Boston Criminal Defense Lawyer Blog

Erik Lang, 20, was arrested for possession with intent to distribute marijuana on February 27th after a traffic stop in North Andover. Police allegedly stopped Lang after learning that his license was suspended. Further investigation revealed that Lang had there-quarters of a pound of marijuana with him. Police told the local newspaper that the amount indicates that Lang had the marijuana for “more than personal use.” Lang has been charged with driving after license suspension, possession with intent to distribute marijuana, and possession of marijuana.

Contrary to what the police officer suggested to the newspaper, quantity of drugs is far from dispositive on intent to distribute. There are a number of indicia considered in assessing whether there was an intent to distribute drugs. Factors considered include: the packaging of the drugs; presence of paraphernalia associated with distributing drugs, such as scales, plastic baggies and cutting agents; presence of large amounts of cash; and multiple cell phones. Lack of intent to distribute is a common, and often viable, defense in these types of cases.

As a Massachusetts drug crimes defense lawyer, I’m interested in the nature and extent of the “investigation” that followed the stop. There have been important legal search and seizure developments in the context of marijuana-related searches ever since possession of one ounce or less of marijuana became a civil, as opposed to criminal, offense in Massachusetts. Depending on the facts and circumstances of the encounter, Lang might have solid grounds for a motion to suppress evidence.

I’d also be interested in whether there were other occupants of the car, whether this defendant owned the car, and the location of the alleged marijuana. These factors are important in considering a lack of possession defense. For example, if the car did not belong to this defendant and the alleged drugs were in the trunk or under a seat, he might be able to argue that he did not know that the drugs were in the car and that he did not have control over the drugs.

Some tend to forget that possession of more than an ounce of marijuana is still a criminal offense in our Commonwealth. Here, it seems inappropriate that the defendant is charged with both possession and possession with intent. When the Commonwealth charges two drug violations , the specific controlled substance supporting each charge must be a “separate item” or “separate unit of prosecution.” In this example it appears that both the possession and possession with intent charges are based on the same item.

Continue reading "North Andover Man Charged With Possession Of Marijuana With Intent To Distribute" »

As Massachusetts continues to grapple with the Annie Dookhan scandal, a second crime lab chemist has been arrested and will face charges relating to evidence tampering and drug possession. Sonja Farak, a 35-year-old Northampton woman who worked at the Amherst lab, allegedly substituted real drugs with counterfeit drugs to support a suspected drug habit. The lab will close temporarily.

According to Attorney General Martha Coakley, the “drugs were tested, they were tested fairly. The certificates were not impeached in any way, but we allege… that the drugs were then taken and in her possession.” Coakley claims that this case is not connected with the Dookhan scandal because the “motives are completely opposite” and because Dookhan and Farak exhibited different behaviors. Prosecutors believe that the drugs were for personal use and that there was no distribution or intent to distribute. Supervisors at the lab discovered a discrepancy in inventory and contacted state police. Farak previously worked at the Jamaica Plain lab. She will be arraigned in Eastern Hampshire district court. District Attorney David Sullivan issued a statement on Sunday indicating that his office is assessing the number of cases that may have been compromised by the chemist’s wrongdoing.

Police interviewed Farak in connection with the Dookhan scandal on September 12, 2012. Police reports indicate that Farak worked with Dookhan in Jamaica Plain before Farak started working at the Amherst lab. Farak told police that they worked on some cases together and found Dookhan to be friendly. She told police that she never noticed Dookhan doing anything improper and that she had no knowledge of anyone in the lab performing analytical procedures improperly. Farak never reported any wrongdoing in the lab during her career.
Even if, as Coakley has claimed, the Farak case is different from the Dookhan case in terms of motive, it seems to reveal that the Dookhan investigation is not being conducted as thoroughly as it should be. While police interviewed Farak about Dookhan, they apparently failed to look into Farak’s own history. It is also troubling that lab supervisors failed to notice that an employee was suffering from a heroin and cocaine addiction. One would think that supervisors in most lines of work would notice if an employee was showing up to the job while on, or while withdrawing from, heroin and cocaine. The fact that Farak’s apparent drug problem went undetected for some time is a further indication of a lack of oversight in our state’s drug labs. Now, perhaps more than ever, it is critical to speak with a Massachusetts defense attorney if you have a pending or closed drug case.

Continue reading "Another Massachusetts Drug Laboratory Chemist Faces Criminal Drug Charges" »

Kelly Arzate and Charles Berard, two Holyoke men, were charged Wednesday with cocaine trafficking and possession with intent to distribute marijuana after police conducted a “routine traffic stop,” according to local news outlets. A state trooper conducted the stop after midnight, allegedly because he noticed that Arzate’s license plate light was out. When he approached the car, he allegedly detected an odor of marijuana. He called for backup and ordered the pair out of the car. Troopers searched the car and allegedly recovered a bag of suspected cocaine in the center console, eight cell phones, $13,000 cash, and 15 pounds of marijuana, which was in the trunk, in individual baggies. Arzate and Berard were then arrested. Police estimate that the street value of the cocaine would have been $20,000 and that the street value of the marijuana would have been $4,000.

An experienced Massachusetts defense lawyer would immediately pick up on the fact that this exit order may have been illegal, and these two defendants might have strong grounds for a motion to suppress evidence. Because possession of one ounce or less of marijuana is no longer a crime in Massachusetts, the odor of burnt marijuana alone cannot justify an exit order. This is because exit orders must be based on reasonable suspicion of criminal conduct. Still, officers might be able to conduct an exit order of a driver if there is reasonable suspicion that the driver was operating the under the influence of marijuana. Here, there doesn’t seem to be any indication that Arzate was operating under the influence of marijuana. It’s telling that he was apparently not charged with that crime. Further, he was stopped not because he was driving erratically or in any way indicative of impairment. Rather, he was stopped simply because his light had gone out. There is no indication in news reports that Arzate exhibited any signs, such as blood shot eyes, of marijuana impairment. Also, it seems that there was no apparent reason for ordering the passenger, Berard out of the car. In order to do that, police would need reasonable suspicion of criminal activity, independent of the driver, on the part of the passenger. The alleged drugs here were apparently not in plain view, since the troopers allegedly recovered them from the console and the trunk. It does not seem that the defendants engaged in any activity that could be perceived as a safety concern. Finally, it is unclear whether the trooper smelled burnt marijuana or fresh marijuana. If he smelled fresh marijuana, that would further weaken the case for reasonable suspicion of OUI drugs. A skillful Massachusetts drug crimes attorney will likely be able to make a strong argument for suppression in this case. Successful motions to suppress often lead to dismissal of drug charges.

