Massachusetts Criminal Defense Lawyer Blog

As technology advances, a slew of new legal issues have found their way into courts across America. Social media networks, email, texting, and other technological communications pose new questions surrounding citizens' privacy, the 4th amendment, and search/seizures issues for police. Recently, a Florida Supreme Court ruled that police are required to obtain a search warrant before examining the contents of an arrestee's cell phone.

In the case of Smallwood v. State, the defendant was arrested for allegedly committing an armed robbery of a convenience store. Upon his arrest, police confiscated and examined the contents of a cell phone in the defendant's possession at the time of his arrest. Police discovered incriminating evidence on the phone, including images of a handgun, and photos of stacks of cash that were taken after the date of the robbery. However, the defendant argued that his 4th amendment right was violated.

According to the 4th amendment, United States citizens have the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Warrants can only be obtained with probable cause and should specifically describe the place to be searched, and the persons or things to be seized. Further, to have probable cause, police must have legally sufficient reasons to believe a search is necessary. Law enforcement cannot just seize property to use as evidence without first obtaining a warrant. While evolving technology that provides instant access to a person's bank accounts, medical records, contacts, photos, and communications pose seemingly new questions on search/seizure, the courts have faced these issues historically.

For example, in Katz v. United States (1967), the government wiretapped a telephone booth. The Supreme Court ruled that this action was an unlawful search because:

1. The defendant did not expect the phone booth conversation to be broadcast and
2. Society believes that expectation is reasonable.

The "Katz Standard" is still used today and has been expanded upon. In United States v. Jones (2012), the Supreme Court ruled, in addition to the Katz Standard, a search occurs when law enforcement trespasses on the searched person's property. For example, in Jones, police attached a GPS device on a car without the defendant's consent.

However, with evolving technology these issues become more complicated. For example, in 2010, the United States Court of Appeals for the Sixth Circuit ruled in United States v. Warshak that the government violated the 4th amendment when they asked the defendant's internet service provider to turn over his emails before obtaining a warrant issued with probable cause. The court said that a person has a reasonable expectation of privacy in their emails.

Yet, in the case of The People v. Gregory Diaz, the Supreme Court of California ruled that allowing a warrantless search by law enforcement of suspects' cell phones at the time of arrest was allowed on the grounds of preventing the destruction of evidence, such as text messages. Specifically, the court stated: "the loss of privacy upon arrest extends to the arrestee's personal property, immediately associated with the person, at the time of arrest, and this loss of privacy entitles police not only to "seize" anything of importance they find on the arrestee's body, but also to open and examine it."

The Florida Supreme Court disagrees. In Smallwood, the court ruled for the defendant, agreeing that police were required to obtain a warrant before searching the contents of his cell phone. The Florida Supreme court stated, "In our view, allowing law enforcement to search an arrestee's cell phone without a warrant is akin to providing law enforcement with a key to access the home of the arrestee. We refuse to authorize government intrusion into the most private and personal details of an arrestee's life without a search warrant simply because a cell phone device that stores such information is small enough to be carried on one's person."

Issues involving changing technology, easy access to personal information, and 4th amendment rights are sure to continue find their way into US courts. Only time will tell which precedent will succeed. Will it be California's ruling that confiscating cell phones doesn't violate the 4th amendment or Florida's ruling that it does? Perhaps this is an issue for the United States Supreme Court.

If you, or anyone you know needs help in issues surrounding search/seizures that potentially violate the 4th amendment, do not hesitate to contact Attorney Michael Delsignore. Attorney Michael Delsignore has experience in criminal defense and can counsel you on your specific case. Also, for more information on search/seizure and the 4th amendment, check out the following blogs:

Searches in high crime areas: Are they Constitutional in Massachusetts?

Warrantless search of vehicle raises 4th amendment issues regarding the automobile exception to the search and seizure clause

Since the legislature decriminalized possession of less than an ounce of marijuana through Massachusetts General Law chapter 94C, section 32L, the Court has struggled with issues concerning growing the drug. In Commonwealth v. Palmer, the Supreme Judicial Court held that cultivation of one ounce or less of marijuana is a criminal offense.

In Palmer, Adams police officers entered the defendant's residence with a warrant and arrested him. While searching for the defendant in his home, the officers saw marijuana plants growing in plain view. The weight of the plants collectively was less than one ounce.

The defendant argued that Massachusetts General Law chapter 94C, section 32L decriminalized the growth of marijuana up to or less than an ounce. The Court disagreed, looking to a different section of the statute for support. Section 32C (a) states that any person who cultivates marijuana will be subject to criminal charges. When enacting the law that decriminalized marijuana, the legislature did not intend to repeal any other part of the law, including the criminalization of cultivation.

