Massachusetts Criminal Defense Lawyer Blog

The Massachusetts Court of Appeals issued an important decision upholding the requirement that a search warrant for a residence be based on probable cause to believe that the house is being used for criminal activity.

Often, Massachusetts drug crimes, like possession with the intent to distribute or trafficking in narcotics will come down to whether the police properly obtained the evidence in a case and a motion to suppress will be critical to the outcome of the trial. A search warrant under the Fourth Amendment and Article 14 of the Massachusetts Declaration of Rights can only be issued if it is based on probable cause. When an officer prepares a search warrant, an affidavit is submitted in support of the warrant; this affidavit must detail for the magistrate that the items sought are related to criminal activity and are reasonably expected to be in the place subject of the search. In Massachusetts drug crimes, the Court has stressed that probable cause to believe that drugs will be found in a home is not established by the fact that the defendant lives there. This principle can be found in the decision of the Massachusetts Supreme Judicial Court in Commonwealth v. Pina, 453 Mass. 438 (2009).

In the case of Commonwealth v. Dillon, decided April 15, 2011, the Massachusetts Appeals Court found that the affidavit did not establish a sufficient nexus between the drug activity and the home of the defendant to justify a search. Significantly, the affidavit did contain evidence that customers came to the residence to purchase drugs and that the defendant delivered oxycodone from the residence. Further, the Appeals Court noted that the confidential informants did not provide any information relating to drug sales from the residence of the defendant. Further, the court noted that the police did not conduct surveillance or a controlled buy from the residence. Finally, the court noted that there was no inference that the defendant would leave the residence engage in a drug transaction and return to the residence to establish a pattern of repeated activities, giving rise to a reasonable inference that the residence was a base for drug sales. As a result, the Appeals Court held that the trial judge should have allowed the Massachusetts criminal attorneys motion to suppress finding that the Fourth Amendment and Article 14 were violated by the search in this case.

Continue reading "Massachusetts Drug Crime Lawyer comments on recent drug case from the Massachusetts Appeals Court" »

As a Massachusetts criminal defense lawyer, the Commonwealth v. Botev, decided April 15, 2011, raises an interesting issue that is important in defending criminal charges. In many criminal cases, the ability of the alleged victim to identify the defendant as the individual who committed the offense will be a prominent issue in the case. That was the case in a bench trial on the charge of Open and Gross Lewdness brought by the Millis police that was heard in the Wrentham District Court in February 2010.

In the Botev case, the defendant was convicted of open and gross conduct when the testimony at trial was that he exposed himself to two fifteen year-old girls while in a park in Millis. The issue at trial was whether the victims could identify the defendant. The victims were shown a photographic array that included the defendant. The victims identified the defendant but with uncertain language; one victim stated that the picture looked like the defendant while the other stated that it was most like him.

The Wrentham, Massachusetts criminal lawyer in the case filed a motion to suppress the photographic identification, claiming that it was unnecessarily suggestive. Improper identifications are a leading cause of wrongful convictions. When the police identification is improperly suggestive, a defendant's right of due process and effective confrontation under the Sixth Amendment are infringed because the victim's wrongful identification becomes imprinted in the memory of the victim. Because identification testimony is crucial during a criminal trial and is difficult to overcome through cross examination, courts will exclude an unnecessarily suggestive identification because a suggestive identification denies the defendant due process and a fair trial.

The Massachusetts case that sets forth this rule is a case from the Supreme Judicial Court called Commonwealth v. Botelho, 369 Mass. 860 (1976). The exception to this rule requiring exclusion of the identification is when the Commonwealth can show that the identification had an independent source other than the suggestive identification.

It appears that when the Massachusetts criminal attorney requested a suppression hearing, requiring the victims to testify live about their identification of the defendant, that the motion judge held an identification procedure where the defendant was in the courtroom while the victims were given an opportunity to see if they could identify the defendant.

The victims identified the defendant from the gallery in the first session of the Wrentham District Court and, at trial, the trial judge allowed the identification, concluding that it had an independent source.

Identification case can involve difficulty strategic decisions for criminal attorneys. Had the victims not identified the defendant during the in-court identification, the case would likely have been dismissed. Alternatively, counsel could have chosen not to raise the identification issue prior to trial and contested it at trial. In this case, it appears as though the motion judge was not going to permit an evidentiary hearing on the issue of identification as the judge ordered the in-court identification.

One problem complicating the decision of the Massachusetts criminal lawyer in the case was that the circumstantial evidence in the case confirmed the reliability of the identification as the defendant was observed for 45 seconds, the victim testified that the defendant spoke with an accent and the defendant was found in oddly clad in boxer shorts when arrested by the police officer shortly after the incident.

