Search Warrant Requirements in Massachusetts

April 3, 2014

plantator-540325-m.jpgIn a non-precedential case, the Massachusetts appellate court considered a case involving marijuana transportation from New York to homes in Massachusetts. There were many vehicles and people involved in transporting it. The Commonwealth applied for and received two search warrants in connection with the contraband. The affidavit it submitted was based on information from a confidential informant developed in collaboration with the New York State police. Because of the warrants, the police were able to discovery and seize large amounts of marijuana, firearms and a huge quantity of ammunition.

One of the people involved was indicted for trafficking in marijuana and conspiracy to traffic. After he was indicted, he filed a motion to suppress evidence seized pursuant to the warrants. A judge denied the defendant's motion and he appealed.

The appellate court affirmed the ruling. It explained that the inquiry involves the affidavit attached to the application for the warrant. The affidavit has to contain enough information that (1) the issuing magistrate would be able to determine that items sought by the search warrant were related to criminal activity that was being investigated and (2) that the items were expected to be located in the place covered by the warrant.

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Miranda Rights in a Massachusetts Investigatory Stop

March 19, 2014

car-accident-671890-m.jpgMiranda rights are frequently misunderstood. When police officers take a suspect into custody intending to conduct an interrogation, they must advise the suspect of his (1) right to remain silent, (2) that what he says can be used against him/her, (3) right to an attorney and that one will be provided at no charge if he can't afford one. However, Miranda rights need not be given before asking questions at a crime scene, before a suspect volunteers statements, questioning for fact-finding purpose and questioning someone during an investigatory stop.

In a recent case that is not binding precedent, a defendant appealed the jury's finding he was guilty of operating a motor vehicle while under the influence of alcohol, negligent operation of a motor vehicle and assault. He appealed on the grounds that statements he made at the time of his arrest should have been suppressed.

The appellate court explained that a jury could have found facts that supported the conviction. In the version the jury believed, a police officer was sent to a car crash at 2:00 a.m. and found the car near a broken telephone pole on a lawn with heavy tire marks. The defendant was at the scene, smelling of alcohol and slurred his speech.

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Disorderly Houses in Massachusetts

March 5, 2014

dance-821835-m.jpgBoston police officers and those from neighboring suburbs are cracking down on local parties and particularly tracking houses that have a lot of noise and other complaints. Recently four Boston University Students were charged for repeatedly throwing wild parties at a house in Allston and held for three nights in jail. The most recent party in January violated their pretrial probation terms. In September 2013, they were arrested and charged with one count apiece of keeping a disorderly house at an earlier party involving over 200 people. The house was used by the BU fraternity Zeta Beta Tau and the fraternity was suspended because BU believes the house was being used for underage drinking.

At the second, party, the police arrived at 1:00 a.m. People at the party slammed the door in their faces and locked them. People began exiting in droves through doors and windows. When they got inside, the police officers found furniture rearranged, the smell of marijuana and more than 1000 beer cans in their house. As a result of the second arrests and probation violation, the students' bail was revoked.

The two parties were considered to be in the top 10% of disorderly parties. However, the second arrest and jail stay had to do with violating probation, not with the disorderly house. At the arraignment, all four young men hid their faces with their hands. They were released from jail on their personal recognizance, but criticized strongly by the judge who noted the sacrifices their parents had made for them to attend a world-class university (that costs about $58,530 per year for an undergraduate degree. All four decided to move out of the house.

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Crime of Perjury in Massachusetts

February 17, 2014

courthouse-1330873-m-2.jpgTo prove the crime of perjury in Massachusetts, a prosecutor must prove (1) a defendant was required by law to state the truth in a judicial proceeding, (2) the defendant willfully testified falsely, and (3) the false statement was material to something at issue. What is materiality in this context? Something is material to the extent it reasonably affects an aspect or result of the judicial inquiry.

A recent case arose from a defendant's conviction for perjury after he testified to a grand jury as to a shooting death. The defendant's cousin was a suspect and was indicted for the murder. The issue in the defendant's perjury trial was whether he had falsely testified to the grand jury.

The victim was shot near Maynard Street in Springfield just after midnight in May 2008. The defendant had testified to the grand jury he was with Keison Cuffee at another cousin's (Whitney Walton) house on Westminster Street in Springfield until 1:15 a.m., providing the person with an alibi.

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Wiretaps in Massachusetts

February 17, 2014

mobile-phone-2-1225931-m.jpgWhen a police officer seeks a wiretap to obtain evidence against someone suspected of illegal activity and a prosecutor tries to use that evidence, certain rules must be followed. A recent case arose after a defendant was convicted of drug and firearm charges in connection with wiretap evidence. The police started investigating him for drug dealing in 2009, using various surveillance tools including a GPS tracking device on his car and following him. These methods didn't provide enough information so the officers applied for a wiretap under G. L. c. 272, § 99 to wiretap the defendant's two cellphones.

The officers attested to their prior investigation efforts and stated that they wouldn't be able to figure out the scope of the defendant's drug dealing otherwise. The court granted their application, permitting them to start in July and granting them an extension. They arrested the defendant in August and charged him.

