Massachusetts Criminal Lawyers Blog

The Quincy Police have filed several charges including marijuana trafficking against a Quincy couple after an incident last Thursday. The story in boston.com reveals that the prosecution may have difficulties proving many of them.

It all started when a utility company decided to turn off services at a house on Norfolk Street. The company enlisted the help of detectives from the Norfolk County Sheriffs office to enter the house. There is no explanation for this. Perhaps it is the company's policy to have law enforcement on hand for this task. But, why detectives and why not local police? Defense counsel will surely explore whether of not there was a secondary law enforcement motive for entering the house. If so, then they should have had a warrant, and there may be grounds for a motion to suppress.

Back to the story. When the utility employee and the detectives arrived, there was a man spreading mulch outside the house. Apparently, neither the detectives nor the utility employee bothered approaching the man to discuss the utility situation. According to the article the man left "[w]hen police entered the house." So they saw the man in the yard, and just went into his house. Why not speak to him first? Why not ask him for the key? Why not tell him the reason for going in his house while he is spreading mulch outside? It also makes you wonder if the man was investing in mulch while failing to pay utility bills.

When the mulch man left, the detectives took note of his license plate. Again, if this was simply a utility shut off, why were they interested in the man's license plate at this point in time. I assume that the police had not discovered anything suspicious at the time that the man drove away. Was there more going on here? Was there a law enforcement motive to the entry of the house? There is no mention of whether the house was locked or not. Surely, absent some emergency, utility companies are not breaking down doors to turn off power. Strange.

In any event the detectives smelled "raw marijuana" when they went inside. After looking around, they found marijuana plants growing under lights. The Quincy Police and members of the Federal Drug Enforcement Agency then got a search warrant and eventually discovered 65 growing marijuana plants and 18 small dried marijuana plants.

The police eventually found the mulching man's vehicle in another part of town. They knocked on the door and two boys told the police that they did not know where their father was. The police, however, could see him inside and after initially refusing to do so, the man came out and was identified as Hao Vu. When the police started to question him, however, Vu ran off and tried to hide behind a restaurant. He was arrested and charged with Trafficking in Marijuana, Conspiracy to Traffick Marijuana, Disorderly Conduct, and Resisting Arrest.

The police return to check on the boys and when nobody answered the door, they forced their way in and found Annie Vu in a bedroom with four children. Armed with information that the marijuana grow house was in the name of both Hao and Annie Vu, they arrested Annie too. She was charged with Trafficking in Marijuana, Conspiracy to Traffick Marijuana, and Resisting Arrest.

Unless there is a lot more to this than what has been reported, these two have been grossly overcharged. Lets start with Annie. Just because she is on the deed or the lease from the marijuana grow house does not mean that she was involved with the growing. Where is the evidence that she was ever at the house while the plants were there? And conspiracy? The prosecution needs evidence that she and Hao agreed to distribute marijuana. Where is that evidence? How about resisting arrest? Refusing to answer the door and hiding in a bedroom is no where near enough evidence for that charge. One has to threaten a police officer or create a risk of injury to a police officer for this charge to be sustained.

Now lets look at the charged lodged against Hao Vu. Trafficking charges are based upon weight. For marijuana, the minimum weight is fifty pounds. How will the prosecution establish the weight of these plants? Will they weigh just the portions suitable for smoking? Surely, they don't have fifty pounds of "buds." What about the proverbial "stems and seeds." How about the actual roots? Moreover, will the police weigh the plants after a proper period of drying? If they don't dry the stuff and just put it in plastic bags, the moisture will cause their evidence to rot. There were a total of 83 plants. They would each have to weigh just under ten ounces to make the cut.

As for the conspiracy charge, again, I just don't see any compelling evidence that Annie and Hao got together on this. There's no mention of it in the article. The same analysis with regard to the resisting arrest charge applies to Hao. Running away is not enough, unless there is something about the run that would put the officers at risk of injury. Here, they said that he ran and tried to hide behind Quizno's. That's not going to do it.

Some have said that when you make the police chase you around they will have their revenge. Perhaps that accounts for the charge of Disorderly Conduct. What exactly did Hao do to merit this charge? When and where did he cause public inconvenience or alarm? It looks like they were throwing everything possible a these two. They will need experience legal counsel to sort this out.

