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cocaine-stripes-489547-mAccording to an article in the MetroWest Daily News, a Framingham couple was charged with distribution of cocaine this past week. The couple was traveling on Concord Street when an officer noticed that the vehicle in which they were traveling had a defective headlight. The officer pulled the car over and approached the driver’s side. As he was walking toward the car, the officer noticed that the man and woman were moving around “frantically.” The officer specifically saw the man reaching toward the woman’s mid-section. When the officer got to the car, he saw several empty liquor bottles and an open beer bottle. The officer also allegedly saw a plastic bag sticking out of the top of the woman’s pants, and could also reportedly see that the bag contained a white power. The officer then pulled the bags out of the woman’s waistband and saw that they consisted of two glassine bags with a white powder, which the officer believed to be cocaine. The officer ordered the pair out of the vehicle and conducted a more thorough search of both them, and the car. The officer found a digital scale in the vehicle, and a third plastic bag of cocaine in the man’s sock. The woman reportedly told the officer that the man had put the drugs in her pants, which is consistent with the officer’s observations as he approached the car. The man also told the officer that all of the drugs were his. Despite both of their statements, however, the police charged both the man and the woman with possession with intent to distribute cocaine.

To obtain a conviction for possession with intent to distribute cocaine under G. L. c. 94C, § 32A, the Commonwealth would have to prove that: (1) the substance was in fact cocaine; (2) the man and the woman each respectively possessed the cocaine with the intent to distribute it to another person; and (3) they did so knowingly or intentionally. As to the second element, the Commonwealth must prove that the cocaine was intended for distribution rather than held solely for personal use. Factors to be considered in making this determination include the quantity of drugs that were possessed, the purity of the drugs, the street value of the drugs, how the drugs were packaged, whether other items were found along with the drugs that might suggest drug sales, such as cutting powder or packaging materials, scales, or large amounts of cash, whether the is any evidence that a sale was in progress, and whether there is any evidence that the drugs were part of a larger stash. As to the third element, to act knowingly and intentionally, a defendant must have acted consciously, voluntarily, and purposefully, and not because of ignorance, mistake, or accident. Continue reading →

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various-abusive-drugs-489543-mAccording to an article in the MetroWest Daily News, a Framingham couple was arrested last week for allegedly selling cocaine and heroin out of their apartment.  The man and woman were arrested at their home, located at 140 Franklin Street.  According to the article, the police began investigating the pair approximately one month ago after they received a tip that the two were selling drugs out of the apartment.  During the investigation, confidential informants allegedly bought drugs from the couple inside the home.  The undercover purchases led to the issuance and execution of a search warrant for the apartment.  During the course of the search, the police found 40 plastic bags of heroin, totaling 17.5 grams, and 7.5 grams of cocaine.  The police also reportedly found a stun gun and a .22 caliber bullet.  The police further reported that the door to the apartment had more bolts and locks than the “average” apartment.  Both the man and woman were charged with possession with intent to distribute heroin and cocaine, possession of ammunition without a firearm identification card, and illegal possession of a stun gun.

While the pair may have some trouble defending the ammunition and stun gun charges, they both appear to have a defense of straight possession in relation to the drug charges.  To prove that they each possessed the heroin and cocaine with the intent to distribute it under G. L. c. 94C, §§ 32 and 32A, the Commonwealth must prove the following beyond a reasonable doubt: (1) that the substances were in fact heroin and cocaine; (2) that both the man and the woman respectively possessed the heroin and cocaine with the intent to distribute it to another person or person; and (3) that they did so knowingly and intentionally.

While the police may use information from confidential informants to obtain search warrants, the Commonwealth generally does not call such informants to testify to undercover purchases at trial.  The reasoning behind this practice is that the police do not need to provide the identity of a confidential informant to obtain a valid search warrant, as long as the police establish that the informant had a basis of knowledge for the information provided, and that the informant is reliable.  In contrast, if the confidential informant were to testify at trial that he or she had purchased drugs from the defendant(s), his or her identity would no longer be confidential, as the informant would be testifying in open court.  Given the fact that virtually all confidential informants value their anonymity, they would not be inclined to participate in undercover buys if they knew that they would be called to testify at trial.  Assuming the Commonwealth follows this practice in this case, it would have to proceed solely on the evidence obtained as a result of the search, namely, the drugs.  Continue reading →

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to-sign-a-contract-3-1221952-mThis past April, domestic violence legislation was proposed at the statehouse. Both the House and the Senate proposed somewhat different versions of the law, and this past week, a conference committee reconciled the two versions of the bill (SB1892 and H4037). Both the House and the Senate then passed the reconciled version – S2334 – into law. While the bill must still be signed by the governor before it actually becomes law, he is apparently expected to approve it shortly.

