Boston Criminal Defense Lawyer Blog

The Lawrence Eagle Tribune reports that twenty-one year old Hector Martes of Lawrence Massachusetts was rushed to the hospital after he was stabbed in his upper abdomen and rib cage. According to reports, Martes told hospital workers that while playing "beer pong" at his home he was stabbed after an argument erupted with his stepfather and brother. The police are still investigating the incident and Martes is listed in stable condition.

Although all of the facts are unknown at this time, it appears that one of the parties could ultimately be charged with assault and battery by means of a dangerous weapon. In order for the Commonwealth to prove this crime, it must prove beyond a reasonable doubt that a defendant intentionally touched another person with a dangerous weapon. Another theory that the government may assert is that a defendant engaged in reckless conduct that resulted in bodily injury. In the event that the defendant's step-father and/or brother are charged in this, potential defenses include misidentification by the victim as to who the perpetrator was and/or self-defense and defense of another.

It is also worthy to note that anyone questioned by the police is not under any obligation to speak to them. If you find yourself in a situation where you are being questioned by the police you should refuse to answer any questions until you have consulted with an experienced Boston area attorney. If you choose to speak with the police anything that you say may be used against you in court. If a defendant is questioned by the police an experienced Lawrence Massachusetts area lawyer will review the circumstances to determine whether a motion to suppress the statement should be litigated.

Continue reading "Lawrence Massachusetts Man Stabbed At Home" »

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" »

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 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" »

According to The Lawrence Eagle Tribune, a Lawrence Massachusetts man was arrested and charged with carrying a firearm without a license, discharging a firearm within 500 feet of a building, and possession of ammunition without a firearms identification card. The Tribune reports that police were called to the Fern Street neighborhood due to reports of a man firing up to six gunshots "over his head." During the early morning hours, a neighbor heard commotion and went to his window where he saw a pair of men. One of the individuals was "holding a gun over [the other person's] head." After repeatedly firing the gun, witnesses stated that the man walked into an apartment on Fern Street in Lawrence.

The police arrested this defendant and three of his roommates. The paper reports that one of the roommates was charged with disorderly conduct and resisting arrest while the other two were charged as keepers of a disorderly home. Police recovered a .32-caliber semiautomatic handgun behind the home. Shell casings were also recovered from the street.

If you have been charged with any crime, you must contact a Massachusetts defense attorney to ensure that all of your rights are protected. In any case where "possession" of the alleged item is an element of the crime and experienced trial attorney can evaluate whether filing a pre-trial motion to suppress the evidence is a viable option. A successful litigation of a motion to suppress evidence means the suppression of the physical evidence and often times dismissal of the case against a defendant.

If you have been charged with a criminal offense, it important that you contact a criminal attorney familiar with the elements that the government must prove to secure a conviction. For example, to prove the crime of discharging of a firearm within 500 feet of a dwelling or other building in use you can face a penalty ranging from by a fine of not less than fifty nor more than one hundred dollars or by imprisonment in a jail or house of correction for not more than three months, or both. However, there are exceptions to the enforcement of this law that include the lawful defense of life and property; any law enforcement officer acting in the discharge of his duties; (c) persons using underground or indoor target or test ranges with the consent of the owner or legal occupant thereof; (d) persons using outdoor skeet, trap, target or test ranges with the consent of the owner or legal occupant of the land on which the range is established; (e) persons using shooting galleries, licensed and defined pursuant to statute; and (f) the discharge of blank cartridges for theatrical, athletic, ceremonial, firing squad, or other purposes in accordance with the statute.

Continue reading "Lawrence Massachusetts Man Charged With Firearm And Related Offenses " »

According to The Salem News, a Peabody jury acquitted Alfred Cochrane Jr. of carrying a firearm without a license and discharging a firearm within 500 feet of a dwelling. According to reports, the defendant was charged with the firearm offenses after his downstairs neighbor reported that a bullet had come through his ceiling. Coincidentally, at approximately the same time, Cochrane was treated at the Salem Hospital for a gunshot wound to his foot. The government did not produce the actual gun and the jurors acquitted the defendant.