Continue reading "Two Holyoke Men Charged With Cocaine Trafficking And Related Drug Offenses " »

Annie Dookhan, former chemist at the Hinton State Laboratory Institute (also known as the Department of Public Health drug lab) in Jamaica Plain, admitted that she “messed up bad,” local media reported Wednesday. Dookhan was referring to her mishandling and contamination of drug evidence, fraudulent alteration of chain of custody documents and other misconduct, which has called into question evidence used in more than 30,000 drug cases.

Dookhan confessed that she has claimed that negative drug tests were positive and that she breached other lab protocol. She also confessed that for two or three years she had not even done the required tests on drug samples and that she forged the signature of a colleague certifying that equipment was functioning properly. As of Wednesday, at least 20 inmates had been freed, had bail reduced, or had their sentences suspended as a result of the drug lab scandal.

According to reports, some fellow chemists at the lab expressed concern over Dookhan months and years before the scandal broke. One chemist told police that he was “staggered” by Dookhan’s output of more than 500 analyses per month. An average chemist has an output of 50 to 150 analyses per month, according to that chemist. When that chemist brought his concerns to Dookhan’s supervisor in December of 2010, the supervisor’s explanation was that Dookhan skipped lunch breaks and brought work home.

Another fellow chemist noticed that Dookhan did not use a microscope, which is necessary to analyze suspected cocaine samples. He also said that she would do favors for police and prosecutors, mostly in Quincy drug cases. Dookhan reportedly told police that she did not understand the attention she has been receiving from the press. When police asked Dookhan if she ever considered the harm she was causing to others, she reportedly responded that “now and then” she would think about it. In addition to deliberately mishandling drug samples in tens of thousands of cases, Dookhan falsified her resume, claiming to have a master’s degree and to have graduated magna cum laude from Boston’s Latin Academy.

As a result of the drug lab scandal, Massachusetts criminal defense attorneys have been reviewing new and old cases to determine whether the Jamaica Plain laboratory and/or Annie Dookhan were involved in their clients’ analyses. Many have filed new trial motions, motions to vacate guilty pleas, motions for stay of sentence after trial or plea, and motions for post-conviction discovery. Those representing clients with open cases are carefully exploring whether drug analyses have been rendered suspect. The drug lab controversy has affected countless individuals accused and/or convicted of drug trafficking, distribution, possession with intent, and more.

Continue reading "Improprieties At Jamaica Plain Drug Laboratory Effects Thousands Of Drug Cases Ranging From Possession Of Controlled Substances To Trafficking " »

According to The Bristol County District Attorney, a multi-county investigation called “Operation Diesel Spill” came to a climax this past week with the arrest of thirty-eight year old Alexander Torres, Senior. The Brockton Enterprise reported that the arrest of Torres will put a “huge dent” in the distribution of heroin. According to the Enterprise, nine law enforcement agencies have been working in an extensive investigation that included the use of court-ordered wiretaps that cumulated with the seizure of 2.3 pounds of heroin that is estimated to have a street value of over $300,000.00. This coordinated investigation began last summer and resulted in drug raids in Attleboro, Taunton, Brockton and Central Falls Rhode Island. In addition to the arrest of Torres, it is expected that twenty-three people will be arrested or summonsed to court on related drug and firearms offenses.

If an individual is facing drug and or gun related charges as the result of an investigation and execution of a search warrant, there are many approaches that an experienced Massachusetts defense lawyer can take to successfully defend the accused. Initially, it is imperative to conduct a pre-trial investigation early on to determine whether there are any favorable witnesses. In any case in which a search warrant has been applied for and executed to search a person, home of vehicle it is imperative to thoroughly review the application for the warrant and the return of the search warrant.

A valuable tool in a Boston area criminal defense attorney’s arsenal is the ability to file a motion to suppress evidence and a motion to suppress statements in appropriate circumstances. The Massachusetts Declaration Of Rights and Article XIV of the United States Constitution provides that a private citizen enjoys an expectation of privacy in his or her home, car and person. In order to search an individual’s home the authorities must present reasons or “probable cause” in the form of an application for a search warrant to a clerk-magistrate. The application must proved reliable information that the contraband sought can be found at the specific location or on the specific person. Often, the affiant provides information from an “informant” [either reliable who has supplied information in the past or a concerned citizen] or an “unreliable” or first time “informant.” The affiant must establish the reliability and veracity of this information within the four corners of the affidavit. The reliability and veracity of the information is one of the areas in which an experienced drug defense lawyer attacks in the form of a motion to suppress evidence.

In other situations in which a defendant has been charged with any “possessory” offense [including drug and firearms offenses] the police also have to justify the stop, search and sometimes the exit order of a driver or passenger from a motor vehicle. These types of stops often occur when the police have not previously applied for a search warrant.

In Massachusetts, “[S]eizures conducted outside the scope of valid warrants are presumed to be unreasonable. In such circumstances, the burden is on the Commonwealth to show that the ... seizure falls within a narrow class of permissible exceptions.” Commonwealth v. Seng, 436 Mass. 537, 550 (2002), quoting Commonwealth v. Rodriguez, 378 Mass. 296 (1979). Searches without a warrant are per se unreasonable under both the Fourth Amendment and Article 14 of the Massachusetts Declaration of Rights, subject to only a few specifically established and well-delineated exceptions. Commonwealth v. Lewin, 407 Mass. 617 (1990); Mincey v. Arizona, 437 U.S. 385 (1978); Commonwealth v. King, 67 Mass. App. Ct. 823, 826 (2006). To justify a police investigatory stop under the Fourth Amendment and. Article 14 the police must have “reasonable suspicion” that the person has committed, is committing, or is about to commit a crime. Commonwealth v. Lyons, 409 Mass. 16, 18-19 (1990). Reasonable suspicion must be “based on specific, articulable facts and reasonable inferences therefrom.” Id. at 19 quoting from Commonwealth v. Wren, 391 Mass. 705, 707 (1984).

