Massachusetts Criminal Lawyer Blog

Published on: July 16, 2013

Four Weston Teens Arrested in Ashland for Theft

Police in Weston arrested four teenagers from Ashland on the night of Thursday, July 11th for an alleged scam, according to an article in the MetroWest Daily News. Police allege that a resident called the police around 5:30 p.m. after two teenagers came to his house and attempted to sell him raffle tickets in an effort to raise money for the cross-country team at Weston High School. The resident was allegedly suspicious of the teenagers when they were unable to answer his questions.

The teens reportedly had raffle tickets that they were selling for $5 each or three for $10, as well as a flier with the town seal detailing the fundraising campaign. The resident who called police reportedly bought three tickets as a way to have proof for the officers who arrived at his house. The teens then reportedly returned to his house and refunded his money before fleeing. The resident was reportedly able to provide a detailed description of the teens, as well as the license plate of the car.
Police reportedly located the teens, as well as two other teenagers, who all allegedly confessed upon being questioned by police. Police also reportedly found a roll of raffle tickets and homemade fliers for various schools in a car that belonged to one of the teenagers.

The four teens have reportedly been charged with larceny by false pretense. The teens were arraigned at Waltham District Court on Friday, July 12th and were released on personal recognizance.

In order to prove larceny by false pretense, prosecutors will have to prove the following things: the teens knowingly lied or made a false representation; the teens lied hoping that the person he or she was lying to would believe the lie; the victim to whom the teens lied actually believed the lie; the victim gave away his or her property because they believed the lie.

In this case, the alleged victim reportedly told police that he was suspicious of the teenagers when they were at his door asking for money. If he did not believe the teens’ story, but instead played along to try to get proof that the teens were lying, the prosecution may have a hard time proving an element of the crime–that the person to whom the statement was made relied on the teens’ statement as true. In other words, the victim had to believe the lie under the law, and the alleged victim in this case seems to say that he did not believe the teenagers. Although proving this actual charge may be difficult, a savvy prosecutor will revise these charges or bring new charges against the teens for attempt to commit larceny by false pretenses. When a person is charged with attempt to commit a crime a prosecutors must only prove that the defendant engaged in some overt act toward completion of the crime.

The teens are facing a possible punishment of up to one year in jail and a fine if convicted of the charges they currently face.

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Published on: June 18, 2013

Massachusetts student facing drug charges following school sweep

By Daniel Cappetta

Police conducted an unannounced drug sweep on Friday, June 14th at Algonquin Regional High School, according to an article in the MetroWest Daily News. The sweep was conducted by police from both Northborough and Southborough Police Departments, as well as Massachusetts State Police K-9 handlers with their drug detection dogs.

In one boy’s locker at Algonquin Regional High School, police reportedly found marijuana in a package. The boy was then reportedly called out of class, and police found more marijuana concealed in foil wrappers in his backpack. The student was charged with possession of a Class D controlled substance with intent to distribute.

The sweep was reportedly part of a larger school safety initiative. Police announced on February 11th that drug searches would be forthcoming. The first drug search occurred on March 14th. Students were reportedly aware of the date and time that the drug search would occur. Police also reportedly announced that criminal prosecution would follow any illegal drugs that were found, and announced to students that future unannounced drug searches would occur, as well. Friday’s drug search was reportedly the first unannounced drug search conducted at the school.

Laws concerning marijuana have become increasingly muddled throughout Massachusetts and much of the rest of the country. Efforts to legalize marijuana have left many laws in conflict at the state and federal levels. Additionally, laws in Massachusetts confuse many, due to the decriminalization of small amounts of marijuana. Possession of one ounce of marijuana or less is not considered a crime in Massachusetts. However, the packaging of those small amounts of marijuana are important because possession with intent to distribute is still a crime. Intent to distribute is often determined by the amount, as well as the way that the marijuana is packaged. Likely because this student’s marijuana was packaged in foil wrappers, police determined that he was intending to distribute the marijuana. The article does not state how much marijuana the student possessed or whether any other items, such as scales were in his possession.

