, a 2019 diagnosis of schizophrenia spectrum and other psychotic disorders, and a 2020 discharge diagnosis of schizoaffective disorder.

Defense counsel moved to admit the records under G. L. c. 233, § 79, before the expert testified. The judge denied the motion and ruled that the facts and opinions in the records could be elicited only by the Commonwealth on cross-examination, and by the defense on redirect if that door opened. The prosecutor never asked, so the door never opened, and the expert was limited to saying he had reviewed records that were of significance.

The Supreme Judicial Court held that was error. Once counsel moved to admit the records, the judge was required to decide whether they were admissible under § 79 rather than to resolve the question under the common-law rule limiting an expert’s direct testimony about facts not in evidence. If admissible in whole or in part, the expert could then have testified to their contents as evidence already in the record.

The court also refused to affirm on grounds the trial judge never adopted. The judge had rejected the argument that postarrest records were too remote, never weighed probative value against unfair prejudice, and never exercised discretion to pare the volume or excise unreliable second-level hearsay. The exclusion rested solely on the erroneous rule.

The error was prejudicial. The exculpatory content of the records far exceeded the inculpatory content, and the exclusion stripped the sole defense of the medical foundation that supported it. The judgments were vacated, the verdicts set aside, and the matter remanded for a new trial.

On an issue likely to recur, the court held that the prosecutor’s repeated use of the word evil was permissible because it was grounded in the defendant’s own notebook writings and recorded calls and bore on her appreciation of wrongfulness under Commonwealth v. McHoul, 352 Mass. 544, 546 (1967). Argument connecting the killings to a television program playing at the scene hours later was impermissible, because no evidence linked the program to the offense.

In any case depending on a mental health expert, move the underlying treatment records into evidence under § 79 before the expert takes the stand, and insist on a ruling that applies the four-part test of Bouchie v. Murray, 376 Mass. 524, 528 (1978). Postarrest psychiatric records are not categorically irrelevant to responsibility at the time of the offense, and inculpatory material inside a voluminous record is not a reason to exclude the whole of it.

Commonwealth v. Figueroa: A Foreign Language Interrogation Used in Rebuttal

In Commonwealth v. Figueroa, No. 25-P-1027 (Mass. App. Ct. Aug. 7, 2026), a published decision, the defendant’s first language is Spanish and a Spanish-speaking detective interrogated him on video after his arrest. The recording was produced in discovery, but the Commonwealth never provided an English transcript. On a motion in limine the judge barred the Commonwealth from using the statements in its case-in-chief, warning that they might come in if the defendant testified.

The defendant testified and claimed self-defense, saying both brothers had knives and that he used a tree branch. In rebuttal, the detective testified that the defendant had mentioned neither the knives nor the branch during the recorded interview.

The Appeals Court affirmed. Commonwealth v. Portillo, 462 Mass. 324, 332 (2012), leaves to the trial judge’s discretion whether the Commonwealth must produce a translated transcript before using a defendant’s prior inconsistent statements in rebuttal. The panel declined to extend Portillo to require a transcript whenever the Commonwealth uses a defendant’s statement against him, stating that it is not for an intermediate appellate court to alter a rule established by the Supreme Judicial Court.

Evidence properly excluded from the case-in-chief may be admissible in rebuttal, and a defendant who takes the stand may be impeached like any other witness. The panel relied on what the record did not contain: the defendant never showed the detective’s translation or memory was inaccurate, never argued he was unprepared to cross-examine, and never sought a continuance to obtain a translation.

A footnote preserves the argument for the next case. The judge retains discretion to exclude even rebuttal statements where the Commonwealth declines to translate, and the panel observed that prudence would dictate translating such an interview and providing counsel with a copy. Counsel should demand the translated transcript before trial, move for a continuance if trial arrives without one, and state on the record why cross-examination of the officer’s recollection is not adequate. This site has a fuller case note on the decision.

Commonwealth v. Palmer: A Seizure Begins When the Pursuit Begins

In Commonwealth v. Palmer, No. SJC-13873 (Mass. Aug. 10, 2026), a detective who had reviewed complex surveillance footage of an armed robbery many times developed her own description of the robber, including a distinctive two-toned jacket and a checkered hat with the price tag still on the brim. Twelve days later officers went to the same complex, called out to the defendant, and pursued him when he ran. He discarded drugs and money during a three to four second chase.

The Supreme Judicial Court held that the defendant was seized when the officers began to pursue him, before he discarded anything. Two groups of officers, badged detectives approaching from one direction and uniformed officers from another, converging on him in a crowded residential parking lot after calling out to him was a show of authority that a reasonable person would consider coercive.

The court distinguished Commonwealth v. Franklin, 456 Mass. 818 (2010), on two grounds. There the flight was not prompted by anything the police did and began before officers left an unmarked car. Here the defendant fled after officers approached on foot and called out, and here two groups converged from different directions rather than merely following.

Because the seizure preceded the discard, the drugs played no part in the reasonable suspicion analysis. The court nonetheless found reasonable suspicion. This was not a stop based on a witness’s generalized description: the detective had built her own detailed description from repeated review of the footage, had confirmed the same person unmasked in the same location the day after the robbery, and matched size, complexion, hairstyle, and the distinctive hat when she saw him.

Two limits in the opinion are useful. Flight and the characterization of a location as a high crime area each added little, and the second counted at all only because the robbery had occurred in the same complex. The court also declined to apply the collective knowledge doctrine, because the Commonwealth introduced no evidence that the officer who spotted the defendant on camera knew anything the detective had not independently seen.

The conviction was affirmed, but the seizure holding is the part to use. Where officers call out and then converge from more than one direction, the seizure occurs at the onset of pursuit, so anything discarded during flight is the fruit of that seizure and is suppressible if reasonable suspicion was lacking when the chase began. Litigate that moment, and require the Commonwealth to prove what each officer knew rather than aggregating knowledge by assumption.

Commonwealth v. Solis and Commonwealth v. Diaz: Delay in Applying for a Cell Phone Warrant

In Commonwealth v. Solis and Commonwealth v. Diaz, Nos. SJC-13823 and SJC-13835 (Mass. Aug. 12, 2026), police lawfully seized cell phones and then waited 109 days and 123 days to apply for search warrants. Two Superior Court judges allowed motions to suppress on the ground that the delay was unreasonable. The Supreme Judicial Court reversed both orders.

The governing test under art. 14 remains the totality of the circumstances balancing of Commonwealth v. White, 475 Mass. 583 (2016): the defendant’s possessory interest and the extent of the intrusion, weighed against the Commonwealth’s justification for continued retention. There is no bright line past which a delay becomes unreasonable, and exceeding the sixty-eight day delay in White is not determinative.

The court declined to adopt the Federal approach treating a device’s independent evidentiary value as effectively dispositive. That value may substantially strengthen the Commonwealth’s interest in retaining a device, but the court held it does not excuse neglect and does not permit extended delay in every case.

The opinion sets out what reduces a possessory interest: whether the defendant sought the device’s return, whether he showed a concrete need for it for work, family, financial, or medical obligations, the strength of his ownership claim, whether he owned another phone with equivalent functionality, and whether he admitted the phone held illicit material. Neither defendant sought return, and neither offered evidence that the phone was important to him.

On the other side, the court weighed the basis for the seizure, the device’s evidentiary value independent of its contents, the seriousness of the offense, the complexity of the investigation, secure storage, and police diligence. Diligence is not dispositive where other circumstances supply a continuing, case-specific basis for retention. The court was explicit that generalized workloads do not excuse delay, and that warrant applications for digital devices must be treated as a priority rather than an afterthought.

A delay motion built on the calendar alone will now lose. Build the possessory interest record before the hearing: move for return of the property, and put in evidence of concrete reliance on the phone. Attack the device’s independent evidentiary value directly, arguing that the phone was a container of data rather than an alleged instrumentality of the charged offense.

Commonwealth v. Hempel: A Waiver Colloquy Is Required Before Any Self-Representation

In Commonwealth v. Hempel, No. 19-P-63 (Mass. App. Ct. Aug. 12, 2026), a published decision, trial counsel told the judge he could not ethically call the witness the defendant insisted on because of a concern about perjury. The judge adapted the narrative testimony procedure of Commonwealth v. Mitchell, 438 Mass. 535 (2003), so that the defendant could call and examine the witness himself while counsel handled the rest of the trial.

After that examination the defendant said he no longer wished to speak with counsel, and counsel reported that the defendant would cross-examine any rebuttal witnesses and deliver his own closing. The defendant asked that counsel remain as standby counsel and then gave his own closing argument. At no point did the judge conduct a colloquy, ask any questions, or give any warning about the risks of self-representation.

The Appeals Court vacated the convictions. Where a defendant proceeds with standby counsel, the judge must ensure the waiver of counsel is knowing and intelligent exactly as in a case with no standby counsel. The court adopted that as a bright-line rule so that trial and appellate courts need not measure how much self-representation occurred.

Mitchell does not supply an exception. Directing narrative testimony does not leave a defendant unrepresented and does not implicate the right to counsel at all, as the Supreme Judicial Court explained in Commonwealth v. Leiva, 484 Mass. 766 (2020).

Reviewing the record under Commonwealth v. Barros, 494 Mass. 100 (2024), the panel was not confident the defendant understood the disadvantages of self-representation or the magnitude of the undertaking. What decided it was that he did not know the elements of the charged offenses, even though he understood the seriousness of the punishment and had prior experience in the system. Violations of the right to counsel are not subject to harmless error analysis.

Justice Brennan dissented, and would have treated the arrangement as the cocounsel form of hybrid representation, which in her view leaves a defendant fully represented and requires no colloquy. The split makes this a candidate for further appellate review, so counsel should preserve the issue on both theories.

The immediate use is straightforward. The moment a judge lets a client take over any part of the trial with counsel dropping to a standby role, object and demand the full inquiry on the record. The failure is structural.

Commonwealth v. Ramos: When Adjutant Evidence Is the Wrong Trade

In Commonwealth v. Ramos, No. SJC-12678 (Mass. Aug. 13, 2026), the Supreme Judicial Court affirmed a conviction of murder in the first degree on a theory of deliberate premeditation, along with the denial of a motion for a new trial. Surveillance video showed the defendant quickening his pace behind the victim, who was walking ahead with his back turned, and bringing his arm down in a slashing motion.

The defense at trial was self-defense, and the defendant argued on appeal that trial counsel was ineffective for failing to introduce Adjutant evidence of the victim’s prior violence. Counsel averred that he declined because the defendant had the more significant record for violence, and introducing the victim’s record would have opened the door to his own.

The court held the decision was a tactical one that was not manifestly unreasonable. The victim’s 2010 child sexual assault convictions had minimal probative value on who first used deadly force and created a real risk of prejudice, and the defendant was the only one of the two men with a conviction of assault and battery by means of a dangerous weapon.

The court also held that the judge had no obligation to instruct on voluntary manslaughter by sudden combat on his own initiative, particularly where counsel had specifically withdrawn the request. Viewed most favorably to the defendant the evidence showed a preexisting dispute, a planned fight, a defendant who armed himself in advance, and an ambush from behind, so nothing about the encounter was sudden.

Two practical points follow. Before moving to admit Adjutant evidence, compare the client’s record of violence against the complainant’s, because the door swings both ways and a client with the worse record makes the motion a losing trade that will also defeat a later claim of ineffective assistance. And never withdraw a request for a lesser included offense instruction, because the withdrawal itself becomes a reason to uphold the conviction on appeal.

Doe No. 526105: Expert Funds at a Sex Offender Registry Board Hearing

In Doe, Sex Offender Registry Board No. 526105 v. Sex Offender Registry Board, No. SJC-13847 (Mass. Aug. 18, 2026), the board classified the plaintiff at level two six separate times. The fourth classification was vacated after the board conceded that the hearing examiner had misapplied a factor requiring findings of both repetitive and compulsive behavior. On remand the board announced it would instead weigh the multiple offenses through a different factor bearing on degree of dangerousness.

Before the sixth hearing the plaintiff moved for funds to retain an expert to address that application of the factor and the state of the research on repetitive sexual behavior where there is no evidence of prior sex offenses or compulsive behavior. The hearing examiner denied the motion on the ground that such testimony would not be unique to the plaintiff.

