Articles Posted in Drug Crimes

A recent news article states that a man from Marlborough was arrested on Thursday on charges of possession of cocaine with intent to distribute, possession of cocaine, possession of marijuana with intent to distribute and two counts of a drug violation in a school zone, as well as conspiracy to violate Massachusetts’s drug laws. The man allegedly told police after he was arrested that he picks up as much as 2 ounces of cocaine per week to sell in Marlborough; police further allege that he admitted to selling marijuana while being questioned at the time of his arrest.  The man allegedly told police that he sells drugs to support his son.

Marlborough Police, state police with search dogs and agents of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives reportedly went to the man’s home at approximately 11:15 a.m. Thursday with a search warrant. Police reportedly conducted surveillance and handcuffed the man after he came outside to his car. Police then reportedly searched his home. Police allege that they found packaged marijuana and several thousands of dollars in cash in the man’s home, located at 21 Preston St. in Marlborough. Police also allege that they found two digital scales, often used for weighing drugs, with white residue that tested positive as cocaine. The man’s home is located near a day care center, which is why he is facing a drug violation in a school zone.

The man posted and was released on $250 bail Thursday, according to record. However, when he allegedly failed to appear in court on Friday for his arraignment, a warrant was issued for his arrest.

The man reportedly has three other open cases at this time, including a charge of possession of a class B substance with intent to distribute in Lawrence District Court, breaking and entering in the daytime with intent to commit a felony, and knowingly receiving stolen property. Most of the charges he faces are felonies.

The man is facing jail time if he is convicted of the crimes with which he is charged. Since he is charged with intent to sell cocaine in a school zone, he is facing a mandatory minimum two years of time in a house of corrections, even if this is his first offense. Additionally, that sentence will have to be served consecutively after any jail time he receives from the underlying charge of possession with intent to distribute. This rule means that he would have to serve the two years for being in a school zone after he serves his time for possession with intent to distribute. Since the man has other open charges, as well, he could be facing even more jail time if convicted of those charges.

The possession with intent to distribute in a school zone laws in Massachusetts are quite severe. A person can be convicted of a drug violation in a school zone if they are found committing the underlying drug crime within 300 feet of a school or 100 feet of a public park or playground between the hours of 5:00 a.m. and 12:00 a.m. You can be charged with this crime even if you are in your own home at the time of your arrest if your home is located near a school. Because the laws require a mandatory two year sentence if you are found within a school zone, the District Attorney’s Office has significant leverage in any plea negotiations that may occur in the case.

Additionally, failing to appear in court can have ramifications in the future if you end up being arrested again. Judges are hesitant to release defendants on personal recognizance or low bail amounts if the defendant has a history of failing to appear in court, even when that defendant has only been arrested and failed to appear one time. Failing to appear in court after an arrest is called a “default,” and every default makes it more likely that your bail amount will be higher the next time you are arrested.

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Four teens were arrested this Tuesday in Framingham for possession of marijuana with intent to distribute and conspiracy to violate Massachusetts’s drug laws. Three of the teens arrested were over 17 and charges were filed in District Court. A 16-year-old teen from Framingham was also arrested and will face charges in the Juvenile Court.

Police allegedly stopped the Toyota one of the boys was driving on Nicholas Road for illegally passing another car. Upon speaking to the driver, police allegedly smelled marijuana and saw what appeared to be an ax in the vehicle. Police ordered all four people out of the car. However, what the police thought to be an ax was a pipe. Police spokesman Brandolini alleges he then found multiple containers of marijuana in the vehicle, equally about 2.5 ounces of marijuana, as well as a digital scale.

Two of the boys pleaded not guilty to their charges in Framingham District Court on Tuesday, August 28. They were released without bail and are due back in court on Oct. 12 for a pretrial conference. The 16-year-old was scheduled to be arraigned in Framingham Juvenile Court. The results of juvenile court hearings are not public. You can read more about the arrest here.

The four teens have been charged with possession with intent to distribute. This charge is commonly used to prosecute someone the police suspect of dealing drugs. Although there is no mandatory jail sentence with this charge, a prosecutor is more likely to seek jail time on this charge than on just a possession charge. Possession with intent to distribute differs from the heavier charge of trafficking. In order to prove that the teens in this case were trafficking marijuana, the police would need to prove that the amount of marijuana they possessed was in excess of 50 pounds.

