Whether pot should be legal is a hot topic across the country. Several states have enacted laws legalizing the use and possession of marijuana, and many other states are considering similar legislation. Many think that Massachusetts may become one of the next states to legalize pot, and marijuana is already legal in the Bay State for medical use. Possession of marijuana for personal use has been decriminalized in Massachusetts, and being caught with one ounce or less in your possession is a civil offense and requires the payment of a fine of no more than $100. Getting caught with more than an ounce for personal use is a misdemeanor and could carrying some jail time and a fine. Significant jail time and hefty fines still exist for those individuals who get caught with a large amount of pot in their possession. So a question in marijuana drug cases that seems to arise is “is the smell of pot enough for a search?” Continue reading
A cocaine possession charge can have drastic consequences on your life, both personally and professionally. In Massachusetts, a cocaine possession charge can result in serious jail time and fines, along with the one-year loss of driving privileges. If you are facing a charge of cocaine possession, don’t fight the case on your own. Instead, consult an experienced local defense lawyer to fight for your best interests.
A drug trafficking charge in Massachusetts is much more serious than straight possession. If a guilty verdict is reached, you will face serious jail time and fines, in addition to personal and professional losses. Hiring a lawyer experienced in local drug law is the only way to avoid these severe penalties and salvage your reputation. The article examines how to defend yourself against a drug trafficking charge. Continue reading
Heroin is considered a class “A” substance in Massachusetts because it is a highly addictive controlled substance. It is commonly referred to as dope, and sometimes by its color, such as brown, or black tar heroin. Once heroin enters the body, it converts into morphine, which causes the user to experience a sense of relaxation and euphoria, also known as a high. Overdosing on heroin is fairly common as users develop a severe addiction to the controlled substance. Several Massachusetts heroin drug charges are prosecuted daily in most Massachusetts courts.
Controlled substances are drugs or prescription medications that can be so dangerous when consumed that their distributions is regulated. Controlled substances can include prescription medications such as oxycontin, as well as illegal drugs, including marijuana, heroin, cocaine and other narcotic agents. In Massachusetts, no one is permitted to be in possession of a controlled substance, unless he or she obtains the substance from a professional with the authority to administer, or prescribe, such a substance. The only exception to this is that it is not a criminal violation to be in possession of an ounce or less of marijuana.
According to The Lawrence Eagle Tribune three Methuen Massachusetts people have been charged with trafficking more than thre-hundered grams of heroin, possession of a class A substance with intent to distribute and related gun offenses. The Tribune indicates that police responded to an apartment on Railroad Street in Methuen, MA due to a complaint of alleged domestic disturbance. Apparently, after the police entered the apartment they heard a “noise in the bedroom” and an occupant ran outside who was eventually apprehended and faces additionally charges of disorderly conduct and resisting arrest.
However, the authorities who stayed behind claim to have seen “in plain view” bags of heroin. Based on this observation the police applied for and apparently was granted a search warrant. Upon searching the apartment it appears that a substance believed to be heroin and two rifles were confiscated. The Tribune reports that in addition to the drug offenses three people are also facing charges for possession of a firearm without and FID card, illegal possession of a firearm without a license to carry, improper storage of a firearm, possession of a large capacity feeding device and unlawful possession of ammunition.
An aggressive and experienced defense attorney will carefully examine the circumstances surrounding the entry of the authorities into the apartment, into the bedroom and the alleged “plain view” observation of the alleged “heroin” in the “closet.” In Massachusetts, citizens have a reasonable expectation of privacy on their person and in their homes, Thus, the police cannot enter someone’s home without probable cause or consent. Although all of the facts of this case are not known at this time, if the police have been in the apartment or the bedroom it may be a situation in which a motion to suppress the entry into the apartment and evidence seized as a result of that entry.
In situations where a defendant is charged with a crime in which the Commonwealth must prove “possession” as an element of the crime an experienced attorney will examine the facts to determine if a motion to suppress evidence should be filed. Again, although all of the facts in this case are not known, if the police officers were not properly in then any evidence seized as a result of this unlawful entry may arguably be suppressed.
Another area to examine is the fact that the officers claimed to have made observations “in plain view” inside of a closet. In view of the fact that the occupant of that room apparently ran out of the apartment the circumstances surrounding the officers observations inside of a closet must be closely scrutinized.
In this case a search was also conducted pursuant to a search warrant. In most cases, to attack the issuance and execution of a search warrant the parties are limited to challenging the affidavit in support of the search warrant, the warrant itself and the return often referred to as the “Four Corners” of the search warrant. Depending on all of the facts in this case it may make sense to attack the initial entry of the police into the apartment AND the issuance and execution of the search warrant.
A few years ago, Massachusetts decriminalized the possession of marijuana under one ounce. That event sparked a flurry of cases that related to whether the odor of marijuana provided probable cause for police officers to search a car during a routine motor vehicle stop. The case law seems to be favorable for a defendant and limit a police officer’s justification for searching a car after smelling a burnt odor of marijuana –because the odor is not necessarily indicative of the defendant committing a crime. In the event that an individual is in possession of under and ounce of marijuana a civil penalty of $100.00 can be imposed. However, this is not a criminal offense.
For example, in Commonwealth v. Daniel, 464 Mass. 746 (2013), the Massachusetts Supreme Judicial Court affirmed the allowance of a motion to suppress the confiscation of a gun and ammunition found in the glove box. In Daniel, the police stopped a car for a motor vehicle infraction and smelled the odor of burnt marijuana. Upon questioning by the police officer, the driver produced a small amount of marijuana which prompted the officers to search the car and they ultimately discovered the ammunition and handgun. The Massachusetts Supreme Judicial Court agreed with the trial court that based on these facts the officers did not have sufficient information to lead a reasonable person to believing that the occupants of the car were armed or dangerous and nothing indicated that the driver’s capacity to drive was impaired. Accordingly, the search of the glove compartment was unconstitutional and the evidence was properly suppressed.