Palmer is similar to Commonwealth v. Keefner, where the Court held that possession of less than one ounce with intent to distribute is a criminal offense. So, while possession of one ounce of marijuana or less is decriminalized, intending to distribute or cultivating the same amount is still criminal. Cases like Keefner, Cruz and other recent cases from the SCJ all have devised potential defenses for Criminal Defense Lawyers in Framingham in defending a crime offense of possession with the intent to distribute marijuana.

The Massachusetts Supreme Judicial Court held that sharing a marijuana cigarette wit another does not constitute distribution of marijuana. The SJC's decision came in the case of Commonwealth v. Jackson. Jackson held that sharing a marijuana cigarette was decriminalized by Massachusetts drug laws which held that possession of under an ounce of marijuana is not a criminal offense. In interpreting this statute, the SJC held in Commonwealth v. Keefner established that distribution of marijuana, even if under the legal limit of one ounce, can be prosecuted as unlawful distribution of marijuana or possession with the intent to distribute.

In Jackson, Boston police were on duty at the Boston Freedom Rally, an annual event held to promote the legalization of marijuana. The officers were dressed in plain clothes in order to enforce drug laws. Two officers observed the defendant and two other men passing a marijuana cigarette back and forth to one another while sitting on a bench. The three men were given civil citations for possession of one ounce or less of marijuana pursuant to Massachusetts General Law chapter 94C, section 32L.

During the encounter, the defendant stood up and one of the officers observed a plastic bag protruding from his pocket, and the officer pulled the bag from his pocket. The bag contained what appeared to be marijuana. The other officer conducted a search of the defendant's bag without consent. The bag contained less than one ounce, an amount deemed not criminal pursuant to chapter 94C, section 32L.

The Court held that the conduct of the defendant was not criminal, and therefore the police did not have the authority under the Fourth Amendment to search the person of the defendant.

The reasoning of the Court's conclusion came from the interpretation of the statute. While distribution of if marijuana is still criminal, the Court distinguished it from the defendant's conduct. This is because when the defendant passed the marijuana cigarette to the other man sitting on the bench, he was not acting as a seller in a business transaction. Rather, he was engaging in social sharing of a marijuana cigarette. The Court held that this social sharing within the scope of possession of an ounce or less or marijuana, and therefore lawful pursuant to statute.

Since the change in the marijuana laws, any charge of possession with the intent to distribute marijuana requires careful consideration of how the news laws may create a defense to the charge under the statute or under the Constitution.

Since Commonwealth v. Cruz, the Supreme Judicial Court held that the smell of marijuana did not give an officer probable cause to conduct a search. Commonwealth v. Daniel, a recent decision by the Supreme Judicial Court, affirms the holding from Cruz. The Daniels decision may provide a defense to a drug stop for a Boston criminal defense lawyer based on the Fourth Amendment to the United States Constitution.

Boston police officer was patrolling Dorchester in the early hours of the morning when he observed a SUV without a driver's side headlight make a left hand turn without signaling. The officer stopped the vehicle and when approaching the car noticed that the man sitting in the passenger's seat was rocking back and forth. The officer could also smell marijuana when he approached the vehicle, and when he asked the driver if there was marijuana in the vehicle, the driver produced two small bags from her pockets. The driver also emptied all other possessions from her pocket.

Based on this behavior, the officer suspected that the defendant was concealing something more, so her ordered the driver to pull over further and ordered that the passenger and then driver exit the vehicle. The officer searched the passenger and subsequently the driver, finding no contraband on either person. The officer then searched the vehicle and found a firearm in the glove box.

This issue is whether the search was permissible.

The Court first looked to the recently enacted Massachusetts General Law, chapter 94C, section 32L, which decriminalizes possession of an ounce or less of marijuana. Subsequent case law, Commonwealth v. Cruz, determined that the smell of marijuana alone does not give officers probable cause to believe that specific criminal activity is underway. An officer needs probable cause in order to conduct a search, meaning that a reasonable person believed the actions of the officer were appropriate from the circumstances surrounding the search.

The Court explained that because of the statute and Cruz, citizens at most expect a civil fine when in possession of an ounce or less of marijuana. Conversely, citizens do not expect a significant intrusion of liberty and privacy with a search. Since there were no other articulable facts besides the smell of marijuana, the officer did not have probable cause to search either occupant or the vehicle.

