Recently in Motion to Suppress Category

Drug Charges Stem from Alleged "Meaningless Drive" in Norwood

coke bag.jpgThe Norwood Police seized cocaine from two men in the Home Depot parking lot last week after a detective watched them meet and drive around the parking lot. According to the Norwood Transcript and Bulletin, detective David Eysie had suspicions about Miguel Escobar-Cruz and had been keeping an eye on him. On Wednesday he watched Cruz drive to Home Depot and meet Walter Mullock. Mullock got into Cruz's vehicle and they drove through the lot in what Eysie described as a "meaningless drive." The police believe that drug dealers pick up buyers and drive around while making their sales in order to avoid detection.

In this case, the Transcript states that "Eysie pulled Cruz over after the drive was complete." and "[w]hen Eysie pulled them over, he stated what he had witnessed, at which point, they were cooperative." Apparently, the police claim that Cruz's cooperation included giving the police his supply of cocaine and perhaps even admitting that he sold some to Mullock. The police later obtained a warrant to search Cruz's Norwood home and found more cocaine, packaging materials, and $4,000 of alleged drug money.

The police charged Cruz with Distribution of Class B Cocaine, Conspiracy to Violate the Drugs Laws, and Possession of Class B Cocaine with Intent to Distribute, Mullock was charged with simple Possession of Class B Cocaine and Conspiracy to Violate the Drugs Laws.

Cruz got caught with the cocaine in his car, admitted to selling cocaine to Mullock, and had more cocaine and other incriminating evidence back at his house. So it is open and shut, right? Maybe not.

From the perspective of a criminal defense attorney, there is a weak link that may turn the case in Cruz's favor. It involves every individual's right to be free from unreasonable searches and seizures. Here, that weak link is the stopping of Cruz's car. Twice the article says that Eysie pulled Cruz over. If this is true, then there very well may be a viable motion to suppress all evidence obtained as a result of that stop.

Stopping a car is a seizure in the constitutional sense. The police are not allowed to stop a car without witnessing a civil motor vehicle infraction or having probable cause or reasonable suspicion of criminal activity. In this case, what evidence did the detective have to support his stopping of the car?

Eysie must have had some suspicions about Cruz, otherwise he would not have been following him. Those suspicions could not have amounted to much, otherwise he would have stopped and arrested Cruz before he got to Home Depot. So the reason for the stop must have been the so-called "meaningless drive." How is driving around a parking lot evidence of criminal activity? Other than a hunch that turned out to be accurate, there did not appear to be anything else to support the stop of Cruz's car. And hunches do not amount to adequate grounds to step over the protections against unreasonable searches and seizures that the constitution provides.

If this analysis is correct and the warrant for Cruz's home was based upon the stop in the parking lot, then that evidence will also be suppressed.

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Marijuana Charges Brought After Another Brookline Police Smell Test

Marijuana leaf1.jpgBrookline Police brought marijuana (Class D) distribution charges against Kevin Nguyen yesterday after he was pulled over under suspicion of having a warrant out for his arrest. According to the Brookline Patch, an officer "ran a query on a vehicle that came up that the driver had an active warrant." The officer stopped the car, identified Kevin Nguyen as the driver, and arrested him on the outstanding warrant.

The police then performed an "inventory" search of the car. This is police policy. All items of value must be listed on an inventory form and held for safe keeping. The police have this policy to protect themselves and tow drivers from potential claims of missing valuables. If done according to procedures, courts will not view these searches as violations of privacy rights. They may, therefore be done without a warrant, or probable cause.

In this case, however, the nature of the search changed. The Brookline Officers conducting the inventory, "allegedly detected the fresh odor of marijuana coming from inside the vehicle but nothing was found." This is impressive. Just last week I wrote about officers from this same department detecting such an aroma, and here they do it again. It is not clear if the same officer was involved in both arrests.

In any event, the car had to be towed and it appears that its first stop was not the storage lot, but the police station. There, a "K9 unit was put into the car." In other words they let a drug sniffing dog climb in. The dog "located a scent," and "[l]ater, the police allegedly found a small brown Gucci bag full of cash, about $9400, and about 6.7 ounces of marijuana in a white shopping bag." How much later, and why it took additional time is not stated in the article.

