March 2011 Archives

Braintree Police Make More Drug/Conspiracy Arrests at Plaza

White pills.jpgThe Quincy District Court will hear drug charges against three people as a result of an investigation at the South Shore Plaza by the Braintree Police. According to the article in the Patriot Ledger the Braintree Police were patrolling the parking areas and saw a woman's "suspicious actions" while she drove in the area. At least two police vehicles followed her car and she parked it in the parking garage. Patrick Williams came out of the mall, met the woman, and the officers saw "some type of transaction." There was another man -- Michael Rodriquez in the woman's car. The police thought the meeting was related to drugs and "approached" all three people. They found four oxycodone pills. The alleged transaction took place within 1000 feet of the Flaherty Elementary School. The police charged Williams with distribution of a class B substance, conspiracy, and distribution of a class B substance in a school zone. They charged Rodriquez with Conspiracy and Possession.

Anyone that reads the Patriot Ledger would know that the Braintree Police likely consider this type of activity fairly common in this area. However, even if it is common, the police are still required to perform their investigations within the confines of the law related to search and seizure. I expect that these three individuals will explore the possibility that the police conducted an illegal stop and search, and seek to suppress the evidence (4 pills) and statements that the police obtained as a result. If the police blocked in the woman's car, then that was a seizure, and unless there were specific "suspicious actions" to justify it, the motion to suppress would be allowed and all cases dismissed. Another issue in this regard would involve the question of how the police found the pills. Were the people searched based solely on the officers vague observations of suspicious activity while a woman drove in a parking lot? Lastly were statements made while the individuals were detained and not read their Miranda rights?

I mention statements, because it is fairly obvious that some or all of the individuals admitted to what was going on. How else would the police know, just from watching, that it was Williams that was selling? For Williams this case is particularly serious because of the school zone charge. This charge carries a mandatory minimum two-year sentence. That means two years (730 days) without the chance of parole. Moreover that sentence runs after the sentence imposed for the distribution. I should note that the legislature has recently softened this statute by making exceptions to the no-parole aspect of the statute in certain circumstances. The sentence, if convicted, however, must still be two years.

The police are vigilant in places that they consider to have a lot of drug activity, but that does not mean that pedestrians and motorists forfeit their rights when they travel into these areas. The people in this case require an aggressive defense that must entail a challenge to the potentially unconstitutional actions of the police.

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Somerville Police Find Man with Four Small Bags of Marijuana and Charge Possession with Intent to Distribute

Thumbnail image for 403_dutch_weed.jpgA Somerville resident called the police to report two men acting "very suspiciously" in a back yard. When the police arrived they found two men on the street that matched the description. The men explained that they had just urinated in the yard. The police apparently asked them for identification. One of them, Joseph Fency, had none and the police patted him down. According to the article in the Somerville Journal, the officer found a bottle of rum in his pocket. The officer also discovered four "dime bags" of marijuana in his possession as well as evidence of a smoked marijuana cigarette in the area. The police charged Fency with Possession of Marijuana with Intent to Distribute, and a city ordinance violation -- possession of an open container of alcohol. All this may appear to be a somewhat minor matter, but it is not. A conviction of Possession of Marijuana with the Intent to Distribute has significant consequences including: a possible two and a half year sentence; a possible $5,000 fine; and a 2-year loss of license.

There are several facets of the case, as reported, that I would explore on Mr. Fency's behalf. First would be the question of whether or not the police detained him, and if so whether they were justified in doing so. There is no question that the police should respond promptly to calls of suspicious people and they should ask questions to find out what is going on. Their inquiries and actions, however, are constitutionally limited to what is called for under the circumstances. Here, the initial caller said the men were "acting very suspiciously." I would be interested in knowing exactly what they were doing to merit that description. In any event, the police learned that the men had gone into the yard to relieve themselves. That constitutes a plausible explanation for their being in the back yard and should have ended the inquiry. Unless the officers had a reason to fear for their safety, the pat frisk seems unjustified and will likely be challenged by a Motion to Suppress the evidence found as a result. Even if one assumed that the officers were in fear, the pat frisk would be for weapons. Surely four dime bags being felt through clothing were not mistaken for a gun or a knife.