If you have been charged with illegal possession of a firearm it is critical that you contact a Massachusetts defense attorney as soon as possible. Succesfsul litigation of these types of cases includes filing all relevant pre-trial evidentiary and non-evidentiary motions. Motions that are part of a trial attorney's arsenal include motions to suppress evidence, motion to suppress statements and motions to inspect and examine evidence. If convicted on this type of offense the penalties may include a mandatory eighteen month sentence.

Depending on the facts of the case a criminal defendant should consider the possibility of having an independent expert/witness examine the alleged firearm to determine whether it really is a firearm pursuant to the statute. In order to secure a conviction for this type of offense, the government must prove that a defendant was in actual, joint or constructive possession of the firearm. A skillful defense attorney can attack this element of the crime at trial. Additionally, the alleged firearm must be capable of discharging a bullet. A damaged or malfunctioning weapon, depending on the facts, may not meet the definition of a "firearm" in Massachusetts.

Continue reading "Peabody Massachusetts Man Acquitted On Gun Charges " »

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 " »

The Massachusetts Supreme Judicial Court, in a 4 to 1 decision, ruled that the Bristol County District Attorney's Office misinterpreted the "dangerousness statute" when proseuctor's moved for detention against defendants charged with illegal possession of a firearm. The Supreme Judicial Court ruled against Bristol County District Attorney C. Samuel Sutter’s interpretation of Massachusetts General Laws § 58A (1), which permits the Commonwealth to move for pretrial detention if a defendant has been charged with "any other felony that by its nature involves a substantial risk that physical force against the person of another may result."

In Commonwealth v. Young, following a § 58A hearing on October 26, 2007, a judge in the District Court, citing "firearm w/o license, FID" as predicate offenses, ordered that the defendant be detained pending trial. Young filed a petition for review of the pretrial detention order in the Superior Court. See § 58A (7). The petition was allowed and bail was set at $7,000 cash.

The Commonwealth subsequently sought relief from a single justice pursuant to G.L. c. 211, § 3, contending that possessory firearm offenses come within § 58A (1), which permits the Commonwealth to move for pretrial detention if a defendant has been charged with "any other felony that by its nature involves a substantial risk that physical force against the person of another may result." § 58A (1) (residual clause). The single justice reserved and reported the cases to the full court. The Court agreed with the defendant and held that unlicensed possession of a firearm does not manifest a disregard for the safety and well-being of others, and therefore lacks the "menace of dangerousness" inherent in the crimes specifically included in § 58A (1). Justice Spina, writing for the majority, explained that, "[U]nlicensed possession of a firearm does not, by its nature, involve a substantial risk that physical force against another may result.”

If you have been charged with a violent crime or with illegal possession of a firearm in Massachusetts it is crucial that you have an experienced defense trial attorney from the beginning of your case. Kathleen McCarthy will make sure that all of your rights are protected from the arraignment through disposition. In order to prove illegal possession of a firearm the government must prove that an individual was in illegal possession of a working firearm. To prove possession the prosecutor must convince the jury that the defendant had actual physical or constructive possession of the alleged firearm. In order to prove constructive possession the government must prove that the defendant had the intent and ability to control the alleged firearm. They must also prove that the alleged weapon was capable of firing. If the firearm was not successfully fired on the first attempt, that is a fertile grounds to develop a successful defense.

Successful litigation of a weapons offense usually includes filing and litigation many non evidentiary and evidentiary pretrial motions. Non evidentiary motions often include a motion to inspect the firearm and for the defendant's expert to present during any testing [DNA, fingerprinting and test firing]. In this type of offense, as with most offenses when an individual is charged with illegal contraband, an evidentiary motion to suppress physical evidence should be filed.

Continue reading "Massachusetts Supreme Judicial Court Rules Illegal Possession Of A Firearm Is Not Enought To Trigger A Dangerousness Hearing" »

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 Lowell Sun, the police are searching for Dennis King, 25 years old, from South Lowell Massachusetts for shooting a pregnant woman who was inside of her Lowell apartment. Although the police have not released the victim's name, the paper reports that the police responded to reports of gunfire and found the woman inside of her apartment. The pregnant woman was shot in the chest and the right shoulder. According to reports, there is an arrest warrant for King who faces three counts of armed assault with intent to murder and aggravated assault. It is believed that the gun has not been recovered by the police. The woman and the unborn child are currently listed as in stable condition in a Boston Massachusetts hospital.

