July 2012 Archives

Brandishing Licensed Firearm Results in Arrest for Assault with Dangerous Weapon

Baretta 25 2.jpgThe Stoughton District Court will hear charges of Threats and Assault with a Dangerous Weapon against Frederick Baker of Raynham because another man told the police that Baker "pulled out" a pistol during an argument at a gas station. According to the PatriotLedger.com, Baker and the alleged victim were at a Mobil station in Stoughton at approximately 7:00 a.m. yestaerday when an argument started over the use of the pumps.

After their interaction, Baker drove away, but the alleged victim called the police and said that Baker pulled a small black handgun and threatened to blow his head off. The Canton Police stopped Baker on Route 138 and found him to be in possession of a .25 caliber Beretta, and a license to carry it. Baker explained that "he felt threatened." But, according to one officer, "the bottom line is the situation didn't warrant the level of force that he escalated to."

A license to carry a firearm comes with great responsibility and should inspire significant restraint. But these cases are never open and shut. If the reason for the licensed gun is personal safety, what good is it if you are not allowed to prepare for defensive use. The triviality of the argument that created the dangerous situation is irrelevant. The real question with regard to self-defense is whether, at the time the firearm was drawn, the person drawing it was in imminent fear of injury and believed he had no other recourse.

There are many other questions that need to be answered. What did the alleged victim say to Baker? Since it was an argument, we may assume that words were exchanged. Was there a threat towards Baker? Would there actually have been a physical altercation if not for the showing of the gun? Did the gun, in fact, diffuse a dangerous situation? Did the alleged victim have access to a weapon or appear to have such access? Was the alleged victim significantly larger than Baker. Was the alleged victim alone or did he have others with him?

Apparently Baker never aimed the weapon since the article twice says he just "pulled" it. To be convicted of Assault with a Dangerous Weapon in this circumstance, there must be proof beyond a reasonable doubt that Baker intended to put the victim in fear of an imminent battery and that Baker engaged in some conduct which the victim reasonably perceived as imminently threatening.

So, we know that the victim claims to have seen the gun, and that the victim probably said that he was in fear. But was the victim really in fear and if so was that fear reasonable? I suppose that one important issue in this regard is whether Baker actually said that he would blow the victim's head off. The men had been in an argument. In arguments, like fights, both sides want to win. Perhaps the victim felt as if he had lost and was determined to have the last word by bringing the police into it and saying what was necessary.

Surely Baker's defense will address these issues and more. Aside from the criminal penalties, Baker's license to carry hangs in the balance.

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Drug Trafficking Charges Brought After Quincy Police Investigation

heroin balloons.jpgQuincy Police officers arrested two men and two women after using an informant to buy heroin at an Independence Avenue home on Wednesday. According to Boston.com, Quincy Police detectives had suspicions that drugs were being sold from the home because they had seen a lot of people parking nearby, going in the back door and leaving shortly thereafter. The informant that they used on Wednesday had confirmed their suspicions by telling them that he had actually purchased heroin from that location.

According to the article, the police sent the informant to the home with "over $1,000 of police money to purchase drugs." The informant went in and then returned to the police with 16 grams of heroin. At the same time a Ford Explorer pulled up to the building and the driver went inside. In less than a minute, he came out along with a man and a woman who police believed resided at the home. The man left in the Explorer and the other two left in an Infiniti.

The police pulled the Infiniti over and questioned the occupants. They admitted that there were 5 grams of heroin in the home that had just been dropped off by the man in the Explorer. The police charged them both with trafficking in heroin and conspiracy.

The police then stopped the Explorer. The man and woman inside both denied having any drugs. A search, however, turned up 1 bag of heroin, 3 bags of marijuana, 500 balloons (alleged to be used for heroin packaging) and $260. One twenty dollar bill was identified by its serial number as part of the cash that the police had given to the informant. These two were charged with possession of heroin with the intent to distribute, possession of marijuana with the intent to distribute and a school zone violation (Committing a drug sale crime within 1000 feet of a school).

