Arrests for serious crimes are likely to trigger requests for bail. This is true not just in Massachusetts but in every state. Bail orders are set in various situations. Bail orders depend on the severity of the crime charged and other things more fully discussed below in this post. Massachusetts General Laws Chapter 276 Section 58 sets out the procedure for most bail matters. Initial orders of bail that are set in court are matters that should be handled by an experienced criminal defense lawyer. If not handled properly there is a chance that you can be held in jail. This post looks at the time and manner when bail is usually addressed.
Recently in Drug Crimes Category
The Massachusetts joint venture laws are perhaps the most confusing for jurors to appreciate and understand. A joint venturer is someone who aids or assists in the commission of a crime. This is the person or people who help the principle do the actual act. Helping someone escape or acting as a lookout can also be acts that impart responsibility as a joint venturer. It is the obligation of the district attorney to prove beyond a reasonable doubt that the joint venturer had the same intent as the principle; that he or she intended that the crime be committed. Mere knowledge that a crime is being committed or mere presence at the crime scene is not enough to satisfy the prosecution's burden of establishing a joint venture. All of that is understandable but here is where the law becomes problematic. A jury can infer the mental state of the joint venturer based the circumstances of the case. So what does the district attorney do in cases where many people are caught and present at a crime scene? They charge them all with the crimes and let the jury make the determination as to each person's intent. This is completely unfair, disingenuous and downright dangerous. The following recent Brockton cocaine trafficking arrest demonstrates my concerns.
This question is brought up in my office several times each month. Someone is arrested and charged with drug trafficking. They had very little or no drugs on them. Or, they were caught selling a small amount of a controlled substance. Small meaning substantially less than the threshold amount needed to prove trafficking. They get arrested and arraigned in court. They are shocked to find out that they have been charged with trafficking. How can they charge me with this? An article I read earlier today gives an example of this. Erik Owen, an Andover, Massachusetts resident was arrested on drug charges in Andover. As a result a location in a neighboring town was searched. There, the police found in excess of two hundred grams of heroin. This was certainly enough product to charge heroin trafficking. The cops also found a firearm and bullets. Owen was charged with trafficking heroin over two hundred grams.
An Unlawful Massachusetts Felony Drug Arrest: Can The Cops Make You Get Out of Your Car After a Routine Stop?
Do you ever wonder why "routine" motor vehicle stops often seem to result in major drug busts? How is it that the cops just happened to pull someone over and suddenly find large quantities of drugs in the car, on the driver and in the possession of the passenger? Is it because of good police work? Is it luck? Or is it more likely a violation of your constitutional rights that if properly attacked can result in suppression of the drugs and a dismissal of your case? This post examines a western Massachusetts motor vehicle stop that resulted in three people being charged with felony possession with intent to distribute drugs and conspiracy.
Wareham Drug Trafficking Arrest: Criminal Lawyer Discusses Arrests Based on Surveillance Observations
Drug arrests are posted in media outlets throughout Massachusetts several times every day. The basis for these arrests is often the representation that surveillance of suspected drug dealers was conducted for weeks or months. Usually the suspects are driving cars. The cars are followed by the police and ultimately an arrest is made. What I find suspicious about these representations is that police observe a routine pattern of conduct that they see for a particular period of time. Then, all of the sudden, one day they decide to stop the suspect's car. And guess what? That day the police find drugs in the car. This post looks at whether benign observations can legally lead to stops, searches, seizures and arrests without more.
Drug crimes arrests are made every day in Massachusetts and in virtually all cities and towns. No municipality is immune to the current drug problems plaguing this state. Newspaper articles of arrests and drug busts flood the internet daily in support of this statement. What many articles do not make clear however is what exactly happened. Rather, there is a tendency to post headlines only; i.e. that an arrest was made in a particular town for a particular charge. You don't know how the arrest was made, why the arrest was made or just how strong the district attorney's case is relative to the person being charged. Take for example the recent arrest of Brandon J. Sones and Michael Russell, two twenty-four year old men arrested in Marlborough and charged with a variety of Massachusetts drug crimes. Just how serious are these cases? What if anything will they be convicted of? What did they really do? Based on the press release alone this post takes a look at some thoughts I have in this case.