Assuming the defendant did not have a prior conviction for open and gross, the conviction in this case would not require him to register as a sex offender as only a second and subsequent offense of open and gross lewdness requires sex offender registration.

The new Taunton Trial Court and the $80 million judicial complex could help redevelop downtown and should bring new revenue to local businesses, the Taunton Daily Gazette reported.

Taunton criminal defense lawyers, prosecutors, judges, law enforcement officers and support staff will be using the new 147,000-square-foot facility by June. Standing at the corner of Broadway and Pleasant Street, the building will house the Taunton District Court, Juvenile Court, Housing Court and Probate & Family Court.

Restaurant owners are optimistic -- the food trailer in the parking lot leaves no doubt about the target clientele: Cops and robbers dressed as hot dogs adorn the walls. Menu items include "Big House Combos" and "Closing Arguments." And the Courthouse Cafe & Deli is already open -- ready and waiting for its namesake to follow suit.

The non-profit group, Heart of Taunton, which is dedicated to promoting downtown, hopes the new investment generates some synergy. "Generally, the feeling of businesses is that they're optimistic that it's going to create new business for the downtown," said Executive Director Julie Sprague.

The local Chamber of Commerce expects more than 1,000 people a day will visit the courthouse, which could create at least one potential headache: Parking. Officials are aware of the concerns and know that building the courthouse downtown may require additional accommodations -- many recent courthouses have been built in undeveloped suburbs for that reason.

The potential to create 300 new parking spaces is being studied and engineers are looking at adding a third story to the Leonard Street garage.

Continue reading "Taunton criminal defense attorneys welcome opening of new court building" »

The Massachusetts Supreme Judicial Court addressed an important legal issues that arose once the Massachusetts legislature decriminalized simple possession of under one ounce of marijuana. Does the smell of burnt marijuana justify an order that a motorist exit a motor vehicle. In the case of Commonwealth v. Cruz, decided April 19, 2011, the SJC held that the smell of burnt marijuana alone does not justify an exit order.

The Cruz case involved the following facts. The defendant was a passenger in a car parked in front of a fire hydrant. The windows were rolled down in the car and the officers could see the driver light a cigar known to mask the smell of marijuana. The officers recognized the defendant and testified at the motion to suppress hearing that they saw the defendant smoking marijuana earlier in the day. Significantly, the defendant was not known to the officers as a dangerous person and even was counseled by one of the officers to "do more than hang out." The driver was unknown to the officers. The officers further testified at the motion hearing that the defendant was smoking a cigar, that they could smell an odor of burnt marijuana and that the driver appeared nervous. The defendant and the driver were ordered out of the car.

In finding the exit order improper under Article 14 of the Massachusetts Declaration of Rights, the court stressed that by decriminalizing possession of under an ounce of marijuana the voters changed the status of the offense, meaning that the voters intended possession of marijuana under an ounce to be treated different from other serious drug crimes. Accordingly, the SJC concluded that the changed status of the offense implicates police conduct and requires some additional facts other than the smell of burnt marijuana to justify an exit order.

Under Massachusetts law, police must have a basis to support an exit order under Article 14 of the Declaration of Rights. An exit order is permissible in Massachusetts in one of three circumstances:

1. The police have a reasonable belief that their safety is in danger;
2. The officer has reasonable suspicion that the defendant is committing a criminal offense, other than a traffic violation.
3. The officer can order a defendant from the car if there is a legal basis for a warrantless search of the vehicle under the automobile exception to the warrant requirement.

Massachusetts provides greater protections to citizens under Article 14 than under the Fourth Amendment to the United States Constitution as under the Fourth Amendment as interpreted by the United States Supreme Court, the police do not need any basis to order a motorist from the vehicle.

In Cruz, the Commonwealth argued that the exit order was justified based on the officer's belief that the defendant was engaged in criminal activity. The SJC held that there were no facts that would support the conclusion that a criminal amount of narcotics were in the vehicle. Further, the court rejected the reasoning of other State courts finding probable cause to believe a vehicle has any quantity of marijuana is sufficient to justify a warrantless search based on the likely presence of other contraband. In rejecting these other State court decisions, the SJC stressed that the standard to determine the validity of a warrantless search is the same used by a magistrate issuing a warrant. Applying this reasoning, the SJC concluded that under the facts of the case a magistrate could not issue a search warrant.

Continue reading "Massachusetts Supreme Judicial Court holds that smell of burnt marijuana is insufficient to justify an exit order" »

Actor Nicholas Cage was arrested on Domestic Assault and Battery charges in the New Orleans french quarter, according to multiple news reports. It was reported that Cage was drunk, got into an argument with his wife and grabbed her by the arm. Cage was also charged with disorderly conduct and disturbing the peace.