“[F]or a police investigatory stop to be justified under [Article 14 of Declaration of Rights] the police must have ‘reasonable suspicion’ to conduct the stop. To be “reasonable” ... the officer's suspicion must be grounded in specific, articulable facts and reasonable inferences [drawn] therefrom' rather than on a ‘hunch.’ ” Commonwealth v. Scott, 440 Mass. 642, 646 (2004); Commonwealth v. Antobenedetto, 366 Mass. 51 (1974); Terry v. Ohio, 392 U.S. 1 (1968); Commonwealth v. Silva, 366 Mass. 402 (1974). Under Article 14, a “seizure” occurs when “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Commonwealth v. Borges, 395 Mass. 788, 791 (1985). “[A] pursuit, which, objectively considered, indicates to a person that he would not be free to leave the area ... without first responding to a police officer's inquiry, is the functional equivalent of a seizure ..” Commonwealth v. Stoute, 422 Mass. at 789. “[A] stop starts when pursuit begins.” Commonwealth v. Thibeau, 384 Mass. 762, 764 (1981). [T]he burden is on the Commonwealth to show that ... police had reasonable suspicion, before pursuit began, that a person has committed, is committing or about to commit a crime. Commonwealth v. Comita, 441 Mass. 86, 91 (2004) (emphasis added.). If the pursuit commences without reasonable suspicion, the fruits of the pursuit, including items discarded by the person pursued while fleeing, must be suppressed as fruits of the illegal seizure. Commonwealth v. O'Laughlin, 25 Mass. App. 998, 999 (1988) (jacket thrown from car).

Relative to exit orders, Article 14 requires a reasonable suspicion of danger to the officer or others before either a driver or passenger may be ordered from a lawfully stopped motor vehicle. To justify either a search or an order to the occupants to exit the vehicle, the inquiry is whether a reasonably prudent person in the officer’s position would be warranted in the belief that the safety of the officer or others was in danger. Commonwealth v. Vasquez, 426 Mass. 99, 102-103 (1997); See also Commonwealth v. Williams, 46 Mass. App. Ct. 181, 183 (Article 14 does not allow the police to order the driver and/or passengers out of a motor vehicle during a routine stop unless there is reasonable suspicion based upon specific and articulable facts); See also Commonwealth v. Gonsalves, 46 Mass. App. Ct. 186, 189 (1999) (exit order to passenger requires reasonable suspicion grounded in articulable facts). So long as there is reasonable suspicion for safety concerns, the occupants may be ordered out of the motor vehicle. The standard is objective. A mere hunch or gut feeling that there is something wrong is not enough to justify the exit order, and a frisk. Commonwealth v. Hooker, 52 Mass. App. Ct. 683, 688 (2001). To justify either the search or the order to the occupant to exit the automobile, the Massachusetts Courts examine “whether a reasonably prudent man in the policeman's position would be warranted in the belief that the safety of the police or that of other persons was in danger.” ’ ” Commonwealth v. Santos, 65 Mass. App. Ct. at 124 citing Commonwealth v. Vazquez, 426 Mass. 99, 102-103 (1997) quoting from Commonwealth v. Santana supra at 212-213; See, Commonwealth v. Gonsalves, 429 Mass. 658, 661-663 (1999). “[T]o permit an officer, in the absence of any specific and articulable facts [establishing a reasonable apprehension of harm] to order the driver of a vehicle ... to step out of the vehicle [and then conduct a search] would be to invite random and unequal treatment of motorists.” Commonwealth v. Gonsalves, supra. See Commonwealth v. Stampley, 437 Mass. 323, 326 (2002).

The principle of proportionality also has application in determining whether an exit order is appropriate. In Commonwealth v. Torres, 49 Mass. App. Ct. 348, 350 (2000) the Appeals Court held that the officer used disproportionate force when he drew his weapon and ordered the occupants to lie on the ground when he merely wanted the backseat passengers to put hand on their head. A search of motor vehicle may be conducted so long as the search is limited to what is minimally necessary to dispel safety concerns. Commonwealth v. Vazquez, 426 Mass. at 103, Commonwealth v. Alvarado, 427 Mass. 277, 284 (1998).

The standard by which the permissibility of a frisk is determined is set forth in Terry as to whether under the totality of the circumstances, a reasonably prudent person would be warranted in believing the suspect might be armed and present a danger to the officer or others. Terry v. Ohio, 392 U.S. 1, 27 (1968). The search must be "strictly tied to and justified by" the circumstances which rendered its initiation permissible. Terry v. Ohio, supra, at 19, quoting from Warden v. Hayden, 387 U.S. 294, 310 (1967) (Fortas, J., concurring). A weapons search, unlike a search without a warrant incident to a lawful arrest, is not justified by any need to prevent the disappearance or destruction of evidence of crime. Terry v. Ohio, supra, at 29. See Preston v. United States, 376 U.S. 364, 367 (1964).

Continue reading "Taunton Man Faces Trafficking Heroin Charges As The Result Of A Lengthy Mulit-County Investigation" »

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.

Continue reading "A Legal Analysis Of The Relationship Between Standing And The Expectation of Privacy In The Context Of A Motion To Suppress" »

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" »

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" »

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" »

Thirty-two year old Guarionex Pratts is charged with trafficking over 500 grams of heroin and trafficking over 28 grams of oxycodone. The Lawrence Eagle Tribune reports that a tip to the Drug Enforcement Administration Tipline led to the search of Pratts North Andover apartment located at 26 Royal Crest Drive Apartment #6. Apparently, Pratts consented to the search of his apartment in which investigators found 2.2 pounds of heroin, hundreds of oxycodone pills, $5,000.00 cash, drug packaging materials and heroin packaged for what investigators claim was for sale to customers. Pratts faces a fifteen year mandatory minimum sentence just on the heroin charge alone. According to the Tribune, the street value of the heroin is estimated at $150,000 and the street value of the pills is said to be valued at approximately $2,000.00. There was another drug raid at Royal Crest this fall which netted 54 kilograms of cocaine. Acting North Andover Police Chief Paul Gallagher stated that he has been working with the management at Royal Crest to start a Neighborhood Watch Program, which they evidently need!