The defendant filed a motion to suppress the evidence obtained from the wiretap, which was denied. At trial, the jury came back with a mixed verdict. He appealed the decision on the motion to suppress. The appellate court explained that a warrant permitting a wiretap is only appropriate if the applicant can demonstrate that ordinary investigative procedures were tried, but failed.

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Conspiracy and Double Jeopardy in Massachusetts

January 8, 2014

daf-rearview-mirror-952236-m.jpgThe double jeopardy clause of the Fifth Amendment of the United States Constitution states that nobody can be placed in jeopardy twice for the same criminal offense. In other words, it prohibits duplicative convictions -- more than one conviction for the same course of conduct. However, not all cases in which there are multiple charges for the same set of facts violate this prohibition.

A recent appellate case illustrates how this constitutional prohibition against double jeopardy works in Massachusetts. The case arose out of a defendant's conviction for conspiracy to violate drug laws, which was entered as part of a plea, and his conviction for distribution of cocaine. The defendant argued these two convictions arose out of the same facts and were essentially punishing the same offense.

In this case, an informant had infiltrated a narcotics distribution ring. He contacted Wisdom Ellerbee to buy cocaine. Ellerbee told him a place where they could meet to finish the sale. The informant went there and Ellerbee drove up. The defendant was in the front seat next to him.

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School Zone Violations in Massachusetts

January 2, 2014

preschool---time-to-eat-412013-m.jpgDrug sale and distribution charges in Massachusetts can be treated more harshly based on factors other than the type and amount of drug in question. The context of the sale or distribution can make a big difference. For example, a "school zone violation" is a sentencing enhancement for people who commit drug crimes beyond mere possession. A school zone violation requires the court to impose a mandatory minimum term of incarceration that begins only upon the expiration of the sentence for the drug crime with which it is associated.

The recent appellate decision Commonwealth v. Bradley considered an amendment to the school zone violation law. The case arose when the police received a search warrant in 2010 to search the defendant's dorm room, where they found marijuana. The dorm room was about 700 ft. from a preschool. Accordingly, the defendant was charged with possession of a class D substance with intent to distribute within 1000 feet of a preschool facility (a school zone violation.)

Two years later, the governor signed a bill that reduced the radius of the school zone from 1000 to 300 feet. The defendant's case had not yet been adjudicated. He asked for his school zone violation to be dismissed, since his actions were committed 400 feet outside the school zone as described in the amendment. He argued that the change in the law should apply retroactively to cases that had not been decided before 2012.

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The Lautenberg Amendment and Your Gun Ownership Rights in Massachusetts

December 25, 2013

In addition to some of the common criminal laws and statutes regarding the Commonwealth of Massachusetts, there is also a parallel system of federal laws which applies to all citizens living within any state in our nation.ammo box.jpg

One such law that may be unknowingly violated is the Lautenberg Amendment of the Gun Control Act of 1968, 18 U.S.C. § 922(g)(9), which states that it is unlawful "for any person who has been convicted in any court of a misdemeanor crime of domestic violence, to ... possess in or affecting commerce, any firearm or ammunition."

The issue of what sorts of domestic violence convictions count under this federal law was recently reviewed by the United States Court of Appeals, First Circuit, which is the federal court to which all Massachusetts district court cases are appealed.

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U.S. Supreme Court Rules in Favor of Defendant in Mandatory Minimum Case Alleyne v. U.S.

December 19, 2013

In a very narrow plurality opinion, the U.S. Supreme Court recently decided to overrule a decision reached just 11 years ago, in the name of protecting defendants' Sixth Amendment rights. glock.jpg

In the case, Alleyne v. US, 133 S. Ct. 2151, Sup. Ct. (2013), the Court examined the role of the jury and judge in proving elements versus enhancements for sentencing purposes.

In the case, Alleyne had been involved in a robbery involving a firearm. The underlying criminal statute stated that regarding sentencing, a conviction of the crime would result in a minimum of 5 years in prison. If a firearm was brandished during the commission of the crime, the minimum sentence would be bumped up to 7 years.

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Court of Appeals Ruling Affirms Prior Conviction Record Insufficient to Establish Identity

December 11, 2013

On this blog, we often discuss how due to the serious nature of criminal offenses, the government bears the burden of proving all elements of a crime beyond a reasonable doubt. However, in certain cases, that is not the only burden of proof that the Commonwealth must bear. For example, as one Appeals Court decision affirms, in charging and sentencing based upon prior offenses, the prosecution must also prove that it was the same individual who committed the prior relevant offenses. archive building.jpg

In the case, Commonwealth v. Cruz, Mass. App. Ct. (2013), the defendant was subjected to a two part trial. In the initial phase of the trial, the jury convicted the defendant of operating under the influence of intoxicating liquor (OUI) and of negligent operation of a motor vehicle. In the second part, the jury convicted the defendant on the subsequent (third) offense portion of the operating under the influence charge. However, the defendant, Michelle Cruz, appealed on the later charge, arguing that there was insufficient evidence to establish that she was the individual who committed the two prior OUI offenses.