Though this may appear to be a strong case against the teens, much could ride on what occurred during the traffic stop. There are many rules governing what police may and may not do in regard to traffic stops, including when police can stop a car and when police may or may not search a car. The police allege that they pulled the car over after witnessing it illegally pass another car; if this statement is true, the police likely had probable cause to stop the car. However, that does not give them an unlimited ability to search the car. Police are allowed to look for weapons when they search the car so if the police thought that the pipe was an ax, he is allowed to further inspect to insure his own safety. In this case some of the marijuana seems to have been in plain sight, which would likely not pose an issue because police are allowed to do a plain view search when they stop a car; however, the article states that some of the marijuana was found in a black bag. Since the police allege that they smelled marijuana when they stopped the car, and they allege that some of the marijuana was in plain sight, they may have had probable cause to open the black bag. Whether or not the police executed an acceptable search of the car remains to be seen. If the police overstepped their bounds, the teens may be able to get some or all of the evidence against them suppressed.

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Police arrested two men and two women in Framingham according to the Metrowest Daily News, on Tuesday August 7th, following a stakeout of a suspected drug house . Police were observing an apartment located at 2 Coburn St. in Framingham after suspecting the resident of selling heroin out of his home.

While watching the apartment, police saw a woman exit the residence and get into a brown Toyota Camry. She then picked up a man nearby; upon pulling her vehicle over, police allegedly observed hypodermic needles and other drug paraphernalia in one of the vehicle’s seats. The police asked the driver to step out of the car. Police allege that upon searching the driver, they found a bag of heroin hidden in her shirt. Police charged the driver with possession of heroin. Her passenger was taken to the police station as well. The passenger allegedly told police that the driver and he had gone to the Cobrun Street apartment to purchase heroin.

Police allege that they then returned to Coburn Street. Police state that they then found and arrested the resident. According to Police, they then searched his apartment and found what they believe to be heroin, cocaine, suboxone and hallucinogenic mushrooms, as well as drug paraphernalia.

The resident was charged with possession of heroin with intent to distribute, possession of cocaine with intent to distribute, possession of suboxone, and possession of hallucinogenic mushrooms. The charges of possession with intent to distribute have been charged as subsequent offenses, meaning that the resident has been previously convicted of these same charges. A charge of possession with intent to distribute a class b substance subsequent offense carries a mandatory minimum penalty of three years imprisonment with no possibility of probation instead of jail. According to police, the resident’s girlfriend was also at the apartment when police arrived to search it. She has been charged with being present where heroin is stored.

Framingham District Court Judge Paul Yee set the resident’s bail at $50,000. However, his bail was revoked due to an open superior court drug distribution case, as well as an open case in Framingham District Court in which he was charged with possession of heroin, assault on a police officer, and resisting arrest. The court also set a bail for the woman driving the car ($500) and for the passenger ($250).  The resident’s girlfriend was released on personal recognizance.

In this instance, the stakes are highest for the resident of the apartment, who is facing multiple charges of possession of drugs, as well as charges of possession with intent to distribute those drugs, subsequent offenses. He also has other open drug distribution and violent crimes cases. He is facing both misdemeanor and felony charges in multiple courts. Additionally, because police were staking out his home prior to his arrest, they most likely had evidence of his alleged drug distribution prior to his arrest. The resident is facing mandatory jail time if convicted of his charges. Someone facing such serious penalties needs an experienced criminal defense lawyer who can handle serious drug charges.

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The Springfield Republican reports on the case of a man who is now charged with cultivation of marijuana and possession of marijuana with the intent to distribute.

According to the article on March 8th police and firefighters responded to 44 Gail Street in Springfield for a report of a house fire. The first units to arrive at the home reported smoke coming from the basement area that had a strong odor of marijuana. Efforts were made to extinguish the fire and make the house safe. Allegedly after the home was safe to enter the police obtained a warrant and found 9 pounds of marijuana packaged for sale, and over 500 marijuana plants. The article did note that the plants were of varying sizes, which could mean many of the plants were mere seedlings and not actual thriving plants.

As was previously blogged on this site there has been some contradiction and confusion over marijuana laws in Massachusetts ever since voters overwhelmingly approved proposition two in 2008. That vote changed the law in Massachusetts and made possession of once or less of Marijuana no longer a crime. The kind of case that the man is facing is not at all affected by the vote decriminalizing small amounts of marijuana.