Continue reading "Marijuana Trafficking Suspects Appear to be Over Charged" »

Drug distribution and drug possession charges were brought against two men in the West Roxbury Division of the Boston Municipal Court after the men were arrested in Roslindale on Wednesday. Dennis Reynolds of Attleboro was charged with selling heroin to Daniel Hancock of Walpole. Hancock was charged with possession of heroin. After being handcuffed, Reynolds allegedly said: "I'll beat this case like I beat my last case, wait till you meet my lawyer."

The Roslindale Patch reported that undercover Boston Police officers saw what they believed to be a drug transaction between the two men at the corner of Metropolitan Avenue and Washington Street. The Officers approached to investigate. The article states that Hancock then began to struggle with officers. There is no explanation as to why there was a struggle when the police were simply approaching to ask questions, but as so often happens when such a struggle ensues, Hancock ended up on the pavement in handcuffs. The police would later claim that there were 3 bags of heroin near where he lay.

No drugs were taken from Reynolds, but he had $134 in his pocket. So at this point the police had speculation that Reynolds had just sold drugs to Hancock (Or the opposite was about to happen). The situation got worse, as it usually does, when the accused men agreed to speak to the officers. The men were likely separated and gave "contradictory statements about the money." The article says that the men initially said that the met to settle a debt. The article does not contain the contradictory information.

Back at the police station, Reynolds apparently called his girlfriend -- not his lawyer -- and said "Baby shut off my phone they have my phone." It seems that she was unable to do this quickly enough as the officers claimed to have received one call and one text from people seeking to buy drugs.

So, will Reynold's lawyer have a chance of beating this case? If he had called his lawyer first, he or she would surely have told him refrain from making incriminating statements. Although Reynold's words are technically hearsay, most of them are admissible against him in court. The prosecution will likely be able to admit the conversation with his girl friend and that is not helpful to his defense. The same applies to his statements about the money. Fortunately for him (and his lawyer) the prosecution will not likely be able to use his complimentary description of his lawyer because it contains reference to a prior case. Jurors may not know of a person's prior conviction of similar charges because they are only supposed to focus on the facts before them.

So what will they have before them? If not for the words and actions of the two men after the police approached, the case would consist of police speculation that they had witnessed a possible drug deal. Surely defense counsel will challenge the admissibility of the phone call and text message on illegal search and seizure grounds, and should prevail. It may come down to just what the officers saw. Will they be able to say who was the seller and who was the buyer? After all, it could go either way. And that is reasonable doubt.

Continue reading "Drug Distribution Suspect Proclaims Confidence in His Attorney" »

Drug distribution charges were brought against Hermino Nieves on Monday after the Quincy Police saw what they believed to be a drug deal in a parking lot off Willard Street. The charges, however, may be difficult to prove.

According to Boston.com someone called the Quincy Police on Monday around 12:43 p.m. "about a possible drug transaction in the parking lot behind 796 Willard Street." Police officers responded and saw "a car meet up with another car. . . . The suspects appeared to make an exchange of some sort, and then part ways."

The police followed a woman that they thought was the buyer. The story does not elaborate as to how they reached this conclusion. In any event, they stopped her car and she was "allegedly holding a bag [of heroin]" The story does not say why the woman was stopped or whether she was holding the bag out in plain view as the officers approached her car.

The police also followed the alleged seller -- Nieves -- and conducted a "traffic stop." This term seems to indicate that Nieves committed some sort of driving offense, but, again, the story does not elaborate. The police searched his car and found cell phones and $180.00, but no contraband.

Issues regarding search and seizure. Motion to Suppress.

1. What is meant by "an exchange of some sort?" After all, this may be the only reason for stopping Nieves. There is a genuine question as to whether or not this observation provided the police with adequate legal justification to stop his car. Stopping a car is a seizure and must be constitutionally justified. In other words, the police needed adequate information to believe that there had been a crime. Seeing what could easily have been an innocent interaction is not enough.

2. Was there some other reason to stop the car? It may be that the police will avoid issue number 1 by claiming that Nieves committed a motor vehicle infraction which gave them a good reason to stop him.