Police and district attorneys in Massachusetts have a tendency to charge people with crimes that are much more severe than the crime that they believe was actually committed. They are not supposed to do this. They are supposed to charge people solely for the crime they truly believe was perpetrated. The classic example of this is Massachusetts drug cases. Take for instance the case of Andre Jacobs, a twenty year old Stoughton, Massachusetts resident who was approached in his car by the police for a purported motor vehicle infraction. When the police approached him he made some "furtive movements" that led the officers to search. They found five and one half grams of heroin and some cash. Jacobs was charged with possession with intent to distribute heroin. This is a felony in Massachusetts and a very serious one at that. But why was Jacobs charged with possession with intent as opposed to simple possession? The answer is easy. Because that is the larger crime and one that is punished more severely in Massachusetts. This post examines the motives behind criminal charges in Massachusetts, particularly as they relate to drug crimes.
Once again I wake up and grab the local Lawrence, Massachusetts newspaper and read about another heroin bust. This one involved an investigation spanning Lawrence, Haverhill and Methuen, Massachusetts. The arrests were made after a brief investigation into local heroin use following several local overdoses, some fatal. The first thing that catches my eye is the case of Carl Saccoccio from Somerville who apparently drove to Lawrence to purchase a bag of heroin. Whether this was for recreational purposes or to support a habit is unclear but for certain there was no felonious intent. So what happened here is that rather than catch dealers or suppliers the cops caught, arrested and charged users. Catching users is apparently easier than catching distributors. This article identifies Saccoccio and fourteen others as being arrested for possession of heroin. No one was arrested for dealing. Most of the arrestees had outstanding warrants and I would be that nearly all of them have criminal records for drug convictions. Six of the individuals arrested are from New Hampshire or Maine.
Several times each week someone calls my office with this question. The answer varies from case to case. The consequence of defaulting from your obligations in the Massachusetts criminal courts is extremely fact specific. Much depends on when you defaulted and why you defaulted. Some situations are considered quite serious. Others are not. This post summarizes the most common scenarios people face when defaulting. No matter what category or example seems to fit your case it is important to consult with a lawyer if you are in default. There is probably a warrant out for your arrest and you will need a criminal defense lawyer to protect your rights.
In late November of this year the Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Humberto H. The issue on appeal was 1) whether there existed sufficient evidence to sustain the complaint and 2) whether the judge had to arraign the defendant prior to dismissing the complaint.
Here is a brief history of the proceedings. The defendant was charged with possession with the intent to distribute marijuana. Prior to arraignment he moved to dismiss the complaint on the grounds that there was an absence of probable cause sufficient to sustain the charges. The judge agreed with the defense that the case should be dismissed. However, he believed that the defendant needed to be arraigned for him to do so. The defendant was thus arraigned after which the case was dismissed. The government appealed the judge's ruling.
The court found as facts the following:
In January of 2011 the defendant entered his high school late. Upon his entry authorities smelled a strong odor of marijuana on him. The defendant was then confronted and subsequently searched. Found in his possession were five bags of marijuana that the police believed he possessed for the purpose of distribution. The initial arraignment was continued in order to give the defense the opportunity to file a motion to dismiss prior to arraignment. The motion was filed and allowed but only after the accused was arraigned.
In its opinion the court found dismissal of the complaint proper. The mere presence of five bags of marijuana without more fails to support probable cause to believe that the defendant possessed the intent to distribute. The weight of the drug was minimal. Its street value was nominal at best. There were no drug distribution paraphernalia in the possession of the accused and he made no admissions supporting the issuance of the complaint. This aspect of the Humberto H. opinion was not novel. Rather, it was corroborative of established case law requiring the prosecution to show more than the presence of multiple packages of drugs to support a complaint alleging the intent to distribute.