What will happen with the man’s case remains to be seen. Although at first glance this may appear to be a strong case for the District Attorney’s Office, a more thorough investigation of the facts is necessary to determine where the law may take this case. One important issue glossed over by the article is the exact timeline of when police sought a warrant, and what level of entry was made into the home prior to seeking a warrant. If police overstepped their bounds and turned a situation where they were performing a community care taking function into an investigation and evidence gathering mission prior to obtaining a warrant, the man may be entitled to have some of the evidence against him suppressed. Likewise, the prosecution will need to prove that he was actually living in the home, or participating in the activities there, and was not merely the leaseholder who came to the scene when he learned of the fire.

Although this is certainly a serious case the man can take comfort in the fact that he is not charged with trafficking marijuana. As the charges stand he is charged with cultivation and possession with intent. Neither of those charges carry a mandatory minimum jail sentence. Trafficking marijuana does carry a mandatory minimum jail sentence but, in order to prosecute the man for trafficking the District Attorney’s office must be able to prove the amount of marijuana at issue in the case is in excess of 50 pounds.

Certainly the best outcome for the man would be to win a motion to suppress the evidence, or to obtain a not guilty verdict at trial. However if he is unable to do either of those things, he may still have some hope for staying out of jail and preserving his criminal record. Negotiating a favorable plea disposition in a case like this can be difficult, but a skilled attorney may be able to not only keep the man out of jail, but also keep his criminal record preserved in a way that will limit the ability of future potential employers to see that he was ever brought to court on these charges.

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Regular readers of this blog will recall a post from December of 2011 where I outlined some of the ongoing confusion over Massachusetts marijuana laws. Last week the Supreme Judicial Court ended some of that confusion with the decisions issued in Commonwealth v. Shawn Keefner and Commonwealth v. Brian Dee.

In both of these cases the police found the defendants to be in possession of marijuana. The total amount that each defendant was alleged to have possessed was under one ounce. However, in both cases the police alleged that the way the marijuana was packaged demonstrated that they both intended to distribute the marijuana they had at some later point. In both cases the defendants were alleged to have had the marijuana in individually packaged bags.

In 2008 Massachussetts voters overwhelmingly approved the proposition 2 ballot initiative which decriminalized the possession of less than one ounce of marijuana. The defendants’ lawyers argued that because the new law decriminalized possession of marijuana under an ounce that they could not be prosecuted unless they possessed an amount over an ounce with the intention to distribute it. The language of the new law approved by voters did seem to offer support to the defense attorneys’ position.

The statutory language of the new law made it clear that possession under one ounce was decriminalized. It also made it clear that the new law did not affect any laws concerning the sale, trafficking or manufacture of marijana. However when it came to possession with the intent to distribute marijana the new law was silent as to whether or not the decriminlization applied.

In deciding these cases the Supreme Judicial Court relied on a series of prior decisions in civil cases, where the court had found the statutes they were interpreting lacking, and had to apply their own reasonable construction. Their decision implied that this new law was carelessly drafted, and as a result their interpretation keeps possession of marijuana under an ounce illegal if there is evidence the person intends to distribute that marijuana. In part the court relied on what it felt the intent was of voters who supported this new law. Individuals who possess marijuana in an amount less than an ounce who are not believed to intend to distribute it remain free from criminal liability.

The Supreme Judicial Court did not at all address the rule of lenity in their decision. The rule of lenity is a propsition in United States law that states when statutes are contradictory or unclear any ambiguity should be resolved in favor of a defendant. For an excellent detailed description of the rule of lenity read this blog post from Attorney Gregory Pope. Many who felt the case should have been decided in favor of the defendants hoped the SJC would consider the rule of lenity in their decision. Unfortunately they chose not to address it.

Although I was disappointed in the decision made by the SJC it will now bring consistency to how these cases are treated across the Commonwealth. Since the new law became effective in 2009 each case was being treated differently depending on how each individual district court judge interpreted the ambiguity in the stautes. Now attorneys across the state will at least have the ability to advise clients with more authority on how the law will view their individual case.

