Massachusetts Criminal Lawyer Blog

Published on: November 3, 2013

Westborough High School Student Arrested on Drug and Alcohol Charges

According to an article in the MetroWest Daily News, an eighteen-year-old student at Westborough High School, was recently arrested for a number of drug related offenses, including possession with intent to distribute marijuana. A school administrator allegedly saw the defendant and two female students enter the defendant’s car, which was parked in the school parking lot, multiple times Wednesday morning. According to the article, the defendant and the two female students smelled like burnt marijuana when they re-entered the school. The administrator then contacted the police, who arrived and looked into the car from the outside. The police reportedly saw a marijuana grinder through the car’s window. Further, a police dog alerted to the presence of marijuana inside the car. The police then entered and searched the car. Officers found a scale, a bong, glass pipes, 4 grams of marijuana, and several empty bags. Bottles of vodka and tequila were also removed from the car. The defendant was subsequently charged with (1) possession of drugs within a school zone; (2) possession of alcoholic beverages on school property; (3) being a person under 21 transporting alcoholic beverages in a motor vehicle; and (4) possession of marijuana with intent to distribute.

Despite the observations made by the school administrator and the police, the defendant may well have a strong defense to at least some of these charges. First and foremost, he likely has a strong argument that the possession with intent to distribute charges should be dismissed. In April of this year, the Supreme Judicial Court explicitly stated in Commonwealth v. Jackson that sharing marijuana with friends is not a criminal offense in Massachusetts. The Court stated that social sharing of marijuana is akin to simple possession, and therefore does not constitute drug distribution. In the defendant’s case, there is no indication that he and the other two students were doing anything other than sharing the marijuana. In particular, they all entered the car together, and they all smelled like burnt marijuana when they returned to the school building. Although the police found a scale, which might indicate an intent to sell, there does not appear to be any other evidence of drug sales. To the contrary, the fact that there was a bong and glass pipes in the car seems to indicate that the marijuana in question was for personal use, as opposed to sale.

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Published on: November 3, 2013

Framingham Man Arrested on Gun Charges

By Daniel Cappetta

A Framingham man was arrested last week on gun charges. According to an article in the MetroWest Daily News, the police received a tip that the defendant, who is homeless, had a shotgun and that it was inside a bag buried in the woods. The tip indicated that the defendant had received the gun in exchange for an outstanding debt. After receiving the tip, the police used a dog that was specially trained to detect ballistics evidence to search the woods in the area. During the course of the search, a 12 gauge shotgun was found buried inside of a bag. Nine shells were also located within the bag. The defendant was subsequently charged with (1) possession of a firearm without a permit; (2) possession of ammunition without a firearm identification card; and (3) the improper storage of a large capacity gun.

To prove that the defendant possessed the shotgun under G. L. c. 269, § 10, the prosecution will have to prove that: (1) the shotgun was in fact a firearm under Massachusetts law; (2) the defendant possessed the firearm; and (3) the defendant knew he possessed a firearm. In this case, where the weapon was not in the defendant’s actual possession – in other words, on his person – the Commonwealth would have to prove that he had constructive possession of the firearm. Under Massachusetts’ law, constructive possession is defined as knowledge of the item, coupled with the ability and intention to exercise dominion and control over it.

To prove such constructive possession, the Commonwealth would have to have some evidence linking the defendant to the weapon. Given the fact that the defendant is homeless, the location itself, without more, is unlikely to provide such a connection. The Commonwealth may try and connect the defendant to the weapon through forensic evidence, such as fingerprints, or DNA. In particular, if the police were able to recover either fingerprints or the defendant’s DNA on the bag or the gun, it would certainly bring the police one step closer to proving any claim that the defendant had constructive possession of the gun.

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Published on: October 25, 2013

Investigation of Ashland Break-ins Leads to Statutory Rape Charges

By Daniel Cappetta

According to an article in the MetroWest Daily News, Ashland police suspected an Ashland man of several break-ins at a storage facility in the area. Although it is unclear what the basis for this suspicion was, the article cites to the fact that the man has been arrested on similar charges in the past. As part of the police investigation, officers went to the man’s home, where he lives with his mother. The article does not explicitly state what the purpose of this visit was, but presumably the police sought to question the man about the break-ins. The police do not appear to have had a search warrant for the house. When the police arrived, the man’s mother answered the door and let them in. The officers then proceeded to the man’s room. The article suggests that the man had his own room, and that it was not shared with any other member of the household. The police entered the room and found the man in bed with a juvenile girl. Because she is underage, the girl was not identified, but the article does indicate that she was fourteen years old. The girl told police that she had met the man online and that they had had sex several times prior to the officers’ arrival at the home. The man is now facing charges related to the breaking and enterings at the storage facility, as well as two counts of aggravated rape of a child.