Possession with intent to distribute is a more serious crime than simple possession of a drug. Possession with intent to distribute is a felony that can result in jail time, although jail time is not mandatory with this charge. Because this student is a minor, he may not face penalties as serious as an adult in this circumstance. For an adult, this charge can certainly be life-altering. The article does not state whether the student has prior criminal convictions in his record. If he does, he may face more serious penalties than if this is his first time. Also, the location of the crime is also important. Possession with intent to distribute in a school zone is more serious than in other locations, though the article does not state whether he is facing that charge.

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Published on: May 14, 2013

Haverhill Woman Accused of Violating Court Order

By Daniel Cappetta

According to the MetroWest Daily News, a 23 year old Haverhill woman was reportedly seen drinking at a Framingham bar on Friday April 12th, which violates the terms of her personal recognizance release. The defendant is accused of crashing her car on December 3, 2011 and killing a fellow Framingham State University student while drunk. The defendant was released on personal recognizance, but given a condition of release that she consume no alcohol. The defendant is now being held without bail until her next court date.

The defendant is facing charges of vehicular homicide, as well as driving under the influence of liquor, causing serious bodily injury and driving to endanger. She was allegedly drunk when she crashed her Honda Civic carrying four other people into a telephone pole on Badger Road in Framingham around 2:20 a.m. on December 3, 2011. Her blood alcohol level was reportedly .10 at the time of the crash, over the legal limit of .08.

The defendant allegedly ordered the drinks that she consumed before the accident from the same TGI Fridays in Framingham at which she was seen drinking on Friday. An officer who patrols Route 9 allegedly recognized the defendant and noticed she was drinking. The defendant reportedly stated that she was drinking cranberry juice; however, the bartender and the defendant’s friend allegedly stated that she was drinking a cranberry and vodka drink. The bartender also allegedly stated that the defendant had ordered the same drink at the bar the week before that. The probation department reportedly issued an arrest warrant, and police arrested the defendant the next day in Haverhill.

The defendant’s lawyer has stated that the defendant was not purposefully drinking alcohol but had ordered a cranberry juice. However, he said that the bartender was mistaken because the bar was loud and may have served the defendant liquor in the drink accidentally. The lawyer also stated that the defendant did order a drink with alcohol the week before but that it was for a friend. The judge, however, was not persuaded. The defendant will be held for 60 days in MCI-Framingham until her trial in June. The judge made the order without prejudice, which means that the defendant can appeal the decision. She is also due in Middlesex Superior Court for a status hearing.

The defendant’s story is an important reminder of how seriously courts take the conditions placed upon defendants when they are released on probation, bail or personal recognizance. If your or a loved one is worried that you may have violated the terms of your probation or the conditions of your release between court dates, consulting your attorney is an important step to making sure that you remain in good standing with the court. Being arrested for violating the court’s orders can be a stressful situation, and can often result in your being looked upon unfavorably by the court at your next court date or in the future if you find yourself in court again. However, conditions that are placed upon defendants can often be confusing or difficult to follow. An experienced attorney may work with the judge or the probation department to make conditions more manageable. Being on top of the situation with your attorney is usually the best course of action.

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Published on: May 7, 2013

Northborough Man Charged with Fourth OUI Offense

By Daniel Cappetta

A 55 year old Northborough man was arrested on Wednesday night, April 17th after allegedly getting into a car accident on Route 9, according to an article in the MetroWest Daily News. The defendant has reportedly been charged with operating a motor vehicle under the influence of alcohol, making this his fourth time being charged with OUI.

An officer reportedly saw the defendant pulled over to the side of the road next to another car. The defendant and the other driver were standing outside of their cars, which prompted the officer to pull over and investigate the situation. The officer then allegedly smelled a strong odor of alcohol and noticed glassy, bloodshot eyes and slurred speech being exhibited by the defendant. A passenger in the other car was reportedly taken to a hospital with unspecified injuries.