The case law seems to distinguish between a “fresh scent” of marijuana and a “burnt odor” of marijuana. Apparently, a ‘burn odor’ seems to be consistent with personal use, i.e., recently smoked pot. However, if there is a “fresh scent” the argument made by prosecutors is that the product has not been used, thus it is likely for distribution (a crime) and not personal use.
Massachusetts continues to loosen its grip on marijuana use as Massachusetts voters approved the use of marijuana for medicinal purposes last November. Many cities have recently been grappling with the appropriate locations for these establishments. For example, in Andover Massachusetts a Newburyport based establishment wants to open a medical marijuana dispensary. The Newburyport News reports that the Andover Board of Selectman are looking to have a one year ban on having such a business in the town. According to the paper, this will give the town leaders time to consider the types of zoning and ordinances that would be necessary for these types of businesses.
With all of these developments it seems that a logical step would be either to decriminalize the distribution/intent to distribute marijuana or at least make the intent to distribute or distribution in a school zone not have a mandatory sentence attached to it. It seems inconsistent for possession of under an ounce to be non-criminal however, the distribution of any amount of the substance is still a criminal offense. It’s tough to wrap your head around such a concept. It is like having possession of alcohol legal but having it be illegal to sell alcohol.
Richard Hazzard, a 23-year-old Marlborough man, was recently charged with possession of cocaine with intent to distribute after a traffic stop. Police allegedly pulled him over for running a stop sign. The officer told local news that after he saw that the defendant was “moving around” in the car, he ordered him to exit for a weapons search. The officer found no weapons, but he did allegedly find several bags of a white powdery substance believed to be cocaine. The defendant allegedly admitted to moving around in an attempt to hide the drugs. The defendant’s next court date is scheduled for July 8.
It appears that this defendant might have strong grounds for moving to suppress the alleged cocaine evidence. Here in Massachusetts, persons stopped by police are not required to sit motionless in their cars. It is natural for people to become nervous or anxious when stopped by police, even when they have done nothing wrong. Interaction with the police is undesirable for many people, including those who are not engaged in any criminal activity. Mere fidgeting on the part of a driver is not enough to order the driver out of the car. Furthermore, when police conduct a Terry-type weapons search, the search has to be limited to that which is minimally necessary to determine whether the suspect is armed and to disarm him if a weapon is detected. Here, the alleged “powdery substance” was presumably soft and therefore not consistent with the feel of a weapon. Massachusetts cases say that where a material is soft, a pat frisk of the exterior is enough for the police to uncover the presence of any weapon or hard object that is potentially a weapon. While the defendant supposedly told police that he was trying to hide the drugs in the car, the statement, in addition to the physical evidence, could be suppressed if it was the fruit of an illegal seizure or search. Attorney McCarthy has successfully litigated these motions which resulted in the dismissal of the case against a defendant who was often facing a mandatory jail sentence if convicted.
By way of a pre-trial motion to dismiss or as a defense at trial, this defendant might argue that simply having several bags of drugs is not indicative of an intent to distribute. Multiple baggies can be equally consistent with a recent drug purchase for personal use. Many of those suffering from drug addiction tend to purchase larger quantities of drugs at a time. There is much law in Massachusetts supporting the argument the number of packets or baggies isn’t a determinative factor. There is no indication here that any other items suggesting distribution, such as scales, transaction lists, large amounts of cash, cutting agents, or multiple cell phones, were recovered.
Erik Lang, 20, was arrested for possession with intent to distribute marijuana on February 27th after a traffic stop in North Andover. Police allegedly stopped Lang after learning that his license was suspended. Further investigation revealed that Lang had there-quarters of a pound of marijuana with him. Police told the local newspaper that the amount indicates that Lang had the marijuana for “more than personal use.” Lang has been charged with driving after license suspension, possession with intent to distribute marijuana, and possession of marijuana.
Contrary to what the police officer suggested to the newspaper, quantity of drugs is far from dispositive on intent to distribute. There are a number of indicia considered in assessing whether there was an intent to distribute drugs. Factors considered include: the packaging of the drugs; presence of paraphernalia associated with distributing drugs, such as scales, plastic baggies and cutting agents; presence of large amounts of cash; and multiple cell phones. Lack of intent to distribute is a common, and often viable, defense in these types of cases.
As a Massachusetts drug crimes defense lawyer, I’m interested in the nature and extent of the “investigation” that followed the stop. There have been important legal search and seizure developments in the context of marijuana-related searches ever since possession of one ounce or less of marijuana became a civil, as opposed to criminal, offense in Massachusetts. Depending on the facts and circumstances of the encounter, Lang might have solid grounds for a motion to suppress evidence.
I’d also be interested in whether there were other occupants of the car, whether this defendant owned the car, and the location of the alleged marijuana. These factors are important in considering a lack of possession defense. For example, if the car did not belong to this defendant and the alleged drugs were in the trunk or under a seat, he might be able to argue that he did not know that the drugs were in the car and that he did not have control over the drugs.
Some tend to forget that possession of more than an ounce of marijuana is still a criminal offense in our Commonwealth. Here, it seems inappropriate that the defendant is charged with both possession and possession with intent. When the Commonwealth charges two drug violations , the specific controlled substance supporting each charge must be a “separate item” or “separate unit of prosecution.” In this example it appears that both the possession and possession with intent charges are based on the same item.