April 2011 Archives

Dedham Couple Arrested for Dealing Marijuana

marijuana on scale.bmpDedham Police officers executed a search warrant last Saturday at the Walnut Street apartment shared by Ashley Deberry and Robert Perea. According to the local news, the police found 14 bags of marijuana weighing one gram each and a digital scale in their bedroom. In other bedrooms they found sandwich bags, and "drug paraphernalia." The police then arrested the pair and charged them with possession of marijuana with intent to distribute. While the police read them the Miranda warnings (right to remain silent, etc.), Perea said that all of it belonged to him. The police, however, claimed that "DeBerry's possessions were very close to the pot." The police then moved their search on to a car belonging to Jessie Pelonquin, another resident of the apartment, and found a purse containing medication for which Pelonquin had no prescription.

In order to obtain the search warrant, the police obviously had some investigative information to support their claim that the apartment contained drugs. This is generally done with undercover purchases of drugs or by information received from informants. In the event that informants were used, those informants are generally not expected to be witnesses and proof of that DeBerry and Perea intended to sell the marijuana would, therefore, be circumstantial. Since possession of one ounce of marijuana has been decriminalized, and the police found only 1/2 of an ounce, the prosecution will likely argue that the scale and the separately package bags shows that sales were anticipated. Since the sandwich bags were found in a different bedroom, they would have limited relevance. The paraphernalia was also in a different bedroom, and although not described in the article, such items are generally associated with using marijuana, as opposed to selling it.

It is just about always wise to heed the Miranda warning and say nothing. Here, however, an interesting thing happened. Perea, in the midst of the warning tried to take responsibility away from Deberry. He, therefore could later argue that his admission was made prior to being fully advised of his right to remain silent. This would be done with a Motion to Suppress Statements. DeBerry, on the other hand, may wish to rely on the admission for her own defense. After all, just being in the presence of, or leaving personal property near an illegal substance does not establish possession of the substance.

Surely counsel for all three people arrested will closely analyze the police application to the Dedham District Court for a search warrant. Some questions: Did the application establish that there would be drugs in the apartment on the date and time of the search? Did it establish probable cause and authorize a search of all of the bedrooms or just the one shared by DeBerry and Perea? Did it authorize a search of Jessie Pelonquin's car parked outside? How about the purse in the car?

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Dedham Birthday Party Ends in Fights and Arrests

cuffs black man.jpgDedham, Boston, Westwood, Needham, and Massachusetts State Police were invited by radio to James Brown's birthday party at the Dedham VFW post over the weekend. According to the Dedham Transcript, sometime after midnight the party moved from the hall to the parking lot and somewhere along the way the mood changed from revelry to rampage. Upon their arrival, the Dedham Police found "widespread intoxication," a quarrelsome crowd of 50 to 75 people, and "fights starting here and there." Because of the situation and the sheer number of people involved, the Dedham Police called in reinforcements from out of town and assembled a force of some 30 police officers. These officers were able to restore order after 30 to 40 minutes.

What could have been a lot worse for a lot of people resulted in three arrests. Atarrah Small was fighting and therefore arrested for assault and battery. Levar Fernandes was charged with resisting arrest and disorderly conduct. And sadly, James Brown, the birthday boy himself, merited the most serious charges - assault and battery on a police officer (technically "assault and battery on a public employee") and disorderly conduct. All charges will be litigated in the Dedham District Court.

The article did not contain any reference to the person that Ms. Small was fighting with or explanation as to the lack of charges against that person. If the police did not see Ms. Small strike the other person, then live testimony from the other person will be necessary to prove the case against her. Even if the police witnessed the woman fighting, a question may still exist as to who started the fight. If she were not the initial aggressor, and was merely defending herself, the charges may not hold. This is similar to the common football scenario where the referee does not see the initial foul but does see the unsportsmanlike reaction to it.

Since there must be a valid arrest in order to be charged with resisting arrest, one must assume that Mr. Fernandes had been disorderly first and then put up a struggle when the police attempted to arrest him on that charge. Disorderly conduct is not an uncommon charge in such circumstances, and once one person gets publicly arrested, the rest of the crowd tends to get the message. Most would agree that they know disorderly conduct when they see it, but for it to be a crime certain elements must be proven. The charge requires proof that that one's actions (tumultuousness, fighting, threats, violence, etc.) were such that they would likely affect the public, and that they were undertaken with the intent to alarm to the public or with reckless disregard as to whether they would or not. If any element is missing, the charge cannot be sustained.

Lastly, James Brown was taken into custody for assault and battery on a police officer and disorderly conduct. The article does not give any specifics, but I would suspect that the police felt that Mr. Brown was not acquiescing to their commands to disperse in a timely fashion, and perhaps voiced his displeasure with their appearance at his party. Most likely, the alleged assaultive behavior took place during Mr. Brown's birthday arrest. Surely, with 50 to 75 guests, he was able to find resources to bail out of the Dedham Police station in short order, and will retain experienced local counsel.

