Articles Posted in Drug Crimes

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Drug Distribution Defense in Massachusetts

Drug Distribution Defense in Massachusetts

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.

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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.

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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.

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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.

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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.

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As Massachusetts continues to grapple with the Annie Dookhan scandal, a second crime lab chemist has been arrested and will face charges relating to evidence tampering and drug possession. Sonja Farak, a 35-year-old Northampton woman who worked at the Amherst lab, allegedly substituted real drugs with counterfeit drugs to support a suspected drug habit. The lab will close temporarily.

According to Attorney General Martha Coakley, the “drugs were tested, they were tested fairly. The certificates were not impeached in any way, but we allege… that the drugs were then taken and in her possession.” Coakley claims that this case is not connected with the Dookhan scandal because the “motives are completely opposite” and because Dookhan and Farak exhibited different behaviors. Prosecutors believe that the drugs were for personal use and that there was no distribution or intent to distribute. Supervisors at the lab discovered a discrepancy in inventory and contacted state police. Farak previously worked at the Jamaica Plain lab. She will be arraigned in Eastern Hampshire district court. District Attorney David Sullivan issued a statement on Sunday indicating that his office is assessing the number of cases that may have been compromised by the chemist’s wrongdoing.

Police interviewed Farak in connection with the Dookhan scandal on September 12, 2012. Police reports indicate that Farak worked with Dookhan in Jamaica Plain before Farak started working at the Amherst lab. Farak told police that they worked on some cases together and found Dookhan to be friendly. She told police that she never noticed Dookhan doing anything improper and that she had no knowledge of anyone in the lab performing analytical procedures improperly. Farak never reported any wrongdoing in the lab during her career.

Even if, as Coakley has claimed, the Farak case is different from the Dookhan case in terms of motive, it seems to reveal that the Dookhan investigation is not being conducted as thoroughly as it should be. While police interviewed Farak about Dookhan, they apparently failed to look into Farak’s own history. It is also troubling that lab supervisors failed to notice that an employee was suffering from a heroin and cocaine addiction. One would think that supervisors in most lines of work would notice if an employee was showing up to the job while on, or while withdrawing from, heroin and cocaine. The fact that Farak’s apparent drug problem went undetected for some time is a further indication of a lack of oversight in our state’s drug labs. Now, perhaps more than ever, it is critical to speak with a Massachusetts defense attorney if you have a pending or closed drug case.

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Kelly Arzate and Charles Berard, two Holyoke men, were charged Wednesday with cocaine trafficking and possession with intent to distribute marijuana after police conducted a “routine traffic stop,” according to local news outlets. A state trooper conducted the stop after midnight, allegedly because he noticed that Arzate’s license plate light was out. When he approached the car, he allegedly detected an odor of marijuana. He called for backup and ordered the pair out of the car. Troopers searched the car and allegedly recovered a bag of suspected cocaine in the center console, eight cell phones, $13,000 cash, and 15 pounds of marijuana, which was in the trunk, in individual baggies. Arzate and Berard were then arrested. Police estimate that the street value of the cocaine would have been $20,000 and that the street value of the marijuana would have been $4,000.

An experienced Massachusetts defense lawyer would immediately pick up on the fact that this exit order may have been illegal, and these two defendants might have strong grounds for a motion to suppress evidence. Because possession of one ounce or less of marijuana is no longer a crime in Massachusetts, the odor of burnt marijuana alone cannot justify an exit order. This is because exit orders must be based on reasonable suspicion of criminal conduct. Still, officers might be able to conduct an exit order of a driver if there is reasonable suspicion that the driver was operating the under the influence of marijuana. Here, there doesn’t seem to be any indication that Arzate was operating under the influence of marijuana. It’s telling that he was apparently not charged with that crime. Further, he was stopped not because he was driving erratically or in any way indicative of impairment. Rather, he was stopped simply because his light had gone out. There is no indication in news reports that Arzate exhibited any signs, such as blood shot eyes, of marijuana impairment. Also, it seems that there was no apparent reason for ordering the passenger, Berard out of the car. In order to do that, police would need reasonable suspicion of criminal activity, independent of the driver, on the part of the passenger. The alleged drugs here were apparently not in plain view, since the troopers allegedly recovered them from the console and the trunk. It does not seem that the defendants engaged in any activity that could be perceived as a safety concern. Finally, it is unclear whether the trooper smelled burnt marijuana or fresh marijuana. If he smelled fresh marijuana, that would further weaken the case for reasonable suspicion of OUI drugs. A skillful Massachusetts drug crimes attorney will likely be able to make a strong argument for suppression in this case. Successful motions to suppress often lead to dismissal of drug charges.