The Sun also reports that King was arrested in January and charged with driving with a suspended license and giving a false name and Social Security number to police. According to reports, King has also previously been arrested for domestic assault and battery.

If you have been charged with a violent crime including assault and battery, assault and battery by means of a dangerous weapon, possession of a firearm or any crime related to domestic violence, including violating a restraining order, it is imperative that you contact an experienced Massachusetts defense attorney as soon as possible. Convictions for violent crimes can result in incarceration for up to life or twenty years in prison. Convcitions for certain possession of firearm offenses may result in a minimum mandatory sentence of eighteen months. Depending on the circumstances, such as if the gun is loaded, a defendant may face two consecutive eighteen month mandatory minimum sentences. Developing a defense of mistaken identify or filing appropriate pretrial motions to suppress or dismiss are steps that must be taken early on in a case.

Continue reading "Lowell Massachusetts Man Sought In The Shooting Of A Pregnant Woman" »

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" »

The Malden Observer reported Jon D'Orlando, a Department of Conservation and Recreation Ranger assigned to the Massachusetts State House was arrested and charged with possession of a Class B substance (Cocaine and Suboxone) and conspiracy to violate drug laws. It is alleged that D'Oralndo received the product from Luis Villa-Posada, of Winthrop Massachusetts. Villa-Posada, was also arrested following the alleged drug deal and charged with trafficking in cocaine, conspiracy to violate the drug law, and drug violation near a school or park. Both men were released after posting bail.

According to reports police officers were assembled to execute a search warrant in Malden Massachusetts and saw D’Orlando enter the passenger side of car driven by Villa-Posado. After traveling a short distance the car stopped and D'Orlando left the car and drove away in his own vehicle. When D'Orlando got out of his car the police saw him drop a bag that they believe contained cocaine.

In order for the Commonwealth to prove that a person is in possession of an object, it must demonstrate that the individual had knowledge of the substance and had power, ability and control over it. If an item is found on an individual it is ordinarily easier for the District Attorney to meet its burden. However, if the contraband is found in an apartment, house, car, jacket or other location the government's job is more difficult. In the event that the object is not found actually on the defendant's person the Commonwealth must prove "constructive" as opposed to "actual" possession of it.

Continue reading "Malden Massachusetts Man Charged With Possession of Controlled Substances" »

A two count felony complaint issued charging rhythm and blues singer Chris Brown with assault and criminal threats on a person referred to as "Robyn F." "Robyn F." is believed to be fellow singer and girlfriend Rihanna. According to news reports, Brown briefly appeared in a Los Angeles Court House and the arraignment was postponed until April 6, 2009. It has been reported that an affidavit has been filed indicating that Brown repeatedly puncehd "Robyn F." and that during the altercation her mouth filled up with blood that spilled over into the car. Many sources reported that the physical altercation took place after Rihanna read a text message from a former girlfriend on Brown's phone. Although Rihanna was not in court it was reported that she did not want a restraining order to issue that would prevent Brown from contacting her.

As a result of the incident Rihanna apparently received serious injuries including bruises to her face. Rumors have been circulating that the couple may have recently become married. In Massachusetts one spouse cannot be forced to testfiy against another spouse. This is commonly referred to as the marital privilege. The privilege belongs to the witness and not the defendant. Therefore, if the victim wants to testify he or she can waive the privilege and the Commonwealth can call him or her to testify at trial. Furthermore, even if a witness invokes the marital privilege if there is other evidence that the state can present during a trial the case can still go forward.

In Massachusetts, cases involving domestic violence often are prosecuted without the cooperation of the alleged victim. The prosecution may collect evidence from other sources. For example, if a search warrant was executed, evidence [such as bloody clothing or in some cases weapon(s)] may have been collected to support the government's case. Also, the 911 tape may provide some evidence that the prosecution can use.

In Massachusetts, the use of the information on the 911 tape is not always admissible because the defendant has a right to confront witnesses. However, in certain situations the Massachusetts Courts have held that the state can use the tape. If you are facing criminal charges and the prosecution is attempting to use a 911 tape it is imperative that you contact an experience Massachusetts defense attorney to move to have the tape excluded from evidence. The exclusion of this evidence often destroys the Commonwealth's case and results in an acquittal or a dismissal.

Continue reading "Chris Brown Formally Charged With Two Felonies" »

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" »

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.

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.

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" »