While the Commonwealth also argued that the search was justified because the officer was concerned for his own safety, the Court did not find there was enough evidence to justify the search. When a search is prompted because of officer safety, the officer must establish a reasonable basis for the exit order and the intrusiveness of the search must be proportionate to the degree of suspicion that prompted the search.

The Court found no evidence to support the officer's justification for the search. There are no facts to indicate that either of the occupant was carrying a dangerous weapon.

The Commonwealth also attempted to assert that the search was justified because the driver was operating under the influence of marijuana. The Court quickly dismissed this claim because there were no facts to support the claim. The driver was not driving erratically, she did not have glassy eyes, there was nothing unusual about the driver's speech or movement, and she was cooperative throughout the interaction.

The conclusion that the Court came to was consistent with holding in Cruz, limiting an officer's ability to search a person or a vehicle based on the smell of marijuana alone. It also expands upon an officer's ability to search based on personal safety or the possibility of the driver being under the influence, absent articulable facts to support the officer's claim.

If you are charged with distribution of marijuana, the district attorney may ask for bail at your first court date. The purpose of bail is to ensure you show up for each and every court date. The court will consider these factors when setting bail:

• Seriousness of the offense
• Likelihood of jail time for the offense
• Criminal record
• History of drug and alcohol abuse
• Any 209A restraining orders taken out against you.

These factors help the court determine if you are likely to appear for your next court date.

The purpose of bail is not to punish you prior to trial, but it can result in a significant deprivation of your liberty. If you cannot post bail you will be held during the pendency of the case. This could force you to consider accepting a plea agreement you may not otherwise accept or suffer a loss of liberty while your case is pending. A possession with the intent to distribute marijuana charge will often not result in a significant cash bail if you have not record or have not defaulted on prior court appearances. Some drug offenses may result in the Commonwealth seeking a cash bail; these offenses include:

• Possession with the intent to distribute cocaine in a school zone
• Any traffic offense
• Possession with intent to distribute heroin or other narcotics

If you have any of the above offenses, the district attorney will ask for bail and you may be taken into custody while the issue of bail is argued. It is extremely important not to have any reaction when you are initially taken into custody because the judge will consider any outbursts or action on your part in assessing whether to post bail.

If you are someone with little or no record and are charged with a distribution offense, you will be released on personal recognizance or given a relatively low bail amount.

If you have any questions about a drug charge out of Framingham, you can call Boston Criminal Defense Attorney, Michael Delsignore. You can also download his free book: Understanding the Court Process When Charged with a Massachusetts Criminal Offense.

Recently the Supreme Court limited police's authority when using drug-sniffing dogs. In Florida v. Jardines, the Court held that police conducted an unreasonable search when they led the dogs to Jardines's porch to detect the smell of marijuana.

Acting on a tip, police brought a drug-sniffing dog to the home of the Jardines because he was suspected of growing marijuana at his home. Police took the dog onto Jardines's porch and the dog then alerted the police that the smell of marijuana was present. Based on this information, the police obtained a search warrant and discovered marijuana plants at the home of Jardines.

The issue was whether the conduct of the police on the porch was in violation of the Fourth Amendment.

The Court held it was an unlawful search because the Fourth Amendment provides that individuals are guaranteed protection against unreasonable searches of the home. In Jardines, the search occurred when the police were gathering information with the use of the drug-sniffing dogs. Since the search was conducted without consent of the homeowner, a warrant, or even probable cause, it was unreasonable and therefore in violation of the Fourth Amendment.

The Court stressed the protection of property rights guaranteed by the Fourth Amendment, specifically in regards to the home and curtilage. The porch is included in the definition of curtilage and deserves a high degree of protection. Therefore, the officers conducted an unreasonable search when they physically invaded the porch to gather information on the defendant without permission.

The Supreme Court's decision in Jardines is important because it affirms the rights of the individual, especially in regards to property. It also limits the power of the police, restricting the search of an individual's home when there is not permission or a warrant.

If you are living in Massachusetts, and feel that your home has been unreasonably searched for drugs, click here. Or call me at 781-686-5924 to discuss your constitutional defenses.

As a Massachusetts criminal defense lawyer, many plaintiffs will attempt to file criminal charges against a person years after the alleged incident occurred. A statute of limitations is a law which places a time limit on civilians who wish to file a criminal complaint. This means that civilians are not permitted to file criminal charges once the time lapsed has exceeded the statute of limitations for that crime. The case of Commonwealth vs. Joseph Perella discusses issues regarding the statute of limitations and how it pertains to cases that have exceeded its limit. While the term statute of limitation is commonly used in personal injury cases, it is not a common defense to a criminal charge.