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Annie Dookhan, former chemist at the Hinton State Laboratory Institute (also known as the Department of Public Health drug lab) in Jamaica Plain, admitted that she “messed up bad,” local media reported Wednesday. Dookhan was referring to her mishandling and contamination of drug evidence, fraudulent alteration of chain of custody documents and other misconduct, which has called into question evidence used in more than 30,000 drug cases.

Dookhan confessed that she has claimed that negative drug tests were positive and that she breached other lab protocol. She also confessed that for two or three years she had not even done the required tests on drug samples and that she forged the signature of a colleague certifying that equipment was functioning properly. As of Wednesday, at least 20 inmates had been freed, had bail reduced, or had their sentences suspended as a result of the drug lab scandal.

According to reports, some fellow chemists at the lab expressed concern over Dookhan months and years before the scandal broke. One chemist told police that he was “staggered” by Dookhan’s output of more than 500 analyses per month. An average chemist has an output of 50 to 150 analyses per month, according to that chemist. When that chemist brought his concerns to Dookhan’s supervisor in December of 2010, the supervisor’s explanation was that Dookhan skipped lunch breaks and brought work home.

Another fellow chemist noticed that Dookhan did not use a microscope, which is necessary to analyze suspected cocaine samples. He also said that she would do favors for police and prosecutors, mostly in Quincy drug cases. Dookhan reportedly told police that she did not understand the attention she has been receiving from the press. When police asked Dookhan if she ever considered the harm she was causing to others, she reportedly responded that “now and then” she would think about it. In addition to deliberately mishandling drug samples in tens of thousands of cases, Dookhan falsified her resume, claiming to have a master’s degree and to have graduated magna cum laude from Boston’s Latin Academy.

As a result of the drug lab scandal, Massachusetts criminal defense attorneys have been reviewing new and old cases to determine whether the Jamaica Plain laboratory and/or Annie Dookhan were involved in their clients’ analyses. Many have filed new trial motions, motions to vacate guilty pleas, motions for stay of sentence after trial or plea, and motions for post-conviction discovery. Those representing clients with open cases are carefully exploring whether drug analyses have been rendered suspect. The drug lab controversy has affected countless individuals accused and/or convicted of drug trafficking, distribution, possession with intent, and more.

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According to The Bristol County District Attorney, a multi-county investigation called “Operation Diesel Spill” came to a climax this past week with the arrest of thirty-eight year old Alexander Torres, Senior. The Brockton Enterprise reported that the arrest of Torres will put a “huge dent” in the distribution of heroin. According to the Enterprise, nine law enforcement agencies have been working in an extensive investigation that included the use of court-ordered wiretaps that cumulated with the seizure of 2.3 pounds of heroin that is estimated to have a street value of over $300,000.00. This coordinated investigation began last summer and resulted in drug raids in Attleboro, Taunton, Brockton and Central Falls Rhode Island. In addition to the arrest of Torres, it is expected that twenty-three people will be arrested or summonsed to court on related drug and firearms offenses.

If an individual is facing drug and or gun related charges as the result of an investigation and execution of a search warrant, there are many approaches that an experienced Massachusetts defense lawyer can take to successfully defend the accused. Initially, it is imperative to conduct a pre-trial investigation early on to determine whether there are any favorable witnesses. In any case in which a search warrant has been applied for and executed to search a person, home of vehicle it is imperative to thoroughly review the application for the warrant and the return of the search warrant.

A valuable tool in a Boston area criminal defense attorney’s arsenal is the ability to file a motion to suppress evidence and a motion to suppress statements in appropriate circumstances. The Massachusetts Declaration Of Rights and Article XIV of the United States Constitution provides that a private citizen enjoys an expectation of privacy in his or her home, car and person. In order to search an individual’s home the authorities must present reasons or “probable cause” in the form of an application for a search warrant to a clerk-magistrate. The application must proved reliable information that the contraband sought can be found at the specific location or on the specific person. Often, the affiant provides information from an “informant” [either reliable who has supplied information in the past or a concerned citizen] or an “unreliable” or first time “informant.” The affiant must establish the reliability and veracity of this information within the four corners of the affidavit. The reliability and veracity of the information is one of the areas in which an experienced drug defense lawyer attacks in the form of a motion to suppress evidence.

In other situations in which a defendant has been charged with any “possessory” offense [including drug and firearms offenses] the police also have to justify the stop, search and sometimes the exit order of a driver or passenger from a motor vehicle. These types of stops often occur when the police have not previously applied for a search warrant.