As a Massachusetts domestic assault and battery attorney, Cage's case is of interest because it appears as though there may be independent witnesses to the alleged domestic assault. This can be significant because in a case where the alleged victim is uncooperative, the district attorney may still be able to pursue the charges as there are independent witnesses to testify as to what occurred. Of course, the case is much weaker without the victim testifying; however, it is still possible for the Government to obtain a conviction. Any domestic assault and battery charge should be taken seriously by hiring an experienced Boston criminal defense lawyer.

A 39-year-old Fall River man was sentenced to eight years in prison on Massachusetts domestic assault charges, despite the fact that his wife refused to testify against him, the Herald News reported.

Fall River domestic violence defense lawyers are often called to handle such allegations, which can arise for a variety of reasons. Unfortunately, today's zero-tolerance world means law enforcement will typically make an arrest based on a spouse's accusations. Prosecutors will prosecute, regardless of whether the alleged victim wishes to cooperate or press charges. In other cases, a spouse may make a false accusation or may exaggerate the extent of the argument or of her injuries. In still other cases, domestic assault charges can be filed in connection with an argument with another family member.

As this case illustrates, such charges can be very serious. Accusations can impact a child custody or divorce case and a conviction can have long-term consequences, including the inability to own firearms or to hold certain jobs, particularly in law enforcement and the military.

Domingos Almeida pleaded guilt last week to charges of armed assault with intent to murder and mayhem. He was sentenced to 6 to 8 years in prison on the assault charge, followed by five years of probation on the mayhem charge.

The Bristol County District Attorney's office contends Almeida's wife awoke one night in March 2009 to find him punching her repeatedly in the face. He then assaulted her with a pipe and began strangling her with it. She was able to escape to her parent's house nearby.

Once the case made it to the court system, the wife invoked her marital privilege and declined to testify against her husband. Instead, prosecutors used the wife's testimony from a previous dangerousness hearing, as well as the testimony of the nurse and emergency medical technician who treated her.

A spokesman for the D.A.'s office said "Domestic violence is a serious problem, and we will continue to do whatever it takes to prosecute these complex and, sometimes, difficult cases."

A Massachusetts domestic violence charge may be pursued, even against a couple's wishes, once it is initiated. An experienced defense lawyer should always be called at the earliest possible stage of such cases.

Continue reading "Massachusetts domestic assault cases may be pursued against a couple's wishes" »

A New York Court of Appeals ruled a man who was wrongly convicted of murder based on an alleged confession can seek monetary compensation for wrongful imprisonment, The New York Times reported.

Massachusetts criminal defense attorneys understand the risks; convictions based on confessions and "eyewitness" testimony are most likely to lead to wrongful conviction; and yet thousands of defendants are sent to prison each year in cases that hinge on such evidence. And, while murder is obviously the most serious and the most life-altering, sex crimes in Massachusetts, assault and battery and other crimes are susceptible to convictions based on poor evidence and manipulation by law enforcement.

The Innocence Project seeks to exonerate the wrongfully convicted through DNA and other evidence. About 25 percent of the 240 wrongful convictions the group has overturned have involved some form of false confessions.

Leading factors of false confessions can include:

-Intimidation (real or perceived) of the defendant by law enforcement.

-Use of force by law enforcement during interrogation or the perceived threat of force.

-Compromising the reasoning ability of the defendant. Exhaustion, stress, hunger, substance abuse or mental limitations.

-Devious interrogation techniques, untrue statements, etc.

-Fear that failure to confess will lead to harsher punishment.

In the New York case, the allegations are much simpler and much more sinister: The court ruled that it appeared Rochester detectives fed the defendant facts known only to the killer and police. John G. Spirko became the first American citizen to have his death sentence in Ohio commuted after similar allegations were made about investigators in that case.

State officials in New York argued that, while the defendant was innocent, he had brought about his own conviction. In a 7-0 opinion, the court unanimously rejected the argument, saying, "A confession cannot fairly be called 'uncoerced' that results from the sort of calculated manipulation that appears to be present here -- even if the police did not actually beat or torture the confessor, or threaten to do so."

Since the advent of DNA testing, eyewitnesses have been found to have been wrong far more than previously acknowledged. In a University of Virginia Study of 38 cases involving false confessions, 36 of them involved details known only to investigators.