The Supreme Judicial Court held the denial was an abuse of discretion. Special to the offender, in the regulation permitting expert funds, does not mean unique to the offender. The request was not generic; it identified a specific and novel application of a single factor to the plaintiff’s circumstances.

The board had told the court that it presented no research supporting that application because such research does not exist. The court answered that the board, not the offender, bears the burden of justifying its application of the regulatory factors, and that the board’s assertion that no relevant research exists does not justify denying the offender the opportunity to prove or refute it.

The judgment was vacated and the matter remanded to the board with an order granting the request for expert funds. The constitutional question whether that factor may be applied to multiple offenses committed before arrest or conviction remains undecided, and the court attributed the undeveloped record in part to the denial of the funds.

Counsel with a pending classification should file the expert funds motion and build it to this pattern: name the specific factor and the specific application challenged, identify the type of expert, and attach an affidavit with the supporting literature and the procedural history. The board’s answer that no such research exists is now an argument for the funds rather than against them.

What These Decisions Change

Two themes run through the period. The first is that the record made at the trial court decides the case: Shaw depended on an objection never made, Dorsey on an affidavit that omitted what the expert concluded, Solis and Diaz on possessory interests never put in evidence, and Figueroa on a continuance never requested. The second is that the courts continue to police the boundary between what a judge may resolve by discretion and what a judge must decide by rule, in Sanders, in Hempel, and in Doe No. 526105.

Counsel with a pending motion to suppress should read Palmer and the Solis and Diaz opinions together, because the first fixes the moment of seizure during a foot pursuit and the second sets out what a court will weigh when police hold a phone for months before applying for a warrant.

Referring counsel may reach Attorney Serpa at 617.936.0201.

When a Massachusetts defendant claims self-defense and the parties dispute who began the physical confrontation or who first used or threatened deadly force, the defendant may ask the judge to admit evidence of specific violent incidents that the alleged victim is reasonably alleged to have initiated. Commonwealth v. Adjutant, 443 Mass. 649 (2005). The rule also covers qualifying violent acts by a third party acting in concert with or to assist the alleged victim. The judge retains discretion over whether the evidence will be admitted.

Using Adjutant evidence can also permit a response from the prosecution. Under Commonwealth v. Morales, 464 Mass. 302 (2013), the Commonwealth may seek to rebut qualifying evidence about the alleged victim with specific incidents of the defendant’s prior violent conduct. That does not make the defendant’s entire criminal record admissible, and a conviction is not interchangeable with proof of a qualifying violent incident.

The analysis focuses on the particular incidents and the disputed issue they may help resolve. Massachusetts Rule of Criminal Procedure 14.3(c) requires timely notice, and the proffer needs an adequate evidentiary foundation. The judge must then apply the governing balancing test and give a precise limiting instruction. This is not a comparison of two criminal records.

The Adjutant First-Aggressor Rule

Evidence that a person acted violently on another occasion ordinarily cannot be used merely to show that the person probably acted the same way in the charged incident. Commonwealth v. Adjutant, 443 Mass. 649 (2005), created a focused exception for a defendant who raises self-defense and disputes the identity of the first aggressor. The court held that the common law gives a trial judge discretion to admit specific incidents of violence that the alleged victim is reasonably alleged to have initiated. Adjutant, 443 Mass. at 664.

The Massachusetts Guide to Evidence states the current rule at § 404(a)(2)(B) (2026). Where the identity of the first aggressor or the first to use deadly force is in dispute, a defendant may offer evidence of specific incidents of violence allegedly initiated by the alleged victim, or by a third party acting in concert with or to assist the alleged victim, whether or not the defendant knew of them. The same subsection permits the prosecution to rebut with specific incidents of violence by the defendant.

The jury may use that evidence to decide who initiated the confrontation or who escalated it by first using or threatening deadly force. The firm’s Massachusetts self-defense page explains the elements of the defense itself.

The Two First-Aggressor Disputes

Commonwealth v. Chambers, 465 Mass. 520, 529 to 530 (2013), holds that the first aggressor may be either of two people: the person who initiated the confrontation, or the person who first escalated it by using or threatening deadly force. Commonwealth v. Deconinck, 480 Mass. 254, 263 (2018), restates the rule as two circumstances, and Commonwealth v. Souza, 492 Mass. 615 (2023), confirms that Adjutant evidence is admissible only when one or both of those issues are genuinely in dispute. Evidence may be relevant to one issue, the other, or both.

The distinction applies when the parties agree that one person began a nondeadly confrontation but dispute who first used or threatened deadly force. There is no Adjutant issue when the relevant identity is undisputed. In Commonwealth v. Andrade, 496 Mass. 144 (2025), exclusion was proper where the alleged victim was undisputedly the initial aggressor and the defendant unilaterally escalated the encounter by using deadly force.

Commonwealth v. Camacho, 472 Mass. 587 (2015), supplies two further limits. The evidence is inadmissible where the parties dispute only whether the defendant was legally entitled to use the level of force employed, rather than who began or escalated the altercation. Camacho, 472 Mass. at 594. And the evidence is admissible only where the alleged victim was involved in the altercation that led to the charge.

Souza defines the limit on Adjutant evidence. Adjutant evidence is admissible exclusively to help the jury decide who initiated the conflict or who first used or threatened deadly force. It is not admissible more broadly to show that the Commonwealth failed to meet its burden on self-defense.

The exception applies to self-defense. The Supreme Judicial Court has twice declined to extend it to a claim of defense of another, each time on the case before it. Commonwealth v. Camacho, 472 Mass. 587, 596 n.12 (2015); Commonwealth v. Rateree, 495 Mass. 610, 624 (2025). Counsel should assume the evidence will be excluded on a defense of another theory absent a compelling record.

A different subsection, Mass. G. Evid. § 404(a)(2)(C) (2026), governs evidence of violent conduct that the defendant knew about before the charged encounter and that the defense offers to show a reasonable concern for personal safety.

Qualifying Prior and Later Incidents

The proposed evidence must concern specific violent incidents that the alleged victim is reasonably alleged to have initiated, or qualifying violent acts by a third party acting in concert with or to assist the alleged victim. General assertions that a person was violent are not the same as proof of a particular incident. Participation in boxing, martial arts, or another athletic activity does not by itself qualify as first-aggressor evidence. Commonwealth v. Amaral, 78 Mass. App. Ct. 557 (2011).

The incident need not predate the charged event. Andrade confirms that a qualifying incident may have occurred before or after it. Andrade, 496 Mass. at 147 to 148. Under Souza, once the defense shows that the alleged victim initiated the violence in the earlier episode, the entire violent incident is potentially admissible, not only its first moment, so that the jury has an accurate account. The evidence must still comply with the other rules of evidence.

Known and Unknown Incidents Serve Different Purposes

The defendant need not have known about an incident when offering it under Adjutant to identify the first aggressor or the first person to use or threaten deadly force. Andrade confirms that admissibility under Adjutant does not depend on whether the defendant was aware of the violent act at the time of the alleged offense. An unknown incident may bear on the alleged victim’s propensity to initiate violence, subject to the rule’s limits.

Knowledge counts for a different use. If the defendant knew about a specific prior violent act before the charged encounter, Mass. G. Evid. § 404(a)(2)(C) (2026) permits the evidence to explain the defendant’s actual concern for personal safety and whether that concern was reasonable. When admitted only for this state-of-mind purpose, the evidence may not be used as propensity proof that the alleged victim acted in conformity with a violent character during the charged incident.

In Amaral, the Appeals Court noted in a footnote that a defendant’s prior knowledge of an alleged victim’s training as a boxer or martial artist might have supported this state-of-mind theory, even though the training itself was not first-aggressor evidence.

Rule 14.3 Notice and Deadlines

Massachusetts Rule of Criminal Procedure 14.3(c) provides the current procedure. Rule 14.3 took effect March 1, 2025, and consolidated former Rule 14(b)(1), (b)(3), and (b)(4) without substantive change, so older motions, memoranda, and secondary sources describe the same notice requirement as Rule 14(b)(4).

A defendant who intends to claim self-defense and offer the alleged victim’s specific violent acts as first-aggressor evidence must give written notice no later than 21 days after the pretrial hearing, unless the judge sets another time for good cause. The notice must briefly describe each incident, give its location and date to the extent practicable, and identify the witnesses the defense may call with the information required by the rule. The defense must file a copy with the clerk.

The prosecution ordinarily has 30 days after receiving the defense notice to serve written notice of the rebuttal evidence it may introduce, including a brief description and the required witness information. Both sides have a continuing duty to disclose additional responsive evidence. If a party fails to comply, the judge may exclude that party’s evidence on the issue of the identity of the first aggressor.

The rule governs notice only. Morales states that nothing in the rule itself authorizes the admission of any evidence; whether to admit the proffered incidents, and which ones, remains a discretionary determination for the judge.

The Commonwealth’s Rebuttal Evidence

The Commonwealth may respond with two forms of character evidence in addition to ordinary factual rebuttal and impeachment. It may offer evidence of the alleged victim’s peaceful propensities. Commonwealth v. Adjutant, 443 Mass. 649 (2005), citing Commonwealth v. Lapointe, 402 Mass. 321, 325 (1988). Under Commonwealth v. Morales, 464 Mass. 302, 310 to 311 (2013), it may also offer specific incidents of the defendant’s prior violent conduct.

The two sides of the rule are not symmetrical. Adjutant holds that a victim’s general reputation for violence is not admissible to prove who was the first aggressor, because reputation evidence is often “opinion in disguise”; the defense proves that point with specific incidents. The peaceful-propensities rebuttal is available to the prosecution once the defendant’s Adjutant evidence has been admitted.

Morales does not authorize the prosecutor to introduce the defendant’s criminal record generally. The rebuttal is limited to specific prior violent conduct, must satisfy the other rules of evidence, and is subject to its own balancing test, described below. Reciprocal notice gives the defense an opportunity to investigate and challenge the proposed rebuttal.

Defense counsel must weigh that limited rebuttal before offering Adjutant evidence. Counsel should examine the facts and admissibility of the alleged victim’s incidents, the prosecution’s potential response, and the likely jury instruction. The question is not simply which person has more convictions or which record appears worse.

The Two Balancing Tests

The defense proffer and the prosecution rebuttal are weighed under two different formulations, and the judge applies each formulation separately at the motion stage.

For the defendant’s evidence about the alleged victim, the judge must evaluate the circumstances and may admit the evidence only if its probative value outweighs its prejudicial effect. That is Adjutant’s own formulation for this category of evidence. Adjutant, 443 Mass. at 664.

The judge may also limit cumulative testimony or exclude evidence that would cause unfair prejudice, confusion, or delay. Establishing a relevant dispute does not make every proposed incident admissible. Rateree confirms that the judge retains discretion to exclude Adjutant evidence even where the factual predicate for admission is satisfied, and a reviewing court will uphold the ruling absent an abuse of discretion.

For the Commonwealth’s rebuttal with the defendant’s own prior violent acts, Morales states a distinct test. The evidence may be admitted only if it is more probative of its intended purpose than prejudicial to the defendant, and the judge must weigh that balance very carefully because the potential prejudice is to the person on trial. Morales, 464 Mass. 302, 310 to 311 (2013).

The Required Limiting Instruction

When evidence is admitted under the first-aggressor rule, the judge must give a limiting instruction identifying its permitted use.

The operative charge printed in the current model instructions confines the jury’s consideration to deciding who attacked whom first in the altercation. Massachusetts District Court Model Jury Instructions 9.261, 9.262, and 9.263 (rev. Feb. 2026).

Where the parties also dispute who first used or threatened deadly force, the judge must tailor the instruction to that issue, because Chambers and Souza extend the permitted use to that second question. The note to Mass. G. Evid. § 404(a)(2)(B) (2026) states the requirement directly: the instruction must identify the permissible use as first aggressor, first to use deadly force, or both.

Souza confirms the limit in the other direction: where the identity of the person who escalated to deadly force is not in dispute, the defendant is not entitled to an instruction on that branch.

When evidence of specific violent acts by either the alleged victim or the defendant is admitted, the judge must give the limiting instruction when the evidence is introduced and again in the final charge. Morales, 464 Mass. 302 (2013).

The judge gives the instruction because prior-incident evidence can be highly prejudicial. The jury may not use it to draw a general character inference, infer the defendant’s guilt, or decide issues beyond the specific first-aggressor or deadly-force question identified by the judge.