Issues/Comments:

Odor of Marijuana. Unlike last weeks blog, there appears to be at least some corroboration behind the charge of having an intent to distribute. The volume of marijuana is not extreme, but may weigh against a claim of personal use. I should point out once again that the proposed medical marijuana regulations suggest that ten ounces should be considered a sixty day supply, unless the prescribing doctor were to suggest more. But here, there is also the cash. The weight and the cash are not conclusive but support the charge from a prosecution perspective. Kevin Nguyen's side, however, has not been heard yet.

Search and Seizure-- the stop. Kevin Nguyen's defense will likely take a close look at whether there is a viable motion to suppress. As always, this is best viewed in a chronological sequence. First, did the police have constitutional justification to stop the car? At a glance this looks obvious - he had a warrant. But, the police did a query on the vehicle's registration. I doubt, however, if the officer identified Nguyen before making the stop. Just because the registered owner of a car has an active warrant does not mean the registered owner is driving the car.

Search and Seizure -- the non-inventory search of the car. The next inquiry is whether the thorough search of the car was constitutionally justified? The inventory was supposedly routine. But, what about the tow to the police station and dog sniff. What was this police action based on? Was it based on the officer smelling a "fresh odor of marijuana?" Would that amount to probable cause to believe that the car contained marijuana? The article does not say where the police found the evidence. Why didn't they find it during the inventory? Was the evidence in a secret "hide." If so, did the police have sufficient probable cause to start taking the car apart? Assuming, for the sake of argument, that they did, why didn't they get a warrant? They had the car in their possession, and Kevin Nguyen was locked up. There was no rush since the car was not going anywhere. Why not present their probable cause argument to a magistrate in the Brookline District Court (which is right next door) later in the morning. The law requires warrants unless there are circumstances justifying a search without one. I don't see those circumstances here.

Marijuana Legalization. Obviously, the police must enforce the law, but whether one supports marijuana legalization or not, these charges are getting harder to take seriously. At present the state is only considering legalizing medical marijuana and entities seeking licenses to become distributors must be "not for profit." But, how long will it be before possession of any amount is legal without a prescription? Why are organizations clamoring for these licenses if there is no profit? Surely the administrators will be taking a salary. Is there any cap on the salaries for principals of these non-profit organizations? No. Are these groups interested in public service and breaking even? I think not. Will these licensees be first in line in the event of wholesale legalization? What will their profits be then? And how will people like Mr. Nguyen feel about that?

This blog is actually many times longer than the short story in the Patch. And I trust that there is a lot more evidence to be analyzed on Mr. Nguyen's behalf. If he has not done so already, he should have an experienced criminal defense attorney look into this as soon as possible.

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Marijuana Trafficking Suspects Appear to be Over Charged

Marij Bud.jpgThe 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.

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Drug Charges In Quincy District Court May Be Hard to Prove

Quincy Court.jpgDrug 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.


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Dedham District Court Arraigns Two on Drug Charges After Norwood Police Search Car

script.jpgThe 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.


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Search and Seizure Issues in West Roxbury Auto Stop and Drug Arrests

suboxone.jpgTwo 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.

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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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Man Licensed to Carry Firearm Charged with Improper Storage After He Hides it In Playground

gun in waistband.jpgThe Boston Municipal Court arraigned a licensed gun owner yesterday on charges of improperly storing his firearm. According to the Herald.com, John T. Murrett of Quincy tried to take his loaded Ruger LC9 pistol into Club Royale in downtown Boston by tucking into his pants at the small of his back. Club security found it when they frisked him at the door and told him that he could not bring it inside. Undeterred, he left and "placed his firearm in some bushes in a nearby playground." He then returned to the Royale where the motto is: "From the moment you walk in until you leave, we want your night to be the best of your life." For Murrett, however, a legal nightmare began shortly after he left. His pistol was not where he left it.