The legislation, formally named An Act Relative to Domestic Violence – creates a first offense domestic violence assault and battery charge, establishes a domestic violence offender registry, and provides education for judges and prosecutors about cycles of abuse. Though not every proposed new domestic violence offense, nor all suggested increases in fines/assessments for abuse victims or programs, were included in this compromised bill, most of the significant provisions of each version were incorporated.

Specifically, the bill includes the following changes to current law:

  • Amends the bail statute to require that persons charged with a variety of enumerated domestic abuse offenses may not be admitted to bail for six hours after arrest and before a written determination has been made with respect to conditions of release to reasonably assure the safety of the alleged victim;
  • Amends G. L. c. 276, § 58A dangerousness hearings to allow the hearings to be re-opened upon changed circumstances;
  • Requires a reasonable attempt be made to notify abuse victims of a defendant’s release from detention on bail;
  • Requires that police recruits, medical professionals, court personnel, district attorneys and assistant district attorneys all receive training relative to domestic and sexual violence;
  • Expands the amount of CORI information that may be disseminated to include dangerousness hearings, requests for dangerousness hearings, and determinations of dangerousness;
  • Establishes a Domestic Violence Fatality Review Team within the Executive Office of Public Safety (EOPS);
  • Requires that the Probation Department maintain a Domestic Violence Record Keeping System and requires that EOPS, in coordination with the Community Justice and Mediation Center (CJAM), adopt regulations for the standardization of rules relative to disseminating an individual’s criminal and civil court history to district attorneys, assistant district attorneys, defense attorneys, and judges in certain proceedings;
  • Authorizes eligible adults to possess self-defense (pepper) spray without a firearm identification card (which was previously required);
  • Makes communications between police and alleged victims of domestic violence confidential;
  • Prohibits visitation rights with a child for a parent who committed a rape, which resulted in the conception of that child, unless the child is old enough to choose to have contact with that parent;
  • Establishes a separate Domestic and Sexual Violence Prevention and Victim Assistance Fund;
  • Creates certain new offenses relative to assault and batteries on household and family members, and batteries involving suffocation/strangulation, as well as increasing certain domestic abuse penalties;
  • Establishes domestic violence leave pursuant to which an employee may take 15 days of leave a year from work if the employee suffers from domestic violence.

Continue reading →

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in-my-pocket-330106-mAccording to an article in the MetroWest Daily News, a Framingham man was arrested last week and charged with sexual conduct for a fee and disorderly conduct.  The article states that Framingham police officers saw the man chasing a woman down the street and yelling at her.  The police then stopped the man and proceeded to question him, as well as the woman.  The man told the police that he had solicited the woman for sex and that she then stole $80 from him.  The woman denied the claim, and the police subsequently arrested and charged the man with the above referenced crimes.

For the Commonwealth to obtain a conviction against the defendant for sex for a fee under G. L. c. 272, § 53A, it would have to show the following beyond a reasonable doubt: (1) that the man either engaged, or agreed to engage, or offered to engage, in sexual conduct with another person; and (2) that the sexual conduct was to be done in return for a fee.  For the Commonwealth to obtain a conviction against the man for the charge of disorderly conduct under G. L. c. 272, § 53, it would likewise have to show the following beyond a reasonable doubt: (1) that the man either engaged in fighting or threatening, or engaged in violent or tumultuous behavior or created a hazardous or physically offensive condition by an act that served no legitimate purpose of the defendant’s; (2) that the man’s actions were reasonably likely to affect the public; and (3) that the man either intended to cause public inconvenience, annoyance or alarm, or recklessly created a risk of public inconvenience, annoyance or alarm. Continue reading →

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window-screen-1-152155-mAccording to an article in the MetroWest Daily News, a Worcester police officer has been charged with: (1) home invasion; (2) assault and battery; (3) breaking and entering; (4) trespassing; and (5) threats. The defendant, a 16 year veteran of the Worcester Police Department, reportedly forced his way into his ex-wife’s house and beat a man that was inside with the wife. The article specifically reports that the defendant went to his ex-wife’s home, located in Northborough, and allegedly began banging on the door, yelling at her to let him in, and swearing. When the ex-wife refused to let the defendant into the house, he reportedly forced a kitchen window screen open and climbed through. The defendant was in his full police uniform at the time, and was armed with his gun, which was holstered in his belt/waist area. After gaining entry to the home, the defendant allegedly attacked the man that was in the house with his ex-wife, including reportedly grabbing him by the neck, punching him several times, and striking him in the face and neck. During the assault, the defendant allegedly told the man that “I will kill you” repeatedly, and said that he would “murder” the man if he was ever around the defendant’s family again. It is unclear how the incident ended, but the defendant’s ex-wife did call the police, who issued a warrant for the defendant’s arrest. After the warrant issued, the defendant turned himself in. He posted bail and was arraigned in Westborough District Court on the above referenced charges. While the allegations are undoubtedly concerning, the most serious charge the defendant faces is home invasion. For the Commonwealth to obtain a conviction for home invasion under G. L. c. 265, § 18C, it would have to prove the following beyond a reasonable doubt: that the defendant (1) unlawfully entered the dwelling place of another; (2) knew or had reason to know one or more persons were present within the dwelling house when entering, or alternately, that the defendant remained in the dwelling place when he knew or had reason to know that one or more persons were present; (3) was armed with a dangerous weapon at the time of entry; and (4) used force or threatened the imminent use of force on any person within the dwelling house, or alternately, intentionally caused injury to any person within the dwelling place. Continue reading →