Reading the article one might think that this is an open and shut case and that they are all going to be found guilty. This is not the case. Defense counsel's analysis will include the following inquiries/observations:

1. Why did the police use so much cash with the informant? Usually the police buy small amounts and then get a warrant to search the home in order to find the larger amount. This way, they do not need to use their confidential informant as a witness at trial. Informants are kept confidential, in part, because of the potential for retribution. Here, since the prosecution needs 14 grams or more to prove the trafficking charge (Chapter 94C, Section 32E (c) (1)) it appears that they will be relying on the 16 grams that the informant bought for them. The police will not be allowed to testify as to what the informant told them because that is hearsay. That means that informant (an admitted drug user) becomes a prosecution witness. Will the prosecution be willing to use this witness to prove trafficking?

2. How will the prosecution prove possession of heroin with the intent to distribute against the two people in the Explorer? They only had one bag. Will the balloons really help? Remember, they were not charged with actual distribution, just possession with the intent to distribute, hence it must involve the one bag. Isn't possible that the man had just bought the bag from the home on Independence Avenue? The $20 bill in his possession may have been part of change that he received for his purchase of the one bag.

3. How will the prosecution prove possession of marijuana with the intent to distribute against the occupants of the Explorer? If these were just 3 small bags, then there appears to be no evidence whatsoever that they intended to distribute them. In fact, if the total weight is less than one ounce, there may not even be enough evidence for a criminal possession charge. Possession of one ounce or less is non-criminal.

4. Where was the school? Since the people from Independence Avenue home were not charged with a school zone violation, it would appear that there was a school in the vicinity of the stop of the Explorer. Did the occupants intend to distribute anything at that location? More importantly, since the distribution charges against them are weak, the school zone charges are weak. School zone charges are only applicable to distribution, not just possession.

These are just some of the obvious issues, and they are based solely on the content of the article. I am sure that more issues will come to light during the process of pretrial discovery and motions.

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Drug Possession Arrest Following Seat Belt Stop Raises Questions of Illegal Search and Seizure

seat belt sign.jpgDrug possession charges were filed against a Fall River man after the Tiverton Police pulled him over for not wearing a seat belt. According to the Tiverton-Little Compton Patch, the police stopped Cristovao Aguiar at 11:31 p.m. on July 6 because they noticed that neither he nor his passenger was wearing a seat belt. After the stop, the police apparently made the usual request: "license and registration" to which Aguiar responded that he did not have a license.

The police proceeded to arrested Aguiar for driving without a license. After they transported him to the police station, they happened upon "several small blue envelopes containing a substance that later tested positive for heroine (sic) inside his wallet."

This simple short story provides a fact pattern that helps illustrate some crucial search and seizure issues.

First and foremost is the stop of the car. As with all seat belt situations, one could reasonably wonder how the police noticed that the individuals in the car were unbuckled. In this case we may assume that it was dark at 11:31 p.m. How did the police see the lack of seat belts? The seat belt law does not require the use of shoulder straps. The shoulder belts may easily be tucked behind, leaving the lap belt. How are the police able to see if a person has the lap belt on? (Anyone older than 40 will remember the days when there were no shoulder belts).

Even if we assume that the police noticed that Aguiar and his passenger were riding around unharnessed, that is not a reason to stop them. The seat belt law specifically precludes the police from citing a seat belt violation as the primary reason for a stop. It says: "The provisions of this section shall be enforced . . . only when an operator has been stopped for a violation of the motor vehicle laws or some other offense."

If this article is accurate, the stop was not reasonable according the constitutional laws governing searches and seizures. Therefore, anything that the police discovered as a result of the stop may not be used against Aguiar. That would include the heroin as well as the fact that he did not have a driver's license. I expect that an experienced criminal defense attorney will accomplish this with a Motion to Suppress Evidence.

The second issue involves the arrest. Assuming for the sake of argument, that the stop was legal, why did the police arrest Aguiar? Operating without a license (first offense) is a civil violation. One may not be incarcerated for it. It is punishable by a $500 to $1000 fine alone. As such it is not an offense for which a person may be arrested. If this were Aguiar's first offense, then the police should not have arrested him. If he had not been arrested, the police would not have gained access to his wallet at the booking desk. This will surely be part of the Motion to Suppress.

A successful Motion to Suppress will deprive the prosecution of necessary evidence and result in dismissal of all charges.

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