The defendant reportedly told officers that he had drank some alcohol with dinner, but was inconsistent with his statements about how much alcohol and from where. The defendant also reportedly volunteered to do a field sobriety test. He allegedly did not successfully complete the commands during the sobriety test and was arrested. He was charged with operating under the influence of alcohol, driving to endanger, and driving without a license. His license reportedly expired on April 12th, 2013.

This arrest is the defendant’s fourth OUI arrest. His past drunk driving arrests all occurred nearly three decades ago. One arrest occurred in 1984, and two occurred in 1986.
At Framingham District Court on Thursday, the defendant was released without bail and ordered not to drive after drinking alcohol. He is due back in court on May 20.
The defendant is facing serious penalties if convicted of this charge because this is his fourth alleged OUI offense. Penalties for OUI offenses generally increase with each conviction. Mandatory sentences also make it difficult for judges to be lenient in many cases. Despite the almost thirty year time gap between his previous three offenses and the newest alleged offense, courts will still treat this at the defendant’s fourth offense, due in part to the changes brought into effect under Melanie’s law.

If convicted, the defendant is facing a mandatory two year jail sentence. A portion of that sentence could be suspended, but if convicted it is mandatory that he serve at least every day of 1 year in jail. When accused of OUI 4th offense it is essential to be represented by an experienced criminal defense litigator who may be able to win the case. Prosecutors are trained to prosecute multiple OUI offenses to the fullest extent of the law, so a plea bargain is rarely an option to avoid jail time. An experienced attorney can help the defendant determine if he has potential motions to suppress evidence or to dismiss the case. Also a skilled attorney can help him determine if taking the case to trial is the right decision.

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Published on: April 26, 2013

Ashland Man Charged with Larceny Following Fight

By Daniel Cappetta

A 35 year old man from Asland, was arrested on Wednesday, April 17th for allegedly stealing a lighter and some change from a car that was parked in a Shaw’s parking lot, according to an article in the MetroWest Daily News. Officers reportedly arrived at the Shaw’s parking lot in the Pond Street Plaza before noon for a report of a fight. Upon arrival, officers allegedly witnessed several men fighting with the defendant, who was being held by two other men. The men then reportedly told officers that they had witnessed the defendant going into multiple cars in the parking lot, including a Ford pickup truck belonging to one of the men. The men reportedly also stated that when they approached the defendant, he fled across the street, and they caught him and brought him back to the Shaw’s parking lot. The owner of the truck reportedly claimed a white cigarette lighter and some loose change from the center console was missing after the incident. An officer then allegedly frisked the defendant and found the missing items on him.

The defendant was reportedly arrested and charged with breaking and entering a motor vehicle, a misdemeanor, and larceny under $250, also a misdemeanor. He was released without bail on Thursday at Framingham District Court. The defendant was ordered to return to court for a pretrial conference on June 14.

The defendant is facing two misdemeanor charges. Many people may assume that misdemeanor charges will not lead to severe penalties like a felony can. However, the defendant may still be facing serious penalties, particularly if he has a record with other charges or convictions in it. If he has a record with other offenses on it, his punishment for this offense may be more severe than if this is his first time being charged with a crime. That being said, the defendant can still have a favorable outcome in this case and may avoid jail time. The amount of money and goods taken in this case was relatively minor, which is helpful to him.

The defendant may come away from this situation with only minor penalties if he has an experienced Massachusetts criminal defense attorney on his side. In this case, the crimes are economic crimes, rather than violent crimes. Courts can be convinced to look more favorably on defendants who are committing non-violent crimes motivated by economic need if the arguments are framed in a sincere manner and the defendant is determined to refrain from committing further crimes. Additionally, a skilled attorney may be able to help the defendant win his case altogether and clear his name of any wrongdoing. Either way, he is in need of an experienced criminal defender who will fight to protect his liberty.