The next issue decided by the Court made new law in Massachusetts. Now, at least in the juvenile courts judges can dismiss cases prior to arraignment. The rationale for the decision is interesting. The Court voiced concern that once arraigned the juvenile will have a court record showing involvement with the system. This is a permanent record that can be accessed by certain designated authorities. At subsequent proceedings, particularly bail hearings, prosecutors often argue that the defendant has "multiple entries" on his record regardless of how those matters were disposed. In conferring this new right to juvenile defendants the Court further held that this issue has been addressed in other cases without having been definitively decided and the time is now ripe for settling this issue. Finally, this issue was believed to be one of public importance that required a resolution.
Here is what remains unresolved. Is this opinion going to be made applicable to adult cases? I believe it will. Right now, some judges will dismiss complaints in the adult court on motions prior to arraignment. Others will not. I imagine we will now see a trend where these motions are allowed prior to arraignment. I also expect this matter to be litigated in the appellate courts shortly as well.
Just yesterday Taunton, Massachusetts police were investigating "a potential parole violator" on Crossman Street. Around 5:30 p.m. they went to a home at that address due to their belief that Jason DaGraca was in violation of his parole. When the police arrived they searched a car in the driveway. In it they found a quantity of marijuana consistent with drug possession, possibly enough to satisfy the elements of possession with the intent to distribute. The officers then entered the home where they found some paraphernalia consistent with drug usage. The officers continued their search of the home. They observed some ceiling tiles that suggested to them that something might have been secreted in the ceiling. They continued their search and found enough heroin and cocaine to bring charges of trafficking class A and trafficking class B. DaGraca has been charged with Trafficking Cocaine, Trafficking Heroin, Possession With the Intent to Distribute Marijuana and more. His girlfriend who was also present was charged with the same crimes. Police also found a hypodermic needle, cash and a digital scale during their search. Reis' parents and two children were in the house at this time as well.
Lawyers Who Defend Drug Cases in Taunton, Massachusetts
If this article is accurate and complete then there are countless defenses to these charges that could succeed prior to trial and after trial. Here are some initial thoughts: 1) what were the police doing searching a car in the driveway? 2) did they have a search warrant? 3) who's car is it that they searched? 4) where in the car were the drugs located? 5) how did they get into the house to search? 6) was there a search warrant or did they have "consent" to enter? 7) what if anything justified the search of the home once they were inside? 8) what did the ceiling tiles look like prior to the officers entering the home? 9) in what part of the home were the suspicious ceiling tiles located? 10) how are the police able to attribute criminal activity to DaGraca and Reis as opposed to anyone else in the home or with access to the home? 11) were any statements made by either of the defendants?
Cases like this one are often replete with facts that warrant a challenge to the permissibility of the evidence at trial or the sufficiency of the evidence as to the individual defendants. I can see where motions to dismiss or motions to suppress might be dispositive here. I can also see where, recognizing flaws in its case the prosecution might look to resolve the matter favorable to either of the defendants or both. This appears to be the kind of case that criminal attorney dream about defending.
A Lowell, Massachusetts criminal defense lawyer defending a man accused of a couple of drug felonies might get the charges dismissed. Just two days ago the lawyer complained that the prosecution was in violation of an order to produce potentially exculpatory evidence. According to reports the prosecution was given until Monday to produce information confirming that the informants used in this case were not the same informants previously publicly deemed unreliable. The prosecution did not produce the affidavits. Instead, the district attorney's office passed blame to the police claiming that they never produced the requested and necessary affidavits. The judge extended the time for compliance until Thursday. If the documents ordered are not ready by that time then all evidence attributable to the informant's efforts will be excluded at trial.
