March 2012 Archives

Stolen Property Charge Lodged After Routine Traffic Stop in Walpole

gps.jpgThe Wrentham District Court will hear Receiving Stolen Property charges against a Millis man because the Walpole Police stopped him for having a loud exhaust and then searched his car. According to the Walpole Times, John Chadwick was driving on Route 27 when Officer Bob Doherty noticed his loud exhaust. After the stop, Officer Doherty found that the car had an illegally altered muffler, no inspection sticker, and "a registry document that appeared to be tampered with."

The police called a tow truck performed an "inventory search." In the console, they found a global positioning system, jewelry, and gift cards. "Doherty . . . suspected that the items were stolen when the home address programmed on [the] GPS did not match Chadwick's address." The police were later able to match the items from the console to items that had been stolen from other towns. This, of course, was "great police work" according to Chief Stillman, and was great news to the owners of the property, but what about Mr. Chadwick's defense?

"Receiving" charges are brought against people when there is no evidence that they actually stole the property in their possession. To prove the charge in this case, there must be sufficient evidence to prove that Chadwick possessed the items, and knew that they had been stolen. In this case, the police asked Chadwick where he got the property, and he said that he got them at his house, "but he didn't know who exactly they belonged to." This statement does not help Chadwick's defense, and may tip the scales on the issue of knowledge.

There is, however, more to Chadwick's defense than just proof of the elements of the crime charged. Since this offense involves possession, an experienced defense attorney will explore the possibility of a motion to suppress - essentially arguing that even if he possessed the items, the police found them by conducting an unreasonable search and seizure. If the search was illegal, the evidence will be suppressed (kept out of evidence at trial) and the case will be dismissed. Let's look at the possibilities, step by step.

Was the stop of Chadwick's car justified? The reason for the stop was an allegedly loud exhaust system. Although it may be interesting to compare his exhaust to that of at least half of the motorcycles we hear during the warm months, this avenue will probably not produce positive results for Chadwick at a motion hearing. This charge, however, is a civil violation ($50 fine), and without more, should result in the issuance of a citation only.

Was the search of Chadwick's console justified? The officer did more than just issue a ticket for loud exhaust because during the stop he discovered that the car had no inspection sticker and had a registry document that appeared to be tampered with. For these reasons he decided to have the car towed. And when the police tow a car they must do an "inventory search" of the contents to protect themselves and the tow truck drivers from claims of missing property.

The problem with this is that the lack of an inspection sticker is also a civil offense that should simply result in the issuance of a citation. So it must come down to the allegedly "tampered" registry document. I can only assume that this document was the car's registration. This issue is, however, easily resolved at a traffic stop. The police, obviously, are able to check the validity of a cars' registration. Since Chadwick was not charged with driving an unregistered motor vehicle, we may assume the registration was valid. Therefore, it may be that the police should have simply issued Chadwick two civil motor vehicle citations and let him go on his way.

Even if the police were justified in towing the car, there is one more thing. Was the search of the GPS justified? After all, the article states that the officer became suspicious about the items in the console after he compared the home address on the GPS to Chadwick's home address. Scrolling around in an electronic device (cell phone, lap top, etc.) is a "search" which must have independent justification. Without the information gained from the GPS, it may be argued that the items should simply have been noted on an inventory form and either stored for safe-keeping or returned to Chadwick on the scene.

Even cases that appear to be "open and shut" require expert legal analysis.

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Motor Vehicle Homicide Charges Brought Against Driver After Passenger Falls Out

Orleans Cruiser.jpgThe Orleans District Court will arraign Dennis Maskell on motor vehicle homicide charges Monday morning. According to Boston.com, at approximately 5:00 p.m. on Friday, Maskell was driving his pickup truck in Orleans when his passenger, Diane Cole, fell out. The rear tire on the passenger side struck Cole and caused serious injuries. Witnesses told police that the truck had been traveling slowly. The police arrested Maskell and charged him with driving under the influence of alcohol and negligent operation. When they later they learned that Cole died in the hospital, they charged Maskell with motor vehicle homicide.

The Massachusetts "Homicide by Motor Vehicle Statute" -- Chapter 90, Section 24G - has two main provisions. The first involves operating under the influence AND operating negligently and "by any such operation" causing someone's death. This charge is a felony punishable up to 15 years in state prison. There is also a mandatory minimum sentence of 1 year. That means no deductions. One must serve every day.

