John E. DeVito, Esq., of DeVito and Visconti, P.A.

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July 2013 Archives

Warrantless Search of a Motor Vehicle

Oftentimes the police, after stopping a motor vehicle for a motor vehicle infraction, will request permission from the operator to search the motor vehicle. Usually something will trigger the request, such as, the smell of marijuana or some kind of furtive movement on the part of the driver or passenger. Such conduct often leads the police to believe that criminal activity may be afoot, such as illicit drugs or illegal firearms. Without more evidence of criminal activity, the police have no cause to search the vehicle and the driver does not have to give permission to the police to search his or her vehicle. The police may inquire verbally but beyond that they have no further recourse.The police may go so far as to request the driver and any passengers to step from the motor vehicle. They may conduct a pat frisk of the person and then conduct a pat frisk of the motor vehicle. If the police find evidence of a crime and arrest is likely to ensue. Once that event occurs those involved can argue that they were subject to an illegal arrest (the exit order itself was illegal), and any items found on his person or in his or her car should be subject to a motion to suppress. The motion to suppress essentially precludes the police from using at trial any evidence it seizes from a defendant or the defendant's vehicle, because such evidence was obtained illegally. The police had no cause to ask anyone to exit the vehicle and no cause to conduct a search of the person or the vehicle.

Priest/Penitent Privilege

In the case of Commonwealth v. Vital (Appeals Court No. 2012-P-0845) - May 31, 2013 the defendant's convictions of indecent assault and battery on a child under the age of fourteen and related offenses were affirmed by the Massachusetts Appeals Court. The Court rejected the defendant's contention that the priest-penitent privilege (G.L. c.233, §20A) should have excluded statements from the trial made by the defendant. The facts of the case as outlined in the decision stated that the defendant met with the pastor of his church shortly after the incident. The complainant and her family attended the same church. The defendant asked the pastor to tell the complainant's family "that he was sorry for his actions" and that he hoped they would agree to "resolve this matter in the church, rather than through the court system." Under G.L. c.233, §20A, the "minister of any church" is forbidden from disclosing "any communication made to him by any person in seeking religious or spiritual advice or comfort, ... without the consent of such person." See Commonwealth v. Kebreau, 454 Mass. 287 (2009). Strictly construing the statute, the Court ruled that the defendant's statements were not protected by the priest-penitent privilege because the defendant "did not communicate with the pastor to seek religious counseling, but rather sought the pastor's assistance in an attempt to avoid criminal charges." In other words the defendant was using the pastor to convey a message to the victim. The court stated that "[e]ven if the defendant's conversations with the pastor were, in fact, privileged, the defendant waived this privilege" by asking the pastor to communicate his sentiments to the complainant's family. The court also mentioned that the communication was for strategic purposes for court and not priest/penitent counseling.