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Published on: April 16, 2013

Supreme Judicial Court Rules Social Sharing of Marijauana not a Crime

By Daniel Cappetta

In 2008, Massachusetts decriminalized the possession of marijuana in amount of one ounce or less. Since the decision, many question have remained about how this ruling affects other aspects of Massachusetts laws concerning marijuana. A recent article details a few cases that have recently come before the Supreme Court of Massachusetts for clarification.

Over time, the Massachusetts Supreme Judicial Court has handed down rulings that have helped to clarify those questions. I have written extensively about those changes as they have occurred. The latest rulings about marijuana from the SJC help clarify the laws regarding social sharing of marijuana. Additionally, the SJC has ruled that some statements given to police and some evidence seized in searches are not admissible in court against the defendants because these defendants came to the attention of the police due to civil infractions, rather than criminal violations. However, the SJC also stated once again that cultivating marijuana is still illegal.

Hempfest, an annual event in the Boston Common, involves many people publicly smoking marijuana. Many of these people share their marijuana with each other. Kityan Jackson, a Hempfest attendee, was seen by police sharing a joint with friends. Officers then searched his backpack without a warrant. Upon searching his backpack, officers found small amounts of marijuana packaged in small, individual bags in a quantity that totaled less than an ounce.

Jackson was charged and prosecuted for possession of marijuana with intent to distribute. However, in one of the recent rulings, the SJC sided with Jackson and set aside his conviction. The reason that he cannot be convicted of this offense is that police first approached Jackson due to a civil infraction–sharing a joint with friends. Sharing a joint is not a criminal offense in Massachusetts. In the unanimous ruling, the SJC proclaimed that social sharing of marijuana is akin to simple possession and does not constitute drug distribution. There is no buyer or seller in social sharing of marijuana as there is in drug distribution. Additionally, and crucial to Jackson’s case, observing the social sharing of marijuana does not give police justification to conduct a warrantless search.

In two more cases, and using the same reasoning as in Jackson’s case, the SJC held that prosecutors cannot introduce evidence against defendants that were gathered as a result of police approaching people who have engaged in civil violations. One case involved a defendant who was stopped for a broken headlight and another involved a man who was approached due to a curfew violation. Both cases involved police conducting warrantless searches after approaching the individuals’ vehicles and finding small quantities of drugs and weapons. All of the evidence that was found subsequent to police approaching the individuals for civil infractions was found to be inadmissible.
However, cultivation of marijuana is still illegal in Massachusetts, as the SJC made clear in the case of Kenneth J. Palmer Jr. Police found marijuana growing in Palmer’s closet in 2010. The marijuana that police found in the closet was of less than one ounce. However, officers also found that he had outfitted his closet with lights, a thermometer, and empty plastic bags.

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Published on: March 14, 2013

Southborough Man Faces Assault and Battery on a Police Officer and Other Charges

By Daniel Cappetta

A 32-year-old Southborough man, was charged with assault and battery on a police officer, operating under the influence (second offense), and malicious destruction of property over $250 in Framingham District Court on March 11, the MetroWest Daily News reported.

The man was arrested by Natick police officers over the weekend following an accident on Route 9. He allegedly rear-ended a car stopped at red light. Police claim that the man was uncooperative during the booking process. As a result, an officer attempted to escort him to a holding cell. At that point, police claim that the man became “combative” with the officer, swinging at him and knocking the officer’s eyeglasses onto the floor. Officers shocked the man with a Tazer.