The charges the man is facing are serious, however, he may have a strong defense – specifically, he may have a basis for a motion to suppress all of the evidence that was recovered as a result of the officers’ entry into his room. A motion to suppress is a motion to exclude evidence obtained as a result of unlawful police action. If the police obtain evidence against a person, but violated the person’s constitutional rights in doing so, the evidence cannot be used against the person in court. In this case, the man may have an argument that all of the evidence that the police recovered in this case – including the police officers’ observations of the underage girl, the statements made by the girl, as well as evidence of the breaking and enterings – was obtained unlawfully.

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Published on: October 20, 2013

Framingham Woman and Boyfriend Arraigned in Relation to July Murder

By Daniel Cappetta

A Framingham woman and her boyfriend were arraigned in Middlesex Superior Court on October 16, 2013 for their respective roles in a murder. The boyfriend reportedly shot the alleged victim to death in July. The girlfriend allegedly took the gun and hid it near the train tracks after the shooting.

According to an article in the MetroWest Daily News, on the night of the murder, the alleged victim and his friend went to the girlfriend’s house to speak to her. While they were there, the alleged victim and the boyfriend reportedly got into a fight, and the alleged victim’s friend became involved as well. The alleged victim and his friend then got into their vehicle and began driving away. According to the article, the boyfriend shot the alleged victim in the head and the alleged victim’s friend in the chest as they departed. The friend then drove both himself and the alleged victim to hospital, where the alleged victim died as a result of his injuries. After the shooting took place, the girlfriend reportedly took the gun used by her boyfriend and hid it. Both the boyfriend and the girlfriend then identified a third individual as the shooter. The police arrested this individual, but the person was ultimately released once further investigation was completed. The boyfriend is charged with murder, while the girlfriend is charged with two counts of accessory after the fact, intimidation of a witness, possession of a firearm without a license, possession of a loaded firearm without a license, and assault and battery with a dangerous weapon.

Although the charges against the girlfriend are extremely serious, it is possible that the Commonwealth may be willing to strike a deal with her if she is willing to testify against her boyfriend. Such a deal could result in the reduction of her charges, a more lenient sentence, or the charges being dropped entirely. Under the Fifth Amendment and Article 12 of the Massachusetts Declaration of Rights, everyone has the right against self-incrimination. This means that a person cannot be compelled to testify against him or herself if that testimony is potentially incriminating and/or could result in criminal prosecution. This privilege, however, is not absolute. Under G. L. c. 233, § 20E, the Commonwealth may grant immunity to a witness – in other words, promise not to prosecute the witness – in exchange for the witness’ testimony. The statute specifically allows for a grant of immunity where certain serious Superior Court offenses (including murder) are involved, and the witness in question refuses to testify on the ground that the testimony would incriminate him or herself.

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Published on: October 16, 2013

Natick Man Allegedly Kidnaps Wife

By Daniel Cappetta

In the early morning hours of October 10th, police responded to a Natick home for a reported assault. According to an article in the MetroWest Daily News, a woman called 911 in “hysteric[s].” The police arrived at the home shortly thereafter and spoke with her. She claimed that she and her husband had been having a verbal argument that had begun earlier that night and that her husband had blocked the door to their apartment, refusing to let her leave. There are no allegations that the husband physically harmed or threatened his wife, however, police arrested him on domestic violence charges, specifically charging him with kidnapping. At the husband’s subsequent arraignment in Framingham District Court, his defense attorney argued that the charge was excessive given the allegations in the case. She further argued that the wife had left the apartment twice during the course of the argument and then returned, contradicting the wife’s claims that the husband had prevented her from leaving.

To prove that the husband kidnapped his wife under the statute (G. L. c. 265, § 26) the Commonwealth would have to prove that he (1) acted without lawful authority; (2) forcibly or secretly confined or imprisoned his wife within the state of Massachusetts; and (3) committed these acts against his wife’s will.