The underlying case here stemmed from a search warrant executed at a Lowell apartment. The affidavit in support of the warrant was predicated in part on information learned from two confidential informants. During the search officers located Oxycodone, and cocaine, a class B substance the quantity of which justified charges of possession with the intent to distribute, a felony in Massachusetts. The district attorney also charged with defendants with conspiracy. Drug paraphernalia was also found during the search. The informants in question were believed to have fabricated evidence in other instances that ultimately resulted in the dismissal of seventeen cases.
This case demonstrates the value of having a persistent criminal defense lawyer. Here, the lawyer understood that cases in Lowell using dirty informants had been revealed. He also learned that several cases where those individuals were used had been dismissed. In this case, I am assuming that the fact of the case did not require the disclosure of the informant's identity. So, the defense attorney kept fighting. He moved for confirmation that the bad informants were not used in this case. It is no wonder why the judge has threatened what will ultimately be a dismissal of this case. If the prosecution is unable to put together written confirmation under oath that these people were not involved in this investigation there is a strong suggestion that they were in fact somehow connected to this prosecution thereby warranting sanctions.
This case also shows how judges might hold the prosecution to a high standard of integrity. Compelling them to produce sworn statements showing that there is nothing illicit about this investigation promotes confidence in the system. And if these arrests came about as a result of tainted information the cases simply should be dismissed. The district attorney in this case should really be relieved by the judge's order if he or she has any doubt about the credibility of these informants. Presenting dirty evidence creates the possibility of sanctions against the prosecutor, something that is entirely avoidable in this case.
Braintree, Massachusetts firefighters responded to an alarm at an apartment complex two days ago sometime around 2:30 in the afternoon. After finding and eliminating the material that triggered the alarm they entered an adjacent apartment to make sure that the occupants were okay. While going through the home the firemen noticed a large quantity of marijuana in a bedroom closet. They observed very little furniture in the apartment and notified the police. Officers responded to the home and applied for a search warrant. Once inside the home they found one hundred sixteen pounds of packaged marijuana and some drug distribution paraphernalia. The property was secured. Just prior to the search Mary Mei Chan and Dang Huynh arrived at the home. Both were detained and ultimately arrested. They, along with the lessee of the apartment have been charged with trafficking marijuana and conspiracy to violate the Massachusetts drug laws. The case is pending in the Quincy District Court but will likely be prosecuted in the Norfolk County Superior Court in Dedham.
Cases like this one present an interesting challenge for criminal defense lawyers. Three people have been charged with trafficking, none of whom were present when the firefighters responded to the alarm. The two people who did show up at the home were not identified as tenants of the apartment. How then is the prosecutor going to prove that either of these individuals intended to traffic this marijuana? I am not sure they can. Drug trafficking in Massachusetts requires the prosecution to proved beyond a reasonable doubt that the person 1) possessed the controlled substance, 2) that he did so with the intent to distribute that drug and 3) that the quantity exceeds the trafficking threshold, in this case fifty pounds. The only element that can easily be proven is the third element, the quantity of the substance. But establishing the elements of possession and intent to distribute for Chan and Huynh is not going to be easy. If both of them were smart enough to keep quiet and not talk to the police then proving the case against them will be difficult.
The same problem might apply to the lessee of the home. How can the district attorney prove that she had any involvement in drug trafficking activities. How long had she been the tenant? Did she actually live there at one time? Was she seen going in and out of the apartment building? Did she sublease this to someone else? Does she have a history of dealing controlled substances, particularly marijuana? I can certainly see where motions to dismiss might be viable in this case. Again, much of this depends on what if anything the defendants said to the police. Hopefully, for their sakes they said nothing.
Sometime around three o'clock in the morning on Route 495 a Massachusetts State Trooper reportedly observed a car committing several motor vehicle violations, one of which was operating in the breakdown lane. The officer stopped the car. Then, according to a report in Boston.com, the officer developed information that resulted in him searching the vehicle. One of the passengers, Lesley Isler was found in possession of the cocaine and Percocet pills. Isler was arrested and arraigned in the Marlborough District Court on charges of trafficking cocaine and Percocet. The operator was simply given a citation for a civil motor vehicle infraction. Another passenger, Thomas Hamilton was cited for possession of less than one ounce of marijuana. In accordance with recent Massachusetts law this is not a crime.