Continue reading ""Confessions" a leading cause of wrongful conviction in Massachusetts criminal cases " »

Seven people have been arrested on assault charges in Attleboro, as well as charges of disorderly conduct and disturbing the peace, after a 17-year-old was injured in a Sunday incident on South Main Street, the Sun Chronicle reported.

The teen was kicked unconscious during the incident after reportedly being approached by three individuals. An Attleboro criminal defense lawyer should represent two defendants, ages 16 and 17, who were arrested for disorderly conduct and disturbing the peace. These charges can often be reduced or dismissed. Even misdemeanor charges can impact a teen's ability to get a job or qualify for student loans or other government assistance. Joining the military can also be a problem for those with a criminal record.

Additionally, a defendant may be face more serious charges in cases where an assault leads to injuries more serious than first thought. In this case, the victim was transported to Rhode Island Hospital in Providence, where he was treated and released.

Ashley Kazana, 19, was charged with armed robbery and was being held on $5,000 cash bail. Police say the victim reported his backpack, wallet and cell phone missing. Those items were not recovered during Kazana's arrest but police continued to seek two other unidentified suspects as part of the investigation.

In a separate incident, police responded to a gathering of about 20 people near Pine and School streets. The group had reportedly gathered in response to the earlier incident and some of the participants were armed with knives and machetes.

Continue reading "Assault Charges brought in Attleboro District Court against seven individuals" »

The Massachusetts Supreme Judicial Court addressed the scope of the inventory search exception to the Fourth Amendment and Article 14 of the Massachusetts Constitution in the recent case of Commonwealth v. Eddington, decided March 10, 2011. The case is of interest to me as a Massachusetts criminal lawyer because of the concurring opinion of Justice Gants.

In the Eddington case, the defendant was charged with driving with a suspended license. He had a passenger in the vehicle who also did not own the vehicle as the owner was not present at the time of the arrest.

The officers did not contact the owner to have her pick up the vehicle, but decided to impound the vehicle and performed an inventory search. Following the search, a loaded revolver was found under the passenger's seat.

In determining whether the search was Constitution, the court held that impounding a vehicle for noninvestigatory purposes is generally justified if supported by public safety concerns or by a danger of theft or vandalism to a vehicle if left unattended. The court also noted other circumstances where impounding a vehicle is necessary such as when it is left on private property with the driver arrested or when the vehicle is stopped without valid registration plates. Further, the SJC stressed the three separate interests are protected by inventory searches: the protection of the vehicle and its contents, the protection of the police and tow company from false charges and the protection of the public from dangerous items that might be in the vehicle.

The Massachusetts criminal attorney in Eddington argued that under the SJC case of Commonwealth v. Brinson, 440 Mass. 609, 612 (2003), that the police should have left the vehicle were it was because it was lawfully parked and there was no evidence that the car presented a safety risk or was at risk of vandalism. The Court distinguished Brinson byt the fact that in that case the owner was present and selected the location where the vehicle would be parked. Further, the court held that the police were not required to contact the owner and acted reasonably in impounding the vehicle and conducting an inventory search.

In his concurring opinion, Justice Gants relied on several out of state cases to suggest that the police should be required to consider practical alternatives prior to impounding a vehicle. While agreeing with the opinion of the court, Justice Gant suggested he would take a narrower view of the inventory search exception and in the appropriate case may require the police to consider practical alternatives prior to impounding a vehicle.

Continue reading "Supreme Judicial Court addresses inventory searches in Massachusetts gun charge " »

Massachusetts defense lawyers for two men facing drug charges in Framingham were in court last week for discovery motions, the MetroWest Daily News reported. The defendants are facing charges of possession of cocaine with intent to distribute, conspiracy to violate state drug laws and having drugs near a school.

Those facing criminal charges should hire a defense lawyer in Framingham or Westborough at the earliest possible stage of such cases. The vast majority of an attorney's work is done before a trial -- and only a small percentage of cases ever go to trial. Making sure you have received all the defense information you are entitled to from state authorities and making motions to dismiss or limit the use of evidence are just a few of the legal strategies that could benefit your case. Giving your attorney the maximum amount of time to fight on your behalf is always the best course of action.

Joseph Bushfan, 20, of Framingham, and Devon Talbert, 20, of Boston, were arrested Jan. 5 following an undercover investigation. During a raid on Bushfan's Fountain Street home, SWAT members shot and killed his stepfather, 68-year-old Eurie Stamps Sr. The Middlesex District Attorney has ruled the shooting accidental.

Bushfan pleaded guilty last month to charges in connection with a pair of robberies in Cambridge in 2008. Both defendants are due back in court on May 11.

Continue reading "Discovery issues can be critical to defense of drug charges in Framingham, elsewhere in Massachusetts" »