Adjutant Evidence in Domestic Assault Cases

Self-defense and first-aggressor disputes can arise in prosecutions for assault and battery and for assault and battery on a family or household member under G. L. c. 265, §§ 13A and 13M. Even when the § 13M relationship element is charged, and self-defense is fairly raised, the Commonwealth must prove beyond a reasonable doubt that there was no self-defense. Commonwealth v. Harris, 464 Mass. 425 (2013). Body-camera video, 911 calls, photographs, medical evidence, messages, witness accounts, and the sequence of events may be important before prior-incident evidence is considered. The firm’s page on self-defense and mutual combat in domestic violence cases explains how the first-aggressor question arises when both people used force. Its post on false domestic violence allegations in divorce and custody cases addresses first-aggressor evidence alongside bias and motive.

Separate from Adjutant, evidence of prior domestic incidents may sometimes be admitted under § 404(b) for a genuine nonpropensity purpose, such as relationship context, motive, intent, or absence of mistake or accident, subject to the more-exacting bad-act balancing rule. An appropriate limiting instruction should be requested and used when the governing circumstances require it.

A defense review should begin with the charged assault or battery theory and the evidence from the incident itself. Counsel can then determine whether the identity of the initial aggressor or the person who first used or threatened deadly force is genuinely disputed, locate reliable proof of specific incidents, satisfy Rule 14.3, and prepare for possible rebuttal. The firm’s domestic-violence defense page explains the broader criminal process.

Preparing the Evidence Before Trial

Potential first-aggressor evidence should be investigated early. Police reports, court records, recordings, photographs, and witnesses may help identify admissible proof of what occurred and who initiated the violence. Ordinary hearsay rules still apply. When the Commonwealth offers a testimonial statement, the Confrontation Clause may impose a separate restriction. A charge or docket label alone does not establish the underlying conduct.

Serpa Law Office represents people raising self-defense in assault, assault and battery, domestic assault, strangulation, and dangerous-weapon cases throughout Massachusetts. Call 617.936.0201 or use the contact form to request a confidential consultation.

Related Serpa Law Office Resources

• Boston Domestic Violence Defense
• Assault and Battery on a Family or Household Member
• Self-Defense in Massachusetts
• Self-Defense and Mutual Combat in Massachusetts Domestic Violence Cases
• Assault and Battery with a Dangerous Weapon
• Strangulation or Suffocation in Massachusetts
• False Domestic Violence Allegations in Divorce and Custody
• Massachusetts Domestic Violence Law FAQs

The Law Is in Effect Today

Chapter 135 has been in force continuously since October 2, 2024. Its licensing provisions, its registration and serialization requirements, and its criminal penalties all apply now. A person who violates it before the election is subject to the same consequences as a person who violates it after.

Why the Referendum Petition Did Not Suspend the Law

Under article 48 of the Amendments to the Massachusetts Constitution, a law subject to referendum ordinarily does not take effect for 90 days, and a certified referendum petition suspends its operation until the voters decide. That is the ordinary rule, and suspension is what the opponents of chapter 135 were pursuing when they gathered signatures.

The Legislature and the Governor used the exception. A law enacted with an emergency preamble takes effect on passage and is not suspended by a referendum petition. On October 2, 2024, Governor Healey signed an emergency preamble for chapter 135, which put the law into immediate effect before the petition could suspend it. The referendum went forward, but the law was never suspended.

The Attorney General separately certified that chapter 135 is not excluded from the referendum by any provision of article 48, which is why the question appears on the ballot. Eligibility for the ballot and suspension of the law are two different things, and only the first one happened here.

What Question 9 Asks

The Secretary of the Commonwealth assigned the firearms referendum the number 9 on a nine question November 2026 ballot. It is a referendum on a law already enacted rather than an initiative petition proposing a new one, which is why the vote is framed as approval or disapproval of what the Legislature passed.

What a Yes Vote Does and What a No Vote Does

On a referendum the direction is the reverse of what many voters expect. A yes vote is a vote to uphold chapter 135 and leave the law in place. A no vote is a vote to repeal it.

Serpa Law Office takes no position on how anyone should vote. The point here is that the ballot direction is counterintuitive, and a voter who reads the question quickly can record the opposite of what they intend.

The Compliance Deadlines Fall Before the Election

The registration and serialization requirements of chapter 135 come due in October 2026, before the November 3 election. The referendum does not change those deadlines. A gun owner who waits for the result will be past the deadline when the polls open.

The dates are not stated identically by every official source. Section 157 of chapter 135 sets registration at one year after the electronic registration system is completed and publicly available, and section 158 sets the same one year period for serialization. Neither section names a calendar date. The Executive Office of Public Safety and Security states on its firearm modernization page that firearms must be serialized and registered by October 28, 2026, and the fourth guidance document on the act gives October 2, 2026 in one answer and October 28, 2026 in another. The two deadlines and the conflict between the sources are set out in detail in October 2026 firearms deadlines. The October 2 date has passed. An owner who has not serialized and registered every firearm should finish both steps before October 28.

What a No Vote Would Not Undo

A repeal at the ballot operates going forward. Under article 48, a law the voters disapprove ceases to be operative after the election. It is not treated as though it had never been enacted. A person who did not register a firearm while the law was in force failed to comply while it was in force, and a later repeal does not make that possession lawful as of the earlier date.

Whether a district attorney would pursue such a case after a repeal is a separate and practical question, and the answer would vary by county and by the seriousness of the conduct. That is a question about charging discretion rather than about the state of the law, and it is not a basis on which to plan.

What Does Not Change Either Way

Several firearms consequences in Massachusetts do not come from chapter 135, and the referendum does not change them.

• A court may suspend a license and order surrender of firearms under an abuse prevention order, M.G.L. c. 209A, § 3B, or a harassment prevention order, M.G.L. c. 258E, §§ 4A and 4B. Those orders require no criminal charge. Firearm surrender under a 258E order is covered in can a 258E harassment prevention order require firearm surrender.
• A court may order surrender under an extreme risk protection order, M.G.L. c. 140, § 131R.
• A licensing authority keeps its suitability determination under M.G.L. c. 140, § 131.
• Federal law, including 18 U.S.C. § 922(g), applies independently of Massachusetts law.
• A conviction can produce a firearms disqualification without reference to chapter 135.
• The rules for visitors and travelers carrying in Massachusetts come from M.G.L. c. 140 and are unaffected by the vote.

Where to Get Official Information

The Executive Office of Public Safety and Security maintains the firearm modernization page describing the law’s requirements. The Secretary of the Commonwealth publishes the Information for Voters guide, which contains the full text of each ballot question, the summary, and the arguments submitted for and against. Those are the two sources to check before the election. This post describes the legal posture and is not voting advice.

Key Takeaways

• Question 9 appears on the Massachusetts ballot on November 3, 2026.
• Chapter 135 is in effect now and has been since October 2, 2024. The referendum petition did not suspend it, because the law was enacted with an emergency preamble.
• A yes vote upholds the law. A no vote repeals it.
• The October 2026 compliance deadlines fall before the election, and the referendum does not move them.
• A repeal would operate going forward and would not make earlier noncompliance lawful as of the earlier date.
• Order based firearm surrender under chapters 209A, 258E, and 140 does not depend on chapter 135 and is unaffected by the vote.

Related Serpa Law Office Resources

• the October 2026 firearms deadlines
• Massachusetts firearms charges
• firearms offenses for visitors and travelers
• firearms after a domestic violence charge
• firearm surrender under a 258E harassment prevention order

The court reversed both suppression orders. It did not establish a 109-day rule, a 123-day rule, or any other numerical deadline. The court applied a totality-of-the-circumstances test and held that the Commonwealth’s interests outweighed each defendant’s possessory interest on the records before it.

The limits of the decision are as important as the result. The court expressly disapproved of delay and directed law enforcement to treat applications for digital-device search warrants as a priority. Solis permits a court to uphold a lengthy delay when strong facts favor the Commonwealth. It does not give police permission to leave a seized phone in an evidence room while ordinary workload takes precedence.

The Two Seized Phones

The first case arose from allegations that Jose Solis sexually assaulted a thirteen-year-old child and attempted to photograph the child with a phone. Police arrested Solis on March 24, 2023, and seized the phone he handed to them. A later forensic interview described a phone of a different color and manufacturer. The assigned detective applied for a search warrant on July 11, 2023, 109 days after the seizure.

The detective attributed much of that delay to court hearings, trials, training, illness, other investigations, and staffing constraints. The warrant affidavit was eighteen pages long, but the SJC found that relatively little of it concerned the specific facts needed to establish probable cause to search Solis’s phone.

The second case involved Michael Diaz, who was accused of sexually abusing two children in his foster family and using a phone in connection with that conduct. When police arrived to arrest Diaz, a detective called his number and saw him come outside holding the phone that officers then seized. The detective had approximately eighty active investigations and placed the phone warrant work behind other cases. The application was filed 123 days later.

The trial judges suppressed the evidence found during both searches. They relied on Commonwealth v. White, 475 Mass. 583, 595 (2016), which held a 68-day delay unreasonable on the circumstances presented there. The SJC concluded that the trial judges placed too much weight on the number of days and too little weight on the remaining circumstances.

The Article 14 Standard

Article 14 of the Massachusetts Declaration of Rights protects against unreasonable searches and seizures. A lawful initial seizure does not resolve whether police may continue holding property. The continued seizure must remain reasonable while officers seek judicial authority to search the device.

In White, the SJC rejected a bright-line time limit. It required courts to examine the totality of the circumstances. Solis preserves that rule and organizes the analysis around three related considerations:

1. The strength of the defendant’s possessory interest in the device.
2. The extent of the government’s interference with that interest.
3. The strength of the Commonwealth’s reasons for retaining the device while it prepares a warrant application.

The number of days remains important. It is not decisive by itself.

Other Massachusetts cases illustrate the same fact-specific approach. Commonwealth v. Cruzado, 480 Mass. 275, 283 to 284 (2018), upheld a ten-day delay where probable cause and exigent circumstances supported the seizure and the defendant’s possessory interest was minimal. Commonwealth v. Arthur, 94 Mass. App. Ct. 161, 165 to 166 (2018), upheld an 85-day delay in part because the seized devices had evidentiary value independent of their contents. A divided Appeals Court had affirmed suppression in Diaz’s case at Commonwealth v. Diaz, 105 Mass. App. Ct. 809, 822 (2025). The SJC’s new decision reverses that result and supplies the controlling analysis.

The Defendant’s Possessory Interest

A smartphone may be indispensable to work, family responsibilities, finances, medical care, travel, and ordinary communication. The SJC therefore rejected any assumption that a cell phone involves only a minor possessory interest. A person can have a powerful interest in recovering a seized device even though the police have not searched its contents.

The court identified facts that can strengthen or weaken that interest. They include whether the defendant requested the phone’s return, whether the defendant showed a concrete need for it, whether the defendant claimed ownership, whether another equivalent phone was available, whether there was an opportunity to copy or remove important material before the seizure, and whether the defendant acknowledged that the device contained evidence or contraband.

Neither Solis nor Diaz requested the return of his phone. Neither presented evidence that the device was necessary for a particular work, family, financial, or medical obligation. Those omissions did not eliminate their possessory interests, but they reduced the weight assigned to them.

The Government’s Justification for Continued Retention

The Commonwealth’s interest depends on more than the fact that police lawfully acquired the device. Relevant considerations include the probable cause supporting the seizure, whether the physical device has evidentiary value apart from its contents, the seriousness of the suspected offense, the complexity of the particular warrant application, investigative developments after the seizure, how securely police stored the device, and whether officers worked diligently.

The SJC gave significant weight to the independent evidentiary value of both phones. In Solis’s case, the phone was an alleged instrument used in an attempt to create a prohibited image. The discrepancy between the seized Nokia phone and the child’s later description of a Samsung phone weakened the connection, but it did not eliminate probable cause. A witness may also identify a physical object, so the device itself could be evidence even apart from anything found in its memory.

In Diaz’s case, officers called Diaz’s number and then saw him emerge holding the seized phone. That observation connected the particular device to him and to the allegations. Later interviews also strengthened the evidentiary basis for retaining the phone.