One obstacle that defendants charged with drug offenses often face is that they often face mandatory minimum sentences. For example, if a defendant is charged with possession with intent to distribute or distribution of a controlled substance in a school zone, possession with intent to distribute a controlled substance or distribution of a controlled substance as a subsequent offender or trafficking a controlled substance he or she faces at least two years to two years and a day from and after to twenty years in state prison. A defendant is often at the mercy of an unsympathetic District Attorney’s Office to either reduce the charge from a school zone or a second and subsequent offense to a first offense or reduce the amount alleged to have been trafficked so that a defendant can receive a reduced sentence. When a defendant is sentenced to a “mandatory minimum” sentence THE WHOLE SENTENCE MUST BE SERVED!” A defendant will not receive a reduction in time to be served based on good conduct or work.

That being said, there are many strategies that an experienced Boston area defense lawyer can employ to successfully defend these types of case. The following is a list of pre-trial evidentiary and non-evidentiary motions that, depending on the facts of a case, can be filed:
Non-Evidentiary
• Motion to Disclose Informant(s)
• Motion For Informant Regulations
• Motion For Disclosure Of Any Payment To An Informant
• Motion For Locations For School Zone Measurement
• Motion For List Of Experts
• Motion For Prior And Subsequent Bad Acts Of Defendant To Be Used At Trial
• Motion For Surveillance Location
• Motion For List Of Evidence Seized As The Result Of Any Search
• Motion For Certificate Of Analysis
• Motion To Sever Cases (If Applicable)
Evidentiary Motions
• Motion To Dismiss
• Motion To Suppress Stop And Evidence
• Motion To Suppress The Search And Evidence
• Motion To Suppress The Stop and Search And Evidence
• Motion To Remand Case To A Clerk’s Hearing (Misdemeanors Only)
• Motion For A “Frank’s Hearing”
• Motion To Suppress Statements

Continue reading "North Andover Massachusetts Man Faces Drug Charges Including Trafficking In Heroin and Trafficking In Oxycodone" »

Boston area criminal defense attorney Kathleen McCarthy recently secured the reversal of a Dorchester man's convictions for possession of cocaine in a school zone with intent to distribute. Following a jury trial a Boston jury convicted the defendant on possession of cocaine with intent to distribute in a school zone, possession of cocaine with intent to distribute in a school zone and possession of marijuana. Attorney McCarthy successfully argued that the defendant's state and federal constitutional rights to cross-examine live witnesses was violated by the introduction of the certificate of analysis relative to drugs as opposed to having the chemist that examined the product testify at trial.

If you have been charged with a drug offense or are looking to reverse a drug offense it is imperative that you have a Boston area lawyer that is knowledgeable on your side. Having an attorney that knows the law can make the difference between walking out of a courtroom or being held in the dock.

This argument stems from a recent U.S. Supreme Court decision Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527(2009). In Melendez-Diaz The Court concluded that an analysts’ affidavits were testimonial statements, and the analysts were “witnesses” for purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to “‘be confronted with’” the analysts at trial. Attorney McCarthy successfully argue that applying these tenet to the case at bar, the case must be reversed.

Continue reading "Attorney McCarthy Secures Reversal Of Dorchester Man's Conviction On Drug School Zone Violations" »

The Lawrence Eagle Tribune reports that a Lawrence Massachusetts man faces a minimum mandatory sentence of 10 years in state prison if convicted of charges stemming from a drug bust. Marcelo Perez, 48, of 210 Lawrence St., was charged with drug crimes including two counts of trafficking cocaine, two counts of unlawful possession of a handgun, two counts of unlawful possession of ammunition and possession of a dangerous weapon.

Three local authorities worked together focusing on suspected drug activity in the Dunkin' Donuts parking lot on Main Street in Haverhill Massachusetts. Reports indicate that when he was arrested Perez had loaded .38 caliber pistol and 305 grams of cocaine in his jacket. With the assistance of the Tewksbury K9 unit, police discovered a hidden compartment in the back floor of Perez's jeep. It has been reported that the authorties seized an additional 30.7 grams of cocaine another loaded handgun, a box of ammunition and a digital scale. Police estimated the street value of the cocaine at $6,500.

If you have been charged with any drug crime in Massachusetts, it is imperative that you have an experienced defense attorney on your side. Most drug arrests stem from a search that has been conducted by the police. Attacking the legality of the search is often times the first step to a successful litigation of a drug offense. Depending on the circumstances of the case, this is done by filing a motion to suppress evidence seized from a defendant, his or her car and/or his or her home or apartment. Attorney McCarthy has successfully litigated these types of motions. If the evidence is suppressed the government is left without a case.

Based on the recent Supreme Court decision of Melendez-Diaz v. Massachusetts, it is imperative that a qualified defense lawyer attack any drug certificate that the District Attorney attempts to introduce in order to establish that the seized substance is in fact an illegal drug. The Supreme Court has indicated that the Commonwealth cannot merely introduce a drug certificate to prove that a retrieved product is contraband. Based on this new case law, in most cases, the Commonwealth is required to produe a chemist that examined the item and determined that is was an illegal drug. The Courts and the District Attorneys' offices are scrambling to try to get around this requirement. If you find yourself facing drug charges you must have an experienced Massachusetts criminal lawyer on your side to fight for all of your rights.

Continue reading "Lawrence Massachusetts Man Faces Mandatory Jail Sentences Stemming From Drug And Gun Charges In Haverhill District Court" »

The Lawrence Eagle Tribune reports that a fifteen year old high school student has been charged with distributing marijuana in a school zone. According to reports, the juvenile is believed to be the person that sold marijuana to another student at the school. The principal recovered nine ten dollar bags of marijuana and twelve dollars on the juvenile. The juvenile is scheduled to appear in Lawrence Juvenile Court.

Although all of the facts in this case are not known, a defendant charged with distribution of marijuana or intent to distribute marijuana in a school zone faces a mandatory sentence of two years in jail. The fact that in Massachusetts possession of under an ounce of marijuana has been decriminalized has given many teenagers a false sense of security. Although straight possession of marijuana under an ounce is not considered a criminal offense, the possession of under an ounce of marijuana with the intent to distribute and/or the distribution of under an ounce of marijuana is a criminal offense with stiff penalties. Simply passing a joint or a small amount of marijuana to a friend is considered "distribution" in Massachusetts. There is no requirement that money pass from a "seller" to a "buyer" in order for the "seller" i.e., distributor, to be charged with distribution.

