Boston Criminal Defense Lawyer Blog

One of the most valuable tools that an aggressive and successful defense attorney has in his or her arsenal is the motion to suppress evidence. Whether a case is in the Lowell District Court, Peabody District Court or Lawrence District Court the viability of filing a motion to suppress evidence should always be considered when a client is charged with an offense in which the Commonwealth must prove possession to secure a conviction against a defendant. Boston area criminal Defense Attorney Kathleen M. McCarthy has successfully litigated motions to suppress evidence in the Massachusetts Superior and District Courts. Whenever a client is charged with possession of a controlled substance, possession of a controlled substance with intent to distribute, trafficking in a controlled substance, possession of a firearm, possession of ammunition or possession of a dangerous weapon a Massachusetts criminal defense attorney should consider filing a motion to suppress evidence. If a motion to suppress evidence is successful that is often the end of the case.

STANDING

In order to be in a position to file a motion to suppress a defendant must have standing and an expectation of privacy. Standing generally means that a person is legally in a position to file such a motion. Whenever a defendant is charged with an offense in which the Commonwealth must prove possession to convict a defendant, such as unlawful possession of a firearm, G.L. c. 269 § 10 9h), he has automatic standing to contest the reasonableness of the search under Article Fourteen of the Massachusetts Declaration of Rights. Commonwealth v. Amendola, 406 Mass. 592, 601 (1990) [adopting doctrine of “automatic standing” where defendant is charged with a possessory offense and seeks to exclude evidence under the Massachusetts Declaration of Rights]. Whether an individual has a reasonable expectation of privacy is usually a separate--but related issue. In Commonwealth v. Kirschner, 67 Mass. App. Ct. 836 (2006) the Appeals court recognized that a defendant charged with a possessory offense is relieved of the burden of showing an expectation of privacy. See, Commonwealth v. Frazier, 410 Mass. 235 (1991).

STANDING/EXPECTATION OF PRIVACY

Under the Fourth Amendment, the question of whether the defendant has standing to challenge a search or seizure is merged with the determination of whether the defendant had a reasonable expectation of privacy in the place searched, and a defendant has no standing if he has no reasonable expectation of privacy. Rakas v. Illinoi, 439 U.S. 128, 138-39 (1978); Commonwealth v. Mubdi, 456 Mass. 385, 391 (2010). In contrast, under Article Fourteen, the question of standing remains separate from the question of reasonable expectation of privacy. Mubdi, 456 Mass. at 391; Commonwealth v. Williams, 435 Mass. 203, 207-08 (2009); Commonwealth v. Frazier, 410 Mass. 235, 244 n. 3 (1991). “This separation matters most in cases where a defendant is charged with a possessory offense, because Article Fourteen gives a defendant automatic standing to challenge a search of a private place, such as an automobile or home, in which the object he is alleged to possess is found.” Mubdi, 456 Mass. at 392. Where a defendant has automatic standing, he does not need to show that he has a reasonable expectation of privacy in the place searched. Id. “The practical consequence of automatic standing is that, if a defendant is charged with illegally possessing drugs or firearms that were seized during a search, the defendant may succeed in suppressing such evidence where the search was unconstitutional, regardless of whether he has a subjective or objectively reasonable expectation of privacy in the place where the drugs or firearms were found.” Id. at 392-93.

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If you are looking for an experienced and successful defense attorney for any drug crime, firearm offense or violent crime Attorney Kathleen M. McCarthy will bring good results and hard work to your case. She recently successfully litigated a motion to dismiss and suppress evidence in a Massachusetts Superior Court. The defendant was initially charged with being a career criminal, illegal possession of a firearm and improper storage of a firearm as the result of a search of a motor vehicle in which the defendant was a passenger. Attorney Kathleen McCarthy filed a number of pre-trial non-evidentiary motions including a motion to dismiss the career criminal portion of the indictment. She argued that the grand jury was not presented with the requisite number of previous offenses to charge the defendant as a career criminal. A superior court judge agreed and allowed the motion without a hearing. This eliminated the mandatory minimum state prison sentence that the defendant faced. This, however, was not the end of the case.

The defendant was still facing the illegal possession of a firearm charge that carried a mandatory committed sentence of eighteen months in jail if convicted. Attorney McCarthy conducted a thorough pre-trial investigation and filed a motion to suppress evidence based on the illegal search of the car that the defendant was a passenger in.