In Massachusetts, “[S]eizures conducted outside the scope of valid warrants are presumed to be unreasonable. In such circumstances, the burden is on the Commonwealth to show that the … seizure falls within a narrow class of permissible exceptions.” Commonwealth v. Seng, 436 Mass. 537, 550 (2002), quoting Commonwealth v. Rodriguez, 378 Mass. 296 (1979). Searches without a warrant are per se unreasonable under both the Fourth Amendment and Article 14 of the Massachusetts Declaration of Rights, subject to only a few specifically established and well-delineated exceptions. Commonwealth v. Lewin, 407 Mass. 617 (1990); Mincey v. Arizona, 437 U.S. 385 (1978); Commonwealth v. King, 67 Mass. App. Ct. 823, 826 (2006). To justify a police investigatory stop under the Fourth Amendment and. Article 14 the police must have “reasonable suspicion” that the person has committed, is committing, or is about to commit a crime. Commonwealth v. Lyons, 409 Mass. 16, 18-19 (1990). Reasonable suspicion must be “based on specific, articulable facts and reasonable inferences therefrom.” Id. at 19 quoting from Commonwealth v. Wren, 391 Mass. 705, 707 (1984).
“[F]or a police investigatory stop to be justified under [Article 14 of Declaration of Rights] the police must have ‘reasonable suspicion’ to conduct the stop. To be “reasonable” … the officer’s suspicion must be grounded in specific, articulable facts and reasonable inferences [drawn] therefrom’ rather than on a ‘hunch.’ ” Commonwealth v. Scott, 440 Mass. 642, 646 (2004); Commonwealth v. Antobenedetto, 366 Mass. 51 (1974); Terry v. Ohio, 392 U.S. 1 (1968); Commonwealth v. Silva, 366 Mass. 402 (1974). Under Article 14, a “seizure” occurs when “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Commonwealth v. Borges, 395 Mass. 788, 791 (1985). “[A] pursuit, which, objectively considered, indicates to a person that he would not be free to leave the area … without first responding to a police officer’s inquiry, is the functional equivalent of a seizure ..” Commonwealth v. Stoute, 422 Mass. at 789. “[A] stop starts when pursuit begins.” Commonwealth v. Thibeau, 384 Mass. 762, 764 (1981). [T]he burden is on the Commonwealth to show that … police had reasonable suspicion, before pursuit began, that a person has committed, is committing or about to commit a crime. Commonwealth v. Comita, 441 Mass. 86, 91 (2004) (emphasis added.). If the pursuit commences without reasonable suspicion, the fruits of the pursuit, including items discarded by the person pursued while fleeing, must be suppressed as fruits of the illegal seizure. Commonwealth v. O’Laughlin, 25 Mass. App. 998, 999 (1988) (jacket thrown from car).
Relative to exit orders, Article 14 requires a reasonable suspicion of danger to the officer or others before either a driver or passenger may be ordered from a lawfully stopped motor vehicle. To justify either a search or an order to the occupants to exit the vehicle, the inquiry is whether a reasonably prudent person in the officer’s position would be warranted in the belief that the safety of the officer or others was in danger. Commonwealth v. Vasquez, 426 Mass. 99, 102-103 (1997); See also Commonwealth v. Williams, 46 Mass. App. Ct. 181, 183 (Article 14 does not allow the police to order the driver and/or passengers out of a motor vehicle during a routine stop unless there is reasonable suspicion based upon specific and articulable facts); See also Commonwealth v. Gonsalves, 46 Mass. App. Ct. 186, 189 (1999) (exit order to passenger requires reasonable suspicion grounded in articulable facts). So long as there is reasonable suspicion for safety concerns, the occupants may be ordered out of the motor vehicle. The standard is objective. A mere hunch or gut feeling that there is something wrong is not enough to justify the exit order, and a frisk. Commonwealth v. Hooker, 52 Mass. App. Ct. 683, 688 (2001). To justify either the search or the order to the occupant to exit the automobile, the Massachusetts Courts examine “whether a reasonably prudent man in the policeman’s position would be warranted in the belief that the safety of the police or that of other persons was in danger.” ’ ” Commonwealth v. Santos, 65 Mass. App. Ct. at 124 citing Commonwealth v. Vazquez, 426 Mass. 99, 102-103 (1997) quoting from Commonwealth v. Santana supra at 212-213; See, Commonwealth v. Gonsalves, 429 Mass. 658, 661-663 (1999). “[T]o permit an officer, in the absence of any specific and articulable facts [establishing a reasonable apprehension of harm] to order the driver of a vehicle … to step out of the vehicle [and then conduct a search] would be to invite random and unequal treatment of motorists.” Commonwealth v. Gonsalves, supra. See Commonwealth v. Stampley, 437 Mass. 323, 326 (2002).