In this case, the juvenile was questioned and told the authorities that he sold the contraband in Lowell Massachusetts. Depending on the circumstances, filing a motion to suppress this statement may be appropriate. In Massachusetts, the police (or anyone acting under the color of the state) cannot interrogate or question a suspect who is in custody unless he or she has been advised of the "Miranda Rights." The "Miranda Rights" basically inform a suspect that he or she does not have to speak to the police, that he or she may contact an attorney, that anything he or she says can be used against him or her in court and that if he or she cannot afford an attorney one will be appointed to him or her. In the event that the statement is suppressed, the Commonwealth's case against the juvenile for possession with intent to distribute is significantly weakened if not destroyed.

The types of factors that a finder of fact examines to determine whether a controlled substance was simply "possessed" or "possessed with intent to distribute" are the following: Whether a scale was found: Whether a large sum of money was found; Whether any cuttting implements were found such as a mirror: Whether plastic baggies were found and whether there were any admissible incriminating statements made by the defendant. The presence of any drug paraphernalia is a factor that is carefully scrutinized.

If you have been charged with possession with intent to distribute a controlled substance or distribution of a controlled substance you must have an experienced Massachusetts criminal defense attorney on your side.

Continue reading "Lawrence High School Student Charged With Distribution of Marijuana In A School Zone" »

Many people applauded when the legislature "decriminalized" the offense of possession of marijuana that is one ounce or less. The new section changes possession of an ounce or less of marijuana from a criminal offense to a civil infraction and an offender receives a civil citation. For adults, this offense is now punishable by a $100.00 fine and forfeiture of the substance. However, if a person is under eighteen years old he or she must complete a drug awareness program. This program requires of a minimum of four hours classroom instruction or group discussion and ten hours of community service. A certificate of completion of the program must be filed with the Clerk of the local district court within one year of the offense or the offender may face higher fines and possibility a criminal charge. Furthermore, being charged with possession of marijuana can still be problematic and sometimes have legal consequences.

For example, it appears that many teenagers are looking at this offense as a "free pass" to smoke marijuana and drive -- it is not. If an individual is "high" and driving he or she can still face charges of driving under the influence of drugs. Furthermore, even if someone is in possession of an ounce or less of the substance admitting that he or she shared a "joint" with a friend or gave some of the product to another can result in being charged with distribution of marijuana. Informing the police that he or she intended to share the drug can result in charges of possession of marijuana with intent to distribute. In the event that a search is conducted and scales, baggies, a large amount of money, razor blades and/or mirrors [items often used to package contraband for distribution] are found when an ounce or less is involved, the police will likely charge those involved with possession with intent to distribute marijuana. Make no mistake about it -- these are serious criminal charges that carry the potential for jail sentences, license loss and have life altering consequences. If you are in the unfortunate position of being charged with distribution or intent to distribute marijuana within 1000 feet of a school zone you face the possibility of a mandatory minimum of two years in jail. Furthermore, if you are on probation and being drug tested, testing positive for marijuana may be a violation of your probation. Make sure you and your teenagers understand the pitfalls people have been facing by underestimating the teeth in this recent legislation.

Continue reading "Understanding The Pitfalls Of The New Marijuana Law" »

The Lawrence Police reacted when a group of neighbors complained about the occupants of a gray Toyota Camry being involved in what they thought were "drug transactions." The Lawrence Tribune reports that as a result of a police surveillance and a tip from a citizen, four individuals were arrested and charged with drug offenses. The charges ranged from drug offenses including distribution of heroin, possession of heroin with intent to distribute to possession of cocaine and possession of marijuana.

If you face criminal drug charges it is important that you have an experienced Boston criminal lawyer on your side. Although all of the facts of this case are not known at this time, gathering all of the facts that led to the arrest of these defendants is essential to mount a complete defense. In the event that the police did not have reasonable suspicion to approach the defendants and/or probable cause to search the individuals or the car, the case could be dismissed. Whenever someone faces drug chares as the result of a search of his or her person or car, the appropriateness of filing a motion to suppress the evidence must be evaluated. In most situations, the facts are such that the filing of the motion is the exercise of effective assistance of counsel.

Filing a motion to suppress is one of many tools that a qualified criminal defense attorney has in her aresenal. If a client is charged with any type of offense where the Commonwealth must prove possession, arguing that the defendant did not have possession and control of the object or substance is often a viable defenese.

Continue reading "Concerned Citizen Prompts Lawrence Police To Conduct Drug Surveillance That Leads To Arrest Of Four Suspects Now Facing Drug Charges " »

A Salem Massachusetts man, Edward Vidinha, charged with a subsequent offense of possession of heroin faces up to two and one half years in prison if convicted. According to The Salem News, Salem police officers approached Vidinha after they saw, what they claimed to be, a drug transaction. According to reports, the officers claim that they saw Vidinha throw a small bag, of what they believe to be heroin, to the ground before they approached him. Vidinha pleaded not guilty at his arraignment in Salem District Court but was held on $7,500.00 cash bail. It is believed that the judge imposed such a high bail because of Vidinha's lengthy record.

Although all of the facts are not known at this time, it appears that there may be a viable motion to suppress the evidence in this case. In Massachusetts, the police must have "reasonable suspicion" before approaching and individual and conducting a "threshold inquiry." Here, it appears that the officers claim that they saw what they believed to be a drug transaction between Vidinha and another individual. In this type of case, it is important to file pre-trial discovery motions requesting specific information relative to the officers qualifications to make such a determination. It is also critical to do a thorough pretrial investigation to determine whether the officers could have seen what they claimed to have seen from their location. There are numerous ways to attack the legality of the officers conduct. Attorney McCarthy is experienced in defending drug cases in local courthouses including Stoughton and East Boston.

Having an experienced Massachusetts defense attorney on your side to protect your rights is crucial to presenting a successful defense. If you have been charged with a drug offense, you must contact a Massachusetts trial attorney to ensure that the police did not violate your state and federal constitutional rights when they conducted any search of your person, car or home. A successful result relative to a motion to suppress often results in the suppression of incriminating evidence and is often the end of the case.