The Commonwealth claimed that local police officers responded to a local street after receiving a report that there was a “suspicious” car idling outside one of the buildings. During an evidentiary hearing Attorney McCarthy established that when the police arrived there was no car “idling.” The police officers approached the car that the defendant was in and questioned the driver. Apparently, the driver did not have a valid driver’s license and was arrested. The defendant, passenger in the vehicle, was allowed to go the nearby police station to bail out the driver. In the meantime the police conducted what they claimed was an inventory of the car and found a firearm and two ski masks.

Successful defense attorneys file these motions to zealously defend their clients. The motions usually assert that the evidence should be suppressed for the following reasons:
• said evidence was not seized pursuant to a lawful arrest;
• it was not in plain view;
• there was no probable cause;
• there was no warrant;
• there were no exigent circumstances;
• the search was not pursuant to a lawful stop-and-frisk;
• the search was not consented to;
• the search, stop and/or inquiry of the defendant was conducted without probable cause, reasonable suspicion or exigent circumstances;
• the search was a “pretextual search”;
• the search was not done in conformity with written police inventory policy;
• the stop of the defendant was unlawful;
• the search of the defendant and the car was unlawful;
• the stop and search was in violation of the Fourth and Fourteenth Amendments of the United States Constitution, Article 14 of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts and G.L. c. 276.

In Massachusetts, individuals have an expectation of privacy in their homes, person and in appropriate circumstances a motor vehicle. Attorney McCarthy filed a motion to suppress claiming that he police had no right to tow the car because it was parked in a private area and the owner of the building, or anyone for that matter, did not call requesting that the car be towed. Following an evidentiary hearing the superior court judge agreed with Attorney McCarthy and allowed the defendant’s motion. Thus, the Commonwealth will not be allowed to introduce the gun and masks into evidence. The result is that the government does not have a case.

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According to The Lowell Sun, seventeen year old Sergio Figueroa, a student at Lowell High School was escorted out of school and charged with a number of criminal offenses in Lowell District Court including threats, disturbing a school assembly and possession of marijuana with intent to distribute. According to the Sun, after a teacher told him to leave the classroom the student made a motion similar to shooting and made threats to the teacher. Apparently, after the police caught up with Figueroa, he did not have a binder with him that he had with him when he left school. The authorities eventually searched his locker and found a bag containing four smaller baggies of what they believe is marijuana and one-hundred thirty five dollars in cash.

Although all of the facts of the case are not known at this time, it would be important for an experienced defense attorney to examine all of the facts that led to the decision by law enforcement to search the student's locker. In Massachusetts an individual has a right to an expectation of privacy on his or her person and in his or her home. Depending on the circumstances, this "expectation" can extend to cover motor vehicles. Whether a student has an "expectation of privacy"in his or her locker could depend on the rules promulgated by the school. An argument can be made that it is a privilege to go to school and the students must abide by the rules. However, the constitutionality of any "rules" and whether the proper procedure was followed can often be the subject of a viable motion to suppress evidence.

Filing a motion to suppress evidence is one of the many tools that an aggressive defense lawyer has in his or her arsenal. In cases in which a person is charged with illegal possession of an item i.e., a firearm or a controlled substance, examining the circumstances surrounding any stop, search and seizure is a good place to start in mounting a successful defense. In the event that evidence is suppressed, and the Commonwealth cannot prove its case, the case is often dismissed by a judge or nolle prossed by the prosecution.

In Massachusetts, if a defendant loses a motion to suppress, in most circumstances that decision cannot be appealed unless, and until, the case goes to trial and a defendant loses and appeals his case. Thus, even if a defendant loses a motion to suppress, that he or she should have won, if a defendant then pleads guilty, the defendant cannot then appeal the improper denial of the motion to suppress. However, if the Commonwealth feels that a motion was improperly allowed, the prosecution can appeal. The rationale for this is that the Commonwealth will not be able to prosecute without the evidence so in the interest of fairness, they are allowed to appeal the allowance of motions to suppress. However, if a defendant is found not guilty, the Commonwealth has not right of appeal.

Continue reading " Lowell High School Student Faces Drug And Related Charges In The Lowell District Court " »