Back in January 20, 2010, a man walked into a Randolph bank with his face concealed, passing a note to the teller which requested money and claimed that he was carrying a weapon. After the teller complied and handed the money to the man, the man left the bank in a car, which a civilian witness took note of the registration plate. Stoughton police managed to track the car down, along with items that had DNA that matched the defendant. These items were kept in police storage until 2007 when they were finally tested, giving positive results on Jaunary 16 2010. On January 19, 2010 a criminal complaint was filed against Perella, charging him with the commission of an armed robbery that took place on January 20, 2000. In May of 2010, the superior court grand jury returned an indictment charging Perella with armed robbery.

According to Massachusetts General Laws Chapter 277 Section 63, the statute of limitations for armed robbery is 10 years. This means that after 10 years of the crimes occurrence, the accused in an armed robbery case cannot be lawfully detained or arrested. The statute can be tolled- stopping the statute from running for a period of time- for a variety of reasons such as the age or mental competence of the victim at the time of the crime. Furthermore, there are a few general exceptions to the statute of limitations rule:

In the superior court, the defendant filed a motion to dismiss the charges based on the fact that the charges had exceeded the time limit of the statute of limitations for armed robbery. Although the Commonwealth claimed that although the indictment was after the limitation period, the charges were filed within the ten year period.

However, the Superior court judge ruled that the statute of limitations requires the indictment to be within the ten year limit, and the case was dismissed with prejudice. The superior court affirmed, also stating that the issuing and filing of the indictment exceeded the ten year limit.

States tend to structure their statutes according to the type and level of the crime. As armed robbery is legally considered a violent felony, it holds a relatively longer time limit of 10 years.

Massachusetts requires all firearms to be secured in a locked container when not in possession of the lawful owner. As a Boston criminal defense attorney, many are often confused on what is required to satisfy this statute. The recent case of Commonwealth v. Reyes decided by the Massachusetts Supreme Judicial Court discussed what is truly meant by this statute.

The defendant in this case owned a firearm lawfully with a class A license. On his way to work as a correctional officer the defendant had the gun on him and left it in his glove compartment going into work. His car was later searched and the gun was found with no lock or safety device attached to it. The defendant was charged and convicted of the storage status violation.

The defendant asked for the charge to be dropped because the law is unconstitutionally vague and also offended his second amendment right to bear arms. The court ruled this did not offend defendant's second amendment rights as he still had a right to carry the gun. The discussion then turns to whether the "secured in a locked container" provided enough information for the law to be followed by gun owners.

For a law to be valid, it has be sufficiently clear to give the public notice of the prohibited conduct. The court ruled that this rule is sufficiently clear and explained what needing the gun to be secured in a locked container truly meant. They turned to the intent of the statute for this meaning. The SJC stated that the purpose of this statute was to prevent criminal or negligent handling of firearms by people who are not the lawful owner of a gun. The court holds that to be "secure" it must be locked and secure enough to prevent others from easily obtaining the gun for misuse. There are many ways a gun can be secured but at minimum it has to be in a container only accessible with a key or a password of some sort. The court rules that having the gun locked in a car is not enough for the gun to be secure. Had the glove compartment been locked and needed a key to gain entry, that will probably be enough to be secure.

The conviction was overturned by the court but sent back to trial so the judge could give the proper instruction on what a weapon being secured in a locked container truly means. The case will ultimately come down to whether or not the glove compartment was locked or not. When the owner is the only person who can access the gun, it will be considered secured. However, if a gun is easily accessible to the public, even if it is in a locked area, it will not be considered secure. Commonwealth v. Reyes shows us that it is not enough for the owner of a gun to lock their weapon but it must be secure enough to prevent the public from being able to gain control over the gun.

Often times, those charged with illegal possession of a firearm in Boston will be arrested when the police officer never saw them in possession of the firearm at all. When a suspect is arrested without actually being in possession of the firearm the prosecution will try to prove constructive possession.

As a Boston criminal defense attorney, it is important to fight this charge of constructive possession as often times it can be an abuse of police discretion when an officer arrests everybody on the scene where a gun was found. The Massachusetts Supreme Judicial Court recently answered what the prosecution needs to show to obtain a conviction for constructive possession in Commonwealth v. Romero.