The seriousness of the alleged offenses strengthened the Commonwealth’s interests in both cases. The court emphasized that the cases involved sexual exploitation of children. The result therefore arose from a particularly strong governmental interest, not from delay alone.

Police Workload Did Not Excuse the Delays

The Commonwealth prevailed, but the court did not accept routine workload as an adequate explanation for delay. It described generalized caseload and staffing pressures as insufficient and found a lack of diligence in both investigations.

The Solis warrant application was not unusually complex. Much of the delay resulted from the detective’s other obligations, and much of the affidavit was not case-specific. Diaz’s investigation was more complicated because it involved two children, earlier agency investigations, and multiple interviews. Even there, the detective’s decision to place the warrant work behind other cases weighed against the Commonwealth.

This part of the opinion controls in future suppression litigation. Probable cause and independent evidentiary value can support retention, but they do not erase unreasonable police neglect. Article 14 requires a case-specific explanation, and the court refused to adopt a federal rule under which the physical item’s evidentiary value would make almost any delay immaterial.

Why Solis Differs From Commonwealth v. White

Commonwealth v. White, 475 Mass. 583 (2016), involved a shorter delay of 68 days, but the SJC found it unreasonable. The comparison demonstrates why counting days cannot resolve the constitutional question.

In White, police lacked probable cause to believe that the seized phone contained evidence when they took it. The device had no established evidentiary value independent of its contents. Officers did not treat the warrant as a priority, and the investigation did not supply a case-specific reason for waiting. Those circumstances left the defendant’s possessory interest with little on the other side of the balance.

In Solis and Diaz, by contrast, the court found probable cause tied to the particular phones. Each phone could serve as evidence apart from the data later extracted. The allegations involved serious offenses against children, and neither defendant documented a special need for the phone or requested its return. Those combined facts outweighed the substantial intrusion caused by the lengthy retention.

Solis does not overrule White. It confirms that a delay shorter than 109 days can be unreasonable and a longer delay can be reasonable, depending on the complete record.

The Narrow Scope of the Holding

The decision does not establish a general period during which police may hold every seized phone. Several limits remain:

• A 109-day or 123-day delay is not automatically reasonable.
• Independent evidentiary value strengthens the Commonwealth’s position, but it does not excuse neglect.
• Ordinary workload and staffing constraints do not supply a sufficient case-specific justification.
• The defendant’s failure to request return of the phone is relevant, but it does not forfeit Article 14 protection.
• The seriousness of the alleged offense counts, and the court repeatedly identified the child-exploitation context of these cases.
• A court must examine the information available during the period of retention, including later investigative developments that are independent of any unlawful search.

The holding therefore concerns a particular combination of probable cause, independent evidentiary value, serious alleged offenses, diminished possessory claims, and continued investigative support.

Defense Issues After Solis

The defense record now counts even more when police retain a digital device. Several steps can affect the totality analysis.

Document the need for the device. A prompt written request for return can establish that the owner has not abandoned the possessory interest. The request should identify concrete consequences, such as lost access to employment, authentication applications, medical information, family communications, financial accounts, photographs, or data that cannot be restored from another device.

Examine the justification at each stage. The defense should determine what officers knew when they seized the phone, what they learned later, when they learned it, and whether the later information came from a lawful source independent of the phone’s contents.

Separate genuine complexity from ordinary workload. A lengthy affidavit does not prove that a warrant application required months of work. The relevant question is how much case-specific investigation and drafting were necessary, not how many pages resulted.

Challenge the claimed evidentiary value of the physical device. A phone does not become an instrumentality merely because most people own phones or because digital evidence might exist somewhere. The Commonwealth must connect the particular device to the alleged conduct. Identification discrepancies, uncertain ownership, multiple devices, and speculative assumptions can weaken that connection.

Review seizure, retention, warrant, and extraction separately. A lawful arrest does not necessarily justify taking the phone. A lawful seizure does not necessarily justify holding it for months. A lawful retention does not establish probable cause to search. A valid warrant does not authorize examination of every file and every date range. The office’s guide to phone, computer, and digital-device searches in Massachusetts explains those distinct issues, and the Massachusetts phone and computer search FAQs address common questions about warrants, passcodes, consent, and digital extractions.

Frequently Asked Questions

Key Takeaways

• Commonwealth v. Solis, SJC-13823, and Commonwealth v. Diaz, SJC-13835, were decided on August 12, 2026.
• The SJC reversed suppression orders involving delays of 109 and 123 days.
• Article 14 imposes no fixed numerical deadline for a warrant application after police seize a phone.
• Courts must balance the defendant’s possessory interest and the intrusion against the Commonwealth’s case-specific justification for continued retention.
• General workload does not excuse delay, and digital-device warrant applications must receive priority.
• The decision does not create a general 109-day or 123-day safe harbor.

Related Serpa Law Office Resources

• Phone, Computer, and Digital Device Searches in Massachusetts
• Massachusetts Phone and Computer Search FAQs
• Digital Search Warrants in Massachusetts
• Illegal Searches and Seizures in Massachusetts
• Your Rights and Legal Concepts in a Massachusetts Criminal Case

This article provides general information about Massachusetts law. It is not legal advice and does not create an attorney-client relationship. Legal outcomes depend on the facts and procedural history of each case.

Official reporter citations had not yet been assigned to the decisions in this survey as of late July 2026, so each case is cited by docket number and decision date.

Three of the decisions, Steward, Pena, and V.B. v. B.W.R.T., are summary decisions issued under Appeals Court Rule 23.0. Summary decisions are primarily directed to the parties, may not fully address the facts of a case or the panel’s reasoning, and represent the views of the deciding panel only. A summary decision issued after February 25, 2008, may be cited for its persuasive value but not as binding precedent.

Summary decisions remain useful because they show how the Appeals Court applies settled rules to recurring fact patterns. The entries below identify each summary decision. Each entry below also mentions any fuller case note on this site about the same decision.

Commonwealth v. Dobson: Statutory Limits on Searches Incident to Arrest

In Commonwealth v. Dobson, No. SJC-13794 (Mass. July 17, 2026), officers stopped a car for window tint they believed violated the light transmittance law. The officers arrested the defendant for assault and battery on a police officer after a struggle over handcuffing, then searched her person repeatedly. The officers did not conduct the searches to find evidence of assault and battery on a police officer. Instead, the officers wanted her car key so that they could open the locked glove compartment of her car, which they suspected held a firearm.

After the searches, officers told the defendant that a dog had alerted to the glove compartment and warned her that the vehicle would be damaged if she did not produce the key. The defendant surrendered the key about three minutes later. The officers then opened the compartment and found a firearm and pills.

The Supreme Judicial Court held that the searches violated G. L. c. 276, § 1. The statute permits a search incident to arrest only to obtain evidence of the crime for which the arrest was made or to remove weapons that the person might use to resist arrest or escape. The undisputed findings, supported by officer testimony and body-worn camera footage, established that the purpose of the searches was to investigate a different crime. The statute therefore barred the searches.

The court further held that the Commonwealth failed to prove that the surrender of the key was attenuated from the illegality, because only three minutes passed and officers continued to press for the key. The officers had also warned the defendant before the surrender that the car would be damaged if she did not produce the key. The handover therefore was not valid consent. The court reversed the order denying the motion to suppress and remanded for entry of an order allowing the motion.

The decision applies in any District Court or Boston Municipal Court case in which police arrested a person on one charge and found evidence of a different crime. The court decided the case under the statute rather than the Fourth Amendment, so the analysis depends on the purpose of the search. The body-worn camera footage in the case corroborated the findings that established the purpose of the searches.

Justice Georges, concurring, would have gone further than the court. In his view, the recordings are not merely corroborative. The recordings themselves showed the searches evolving into an investigation of a different crime. Counsel reviewing discovery should match each search of the client’s person against the crime of arrest and move to suppress where the recorded purpose was a separate investigation.

Commonwealth v. Steward: The Permissible Duration of a Traffic Stop

Commonwealth v. Steward, No. 25-P-15 (Mass. App. Ct. July 23, 2026), is a summary decision under Rule 23.0, persuasive rather than binding. The panel applied the rule that a routine traffic stop may not last longer than “reasonably necessary to effectuate the purpose of the stop.” Commonwealth v. Cordero, 477 Mass. 237, 241 (2017). The detective’s encounter with the defendant lasted about forty-five minutes. The detective described the defendant as extremely polite and cooperative throughout the encounter.

The panel assumed, without deciding, that the exit order, the patfrisk, and the protective search of the passenger area were all justified. Any reasonable suspicion had dissipated once the patfrisk and the protective search revealed no weapon and no contraband and once the defendant’s nervousness had passed.

What remained, a corner-cut plastic bag on the passenger seat and an unknown amount of cash in the defendant’s pockets, did not amount to probable cause, as the Commonwealth conceded.

The detective nonetheless returned to his cruiser to run a record check and then gave the defendant a choice between handing over any drugs and waiting for a canine sniff. The panel held that prolonging the stop at that point was unlawful, ruled that all physical evidence obtained afterward must be suppressed, and reversed the order that had denied the motion. The panel also noted that the plain feel doctrine did not permit the detective to remove currency from the defendant’s pockets during the patfrisk, because currency is not contraband.

One appellate rule from the decision applies beyond the facts of the case. A reviewing court gives no deference to findings that a motion judge draws from body-worn camera footage and may review the video de novo. Commonwealth v. Tremblay, 480 Mass. 645, 656 (2018).

Traffic stops are the source of a large share of the drug and firearm cases arraigned in the District Court and the Boston Municipal Court. The decision shows that the timeline of a stop can be litigated precisely. The seizure must end when the tasks tied to the stop are complete, unless specific facts establish new reasonable suspicion. This site has a fuller case note on the decision.

Commonwealth v. Greaves: Opening a Backpack Without First Patting It Down Was Unlawful

In Commonwealth v. Greaves, No. 25-P-29 (Mass. App. Ct. July 28, 2026), a published decision, officers conducting a protective search unzipped the defendant’s soft-sided backpack without first patting it down, and recovered a firearm and drugs. The Appeals Court held the search unlawful.

Protective measures must be confined to what is minimally necessary to learn whether the suspect is armed and to disarm the suspect once a weapon is found. A patfrisk of a small soft container would suffice to reveal any weapon or hard object inside. The Commonwealth showed none of the specific circumstances that excuse a preliminary patfrisk under Commonwealth v. Robinson, 83 Mass. App. Ct. 419, 430 (2013). The court affirmed the order allowing the motion to suppress.

The fact pattern in Greaves recurs often in District Court and Boston Municipal Court firearm cases. An officer stops a person who has a bag and unzips the bag without first patting it down. After Greaves, the first question in discovery is whether anyone patted the bag down first. The second question is what specific facts, if any, the Commonwealth can point to that made a patfrisk inadequate.

Commonwealth v. Figueroa: Proportionality Limits on Prior Bad Act Evidence

In Commonwealth v. Figueroa, No. 24-P-448 (Mass. App. Ct. July 7, 2026), a published decision, the Appeals Court vacated convictions for child rape and indecent assault and battery because uncharged bad act evidence overwhelmed the trial.

The bad act testimony from two prior bad act witnesses and the two named victims totaled forty-two transcript pages, twenty-nine of them from the two prior bad act witnesses alone. The named victims’ cumulative testimony about the charged offenses covered twenty-six pages. The prosecutor then built the closing argument on the uncharged conduct, telling the jury that the defendant “preyed upon the children in this family.”

The court restated the governing standard that prior bad act evidence is inadmissible when its probative value is outweighed, even if not substantially outweighed, by the risk of unfair prejudice.

The court then emphasized two directives that affect everyday trial practice. First, the trial judge must be prepared to intervene during trial to keep bad act evidence from overwhelming the evidence of the charged conduct, even without an objection. Second, counsel offering bad act evidence should articulate the precise nonpropensity purpose for the evidence. The judge should then instruct the jury on that narrow purpose alone rather than reciting a list of every purpose the law recognizes. The SJC stated the second directive in Commonwealth v. Samia, 492 Mass. 135 (2023). Figueroa repeats the same directive.

The defendant objected to the prior bad act testimony at trial, so the court reviewed for prejudicial error rather than for a substantial risk of a miscarriage of justice.