3. What justified the search of Nieves car? Even if there was a valid reason to stop Nieves for a traffic violation, the police should have simply given him a ticket and allowed him to leave unless they had enough information to search. It may be that the officers who stopped the woman called the officers that stopped Nieves and told them about the heroin that they found. If they had not yet received such a call, the search was questionable.

These issues must be raised by defense counsel in a Motion to Suppress. If successful, the case against Nieves will be dismissed.

Issues of Proof. Trial

At first glance one may be convinced that the case against Nieves is strong. A defense attorney sees things differently because he or she must look at the proof needed and the likelihood that the proof will be available at trial.

Here we have the police assuming that Nieves was the seller. The fact that the woman possessed heroin points in that direction, but not provide proof beyond a reasonable doubt. If the woman told police that Nieves sold her the drugs it strengthens the case, but we must then consider whether she will be available to testify. Her statement to the police is hearsay -- the police may not repeat it during Nieve's trial. For the jury to hear this information, the woman must appear and testify. This is unlikely because she has her own criminal charges and will not want to incriminate herself. Moreover, her reliability and willingness to cooperate under these circumstances is doubtful.

A defense attorney will exploit these weaknesses and give Nieves a good chance at acquittal. Reasonable doubt.

Continue reading "Drug Charges In Quincy District Court May Be Hard to Prove " »

The Norwood Police received a call from TJ Max last week after store employees saw two people removing security tags from merchandize. According to the Transcript and Bulletin, when officers arrived at he store the suspects were still inside. The man, Ergin Abaz, had a shopping bag containing merchandise. The woman, Christin Quattrucci had some goods in her pocketbook. The police arrested both of them for shoplifting. The article states that the police also found pill bottles and a doctor's prescription pad in Quattrucci's possession.

The police then searched their car. They found a "tote bag" that allegedly belonged to Abaz, and they searched that too. Inside they found "drugs and doctor's prescription pad." The doctor's name on the pad matched the name on Ms. Quattrucci's bottles.

Mr. Abaz and Ms. Quattrucci were arraigned in the Dedham District Court on Monday. These are the charges:

Abaz. Shoplifting, Conspiracy to Violate the Drug Laws, Receiving Stolen Property, Possession of a Class B Drug with Intent to Distribute, Possession of a Class B Drug, and Possession of Class C Drug with Intent to Distribute.

Quattrucci. Shoplifting, Conspiracy to Violate the Drug Laws, Receiving Stolen Property, Possession of a Class E Drug, and Possession of Marijuana.

These are some observations and areas of concern from a defense perspective:

Why were the police searching the car? Does a shoplifting arrest give the police probable cause to search the car for evidence of the crime? Not likely. I suspect that the police explanation will be as follows: The two were arrested and would not be able to drive away. The car needed to be towed. It is police policy to do an "inventory search" to secure any valuable contents. But, who is to say that the car needed to be towed? Isn't it possible that one or both would bail out of the police station? After all, at that point they were just charged with shoplifting. The police station at 137 Nahatan Street is practically right across the street from TJ Max at 146 Nahatan. If they made bail they could walk over and drive away. Hence, no need for a tow, and no need for an inventory search.

Even if the call for a tow were justified, defense counsel will surely seek information to determine whether an inventory actually took place. If so, the police would have filled out an inventory form with a list of the items found. The absence of such a form may indicate that the search was not an inventory, but a search for evidence. Without probable cause or some other justification such a search would be a constitutional violation.

A motion to suppress will expose an invalid search, suppress the items found, and result in dismissal of the charges related to the search.

Where is the evidence of a conspiracy to violate the drug laws? A conspiracy conviction would require proof that they made an agreement to do something illegal. The article seems to imply that Abaz and Quattrucci were writing their own prescriptions. However, there does not appear to be any proof of that. Moreover, there does not appear to be any proof that they had any agreement to do it. Being in each others' company with the drugs and prescriptions is not enough to prove an agreement.

In any event, there is very little chance that a conspiracy trial will take place in the Dedham District Court based upon these allegations. Procedural rules do not allow for a conspiracy trial to take place at the same time as trial on the other charges unless defendants agree. The prosecution generally does not want two trials when they may get what they want from one.