In this particular article there is nothing suggesting there was any wrongdoing by the Natick Police Department. However, in general it is not unusual to sometimes see criminal defendants charged with assault and battery on a police officer after police use violence, unnecessary aggression, or unlawful force during an arrest. In order to protect themselves from allegations of unlawful use of police force, officers sometimes claim the defendant committed an assault and battery on an officer. The same is often true in resisting arrest scenarios. This is no secret to any experienced criminal attorney. It’s not unusual for defendants facing these charges to walk into lawyers’ offices having visible injuries. Luckily for defendants, in many departments the booking process is now videotaped, and some cruisers have video equipment. Particularly in commercial areas like Route 9, retail establishments might have video surveillance as well. Whenever possible it is always wise get a copy of the booking video or any other video evidence in order to look into what really happened during this encounter.

The malicious destruction of property over $250 charge relates to the officer’s eyeglasses. If the glasses were damaged during this alleged struggle, the man might argue that any damage was not “malicious.” Another possible defense would be that the value of or damage to the glasses was not really more than $250.

The article does not contain much information relative to the basis of the OUI 2nd charge, apart from the fact that there was an accident. Massachusetts law provides for increased penalties for second and subsequent drunk driving convictions. Prosecutors tend to be less sympathetic to OUI defendants when there has been an accident. The man might be facing some relatively serious penalties and should speak with an aggressive defense lawyer.

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Published on: March 8, 2013

New Dog Sniff Cases to Impact Search and Seizure Law in Massachusetts Drug Cases

By Daniel Cappetta

The Supreme Court will soon decide whether police violate the Fourth Amendment by bringing a drug dog to the front door of a suspected marijuana grow house to execute a dog sniff, and the implications will be important for persons accused of drug crimes in Massachusetts and elsewhere.

The Court heard argument in the case of Florida v. Jardines, one of two recent dog sniff cases, in October 2012. The other case, Florida v. Harris, was decided in February 2013, with the court holding that the government does not need to produce records of a drug dog’s field performance to establish reliability. Oral argument from Jardines suggests a result more favorable to criminal defendants and those who care about the right to privacy.

In Jardines, police received a tip that the defendant’s home was being used to grow marijuana. Based on nothing more than that tip, police went to Jardines’ home with a drug detection dog. Police brought the dog onto the front porch, and the dog alerted on the front door. Police then obtained and executed a warrant to search the house and found evidence of a marijuana- growing operation. The Florida Supreme Court determined that, in this context, use of the dog was an unreasonable search. That court relied on Kyollo v. United States, in which the Supreme Court held that police use of a heat-sensing device aimed at the exterior of a house to investigate a suspected marijuana grow operation was unconstitutional. Florida officials are asking the Supreme Court to rule that, even at a home, a dog sniff is not a search at all.

At argument, the Justices seemed to be reluctant to adopt the government’s position that a dog sniff executed on a front porch is not a search. Much of the Justices’ questioning related to the academic question of whether the officer’s bringing the dog to the door amounted to a trespass. Justice Scalia thought that it would be a “search” for a police officer, with an intent to smell for drugs, to go up to a door with or without a dog. Justice Sotomayor noted that officers doing “knock-and-talks” are usually looking for something inside the home.

Based on the argument, my guess is that the defendant will win this one. However, as a Massachusetts criminal defense lawyer, I am still concerned about the disturbing possibility of ever-increasing privacy invasions. Consider the frightening possibility of the police going door to door with drug dogs who, in light of Harris, might not even have a history of accurate field alerts. If the Supreme Court rules in favor of the government in Jardines, then there would seemingly be nothing preventing police from doing just that.

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Published on: March 2, 2013

Natick Man Charged with Breaking and Entering in Framingham District Court

By Daniel Cappetta

A 24-year-old Natick man was charged Monday with multiple counts of breaking and entering in the daytime and larceny from a building in Framingham District Court, MetroWest Daily News reported.

Police arrested the man after a Natick officer, off-duty at the time, allegedly saw him depositing a large amount of change into a coin machine at a local grocery store. The officer took notice of this because police had been investigating a recent break-in, one in a series, during which $700-$900 in change had been stolen from the residence. Police allege that the man also took jewelry, cash, prescription drugs, and a baby stroller from the same residence. He allegedly used the stroller to wheel the coins to the grocery store. The prosecution alleges that the man confessed to the break-ins, admitting that he bought cocaine and heroin with the money.