Defense counsel can present proportionality as a measurable argument. An imbalance in the transcript, with uncharged conduct occupying more of the transcript than the charged conduct, itself supports exclusion, intervention during trial, or a new trial. Defense counsel should object when the evidence is offered and renew the objection as the volume of bad act evidence grows. Counsel should also object to any limiting instruction that recites a list of permissible purposes rather than the single purpose for which the evidence was admitted.

Commonwealth v. Albert: The First Complaint Doctrine and Private Writings

In Commonwealth v. Albert, No. 24-P-647 (Mass. App. Ct. July 1, 2026), also published, the Appeals Court held that a private diary entry never shown to another person cannot serve as first complaint evidence in a sexual assault trial. A complaint requires communication, which means that the accusation must be brought to the perception of another person.

A written or recorded statement may qualify as a first complaint without a live witness, but only if the writing was in fact communicated to someone. The court also restated the general rule that only the first complaint, not any later disclosure, is admissible under the doctrine. The Commonwealth therefore may not select the most effective disclosure from a series.

The court vacated the convictions and remanded for a new trial. Justice Sacks dissented, reasoning that admission of the diary entry served the doctrine’s purposes of rebutting false inferences from a complainant’s silence.

First complaint disputes recur in indecent assault and battery and rape prosecutions at every level of court. After Albert, counsel confronting a journal, letter, or other writing offered as the first complaint should first ask whether the writing was communicated to anyone at the time. A writing that was not communicated to anyone at the time is not admissible under the doctrine. Counsel should also object separately to any additional disclosure the Commonwealth offers beyond the true first complaint.

Commonwealth v. Pena: Improper Closing Argument in a Domestic Violence Trial

Commonwealth v. Pena, No. 24-P-970 (Mass. App. Ct. July 24, 2026), is a summary decision under Rule 23.0, persuasive rather than binding. The case arose from a domestic violence trial that the panel described as a case of the victim’s word against the defendant’s word. The defense had argued that the complainant brought charges out of revenge.

The prosecutor answered in closing that false accusations made out of revenge do not happen. The panel held that the prosecutor’s statement was improper vouching because the statement implied knowledge of how charges are brought.

The panel identified further error. The prosecutor called the defendant “drunk” and “fueled by alcohol” when the testimony established only that he had been drinking at a party. The prosecutor described photographs as showing blood as the victim was slammed to the ground and asserted that there was no testimony of anger or bad blood despite testimony to the contrary. The prosecutor also stated the defendant’s guilt definitively rather than urging an inference from the evidence.

The panel held that one challenged remark, the prosecutor’s statement that the scales had been tilted, was fair reply because the defense closing had used the same scales figure first. The panel concluded, however, that the judge’s instructions were standard rather than curative and that the conceded errors concerned the central issue in the case, the complainant’s credibility. Together the errors created a substantial risk of a miscarriage of justice. The panel vacated the conviction and set aside the verdict.

Domestic violence trials in the District Court and the Boston Municipal Court frequently depend on credibility alone. Vouching is most prejudicial in a trial that depends on credibility alone. Counsel who object during closing preserve the standard of review that is most favorable to the defendant, but the panel granted relief even without objection because the errors were significant and the instructions generic. A longer case note on the decision appears elsewhere on this site.

Commonwealth v. Delarosa: Reasonable Provocation and Cooling Off

In Commonwealth v. Delarosa, No. SJC-13444 (Mass. July 21, 2026), the Supreme Judicial Court affirmed a conviction of murder in the first degree on the theory of extreme atrocity or cruelty. The court held that the defendant was not entitled to a voluntary manslaughter instruction based on the evidence in the Commonwealth’s case.

By the defendant’s own account, he discovered a letter suggesting infidelity while folding laundry, later went to sleep beside the victim, and confronted her only after they woke during the night. The court held that, on the timeline that the defendant described, a reasonable person would have cooled off as a matter of law.

The court restated that words alone are generally insufficient provocation and that the exception for peculiarly inflammatory statements did not apply, because the information at issue was already known to the defendant. The defendant was also convicted of violating an abuse prevention order, a conviction he did not challenge on appeal.

After the defendant’s testimony, the judge concluded that the new details in the testimony did warrant the instruction. The jury was instructed on voluntary manslaughter on the theory of heat of passion on reasonable provocation. The jury convicted the defendant of murder in the first degree anyway. The appellate question was only whether the earlier refusal, at the close of the Commonwealth’s case, was error.

In a footnote, the court made a point that applies to current cases. The court noted that, after Delarosa’s trial, the SJC announced in Commonwealth v. Ronchi, 491 Mass. 284, 295 (2023), that going forward it will no longer recognize an oral discovery of infidelity as satisfying the objective element of provocation. Delarosa’s trial predated Ronchi, which is why the court analyzed the exception for peculiarly inflammatory statements at all.

Counsel weighing a heat of passion theory in any assault or homicide case should build the timeline before committing to the defense. A heat of passion claim fails as a matter of law, regardless of the defendant’s subjective state, if the defendant engaged in ordinary activity, such as going to sleep, between the claimed provocation and the act. In cases tried after Ronchi, an oral discovery of infidelity also no longer satisfies the objective element of provocation.

V.B. v. B.W.R.T.: Coercive Control Under Chapter 209A

V.B. v. B.W.R.T., No. 25-P-1086 (Mass. App. Ct. July 24, 2026), is a summary decision under Rule 23.0, persuasive rather than binding. The Appeals Court vacated an abuse prevention order that was based on the coercive control category of abuse. The definition of abuse in G. L. c. 209A, § 1 includes coercive control. The hearing judge found that the defendant had threatened to publish sensitive personal information about the plaintiff.

The only evidence of the supposed threat, however, was the plaintiff’s “vague and elliptical” reference to a communication that was “private” and “sexual in nature.” The panel held that the record lacked the objective evidence required before the potent remedies of a c. 209A order may issue. The panel stated that the record must be clear about two matters before any order premised on coercive control enters. The record must be clear about the specific conduct and about how that conduct caused the plaintiff to reasonably fear physical harm or to have a reduced sense of physical safety or autonomy.

The panel also noted a case pending before the Supreme Judicial Court, G.P. v. S.P., No. SJC-13947. G.P. v. S.P. presents the question whether the coercive control provision is vague and overbroad under the First and Fifth Amendments and the cognate provisions of the Massachusetts Constitution. The panel expressed no view on the constitutional question. This survey also expresses no view on the question, but any lawyer litigating a coercive control order in 2026 should know that the coercive control provision itself is under constitutional review.

A c. 209A plaintiff must prove abuse by a preponderance of the evidence. Abuse prevention hearings move quickly. The panel insisted on objective evidence. Respondents’ counsel can therefore demand proof of the specific conduct itself at the hearing, not characterizations of the conduct. The decision also affects criminal cases, because the Commonwealth prosecutes a violation of an abuse prevention order as a separate offense, as Delarosa above illustrates. The decision receives fuller treatment in a separate case note on this site.

Commonwealth v. Watson: Postconviction Forensic Analysis of Digital Evidence

In Commonwealth v. Watson, No. SJC-13850 (Mass. July 9, 2026), the Supreme Judicial Court held that G. L. c. 278A, the postconviction forensic analysis statute, applies to digital forensic analysis of cell phones. The defendant, convicted of murder in the first degree, sought digital extraction of data from a codefendant’s cell phones. The Commonwealth argued that the statute permits only scientific testing of physical evidence for biological material. The court disagreed.

The statute permits a party to seek forensic or scientific analysis of evidence or biological material. Digital extraction of cell phone data applies a forensic or scientific technique. The phones and their contents, including call logs, text message logs, and location information, fall within the ordinary meaning of evidence.

The court also decided the subsidiary questions in the defendant’s favor. To satisfy G. L. c. 278A, § 3 (b) (5) (iv), a defendant need show only that a reasonably effective attorney would have sought the requested analysis, not that every reasonably effective attorney would have sought the analysis. The requirements of the statute are, by design, less stringent than those governing a motion for a new trial under Mass. R. Crim. P. 30.

Under G. L. c. 278A, § 15, the right to file a motion under the chapter “shall not be waived,” so the defendant’s failure to appeal a pretrial denial of access to the same phones did not bar the motion. The court affirmed the orders allowing the analysis.

Convictions are increasingly based on cell phone extractions, cell site records, and application data. After Watson, a convicted person may seek digital forensic analysis under c. 278A without proving in advance that the results would justify a new trial. The relaxed standard applies to access to the analysis. A convicted person who seeks a new trial based on favorable results must still file a motion under rule 30. A separate case note on this site examines the decision in more detail.

Commonwealth v. Pina: New Trial Affirmed on Newly Discovered Evidence

In Commonwealth v. Pina, No. SJC-13783 (Mass. July 28, 2026), a published decision of the full bench, the Supreme Judicial Court affirmed the allowance of a motion for a new trial in a first degree murder case. Newly discovered evidence, including a principal identification witness’s undisclosed psychiatric hospitalization, third-party culprit evidence, and DNA results, collectively cast real doubt on the justice of the conviction.

The court reaffirmed that mental impairment, like habitual intoxication and drug addiction, is a proper subject of impeachment where it affects the witness’s capacity to perceive, remember, and articulate correctly. The court also applied the rule that, in rare cases, a judge may weigh the combined effect of multiple new items of evidence rather than the effect of each item alone.

In Watson, the Supreme Judicial Court held that digital forensic analysis is available under c. 278A. In Pina, the full bench affirmed relief where the accumulated new evidence undermined a decades-old identification. For counsel evaluating a closed case, the two decisions together describe the modern postconviction sequence. Counsel first obtains the analysis under c. 278A and then bases the rule 30 motion on the results, item by item and in combination.

Earlier Decisions Covered in July Case Notes

This survey also includes one decision issued just before the survey period because the decision affects operating under the influence practice. In Commonwealth v. Grimaldi, No. SJC-13842 (Mass. June 2, 2026), the Supreme Judicial Court held that troopers did not willfully intercept a driver’s communications at a sobriety checkpoint. Under the wiretap statute, G. L. c. 272, § 99, willfulness requires an intent to record secretly, meaning an intent to record a person without their knowledge.

A large reflective sign at the checkpoint warned that audio and video recording was taking place. The court held that the sign showed the troopers’ intent to notify motorists regardless of whether the defendant saw the sign. The troopers wore body-worn cameras openly at chest level with visible red recording lights. One trooper pointed a camera directly at the defendant’s feet during the walk and turn.

The court reversed the suppression of the recordings. The court noted that a failure to give the oral notification called for by State police policy would not alone make a recording willful where the evidence showed no intent to conceal. Field sobriety test recordings made as openly as the recordings in Grimaldi are unlikely to be suppressed under the wiretap statute. Counsel should therefore prepare to use the footage in cross-examination rather than to challenge its admission. Grimaldi was the subject of a fuller case note on this site in July 2026.

Two further case notes published on this site in July address broader subjects rather than single new decisions. One case note addresses confrontation clause limits on substitute analyst testimony in drug prosecutions. The other case note addresses Massachusetts firearms licensing for nonresidents after the United States Supreme Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen. Readers handling a drug certificate issue or a nonresident carrying charge should begin with the two case notes.

The Supreme Judicial Court issued three decisions in the final three days of July, after the survey period ended. The decisions are Commonwealth v. Shaw, No. SJC-13852 (July 29, 2026), Commonwealth v. Dorsey, No. SJC-13232 (July 30, 2026), and Hall, petitioner, No. SJC-13657 (July 31, 2026). The August 2026 roundup covers the three decisions.

Referring counsel may reach Attorney Serpa at 617.936.0201.

The court held that the prosecutor created a substantial risk of a miscarriage of justice by vouching for the complainant’s credibility, misstating the evidence, and asserting the defendant’s guilt in closing argument. The decision was issued under Appeals Court Rule 23.0 and is not binding precedent, but it may be cited for its persuasive value. The decision shows the proper and improper ways to conduct a trial that is a credibility contest.

The Trial and the Verdicts

A criminal complaint issued on August 31, 2022, charging the defendant with threatening to commit a crime, G. L. c. 275, § 2. The complaint also charged the defendant with two counts of assault and battery on a family or household member, G. L. c. 265, § 13M (a), and assault by means of a dangerous weapon.