Finally, why has Abaz been charged with having an intent to distribute drugs at all? A large volume of drugs may support this, but there is nothing in the article about volume. Nor are there any other indicators such as drug sale records, packaging materials, or large amounts of money. These drugs could just as easily have been for Abaz's personal use.

Continue reading "Dedham District Court Arraigns Two on Drug Charges After Norwood Police Search Car" »

Two men will be prosecuted on drug charges in the West Roxbury Division of the Boston Municipal Court as a result of an automobile stop last week. According to the West Roxbury Patch undercover Boston Police Officers saw Robert Clarke using his cell phone outside the Washington Street Burger King around 8:15 p.m. The officers apparently knew Clarke from previous drug-related arrests. Eventually, Michael Dixon drove up and Clarke got into his car.

The pair headed West on Washington Street towards Dedham and the police had trouble keeping up with the speeding car. The police allege that the car stopped at the Grove Street red light and the men leaned towards each other. The light changed and the car did not move. The undercover officers allege that they watched the men and eventually sounded their horn. By that time, however, the light had changed back to red, and Dixon drove though the intersection anyway.

The police pulled Dixon over, ostensibly for speeding and running the red light. According to the Patch, they ordered the men out of the car, pat frisked them and searched the car. The article says that the police recovered eight pills in the car and some pills, a pill bottle, and $280.00 "in one of the suspect's pockets."

Clarke was charged with possession of class B and C drugs. Dixon was charged with distribution and possession with intent to distribute class B and C drugs.

ISSUES:

Just because a person has a drug history does not mean that the police may stop and search them at any time. Here, there was a little more than just that, but was there enough? A man (with or without a drug history) on his phone outside a restaurant getting picked up for a ride is not enough to stop and search. So the police followed to see if anything was going on.

The legal questions will be: 1. Did they see enough to warrant the stop of the car? 2. Did they see enough to warrant the order for them to get out of the car? Did they see enough to search them and search the car?

Obviously, if the driver committed the motor vehicle offenses, the police were justified in stopping the car. As with many allegations of civil motor vehicle violations, the driver may not agree that he was speeding and may not agree that the light was red when he went through the intersection. If the driver contests these allegations and prevails, then the stop would be unjustified and the drugs suppressed. In my experience, however, this is a long shot.

The other questions are closer calls. A valid stop, without more, does not give the police grounds to order people to get out of their vehicle. A ticket should be issued and the occupants should be allowed to go on their way. So what more did the police have? The men were allegedly leaning towards each other at the light. This could have been a drug deal, or it could have been any other innocent behavior. The men will need experienced defense counsel to demonstrate to the judge at a Motion to Suppress, that this does not justify the exit order.

"Pat downs," are usually justified as being necessary for the officers' safety. They are performed to determine if a person has a weapon. Here there did not appear to be any reason for the men to be out of the car, nor did there appear to be any reason for the officers to be afraid that they may have weapons.

Why were the police searching the car? There is a big difference between a police suspicion and probable cause to search. Obviously the police suspected Clarke because of his history, and they will say that using a cell phone to contact a dealer is a common practice. They will also say that the men leaning in together over the console
looked like a drug deal. All this adds up to a suspicion. These observations,clearly, could be innocent behavior that do not add up to probable cause. Zero plus zero equals zero. Should every person that uses a cell phone for a ride who gets in a car and leans towards the driver at a red light, be ordered out of the car and searched? Should every person that provides the ride in these circumstances, have his car searched?

These are just the search and seizure issues. What about the issues of drug dealing? Where is the evidence that Dixon sold drugs? Where is the evidence Dixon possessed drugs with the intent to distribute them? Having eight pills and $280 may not be enough.

In any event, this case is not as open and shut as it may first appear, when scrutinized with an eye towards defending the accused men.

Continue reading "Search and Seizure Issues in West Roxbury Auto Stop and Drug Arrests" »

Dedham District Court issued a Criminal Complaint for Motor Vehicle and Drug Possession charges against Newton-Wellesley Hospital E.R. doctor, Kristin Howard, on Tuesday as a result of a car crash Friday morning that was captured on video.