The other provision is a lesser charge. It involves operating under the influence OR operating negligently and "by any such operation" causing someone's death. So the distinction is obvious. One may be charged under this provision if one is simply negligent and not under the influence, or if one is simply under the influence and not negligent. As opposed to the felony charge where one must be both. The provision provides for imprisonment in jail for up to 2 ½ years. There is no mandatory minimum sentence.

Either way, a conviction will result in a 15 year loss of license. If it is one's second OUI charge, the registry of motor vehicles will suspend one's license for life.

So which will it be for Mr. Maskell? Since the police initially charged him with OUI and Negligent Operation, it appears that he will be facing the more serious felony charge. What may be proven, as always, is a different thing all together. Without seeing more of the evidence, it is hard to judge Maskell's chances of acquittal. But, if he were driving slowly and his passenger opened the door and fell out without warning, how can that amount to negligent driving? Again, for the felony charge, there must be intoxication and negligence and one or both must have caused the death. The prosecution must prove that something that Maskell did, or failed to do, set in motion a chain of events that caused Cole's death. And if not for those actions, Ms. Cole would not have died. This case is very different from the typical case where an allegedly drunk driver crashes and kills his/her own passenger. In this case, it may be that the passenger was negligent and Maskell was not.

Furthermore, what is the evidence of intoxication? The witnesses saw him driving slowly. There is no mention of erratic operation that would indicate impairment. Perhaps he had the odor of alcohol on his breath and failed sobriety tests and/or a breathalyzer. The article says that he made bail at the police station. If this had been a second OUI charge, or if Maskell had a long criminal record, the bail would have been significant and he may not have been able to post it.

Mr. Maskell is in need of an experienced criminal defense attorney to evaluate the evidence and obtain exoneration. Many different results are possible. It could be felony homicide, it could be misdemeanor homicide, it could be misdemeanor drunk driving, or it could be misdemeanor negligent operation. Obviously, my goal would be straight acquittal of all charges. And from what I have read, that may be obtainable.

Attleboro District Court Arraigns Two Men on Very Weak Charges of Making Columbine-Style Threats

Facebook.jpgThreats charges were read against two former Attleboro High School students at their arraignment yesterday in the Attleboro District court. According to boston.com, 18 year-old Natick Sands and 20 year-old Ryan Ringuette were arrested for having a dangerous Facebook conversation.

According to the prosecutor, Sands was angry about something and said to Rinquette: "People wonder why I talk about random mass killing sprees all the time FED UP." Ringuette responded: "It's Columbine all over again." The prosecutor also alleged that Sands and Ring discussed how to attack Attleboro High School and the school police officer. Foxnews.com, however, reported that "[a] specific target was not mentioned in the discussions, and that school officials did not believe that anyone was in imminent danger."

Since both young men were on probation for unrelated charges, the judge held them without bail pending probation surrender hearings, set bails of $7,500 on the threats charges, ordered them to undergo mental health evaluations, and ordered them to avoid the Internet. They will spend at least the next two weeks in jail, where they will have no trouble avoiding the Internet.

All of that, just for having a conversation on Facebook. Of course, such conversations are not exactly private, otherwise no one would have known about this. But, there is more to their defense than a claim that they were just talking to each other. The charge of "Threat to Commit Crime" like any other charge requires proof of certain elements and there are big holes in this case.

First, there must be proof that these men expressed intents to injure a person or his/her property. The closest thing to this element would be the prosecutor's allegation that they said that they would attack the school police officer. But, if Foxnews.com is correct that no target was mentioned, then there is no case at all. There must be a victim for the crime of Threats.

Second, the threats must have been made under circumstances which would cause the victim to fear that they were willing and able to commit the crime. Again, who is the frightened victim? Even on the absurd chance that the school police officer was that victim, did he/she have a legitimate fear of being "attacked?" I doubt it.

Third and most importantly, for proof of the crime of Threats, the prosecution must prove beyond a reasonable doubt that these two men intended to have a threat conveyed to a victim. Even if a victim existed, this element is completely lacking. These men may not have been having an extremely private conversation, but they were still just talking to each other. Foxnews.com reported that a current Attleboro High School student "saw the discussion between Sands and Ringuette . . . and contacted school officials, who immediately notified the police." Overhearing planned violence, no matter how serious, does not fit the definition of the crime of Threats. If you were eavesdropping and overheard people talking about attacking you, it would not be a threat because they did not intend for you to hear it. Case closed.

If these two were actually making plans to attack the school, then their plans might be considered a conspiracy, but these are Threats charges. And they are extremely weak and unsupported by the allegations contained in news reports. They appear to be the result of overreaction to the reference to "Columbine."

I expect that an experienced criminal defense attorney may have a motion to dismiss filed by their next court date.

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