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video camera.jpgI recently came across an interesting article about the almost 5 year fallout between one man and the Boston Police over the actions of the Boston Police Department Back in 2007.

According to the article the trouble for the man started when he was on the Boston Common and saw another man being placed under arrest. When the man heard a witness state that the police were hurting the individual they were arresting he pulled out his cell phone which was equipped with a video camera and began to record the actions of the police.

These two officers, apparently unaware that we live in a free country, ordered the man to stop his perfectly legal recording. The officers were apparently stunned that the man chose not to abandon his constitutional rights in the face of their orders and arrested him for violating the Commonwealth of Massachusetts wiretapping statute.

The arrest on its face was more or less absurd. The Massachusetts wiretapping statute (G.L> c. 272, Section 99) is directed at preventing people from secretly recording one and other without consent. While the police may not have liked the man’s decision to record them there was no suggestion that he made any secret of the fact that he was doing it. Apparently he actually did the opposite as the police were able ascertain quite readily that they were being recorded, and in fact arrested the man as a result.

If the police had even a passing familiarity with this issue they would not have made this arrest. In 2001 the Commonwealth of Massachusetts’ highest court addressed this issue in the case of Commonwealth v. Hyde. In that case the SJC actually upheld the conviction of a man for taping the police that pulled him over, but they made it clear in their decision that they conviction was only allowed to stand because the man made the recording in secret. In making that decision the court stated:

The problem here could have been avoided if, at the outset of the traffic stop, the defendant had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight.[12] Had he done so, his recording would not have been secret, and so would not have violated G. L. c. 272, § 99.

It’s a shame the man had to go through all the trouble that he did, and an even greater shame that the Boston Police Department has taken this long to admit the mistake that was made by its officers back in 2007.

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roadblock.jpgBy way of the Salem News I recently read about a man who was arrested on a fourth offense operating under the influence (DUI/OUI) charges as a result of a sobriety check point in Peabody, MA.

Sobriety checkpoints are a controversial form of OUI/DUI investigation that the police have been using for over 20 years. A sobriety checkpoint is usually done on a secondary highway and involves teams of officers from different departments. Local departments often partner with the state police and police from neighboring jurisdictions to launch these checkpoints.

Although the Supreme Judicial Court (Massachusetts’ highest court) has found that it is constitutionally permissible for the police to run these checkpoints they do require that the check point be conducted in a certain way in order for it to be legal. The checkpoints must be conducted to a preset plan, and the vehicles must be stopped in a random predetermined pattern. Officers can only have a short interaction with each driver to be stopped, and can only detain a driver for further screening if they first make observations that lead them to believe the operator is under the influence of alcohol. (for a more detailed discussion of how and why these stops are allowed by the court read Commonwealth v. Anderson.)

Although these stops are allowed under Massachusetts law they can result in the arrest and subsequent charging of an innocent person. Because the vehicles in question that are stopped are stopped randomly there is often no indication that any improper or erratic operation occurred at the time the vehicle is stopped.

This is in contrast with most stops for OUI where the initial reason for the car being pulled over is a traffic violation committed by an operator. Because operators in these kinds of cases have frequently committed no traffic violation that can be compelling evidence to a jury that the operator was not impaired by alcohol at the time of the stop.

Also an officer on duty at a sobriety checkpoint is looking to make drunk driving arrests as part of his assignment for the night. This part of the officers assignment can be used to demonstrate to the jury that the officer may be more motivated to make an arrest, even if the evidence against a particular operator is thin.

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alcohol.jpgAs a Massachusetts OUI/DUI attorney I frequently read about cases in local papers regarding the crime of Operating Under The Influence. The Lowell Sun recently reported on the arrest of a local school official for operating under the influence of alcohol third offense. Any drunk driving charge in Massachusetts has serious consequences, and a third offense can be especially troublesome.

According to the Sun, the man encountered Merrimac Police on September 9th, 2011. Apparently bystanders told the police after a man was seen exiting a vehicle at the same time that a bottle of whiskey fell out of the car. They said he had gone into a variety store on East Main Street. Police retrieved the whiskey bottle waited for the gentleman to leave the store. After leaving the store police approached him as he put groceries in his trunk.