Murrett certainly exercised some bad judgment that night, not the least of which involved the things he said and did not say. It appears that instead of asking the bouncers about bringing a firearm into the club, he just let them find it. Perhaps he thought that they wouldn't. First bad move. Then he hid it in a playground of all places. Not that there are a lot of kids out during the clubbing hours, but it sure sounds bad in the paper.

Then came the things that he did say. After losing the gun, he went back to the club and asked if anyone had turned it in. First of all, what are the chances that someone who found a gun would bring it to a nearby nightclub? Then, he practically made the prosecution's case by admitting to the bouncers that he lost it. It gets worse. When the police arrived he told them that he takes the sidearm with him wherever he goes, even to a wedding he had been to earlier that day. Perhaps he should have had a nuptial exception to his constant carry rule.

Murrett then told the police that it was fully loaded with 7 rounds in the magazine and one in the chamber. That takes a little extra effort. He had to load the magazine, chamber one round, remove the magazine, and then replace the chambered round by adding one more to the magazine. All that for a wedding? To make matters worse, he also told the police that he had "a couple of alcoholic drinks." The police arrested him for Improper Firearm Storage (Chapter 140, section 131L) and Carrying a Firearm while Intoxicated (Chapter 269, section 10H).

Perhaps Murret's bad judgment regarding his statements may be explained by the panic he felt when he found out that the gun was missing. In fact, one may say he did the right thing as far as the public is concerned by immediately sounding the alarm regarding a firearm on the loose. He did not, however, do himself any favors with his self-incriminating chatter.

Even licensed carrying of a firearm in Massachusetts is fraught with peril. Not just because it is a lethal weapon, but because you can get yourself into trouble like this very easily. The sight of a gun for many people provokes thoughts of illegality. Just flashing it may bring a charge of threats or assault with a dangerous weapon. In fact, the article implies that club security called 911 when they initially found Murret's gun. Even with a valid license, there are many places that you may not carry a firearm. You may not carry a firearm into state buildings, federal buildings (including the post office) or sports stadiums, just to name a few. Stringent licensing application processes are designed to ensure that people with bad judgment do not carry firearms. Like it or not, as far as firearms are concerned, this is not Oklahoma.

So what is Murett's present legal situation? First off, it is very unlikely that he will have a license to carry a firearm again anytime soon. I assume it was issued by the Quincy Police Department, and that this incident has prompted them to revoke it. The Herald.com unfortunately mentioned his place of employment in the article. So whether or not his gun was required at his job he may have some employment jeopardy.

Secondly, as the story points out, the charge of carrying while intoxicating did not appear in the court papers. I expect that the very capable clerk magistrate of the Boston Municipal court determined that probable cause did not exist with respect to that charge. That charge requires proof that he was under the influence at the time that he carried a loaded firearm. Not only did the police not say that he was under the influence, even if they had, they could not say that he was in that condition when he last carried the weapon. By the way, this charge would have a higher maximum penalty of 2 ½ years in jail compared to 1 year for improper storage.

Even though the charge of carrying a loaded firearm while under the influence was weeded out in this case, aspects of that statute are worth mentioning. Unlike driving on the public roadways, a holder of a license to carrying a firearm is not presumed to consent to a breath test. So how would the prosecution prove "under the influence?" With the usual observations of glassy eyes and unsteady feet? With field sobriety tests? Those "tests" are supposedly designed to determine one's ability to operate a motor vehicle safely, not carry a firearm. With this charge there is no standard by which to judge if someone is too drunk to carry. The short-hand definition of "under the influence" in an OUI case is having consumed enough alcohol to negatively impact one's ability to operate a motor vehicle safely. There is no such definition that I know of with regard to carrying a firearm. It is not illegal to drink and then drive unless you drink too much to be safe. Under what standard should one's ability to safely carry a firearm be judged? Would the standard be higher, or lower than that used for operating a motor vehicle? Intoxicated carrying charges only applies to individuals who are licensed to carry. Oddly enough,if you illegally carry a firearm without a license while under the influence, this statute does not apply. Perhaps the legislature reasoned that the heavy penalties involved with unlicensed carrying were sufficient. One more thing, this statute only applies if the firearm is loaded. So before you get loaded, be sure your pistol isn't.