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As a Massachusetts criminal defense lawyer some of the questions I am asked most frequently involve the legal status of marijuana is in our Commonwealth. The first thing I always remind people in these conversations is that although marijuana may be a legal grey area under our state laws, it is certainly not a legal grey area in any way under the federal laws. All federal laws concerning marijuana including laws outlawing the possession, cultivation and distribution of marijuana apply every bit as much in Massachusetts as they do in any other part of the country. However, because only a handful of marijuana cases are pursued by federal authorities each year, the majority of citizen’s facing charges relating to marijuana do so as a result of investigations by state authorities enforcing Massachusetts law.

In 2008 Massachusetts voters overwhelming approved a ballot question known as Question 2. Question 2 effictively decriminalized possession of marijuana in amounts smaller than one ounce. As a result of this new law police can no longer arrest people found in possession of one ounce or less of marijuana, and no criminal charges can issue. The penalty for possession of one ounce of marijuana or less is now a civil fine of $100.

This law has also led to some interesting questions that remain unanswered even more than two years after its initial passing. For example in its language the law seems to decriminalize all possession of marijuana under one ounce. However people are still arrested regularly for possessing one ounce of marijuana or less if there is some indication that they intend to distribute that marijuana to other people. Whether or not these arrests are proper remains a grey area. Some district court judges have thrown these cases out of court, declaring that the new law demands that no more than a civil fine can be imposed even if there is an intent to distribute the marijuana. Other judges have declined to dismiss these cases and people have had charges of possession with intent to distribute proceed, even though they did not possess more than an ounce.

Recently this very issue has come before the Supreme Judical Court in Massachusetts in the case of Commonwealth v. Brian Dee. Oral arguments were heard on the case in November and the Commonwealth’s highest court is expected to issue a decision on the matter relatively soon.

Regardless of the grey area surrounding possession with intent to distribute it remains absolutely illegal to sell or distribute marijuana in any amount. It also remains illegal to possess the drug in any amount greater than one ounce.

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The Patriot Ledger recently reported on the arrest of a Weymouth man. After an anonymous tip was called in to the Weymouth mayor’s drug tip line and as a result police launched an investigation into the man.

In the course of their investigation police set up surveillance. In the course of their surveillance the police saw the man meet with two other men in a store parking lot. The police believed what they witnessed was a drug transaction. Once the police believed a drug transaction had occurred they made the decision to stop the two individuals that had met with the man.

When the police confronted those two individuals, they found heroin in their possession. Those two individuals told police that they had purchased the heroin from the man who the police were investigating. The police continued to observe the man and folowed him to another parking lot where they believe he conducted another drug transaction.

The second group of individuals who met with the man under investigation were also stopped and confronted by the police. They too were found in possession of heroin and they also told police that the man had sold them the heroin.

Based on the information the police received from these two groups they decided to arrest the man. They approached him and took him into custody. While taking him into custody they also searched him. Although the police claim they found items consistent with dealing heroin, they did not find any heroin in the man’s possession.

Despite finding no heroin on his person, the police charged the man with distribution of heroin and also charged him with what is commonly referred to as a “school zone” charge. This school zone charge is part of the very heavy handed drug laws that are currently in effect in Massachusetts. If the man is convicted of distribution and the “school zone” charge he will be sentenced to mandatory minimum of two years in the house of corrections. In addition that mandatory minimum will have to be served “from and after” any sentence he receives for the distribution of heroin. (This means he can’t serve any jail sentence for the distribution at the same time as the school zone sentence, rather they will have to be served consecutively.)

Although the stakes are high for the man, he certainly has factors in his favor in this case. If the article is accurate and no drugs were actually found on his person that can be compelling evidence that he was not involved in the drug trade that night. Also the individuals who told police that the man sold them the drugs were also charged with crimes. As a result they might chose to exercise their 5th amendment rights and not testify against the man. Of course it is also possible they could be offered a favorable plea agreement from prosecutors in exchange for their testimony against him.

Even if they do testify against the man, there may be issues with their credibility due to their admitted involvement with heroin. Additionally if they have prior criminal convictions it is possible those can be presented to a jury to call into question their credibility as well.

Cases where “school zone” charges are involved frequently end up going to trial precisely because of the severe minimum penalty involved. The high stakes leave little room for negotiation and potential for plea bargaining. As a result lengthy unfair jail sentences can be imposed, even if the target of the charges is a first time offender, or simply a drug user who was used as a go between by an actual dealer.

Governor Patrick has proposed changes to these mandatory minimum laws, however whether or not any real change will come about as a result remains to be seen.

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