That video recording from a traffic light camera shows her car coming out of a parking lot and crashing into another car on State Street in Wellesley. This video has made national and international news. Commentator, George Stephanopoulos described the video as "heart stopping".

This exposure is sure to have an effect on the case. In fact, to some extent, it already has -- at arraignment,an experienced and well respected prosecutor asked for bail in the amount of $10,000.00. When one considers that the purpose of a cash bail is to ensure that an accused will return to court and not run away, the incongruity of this request becomes apparent. Was there really a chance that a well know physician would throw everything away and flee because of an OUI charge in the District Court? Since the Wellesley Police arrested her after the Friday morning accident, she must have been released from the Wellesley Police Station and must have come to court of her own volition. At the station a magistrate likely reviewed the situation and made the correct assumption that she could be trusted to arrive in court on Tuesday. After arraignment and bail arguments the Dedham District Court judge agreed and released her on her own recognizance to return again in January.

What about the charges? Boston.com has the most detailed news story. According to their report Doctor Howard was charged with Operating Under the Influence of Drugs and Alcohol, Operating to Endanger, Leaving the Scene of an Accident Causing Property Damage, and illegal Possession of Prescription Pills. The article describes the doctor driving in a parking lot, hitting a truck, backing up into a fence twice and then accelerating into the street and hitting a car stopped at the traffic light.

The police claimed to have smelled alcohol on her breath, hence the OUI Alcohol charge. They found prescription drugs in the car, hence the OUI Drugs charge and the drug possession charge. Striking the fence and the truck followed by accelerating into the street allegedly supports the charges of Leaving the Scene charges.

But there is no mention of an alcohol breath test, and only a single reference to a field sobriety test. Would it be reasonable to expect an operator to perform a road-side balancing type test after such a crash? No matter how "heart stopping" a video is, it does not prove everything.

There may or may not have been damage to the fence or the truck. If she tapped them and did not damage them, she may not be convicted of leaving the scene of property damage. This will be explored by defense counsel. Moreover, the prosecution will require witnesses to prove that she stuck anything. It is not on the video.

As for the prescription drugs, they may have been in her car, but were they in her system? Was there a blood test? Even if the drugs were in her system, did they cause her to drive the way she did? The prosecutor said that she wrote the prescriptions to herself, and that "raises some flags." Self prescribing is not actually a crime, but it invalidates the prescription and makes possession of the drugs illegal.

At least one article quoted Doctor Howard as telling the police that the car had a mechanical malfunction. The police also claimed that she initially said she was going to work, and then said she was going home from work.

One poster on the ABCnews.com site asked this question: "Why do people plead NOT guilty when they are CAUGHT both on video CRASHING into another vehicle, they found drugs that had been prescribed to HER by HER AND she initially LIED about where she was going[?]" This illustrates the prejudicial effect a video may have on a case. The video appears to be damning, but it does not prove all the elements of all of the charges. I trust that Doctor Howard has experienced defense counsel to sort though it all.

Continue reading "Operation Under the Influence Charges Against ER Doctor Has Video Evidence" »

The Norwood Police and members of the Norfolk County Police Anti-Crime (NORPAC) task force broke down the door at 110 Pellana Road, Norwood on Wednesday and arrested four men inside. According to Boston.com, and the Norwood Patch, the police had a warrant based upon upon information that the resident, Stephen Petrosh, had been selling marijuana. They attempted to execute the warrant (search the place) by knocking first. The police said that they could see people inside that were not responding to their knocks, so they broke the door down.

When they got inside, the officers found Petrosh along with three other men: Joseph Carbone, Joseph Spaziani, and Justin Schrekenghaust. They also found LSD, Psilocybin (mushrooms), marijuana, Ritalin, Lyrica, Varenicline, weapons, ammunition, cash, scales and other drug paraphernalia.

Petrosh, Carbone, and Spaziani were each charged with possessing the drugs (except the prescription medication) with intent to distribute them as well as unlicensed possession of ammunition. Schrekenghaust was only charged with possession of LSD. Apparently, none of the alleged weapons were illegal. Petrosh also has a drug case already pending in the Concord District Court. All of them made bail and were due in the Dedham District Court for arraignment the next day.