The police questioned him and he allegedly admitted the car was his. During their questioning of the man, the police claimed that his eyes were bloodshot and glassy and there was an odor of alcohol on his breath. Police also claim that he admitted to drinking one beer that day.

Police claimed that when the man went into his car to retrieve his license they found a red solo cup with whiskey inside of it in his vehicle. The man was arrested and charged with operating under the influence of alcohol third offense because he allegedly has had two prior offenses for OUI.

The man is facing serious potential penalties as a result of his arrest. If convicted of a third offense OUI there is a mandatory minimum penalty of 6 months in jail. The charge cannot be continued without a finding and the sentence cannot be suspended. If convicted, the man will go to jail and will not be eligible for release until he has served at least 150 days of the 180 day minimum sentence.

In addition to the threat of mandatory minimum jail time there is also a lengthy loss of license that will be imposed if the government obtains a conviction.

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577109_waiting_for_a_baby.jpgI recently came across an artice online at Nashoba Publishing detailing a story of an alleged domestic incident that occurred in Ayer, Massachusetts. An Ayer man is now facing domestic assault and battery charges in Ayer District Court for the incident police say occurred over the weekend.

According to the report the man and his wife were apparently going through a separation. the man was reportedly homeless, but his wife allowed him back into the marital home because of the harsh weather conditions outside.

Early Monday morning the man called the police, and reported he had been attacked by his wife. Police responded and conducted an investigation. After conducting the investigation they made the decision to arrest the man despite the fact that he called the police and initially reported being attacked by his wife.

The man’s wife did not seek medical attention as a result of the incident, but he did go to the hospital to be treated for cuts on his face. While in transport to the hospital police made the arrest..

He is now facing several charges including assault and battery, witness intimidation, kidnapping and destruction of property. The kidnapping charges against him may not stand. If prosecutors wish to proceed on that charge they will have to indict the case and bring him to trial in Superior Court. Because only the Superior Court can hear an allegation of kidnapping, prosecutors may choose to keep the case in Ayer District Court and proceed only on the remaining charges.

Its also possible prosecutors may try to add charges that have jurisdiction in the District Court. If prosecutors have evidence that the man knew his wife was pregnant at the time of the alleged attack they can charge him with aggravated assault and battery, which is a felony.

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weed.jpgAs 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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alcohol.jpgThe Springfield Republican recently published an article about the arrest of a man this past Friday by the Holyoke Police Department. The man is a bus driver who transports students in Holyoke. At the time of his DUI arrest last friday he was driving children to their homes as a part of his afternoon duties. According to police he was not driving a yellow school bus, but rather a maroon van.

Trouble for the man started when a school employee noticed alcohol on his breath. The school employee called the police and the police eventually found the man and arrested him on charges of DUI (commonly referred in Massachusetts as OUI or Operating Under the Influence) The police also charged the man with Child Endangerment because school children were in his van when he allegedly drove under the influence.

Child endangerment while operating under the influence is a very serious charge that enhances the potential penalties above and beyond the average first offense DUI. If the man goes to trial and loses, or pleas out to this offense he will not be eligible for a continuation of the case without a finding. (a common way for a first offender to enter a plea deal while not actually being found guilty) The statute concerning child endangerment forbids any attempt by the court to continue the case without a finding. Also if he is convicted he will face a license loss of 1 year as opposed to most first offenders who usually face no more than 90 days of suspension.

Of course the article is very vague and leaves the reader guessing as to the strength of the case against the man. First and foremost whether or not the child endangerment charges can proceed against the man depends on the age of the children he was driving. Only children aged 14 or younger satisfy the requirement of the statue. If the children were older high school students the child endangerment portion of the case could very well be thrown out on a motion to dismiss prior to the case ever reaching trial.

