September 2011 Archives

Quincy Man Charged with Marijuana and Attempted Breaking and Entering

September 21, 2011

parking lot.jpgA Quincy Police officer arrested Thomas Higgins of Quincy over the weekend and filed a criminal complaint against him in the Quincy District Court. According to the Patriot Ledger, Officer David Levine saw Higgins crossing an MBTA footbridge at 11:30 p.m. on Saturday night. Levine apparently became suspicious because Higgins kept looking in his direction. Levine caught up to Higgins in a parking lot looking at vehicles. When asked to show identification, Higgins gave the officer a license with another man's photograph on it. When officer Levine pointed out the discrepancy, Higgins took off running. He was quickly apprehended and found to be in possession of a "green leafy substance believed to be marijuana."

Higgins was scheduled to be arraigned Monday on charges of possessing marijuana with the intent to distribute it, and attempting to commit a crime. As a criminal defense attorney there are three obvious issues that require exploration on behalf of Mr. Higgins.

1. THE STOP OF HIGGINS AND REQUEST FOR IDENTIFICATION. Based solely on the facts contained in this article, Mr. Higgins appears to have a viable motion to suppress the marijuana found in his possession. The constitution requires police to have probable cause or reasonable suspicion of criminal activity before they may stop/seize a person for questioning. Asking a pedestrian for identification is a stop/seizure in the constitutional sense. What does the article reveal to support Levine's stop of Higgins? Only that Higgins was walking in an area where there had been recent break-ins at 11:30 p.m., looking in the officer's direction, and then looking at cars in a parking lot. This may not be enough to seize Higgins since these actions are just as consistent with innocent activity as they are with potential criminal activity.

In the event that Higgins challenges the police actions with a motion to suppress, it will be up to a motion judge to decide. If he wins the motion, the marijuana charge will be dismissed.

With regard to the marijuana, the article simply states that "a green leafy substance believed to be marijuana was found on [Higgins]." Well, since Levine obviously did not see Higgins participating in any marijuana sales and Higgins obviously did not say that he intended to sell the leafy substance, proof of an intent to distribute will have to be established with circumstantial evidence. One would think that if the amount of marijuana was large enough for a jury to infer an intent to distribute, the Quincy Police would have revealed that significant fact to the Patriot Ledger. Since they did not, it is safe to assume that the quantity was not a factor.

The amount seized, however is not the only circumstance relevant to a determination of whether a person possessed a drug with an intent to distribute it. If the police found large amounts of money, packaging materials, notes showing sales, a scale, or other indicators not mentioned in the article, perhaps the "intent to distribute" charge will stick. If not, it may be a simple possession charge. But, since decriminalization in 2008, if it weighs less than an ounce it should not be the subject of a criminal charge at all.

The decriminalization of marijuana has created a recurring legal issue that may or not arise in this case. It seems that the some charging officers believe that there is no longer a crime of possession of marijuana, hence having more than one ounce is not possession, but possession with intent. I do not believe this to be the case. Possession of less than one ounce is a civil possession violation and possession of more than one ounce is a criminal possession violation. In fact, one may still be convicted of possessing less than one ounce with the intent to distribute it if there is sufficient evidence of that intent, such as actually offering the small amount for sale. This has always been the case.

3. PROOF OF AN ATTEMPT TO COMMIT A CRIME. I assume that the crime that the police say that Higgins attempted to commit was breaking into cars. According to the article, Officer Levine found Higgins in a parking lot "looking at vehicles." Since it would actually be unusual to be in a parking lot and not look at vehicles I suspect that Officer Levine will testify to more suspicious activity than that. However, unless Higgins took some actions towards breaking into cars, there simply does not appear to be enough evidence to support this charge.

To prove "attempt to commit a crime" the government must prove 1) a specific intent to commit a particular crime, 2) an act taken towards committing the crime coming reasonably close to committing it. So here again, the prosecution must prove Higgins' intent -- a specific intent to break into cars. And just where will the prosecution find support for this? There is no evidence that he had any tools designed for breaking in; if he had he would have been charged with possession of burglarious tools. The prosecution may argue that he was looking for unlocked cars, but how will they possibly back this up with real evidence?

Even more importantly, where is the proof of the second element? - Taking some action towards breaking in and coming close to doing so. He was just walking through the parking lot. That may be a step towards committing a crime, but it is not enough of a step to come reasonably close to actually breaking in. Whether he had the intent or not, he did not do enough to prove an attempt.

Higgins should have a reasonable expectation of prevailing on all counts.

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Dedham District Court to Hear Drugs/Weapons Charges Against Norwood Man

September 9, 2011

weed and knife.jpgNorwood Police Officers along with the Norfolk County Police Anti-Crime Task Force* (NORPAC) raided the home of David Max Malacaria in Norwood last Thursday. According to the Patch article, the police had a warrant to search Mr. Malacaria's Washington Street residence. When they executed the warrant and searched his home, they found "evidence and contraband relating to the investigation," as well as double edged knife "in the room occupied by Malacaria." The article states that "Malacaria was subsequently arrested by Norwood Detective Richard Giacoppo for possession to distribute class D (marijuana) and carrying a dangerous weapon." His arraignment apparently took place in the Dedham District Court the following day.

