Firearm laws are clearly defined and strictly enforced in Massachusetts. Anyone wanting to legally possess or carry a firearm must follow strict protocol and carry a firearm identification card, or FID. While gun violation penalties are serious, they are increasingly severe in the presence a controlled substance. If you find yourself facing charges involving both a firearm and controlled substance, contact a criminal defense attorney right away. This post examines how you might defend yourself against the possession of firearms and narcotics. Continue reading
Many people who are charged with gun possession crimes are not career criminals. Instead, they were in the wrong place at the wrong time or lacked understanding in complicated state firearm legislation. Consequences for weapons violations can be costly, both professionally and personally, but they can be avoided when armed with the right information, advice and representation by a Massachusetts gun violations attorney.
In the State of Massachusetts, a firearm identification card, or FID, is required to purchase or carry a weapon, as defined and specified by Massachusetts general law. A Class A FID permits the owner to carry a gun open or concealed, while a Class B license only permits open carry. Penalties for a violation conviction start at a mandatory one-year jail sentence and become increasingly severe if the weapon was in possession at the time of another crime, even if the crime was non-violent and did not involve a weapon. Such a conviction can also lead to the revoking of any weapons license. Also, despite the possession of an FID card, it is illegal to carry a weapon if the person is under the influence of drugs or alcohol, on school grounds, or in a secure area of the airport.
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.
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.
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.
If you are looking for an experienced and successful defense attorney for any drug crime, firearm offense or violent crime Attorney Kathleen M. McCarthy will bring good results and hard work to your case. She recently successfully litigated a motion to dismiss and suppress evidence in a Massachusetts Superior Court. The defendant was initially charged with being a career criminal, illegal possession of a firearm and improper storage of a firearm as the result of a search of a motor vehicle in which the defendant was a passenger. Attorney Kathleen McCarthy filed a number of pre-trial non-evidentiary motions including a motion to dismiss the career criminal portion of the indictment. She argued that the grand jury was not presented with the requisite number of previous offenses to charge the defendant as a career criminal. A superior court judge agreed and allowed the motion without a hearing. This eliminated the mandatory minimum state prison sentence that the defendant faced. This, however, was not the end of the case.
The defendant was still facing the illegal possession of a firearm charge that carried a mandatory committed sentence of eighteen months in jail if convicted. Attorney McCarthy conducted a thorough pre-trial investigation and filed a motion to suppress evidence based on the illegal search of the car that the defendant was a passenger in.
The Commonwealth claimed that local police officers responded to a local street after receiving a report that there was a “suspicious” car idling outside one of the buildings. During an evidentiary hearing Attorney McCarthy established that when the police arrived there was no car “idling.” The police officers approached the car that the defendant was in and questioned the driver. Apparently, the driver did not have a valid driver’s license and was arrested. The defendant, passenger in the vehicle, was allowed to go the nearby police station to bail out the driver. In the meantime the police conducted what they claimed was an inventory of the car and found a firearm and two ski masks.
Successful defense attorneys file these motions to zealously defend their clients. The motions usually assert that the evidence should be suppressed for the following reasons:
• said evidence was not seized pursuant to a lawful arrest;
• it was not in plain view;
• there was no probable cause;
• there was no warrant;
• there were no exigent circumstances;
• the search was not pursuant to a lawful stop-and-frisk;
• the search was not consented to;
• the search, stop and/or inquiry of the defendant was conducted without probable cause, reasonable suspicion or exigent circumstances;
• the search was a “pretextual search”;
• the search was not done in conformity with written police inventory policy;
• the stop of the defendant was unlawful;
• the search of the defendant and the car was unlawful;
• the stop and search was in violation of the Fourth and Fourteenth Amendments of the United States Constitution, Article 14 of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts and G.L. c. 276.
In Massachusetts, individuals have an expectation of privacy in their homes, person and in appropriate circumstances a motor vehicle. Attorney McCarthy filed a motion to suppress claiming that he police had no right to tow the car because it was parked in a private area and the owner of the building, or anyone for that matter, did not call requesting that the car be towed. Following an evidentiary hearing the superior court judge agreed with Attorney McCarthy and allowed the defendant’s motion. Thus, the Commonwealth will not be allowed to introduce the gun and masks into evidence. The result is that the government does not have a case.
The Lawrence Eagle Tribune reports that a former Lawrence City Councilor Jorge Gonzalez was arrested for allegedly firing his handgun in front of his home. The Tribune indicates that the police believe that alcohol may have played a part in the incident. Police officers responded to the former Councilor’s home after complaints relative to gunshots being heard at approximately 2:14 am. Apparently, witnesses also saw fifty-four year old Gonzalez’s wife take him into the house after the shots were fired. Gonzalez was arraigned in the Lawrence District Court this week and charged with discharging a firearm within 500 feet of a dwelling and disorderly conduct.