Aside from the issues involving illegal search and seizure, there is a real question as to whether the defendant has been overcharged. He should certainly challenge the aspect of the charge that alleges he intended to sell/distribute the marijuana. There was no evidence of such an intent reported. Could not a person have $40 worth of marijuana for personal use? Besides, there was evidence of personal use in the area -- the smoked marijuana cigarette.

Since the legislature decriminalized the possession of an ounce or less of marijuana, I have seen several of these situations. At times, it appears that the police charge possession with intent to distribute when the marijuana weighs more than an ounce as if the lesser crime of straight possession of an amount weighing more than an ounce no longer exists.

As an aside -- how can you be cited for an "open container" violation when you have a bottle in your pocket?

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Norfolk Superior Court Will Hold Hearings to Suppress Statements of Men Accused of Murder and Cooking Body

Paul Moccia and Daniel Bradley are seeking to have their potentially incriminating statements excluded from their upcoming murder trial. Motion hearings will take place tomorrow and next week in the Norfolk Superior Court. The men are accused of killing, dismembering, and incinerating the body of Angel Ramirez -- Moccia's cocaine supplier. The prosecution alleges that they killed Ramirez so that Moccia would not have to pay an outstanding $70,000 debt to the dealer. Bradley, they say, assisted in return for a promise from Moccia to help kill his fiancee's ex-boyfriend.

The victim disappeared two years ago yesterday and his body has not been recovered. The investigation apparently focused on Moccia after Ramirez's family told the authorities that he had an appointment to meet Moccia that night. During the investigation both Moccia and Bradley made statements to the police. Some or all of those statements are the subject of the upcoming motions. News reports have not contained the contents of the statements, except to say that their cell phone records contradict their claimed whereabouts on the night Ramirez disappeared. Generally, a defendant has a right to keep his prior statements out of evidence if he did not receive Miranda warnings and/or he did not give the statements voluntarily. While suppressing statements to police would be beneficial to the defense, the most damning statements are those that Moccia supposedly made to his brother, Robert.

It became clear early in the news of this case that one of the men must have described the crime to someone. At their arraignments in the Wrentham District Court the prosecutor possessed details that could seemingly come only from one or both of the men. The amount of the drug debt, the "cooking" of the body, right down to the caliber (.357 magnum) of the weapon used. Hearing these details, and knowing that neither had confessed, it became clear that one of them must have talked to someone else, and that person must have repeated the information to investigators. The prosecution has identified that person as Moccia's brother, and without a body, a first-hand witness, or a murder weapon, much will be riding on his testimony at the upcoming April 11 trial.

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Quincy Police Arrest Woman for OUI After Good Samaritans Wake Her Up and She Hits Gas.

Early Sunday evening the Quincy Police officers arrested a 75 year-old woman for operating under the influence and reckless operation. According to the Patriot Ledger, the woman was waiting at a red light on the Southern Artery in Quincy when she apparently fell asleep. The article states that two people noticed that she was slumped over the wheel, so they knocked on her window. In response, she accelerated and her car and hit the car stopped in front of her. That car hit the next car at the light. The woman, and everyone from the other vehicles, was taken to the hospital with non-life threatening injuries. The police stated that the woman's car left no skid marks, thereby implying that she did not try to stop. She told the officers that she drank two glasses of wine some time prior to the accident. The arraignment will take place in the Quincy District Court.

The article does not contain any information regarding "field sobriety tests," which prosecutors rely on heavily to prove that a defendant was "under the influence." Even if sobriety tests were administered, however, they could very likely be tainted by the stress of the incident upon the operator. She was, after all, taken to the hospital. Nor does the article mention whether or not the driver took a breath test, which is perhaps the most powerful tool for the prosecution. Since a valid reading over the legal limit (.08) combined with proof of operation on a public way - even if there are no other indicators of intoxication -- creates a significant hurdle for the defense. It could be that she was simply tired for reasons unknown to the police, or not sleeping at all. If she had been startled into thinking the light had changed, and it hadn't, there could not have been much distance to the next car. Hence no time to build speed to cause serious damage and no time to leave any skid marks.

On the surface, articles like this one often give the impression of an open and shut case for the prosecution. This, however, is just about never the case. An experienced criminal defense attorney digs deeper and exploits every advantage.

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