The pending charge of improper storage will not be taken lightly, especially since the gun has gone missing. Leaving one on your bed stand is one thing, but under a bush in a Boston playground is another. Hence, I expect he has competent criminal defense counsel who will explore all avenues. There should be a full examination of the possibility of suppressing Murrett's statements to the police.

Interestingly, this statute makes it a crime to store a firearm "in any place unless such weapon is secured in a locked container or equipped with a tamper resistant lock or safety devise." Murrett's firearm actually has an internal lock. Did Murrett lock it? I say "interestingly" only because the statute is vague as to where you may leave a locked gun. Under your bed? An unlocked office drawer? Your glove compartment? On a beach towel while you take a swim? Unfortunately for Murrett, no judge or jury will likely acquit on the grounds that he locked it before he stashed it under the bush.

The statute also establishes that a conviction will be "evidence of wanton or reckless conduct in any criminal or civil proceeding if a person under the age of 18 . . . acquired access to [the] weapon . . . and such access results in the personal injury to or death of any person." Therefore, even after the nightmare of this case is over, Murrett will not be out of the woods. Until the gun is found, there is a possibility that he could be sued, or even charged with a crime as a result of another person's use of it.

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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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Medfield Police Stop Dorchester Man's Car and Charge him with Carrying a Dangerous Weapon

February 11, 2012

Blackjack3.jpgThe Dedham District Court will hear charges against Lawrence Jackson of Dorchester as a result of a motor vehicle stop in Medfield early last Saturday morning. According to the Medfield Patch, Mr. Taylor and a female companion traveled through Dover and into Medfield at approximately 1:30 a.m. on Saturday, February 4. Apparently, the Dover Police saw them and called the Medfield Police to tell them that Jackson's car was "suspicious."

Medfield Police Officer Daniel Pellegrini spotted the car on North Street in Medfield and stopped it for "a violation related to the license plate." The Chief of the Medfield Police told the Patch that he believed that "the plate light was out." After he stopped the car, Officer Pellegrini saw an open container of alcohol inside. He also saw a knife in the glove compartment as Jackson retrieved his registration. Officer Pellegrini then asked Jackson for permission to search the car for more weapons. During the search, the police found a "blackjack." A drug sniffing dog performed another search with negative results.

The Medfield Police charged the 58 year-old Jackson with carrying a dangerous weapon, drinking alcohol in a motor vehicle, and a "number plate violation." His passenger was not charged. Let's look at this fairly simple matter from the perspective of a criminal defense attorney.

First of all, there are some questions with regard to the legality of the traffic stop. After all, when the police stop a car, they are conducting a "seizure" in a constitutional sense and the 4th Amendment prohibits unreasonable searches and seizure. If the stop of Jackson's car violated his 4th Amendment rights, then he may file a motion to suppress the blackjack and the open container. If successful, there will be no evidence to use against him, and the charges will be dismissed.

At a hearing on the motion to suppress, an experienced criminal defense attorney will ask: "What specifically did the Dover Police say was suspicious about Jackson's car?" The article did not say that Dover reported to Medfield that a car was coming with its plate light out. So what did they report? At the risk of being in some way insensitive to the parties, I am going to assume, for the sake of this discussion that Mr. Jackson is African American. If this is true, I wonder if Mr. Jackson feels that this contributed to the "suspicious" nature of his car. Mr. Jackson may feel that white person would not receive such scrutiny, and a white person driving with a license light plate bulb malfunction may not even be pulled over. If the stop was based on race, the motion will be allowed. You may be certain, however, that no officer involved will agree to that.

The police will rely on the allegedly malfunctioning plate light to justify the stop. The Dover Police, after all, may pass on information to the Medfield Police about cars traveling between the two towns without offending anyone's constitutional rights. And if a car, described as suspicious for any reason, is observed committing an actual infraction the car may stopped for that infraction. So, while it may seem a little fishy, and Mr. Jackson may feel that he was targeted inappropriately, the police will attempt to portray this as a routine traffic stop. Jackson has every right to challenge this.

