Recently in Search and Seizure 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 Possession with Intent to Distribute Charges Look Thin and Illustrate Questions About Mass. Marijuana Laws

marijuana.jpgMarijuana charges were brought against a couple after a traffic stop in Brookline early Sunday morning. According to the an article in the Milton Patch, Catherine Burns was driving her car with her date, Armond Smikle, as a passenger when the Brookline Police allege that she drove through a stop sign. The officer conducting the stop approached the vehicle and claimed to have smelled a strong odor of alcohol "emanating from Burns." The officer also alleged the usual symptoms - slurred speech and eyes that were bloodshot and "glossy."

The article then states that the officer "went to check their licenses." This is interesting. Why would the officer take Smikle's license? The law does not require that passengers carry identification, or even provide it to the police. Perhaps -- and this may be wishful thinking -- the officer was anticipating that the driver may be arrested and he wanted to know if he could let Smikle take the car and avoid the tow. After all, at that stage, there was no reason to suspect the passenger of a crime. Unfortunately for Smikle however, that changed almost immediately.

While checking the licenses the officer claims to have seen the couple reaching around to the back seat of the car. He also said that Smikle opened the door. All of this could have been innocent activity, but during an early morning stop, the police take no chances. The officer called for back up.

A bad situation got worse when one of the responding officers smelled "fresh marijuana" in the car. This is somewhat surprising. I know that many police officers are trained to recognize the particular scent of marijuana, but in circumstances like these it is amazing that an officer was able to make this detection. They were out on the streets of Brookline in the early morning hours with a woman who was giving off a strong odor of an alcoholic beverage, and an officer was able to individualize the scent of fresh marijuana coming from the same area. If there were large trash bags full the crop in the vehicle this would make more sense. But, the police would find only 2.9 ounces in the center console, which I assume was wrapped in plastic. Stunning. Their drug detection dog performed a follow-up sniff and only came up with a "smoking device." It is unclear how that device escaped the officer's scent-assisted inspection. After all, the pipe must have been used, otherwise the dog would not have focused on it, and as such one would expect an odor even stronger than that of raw marijuana.

The police charged Burns with Operating Under the Influence of Alcohol, and charged them both with Possession of Marijuana with the Intent to Distribute.

Why has the couple been charged with having an intent to distribute marijuana? It is not even a crime to possess an ounce or less, and there was not all that much more than that in the center console. There were no large sums of cash, scales, or packaging materials to support an inference of distribution. Sometimes it appears that, in light of decriminalization, prosecutors have forgotten that it is still a crime to possess more than one ounce. Should that not be the charge? Every amount over an ounce does not signify an intent to distribute. And the pipe indicates that someone in the car most likely intended to smoke it, not sell it.

Moreover, Smikle would be correct in wondering why he has been charged with having anything to do with the marijuana it at all. Where is the evidence that he possessed it? Even if he shared the officer's sense of smell, and thereby knew that there was pot somewhere in the car, that knowledge does not go very far towards proof that he possessed it, much less that he was contemplating any sales.

What about the smoking device? The article described it as "plastic and hollow." Apparently they were not charged with possession of drug paraphernalia. This, by the way, is still a crime in Massachusetts. Will medical marijuana patients violate this law if they chose to use a pipe instead of rolling their own?

Putting aside the OUI charge, how would the case of Burns and Smikle look if either one of them had a valid prescription? For an answer a good place to start would be the proposed medical marijuana regulations, which allow for a medical marijuana patient to possess a sixty-day supply. The proposed regulations suggest that 10 ounces would be a reasonable sixty-day supply. That is, unless a physician determines that a patient needs more. How does 2.9 ounces denote an intent to distribute when 10-plus ounces is a reasonable sixty-day supply?

For one thing, I suppose we must have faith that medical marijuana use is very different from illegal recreational use. Prescription holders are expected to take their doses incrementally over time to address their diagnosed symptoms. Prescription holders are expected not share or sell their medical marijuana. Prescription holders are expected to refrain from driving under the influence of marijuana. And prescription holders are expected to possess only non-criminal ingestion devices.