Continue reading "Salem Massachusetts Man Behind Bars And Charged With Possession Of Heroin" »

In Melendez-Diaz v. Massachusetts, 557 U.S. – (June 25, 2009), the United States Supreme Court held that in a prosecution for a drug offense the introduction of certificates of analysis from Massachusetts drug crime laboratories violated a defendant's constitutional right to confront witnesses against him at a trial. The Supreme Court recognized that the Sixth Amendment to the United States Constitution, provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The Court has been narrowing the exceptions that state courts have carved from the Constitution to make prosecutions easier and more convenient for the government. Melendez-Diaz relied on the holding in Crawford v. Washington, 541 U.S. 36, 51 (2004) in which the Court reaffirmed the basic tenet of the constitution that a defendant has a right to confront those “who ‘bear testimony’” against him. Crawford v. Washington, 541 U.S. 36, 51 (2004).

Melendez-Diaz, affirmed Crawford’s holding that a witness’s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. In Melendez-Diaz, the Court discussed that the Crawford opinion described the class of testimonial statements covered by the Confrontation Clause as follows: “Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id., at 51–52. The Court held that relative to a Massachusetts drug “certificate,” which the court concluded was the functional equivalent of an affidavit, there is little doubt that the document fell within the “core class of testimonial statements.”

This landmark decision will have the effect of forcing the government to meet its burden in all Massachusetts drug cases. Based on the language in the opinion, it also appears Massachusetts criminal defense attorneys should object during the prosectuion of gun offenses to the admission of ballistic certificates when the District Attorney moves to introduce them without a live witness. The reasoning in Melendez-Diaz requires the exclusion of the certificate as rank hearsay and a violation of the defendant's rights to confront witnesses against him or her.

Continue reading "Supreme Court Ruling In Suffolk County Cocaine Case Will Benefit Massachusetts Criminal Defense Lawyers " »

The shooting death of Robert Plaza, 32 of Lawrence Massachusetts marks what the police suspect is the fourth homicide in the city this year and the second in less than a month. The Lawrence Eagle Tribune reports that Plaza careened into a chain-link fence in front of a local assisted living building. When firefighters and concerned citizens attempted to pull Plaza from his vehicle they discovered a gun shot wound to his chest. He was pronounced dead at the hospital a short time later. The authorities are treating Plaza's death as a homicide and believe it was the result of a "drug transaction gone bad."

If you have been charged with a firearm offense or a drug offense you must contact an experienced defense attorney as soon as possible. In Massachusetts, a conviction for possession of a controlled substance, possession of a controlled substance with intent to distribute and possession of a controlled substance with intent to distribute in a school zone can result in a commitment to the house of correction or to state prison. A conviction for a firearm offense can result in a defendant serving a minimum of eighteen months in jail.

In order to properly defend against these types of crimes, a good Massachusetts trial attorney often files appropriate pre-trial motions. These motions include motions to dismiss and motions to suppress physical evidence and statements. Successful litigation of these types of motions often result in the dismissal of the charges.

Continue reading "Lawrence Massachusetts Man Killed Marking The City's Fourth Homicide Of The Year" »

Four mail carries who delivered mail in Lawrence Massachusetts have been charged with a number of offenses relating to receiving fraudulent prescriptions for Percocet from a long time receptionist at a North Andover doctor's office. The Lawrence Eagle Tribune reports that the receptionist and mother-in-law of one of the carriers, and another worker in the office, provided the prescriptions in the names of the carriers, which were then taken to local pharmacies to be filled.

The plot was successful until the doctor's office received a call from a Methuen pharmacy because a patient attempted to fill the prescription in the same week. Suspecting foul play, the Doctor brought in the North Andover police and the investigation led to the arrests four mail carriers, and two employees of the doctor. According to reports, the carriers were using the Percocet for themselves and not dealing them for profit.

The carriers were each charged with receiving stolen property, uttering a false prescription, obtaining drugs by fraud, and conspiracy to violate drug laws. The receptionist. who accordinf to the police, is the mother-in-law of of one of the carriers, was charged with larceny under $250, forgery, uttering a false prescription, obtaining drugs by fraud, and conspiracy to violate drug laws. The other employee was charged with larceny under $250, forgery and conspiracy to violate drug laws. The crew is due back in court on June 19th.

In order for the Commonwealth to secure a conviction against a defendant for conspiracy to violate the drug laws it must prove that there was an agreement between the parties or possession from which an agreement to posses s may have been incurred. In Massachusetts, the Courts have held that it is the agreement to possess the controlled substance with the intent to violate the particular controlled substance law that is the key not the actual possession of the contraband. If convicted for the offense an individual can receive imprisonment or a fine, or both, which punishment shall not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the conspiracy.

If you have been charged with any violation of the controlled substance act, you must have an experienced Massachusetts defense attorney on your side. Depending on the facts of the case, filing pre-trial evidentiary and non-evidentiary motions can lead to a favorable disposition. A successful trial attorney will file all necessary motions and fight for your rights from the arraignment through disposition.

Continue reading "Lawrence Massachusetts Mail Carriers Face Charges Of Uttering A False Prescription And Related Offenses " »

According to the Tri-Town Transcript, Blake Smith, of Boxford was arrested and charged with what police allege is marijuana in a school zone. According to the paper, the Topsfield police arrested Smith after a plain clothes officer saw him trying to sell drugs inside the Topsfield Village Shopping Center. Apparently, more than one ounce was found on the suspect and a search of the area netted $800.00 in cash and a scale in side of the suspect's car.

If you have been charged with a drug offense in Massachusetts, it is imperative that you contact an experienced drug defense attorney to get to work on your case. If you, your clothing, car or home was searched it may be appropriate to file a motion to suppress any evidence seized as the result of an illegal search. In Massachusetts, the police must have a reason to conduct a threshold inquiry and probable cause to search an individual. Successful litigation of any drug crime in Massachusetts is often set in motion with the filing of a motion to suppress. In the event that the court allows a motion to suppress, the government is often left without a case.

In order for the government to convict a defendant for possession of marijuana with intent to distribute in a school zone it must prove that the substance was marijuana, that the defendant had the intent to distribute it and that the offense occurred within a school zone. In order to demonstrate that an individual possessed the intent to distribute the prosecutor often points to large amounts of cash that was confiscated, scales and baggies. However, there are often innocent explanations for the presence of these items and presenting this explanation to the jury is critical to a successful defense.