There is more to it than just the stop. Even if a stop is justified, the police need additional justification to search a car. The plate light malfunction is a civil infraction. The same is true for the open container of alcohol. And having a knife in one's glove compartment is not a crime. Apparently, Jackson's license and registration were in order otherwise he would have had additional charges. As such, the police should have issued citations to Jackson for the plate light and the alcohol, and sent him on his way. That is the law.

So what was the justification for detaining the couple while the police searched the car? Well, the article says that after seeing the knife in the glove compartment, the police asked Jackson if they could search the car for weapons. The article does not say that Jackson answered "yes," but we may assume that the police will say that he did. After all, if he did not consent, then the search of the car was illegal. And if he did consent, then he waived his right to challenge its legality. This will be an issue of fact for the judge to determine in the event of a hearing on a motion to suppress.

According to the article, the drug sniffing dog was called because something that Jackson said to the police led them to believe that there may be drugs in the car. What could that be? I wonder if Jackson was really as unwise as he has been portrayed in the Patch. Was he unwise enough to be driving around with a bulb out while drinking a beer? Maybe. But, was he also unwise enough to give the police permission to search his car while knowing that it contained an illegal weapon? And unwise enough to drop hints to the police that here may be drugs in the car even though there were none?

What really happened and what may be proven in the Dedham District Court are two different things. One thing is for sure, Jackson will need an experienced criminal attorney if he expects his version of events to be established.

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Quincy Police Arrest Father and Daughter Accused of Stealing Christmas Deliveries

December 24, 2011

fedex.jpgQuincy District Court arraigned Michael Ritchie and his teenage daughter Jennifer this week after their arrests on charges of larceny under $250 and larceny over $250. According to an article in the Globe, a Quincy woman called the Quincy Police Tuesday after seeing a woman walk away from her home carrying a package that had been delivered earlier. The resident apparently told the police that the woman got into a white pickup truck which drove away.

The Quincy police "spotted a white Ford pickup truck with an American flag [decal] nearby and spoke with the driver . . . Michael Ritchie." Ritchie admitted to having been in the neighborhood from which the package was taken, but said he "was just visiting his daughter Jennifer." The police say that during this conversation, they saw a package in the back of the truck. Apparently this turned out to be the missing package. When the police questioned Jennifer, she admitted to stealing that package as well as others in the neighborhood.

The notoriety of these two defendants garnered national attention in an ABC News story covering the topic. The title of the story was "Holiday Grinches Steal Christmas in Mass." Quincy Police Captain John Dougan is quoted as saying that package thieves have been following delivery trucks and taking the packages from doorsteps before the recipients get home. The ABC story reported that the police caught Michael Ritchie with a set of speakers and a series of CDs. At Jennifer Ritchie's home, the police found allegedly stolen baby clothes and Hello Kitty items intended as gifts.

The Ritchies are not drawing much sympathy from the stories. In fact, a comment following the Globe story begins "Death Penalty!" That's obviously a bit strong, but it conveys an understandable human reaction to these allegations. No matter how one feels about the acts described, however, the actors are presumed innocent until proven guilty beyond a reasonable doubt. In fact, the more despicable the charge the more important it is for the rights of the accused to be protected. This starts with experience criminal defense counsel.

A few things that counsel likely will explore:

1. Did the woman that reported the theft describe the truck as a Ford with an American Flag decal? If so, that may be specific enough to justify the stop of the truck. If not, the stop may not be justified and everything discovered as a result of the stop may be suppressed with a successful motion to suppress physical evidence. End result - dismissal.

2. If the police suspected Jennifer Ritchie, did they give her an adequate Miranda warning before she admitted wrong doing? If not, then her statements may be suppressed with a successful motion to suppress statements. If these statements were the catalysts to the recovery of items from her home, then the suppression of the statements would also result in the suppression of the items found there.

