On September 12, 2008, the Massachusetts Appeals Court reversed Harold Pierre’s conviction for possession of a firearm holding that the search conducted by the police at the time of the defendant’s arrest was unlawful. The police were conducting a surveillance in an effort to arrest the defendant on an outstanding warrant. Positioned in the area of Pierre’s home, the police observed him exit his residence and walk towards his car. After observing the defendant, the police announced their presence and ordered the defendant, and the individuals that he was with, not to move and to show their hands. The defendant complied and dropped a white plastic bag that he was carrying and put his hands in the air.
One member of the group with the defendant disobeyed these orders and entered the car through the rear passenger door. A police officer observed this individual take a firearm from his waistband and put “something” under the front seat where a firearm was eventually recovered. That individual was charged with possession of that firearm. Pierre was placed under arrest within “thirty seconds” of putting his hands in the air. The white bag that the defendant had dropped was placed in the car because it was raining. A police officer testified that sometime between a half hour and an hour after the car was brought back to the station he assisted in doing an inventory of the car. During this “inventory” he picked up the white plastic bag and removed a pair of pants from the bag. When he removed the pants from the bag, a firearm fell out. Pierre was charged with possession of that firearm and possession of ammunition.
It is well settled law in Massachusetts that under the Fourth Amendment to the United States Constitution and the Article Fourteen of the Massachusetts Declaration of Rights a search conducted without a search warrant are presumed to be invalid. See Katz v. United States, 389 U.S. 347, 357 (1967); Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 226 (1992). When the police conduct a warrantless search the burden is on the Commonwealth to prove that the search fell within one of the narrow exceptions to the warrant requirement. In the event that you, a family member or a friend, are charged with a crime in which possession is an element that the Commonwealth must prove, the experience and knowledge of a Boston Criminal Defense Attorney is necessary in order to mount an attack on the search that led to the possession charge. By successfully challenging the police conduct in searching an individual, home, car or other location, the Court will suppress the evidence and the case will likely be dismissed.
In the Pierre case, the defendant argued that the search of the white plastic bag was improper because it did not fall into any of the exceptions to the warrant requirement. The Commonwealth argued that the search of the white plastic bag was proper as a “search incident to an arrest.” However, the defendant argued, and the Court agreed, that the search of the plastic bag after the defendant was arrested and the car had been towed was not a valid search incident to an arrest. In Massachusetts, the police may search the area within the person’s immediate control as long as the search is conducted contemporaneously with the arrest. The Massachusetts Courts have limited the spatial and temporal scope of searches that are conducted pursuant to an arrest. The Massachusetts Appeals Court reversed Pierre’s conviction and re-articulated the principle that a valid search incident to an arrest must occur quickly and close to the area of the incident and be considered part of the “natural part of the arrest transaction.” Commonwealth v. Turner, 14 Mass.App.Ct. 1023, 1024 (1982).
The filing of a motion to suppress evidence is the first step in defending against a charge of possession of a firearm, possession of marijuana, possession of cocaine, possession of a dangerous weapon and any other charge in which the Commonwealth must prove possession to convict a defendant. The Law Office of Attorney Kathleen M. McCarthy has the knowledge and experience to successfully defend possession cases in the Boston area.