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tray-of-marijuana-1437843-mThis past week, in Commonwealth v. Overmyer and Commonwealth v. Craan, the Supreme Judicial Court ruled that the smell of unburnt marijuana alone is not enough to establish probable cause to search a car.

The facts of the cases are as follows: Overmyer was in a car accident in Pittsfield and police responded to the scene. Upon arrival, officers noticed “a very strong odor of unburnt marijuana.” Police asked Overmyer if there was marijuana in the car and he told them that there was a bag of marijuana in the glove compartment. There was no specific information indicating that the bag contained more than an ounce of marijuana. The police believed that Overmyer had more marijuana and proceeded to search his car. Officers found a backpack with marijuana in the back of the vehicle. As a result of the additional marijuana found in the backpack, the police charged Overmyer with possession with intent to distribute a class D substance (marijuana).

Craan was stopped in Dorchester in 2010 by Massachusetts State Police operating a sobriety checkpoint. The trooper involved in the stop smelled unburnt marijuana and asked Craan about it. Craan showed the trooper a bag of less than ounce of marijuana in the glove box. The trooper then ordered Craan out of the car and subsequently searched it. As a result of the search, the trooper located three Ecstasy pills and .38-caliber ammunition inside the car. Craan was charged with possession with intent to distribute a class D substance (marijuana), possession of a class B substance (ecstasy), and possession of ammunition. Both Overmyer and Craan filed motions to suppress, arguing that the smell of unburnt marijuana alone did not provide a sufficient basis for a search of their respective vehicles because possession of less than an ounce of marijuana is not a crime in Massachusetts, and there was no indication that either were in possession of a criminal amount of the drug. Continue reading →

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to-sign-a-contract-3-1221952-mAccording to an article in the MetroWest Daily News, a Framingham man allegedly assaulted his father at their home on June 24th.  The article states that at the time of the alleged incident, the man was out on bail on another case – a stabbing from last March.  As part of his conditions of release on the stabbing case, the man was on GPS and house arrest.  Prior to the incident with the man’s father, the man and his attorney went into court to ask the judge to remove the order for house arrest so that the man could get a job.  The judge denied the request.  Later that same day, the man was reportedly drinking at his house and got into an altercation with his father.  According to the man’s father, the man became angry and yelled, attempted to punch his father, and threatened to kill him.  The man’s father called the police, who subsequently arrested the man and charged him with one count of assault and one count of threats.  As a result of the new charges, the man was held in custody.

While there are several different avenues that the man’s attorney may explore to obtain a favorable outcome, one that should definitely be considered is an accord and satisfaction.  An accord and satisfaction, laid out under G. L. c. 276, § 55, is an agreement between an alleged victim and a defendant documenting that the alleged victim has received “satisfaction” for any injury caused by the defendant. Satisfaction can be almost anything, for example a written apology, assurances that the conduct will not be repeated, money damages, the return of property, or even an agreement to enter and complete substance abuse programming.  To obtain an accord and satisfaction, the alleged victim must appear before the court, acknowledge in writing that he has been satisfied, and inform the court that he wants the case to be dismissed.  While an accord and satisfaction can only be sought where the defendant is charged with certain misdemeanors for which the defendant is liable in a civil action, both the assault and threats charges that the man is facing are misdemeanors for which an accord and satisfaction could be obtained. Continue reading →

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house-1390017-mAccording to an article in the MetroWest Daily News, a man allegedly damaged property at his home this past week. The article states that the defendant lives with his mother in Sudbury, and that his mother told him that he needed to go to an alcohol abuse treatment program. The article also indicates that the defendant’s mother told him that he could not come home until he had undergone such treatment. The defendant then reportedly went to a detox program for several days, but ultimately checked himself out. After the defendant left the program, he attempted to return home. When he did so, his mother apparently refused to let him inside. The defendant then allegedly threw a chair at the front door and made other attempts to enter the home.

