Boston Criminal Defense Lawyer Blog

In Massachusetts, an individual can go to a local clerk's office and apply for a Harassment Restraining Order pursuant to Massachusetts General Laws Chapter 258E even if the parties have not been dating, are not related and have not been married. Chapter 258E provides the following three definitions of “harassment” warranting relief: (1) ”3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, abuse or damage to property”; or (2) a single act that “by force, threat, or duress causes another to involuntarily engage in sexual relations”; or (3) a single act that constitutes one of 12 enumerated crimes involving sexual assault, stalking, or harassment.

The first branch of harassment has five components and appears to be the most utilized portion of the statute for the issuance and extension of orders pursuant to this section. . The first requires that there be three or more acts of harassment. The additional requirements are as follows: (1) Each act must be aimed at a specific person; (2) Each act must have been both willful and malicious; (3) Each act must have been done with intent to cause fear, intimidation, abuse or property damage; and (4) Each act must in fact have caused fear, intimidation, abuse or property damage.

In may cases, a complainant goes to a local district court and applies for a temporary order that requires a defendant to stay away from the plaintiff, the plaintiff's home and the plaintiff's work. A judge must evaluate the available information and decide whether to issue a temporary order. If a temporary order is issued, then the defendant must receive notice of the order and its relevant terms for the order to be enforceable. A defendant usually has no knowledge of the fact that an order has been issued against him or her. After a temporary order issues, there is a hearing date, approximately fourteen days later, in which the defendant can appear and give his or her side of the story. If both parties do not appear the order will expire by operation of law at four o'clock that day. If the plaintiff appears and the defendant does not appear, and the plaintiff claims he or she is still in fear of the defendant, the order is usually extended. The order can be extended for up to one year, however, the judge has discretion to issue it for a shorter period of time. It is important to note that although a Harassment Prevention Order is a civil order, an alleged violation of it can land a defendant in a criminal court.

An order often requires that the defendant refrain from any contact with the complainant. The "no contact" requirement means that a defendant cannot have ANY contact, direct or indirect, with the complainant. Thus, emails, flowers, text messages and contact through a mutual friend would be considered a violation of the order. If the case involves a couple that has children, the judge may make some rulings relative to the parties arrangements for the children. However, most of these situations are best handled in the probate court.

If you have been served with a Harassment Prevention Order, it is important that you have an experienced restraining order attorney on your side. In the unfortunate situation that the order is extended, it can be appealed. At this time, the venue in which to appeal Harassment Restraining Orders has not yet been clearly defined. Pursuant to G.L.c. 211, §3, the Supreme Judicial Court has “general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly must 'demonstrate both a substantial claim of violation of [their] substantive rights and error that cannot be remedied under the ordinary review process.' Planned Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass. 701, 706 (1990)], quoting Dunbrack v. Commonwealth, 398 Mass. 502, 504, (1986); McGuinness v. Commonwealth, 420 Mass. 495, 497 (1995). Currently, G.L.c.258E does not provide any express appellate remedy from a district Court entering or extending such an order. Prior to Zullo v. Goguen, 423 Mass. 679, 672 (1972), review of restraining orders issued pursuant to G.L. 209A was sought pursuant to the superintendence powers afforded the Supreme Judicial Court under G.L.c.211,§3. Frizado v. Frizado, 420 Mass. 592, 593 (1995) [Challenging an order entered under 209A by suing G.L.c.211,§3 was proper]. However, in Zullo v. Goguen, 423 Mass. 679, 682 (1996) the Massachusetts Supreme Judicial Court directed the appeals from 209A orders to the Massachusetts Appeals Court by holding, “. . . unless and until the Legislature decides otherwise, litigants seeking judicial review of an order made pursuant to G. L. c. 209A are directed to the Appeals Court.”
The outcome of the pending case of Borwoski v. O’Brien will determine the proper venue for filing appeals from the issuance and extension of Harassment Prevention Orders. The case was scheduled for oral argument this month.

Continue reading " Defending Against A Harassment Prevention Order Issued Pursuant To Massachusetts General Laws Chapter 258E " »

The Lawrence Eagle Tribune reports that a Police Detective pulled over a car because he saw one of the passengers holding a bag "containing a green leafy substance." According to the Tribune, based on that observation the Lawrence Massachusetts Police Detective pulled the car, that was filled with what the thought was "marijuana smoke" over. All four occupants were charged with possession of marijuana with intent to distribute and conspiracy to violate the drug laws. The driver faces additional charges including operating after his license was suspended.

Although all of the facts of this case are not known at this time, it appears that based on these facts an experienced Haverhill defense attorney should file a motion to suppress evidence. As most in the criminal law arena are aware, Massachusetts recently decriminalized the possession of marijuana that is under one ounce.

The state and federal constitution provide that individuals have a reasonable expectation of privacy on their person and in their home. This expectation of privacy often extends to drivers and passengers in a motor vehicle. What that means, is that police officers must have probable cause to believe that a crime has been committed or is going to be committed before conducting a search. Even a threshold inquiry, which is considered less intrusive, must be supported by "reasonable suspicion" of criminal activity.

In this case, it appears that an argument can be made that even if the detective saw smoke, that would not be a reason to pull the car over. How would the detective know that the smoke was "marijuana" smoke as opposed to cigar or cigarette smoke? Furthermore, the possession of marijuana under an ounce is no longer a crime but treated like a civil infraction Another are to peruse would be to investigate how the detective was able to see the alleged "bag of marijuana." It seems that the likelihood of being able to see a clear plastic bag of anything in a moving vehicle, never mind being able to identify the substance is slim to none. Based on the facts available at this time, ti does not appear that the driver was committing any traffic violations. Accordingly, a strong argument can be made that the detective had no legitimate reason to pull the car over. Along the same lines, even if the detective smelled a "strong aroma of marijuana" upon opening the door, that does not necessarily support ordering the occupants out of the car and conducting a search. There is no indication that the driver was impaired, in fact it appears that he was not charged with operating under the influence of marijuana.

In the event that a motion to suppress evidence was filed and allowed, it is likely that would be the end of the case. However, even if the case went to trial these defendants have viable defenses. In order for the Commonwealth to secure a guilty on the charge of possession of marijuana with intent to distribute, they must prove beyond a reasonable doubt that a defendant possessed the substance with the intent to distribute. To prove "possession" the government must prove that the defendant had knowledge of the substance and the ability to control it. Thus, an argument can be made that the individuals that were not "holding" the bag did not have control over the substance. Additionally, in order to prove "intent to distribute" there must be some evidence that the defendants were going to share, sell or otherwise distribute the produce. In most cases large amounts of cash, scales, baggies, customer lists and cell phones are usually confiscated at the time of arrest to support this charge. It does not appear that there was any such evidence in this case.

Continue reading " Four Lawrence Massachusetts Men Face Possession Of Marijuana With Intent To Distribute And Related Charges In The Haverhill District Court " »