The husband’s defense attorney has a number of arguments at her disposal. First of all – there appears to be a serious question as to whether he actually “confined” his wife. Given the fact that all homes are required to have two means of egress in the event of a fire, there was likely a back door that the wife could have left through had she actually wanted to get out of the apartment. Second, if the wife did in fact leave the home multiple times during the course of the argument, any claim that she was truly “confined” for the purposes of the statute is severely weakened.

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Published on: October 13, 2013

Framingham Teen Accused of Selling Pot Brownies at School

By Daniel Cappetta

Two students at Framingham High School showed up at the nurse’s office on Monday, October 7th. They were not there, however, for the typical stomachache or sore throat – these students had apparently eaten pot brownies and become ill as a result. According to an article in the Metrowest Daily News, the students had bought the brownies that morning from a fellow classmate. The students ate the brownies just before homeroom and showed up in the nurse’s office a short time later. After the students’ complaints, police were notified and initiated an investigation. The classmate allegedly responsible for selling the brownies is sixteen years old and is therefore considered to be a juvenile. The juvenile’s name was not released but police did state that it was a female in her senior year. After the police arrived on scene to investigate, they searched the juvenile’s bag and reportedly found a total of eight more brownies. They also spoke to the juvenile, who admitted to selling the brownies, and stated that she had made them after finding a recipe online. The juvenile is now facing charges of distributing marijuana, and for having drugs on a school campus.

Fortunately for the juvenile, the Commonwealth may have some trouble introducing her statements, and the brownies, against her at trial. If the juvenile was in “custody” at the time of the police questioning- i.e., if a reasonable person in her position would not have felt free to leave – the police were required to give her Miranda warnings before speaking with her. When an investigation involves an adult suspect, simply providing the person with her Miranda warnings is sufficient. If the suspect agrees to waive her rights and speak with the police, the police are free to ask questions.

When it comes to juveniles, however, the laws are different – the scope of Miranda is broader. The Supreme Judicial Court has recognized that there are special problems when dealing with juveniles and Miranda waivers. The Court has specifically recognized that juveniles’ ability to understand Miranda waivers is limited and that juveniles cannot be compared to adults, who are presumably in full possession of their senses and knowledgeable of the consequences of their admissions. In light of this, juveniles who are suspected of a crime have additional protections to ensure that they understand the ramifications of waiving Miranda. Such additional protections include the Interested Adult Rule, which states that there should ordinarily be a “meaningful consultation” with a parent, interested adult, or attorney about whether the juvenile should waive her Miranda rights prior to speaking with the police.

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Published on: October 9, 2013

Homeless Woman Arrested After Hitting MetroWest Medical Center Security Guard

By Daniel Cappetta

A homeless woman who sought medical treatment at MetroWest Medical Center on October 2nd, was arrested after reportedly assaulting a hospital security guard. According to an article in the MetroWest Daily News, the woman was brought to the hospital in a highly intoxicated state with an injured arm (the cause of the injury is unknown). Doctors determined that the arm was broken and placed it in a cast. After receiving treatment for the injury, the woman attempted to leave the hospital. Doctors apparently did not want her to go, perhaps believing that she needed further medical care. As a result, hospital employees attempted to stop the woman from leaving the facility. In response to the hospital’s attempts to detain her, the woman reportedly hit a medical center security guard in the face with her cast-covered arm. She was subsequently arrested for assault and battery with a dangerous weapon. Unfortunately, the woman has engaged in similar behavior in the past – in August of this year, she also attempted to leave the medical center against medical advice. Hospital security made similar attempts to stop her on that occasion, and she reportedly punched a security guard in the face.

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Published on: October 5, 2013

Car Stop in Framingham Yields Heroin

By Daniel Cappetta

According to an article in MetroWest Daily News, two men were stopped in a car on October 1st in Framingham. The operator was driving on Waverly Street when officers on patrol reportedly saw him and knew that he had a suspended license. The officers then stopped the car. After the stop, the officers allege that they smelled fresh marijuana. Although the article does not clearly indicate exactly how the stop unfolded, presumably the men were ordered out of the car. Both men were searched and the passenger had over $500 in his possession. The police also searched the car and found a backpack under the front passenger seat, where the passenger had been sitting. Inside the backpack were seven individually wrapped bags of heroin. Notably absent was any marijuana – fresh or otherwise. Both men were subsequently charged with possession with intent to distribute the drugs. The driver was also charged with driving on a suspended license, subsequent offense (meaning that he had previously been convicted of driving on a suspended license in the past).

