NO. SJC-10824 PURSUANT TO GLC 211, 5 3 FROM ... - Mass Cases
NO. SJC-10824 PURSUANT TO GLC 211, 5 3 FROM ... - Mass Cases NO. SJC-10824 PURSUANT TO GLC 211, 5 3 FROM ... - Mass Cases
ecords (R,A. "59-60") - 4/ In response to the defendant's allegations of police misconduct and threats from a police officer before trial, 5/ the government filed its opposition with an attached affidavit from II "Christopher J. Burke, wherein officer Burke admitted t o calling the Pro Se defendant and to the contents of the telephone conversation; however, officer Burke did not admit to threat- ening and/or intimidating the defendant a day before trial (R.A. "6T-62"). Moreover, officer Burke did not admit or deny whether the Pro Se defendant was the subject of governmental GPS surveillance and tracking while on bail (R.A. "61 -62" 1. 4/ Attorney Belanger mistakenly listed the name as Officer Gallagher, when, in fact, the Officer's .. . name was "Christopher Burke," (Ria.. 1'.6L-62") 5/ The defendant's Motion for New Trial was denied without a hearing (Muse, J., 09/ 21/2010)(B.A. "21", n. 271. & 274). 22.
A R G U M E N T S 1. WHERE A COURT ORDERED THE PROBATION DEPT. TO ATTACH A "GPS DEVICE" ON A PRETRIAL DEFENDANT, WHO WAS NOT A CONVICTED SEX OFFENDER, THE COURT EXCEEDED ITS AUTHORITY AND VIOLATED THE SEPARA- TION OFPOWERSEY GOING BEYOND THE LEGISLATIVE INTENT AND AUTHORITY OF G.L.C. 265, 5 47, IN VIOLATION OF ART. 30 OF THE MASSACHUSETTS DE- CLAWTION OF RIGHTS In 2006, the Massachusetts Legislature enacted M.G.L.c, 265, S 47; entitled as "Probation of Sex Of fenders ; Geographic Exclusion Zones ; GPS." (Adden- dum, p. I), Section 47 reads, in part: "Any person who is placed on probation for any offense listed within the definition of "sex offense", a "sex offense involving a child'' or I, a sexually violent offense", as defined in section 178C of chapter 6 , shall, as a requirement of any term of probation, wear a global positioning system device, or any comparable device, administered by the commission of probation, at all times for the length of his II probation for any offense. The Legislature did - not enact any other corre: spending or ancillary statues or amendments which expressly authorize the warrantless use of a "GPS device", especially on pretrial defendants who are - not convicted sex offenders. See Legislative history of Acts 2006, 303 5 8. Also see Commonwealth v. Connolly, 454 Mass, 808, 818-826 (2009). The Massachusetts Constitution Declaration of 11 Rights Art. 30: Separation of Executive, Judicial, 23 ._
- Page 1 and 2: COMMONWEALTH OF MASSACHUSETTS (1 of
- Page 3 and 4: Case Laws Commonwealth v. Adkinson
- Page 5 and 6: Case Laws Guiney v. Police Comm'r o
- Page 7 and 8: Massachusetts Constitution Article
- Page 9 and 10: I S S U E S P R E S E N T E D 1. WH
- Page 11 and 12: STATEMENT OF PRIOR PROCEEDINGS On F
- Page 13 and 14: On September 8, 2009, while on bail
- Page 15 and 16: STATEMENT aF FACTS On January 6, 20
- Page 17 and 18: of bail whereas the defendant was a
- Page 19 and 20: On September 8, and 18, 2009, the P
- Page 21 and 22: that he was - not a convicted sex o
- Page 23 and 24: else he would be setting himself up
- Page 25 and 26: which, remarkably, contained a list
- Page 27 and 28: who threatened the defendant with a
- Page 29 and 30: As a result of three months of cons
- Page 31: phone call to the defendant from a
- Page 35 and 36: A R G U M E N T S 2. WHERE PRETRIAL
- Page 37 and 38: In Emelio E, V. Commonwealth, 453 M
- Page 39 and 40: admitted to facts u€ficient for s
- Page 41 and 42: constitutional danger, because it f
- Page 43 and 44: defense); McKaskle v. Wigpins, 465
- Page 45 and 46: Art. 14 Declaration of Rights, Mass
- Page 47 and 48: Here, where Aldrich was released on
- Page 49 and 50: R, Governmental GPS monitoring trac
- Page 51 and 52: Here, in the non fiction, Aldrich n
- Page 53 and 54: 3. WUERE DEFENDANT WAS ALLOWED TO P
- Page 55 and 56: of trial (R.A. "49-50"), in violati
- Page 57 and 58: Thus, where the lower court incorre
- Page 59 and 60: "52-62"), and out of fear and intim
A R G U M E N T S<br />
1. WHERE A COURT ORDERED THE PROBATION DEPT. <strong>TO</strong><br />
ATTACH A "GPS DEVICE" ON A PRETRIAL DEFENDANT,<br />
WHO WAS <strong>NO</strong>T A CONVICTED SEX OFFENDER, THE COURT<br />
EXCEEDED ITS AUTHORITY AND VIOLATED THE SEPARA-<br />
TION OFPOWERSEY GOING BEYOND THE LEGISLATIVE<br />
INTENT AND AUTHORITY OF G.L.C. 265, 5 47, IN<br />
VIOLATION OF ART. 30 OF THE MASSACHUSETTS DE-<br />
CLAWTION OF RIGHTS<br />
In 2006, the <strong>Mass</strong>achusetts Legislature enacted<br />
M.G.L.c, 265, S 47; entitled as "Probation of Sex<br />
Of fenders ; Geographic Exclusion Zones ; GPS." (Adden-<br />
dum, p. I), Section 47 reads, in part:<br />
"Any person who is placed on probation for any<br />
offense listed within the definition of "sex<br />
offense", a "sex offense involving a child'' or<br />
I,<br />
a sexually violent offense", as defined in<br />
section 178C of chapter 6 , shall, as a requirement<br />
of any term of probation, wear a global<br />
positioning system device, or any comparable<br />
device, administered by the commission of<br />
probation, at all times for the length of his<br />
II<br />
probation for any offense.<br />
The Legislature did - not enact any other corre:<br />
spending or ancillary statues or amendments which<br />
expressly authorize the warrantless use of a "GPS<br />
device", especially on pretrial defendants who are<br />
- not convicted sex offenders. See Legislative history<br />
of Acts 2006, 303 5 8. Also see Commonwealth v.<br />
Connolly, 454 <strong>Mass</strong>, 808, 818-826 (2009).<br />
The <strong>Mass</strong>achusetts Constitution Declaration of<br />
11<br />
Rights Art. 30: Separation of Executive, Judicial,<br />
23<br />
._
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