The principle of proportionality also has application in determining whether an exit order is appropriate. In Commonwealth v. Torres, 49 Mass. App. Ct. 348, 350 (2000) the Appeals Court held that the officer used disproportionate force when he drew his weapon and ordered the occupants to lie on the ground when he merely wanted the backseat passengers to put hand on their head. A search of motor vehicle may be conducted so long as the search is limited to what is minimally necessary to dispel safety concerns. Commonwealth v. Vazquez, 426 Mass. at 103, Commonwealth v. Alvarado, 427 Mass. 277, 284 (1998).

The standard by which the permissibility of a frisk is determined is set forth in Terry as to whether under the totality of the circumstances, a reasonably prudent person would be warranted in believing the suspect might be armed and present a danger to the officer or others. Terry v. Ohio, 392 U.S. 1, 27 (1968). The search must be “strictly tied to and justified by” the circumstances which rendered its initiation permissible. Terry v. Ohio, supra, at 19, quoting from Warden v. Hayden, 387 U.S. 294, 310 (1967) (Fortas, J., concurring). A weapons search, unlike a search without a warrant incident to a lawful arrest, is not justified by any need to prevent the disappearance or destruction of evidence of crime. Terry v. Ohio, supra, at 29. See Preston v. United States, 376 U.S. 364, 367 (1964).

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One of the most valuable tools that an aggressive and successful defense attorney has in his or her arsenal is the motion to suppress evidence. Whether a case is in the Lowell District Court, Peabody District Court or Lawrence District Court the viability of filing a motion to suppress evidence should always be considered when a client is charged with an offense in which the Commonwealth must prove possession to secure a conviction against a defendant. Boston area criminal Defense Attorney Kathleen M. McCarthy has successfully litigated motions to suppress evidence in the Massachusetts Superior and District Courts. Whenever a client is charged with possession of a controlled substance, possession of a controlled substance with intent to distribute, trafficking in a controlled substance, possession of a firearm, possession of ammunition or possession of a dangerous weapon a Massachusetts criminal defense attorney should consider filing a motion to suppress evidence. If a motion to suppress evidence is successful that is often the end of the case.

STANDING

In order to be in a position to file a motion to suppress a defendant must have standing and an expectation of privacy. Standing generally means that a person is legally in a position to file such a motion. Whenever a defendant is charged with an offense in which the Commonwealth must prove possession to convict a defendant, such as unlawful possession of a firearm, G.L. c. 269 § 10 9h), he has automatic standing to contest the reasonableness of the search under Article Fourteen of the Massachusetts Declaration of Rights. Commonwealth v. Amendola, 406 Mass. 592, 601 (1990) [adopting doctrine of “automatic standing” where defendant is charged with a possessory offense and seeks to exclude evidence under the Massachusetts Declaration of Rights]. Whether an individual has a reasonable expectation of privacy is usually a separate–but related issue. In Commonwealth v. Kirschner, 67 Mass. App. Ct. 836 (2006) the Appeals court recognized that a defendant charged with a possessory offense is relieved of the burden of showing an expectation of privacy. See, Commonwealth v. Frazier, 410 Mass. 235 (1991).

STANDING/EXPECTATION OF PRIVACY

Under the Fourth Amendment, the question of whether the defendant has standing to challenge a search or seizure is merged with the determination of whether the defendant had a reasonable expectation of privacy in the place searched, and a defendant has no standing if he has no reasonable expectation of privacy. Rakas v. Illinoi, 439 U.S. 128, 138-39 (1978); Commonwealth v. Mubdi, 456 Mass. 385, 391 (2010). In contrast, under Article Fourteen, the question of standing remains separate from the question of reasonable expectation of privacy. Mubdi, 456 Mass. at 391; Commonwealth v. Williams, 435 Mass. 203, 207-08 (2009); Commonwealth v. Frazier, 410 Mass. 235, 244 n. 3 (1991). “This separation matters most in cases where a defendant is charged with a possessory offense, because Article Fourteen gives a defendant automatic standing to challenge a search of a private place, such as an automobile or home, in which the object he is alleged to possess is found.” Mubdi, 456 Mass. at 392. Where a defendant has automatic standing, he does not need to show that he has a reasonable expectation of privacy in the place searched. Id. “The practical consequence of automatic standing is that, if a defendant is charged with illegally possessing drugs or firearms that were seized during a search, the defendant may succeed in suppressing such evidence where the search was unconstitutional, regardless of whether he has a subjective or objectively reasonable expectation of privacy in the place where the drugs or firearms were found.” Id. at 392-93.

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