As a result of these attempts to enter the house, the defendant’s mother called the police and reported that the defendant was trying to break in. When the police arrived, they found a door handle on the ground and other unspecified damage. The defendant allegedly smelled like alcohol. Officers handcuffed the defendant, who reportedly said “you got to be kidding me” to his mother. The defendant was subsequently charged with assault, trespassing, attempt to commit a crime, disorderly conduct, vandalizing of property, and witness intimidation. According to the article, the defendant’s mother was apparently at court for the arraignment, in support of the defendant. Continue reading →

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fire-4-1375190-mOn March 5, 1982, a five-alarm fire killed a family of four and four others in Lowell, Massachusetts. Within 48 hours, the Lowell Police Department had arrested three people – the defendant and two other men who were brothers. The defendant was just 24 years old at the time and was reportedly arrested because a witness claimed that he had seen him throw something into the building prior to the fire. After his arrest, the defendant was questioned by police for 6.5 hours. During the interrogation, the defendant claimed to be “the son of God,” and ultimately confessed that he and the brothers threw Molotov cocktails into the building to seek revenge for a botched drug deal. The defendant specifically told police that he watched as the brothers filled 12-ounce Miller beer bottles with flammable liquid and rags in the basement of 38 Branch Street, where The defendant and one of the brothers lived. The trio then reportedly spent the day drinking, and eventually headed to Decatur Street, the site of the fire.

The charges against the brothers were dropped when the defendant refused to testify against them at a probable-cause hearing. They returned to Puerto Rico (and have since died), but the defendant went to trial in 1983 and was convicted of arson and 8 murders. He was sentenced to life in prison. Following the convictions, the defendanto appealed, but the appeal was denied. The defendant also filed two motions for a new trial, which were likewise denied.

In June 2010, however, a Boston Globe article written by reporters at the New England Center For Investigative Reporting concluded that the investigation and prosecution of the defendant had been compromised by a “series of grave shortcomings” that suggested he was wrongfully convicted.

Specifically, the findings indicated that:

(1) Lowell police quickly determined it was arson, but since the science of fire-scene investigations has changed since then, the burn patterns investigators believed was evidence of arson may not be;

(2) No accelerant was found, casting doubt on the Molotov-cocktail theory of what started the fire;

(3) The Spanish-speaking translator who helped police question the defendant now says the defendant was delusional during questioning and did not understand when he signed his confession;

(4) The defendant’s court-appointed defense attorney was distracted by his own legal problems — a motor-vehicle-homicide charge — and should have withdrawn from the case. Continue reading →

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mobile-phone-in-hand-1307594-mThis past week, the United States Supreme Court issued a decision holding that “the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” The decision addressed two unrelated cases – Riley v. California and United States v. Wurie. Riley was stopped for a traffic violation in California. While searching Riley, a police officer seized Riley’s cell phone and searched it. The police found photos and video on the phone that linked Riley to a shooting that had occurred several weeks prior. Riley was subsequently charged with the shooting as a result of the evidence recovered from the phone. Wurie was arrested in Boston for drug distribution. After he was arrested, the police seized his phone. When they arrived at the police station, officers noticed that the phone was receiving several calls from a number saved as “my house.” Officers traced the number to what they believed was Wurie’s apartment, got a search warrant for the apartment, and ultimately recovered drugs, a gun, and ammunition from the apartment. Wurie was subsequently charged with additional drug and firearm charges as a result. While the underlying facts of each case were different, they both deal with the same issue: whether the police have the right to conduct a warrantless search of a suspect’s cellular phone after the suspect has been arrested.

Under the Fourth Amendment, a warrant is required before police can legally conduct a search. Despite this rule, however, there are a number of exceptions to the warrant requirement, including an exception for a search incident to lawful arrest. The search incident to lawful arrest exception allows for the warrantless search of a suspect after his arrest, which includes a search of the suspect’s person, and the area within the suspect’s immediate control. The rationale for the exception is that such a search is necessary to both ensure officer safety, and to prevent the destruction of evidence. In the cases of Riley and Wurie, the court was tasked with determining whether the police should be able to search the data contained on a suspect’s cellular phone in the same way that they can search a suspect’s pockets, or whether standards for cell phones should be different because of the vast amount of personal information they often contain.

When deciding whether an exception to the warrant requirement should be applied, the court must balance the degree of intrusion of an individual’s privacy interests against law enforcement’s need to promote a legitimate government interest. In these cases, the government argued that cell phones should not be treated differently from other objects found on an arrested suspect’s person, such as wallets, purses or address books, and noted that there was an inherent risk that data contained on cell phones could be remotely wiped and evidence lost if officers were required to obtain a warrant before searching the phone. Riley and Wurie argued that the very nature of cell phones and the quantity and quality of information that they contain set them apart from other items typically found on an suspect’s person, and therefore that a search of a cell phone constituted a greater intrusion on individuals’ privacy interests than the typical search incident to lawful arrest. Continue reading →

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