In Commonwealth v. Romero, the defendant was parked in front of a friend's house with three other men. The defendant was in the driver's seat and he had seen one of the passengers with a gun earlier in the day. A police officer pulled behind the defendant's car and observed the vehicle for several moments. It appeared that all four passengers were passing back an object back and forth. When the officer approached the vehicle he observed a gun in one of the passenger's laps. The defendant was arrested and charged with possession of a firearm without a license. Since the defendant was not in physical possession of the weapon, the prosecution relied on constructive possession and the defendant was convicted.

On appeal, the SJC ruled that to be convicted of possession of a firearm when only constructive possession can be shown, the prosecution has to prove the defendant had knowledge of the firearm coupled with the ability and intention to exercise dominion and control. A defendant's presence alone is not enough to prove knowledge or the ability or intention to control and there has to be other incriminating factors to prove the intention.

Here, the court ruled that the defendant had the required knowledge of the firearm and an ability to control it, but that there was no intention to control the firearm so the conviction had to be overturned. The knowledge was shown here as the defendant knew of his friends gun and had been shown it earlier in the day and it was presently being passed around the vehicle. Furthermore, since the defendant was in a vehicle and the firearm was not concealed in any way, he certainly had the ability to have control over the firearm. However, the court ruled that there was no intention to exercise control over the firearm. The fact that he owned the vehicle and was present at the time does not show an intent to control. The court ruled that more than ownership and presence is needed and there needs to be something particular that connects the defendant to the firearm. The defendant did not wear a holster, carry ammunition or anything that tended to show he had the intention of

The SJC in Commonwealth v. Romero was very clear that there has to be some factor that links a defendant to a weapon to prove constructive possession. Without this plus factor as the court calls it, innocent people could be convicted of possession of an illegal firearm by simply being present or an owner of a house or vehicle that happens to have a gun in it. A defendant can be convicted of illegal possession of a firearm without being actually having possession when arrested; however it needs to be clear that the defendant knew about the firearm and had the ability and the intent to exercise dominion over the firearm. But if there is no connection to the defendant and the firearm, than there will be no intent to control and no conviction.

When facing an assault and battery charge in Massachusetts a defendant may face the more severe charge of assault and battery causing serious bodily injury if the evidence shows the assault caused a serious bodily injury. This turns the assault and battery from a misdemeanor to a felony and carries significantly harsher punishment. The recent case of Commonwealth v. Scott was decided by the Supreme Judicial Court and faced the issue of what injuries are sufficient to be a serious bodily injury under G. L. c. 265 §13A(b).

Commonwealth v. Scott involved a defendant who went to his ex-girlfriend's home to confront her. Defendant became violent during the time in the victim's home. Defendant punched the victim in the face, stomach, threatened her with a knife and beat her with a can of soda. The victim suffered several injuries, the worst being a lacerated liver.
The defendant was convicted of several crimes like kidnapping and assault and battery, but because of the lacerated liver defendant was also convicted of assault and battery causing serious bodily injury. To constitute a serious bodily injury, the injury had to result in either (1) a permanent disfigurement; (2) loss or impairment of a bodily function, limb or organ or; (3) a substantial risk of death. The only question on this appeal was if there was enough evidence to show the injury caused an impairment of an organ. The court held that there was no sufficient evidence for a jury to conclude that there was impairment.

The SJC ruled that for there to be an impairment of an organ, the injury has to have a significant effect on the structure and function of the liver. With the evidence that was presented at trial, the court stated that a jury would not be able to find there was a significant effect on the structure of the liver. The evidence introduced consisted of medical records, but there was no expert testimony by a doctor or a surgeon to explain the extent of the victim's injury. The injury consisted of mostly pain to the abdomen but no surgery, medication or other treatment was needed for the injury to the liver. The medical reports simply stated the victim suffered a grade II lacerated liver. Without any expert testimony, the jury could not know what impact a grade II lacerated liver had on the normal structure and function of a liver. A jury is allowed to draw inferences from evidence, but they are not allowed to speculate that a lacerated liver must have caused an impairment.

Without expert testimony, it will be very difficult for the prosecution to prove beyond a reasonable doubt that a bodily function, limb or organ was impaired. A jury will not know every function of the body and that is certainly the case of an organ. Without a Dr. describing the extent of the injury, a jury will not be able to know if the primary functions of an organ or bodily function are affected. Commonwealth v. Scott shows the limits to an injury being classified as a severe bodily injury. An injury may cause severe pain and may even require treatment or hospitalization, but unless the injury has a significant impact on the function and structure on the organ, bodily function or limb, it cannot be classified as a serious bodily injury.