Those accused of failing to follow medical marijuana rules and those without prescriptions would be well advised to seek experienced criminal defense counsel.

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Charges Need to be Sorted Out After Six Arrested in Van Containing Ammo/Knuckles

February 14, 2014

brass knucks.jpgCrimes involving "constructive possession," while difficult to prove, are easily charged when one is in the vicinity of something illegal. Guilty or not, you may be arrested and brought to court to defend yourself. Six young men riding in a mini van in Worcester last week will learn this soon in Worcester District Court.

According to Mass Live, a Massachusetts State Police trooper stopped a mini van for civil violations in a section of Worcester known for criminal activity on Saturday morning. The driver of the van, Jorge Luis Deya, did not immediately stop after the trooper activated his lights. In addition, the trooper claims to have seen the passengers "frantically moving" when the van did come to a stop. The trooper called for backup from the Worcester Police Department, approached the driver, and learned that Deya did not have a valid driver's license. The police ordered everyone to get out of the van and then they searched it. Inside, they found brass knuckles, 82 rounds of low caliber ammunition, and a bottle of wine.

Defense counsel will surely explore whether the exit order was a violation of each individual's constitutional right to be free from unreasonable searches and seizures. If one of the passengers had a valid driver's license why wouldn't that individual be allowed to drive away without the exit order and search? Would the events preceding the stop justify the failure to take this course? This must be analyzed.

Of the six occupants, two were 20 years old, three were 18, and one was 17. All, therefore, were adults for purposes of criminal court. None, however, had a license or firearms identification card which would allow him to have the ammunition or brass knuckles and none were old enough to possess wine. And this is not kids stuff. Possession of brass knuckles is a felony punishable by up to five years in state prison. Whether such a sentence is likely or not, a felony conviction itself has far reaching negative consequences. Especially for the futures of young people.

The article does not say where in the van the items were found. At some point this information will be relevant when a judge or jury decides individual culpability. The police, however, simply grouped them all together. And the police probably had no choice. We may safely assume that none of the items were in the actual possession of just one of the men. If they were, then the charges would be brought solely against him.

Many who read these typical stories quickly assume that they are all guilty in one way or another. The same may be said of stories involving underage drinking parties. After all, they must have all known what was going on. The law, however, does not work that way. Each individual is entitled to have his/her case examined with an eye toward a presumption of innocence. And just being there is never enough for a possession conviction.

In order to be convicted of possessing something, the prosecution may attempt to prove actual knowing possession such as having an item in your pocket. In the alternative, they may attempt to prove constructive possession. This will likely be the theory that the prosecution will use in this case.

As such, the prosecution will be required to prove all of the following beyond a reasonable doubt against each individual. 1) The individual had knowledge of the object, 2) the individual had an ability to control the object, and 3) the individual intended to exercise control of the object.

Let's take the example of one rear seat passenger. Where is the actual proof that he knew the objects were in the car? Maybe he saw and heard the others talking about the objects, but there is no proof of that. Even if there were, and even if all of the objects were within his reach, that's not enough for criminal possession. There must be proof that he had an intention to exercise control of the objects. Where will that proof come from? Unless he admitted that to the officers, it will not be susceptible of proof.

Isn't everyone in the car entitle to be presumed to be the person who was just along for the ride with no intention of taking actual possession of the brass knuckles, ammunition, or wine? After all, what would be worse -- letting a guilty party escape punishment, or convicting an innocent one for the sake of preventing that escape? Our law prefers the former.

Even some people who find themselves in this situation have doubts about their own criminal responsibility. Contacting an experienced criminal defense attorney,early, therefore, vitally important.

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Drug Charges May be Transferred from Wrentham District to Norfolk Superior Court

cash.jpgNorwood Police Officers arrested Jorge Vega on drug charges last week after a Norfolk County Police Anti-CrimeTask Force (NORPAC) investigation. According to the Norwood Patch, the task force had been watching Vega and eventually saw him involved in a transaction with another individual from whom they seized cocaine. A week later they successfully applied for a search warrant from the Dedham District Court. The warrant allowed them to search two vehicles "related to Vega" and Vega's Brockton home. The article implies that the police arrested Vega at the time of the search. They seized $30,000 in cash, but no drugs. He was charged with Subsequent Offense Distribution of Cocaine and Operating with a Revoked Driver's License. He was arraigned in the Wrentham District Court and held on $25,000 bail.

