Boston Criminal Defense Lawyer Blog

The Lawrence Eagle Tribune recently reported that twenty-seven year old Luis Nunez of Lawrence Massachusetts has been charged with possession of maijuana with intent to distribute, possession of marijuana with intent to distribute, possession of cocaine with intent to distribute in a school zone, possession of cocaine with intent to distribute and resisting arrest. According to the Tribune, police responded to the area of Bennington Street and saw a parked car and heard loud music coming from inside. Apparently, a man was seen dancing in the Bennington Street area.

The paper indicated that when the police checked Nunez's pockets they found a substance that they believe is cocaine. When the defendant was being booked at the police station the authorities claim that he was in possession of three small bags of what they think is marijuana. The defendant was charged with the above described drug related crimes and resisting arrest.

Although all of the facts of this case are not known at this time, it appears that the defense should examine the circumstances that led up to the police “finding” the alleged controlled substance in the defendant’s pocket. The Fourth Amendment to The United States Constitution protects individuals from unreasonable searches and seizures. In other words, individuals in this country enjoy a reasonable expectation or privacy relative to their person, home and other protected areas such as in their office and car. Here, Nunez had an expectation of privacy on his “person” unless the government can demonstrate that the authorities had probable cause that Nunez was committing, had committed or was about to commit a crime. Another exception could arguably be that there were “exigent” circumstances that eliminate the need for the police to get a warrant before searching Nunez. These circumstances generally include a situation in which the officers are in fear for their safety or for the safety of others. Based on the available information from this article, it does not appear that there was any indication that Nunez was armed or dangerous thus, this is likely not an exception that would apply to the facts in this case.

An experienced Massachusetts Criminal defense lawyer would likely file a motion to suppress in this case. The defendant could move to suppress the stop and search of the defendant at the Bennington Street area and the search of him during the booking process. The defendant may claim that the fact that the police were called to Bennington Street did not justify them searching Nunez’s pockets. In fact, depending on the circumstances, once the police arrived and saw the defendant, they could have just told him to turn down the music and be on this way. Even though there was apparently music coming from the car, the defendant was not charged with any criminal or civil violations relative to the operation of the vehicle. Thus, a viable argument could be made that the police had no right to search Nunez at the scene. If the search at the scene it held to be unconstitutional then the marijuana confiscated from the search of Nunez at the police station would also likely be suppress as “fruits of the poisonous” tree.

Continue reading " Lawrence Massachusetts Man Charged With Possession Of Cocaine With Intent To Distribute In A School Zone, Possession Of Marijuana With Intent To Distribute In A School Zone And Related Charges " »

The Salem News reported that a Salem District Court Judge dismissed one criminal count of threats to commit a crime against a Marblehead police officer, forty-one year old Christopher Adkerson of Lynn. Apparently, a distraught Adkerson told his wife that he was going to kill himself and that he would take them too. However, when his estranged wife questioned who he was referring to, Adkerson never specified anyone.

Massachusetts General Laws Chapter 275 section 2 and Massachusetts decisional law provides that in order to be convicted for "threats" to commit a crime a defendant must have both the intention and the ability to carry out a threat and the circumstances must justify apprehension on the part of the recipient of the threat. Furthermore, the recipient of a threat does not have to be the victim of the threatened crime. For example, in the recent case of Commonwealth v. Hamilton,, 459 Mass. 422 (20110) the Supreme Judicial Court held that there was sufficient evidence to convict a defendant for threats to commit a crime when the defendant threatened a probation officer's daughter because there was evidence that the defendant intended that the threat be forwarded to the officer's young daughter through the probation officer. A defendant who blocked the path of a car, glared at its occupants, addressed the individual's with closed fists stating that he would "wipe the grin" off the victim's face and stopped his car twice close to victim and looking at the victim and his son with a "menacing grin" was appropriately convicted for criminal harassment.

In the Adkersen case, the judge held that Adkersen's threat was not directed at a specific victim and therefore, the conduct was not conduct forbidden by the statute. According to the News, Adkerson's conduct had recently been "erratic" however, his wife claimed that he had never been physical with her or their daughter.

Another crime that is often charged in conjunction with threats to commit a crime is criminal harassment. Massachusetts General Laws Chapter 265 Section 43 A provides that anyone who "willfully and maliciously" directs conduct at a specific person over a period of time establishing a pattern that seriously alarms that person and the conduct causes a reasonable person to suffer "substantial emotional distress" can be punished for up to two and one half years in jail or by a one-thousand dollar fine or both. The Massachusetts Supreme Judicial Court has held that three or more incidents is required in order to prove a pattern of harassment. Examples of conduct that would constitute criminal harassment include the posting of fliers advertising concert tickets and cars for sale that listed the complainant's phone number and hang up calls. The "substantial" distress must be more than minor or passing anxiety.

Continue reading " A Salem District Court Judge Dismisses Charge Of Threats To Commit A Crime Against A Marblehead Police Officer " »

As most in the legal community know, possession of an ounce or less of marijuana has been decriminalized in Massachusetts. That does not mean that it is not "against the law" to possess and ounce or less of marijuana, it simply means that a fine is the potential penalty, similar to a speeding ticket or another traffic violation. If the individual is an adult a $100.00 fine is imposed and the marijuana is confiscated. In the event that a person under eighteen is found to be in the possession of the substance, he or she must attend a drug awareness program. However, the legislature has not decriminalized possession of marijuana with intent to distribute, distribution of marijuana or trafficking marijuana. Furthermore, operating under the influence of marijuana is a criminal offense.

In Commonwealth v. Cruz, 459 Mass. 459 (2011) , the Massachusetts Supreme Judicial Court discussed the effects that the decriminalization of a possession of marijuana can have on traffic stops by police officers and subsequent searches of the car, driver and passengers. In Cruz, the Court upheld the lower trial court's suppression of evidence holding that a civil citation should have issued for the car being parked next to a hydrant however, reasonable suspicion of criminal activity was necessary to further detain the driver and probable cause is necessary to support an exit order and search of the car. Thus, from a defense point of view, the decriminalization has been a step in further securing an individual's right to be free from unlawful searches and seizures.

As briefly discussed above, the law does not exempt an individual from all crimes that relate to marijuana. A person can still be charged with illegal possession of marijuana with intent to distribute, distribution of marijuana and trafficking of marijuana, even if the amount is under an ounce if other factors are present. Furthermore, if the intent to distribute or distribution occurs in a school zone a defendant can face a mandatory sentence of two years in jail. Items that are often associated with the distribution of marijuana are scales, baggies, razor blades, cutting agents and a large amount of cash.

A practical approach to defending a client charged with any drug offense include examining the facts to determine whether a motion to suppress the stop, motion to suppress the evidence and motion to suppress the search should be filed. Furthermore, a motion to dismiss is also often appropriate in circumstance in which there is clearly not enough to infer that the defendant actually distributed or intended to distribute the substance.

Continue reading " Practical Effects Relating To The Decriminalization Of Possession Of Marijuana Under One Ounce On Massachusetts Criminal Cases " »