As a Brockton criminal defense lawyer, a question that arises in many cases is did the officer conduct a legal stop under the Fourth Amendment. The Massachusetts Supreme Judicial Court just discussed this issue in the recent case of Commonwealth v. McKoy.

In Commonwealth v. McKoy, two Brockton police officers drove by the defendant and his brother walking down the street on a freezing snowy night. Moments later, the police officers received a call about a shooting that occurred about 100 yards from where they had seen the two men walking. The officers reversed direction and saw the two men continuing to walk with their hands in their pants. The officers got out of the vehicle and drew their weapons and ordered both suspects to the ground. One suspect got away but the defendant was handcuffed and searched. Officers found ammunition and a gun that the defendant had dropped on the ground. The defendant was arrested and found guilty of unlawful possession of firearm and ammunition.

The defendant contends that the search was unlawful and that the evidence of the gun and the ammunition should be suppressed. The SJC upheld the conviction and ruled that the search was legal and the evidence did not have to be suppressed. For the police officers to engage in a stop, they must have reasonable suspicion that the suspect has committed a crime. The court stated that reasonable suspicion is a twofold test; first was the original stop reasonable and second was the search justified under the circumstances. Reasonable suspicion is defined as would a reasonable officer given the facts of the situation find the actions appropriate? Furthermore an officer can take reasonable steps if they feel they are in danger.

The court ruled that in this case this search was reasonable. Due to the fact that the defendant and the other suspect were the only two on the road and were right near the reported shooting gave the police a reasonable suspicion. Furthermore the fact that a gun had to be close to the area and the defendant dropping a large object on the ground when being ordered to put up his hands, the court ruled this justified the stop.

One judge dissented and vigorously disagreed with the opinion above. Justice Berry stated that the rule for reasonable Commonwealth v. Scott provides that this suspicion is based on specific articulable facts and reasonable inferences drawn from those facts; not just a hunch. Justice Berry explains that there was no reason for the officers to expect that these men had committed the shooting and it was simply a hunch of the officers that they may have been involved. The call the officers received never explained the suspects, what they were wearing or where they were traveling. Without this, there was no basis for the officers to believe these men had committed the crime.

The law is well settled that an officer must base his or her reasonable suspicion on actual facts and not just a hunch, even if that hunch turns out to be correct. This result seems to go against that law. The officers seemed to just guess that the defendant was involved in the shooting because of where he was walking instead of basing it on any description of a suspect or direction a suspect was heading. Police officers should not be allowed to base their stops on a hunch a convict a defendant simply because their hunch was correct. In those cases it is still not a legal stop and any evidence collected through the illegal stop should be suppressed.

A common question that frequently arises for a Boston criminal defense lawyer is: does a defendant have to be present at the scene of the drug transaction to be convicted of drug distribution?

A Massachusetts court of appeals decision recently answered this question in Commonwealth v. Mgaresh. The court held that if a defendant is aware of the transaction and in control of transaction, the defendant does not need to be physically present at the time of distribution.

In 2009, an undercover police officer contacted the defendant and arranged to purchase $200 of cocaine. When the detective arrived at the location, he met a women who was on the phone with the defendant during the transaction.The transaction of 1.95 grams of cocaine was completed and the detective arrested the woman..

After the arrest, the defendant went to the police station to bail out the dealer. The detective identified him as the person who had arranged the purchase of the cocaine. While defendant was at the police station, the police called the number that the detective had used earlier. After some questioning and observing the defendant's cell phone, the police verified this was the cell phone used to arrange the cocaine purchase.

The defendant was not arrested at the police station, but was later charged with distribution of cocaine in a school zone in violaton of G.L c.94C sections 32A and 32J. The jury convicted Mgaresh even though he was not physically present at the time of the cocaine sale. The court stated to prove distribution of cocaine, the Commonwealth had to establish that the defendant knowingly or intentionally distributed the cocaine. Distribute means to deliver other than by administering a controlled substance. G.L.c 94C section 1. Deliver is defined as transfer, whether by actual or constructive transfer, a controlled substance to another.

The court held that this could validly be considered distribution because Mgaresh knowingly and constructively delivered the cocaine. Mgaresh's actions in the courts eyes constituted constructive transfer because of the knowledge of the sale and Mgaresh had the ability and intent to exercise control over the cocaine. Because Mgaresh directed the detective where to get the cocaine and was on the phone with Joseph during the sale, the court felt this was enough to show control. The court ruled Mgaresh was simply working through Joseph and was the actual person controlling the sale. Furthermore, the court ruled that under joint venture, Mgaresh was knowingly working with Joseph in the sale of the cocaine. Since Mgaresh knew of the crime, was the one who set up the sale and was the one who facilitated the sale, Mgaresh could be guilty for his participation in the crime.