Continue reading "Boxford Teenager Charged With Possession Of Marijuana With Intent to Distribute In A School Zone" »

According to The Lawrence Eagle Tribune, the FBI is alleging that Dr. Paul D. Weinstein used OxyContin prescriptions to entice a woman to buy his Lexis SUV. The paper reported that he offered to provide Oxycontin prescritions to the woman and an undercover government informant who was posing to broker the deal. The undercover agent recenty filed an affidavit in the U.S. District Court. Court papers allege that Weinstein made thousands of dollars selling illegal oxycodone prescriptions from his office in Lawrence, Massachusetts.

According to reports, during February and March of 2009 Weinstein sold the prescriptions to an undercover agent and a confidential informant. As the result of the execution of a search warrant the authorities retrieved evidence from his office. Weinstein faces up to 20 years in federal prison to be followed by up to three years of supervised release and a $1 million fine if convicted. He is due back in court on May 7th.

If you are charged with the distribution of a controlled substance the penalties are harsh. For example, the charge of distribution or intent to distribute a controlled substance in a school zone or in a park calls for a mandatory jail sentence of two years in prison. In addition to the count of distribution or intent to distribute a defendant faces and on and after sentence on the "school zone" violation. An experienced Massachusetts defense attorney will often file a motion to suppress physical evidence and a motion to suppress statements as a first line of defense in cases where a search warrant has been executed and where a defendant has made inculpatory statements without being given his or her "Miranda Warnings." If the police confiscated illegal substances and drugs from your person, motor vehicle or home a motion to suppress is often filed in appropriate circumstances. If you are charged with a violation of the Massachsuetts drug laws, an experienced Massachusetts trial attorney will often argue that the government did not have reasonable suspicion to conduct a threshold inquiry of a defendant and lacked probable cause to conduct a search.

Continue reading "Doctor Accused of Selling OxyContin From His Office In Lawrence Massachusetts" »

According to The Lawrence Eagle Tribune, police executed a search warrant inside a Haverhill Massachusetts apartment and found illegal controlled subtances and a big surprise --- an alligator. According to the police, following the raid on a High Street apartment in Haverhill they arrested Daniel Tiberio, 20 and William Morris, 40. The pair was charged with trafficking in cocaine and conspiracy to violate drug laws.

It was reported that the police found an alligator that was fed mice and rats. According to an Animal Control Officer the reptile, which was two feet long when it was discovered, could grow to be as large as thirteen feet. The animal was transported to an animal shelter.

In Massachusetts, in order to legally enter the home the police must have had a valid search warrant. In these circumstances, the police would have to present facts establishing probable cause for a clerk magistrate to issue a warrant. There are different types of warrants that a clerk may issue. For example, in certain situations the warrant may allow for any person present to be searched and/or indicate that the police do not have to knock before entering the premises. This type of warrant is commonly referred to as a "no knock" warrant.

If you have been charged with an offense as the result of the execution of a search warrant it is imperative that you contact an experienced defense attorney. The probable cause to issue the warrant and ultimately search the area must be within the four corners of the affidavit filed in support of the search warrant. In most circumstances, if a defendant challenges the affidavit, the government is limited to rely on the four corners of the affidavit to argue that there was sufficient information presented to the clerk to issue the warrant. Depending on the circumstances of the case an aggressive Massachusetts attorney can file a motion to suppress raising a number of issues including that the area searched was beyond the scope of the warrant, the apartment or home searched was the wrong home and the police did not have a valid reason to search every person present.

Continue reading "Haverhill Massachusetts Men Charged With Trafficking In Cocaine and Conspiracy" »

Last week Lawrence, Massachusetts police were out looking for a 1990 Toyota Camry wagon. Lawrence officers had received information from Haverhill police that the two men in that vehicle may have been involved in the stabbing and assault of two Newburyport men earlier that same evening. Officers spotted the vehicle and found Joel Sabino and Angel Hernandez in the car with a pound and a half of marijuana. Both were immediately arrested and charged with possession of class D with the intent to distribute the substance and a school zone violation. Also found was a kitchen in Hernandez's possession. It was reported that the knife might have been the weapon used in the stabbing. Apparently Sabino had been arrested one week earlier on unrelated charges. Both Sabino and Hernandez tried to avoid apprehension when stopped by running. They were unsuccessful.

Read Story: Stabbing Incident Leads To Arrest, Drug Charges Of Two Lawrence Men

No charges relative to the stabbing have yet been filed. If charges do issue they will likely be either assault and battery by means of a dangerous weapon, assault with intent to murder or both. Both of these crimes are felonies and carry a maximum sentence of ten years in state prison. Assault with intent to murder in Massachusetts is controlled by G.L. c. 265 Section 15. Assault and battery by means of a dangerous weapon is prohibited by G.L. c. 265 Section 15A. If charged, these cases will be prosecuted in the Haverhill District Court. The drug charges are likely being prosecuted in the Lawrence District Court.

Continue reading "Lawrence Massachusetts Men Arrested On Drug Charges May Have Stabbed Haverhill Man Earlier" »

As I am sure most people involved in the criminal justice system are aware the legislature recently changed the law relative to an individual charged with possession of marijuana that is one ounce or less. Possession of an ounce or less of marijuana had been decriminalized. The new section changes possession of an ounce or less of marijuana from a criminal offense to a civil infraction. For adults, this offense is now punishable by a $100.00 fine and forfeiture of the substance. Under the new law, an individual found to be in possession of marijuana simply receives a citation.

Experienced and successful defense attorneys must strongly argue that an odor of marijuana, whether burnt or fresh, does not provide probable cause for the police to search an individual, a car or a home. An experienced attorney would file a motion to suppress any marijuana and related evidence i.e., a scale, baggies and money, that the police confiscated at a result of search a person, car or home because of an odor of marijuana. Although prior to the decriminalization of marijuana, in certain situations the Courts held that the odor of fresh marijuana provided reasonable suspicion to search, that rule does not comport with the proposition that marijuana citations should function like traffic citations. See Commonwealth v. Garden, 451 Mass. 43 (2008).