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Stoughton District Court Will Hold Detention Hearing for Brothers Charged with Assault in Dwelling

sawd off shot gun.jpgThe Stoughton Police arrested Edwin and Gladimy Saladin last week and charged them with unlicensed carrying of a firearm,armed assault in a dwelling, possession of a sawed-off shotgun, possession of ammunition, possession of a marijuana with intent to distribute, and conspiracy. The police allege that the Saladins got together with a third man -- Paul Almeida -- and went to an apartment on Perry Street to deliver a message to a Brockton man. The message was that they did not approve of his relationship with Almeida's cousin and the shotgun was apparently used to emphasize the point. According to the Stoughton Patch, when the police arrived, Almeida made his escape by running away at "a full sprint." The Saladin brothers were arrested and the police found the gun, ammunition, two hundred and eighty two dollars, and four ounces of marijuana.

It is unclear if the police found anything else to support the charge that the men intended to sell the marijuana, but at this point that is not their main concern. At their arraignment in the Stoughton Court, the district attorney filed a motion to detain them based on dangerousness. The full hearing hearing on the motion will take place on April 22. In the mean time, the Saladin's will be held without bail in the Norfolk County Jail -- no amount of money will secure their release. When they return for the hearing, the judge will hear evidence and make a further determination as to whether they should have any chance at bail while the case is pending. The time between the arraignment and the hearing will be used by both sides to gather evidence regarding dangerousness or lack of dangerousness. The prosecutor may seek further detention without bail. Under the applicable statute, however, the judge must use the least restrictive method of being sure that if they are released on a cash bail, they will come back, and if they are released the community will be safe.

After bail, comes the charges and the move toward trial. Competent defense counsel is a must. The sawed-off shotgun charge alone, carries a maximum life sentence with a minimum of 2 1/2 years. A conviction of assault in a dwelling with a shotgun carries a life sentence with a minimum of ten years. In a strange twist of Massachusetts Law the sentence for assault in a dwelling with a shotgun (minimum 10 years) is actually less than assault in a dwelling with a "dangerous weapon" (minimum 20 years). It is very likely that prosecutors will be seeking indictments and the transfer of this case to the Norfolk Superior Court. The form of the indictments (10A or 10C) will be very important to the young men accused.

If the 20 year-old Edwin Saladin actually told the police that "the charges would help build his rapper resume," he is surely thinking differently now, and needs the best defense possible.

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New Version of Restraining Orders Straining the Courts, Cops, and Public

leaf blower2.jpgRestraining order requests in the District Courts have ballooned since the legislature passed a new restraining order law last year. Previously, restraining orders, also known as "abuse prevention orders" or "209A orders," were limited to family members, household members, or those involved in, or previously involved in, an intimate relationship. The new law removes this limitation and designates the orders "harassment prevention orders." Under this law, the alleged victim of harassment need only allege 3 or more acts of "malicious conduct" intended to "cause fear, intimidation, abuse or damage to property."

An article in today's Boston Globe describes the tension that has been created. The courts and police are spending limited resources dealing with time consuming and often frivolous claims. The article mentions a claim for bothersome leaf blowing, a claim of harassing high frequency radio transmissions, a claim of being spooked by a neighbor's dark clothing, and, of course, a former friend feeling harassed by a Facebook posting. Perhaps this person was the subject of 3 malicious postings that he or she felt amounted to "abuse." That appears to fit the wide parameters of the statute.

While the statute, as usual, was well intentioned, it was lop-sided and prone to abuse from the start. A complaining party does not need to pay any filing fee or copying fees at the court house. In some circumstances, the complaining party does not even need to show up. He or she may call the police and have them handle it temporarily. The police, of course, fearing liability for not acting, are forced to suppress their own judgment and to bring any case. Conversely, the statute specifically protects the police from liability for actions taken to enforce the statute. In the event that the police initiate the case, the complainant may then send a "representative" to court to complete the proceedings. The statute does not define representative, but with the focus on saving the complaining party money, you may be sure that it does not have to be an attorney. This procedure, of course, is limited to situations where appearing personally would be a physical hardship for the harassed person. Hence it would be possible, but not proper, to call the police about an abusive affront or three, tell them you can't make it, and then send your friend down to court to get the order. The order, by the way, may include an order for restitution and attorney's fees.

But, what about the person being accused? You may be fairly certain that if the accused does not appear in court, then the order will issue against him/her. You may be fairly certain that the accused will be required to pay a dollar per page for copies at the court clerk's desk. And you may be fairly certain that in the event that the court deems that the whole thing was frivolous, the claimant will not be ordered to pay restitution to the person that was forced to personally appear in court or to pay his or her attorney's fees . And the accused has every reason to hire counsel. An order will likely limit one's freedom. If ordered to stay a certain distance away from someone or their house or workplace, one may be forced to drive a different route, or do business at a different location, etc. for a year or more. And failure to comply may result in a $5000.00 fine, 2 1/2 years in jail, or both.