According to the opinion, the only evidence introduced by the Commonwealth to establish the defendant's identity, was a certified copy of Michele MacCord's 1993 OUI conviction and a certified copy of Michele Fortenbacher's 2003 OUI conviction. Both of those conviction records reflected a birth date of March 17, 1962.

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Massachusetts Appeals Court Affirms Requirement that Prosecution Must Prove All Elements Relating to Crimes For Which Jury Will Be Instructed at Trial

December 4, 2013

The Appeals Court of Massachusetts seated in Suffolk County handed down a decision earlier this year regarding a defendant who had been unlawfully indicted on a charge which the prosecution had not fully proven.instruction_manual.jpg

In the case, Commonwealth v. Rodriguez, 83 Mass. App. Ct. 267 (2013), following a jury trial in Superior Court, the defendant was found guilty of rape aggravated by kidnapping; kidnapping aggravated by sexual assault; and indecent assault and battery. The judge sentenced him on the aggravated rape and indecent assault and battery charges, and placed the indictment for aggravated kidnapping on file, to which the defendant objected. The defendant's appeal centered on the filed indictment. He argued that, the jury instruction setting forth the elements of aggravated kidnapping was erroneous.

Under the relevant portion of the statute, "[w]hoever commits any offense described in this section [the crime of kidnapping] while armed with a dangerous weapon and inflicts serious bodily injury thereby upon another person or who sexually assaults such person..." shall be found guilty of the crime. [emphasis added by court].

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Massachusetts Supreme Judicial Court Affirms Lower Sentence in Case Affected by Change in Mandatory Minimum Sentence Law

November 26, 2013

The Supreme Judicial Court of Massachusetts recently reached a decision regarding the application of mandatory minimum sentences to defendants who are caught in the middle of sentence reduction law changes. scales.jpg

In the case, Commonwealth v. Galvin, Mass: Supreme Judicial Court 2013, the court examined the case of a defendant who was caught in the middle of changes made to G.L. c. 94C, § 32A (d) (§ 32A [d]), which was reduced effective August 2, 2012.

In the case, the defendant had allegedly committed the offense prior to the date that the law changed, but both his conviction and sentencing occurred after the change. The affect of the law was to lower the mandatory minimum sentence from five to 3 1/2 years.

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Massachusetts Supreme Judicial Court Decision Strikes Officer Testimony in OUI Cases

November 21, 2013

The Supreme Judicial Court issued an opinion earlier this month, that held the common practice of eliciting opinion testimony from police officers regarding impairment in OUI cases is not permissible as evidence. breathalyzer.jpg

This case is noteworthy, because in practice, many prosecutors have developed a habit of simply asking officers their opinion regarding whether a driver was impaired at the time of the arrest, which the court held is a legal issue upon which a lay witness is not qualified to speak.

The case involved the stop of a driver in 2009. In addition to recanting facts regarding the circumstances of the driver's field sobriety tests, the prosecutor asked the officer whether he had formed any opinions regarding the driver's sobriety. To this, the officer replied, "I believed that his ability to drive was diminished." This is testimony that the court held was impermissible, as it comes close to an opinion on the ultimate issue of guilt or innocence, in this case the standard for the OUI charge is whether "the defendant's consumption of alcohol diminished the defendant's ability to operate a motor vehicle safely." Therefore, due to the well established law that "[n]o witness, including a police witness, may testify as to a defendant's guilt or innocence," this type of testimony is not allowed.

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Arrest Made in Connection with Cambridge Break-ins

November 14, 2013

Cambridge police recently announced that they had made an arrest of a Boston man who was wanted on charges relating to two break-ins in Cambridge. case of cash.jpg

State police and members of a U.S. Marshals task force seized cocaine, bath salts, oxycodone and more than $8,000 in cash. The man was arrested pursuant to an arrest warrant for the housebreaks.

In addition to the charges stemming from the warrant, the man was also charged with two counts of possession of a class B drug and trafficking of cocaine. These charges were based on police stating that they seized 18 grams of cocaine, nine ounces of "bath salts," and 38 grams of oxycodone pills that had been packaged for distribution pursuant to the arrest. Police also reportedly seized drug paraphernalia, items believed to have been taken during break-ins, and more than $8,000 in cash.

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Freetown Police Make Arrest After Finding Marijuana at Car Dealership

November 6, 2013

Freetown police responded to an alarm that was set off inside of a GM car dealership at 12:44 a.m. Saturday, and instead of encountering the potential intruders, discovered some 31 pounds of marijuana.marijuana bag.jpg

When officers first arrived, they said they saw an open door, through which they entered, sweeping the store for intruders. While inside the dealership, officers noticed several large plastic bags on a shelf and bookcase, all of which contained marijuana.

Police then secured the building while one detective obtained a search warrant. The officers then seized the marijuana, and a camera system. After reviewing the video footage, officers saw two intruders, which they say can be seen running from the scene, carrying no items. Police questioned and then later arrested the owner of the dealership whom they suspect intended to distribute the drugs.

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