It is not clear if they found the money in the home or one of the cars. This and many other facts will make a difference. If found in one of the cars, how were the cars "related to" Vega? Did he own them or did someone else? Were the cars "related to" anyone else? What justification did the police have for getting a warrant for the cars? Since he was charged with a operating after suspension, it appears that his arrest followed a traffic stop. If the police found money in a car, defense counsel will explore these issues and likely file a motion to suppress.

If the police found the money in the home, where in the home? In an area that was "related to" Vega only? Or did other people live in there? Did someone else possess the money? The police obviously believe that it is drug money, but it is just money and we all hope that there is no crime in having a lot of it. The same search and seizure issues will apply here. What was the probable cause to justify the search of his home in Brockton? The sale must have happened in the jurisdiction of the Wrentham District Court, because that is where he was arraigned. If they found drugs at his house he would have been arraigned in the Brockton District Court.

There is plenty to work to do on the issues surrounding search and seizure. However, they only found money and that is not the main component of the case. The actual charges will hinge on the alleged sale of cocaine a week prior to the arrest. So what are the trial issues? If the buyer does not testify, her words to the police will be inadmissible hearsay. And I doubt that she will be willing to testify against Vega because that would involve self incrimination. So, it will be up to the police to prove the one alleged sale based solely on their observations. Could it be that they witnessed innocent activity and were predisposed to believe it was a drug sale. Without the buyer, who can actually say where she got the cocaine. The case, therefore, may not be as strong as it seems.

There are two reasons that this case may be headed for indictment and transferred to the Norfolk Superior Court. First of all, the article states that Vega has been charged with a Distribution (Subsequent Offense). There is no jurisdiction in the Wrentham District Court for this charge. Secondly, Vega has other drug charges pending in the Norfolk Superior Court and the District Attorney may not want to proceed against him to two locations.

In any event, I trust that Mr. Vega has much needed experienced criminal defense counsel on side.

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Felony Drug Charges Appear Excessive for Norwood Couple After Cape Arrest

December 31, 2013

images.jpgThe Truro Police stopped and arrested Lawrence and Susan Pandolfo of Norwood as they drove on Route 6 in Truro last Friday afternoon. According to the Cape Cod Community News an officer - traveling in the opposite direction -- thought they were speeding, turned around, and pulled them over. Both of the Pandolfos provided valid driver's licenses. Because Lawrence had recently purchased the car, however, the registration was not in order and the car had to be towed.

With the assistance of back-up officers, the Pandolfos were then frisked for weapons. The Community News article does not give any explanation as to why these two had to be frisked. Nor can I imagine one. Equally inexplicable was the subsequent search of Ms. Pandolfo's purse. Inside they found an "envelope containing an undisclosed quantity of $20 bills." So far, we have a couple in a car that may have been speeding without a valid registration while in possession of money.

An "inventory" search of the car, however, turned up open containers of alcohol, prescription pills, an "undisclosed amount of marijuana," narcotics (6 brown cubes) "packaged for sale," two pipes, and some bottles and cans of alcohol. All that certainly makes things look worse, but it does not appear to support the criminal charges -- Possession of Marijuana with Intent to Distribute; Possession of Class B Substance With Intent to Distribute; and Possession of Class C Substance With Intent to Distribute.

Since no one was offering anything for sale, the prosecution will have to look elsewhere for proof that either or both of the Pandolfos intended to sell anything. That proof not only appears to be lacking, but much of the evidence points in the opposite direction. In fact, I would argue that the recovered evidence is more indicative of a party than a sales mission.

It was Friday afternoon (pay day) between Christmas and New Years and Ms. Pandolfo had twenties in an envelope. Not tens, fives, ones, or a combinations consistent with low level drugs sales. The prosecution may speculate about whether the twenties were from one larger level sale but that amounts to nothing. A connection between the drugs and the money is non-existent. If this case goes the way it should, the Pandolfos should be prepared to file a motion for return of the money.