The article mentions that the man took a breathalyzer test, but declines to tell the reader which kind of breathalyzer test, or the score he had on the test. Massachusetts police officers usually have two kinds of breathalyzer tests at their disposal. Roadside hand held breathalyzer tests are often used in the field, but the results of such tests are generally not admissible in court. If the man took the portable breath test, but declined the breath test at the station there may not be any breath test evidence that woudl be admissible against him at trial.

Also the report is silent on whether or not he took any roadside field sobriety tests, or if he did take them how well he performed on them. Even if the man refused to take the field sobriety tests the Commonwealth will not be able to inform the jury of that information at his trial. (for a detailed discussion of why field sobriety test refusal cannot be used against a defendant at trial read Commonwealth v. McGrail)

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This past week the news and internet have been abuzz with reports regarding a Massachusets college student charged with a crime as a result of an incident that allegedly occurred at Dean College in Franklin, MA. The Milford Daily News ran a report on the case, it also received coverage on the local WBZ television news. The college student, who is originally from New York, got into a confrontation with the alleged victim, who is also a student at the college. The confrontation allegedly started because the student believed the alleged victim had stolen an expensive pair of Nike Foamposite sneakers.

The student allegedly confronted the alleged victim and then punched him in the face. In the ensuing fight the student is accused of hitting the alleged victim several more times, including using the shoes at issue as a dangerous weapon by taking them off the alleged victim’s feet and hitting him with them. As a result the student was charged with both regular assault and battery, and assault and battery with a dangerous weapon. Police also alleged that the student took the sneakers after the assault and charged him with unarmed robbery as a result.

Immediately after the incident no action was taken by the police or the administration, but a portion of the incident was captured on video (warning graphic content) and later uploaded to the internet.

https://www.youtube.com/watch?v=Ipe-5tFVP4c

Once the footage received widespread attention the police investigated the incident, and the school immediately expelled the student and several others who can be seen in the video. The student now faces a very serious situation. Both unarmed robbery and assault and battery with a dangerous weapon are felonies that carry maximum penalties involving state prison. As a result of the ensuing high profile media coverage it is likely his case will receive the utmost attention and care from Norfolk County prosecutors.

One interesting aspect of this case is the charge of assault and battery with a dangerous weapon as a result of the student reportedly grabbing the alleged victim’s shoes and then striking the alleged victim with them. In Massachusetts there are two different kinds of dangerous weapons under our law. Some items are considered dangerous per se. Dangerous per se weapons are items that are designed to produce great bodily harm or death. (for example guns, certain knives, brass knuckles, etc) However any item can be considered a dangerous weapon if it is used in a manner that makes it capable of producing great bodily harm. These otherwise harmless items are referred to as dangerous as used weapons. (For a more detailed discussion of Massachusetts law on this topic read Commonwealth v. Appleby the case is a little graphic in the details, but skip to page 303 for the discussion on dangerous per se and dangerous as used)

Sneakers have been found to be dangerous weapons by higher courts in Massachusetts several times, so it is unlikely a legal challenge will get that charge dismissed prior to trial, however because the sneakers were not used to kick, but rather used in more of a smacking fashion it may be a viable issue at trial whether or not their use in this particular case was dangerous.

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648873_cynicism_2 2.jpgThe 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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Boston Cop.jpgA hotly debated topic in criminal law circles is the limits on police to exercise their authority when they are off duty or outside of the jurisdiction where they are employed as officers. While some citizens are comforted by the idea that a police officer may take action at any time to exercise their authority, others see off duty police exercising their authority outside of their sworn jurisdictions to be an invitation to misconduct and potential peril.

Recently the Supreme Judicial Court ruled on the case of Commonwealth v. Limone. In this case an off duty Somerville police officer had his personal motor vehicle struck in a car accident. At the time of the accident the officer was returning to his home and no longer on duty, however he was still in his uniform. When the accident occurred the officer got out of his motor vehicle and approached the driver of the car that struck him. After a short interaction with the driver the off duty officer formed the opinion that he was under the influence of alcohol.