The authors of the legislation further revealed the lopsided nature of the law by anticipating legitimate defenses and eliminating them. For one, the passage of time since the last alleged episode of harassment is not grounds for denying the order. (Leaf blowing from last Fall?) For another, after a year of complying with the order an accused may not cite compliance as grounds for not extending the order for yet another year. (What would be grounds?)

Prior to this statute, alleged harassment victims had the option of filing a civil action in Superior Court. Proponents of the new law say that the filing fees were too expensive and that an expensive attorney could be necessary to accomplish this. Perhaps it would have been easier to waive the existing Superior Court fees and add a provision to the existing law for an award of attorney's fees for either side depending on the outcome.

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Foxboro Couple Face Cocaine Charges in Wrentham District Court

Coke cash.jpgThe Foxboro Police, disguised as town workers, raided the home of William Farrell and Ruth Bernazzani on Saturday. According to the Sun Chronicle, the police drove up in a water department truck, and wore water department garb so they would not alert the occupants and give them time to destroy evidence. With the assistance of Foxboro's new drug sniffing dog, the police found 28 grams of cocaine. They also found $5,000.00 and paper work that they claim is related to drugs sales. Farrell and Bernazzani were arrested and charged with trafficking in cocaine, conspiracy, possession of cocaine and possession of cocaine with the intent to distribute it.

Their bail over the weekend was set at $25,000.00. This will be reviewed at their arraignment in Wrentham District Court, and if not sufficiently lowered may be reviewed again in the Norfolk Superior Court.

According to Foxboro Police Chief Edward O'Leary, "There had been rumors and innuendo over a number of months, until our officers gathered enough information to obtain a search warrant for the home." This statement points to what represents a good portion of the defense to the charges. The police may not enter a home based on rumors and innuendo. They must present legally sufficient evidence to a judicial officer to justify their request for a search warrant. The chief is saying that they had enough. The sufficiency of the evidence presented, however, will be scrutinized by the defense attorneys and the court, and if insufficient, the evidence may be deemed inadmissible (thrown out) pursuant to a motion to suppress. This is a complex undertaking requiring experienced drug defense representation.

The article does not say what information the police acquired in order to obtain the warrant. For example, controlled buys, first-hand observations, informants, etc. But, if it pointed to just one and not the other person arrested, then that person would have an additional line of defense that would amount to being in the wrong place at the wrong time. After all, just being in a place where drugs or any other illegal items are found is not a crime.

The number of grams that they claim to have found is also significant. The Massachusetts Drug Trafficking Statute, has different punishments for different weights of cocaine. Twenty-eight grams is the exact cut-off point between a mandatory 3 year sentence and a mandatory 5 year sentence. Obviously the defense will explore this issue in order to reduce the stakes.

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Plainville Partiers Rounded Up For Wrentham Court

The Plainville Police, with assistance from the Foxboro and North Attleboro Police Departments, arrested 52 people at a party in Plainville on Friday night. The Plainville Police called in the re-enforcements from other towns because of the large number of people being arrested. According to the Boston Herald, the police received parking and "party complaints" about the Melcher Street address and when they arrived, they heard loud music, saw cars blocking a hydrant, and smelled burning marijuana. Inside, the police found a "beer stocked refrigerator" a jar "full of marijuana", beer pong tables, and two bongs. A picture from the Sun Chronicle displays the items seized. Further investigation revealed that 46 of the 52 soon-to-be-arrested people had not reached the legal drinking age. As for charges, the Sun Chronicle reported that "[t]hose under 21 were charged with being minors in possession of alcohol. Those 21 and older were charged with furnishing alcohol to minors." Apparently, no one was charged in connection with the marijuana. Perhaps because the police could not determine ownership, or perhaps because possession of small amounts has been decriminalized.

Whether neighbors complain or not, it is obvious that the police cannot let underage drinking parties go unchecked. Confronted with such gatherings, the police have a difficult task of sorting out the law-breakers from the innocent. The news stories, however, give the impression that not a lot of sorting went on, and that everyone at the home was arrested, except of course, for 21 year-old Edward Piotrowski who made his escape out the back door.

Just being in the room with alcohol, or any other item does not amount to "possession." Moreover, being over 21 in a room with beer and underage people does not make you guilty of buying it for them. Miss Alexandra Ceven makes my point when she is quoted in the Boston Herald saying, "We all just got together to take some pictures, have some memories. I would say half of the people who were there that night had not been drinking at all."

So it will be up the Wrentham Court to do the sorting. The priority of each person will be protecting his or her record. This is particularly important for young people and their futures. While many may have cases which could be won at a trial, a more reasoned approach could result in an even better outcome. A dismissal prior to arraignment upon court costs or community service would eliminate the risk of conviction, and keep the information from entering on their records at all.

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