Articles Posted in Property Crimes

The Fourth and Fourteenth Amendments to the U.S. Constitution protect Massachusetts residents from unreasonable searches and seizures by law enforcement when a crime is being investigated. The most accepted and common way for law enforcement officers to ensure compliance with the Fourth Amendment is for them to obtain a valid search or arrest warrant from a judge before performing a search or making an arrest. For a judge to issue a search warrant, the applicant must demonstrate that there is probable cause that the search or arrest is valid. A properly obtained search warrant is difficult to challenge in a criminal prosecution, and evidence gained therefrom is generally admissible during a criminal trial.

Although a valid warrant sets the gold standard for a permissible search, there are exceptions to the warrant requirement which permit law enforcement officers to perform a search without a warrant. One exception exists when an officer is performing a brief investigatory stop of a criminal suspect. The Massachusetts Court of Appeal recently affirmed the conviction of a man who was searched and arrested for burglary after the responding officers approached and searched him without a valid warrant.

The defendant in the recently decided appeal was arrested about a block away from the scene of an alleged burglary. The defendant partially matched the description of the perpetrator as recounted by the victim from her observation of security camera footage taken of the alleged burglary. After the defendant was stopped and detained, the witness confirmed in person that he was the person that she witnessed burglarizing her home on the surveillance footage. The defendant was then searched, revealing that he possessed items stolen from the victim’s home, and he was arrested and charged with burglary.

Criminal statutes are not known for their clear, concise language, and the Massachusetts burglary statute is no exception. Indeed, a quick read of the state’s burglary statute will likely leave a reader confused about what constitutes burglary in Massachusetts. However, the crime of burglary can be broken down into a few elements.

All crimes have two basic requirements, which are the “act” element and the “intent” element. For burglary cases, the act element is broken down into a few parts. First, a burglary requires an entry into a dwelling of another party. A dwelling is a structure that is designed to be occupied, but this does not necessarily require that the structure is actually occupied at the time of the entry. While, technically speaking, this element requires actual entry into a dwelling, a failed entry may still result in a prosecution for attempted burglary.

The second element of a Massachusetts burglary offense is that the unlawful entry must occur at night. This requirement, which was inherited from the Common Law, has been abandoned in most states; however, it remains a required element in Massachusetts. That being said, unlawful entry into a dwelling during the day is still a crime; it is just not considered a burglary.

A recent Massachusetts appellate case arose when a cop stopped to get coffee during his patrol hours. While in line, there was a commotion in which the defendant argued with the cashier. The cop didn’t hear the discussion but saw the defendant hurry away. After talking to the cashier, the cop followed the defendant and asked to talk to her.

The defendant was holding a $20 bill when she turned to answer the cop. Since he thought there was a problem with the bill, he asked if he could look at it and then called for backup. Upon being asked, the defendant said she’d gotten the bill while eating at a pizza parlor the previous night. The cop went back to the donut shop to talk to the cashier and then issued a summons to the defendant.

The defendant was charged for possessing counterfeit currency. An agent testified that the $20 bill was counterfeit, and he could tell because it wasn’t cut correctly so that the color was white at the edges, and there weren’t tiny red and blue fibers, nor a security strip running down the side of the bill, nor a watermark of Andrew Jackson. He testified it was a low quality counterfeit but also noted that the red flags to show a bill is counterfeit can be difficult to see if you aren’t searching for them. About $60-80 million in counterfeit currency is being circulated at any time.

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In Commonwealth v. Wallace, the defendant appealed from a sentence imposed for an unarmed burglary conviction. He’d pled guilty to larceny from a building and unarmed burglary. The event giving rise to the charges involved his going into a home in the dead of night and stealing many items while two people were asleep.

The defendant entered into a plea agreement. In the agreement, the prosecution agreed not to pursue an allegation in the indictment that the defendant had habitually offended. The defendant was previously charged in connection with breaking and entering during the daytime. He’d stolen property and led the police through a neighborhood before he jumped out of his car and fled.

Because of the new offense and the defendant’s failure to pay the DNA sample fee and restitution, the court found that he’d violated his probation. He then asked to withdraw the guilty plea. The defendant was sentenced to 7-10 years in state prison. After the charges, the defendant started attacking his guilty plea. A motion judge denied his motion and his request that the court reconsider.

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In Commonwealth v. Sanchez, the Commonwealth of Massachusetts appealed from orders that granted motions to suppress evidence that was seized during the search of codefendants. There were four companion cases.

The issue in the case was whether the police had enough of a basis to believe that the codefendants were joint venturers with Jose Rotger, a man who’d broken into a car and stolen objects from it while the codefendants stood nearby. On the evening of the theft, the codefendants and Rotger were walking down the street. Rotger looked into a parked car. The codefendants didn’t look into the car but stood nearby looking around. The three men kept walking, but Rotger looked into another car, while again the codefendants stood nearby.

At this car, the defendant opened the passenger door, reached into the car, and then closed the door, leaving it unlocked. The three continued down the street. Officers who were watching them thought they were handing something back and forth. They ran the license plate of the car and found it was registered to a woman.