After a two-day trial in August 2023, the jury convicted the defendant of one count of assault and battery on a family or household member. The jury acquitted the defendant of the other count and of assault by means of a dangerous weapon. The complainant testified that the defendant struck her and held a small kitchen knife to her neck. The defendant testified and denied the complainant’s account. The outcome of the case depended entirely on which account the jury believed.

The Prosecutor’s Closing Argument

The defendant identified a series of improper statements in the closing. The court addressed three categories of statements. First, the prosecutor told the jury that false accusations motivated by revenge or anger “doesn’t happen.” The prosecutor’s statement about false accusations was improper vouching, because the statement implied that the prosecutor had knowledge, independent of the evidence, about how charges are brought.

Improper vouching occurs when an attorney expresses a personal opinion regarding the credibility of a witness or suggests knowledge independent of the evidence before the jury. Commonwealth v. Muller, 477 Mass. 415, 433 (2017); Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). The Commonwealth conceded on appeal that the phrase was “certainly ill-advised.”

Second, the prosecutor misstated the evidence, including an assertion that the defendant had “slammed” the complainant’s head. No witness had said that the defendant slammed her head. A prosecutor may not misstate the evidence or refer to facts not in evidence in closing argument. Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). Third, the prosecutor declared, “This fight did happen. [The defendant] did do those injuries to [the victim]. He did beat her up.”

A prosecutor may urge the jury to draw inferences from the evidence, Commonwealth v. Martinez, 476 Mass. 186, 199 (2017), but may not express a personal opinion on the defendant’s guilt. Commonwealth v. Penn, 472 Mass. 610, 627 (2015); Commonwealth v. Howell, 394 Mass. 654, 661 (1985). The panel held that the prosecutor’s declarations were definitive assertions of guilt, not argued inferences.

The Appeals Court’s Decision

Trial counsel had not objected, so the Appeals Court reviewed the closing argument for a substantial risk of a miscarriage of justice. The court found that the improper statements created a substantial risk of a miscarriage of justice. The case was the complainant’s word against the defendant’s. The improper remarks concerned the central issue in the case, the complainant’s credibility. The judge instructed the jury before the closings that closing arguments are not evidence but did not repeat those instructions afterward.

The panel concluded that the standard instructions could not cure the significant errors in the prosecutor’s closing argument. Commonwealth v. Dirgo, 474 Mass. 1012, 1017 (2016). The court vacated the judgment and set aside the verdict. The court rejected the defendant’s separate argument that the absence of a specific unanimity instruction was structural error.

The court reviewed the omission of the instruction under the same substantial risk standard, Commonwealth v. Palermo, 482 Mass. 620, 629 (2019). The court also held that the defendant’s double jeopardy argument was premature. The defendant may move to dismiss if the Commonwealth seeks a retrial. Commonwealth v. Hrycenko, 417 Mass. 309, 314-317 (1994).

What the Decision Means for a Domestic Violence Case

Many domestic violence prosecutions are credibility contests with no independent witnesses. The decision confirms that the rules of argument are strictest in a credibility contest. Jurors are the sole judges of credibility. Jurors want to judge credibility on the evidence. A prosecutor who tells the jurors that the complainant must be believed because false accusations do not happen takes the credibility decision away from the jurors.

For the defense, the decision is a reminder that closing arguments must be scrutinized in real time and preserved for appeal, and that even without an objection, pervasive error in a word-against-word case can require a new trial. The decision is also a reminder that a jury verdict does not always end a case. The Appeals Court vacated the defendant’s conviction. The split verdicts at trial, with acquittals on two of the four charges, show that the jury was already weighing the evidence charge by charge.

The Records After a Vacated Conviction

A vacated conviction, like a dismissal or an acquittal, leaves a paper record. The docket, the police reports, and the Board of Probation entry all persist unless further steps are taken. The firm’s page Domestic Violence Case Records in Massachusetts explains what each record shows and what can be done about each record. A defendant who prevails on appeal should address the records question as part of finishing the case.

Summary for a Person With a Pending Case

A domestic violence trial that depends on one person’s word against another’s can end in an acquittal. A conviction in a word-against-word trial can also be challenged on appeal when the Commonwealth argues beyond the evidence. Anyone facing an assault and battery charge involving a family or household member should have trial counsel who knows the boundaries of closing argument and enforces them. Serpa Law Office tries domestic violence cases in the Boston Municipal Court and the district courts of Greater Boston.

The decision was issued under Appeals Court Rule 23.0 and is not binding precedent, but it may be cited for its persuasive value. The Appeals Court applied settled Supreme Judicial Court authority to a fact pattern that recurs in drug prosecutions across the district courts.

The Charges and the Procedural History

The defendant was charged with possession of a class A controlled substance with intent to distribute, G. L. c. 94C, § 32 (a). The defendant was also charged with possession of a class B controlled substance with intent to distribute, G. L. c. 94C, § 32A (a). He moved to suppress the physical evidence, several plastic baggies containing white substances and $1,240 in currency.

A District Court judge denied the motion after an evidentiary hearing. A single justice of the Supreme Judicial Court allowed the defendant to pursue an interlocutory appeal. The Appeals Court reversed the denial of the motion. Before trial, a single justice of the Supreme Judicial Court may allow an interlocutory appeal from the denial of a motion to suppress.

The Legal Framework for a Traffic Stop

A routine traffic stop may not last longer than reasonably necessary to effectuate the purpose of the stop. Commonwealth v. Cordero, 477 Mass. 237, 241 (2017), quoting Commonwealth v. Amado, 474 Mass. 147, 151 (2016). The scope of a stop may extend beyond its initial purpose only if the officer is confronted with facts giving rise to a reasonable suspicion that further criminal conduct is afoot. Commonwealth v. Tavares, 482 Mass. 694, 703 (2019).

Without reasonable suspicion of further criminal conduct, police authority to seize an individual ends when the tasks tied to the traffic infraction are completed, or reasonably should have been completed. Commonwealth v. Soriano-Lara, 99 Mass. App. Ct. 525, 528 (2021). A patfrisk requires reasonable suspicion that the person is armed and dangerous, but a search of the person requires probable cause and an exception to the warrant requirement. Commonwealth v. Villagran, 477 Mass. 711, 717 (2017).

The Court’s Analysis

The panel assumed, without deciding, that the detective was justified in issuing the exit order, in patfrisking the defendant, and in conducting a protective search of the front passenger area of the truck. Neither the patfrisk nor the protective search revealed weapons or contraband. The defendant was also no longer nervous. At that moment, the court held, any reasonable suspicion and any concern for officer safety dissipated. Commonwealth v. Douglas, 472 Mass. 439, 443 (2015). The defendant was handcuffed and seated on the grass. There was no reason to prolong the interaction.

The remaining facts were the detective’s observation of a corner-cut plastic bag on the passenger seat and the fact that the defendant had currency in his pocket. The Commonwealth conceded that the corner-cut bag and the currency did not amount to probable cause. The panel agreed, citing Commonwealth v. Garcia, 34 Mass. App. Ct. 645, 650 (1993).

Without probable cause, the detective was required to end his inquiry and complete the traffic stop. He was not permitted to return to his cruiser to check the defendant’s record and then present the defendant with a choice between handing over any drugs and waiting for a dog sniff. All physical evidence obtained after the point at which the detective should have completed the traffic stop had to be suppressed.

The court addressed two further points in footnotes. The court declined to consider an unsubstantiated tip about drug activity, agreeing with the motion judge that the record contained no evidence about it. The body-worn camera footage did not show the corner-cut baggie. The motion judge nevertheless credited the detective’s testimony about the baggie.

The Appeals Court accepted the motion judge’s finding. The defense should obtain and review the body-worn camera footage in every case, because appellate courts review video evidence de novo when the motion judge’s findings are based on the video. Commonwealth v. Tremblay, 480 Mass. 645, 656 (2018).

The Plain Feel Doctrine and the Currency

The panel also held that the detective was not permitted to remove currency from the defendant’s pockets during the frisk. Under the plain feel doctrine, an officer conducting a lawful patfrisk may seize contraband only when the object’s contour or mass makes its identity as contraband immediately apparent. Commonwealth v. Amado, 474 Mass. 147, 153 (2016). Cash is not contraband, so the court excluded the amount of currency from its probable cause analysis entirely.

What the Decision Means for a Pending Drug Case

Most district court drug prosecutions begin with a motor vehicle stop. In those cases, the defense often consists entirely of the suppression motion. The Appeals Court confirmed the sequence a judge must examine. The judge examines the justification for the stop and the justification for any exit order and patfrisk.

The judge then decides separately whether anything discovered by the time the frisk found nothing supplied probable cause to continue the detention. Facts that seem incriminating in the aggregate, such as a baggie corner, cash, and nervousness, do not necessarily amount to probable cause. In this case, the Commonwealth conceded that those facts did not amount to probable cause.

The rules governing when officers may search a vehicle at all are treated in Can Police Search My Car in Massachusetts Without a Warrant? The broader role of suppression in drug crime defense is treated in How Massachusetts Drug Cases Are Defended: Suppression and Trial Evidence.

Summary for a Person With a Pending Case

The law requires the police to complete the purpose of a traffic stop and no more, unless specific facts justify each additional step. The detention must end when a patfrisk and a protective search produce nothing. Anyone charged with drug offenses after a motor vehicle stop should have the entire sequence of the stop reviewed against the rules for traffic stops, minute by minute and with the body-worn camera footage, before deciding how to proceed. Serpa Law Office litigates suppression motions in drug cases throughout the district courts of Greater Boston.

The decision was issued under Appeals Court Rule 23.0 and is not binding precedent, but it may be cited for its persuasive value. The decision is an early indication of how appellate judges will read the new statutory language. The firm’s post on coercive control in Massachusetts 209A restraining order cases explains the statutory definition and its elements.

The Coercive Control Definition

Chapter 209A defines abuse as the occurrence of any of four categories of acts between family or household members. The four categories are attempting to cause or causing physical harm, placing another in fear of imminent serious physical harm, causing another to engage involuntarily in sexual relations by force, threat or duress, and coercive control.

G. L. c. 209A, § 1. The fourth category is the newest. The coercive control category was added by An Act to Prevent Abuse and Exploitation, St. 2024, c. 118, which took effect on September 18, 2024. The same statute created the Massachusetts revenge porn law.

The statute defines coercive control as a pattern of behavior intended to threaten, intimidate, harass, isolate, control, coerce or compel compliance of a family or household member. Under the definition, the pattern must also cause the family or household member to reasonably fear physical harm or to have a reduced sense of physical safety or autonomy.

G. L. c. 209A, § 1. The definition lists examples of qualifying conduct, including isolating the person from friends and relatives, depriving the person of basic needs, monitoring the person’s communications and finances, threatening to harm a child or relative, and damaging property. The list also includes the example relevant in this case, threatening to publish sensitive personal information relating to the family or household member, including sexually explicit images. A single act can also qualify in three narrow situations, including publishing or attempting to publish sexually explicit images.

Two features of the coercive control definition apply in every contested hearing. First, the conduct must form a pattern, unless it falls within the short list of single acts. Second, the pattern must cause the plaintiff to reasonably fear physical harm or to have a reduced sense of physical safety or autonomy. Conduct that is unpleasant, embarrassing, or controlling in a general sense does not satisfy the statute unless the evidence connects the conduct to the statutory effect on safety or autonomy.

The Facts of the Case

The plaintiff filed a complaint on May 14, 2025, seeking a harassment prevention order under G. L. c. 258E. A judge instead issued an ex parte abuse prevention order under c. 209A when the defendant did not appear at the scheduled two-party hearing. At the next hearing, on June 11, 2025, the plaintiff appeared pro se and the defendant appeared with counsel. A second judge extended the 209A restraining order for six months. The defendant appealed.

The plaintiff’s affidavit referred generally to a secret communication with the defendant during their relationship and claimed that the defendant “was insistent on sharing things I told him in private that were sexual in nature.” At the hearing, the plaintiff disclaimed any physical violence or threats of violence.

The plaintiff testified that the defendant had tried to “control and humiliate” her, presenting her more than twenty-five times with an ultimatum that they had to disclose the private information to her family. The judge, showing sensitivity, asked her to explain the situation without describing what the communication contained. The defendant declined to testify, and his attorney argued that the evidence was insufficient. The judge found that the plaintiff had established a pattern of threats to communicate sensitive information to family members and issued the order on a coercive control theory.