Although the court ruled that a defendant who is not present at the time of the drug sale can be guilty of drug distribution, it suggested that this is limited to people who are knowingly, and actively involved in the sale. Commonwealth v. Mgaresh seems to show that had Mgaresh not been actively making the sale, it would not have found that he had constructively delivered the drugs. It suggests that if a defendant is not aware that drugs are being sold or are not the person who initiated the sale of the drugs, then a defendant cannot be convicted for distribution of narcotics if they are not present at the time of sale. This case was very clear that Mgaresh was the person who was controlling the transaction between Joseph and the officer. However, when it is not so clear, a conviction of a person who is not present at the site of the sale will be much mor difficult.

For those charged with reckless endangerment of a child in Massachusetts, it often involves defendants who have not personally subjected the child to danger, but have failed to protect a child from danger. The recent case of Commonwealth v. Figueroa was recently decided by the Massachusetts Appeals Court and answered some questions of when a defendant can be convicted of reckless endangerment and when they owe a duty to protect the child.

Commonwealth v. Figueroa involved child abuse of a six month old victim. The mother of the child lived with her mother, the defendant and the defendant's boyfriend.

On February 29, 2008, the defendant's boyfriend was shaking the baby and then droped the child on the floor causing a head injury. The child's mother saw this and grabbed the baby and explained what happened to the defendant and asked for a ride to the hospital. Without looking at the infant, the defendant said he would be alright and threatened to call Social services if the child's mother tried to bring him to the hospital.

Several days after the incident, the infant was diagnosed with a fractured skull. The defendant again threatened the child's mother if she said anything about the baby being dropped. DSS arrived at the home and finally were told what had happened to the child. At trial, it was proven that it was in fact trauma that caused the fractured skull.
This appeal focused on the reckless endangerment charges of the defendant. To be convicted of reckless endangerment under G.L. c. section 13L, it has to involve a child under 18, have a substantial risk of bodily injury and the defendant wantonly or recklessly engaged in conduct that created this substantial risk, or failed to take reasonable steps to alleviate the risk when there is a duty to act.

The court ruled that the defendant, who was a grandmother to the 6 month acted recklessly because she knew or should have known of a substantial risk of harm to the baby when she was told the baby had been dropped. The defendant did not need to know the baby was actually injured, but just that there was a substantial risk of injury. Knowing he had been dropped, the defendant should have known there was a high risk of injury. A person of common intelligence would know a blow to the head leads to a substantial risk of danger. Defendant should have taken reasonable steps to care for the child but instead threatened Mary to ensure the child would not be taken to the hospital. Furthermore the court ruled there was a duty for defendant to protect because the defendant was responsible for Mary and those responsibilities include helping Mary take her son to the hospital when needed.

The court limits reckless endangerment of a child to those who cause the danger to the child or those with a duty to take reasonable steps to protect the child from the danger. Commonwealth v. Figueroa shows that this duty will arise only when a person is responsible for the wellbeing of a child. Absent this relationship, there is no duty to protect a child from dangers. When there is this duty however, one must take reasonable steps to ensure the child's safety. The court does not require a defendant to actually know the child is in danger to take these steps, but requires that a defendant knows or should know there is a substantial risk of danger to the child. This further limits the charge of reckless endangerment of a child to dangers that would be known to a person of common intelligence. A person is not endangering a child when there is an unknown or hidden risk to the child.

The United States Supreme Court issued its decision in Bailey v. United States on February 19, 2013 holding that its precedent in Michigan v. Summers does not allow the police to seize an individual that has left the premise prior to a search. You can read the Bailey decision here.

Background of the Bailey Case

The Bailey case involved police officers detaining an individual one mile from the premise to be searched. Police officers were given information through an informant that crack cocaine was being sold at a residence. A warrant was obtained. While the officers were conducting surveillance prior to executing the warrant, officers witnesses the target of the search leaving the premise and detailed the individual and brought him back to the premise. During the detention, police seized incriminating evidence, recovering the keys to the premises along with drugs and firearms.

Reasoning of the United States Supreme Court

The United States Supreme Court went through the justifications articulated in Summers for allowing a police officer to seize an individual on the premise of a residence subject to a search. Summers held that individuals in a house that is being lawfully searched may be detained, without arrest, for the duration of the search. The detention was allowed based on three reasons; (1) to prevent individuals from fleeing once paraphernalia is seized, (2) to provide safety for the officers and (3) to aid in the orderly completion of the search.