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In Commonwealth v. Bermudez, a Massachusetts defendant appealed from his convictions of trespass under M.G. L. c. 266, § 120 and larceny of property over $250 under M.G. L. c. 266, § 30(1). Both convictions arose after the defendant took an unattended laptop at the Boston University library.

On appeal, the defendant argued that there was a required finding of not guilty on both trespass and larceny. The appellate court explained that the critical inquiry was whether any rational trier of fact could have found beyond a reasonable doubt that the fundamental elements of the crime were met.

With regard to trespass, the court explained that to convict a defendant of trespass, the Commonwealth needed to prove he entered or stayed on BU property after being directly or indirectly forbidden to do so by someone with lawful control of the premises. At trial, a police officer testified that he did notify the defendant he wasn’t allowed to be on the BU campus. The court found this was sufficient for a jury to find direct notice to the defendant.

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In Commonwealth v. Wallace, the defendant appealed from a sentence that was imposed when his probation for an unarmed burglary was revoked. He’d pled guilty, but the court denied his motion to withdraw the plea.

The case arose when the defendant entered a home one night and stole various effects while the homeowner and her granddaughter were sleeping. The defendant pled guilty to larceny from a building and unarmed burglary. He entered into a plea deal even though he had a significant criminal record, and the Commonwealth claimed that he was a habitual offender. Habitual offenders have a mandatory minimum sentence of 20 years. The defendant was sentenced to three years of probation for burglary and time served on the larceny conviction. His probation issue was transferred.

In 2012, the defendant was charged for a daytime breaking and entering. The Commonwealth alleged he stole property from someone’s house, and the police chased him in his car through residential streets before he jumped out of his car and ran away on foot. Because of the new offense, failure to pay restitution, and a DNA sample, the defendant was found to have violated his probation related to the burglary conviction. He was sentenced to 7-10 years in prison.

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In Commonwealth v. Coughlin, the jury convicted the defendant of breaking and entering a building at night and possessing tools to commit burglary. The defendant was drinking with his friend in Beverly. The friend drove him to Peabody and waited for him while the defendant broke into a used car dealership. The defendant was unaware that the building wasn’t empty. The service manager and his girlfriend were staying overnight inside the service manager’s car inside the dealership.

The service manager and his girlfriend heard glass break and witnessed a man in dark clothes go behind the counter. The defendant was looking around when the service manager opened the garage door and honked his horn. The defendant escaped through a window and went back to his friend’s truck, telling him they should hurry and go. The defendant’s hand was cut and bleeding. The friend drove him back. However, the service manager followed behind them and reported the friend’s license plate number to the police.

The police found the truck was registered to the friend’s name. The service manager and his girlfriend identified the truck, but they said that the friend wasn’t the person they’d seen inside the dealership that night. The friend later spoke to an officer and confessed that he’d driven someone to the dealership. He took the police to the defendant’s Beverly apartment, and the friend identified him based on a Facebook photograph on the day after the break-in. Later, he identified him in court. The prosecutor didn’t bring criminal charges against the friend.

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In Commonwealth v. Fasanelli, a Massachusetts defendant appealed after convictions for breaking and entering and larceny. The case arose in 2012 when a police officer sitting in an unmarked car was monitoring a residential area of Malden for suspicious activities and break-ins. He saw two men approaching from behind the car and witnessed them walk past a particular house before turning back and entering the porch. A minute later, they left the porch and returned the way they came.

The officer drove around, trying to find them, and contacted other officers to watch out for the men. He came back to the home where the men had entered the porch to talk to the homeowner. She later testified that she was preparing for the day when someone rang the doorbell. The doorknob jiggled. She opened the door and did not recognize the two men standing there. They asked for someone. and she didn’t recognize the name. They left.

A second officer identified the two men who fit the first officer’s description. One held a red gym bag. While the second officer watched, a marked police car approached the men, who reacted by going behind a house to avoid being seen.

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Presenting a forged instrument as a genuine instrument (known as “uttering a forged instrument“) is a crime in Massachusetts under General Laws, Chapter 267, Section 5. The Commonwealth must prove that the defendant (1) had the intent to injure or defraud, (2) uttered and published as true a false, altered, or forged instrument (e.g., a check), and (3) knew it was false or altered or forged. This crime is punished by a maximum of 10 years in state prison or up to two years in jail.

In Commonwealth v. Gianatasio, a Massachusetts appellate court reviewed forgery charges. The case arose from two checks the defendant deposited into his personal checking account. The first check was drawn on a woman’s account and made payable to the defendant for the sum of $45,611.94. The second check was drawn on the same account and was for the sum of $25,000.

The woman and her husband were the defendant’s next-door neighbors for years. They became ill in March 2007 and were admitted to the hospital. The husband died in May 2007, and the woman was transferred to a rehabilitation facility, where she died in June 2007. Between March and June 2007, the couple’s checkbook was in the control of the husband’s cousin, who was responsible for writing checks to pay the couple’s bills. A close friend of the couple delivered their mail to the couple and took bills from the mail to the cousin.
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