I am always troubled when I read police reports or media accounts of routine stops that result in the arrest of passengers in motor vehicles. Massachusetts law does not permit the police to order a passenger from a vehicle following a routine traffic stop. The exception is where the officer has a "reasonable apprehension of danger". The test used by courts hearing challenges to these exit orders is an objective one. Courts look at the facts and circumstances to see if they objectively give the police a "heightened awareness of danger". In several instances Massachusetts courts have ruled that there is no basis to interrogate a passenger after the driver has produced a valid license and registration. Protections in Massachusetts in this area are greater than those provided by the Fourth Amendment, thus making your choice of a Massachusetts criminal lawyer a very significant decision. Any time I get a client that was subject to an exit order I immediately think that a motion to suppress should be considered. A successful challenge to a search results in suppression and suppression usually means dismissal.
Aside from the legal issues that may benefit Isler I can see some factual "observations" that make no sense. Do you really believe that the driver was operating in the breakdown lane and committing a variety of motor vehicle infractions? No way. Maybe if he were impaired. But that is not even remotely suggested here. I imagine the trooper had a hunch based on the time of day, the number of occupants in the car, the race of the people in the vehicle or maybe some information from other police officers that was not disclosed. Or, perhaps an informant had a role in this but the officers are protecting that person and not being honest in how they are reporting this matter. This is something that the defendant's lawyer will investigate.
Massachusetts Criminal Appeals Lawyer Argues That Element of Crime Not Met After Parties Fail to Introduce Stipulation to Jury
In Commonwealth v Ortiz, decided earlier today the Massachusetts Supreme Judicial Court affirmed a conviction for drug distribution notwithstanding the failure of the prosecution to prove beyond a reasonable doubt that the substance charged was in fact cocaine. The facts of the case are as follows: In June of 2010 a Weymouth, Massachusetts police officer was conducting an undercover surveillance during which she observed what she believed to be a drug deal. One week later she saw the same car and same driver allegedly engage in identical activity. This time the officer approached the buyer and found her in possession of cocaine. A support team was notified and the car, being driven by Ortiz was pulled over. Ortiz was arrested and charged with distributing cocaine and a school zone violation. After a jury trial he was convicted.
The prosecutor and the defense lawyer agreed prior to trial to stipulate that the substance was cocaine. During the trial the substance was referred to as cocaine however at no time was a certificate of analysis produced nor was the stipulation offered by the assistant district attorney, the defense attorney or the judge. The judge did reference the stipulation during his jury charge. On appeal Ortiz argued that since the stipulation was not offered before the prosecutor rested his case the judge should have allowed the motion for a required finding of not guilty. The defendant further argued that a stipulation to an element of the offense should be in writing and signed by the defendant. Alternatively, the stipulation must be the subject of a colloquy. In rejecting the appeal and affirming the conviction the Supreme Judicial Court refused to answer the question as to whether the failure to enter the stipulation constituted error. Rather, the Court held that reaching that issue was not necessary since there was no substantial risk of a miscarriage of justice. Similarly, the challenge to the absence of a signed stipulation and the absence of a colloquy did not warrant a reversal of the conviction. However, this case has prospective application regarding stipulations to an element of the case. Going forward, such stipulation should be submitted to the jury prior to the government resting its case.
From my perspective this decision seems to relieve the district attorney of its
burden of proving all elements of the crime beyond a reasonable doubt. Even though there was an agreement that the substance was cocaine the agreement
itself was never conveyed to the jury. Thus, legally there was no adequate proof that the substance was in fact what was charged. It was incumbent upon the prosecutor or the judge to make this known to the jury prior to the final submission of all evidence.