The volume of drugs does not necessarily indicate an intent to sell either. There were six hard cubes of a Class B substance. The article does does not say how big the cubes were, just that they were "packaged for sale." There is no distinction, however, between something that is packaged for sale and something that is packaged for purchase. If someone buys something that had been packaged by a seller, that is how it is going to look, right?

As for the prescription pills, it is not even clear at this point whether the Pandolfos had a valid prescription. There is no law against taking your medication out of the marked bottles and combining them into a single bottle. And even if they did not have prescriptions, just having them does not mean they were for sale.

There were three individually wrapped bags of an undisclosed amount of marijuana. If it were large bags of marijuana, I'm sure that the police would have portrayed them as such. I have a suspicion that the amount recovered weighed less than an ounce and as such was not even criminal to possess.

Tellingly, the police found empty and full containers of alcohol and two pipes. Again, entertainment or enterprise?

There are other issues for defense counsel to explore vigorously. Was the stop and were the searches constitutionally permissible? Are both parties equally guilty? Having the same name and being in the same place is not enough.


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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 Distribution Suspect Proclaims Confidence in His Attorney

cuffs on lawyer.jpgDrug 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.

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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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Gun Charge Brought After Curious Search Circumstances

Gun charges were brought in the Roxbury Division of the Boston Municipal Court on Monday as a result of a State Trooper's search of a Cape Cod man's car. According to the Cape Cod Times the trooper stopped Roosevelt Wilkins of South Yarmouth for civil motor vehicle infractions on Tremont Street Saturday morning. When the trooper asked Mr. Wilkins for his license he allegedly said that it was in a bag in the trunk. I say "allegedly" because this is the exact location where the police found a .38 caliber revolver loaded with hollow point bullets.

As the trooper searched the trunk, Wilkins ran away only to be apprehended by nearby Boston Police officers. By running, Wilkins may have eliminated a possible line of defense -- that he did not know that the weapon was in the trunk. After all, flight may be used at trial to show what is called "consciousness of guilt." However, if the gun was actually in a bag that also contained his driver's license, he did not have this defense anyway.

So the case may come down to a motion to suppress the results of the search. I would bet that Mr. Wilkins will claim that he did not direct the trooper to the bag. Such a claim would make sense. If Wilkins had a valid driver's license, but it was not in his possession, he could have just said so and as a result simply received an additional civil charge. Why in the world would he tell the trooper that his license was in a bag where he was keeping a gun? Moreover, why would Wilkins point the trooper in the direction of the trunk at all?

Wilkins should challenge the search with a motion to suppress. He is entitled to a hearing where his attorney may cross examine police witnesses. He may also testify on his own behalf. If he is able to convince one of the excellent judges of the Roxbury Division that he did not consent to the trooper's search of the bag, the case could very well be dismissed. If not, he is looking at a mandatory minimum jail term.

The stakes are high, hence Wilkins is in need of an experienced criminal defense attorney to help him out of this jam. The most important step will be the motion to suppress.

A few other details.

First, the article quotes the police as having said that Roosevelt "lacked the permit to possess that kind of ammunition." I believe that someone misquoted the police, because they know that there is no special permit required to possess hollow points. A license to carry a firearm would cover that.

Second, the article quotes the Roxbury Division's clerk as saying that Wilkins was charged with unlicensed carrying of a firearm, unlicensed possession of ammunition, and a "third firearm charge." It is a safe bet that the third charge is "carrying a loaded firearm." This charge -- Chapter 269, section 10(n) requires an additional sentence beyond that required for carrying the gun itself.

Lastly, the article says that Wilkins received pre-trial probation for assault and battery in 2004. To some readers, this looks bad for Wilkins. But, it actually means that Wilkins does not have much of a record at all. That charge was a misdemeanor, it is over 8 years old, and he was not even convicted.

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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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Dedham District Court Arraignments for Men Caught in NORPAC Drug Bust

mushrooms.jpgThe 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.

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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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