The Appeals Court’s Decision

The Appeals Court vacated the order. The panel began by stating settled principles. The plaintiff bears the burden of proving abuse by a preponderance of the evidence. Vanna V. v. Tanner T., 102 Mass. App. Ct. 549, 552-553 (2023); Frizado v. Frizado, 420 Mass. 592, 596 (1995). There must be sufficient “objective evidence” to support a 209A restraining order before the “potent remedies” of the order may be administered. Szymkowski v. Szymkowski, 57 Mass. App. Ct. 284, 286 (2003); Keene v. Gangi, 60 Mass. App. Ct. 667, 670 (2004).

The powers of the court under c. 209A must be exercised in accordance with the statutory language. Carroll v. Kartell, 56 Mass. App. Ct. 83, 87 (2002). An order should not issue “simply because it seems to be a good idea or because it will not cause the defendant any real inconvenience.” Smith v. Joyce, 421 Mass. 520, 523 n.1 (1995).

Applying the settled principles, the panel held that the judge could not find a threat to publish sensitive personal information without first evaluating the communication that was allegedly threatened with disclosure. All the judge had before him was the plaintiff’s vague and elliptical reference to a communication that was “private” and “sexual in nature.”

The Appeals Court acknowledged that the judge had asked the plaintiff to avoid details out of sensitivity. As a result, the record contained only conclusory testimony and no underlying facts. Without objective evidence of what the communication was, the record could not support a finding that threatening to reveal it constituted coercive control under the statute.

The panel closed with a broader instruction. The record must be clear about how the defendant’s conduct satisfies the statutory requirements before any order premised on coercive control is issued. The record must show both the specific nature of the conduct and how the conduct caused the plaintiff to reasonably fear physical harm or to have a reduced sense of physical safety or autonomy. The panel’s instruction will appear in defense arguments at two-party hearings across the Commonwealth.

The Pending Constitutional Challenge

The panel also noted that the coercive control definition is broad. The panel further noted that the Supreme Judicial Court has solicited amicus briefs in G.P. v. S.P., No. SJC-13947. The question for the amicus briefs is whether the provision is vague and overbroad in violation of the First and Fifth Amendments to the United States Constitution and the cognate provisions of the Massachusetts Constitution. The Appeals Court expressed no view on the constitutional question.

The rules for coercive control orders may change again within the year when the Supreme Judicial Court decides G.P. v. S.P. Anyone litigating a coercive control allegation while G.P. v. S.P. is pending should preserve constitutional objections on the record.

What the Decision Means for a Pending 209A Restraining Order Case

For a person defending against a coercive control allegation, the Appeals Court confirmed that the two-party hearing is an evidentiary proceeding, not a formality. The plaintiff must prove specific conduct. The judge must be able to evaluate the conduct against the statutory definition. General testimony that a partner was controlling, or that the partner threatened to disclose private information, does not meet the burden without facts a judge can examine. Counsel at a 209A restraining order (abuse prevention order) hearing can hold the plaintiff to proof of each element.

The elements are the pattern, the intent, and the statutory effect on safety or autonomy. The decision also illustrates a separate point about testimony. The defendant in this case declined to testify, and prevailed on appeal on the state of the plaintiff’s evidence alone. The decision whether to testify at a 209A restraining order hearing implicates the Fifth Amendment in civil cases when a criminal investigation or a companion domestic violence charge is possible. The decision whether to testify should be made with counsel before the hearing, not at the hearing.

The decision also has a lesson for a person who has obtained an order. An order based on conclusory testimony may be vacated on appeal. A plaintiff alleging coercive control should be prepared to describe the conduct with enough specificity that the judge can make the statutory findings, even when the subject matter is painful to discuss.

The Records Question After a Vacated Order

Records of a 209A restraining order remain after the order is vacated, including the court file and the entry in the statewide domestic violence record keeping system (DVRS) that judges consult in later cases. The post State and Federal Records of Massachusetts 209A Restraining Orders and 258E Harassment Prevention Orders explains which records are removed and which remain when an order is vacated. The post also explains when expungement is available for an order obtained through fraud on the court. A defendant who wins on appeal should then address the records that remain after the order is vacated.

Summary for a Person With a Pending Case

Coercive control has been a distinct statutory basis for a 209A restraining order since September 18, 2024. The Massachusetts appellate courts are reviewing coercive control orders for the first time. In V.B. v. B.W.R.T., the Appeals Court indicated that the new definition does not reduce the evidence a plaintiff must present.

A judge must have objective evidence of specific conduct meeting the statutory elements before the order issues. Serpa Law Office represents both defendants and plaintiffs at 209A restraining order and 258E harassment prevention order hearings in the district courts of Greater Boston. Anyone facing a hearing on a coercive control allegation, as a plaintiff or a defendant, should get advice before the hearing date, because the Appeals Court decides any appeal on the record made at the hearing.

The Commonwealth must meet two separate requirements when it offers forensic drug evidence. The Commonwealth must prove the identity of the substance and, when required by the charge, its weight. The Commonwealth must also introduce its evidence without violating the defendant’s right to confront the witnesses against the defendant. A laboratory certificate, an analyst’s notes, raw instrument output, and a reviewing expert’s opinion do not all receive the same constitutional treatment.

The Confrontation Clause restricts testimonial out-of-court statements offered for their truth. The Confrontation Clause does not require the exclusion of every laboratory record, require the same witness in every forensic case, or make scientific evidence inadmissible whenever more than one analyst participated. The court must identify the statement, its primary purpose, whether it is offered for its truth, and whether the testifying expert’s opinion depends on it.

This article addresses the confrontation issue in forensic drug evidence. The firm’s Massachusetts drug-crime defense page covers the underlying offenses, and the distribution and trafficking page explains when drug identity and weight become statutory elements.

Melendez-Diaz and Drug Certificates

In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), prosecutors introduced certificates stating that laboratory testing had identified seized substances as cocaine. The United States Supreme Court held that the certificates were testimonial. The analysts who created the certificates were witnesses for Sixth Amendment purposes. The prosecution could not use the certificates in place of confrontation.

The question whether the Confrontation Clause applies to a certificate does not depend on whether the certificate appears reliable or whether the laboratory follows accepted procedures. The constitutional question is whether the prosecution offers a testimonial assertion from an absent witness against the defendant. The declarant must be available for cross-examination or be unavailable after the defendant had a prior opportunity to cross-examine that witness, unless an exception applies.

Bullcoming v. New Mexico, 564 U.S. 647 (2011), applied the same principle when the prosecution introduced one analyst’s forensic certification through another laboratory witness who had not performed or observed the reported analysis. The testifying witness’s general familiarity with laboratory procedures did not provide an opportunity to cross-examine the person who made the case-specific assertions in the report.

Smith v. Arizona and an Expert’s Basis Testimony

In Smith v. Arizona, 602 U.S. 779 (2024), the prosecution called a substitute analyst who described an absent analyst’s work and then offered an opinion based on that work. The state court treated the absent analyst’s statements as nonhearsay because they explained the basis of the substitute expert’s opinion rather than proving their truth.

The Supreme Court rejected the state court’s reasoning. An absent analyst’s statement is offered for its truth when an expert conveys the statement to support an opinion and the statement supports the opinion only if it is true. Calling the statement the basis of an opinion does not avoid the hearsay question or the Confrontation Clause.

In Smith, the Supreme Court did not decide whether every statement at issue was testimonial. The Supreme Court remanded the case for the state court to address whether the statements were testimonial. A complete analysis therefore has two parts. The absent statement must be offered for its truth and must also be testimonial.

Commonwealth v. Gordon and the Massachusetts Rule

In Commonwealth v. Gordon, 496 Mass. 554 (2025), the Supreme Judicial Court applied Smith to Massachusetts drug testing. The original analyst performed gas chromatography-mass spectrometry testing and recorded the procedures, protocols, and results. A crime-laboratory supervisor completed technical and administrative review but did not participate in or observe the testing. The supervisor testified to an opinion identifying the controlled substance.

The Supreme Judicial Court held that the original analyst’s case-specific notes were testimonial hearsay. The raw instrument output was machine generated and was not itself hearsay. The supervisor’s opinion, however, also depended on the truth of the original analyst’s statements about the processes and protocols used to produce the instrument data. The substitute opinion was therefore not independent in the constitutional sense.

The current Massachusetts Guide to Evidence, § 703, states the resulting rule. A prosecution expert’s opinion in a criminal case may not depend on testimonial hearsay unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. The rule applies even when the prosecution does not elicit the absent analyst’s statements directly during the substitute expert’s testimony.

In Gordon, the Supreme Judicial Court also addressed the cases to which the rule applies. The corrected opinion states that the holding should not apply retroactively to convictions that became final before Smith. The holding applies prospectively and to cases that were active or pending on direct review when Smith was issued. The question whether a particular case receives the benefit of the rule therefore depends on the procedural posture of the case.

A Substitute Expert Is Not Categorically Barred

The rule does not require courts to exclude every expert who did not personally perform each laboratory step. An expert may testify from personal knowledge about work the expert performed or observed. An expert may also form an opinion from independently admissible facts or data that are not testimonial hearsay, if the evidence satisfies the other rules governing expert testimony.

A confrontation problem arises when the expert’s opinion depends on accepting an absent analyst’s testimonial account of what occurred in the particular case. A supervisor’s credentials, general knowledge of the laboratory, or review of a file does not convert the absent analyst’s assertions into personal knowledge. The inquiry concerns the foundation of the actual opinion, not the witness’s job title.

A witness may also describe general laboratory procedures from personal knowledge without proving that another analyst followed those procedures in the defendant’s case. The prosecution needs admissible evidence connecting the general procedure to the actual sample, preparation, testing, controls, and results on which the opinion depends.

Machine-Generated Data and Human Assertions

Pure machine output is not a statement by a person and is not hearsay on that basis. The rule for machine output does not make the surrounding human work irrelevant. A person may have selected the item, prepared a sample, entered information, chosen a method, operated the instrument, evaluated quality controls, or interpreted the output. Statements that describe the human work in the particular case may be necessary to make the data useful.

The court should separate the machine-generated material from the human assertions. Relevant questions include the following.

• What raw data did the instrument create without a human assertion?
• Who selected, weighed, prepared, or placed the sample into the instrument?
• What case-specific procedures, controls, and observations appear only in an absent analyst’s notes?
• Can the testifying expert form the proposed opinion without accepting the absent analyst’s statements as true?
• What evidence authenticates the data and connects it to the exhibit allegedly seized?

The questions in the list above apply beyond drug chemistry. DNA analysis, toxicology, ballistics, and digital forensics may also combine machine output with human preparation, observation, and interpretation. The constitutional result depends on the statements and testimony offered in the particular case.

Reviewing the Drug-Laboratory Record

A complete record may include the police submission form, evidence seals and identifiers, custody entries, analyst worksheets, sampling notes, weight records, standards and controls, instrument output, technical review, administrative review, and the final certificate or report. Each document serves a different purpose and may contain both machine-generated information and human assertions.

The defense should compare the laboratory records with the witness the Commonwealth intends to call. The defense can use the review to determine what the witness did personally, what the witness observed, what comes from another person, and what portions of the proposed opinion require the absent analyst’s account to be true. The defense can also use the review to identify ordinary authentication, reliability, sampling, or weight issues that exist independently of confrontation.

Chain of custody is one example of an issue that exists independently of confrontation. A court does not automatically exclude the substance or laboratory result because of a gap in the chain of custody. Courts may treat some gaps as affecting weight rather than admissibility. The legal effect of a gap depends on the defect, the remaining foundation, and whether the Commonwealth can reliably connect the tested item to the evidence allegedly seized.

Raising and Deciding the Confrontation Issue

The confrontation issue may be presented through a motion in limine, a trial objection, a request for a detailed offer of proof, or another procedure appropriate to the case. The court needs the proposed testimony and the underlying materials to determine whether the expert will convey testimonial hearsay or offer an opinion that depends on it.

The objection should identify the absent declarant, the specific statement, the reason it is testimonial, the way it is offered for its truth, and the portion of the substitute opinion that depends on it. A general objection to a “substitute analyst” may be too broad because some testimony may concern the witness’s personal knowledge or admissible nonhearsay data.