Based on the reported facts, the man might have some solid grounds for motions to suppress both the evidence and statements. It seems that police seized the man based on his possession of a large quantity of coins. A seizure is illegal unless police have a reasonable suspicion of criminal activity. There is nothing criminal about depositing a large amount of change into a coin machine. There is no indication that the man was known to police or that he matched any description of a suspect. There is no indication that the officer recognized the stroller used to transport the coins. Simply having money, even an unusually large amount of it, without more is not enough to support a reasonable suspicion of criminal activity.

If the initial seizure of the man was illegal, then his alleged statements admitting to the break-ins might be so-called “fruit of the poisonous tree.” Under the “fruit of the poisonous tree” rule, direct and indirect products of an illegal search or seizure must be suppressed from use. The reasoning is essentially that the first illegality taints that which comes next. It applies to verbal evidence as well as physical evidence. Here, if police illegally seized the man based on nothing more than his possession of the coins, the man might argue that subsequent statements were tainted by that initial illegality.

This story illustrates the importance of speaking with an experienced criminal defense lawyer before giving any statements to police. The government claims that the coins and stroller link the man to one particular break-in. There is no apparent connection, apart from his alleged statement to police, between the man and the other six break-ins, and there might not have been probable cause to charge him in connection with them had he not allegedly confessed.

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Published on: February 22, 2013

Sudbury Man Facing Charges Following Car Crash in Pond

By Daniel Cappetta

A Sudbury man, who police have not yet identified, allegedly drove his car into Willis Pond on Thursday, January 24th, according to an article in the MetroWest Daily News. Police have alleged that the 27-year-old man was drunk when he drove out onto the ice. The front end of his car reportedly broke through the ice approximately 600 feet onto Willis Pond at about 12:45 a.m. Police are reportedly unsure what motivated the man to drive his car onto the ice.

The driver and a female passenger were reportedly pulled from the Toyota and taken to Emerson Hospital as a precautionary measure. Firefighters reportedly attempted to pull the car out of the pond but were unsuccessful. A towing company reportedly worked for nearly 17 hours before the car was successfully pulled out of the water. The Toyota reportedly was back on solid ground around 4:30 p.m.

The driver is facing charges of driving a recreational vehicle under the influence of alcohol and wanton destruction of property. Because the driver was not operating the vehicle on a street at the time police arrived, the police are charging him with driving a recreational vehicle, rather than operating a vehicle under the influence of alcohol. Police are reportedly charging him with wanton destruction of property based on the destruction of the car. Police reportedly said that the driver’s name would be available after the arraignment.

The driver is facing serious charges that could lead to fines and jail time. Because his car was not found on a street, the driver avoided a charge of operating a vehicle under the influence of alcohol. The charges he is facing are still quite serious, nonetheless. The driver needs a skilled Massachusetts criminal defense attorney to help him fight the charges he is facing.

In order to prove the charge of driving a recreational vehicle under the influence of alcohol, the prosecutors will have to prove that the driver operated the vehicle while having an intoxicating substance in his body beyond a reasonable doubt. The Commonwealth can establish that he was under the influence of an intoxicating substance by means of a blood test, Breathalyzer, or other test. The Commonwealth does not have to prove that he operated the vehicle on a public roadway. To prove the charge of wanton destruction of property, prosecutors will have to establish that the driver damaged or destroyed the personal property of another, that he did so wantonly, and that the amount of damage inflicted is more than $250. “Wanton” acts are acts committed recklessly or indifferently to the fact that the conduct will probably cause substantial damage to property.

If you or a loved one is facing a charge of destruction of property or an OUI or similar charge, you need an experienced and capable Massachusetts criminal defense attorney on your side. An attorney can help you fight for your freedom or negotiate a favorable plea deal with the prosecution.

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