Massachusetts Criminal Lawyers Blog

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Issues regarding search and seizure. Motion to Suppress.

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

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

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

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

Issues of Proof. Trial

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

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

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

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

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.

Continue reading "Gun Charge Brought After Curious Search Circumstances " »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUES:

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

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

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

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

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

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

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

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

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

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

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

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

Issues:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The 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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