Issues:

1. I expect that the search warrant was based upon Petrosh's alleged sales to a cooperating informant. It should be noted that unless that informant is identified, there will be no charge for that sale, and evidence of that sale will not come into evidence against Petrosh's. Nor will the evidence of his pending case be allowed into evidence. So proof of an intent to distribute must be based on the amount of drugs found (the articles do not reveal this information) and the other indicators of distribution -- usually scales, money packaging materials, notes/ledgers, etc.

2. Each man arrested stands in his own unique defensive position. Surely, each would be well advised to retain experienced defense counsel. Presence in the apartment is not sufficient to prove possession of drugs, or an intent to distribute them. The articles do not divulge the reasons that the police charged three men with possession with intent to distribute, and one with simple possession. One or more of the three men with the more serious charges may not have actually possess the drugs at all. It could be that the police lumped them all together for the Dedham District Court to sort out.

3. Although Petrosh made bail and was allowed to walk into the Dedham District Court on Thursday morning, there is a fair possibility that the prosecutors there would try to be sure he did not walk out. This is because of his pending case in Concord. The Concord District Court probably gave him a "bail warning" - explaining that that if he were arrested while awaiting trial, he could be held for up to 60 days without bail. If so, the law would allow the Dedham District Court to revoke his Concord District Court bail, and lock him up. If Petrosh spoke with counsel in advance, he would have been prepared and may have retained his liberty.

Continue reading "Dedham District Court Arraignments for Men Caught in NORPAC Drug Bust" »

Last week the governor signed a law entitled "An Act Relative to Sentencing and Improving Law Enforcement Tools." This has also been called "Melissa's Bill" and "TheThree Strikes Law." The law dramatically increases certain sentences, and moderately decreases others. Essentially those convicted of multiple felonies receive harsher punishments, and those convicted of certain drug-related crime receive lesser punishment. Here are some provisions:

SENTENCE INCREASES - FELONIES

• For a prisoner serving a life sentence to be granted parole, two thirds of the parole board must agree. Previously a majority vote of the board could grant parole.
• Prisoners serving more than one life sentence are no longer eligible for parole.
• Anyone convicted of a felony who had previously been convicted of two felonies and imprisoned for at least 3 years for each must receive the maximum sentence. Parole will only be available after two thirds of this sentence has been served.
• Anyone convicted of a violent felony who had previously been convicted of two violent offenses (there are 42 listed) and imprisoned for at least 3 years for each must receive the maximum sentence and will not be eligible for parole. This creates a situation where there are now 17 crimes (in addition to first degree murder) that carry a life sentence without the possibility of parole.

SENTENCE DECREASES - DRUG RELATED CRIMES

TRAFFICKING COCAINE

Old Law
Between 14 and 28 grams punishable by mandatory minimum 3 years.
Between 28 and 100 grams punishable by mandatory minimum 5 years.
Between 100 and 200 grams punishable by mandatory minimum 10 years.
Excess of 200 grams punishable by mandatory minimum 15 years.

New Law
Between 18 and 36 grams punishable by mandatory minimum sentence of 2 years.
Between 36 and 100 grams punishable by mandatory minimum sentence of 3 ½ years.
Between 100 and 200 grams punishable by mandatory minimum sentence of 8 years.
Excess of 200 grams punishable by mandatory minimum 12 years.

TRAFFICKING HEROIN

Old Law
Between 14 and 28 grams punishable by mandatory minimum 5 years.
Between 28 and 100 grams punishable by mandatory minimum 7 years.
Between 100 and 200 grams punishable by mandatory minimum 10 years.
Excess of 200 grams punishable by mandatory minimum 15 years.

New Law
Between 18 and 36 grams punishable by mandatory minimum 3 1/2 years.
Between 36 and 100 grams punishable by mandatory minimum 5 years.
Between 100 and 200 grams punishable by mandatory minimum 8 years.
Excess of 200 grams punishable by mandatory minimum 12 years.

TRAFFICKING MARIJUANA

Old Law
Between 100 and 2,000 pounds punishable by mandatory minimum 3 years.
Between 2,000 and 10,000 pounds punishable by mandatory minimum 5 years.
Excess of 10,000 pounds punishable by mandatory minimum 10 years.