Massachusetts General Laws Chapter 269 § 12E provides that whoever discharges a firearm . . . within five hundred feet of a dwelling or other building in use, except with the consent of the owner or legal occupant thereof, shall be punished by a fine of not less than fifty nor more than one hundred dollars or by imprisonment in a jail or house of correction for not more than three months, or both. Although all of the facts of the case are not known at this time, in cases of these types it is sometimes appropriate to argue that in view of the fact that it was the defendant’s dwelling, the statute was not violated. In order for the Commonwealth to prevail in a disorderly person case it must prove beyond a reasonable doubt that a defendant engaged in hazardous or offensive conduct for no legitimate purpose. Although the offense is a misdemeanor and may appear minor at first blush, the maximum sentence is six months is jail.
The Lawrence Eagle Tribune reports that a Lawrence Massachusetts man faces a minimum mandatory sentence of 10 years in state prison if convicted of charges stemming from a drug bust. Marcelo Perez, 48, of 210 Lawrence St., was charged with drug crimes including two counts of trafficking cocaine, two counts of unlawful possession of a handgun, two counts of unlawful possession of ammunition and possession of a dangerous weapon.
Three local authorities worked together focusing on suspected drug activity in the Dunkin’ Donuts parking lot on Main Street in Haverhill Massachusetts. Reports indicate that when he was arrested Perez had loaded .38 caliber pistol and 305 grams of cocaine in his jacket. With the assistance of the Tewksbury K9 unit, police discovered a hidden compartment in the back floor of Perez’s jeep. It has been reported that the authorties seized an additional 30.7 grams of cocaine another loaded handgun, a box of ammunition and a digital scale. Police estimated the street value of the cocaine at $6,500.
If you have been charged with any drug crime in Massachusetts, it is imperative that you have an experienced defense attorney on your side. Most drug arrests stem from a search that has been conducted by the police. Attacking the legality of the search is often times the first step to a successful litigation of a drug offense. Depending on the circumstances of the case, this is done by filing a motion to suppress evidence seized from a defendant, his or her car and/or his or her home or apartment. Attorney McCarthy has successfully litigated these types of motions. If the evidence is suppressed the government is left without a case.
Based on the recent Supreme Court decision of Melendez-Diaz v. Massachusetts, it is imperative that a qualified defense lawyer attack any drug certificate that the District Attorney attempts to introduce in order to establish that the seized substance is in fact an illegal drug. The Supreme Court has indicated that the Commonwealth cannot merely introduce a drug certificate to prove that a retrieved product is contraband. Based on this new case law, in most cases, the Commonwealth is required to produe a chemist that examined the item and determined that is was an illegal drug. The Courts and the District Attorneys’ offices are scrambling to try to get around this requirement. If you find yourself facing drug charges you must have an experienced Massachusetts criminal lawyer on your side to fight for all of your rights.
The Lawrence Police reacted when a group of neighbors complained about the occupants of a gray Toyota Camry being involved in what they thought were “drug transactions.” The Lawrence Tribune reports that as a result of a police surveillance and a tip from a citizen, four individuals were arrested and charged with drug offenses. The charges ranged from drug offenses including distribution of heroin, possession of heroin with intent to distribute to possession of cocaine and possession of marijuana.
If you face criminal drug charges it is important that you have an experienced Boston criminal lawyer on your side. Although all of the facts of this case are not known at this time, gathering all of the facts that led to the arrest of these defendants is essential to mount a complete defense. In the event that the police did not have reasonable suspicion to approach the defendants and/or probable cause to search the individuals or the car, the case could be dismissed. Whenever someone faces drug chares as the result of a search of his or her person or car, the appropriateness of filing a motion to suppress the evidence must be evaluated. In most situations, the facts are such that the filing of the motion is the exercise of effective assistance of counsel.
Filing a motion to suppress is one of many tools that a qualified criminal defense attorney has in her aresenal. If a client is charged with any type of offense where the Commonwealth must prove possession, arguing that the defendant did not have possession and control of the object or substance is often a viable defenese.
A routine trip the doctor’s office turned fatal when a disgruntled patient stabbed his psychiatrist during a treatment session and then was shot and killed by an off duty security guard, Paul Langone. According to The Boston Globe, Dr. Astrid Desrosiers, a well respected and well known instructor of psychiatiry at Harvard Medical school, experienced what has been called a “psychiatrists worst nightmare” when patient, Jay Carciero of Reading Massachusetts, stabbed her during an office visit. It is believed that Carciero was being treated by Desrosiers on Staniford Street, where Massachusetts General Hospital leases space for its Bipolar Clinic and Research Program.