The Bailey Court went through the three reasons relied on by the Second Circuit to extend Summers and rejected each justification relied on by the Second Circuit and other Circuit courts that extended Summers. The decision resolved a split among the Circuits in interpreting Summers.

First, the United States Supreme Court found that officer safety did not justify the detention for someone leaving a premise to be searched. The Court held that the fact that individual may return to a premise does not justify an officer seizing an individual who left the premise. The Court found that officer safety cannot justify a detention because there is always a risk of someone returning to the premise and the police can protect themselves from this risk by blocking the premise.

Second, the court found that the orderly completion of the search did not justify the officer bringing an individual back to the search premise. The court found that it was clear that the defendant Bailey did not want to cooperate with the police.

The third justification preventing flight, related to the potential of destruction of evidence. The Court held that preventing flight of someone who left the premise is inconsistent with the Fourth Amendment and the principles of Terry v. Ohio.

The Court found that the Second Circuit decision would give officer too much discretion to detain an individual and that Summers only allows for a detention in the immediate vicinity of the premise to be searched.

In its Bailey decision, the Court resolved a split of authority among the Circuits where courts were applying a more subjective test similar to the Second Circuit test that the seizure is appropriate if it occurs as soon as practical after a suspect leaves the residence. As a Massachusetts criminal defense lawyer, the Bailey decision is consistent with reasoning of the Massachusetts Supreme Judicial Court in Commonwealth v. Charros and was a well reasoned decision interpreting the Fourth Amendment and the Summers decision. As noted in the concurrence of Justice Scalia, this decision gives officers clear guidance when executing a warrant and provides a bright line rule for courts interpreting the Fourth Amendment in this area.

When a suspect is arrested, one of the main concerns for Massachusetts defense attorney is the power of the prosecutor who will be the person who decides what to charge a defendant with. This discretion of what to charge a suspect with gives prosecutors tremendous power in the legal system, power that many people feel has to be limited. Nowhere was this power more evident than in the case of Aaron Swartz. Swartz was arrested for downloading millions of academic articles and placing them online. The federal government stepped in to "send a message" and charged Swartz with several felonies including federal fraud and computer felonies. Swartz was faced with 35 years in prison, but the prosecutor offered a plea bargain of six months in prison, which Swartz rejected. On January 11, Swartz took his own life causing outrage over the prosecutor's actions.

It is common for prosecutors to charge people with multiple felonies in hopes of getting a plea bargain accomplished. With Swartz, the prosecutor hoped that Swartz would take the plea bargain for six months when Swartz saw that losing at trial could potentially put him in prison for 35 years. Prosecutor's make their name off of winning cases and charging a suspect with felonies and offering a plea bargain to a less sever crime is often an easy way to scare a defendant into agreeing.

A main reason that a prosecutor has so much power is the procedure for charging a defendant with a crime. In the Swartz case, that involved a federal prosecutor. To charge Swartz with a federal crime, the prosecutor needed to secure an indictment from a grand jury. The indictment proceeding consists of only the prosecuting attorney delivering evidence to show there is probable cause to charge a suspect with a crime. The grand jury consists of 16-23 members and if at least 12 find probable cause, and indictment is returned and the charges against the suspect are formally brought.

In Massachusetts it is very similar to a federal court. When charging somebody with a felony, the prosecutor gives evidence to a grand jury to show probable cause. When an indictment is returned by the grand jury, the charges can be brought. With no defendants allowed to be present and only probable cause needed to be shown, getting an indictment does not require much work from a prosecutor. Prosecutors will use this indictment process to gain leverage on a defendant.

Allowing a defendant to be present at the indictment hearing is rare but it has proven effective to even the playing field and limit the power of prosecutors. In New York, a suspect is allowed to give evidence in objection to the indictment. New York has 6-10% of all indictments rejected; a much higher rate than any other state. Having a suspect provide evidence against a prosecutor allows the jury to get a better sense of what actually happened, and whether an indictment is actually warranted. Furthermore, the burden of proof may be too low for a prosecutor to achieve an indictment. With only probable cause needed, this is a much lower standard needed to actually obtain a judgment. This leads to prosecutors being able to bring charges that may have no chance of actually receiving a conviction. If an indictment was more difficult for a prosecutor to obtain, this would limit the prosecutor's power. No longer would a prosecutor be able to get creative with charges in hopes of forcing the defendant to plea bargain. Less indictments may lead to more defendants being able to have their case heard by a jury