New Law
Between 100 and 2,000 pounds punishable by mandatory minimum 2 years
Between 2,000 and 10,000 pounds punishable by mandatory minimum 3 ½ years.
Excess of 10,000 pounds punishable by mandatory minimum 8 years.

SUBSEQUENT OFFENSE HEROIN DISTRIBUTION

Old Law - Mandatory minimum 5 years.
New Law - Mandatory minimum 3 1/2 years.

SUBSEQUENT OFFENSE COCAINE DISTRIBUTION

Old Law - Mandatory minimum 3 years.
New Law - Mandatory minimum 2 years.

SUBSEQUENT OFFENSE CLASS B (OTHER) DISTRIBUTION

Old Law - Mandatory minimum 5 years.
New Law - Mandatory minimum 3 1/2 years.

SCHOOL ZONE CASES

The new law makes no changes in sentencing for school zone convictions. The new law does, however, make substantive changes in the elements of a school zone violation.

Old Law - Anyone distributing drugs or possession them with the intent to distribute them at any time of day within 1000 feet of a school was committing a school zone violation.
New Law - Anyone distributing drugs or possession them with the intent to distribute them between the hours of 5 a.m. and midnight within 300 feet of a school will be committing a school zone violation.

RETROACTIVITY: The statute specifically states that anyone serving a mandatory minimum sentence at the time that this new law becomes effective "shall be eligible for probation, parole, work release and deductions in sentence for good conduct" under the new law.

Continue reading "New Sentencing Legislation a Double-Edged Sword" »

Quincy 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.

Continue reading "Drug Trafficking Charges Brought After Quincy Police Investigation" »

Drug 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.

Continue reading "Drug Possession Arrest Following Seat Belt Stop Raises Questions of Illegal Search and Seizure" »

OUI Alcohol, Operating to Endanger, and Drug Possession charges were filed in Lynn District Court against a Winthrop man after the Swamscott Police found him outside of his wrecked pickup truck on Wednesday.

I mention this simple case from a Swamscott Patch article because it illustrates the common situation of having a case that has some good facts that get dragged down by some not-so-good ones. The article says that Salvatore Lamattina hit a utility pole with his pick-up truck on Stetson Drive in Swamscott on April 25. When the Swamscott Police arrived, they saw that the driver's-side front tire and suspension had separated from the vehicle. Lamattina was standing outside of his truck and was unsteady on his feet. Lamattina told the officers that he crashed because the wheel had fallen off the vehicle. A hand-held field breathalyzer showed Lamattina's blood alcohol level at .06.

So far, so good for the defense. 1) The legal alcohol limit is .08; 2) An unexpected mechanical malfunction should not result in a conviction for OUI or Operating to Endanger; and 3) A person recently involved in a crash of that nature could reasonably be expected to be shaken up and unsteady.

But there is more. In addition to telling the police about the wheel falling off (which they did not believe because of certain skid marks), Lamattina told them that he had taken the drug Suboxone earlier for a leg injury. Even if your blood alcohol level is below the legal limit, you may still be convicted of OUI especially if you have mixed drugs with alcohol and the consumption of the mixture negatively affected your ability to operate safely. Lamattina's statement gave the prosecution all they need to prove mixing drugs and alcohol.

In addition, while having three cold beers and three empties in the truck may not negate the relatively low alcohol level, it does add a certain negative impression. On top of that, the police found pills in the car that they claimed were the drug Methadone. If he were not authorized to have them, he has a problem with the drug possession charge, and if he were authorized to have them, a jury may understand the meaning that goes along with Suboxone and Methadone - treatment for heroin addiction.

The drugs may not have had anything to do with his driving, or may have had a lot to do with it. Either way they just make what could have been a good defense case a much more difficult one.

Lastly, I should note that the results of a portable breath test are generally not admissible at trial. Only breath tests properly administered on properly tested and maintained breathalyzers are admissible. So, even that positive factor is no help.

All is not lost, but Lamattina has a challenging road ahead. He will require an experienced criminal defense attorney to steer the way.

Continue reading "OUI, Operating to Endanger, and Drug Possession Case has Pros and Cons" »