The effect on the charge depends on what admissible evidence remains if the court excludes testimonial statements or a derivative opinion. The Commonwealth must prove the identity of the controlled substance, but the law does not make a laboratory certificate the only possible form of proof in every case. In a trafficking prosecution, the Commonwealth must also prove the applicable net weight range. In some cases the Commonwealth cannot prove the charge without the excluded evidence. In other cases the parties litigate further over the remaining admissible evidence.

Forensic Evidence Within the Complete Drug Case

The confrontation challenge is one part of the defense in a drug case. A drug case may also involve disputes about the search, possession, intent to distribute, joint venture, sampling, drug identity, or weight. The other disputes remain in the case even when the defense raises a laboratory objection. Proof of a substance does not establish who possessed the substance or what that person intended.

The firm’s article on suppression and trial evidence in Massachusetts drug cases discusses forensic proof together with the other issues in a drug case. The Massachusetts drug-crimes FAQs provide shorter answers about laboratory evidence, constructive possession, searches, and suppression.

Serpa Law Office represents defendants in Massachusetts drug cases involving forensic evidence, substitute experts, possession, distribution, and trafficking. Contact the firm at 617.936.0201 to discuss the proposed evidence and the charge.

Many people believe that the decision of the United States Supreme Court in New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), ended state licensing of firearms. Bruen did not end state licensing of firearms.

In a series of 2025 decisions, the Massachusetts Supreme Judicial Court upheld the current licensing scheme and confirmed that carrying a firearm without a Massachusetts license remains a crime. This post explains those decisions and what they mean for a visitor, a traveler, or a new resident. This post supplements the firm’s pages on Massachusetts firearms charges and on firearms offenses for nonresidents and out-of-state travelers.

What Bruen Decided

In Bruen, the United States Supreme Court struck down a New York licensing regime that gave officials open-ended discretion to deny a license to a qualified applicant. The Court held that the Second Amendment protects the right to carry a firearm for self-defense outside the home. The Court also held that a firearm regulation is valid only if it is consistent with the nation’s historical tradition of firearm regulation. In doing so, the Court called into question discretionary, may-issue licensing standards, but it did not prohibit licensing itself.

The Massachusetts Statute

After Bruen, Massachusetts replaced its discretionary standard with a shall-issue standard effective August 10, 2022. A resident applies for a license to carry under G. L. c. 140, § 131, and a nonresident applies for a temporary license under G. L. c. 140, § 131F. Under both provisions, a license is issued to an applicant who is not a prohibited person and is not determined to be unsuitable. Carrying a firearm without the required license is an offense under G. L. c. 269, § 10.

A license can also be suspended without any licensing decision at all. Under M.G.L. c. 140, §§ 131R to 131Y a judge may order the immediate suspension of a license to carry and the surrender of all firearms through an extreme risk protection order. The judge may issue the order on a preponderance of the evidence and with no criminal charge. The petitioner may be a family or household member of the respondent or the licensing authority itself.

The petitioner may also be a law enforcement officer who dealt with the respondent within the preceding 30 days, or a health care provider who treated the respondent within the preceding 6 months. A principal or assistant principal of an elementary or secondary school, or an administrator of a college or university where the respondent is enrolled, may also be the petitioner.

The 2025 Decisions

The Supreme Judicial Court upheld the current nonresident scheme in Commonwealth v. Marquis, 495 Mass. 434 (2025). The court held that the shall-issue nonresident statute is facially consistent with the Second Amendment. The purpose of a shall-issue standard is to keep firearms from demonstrably dangerous persons. That purpose is consistent with the nation’s historical tradition of firearm regulation. In a companion case, Commonwealth v. Donnell, 495 Mass. 471 (2025), the court held that the older may-issue version of the nonresident statute, in effect before August 10, 2022, was facially unconstitutional.

The court reasoned that the older version gave the colonel of the State police unbounded discretion. The court also held that the discretionary language could not be severed from the rest of the statute.

The court addressed the resident scheme in Commonwealth v. Rodriguez, 496 Mass. 627 (2025). The court held that the resident licensing scheme is not facially unconstitutional, because it applies validly to persons the Commonwealth may disarm, including a person convicted of a felony or a violent crime. The court confirmed that unlicensed possession of a firearm remains a crime in Massachusetts. The court also limited its earlier decision in Donnell, because the court in Donnell had not accounted for valid applications to persons the Commonwealth may disarm.

The Supreme Court Declined to Review Marquis

Marquis sought review in the Supreme Court of the United States. Twenty-five states, the Cato Institute, and the Gun Owners’ Action League filed briefs supporting the petition. The Court denied certiorari on January 12, 2026. Marquis v. Massachusetts, No. 25-5280.

The Supreme Court decides nothing on the merits and sets no precedent when it denies certiorari. The Supreme Judicial Court’s holding remains binding. The shall-issue nonresident scheme remains in force. A defendant charged today cannot expect the Supreme Court to have changed the rule since March 2025.

What the Commonwealth Must Prove at Trial

Bruen changed what a prosecutor must prove, not only what a Legislature may enact. In Commonwealth v. Guardado, 491 Mass. 666 (2023), the Supreme Judicial Court held that the absence of a valid license is an element of unlawful possession of a firearm under M.G.L. c. 269, § 10(a). The Commonwealth must prove the absence of a license in its case in chief.

The jury must also be instructed on that element. In Guardado, the Supreme Judicial Court overruled the earlier rule, under which licensure was a defense the defendant had to raise. The court applied the new rule to cases that were active or pending on direct appeal as of June 23, 2022, the date Bruen was decided.

On rehearing, in Commonwealth v. Guardado, 493 Mass. 1 (2023), the court held that the remedy is a new trial rather than an acquittal. The Commonwealth had no reason under the law as it then stood to introduce evidence about licensure, so a retrial does not offend the prohibition against double jeopardy.

For a nonresident, the licensing element is the same. The Commonwealth must prove the absence of a Massachusetts license. The proof is a Massachusetts licensing record. Holding a permit from another state does not satisfy the statute. Holding that permit also does not relieve the Commonwealth of proving the licensing element. Counsel should require proof of the licensing element rather than treat that element as established.

The Supreme Judicial Court Has Also Applied Bruen to Strike Down Massachusetts Law

In Commonwealth v. Canjura, 494 Mass. 508 (2024), the Supreme Judicial Court held the prohibition on carrying switchblade knives in M.G.L. c. 269, § 10(b) unconstitutional, because the Commonwealth identified no historical tradition of regulating folding pocketknives. In Donnell, the Supreme Judicial Court struck the older nonresident licensing scheme on the same reasoning.

Massachusetts weapons statutes can fail the text and history test, as the switchblade prohibition did in Canjura. A Massachusetts statute is subject to the text and history inquiry. The question in a given case is whether the Commonwealth can meet its historical burden on the specific provision charged.

Rahimi and How the Test Is Applied

United States v. Rahimi, 602 U.S. 680 (2024), upheld the federal prohibition on firearm possession by a person subject to a qualifying domestic violence restraining order. Rahimi also explained how Bruen is to be applied. Rahimi repeated the statement in Bruen that a modern regulation needs a historical analogue, not a “historical twin.” The historical-analogue standard is why most Massachusetts firearm regulations have survived review while a small number have failed review. A challenge has to meet that standard.

The Federal Challenges to Chapter 135

Three decisions of the United States Court of Appeals for the First Circuit apply to the federal challenges. The First Circuit decided the last of the three on July 21, 2026.

In Ocean State Tactical, LLC v. Rhode Island, 95 F.4th 38 (1st Cir. 2024), the First Circuit held that a ten round magazine limit very likely fits within the historical tradition of restricting especially dangerous arms.

In Capen v. Campbell, 134 F.4th 660 (1st Cir. 2025), the First Circuit affirmed the denial of a preliminary injunction against the Massachusetts assault weapon and large capacity feeding device restrictions.

Recchia v. Campbell, No. 25-1817 (1st Cir. July 21, 2026), is the decision most likely to affect a nonresident. The plaintiff was an out-of-state firearms business owner who challenged the assault-style firearm and large capacity feeding device provisions of chapter 135, codified at M.G.L. c. 140, §§ 121 and 131M(a).

The plaintiff raised three theories, based on the Second Amendment, the dormant Commerce Clause, and the Equal Protection Clause of the Fourteenth Amendment. The First Circuit held the Second Amendment claim foreclosed by Capen under the law of the circuit doctrine. The First Circuit also treated the equal protection claim as subsumed in the Second Amendment analysis. Several of the plaintiff’s arguments, including that the restricted firearms are in common use, were raised for the first time in a reply brief and were waived.

The Nonresident Arguments That Remain Open

Two theories specific to nonresidents have been raised without being decided on their merits.

The first theory is based on the Privileges and Immunities Clause of article IV of the United States Constitution, which limits a state’s power to treat citizens of other states differently. The District Court considered the Privileges and Immunities Clause in Recchia after the plaintiff referred to privileges and immunities in opposing a motion to dismiss. The First Circuit did not decide the privileges and immunities question. The Supreme Judicial Court has not addressed the Privileges and Immunities Clause in the licensing context.

The second theory is based on the dormant Commerce Clause, which the plaintiff in Recchia raised on behalf of an out-of-state firearms business rather than an individual traveler. The dormant Commerce Clause claim is about commerce between states rather than about the right to carry a firearm. The question whether the claim applies to an individual nonresident is untested.

Neither theory is a defense to a pending charge today. Both theories are noted here because a nonresident who is told that Bruen settled the question is being told something inaccurate in both directions. The Second Amendment challenge to the current scheme has failed. The other constitutional questions have not been answered.

What the Licensing Decisions Mean for a Visitor, Traveler, or New Resident

A person who carries a firearm in Massachusetts must still hold a Massachusetts license. A license or permit from another state does not satisfy that requirement. A nonresident who wants to carry a firearm must apply for a temporary license under § 131F, unless an exemption in G. L. c. 140, § 129C applies.

Federal law provides a narrow safe-passage defense for a traveler who is transporting an unloaded firearm through Massachusetts between two places where the firearm may lawfully be possessed. Neither the firearm nor any ammunition may be readily accessible or directly accessible from the passenger compartment. In a vehicle with no compartment separate from the driver’s compartment, the firearm or ammunition must be in a locked container other than the glove compartment or console.

A traveler who arrives at Logan Airport and discovers a firearm in a bag should not assume that declaring it to an airline avoids Massachusetts charges, because Massachusetts law still applies. The firearms page for nonresidents and travelers explains the lawful options and the defenses in detail.

Attorney Serpa defends firearms charges across the Massachusetts District Courts and the Boston Municipal Court. For a confidential consultation, call 617.936.0201.

Key Takeaways

• Carrying a firearm in Massachusetts without a Massachusetts license is a crime. A permit from another state does not satisfy the license requirement.
• The current shall-issue nonresident scheme is facially constitutional. Commonwealth v. Marquis, 495 Mass. 434 (2025). The Supreme Court denied certiorari on January 12, 2026.
• The Supreme Judicial Court held the pre-August 10, 2022 may-issue nonresident scheme facially unconstitutional. Commonwealth v. Donnell, 495 Mass. 471 (2025). In Commonwealth v. Rodriguez, 496 Mass. 627 (2025), the Supreme Judicial Court abrogated Donnell to the extent that Donnell did not account for the bar on licenses for persons convicted of a felony or a violent crime.
• The resident scheme is not facially unconstitutional. Commonwealth v. Rodriguez, 496 Mass. 627 (2025).
• The Commonwealth must prove the absence of a license as an element under M.G.L. c. 269, § 10(a). Commonwealth v. Guardado, 491 Mass. 666 (2023). The remedy for the omission of that element at trial is a new trial, not an acquittal. Guardado, 493 Mass. 1 (2023).
• A Massachusetts weapons statute can still fail the text and history test. Commonwealth v. Canjura, 494 Mass. 508 (2024).
• Federal challenges to the chapter 135 firearm restrictions have failed in the First Circuit. Capen v. Campbell, 134 F.4th 660 (1st Cir. 2025); Recchia v. Campbell, No. 25-1817 (1st Cir. July 21, 2026).

Related Serpa Law Office Resources

• firearms offenses for Massachusetts visitors and travelers
• Massachusetts firearms charges
• the October 2026 firearms deadlines
• Question 9 and the 2026 firearms referendum
• extreme risk protection orders