Both men have strong defenses. While the police were authorized to stop the car and arrest the driver if they were really aware that he was driving with a suspended license, the search of the car is certainly questionable. If the police choose to tow a car because the driver has been arrested, they may conduct an inventory search of the vehicle, which includes a search of the entire car. There is no indication, however, that this was the purpose of the search in this case – to the contrary, it appears that the police searched the car because they supposedly smelled fresh marijuana. The fact that absolutely no marijuana was found in the car seriously undercuts the legitimacy of this claim. If the police had no lawful basis to search the car, the evidence that they recovered should be suppressed – in other words, the court should refuse to allow the prosecution to use this evidence against either defendant at trial.

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Published on: October 1, 2013

Man Stopped in Framingham With Over Seven Pounds of Marijuana

By Daniel Cappetta

A Weymouth man was pulled over in Framingham on September 23, 2013 for what should have been a routine traffic stop. According to an article in MetroWest Daily News, the man allegedly rolled through a stop sign on Franklin Street. Police patrolling the area observed the traffic infraction and pulled him over, presumably to give him a citation. According to the police, however, the man appeared to be nervous and the officer ordered him out of the car. After the exit order, the officer searched the man. The officer found over $5,000 in his pocket, and also allegedly saw marijuana in a jar and a glass pipe inside the vehicle. The officer called for back up and the car was searched. Police recovered between seven and eight pounds of marijuana in the trunk. The police also recovered an additional $2,000 from inside the car. The man was charged with possession of marijuana with intent to distribute, a school zone violation, and driving with a suspended license, subsequent offense. He was arraigned in Framingham District Court and held on $8,000 bail.

While many would argue that the amount of marijuana found in the car is indicative of possession with an intent to sell rather than mere personal use, the Commonwealth may nonetheless have trouble proving its case. Specifically, the constitutionality of the exit order, search of the man’s person, and subsequent search of the car is questionable. Under Massachusetts case law, the police are only allowed to order someone out of a car if the officer has cause to believe that the person has committed a crime, is armed and dangerous, or there is some pragmatic reason that requires the person to exit (for example, if the police have a legal basis to search the car and need the person to get out in order to do so). Although the police claim that the man was nervous, Massachusetts judges have repeatedly stated that appearing nervous when interacting with the police is a perfectly understandable reaction and that nervousness alone is not a lawful basis for any sort of search or exit order. Without some additional indicators that the man was involved in some sort of criminal activity or was a danger, the police had no legal basis for ordering him out of the car.

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Published on: September 25, 2013

Governor Signs Law Raising Age of Juvenile Jurisdiction

By Daniel Cappetta

On September 18, 2013, Governor Deval Patrick signed An Act Expanding Juvenile Jurisdiction into law. Before this law was signed, all seventeen year olds accused of a crime in Massachusetts were automatically treated as adults, regardless of the circumstances or the severity of the offense. This new legislation raises the upper limit of juvenile court jurisdiction in Massachusetts from seventeen years old to eighteen (the law does not change the juvenile court’s lack of jurisdiction over first or second degree murder cases where the defendant is fourteen or older on the date of the offense). Advocates for raising the age of juvenile court jurisdiction have long argued that treating all seventeen year olds accused of a crime as adults is out of step with national standards – a majority of other states and the federal government use eighteen as the starting age for adult criminal jurisdiction. The legislature, and ultimately Governor Patrick, answered their arguments with the new law, striking a balance between holding young people accountable for their actions while acknowledging that they are in a unique position to change and grow from their mistakes.

The statute is effective immediately, but there are still many questions about its applicability. Of particular concern is the impact that the bill will have on pending cases in district and superior court. As a general rule, changes in the law are applied prospectively – meaning that a new law only applies to cases initiated after the law is in effect. There are, however, several exceptions to this rule, including where the law explicitly states that it will be retroactive, or where a lack of retroactivity would cause a result that is inconsistent with the intent of the law. This law is silent as to retroactivity. Therefore, it must be determined whether a failure to make the law retroactive would conflict with the law’s intent. On September 16, 2013, the Chief Justice of the Trial Court, Paula Carey, issued a memorandum on the issue of retroactivity. The memorandum states that the trial court considers the new law to be prospective only and that the court does not intend to apply the law to pending cases. Chief Justice Carey’s memorandum, however, is not likely to be the last word on this issue. To the contrary, it is extremely likely that defense attorneys and other advocates will argue that the law does apply to pending matters.

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