At that point the officer ordered the driver to get out of his vehicle. The driver complied with the order and the officer reached into the motor vehicle and confiscated his keys. The officer ensured that the driver stayed put at the scene of the accident until the Woburn Police arrived and took over the investigation.

When the Woburn Police arrived they conducted field sobriety tests and placed the driver under arrest. He agreed to take a breathalyzer test and was over the .08 limit with a score of .12. The driver’s lawyer challenged the legality of the off duty officer’s actions prior to the driver’s trial in Superior Court, however those challenges were unsuccessful and the driver was eventually found guilty and sentenced to serve time in a state prison.

In Massachusetts it is a long standing rule of law that an officer may not make arrests outside of his jurisdiction unless one of following three limited exceptions applies:

1) If an officer observes an individual commit an offense in his own jurisdiction he may pursue the offender into a different jurisdiction and effect an arrest
2) If an officer is employed in one jurisdiction, but is sworn in as a special officer in any other jurisdiction he may make arrests in the jurisdictions where he is a special officer. (some small towns that border each other mutually swear in all of the other town’s officers as special officers specifically to take advantage of this exception)

3) An officer from one jurisdiction may make an arrest in a second jurisdiction if that arrest is in response to a request for suitable aid from an a sworn officer in that second jurisdiction.

Clearly none of these exceptions applied to the circumstances in this case. Because none of the exceptions applied a lower appeals court sided with the defense and agreed that the officer could not detain the driver, because the officer was outside of his jurisdictional authority.

However the Supreme Judicial Court reveiwed the lower court’s decision and used this case as an opportunity to expand police authority to act outside of their jurisdiction. Although the off duty officer had ordered the driver not to leave, and confiscated his keys thereby depriving him of any means to leave, the Supreme Judicial Court declined to acknowledge that the driver had effectively been arrested. Rather they decided that the encounter that took place in this case was not an arrest and more akin to a mere traffic stop.

Because the court declined to find the off duty officer’s actions amounted to arrest, they upheld his actions as proper and within the limits of existing law on off duty officer conduct. As a result, the conviction was reinstated and the driver must finish his prison term.

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By way of the Springfield Republican I recently came across the cautionary tale of a man who recently posted some items for sale on craigslist.  After some communication over the internet, the man went to meet the person he believed would purchase these items at a local Starbucks.

Unbeknownst to the man, the interested buyer was not a potential customer at all, but rather the original owner of the equipment who had recognized his stolen goods when he saw them posted. That original owner called the police and with their help organized the sting that lead to the man’s arrest in the Starbucks. The man has been charged with receiving stolen property and it is likely a felony because the value of the property involved is greater than $250
Cases like this are becoming more and more common. Although the average receiving stolen property case never receives any media attention this one likely got coverage because of the excitement involved with a police sting spurred by a citizen pursuing his stolen property over craigslist.

An initial reading of the article might leave one with the impression that the man’s case is a hopeless one, that he was “caught red handed” and couldn’t have any possible defense. However receiving stolen property cases are not always as clear cut as they might seem at first blush.

In order to prove someone guilty of receiving stolen property it must be proven beyond a reasonable doubt that the person accused not only had possession of stolen property, but that the person in possession of the stolen property knew or believed it was stolen. (for a deeper discussion of exactly what that means read Commonwealth v. Sandler )

In this man’s case it’s not apparent at all that he knew the items he brought with him to the Starbuck’s were stolen property. There is no indication that he admitted to being the one who even posted the ad on craigslist. It is entirely possible that the man was the unknowing fall guy for the real guilty party, and was just used as a pawn to complete the transaction. Its also possible that the man bought these items from a source he thought was legitimate, and saw an opportunity to resell them for a profit.

Whether the man is guilty or not, he certainly finds himself in a difficult situation now. Being charged with a felony for receiving stolen property could have a major negative impact on his life. According to Massachusetts General Laws the maximum penalty for receiving stolen property over $250 is 5 years in state prison. On top of potential jail time if he is convicted the man will have the conviction on his criminal record, and may find it to be a significant bar to any attempt to gain employment over the next 10 years.

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