The article is short and as such does not contain all of the details that Mr. Malacaria should eventually learn through the discovery process in the Dedham District Court. One issue that needs to be explored involves the police investigation that gave rise to the search warrant in the first place.

In cases such as this one, defense counsel will learn the basis for the issuance of the warrant. These investigations often start with a tip from a civilian to the police. The police will then follow up on the tip by watching the residence for evidence of drug dealing, and/or use an informant or undercover officer to make a purchase of drugs at the residence. This is commonly referred to as a controlled buy. Defense counsel will carefully review all of this information to determine if the accused has a valid challenge to the warrant itself with a Motion to Suppress. If such a motion is successful, the case should be dismissed. Again, the article does not contain sufficient information to form an opinion on that issue here. That will requires an in depth analysis of all the evidence by experienced criminal defense counsel.

Another issue involves the charge that Malacaria intended to distribute the drugs. If the police had admissible evidence that he actually sold the marijuana, the charge would be "distribution." Since the charge is "possession to distribute," it is safe to assume that they do not expect to offer any evidence of marijuana sales. Hence the authorities must have evidence that they believe shows that the marijuana was not for Malacaria's personal use. (If it were for personal use, and it weighed less than one ounce, there should be no criminal charge at all).

The Norwood Police spokesman did say that the detectives removed "evidence and contraband." I'm not sure if there is any important distinction between those two classifications, but I assume he means the marijuana itself and other items commonly used for selling it or smoking it. To establish an intent to distribute, the prosecution relies on items like packaging materials (plastic bags), scales, notes/records of sales, cash, as well as the volume of the drugs found. The volume of marijuana, and the nature of the "contraband," therefore, will be critical factors in the government's case with regard to Malacaria's alleged "intent to distribute."

Lastly, there is the charge of "carrying a dangerous weapon." Based on the article itself, there does not appear to be sufficient evidence to support this charge, and it may be the subject of a Motion to Dismiss. This charge is defined in Massachusetts General Laws chapter 269, section 10(b). To be convicted of this crime a person must be actually carrying the weapon. In other words it must be on one's person or in under one's control in a motor vehicle. The article states that the police found the double-edge knife in Mr. Malacaria's room. That may be enough to show he possessed it, but it is not enough to show that he was carrying it in violation of section 10(b).

* (The Norfolk County Police Anti-Crime Task force is a group containing police detectives from fifteen police departments in Norfolk County -- Canton, Dedham, Foxboro, Medfield, Millis, Needham, Norfolk, Norwood, Plainville, Sharon, Stoughton, Walpole, Wellesley, Westwood, and Wrentham).

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Hingham District Court Arraignment for Quincy Man Charged AFTER Swimming During Hurricane

September 1, 2011

Waves1.jpgThe Massachusetts State Police arrested Daniel Jacques of Quincy on Sunday for swimming at Nantasket Beach during hurricane Irene. According to the Patriot Ledger, storm watchers on the beach flagged down the troopers to tell them that Jacques was swimming in the "churning" water.

The troopers apparently got Mr. Jacques' attention and he came towards shore. When he got close, however, he took off running. The troopers gave chase and later claimed that he almost caused several car crashes as he ran. After they caught him, the troopers charged him with being a disorderly person in violation of Massachusetts General Laws chapter 272, section 53.

This story raises some interesting questions and illustrates some basic principles of criminal law. The first question is what did Jacques do to deserve being arrested? A cursory read of the article's headline may lead one to believe that Jacques was arrested for hurricane swimming. Although the the rest of the article does not address it specifically, it is fairly clear that the real reason for his arrest was his running though traffic.

Patriot Ledger commenter Right Auntie said: "Disorderly conduct is a charge when they can't find one to charge someone with." This may sometimes appear to be the case, but to be charged with disorderly conduct or any other crime, there must be evidence of specific criminal elements defined by the written statute.

These are the statutorily defined elements of disorderly conduct:

1. Engaging in fighting/threatening or engaging in violent/tumultuous behavior or creating a hazardous or physically offensive condition by an act the served no legitimate purpose;
2. engaging in actions that were likely to affect the public; and
3. engaging in this behavior while intending to cause a public inconvenience or recklessly creating a risk of public inconvenience, annoyance or alarm.

It would be somewhat of a stretch to say that hurricane swimming fits the definition. Running through traffic is closer. The prosecution may argue that Jacques created a hazardous condition which likely affected the public and recklessly created a risk of public inconvenience as he ran in front of moving cars.

In the unlikely event of a trial on this matter, the issue of fact that will most likely be contested is whether Jacques actually caused near accidents. Jacques may argue that he did nothing criminal by swimming and the troopers knew it, but chased him just because he ran. After all, if he were not committing a crime by swimming, and was not going to be arrested for it, why were the police chasing him through traffic or anywhere else?

Hopefully, Jacques will retain counsel able to end the matter without a conviction for any crime.

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