According to reports, Langone entered the area an ordered Carciero to drop his weapon. When Carciero refused, the guard shot him in the head. Carciero was pronounced dead at the Massachusetts General Hospital. At this time, it is believed that Langone was properly licensed to carry a gun in Massachusetts.
As the authorities continue to investigate the matter, Langone has been lauded as a hero. In Massachusetts, an individual is allowed to act in self defense or in defense of another. If evidence of self-defense or defense of another is presented, the Commonwealth must prove beyond a reasonable doubt that the defendant did not act in self-defense or in defense of another. For the jury to acquit a defendant when these types of defenses area raised the jury must have a reasonable doubt whether or not the defendant acted in self-defense or in defense of another. Although it does not appear that the security guard will be charged with a criminal offense in this case, defense of another would clearly be a viable defense under these circumstances.
Additionally, it is good that the security guard had a license to carry a firearm. The Massachusetts firearms laws are very strict and a conviction for illegal possession of a firearm carries a minimum mandatory sentence of eighteen months in prison. In the event that an individual is charged with possession of a loaded firearm, the potential penalties are even more severe and are imposed on and after the sentence for the underlying charge.
If you have been charged with a violent crime in Massachusetts or charged with illegal possession of a firearm you must have an experienced lawyer on your side. Depending on the circumstance, a motion to suppress evidence and or statements should be filed that may dispose of the case.
Charges of possession of a firearm, possession of a loaded firearm and possession of ammunition were dismissed against Lynn Massachusetts last week in a local district court. The charges stemmed from an incident that occurred on April 17, 2008. According to the police report, the police responded to the area of Route 1 in Peabody Massachusetts for a call of a woman being run down by a motor vehicle. After responding to the scene, the police spoke to the involved parties, and transported the female defendant back to her residence. When the police arrived at the residence the defendant’s boyfriend was also there. The defendant was ultimately arrested on an outstanding default warrant.
The defendant was transported in a cruiser to the State Police Barracks in Danvers, MA. After she was taken from the cruiser and into the police station the Trooper searched the car and claimed that he found a loaded handgun in stuffed behind the rear seat of the cruiser. No-one ever identified the defendant as in possession of this weapon.
The defendant maintained her innocence from the outset of the set. There was no physical evidence that connected her to the gun. Attorney Kathleen McCarthy timely filed a number of pre-trial motions requesting copies of any notes, logs or other documentation generated as a result of the transportation of any individual in the cruiser that the defendant was transported in for a period of one week prior to this incident. The request also included all police reports generated in connection with this case. Massachusetts also requires the prosecution to provide automatic discovery of “any facts of an exculpatory nature.” M.R.C.P. 14 (a)(1)(iii). It was clear that the intent of requesting the information relative to individuals transported in the cruiser was to determine whether anyone else was in the cruiser that was involved in a “firearm” related incident. No information was forwarded to the defense relative to this request prior to trial.
On the day of trial, the prosecutor approached the defense attorney and indicated that the arresting trooper informed her that prior to the defendant’s arrest he had been called to back up the State Police in Concord relative to a report, by a named caller who gave his cell number, of a group of individuals in a truck with a gun. Apparently, there were three individuals in the truck that matched the description given by the caller. The individuals were taken from the truck. One of these “suspects” was placed in the rear of the Trooper’s cruiser. The same cruiser in which the Trooper found the alleged firearm after the defendant’s arrest. There was handgun ammunition, shot gun shells, controlled substances and alcohol found in the truck. The driver of the truck was arrested and charged with illegal possession of a Class D substance, illegal possession of ammunition and illegal possession of alcohol. The judge granted the defendant a continuance to investigate the incident. Based on the late disclosure of the requested exculpatory evidence, Attorney Kathleen McCarthy filed a motion to dismiss the case.
Almost fifteen months after the incident the caller could not be located and the 911 tape had been destroyed. Despite the efforts of an experienced investigator, the named caller could not be located and the cell phone number no longer belonged to the individual that made the call fifteen months earlier. After an extended hearing the district court judge agreed that the fact that the Trooper had placed an individual in his cruiser who was suspected of being in possession of a handgun only a few hours before the defendant was placed in the cruiser should have been disclosed to the defendant pursuant to the discovery orders rather than seventeen months later on the day of trial. The trial judge held that the late disclosure caused irremediable harm to the defendant’s case and dismissed the charges against the defendant.
This case exemplifies the importance of filing all relevant pre-trial motions. Experienced defense attorneys often file pre-trial motions including discovery motions, motions to suppress, motions to dismiss and motions to compel in order to effectively represent their clients and protect their rights to due process and a fair trial.