If you have been arrested and charged with possession of marijuana, trafficking marijuana, possession of marijuana with intent to distribute in a school zone and/or distribution of marijuana and the search was based on an odor of fresh or burnt marijuana, an experienced Massachustts defense attorney must file a motion to suppress evidence. A reasonable line of argument is that similar to the fact that evidence of a traffic violation provides a basis to issue a civil citation not to search, even if the court believes that a police officer possessed the training and experience to smell marijuana, that would not provide a basis to search a car, a person or a home. Clearly, an amount of marijuana cannot be determined based on a smell of the substance. Therefore, an odor of marijuana is more likely to be indicative of a non-criminal infraction of possessing an ounce or less of marijuana. Accordingly, the police must not be permitted to presume a criminal offense based simply on an odor of marihuana. The smell of fresh or burnt marihuana, without more, does not suggest that a person is committing or about to commit a crime and does not provide probable cause to search under the new law.

Continue reading "Understanding The New Marijuana Law" »

Popular swimming phenom and eight gold medal winner Michael Phelps has been suspended by USA due to the picture of him holding what is believed to be a marijuana bong. The now famous picture of Phelps surfaced in Star magazine. According to reports, the incident occurred in November, when Phelps attended a house party while visiting the University of South Carolina. Phelps has apologized to his fans and referred to his behavior as regrettable. Phelps has never tested positive for any banned substance.

Phelps has been in the spotlight before for "regrettable behavior" including a previous conviction for operating under the influence of alcohol often referred to as driving under the influence or DUI in Massachusetts.

In Massachusetts, a conviction for driving under the influence can carry a sentence of up to two years in jail. The District Attorney has to prove that you were driving a car on a public way and that you were under the influence of alcohol. Any one of these areas should be challenged when defending an OUI case in a Massachusetts. To prove operation the District Attorney does not have to show that you were actually driving. Massachusetts Courts have held that starting the engine of the car or making use of the power provided by the engine constitutes operation. Massachusetts Courts have held that putting the keys in the car's ignition can be enough to establish operation.

Continue reading "Michael Phelps Suspended For Three Months By USA Swimming" »

A State Police Trooper pulled over a car claiming that the driver was traveling "too close" behind the car in front of it in the passing lane. The Trooper asked the driver for his license and registration. The driver produced a valid passport however, the Trooper ordered him out of the car. While the driver was standing at the rear of the car, the Trooper frisked and searched him. During this search the Trooper felt what he believed to be a vile in the driver's front right pocket. He retrieved the vile and found which he believed contained oxycontin pills. After placing the defendant under arrest, the Trooper searched the car and found a grater with residue of a controlled substance.

The driver was arrested and charged with illegal possession of controlled substances. I filed a Motion to Suppress Evidence claiming that the stop, search and subsequent confiscation of the vile and its contents from the defendant and the retrieval of the grate from the car violated the driver's state and federal constitutional rights to privacy.

The motion specifically moved to suppress from the use in evidence of all evidence seized from ththe driver or from the car. The supporting reasons that I gave were the following:

1. said evidence was not seized pursuant to a lawful arrest;
2. it was not in plain view;
3. there was no probable cause;
4. no warrant;
5. no exigent circumstances;
6. not pursuant to a lawful stop-and-frisk;
7. not consented to;
8. the search and/or inquiry of the defendant was conducted without probable cause, reasonable suspicion or exigent circumstances;
9. the search was a “pretextual search”;
10. the search was not done in conformity with written police inventory policy;
11 the 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.

Following an evidentiary hearing, the judge agreed with me and allowed the motion to suppress. Based on this ruling, the Commonwealth had no case and moved to dismiss all charges against the driver.

If you, a loved one or a friend is charged with possession of drugs, possession with intent to distribute drugs or trafficking in controlled substances contact Boston area Attorney Kathleen M. McCarthy immediately and I can get to work on your case.

According to the Lowell Sun, police officers observed a driver of a car and his passenger engage in a drug transaction. As a result of these observations, the police pulled the car over and determined that the driver's license to operate was revoked. The police found bags of marijuana and a 9 mm handgun on the passenger and cocaine and illegal prescription drugs on the driver. The driver's girlfriend gave the police permission to search the home that the couple shared and the police retrieved what is believed to be cocaine, bullets, a 9 mm handgun and a shotgun. The driver was charged with multiple counts of illegal possesssion of controlled substances with intent to distribute and firearm offenses.

If you are charged with a violation of the controlled substances act or with a firearm offense it is crucial that you contact an attorney as soon as possible. If you are charged with possession with intent to distribute a controlled substance in a school zone or distribution of a controlled substance in a school zone you face a mandatory sentence of two years in prison. Similarly if you are charged with possession of a firearm you also face a mandatory minimum sentence. To successfully defend against these types of cases it is necessary to file appropriate pre-trial non evidentiary and evidentiary motions. These motions include requests for informant information, measurement of the place of the alleged offense to the school and motions to suppress the stop and/or physical evidence. Contact Kathleen M. McCarthy today if you are charged with these types of offenses so that she can get to work and successfully defend you.

On September 21, 2007, a local Police Officer observed a motor vehicle in a residential area traveling at 30 miles per hour in a 20 miles per hour zone. The officer pulled the car over and when he called in his “stop” he allegedly observed the operator, later identified as the defendant, slide down in his seat and pulling his hand out of his pants. The officer ultimately determined that the defendant's right to operate a motor vehicle was suspended and the defendant was paced under arrest for operating with a suspended license. The officer conducted a pat frisk for weapons and did not find any.

During the pat search the officer observed that the defendant was wearing layered clothing and claimed that this attire was consistent with a person hiding drugs on himself. Upon returning to the police station, the officer conducted a strip search and found a substance he believed was heroin and glass pipes in the defendant's possession.

Attorney McCarthy filed a motion to suppress the evidence and argued that the confiscation of the heroin and paraphernalia violated the defendant's state and federal constitutional rights to a reasonable expectation of privacy. Specifically, she claimed that the seizure of the evidence was unlawful for the following reasons:

1. said evidence was not seized pursuant to a lawful arrest;
2. it was not in plain view;
3. there was no probable cause;
4. no warrant;
5. no exigent circumstances;
6. not pursuant to a lawful stop-and-frisk;
7. not consented to;
8. there was no reasonable suspicion or probable cause to stop and/or seize the car,
question the defendant and/or search the defendant;
9. and stop and search were 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 M.G.L. c. 276 §1 et seq.

Following an evidentiary hearing the judge allowed Attorney McCarthy's motion holding that the strip search of the defendant was overly intrusive and unreasonable.

Continue reading "Attorney McCarthy Successfully Litigates Motion to Suppress Evidence and Drug Charges Are Dismissed" »