3. Did the father know what his daughter was doing? Was he actually visiting his daughter in the area? Where did she live? Did she jump in his truck and throw the package in the back without telling her father where it came from? After all, she had other items in her home and it appears that her father has only been charged with the items in the truck. Surely, if anything was found in his home, it would have been reported. Moreover, the stories do not say that she implicated her father in her other thefts. I do not have all of the evidence that the police have. But, based strictly upon these news reports, isn't it at least possible that Michael Ritchie did not know what was going on? And if he did not, what of the facetious call for the death penalty?

A committed professional criminal defense attorney will not shy away from a difficult case and will press every angle for his client regardless of the popularity of the client or the charge. Without apology.

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Dedham District Court Arraigns Couple on Marijuana Distribution Charges

November 19, 2011

Weed and cash2.jpgMarijuana weighing more than 20 pounds and currency amounting to $110,000 was seized from locations in Norwood, Norfolk, Foxboro, and Plainville on Monday. The raids were conducted by a task force consisting of Norfolk County local police, Massachusetts State Police, and inspectors from the United States Postal Service. According to news reports, the task force raided all locations at approximately 7:15 a.m. that morning. Twenty eight year-old David Higgins and twenty three year-old Brittany Capece were arrested at an apartment on Winslow Street in Norwood. The police found at least ten pounds of marijuana and at least $70,000 there.

The Patch reported that in addition to the Norwood seizures, the police seized two cars and $3,000 in Plainville. They found seven more pounds of marijuana at the residence of Robert Gately in Foxboro. The police did not arrest Gately, but he was summonsed to appear in the Wrentham District Court on charges of possession of marijuana with the intent to distribute.

Higgins and Capece were not so lucky. They were arraigned in the Dedham District Court on the same charges but held on $50,000 and $25,000 respectively. They were also ordered to surrender their passports as a condition of their release. These bails were appealed and subsequently lowered to $10,000 and $5,000. Their pre-trial conferences are scheduled for December 6 in the Dedham District Court. When people are held on bails the law requires that the next court date be within 30 days.

There is no explanation as to why Gately, who was allowed to go to court on his own, received treatment different from Higgins and Capece, who were arrested and held on high bails. It could be that the Norwood residents were the main focus of the investigation. As such, the police, prosecutors, and Dedham District Court Judge may have assumed that they had access to large sums of money to make the high bails. Higgins, however, was still in custody as of Friday when the Norfolk Superior Court granted his appeal and reduced his bail to $10,000. The Superior Court reduced Capece's bail earlier in the week.

These raids were reportedly the result of an investigation that has been going on since September. The involvement of postal inspectors implies that the marijuana may have been shipped to or from the people accused. Often times these investigations begin with a suspicious package being opened or sniffed by a drug-sniffing dog. A dog sniff is not a search and can be done without a warrant. From there it is a matter of following the package and utilizing other investigative techniques.

The search of a residence does require a warrant. In this case the investigators would have to obtain warrants for all of the residences that they raided on Monday. In order to do this they would have to present evidence to a court which explained why they believed that marijuana and related evidence would be found at the locations at the time of the search. An experienced criminal defense attorney will gain access to the documents that the investigators presented. If the documents were legally insufficient to support the warrants, the attorney will have the drugs and money suppressed with a motion to suppress. This would result in a win for the defendants.

Twenty pounds is a fairly large amount of marijuana, and $110,000 is a large amount of cash, but these charges are not as severe as they appear. Possession of marijuana with the intent to distribute is a misdemeanor. The maximum punishment is up to 2 years in the house of correction or a fine between $500 and $5,000, or both. If the weight had been 50 pounds or more, the charge would have been trafficking and there would have been a mandatory state prison sentence possibility. The statute in this case provides for neither a state prison sentence, nor any mandatory sentence at all. Moreover, a person sentenced to the house of correction is eligible for parole after serving ½ of the sentence. So the worst case scenario here is 12 months in jail. It should also be noted that if convicted of these charges the Registry of Motor Vehicles will suspend the defendant's driver's license for 2 years.

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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.

2. PROOF OF HIGGINS' INTENT TO DISTRIBUTE MARIJUANA.
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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