Articles Posted in Search and Seizure

The Fourth Amendment of the Constitution of the United States limits the power of the police to make arrests and conduct searches on individuals and their property. To honor the privacy of the individual, searches and seizures are considered to be unlawful and are dismissible in a court of law if they are deemed unreasonable.  However, there are certain exceptions within the 4th amendment that allow for searches and seizures to take place.

Illegal Search & Seizures

Illegal Search and Seizures

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Search Warrants Must Meet Certain Requirements

Citizens are protected from unlawful search of their homes, person, vehicles and other property unless a law enforcement officer has obtained a valid search warrant and has probable cause to conduct a search. This protection is provided under the Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights. If any evidence of a crime is discovered or collected during an illegal search, it will not be admissible in court proceedings against you. Attacking search warrants can result in having your case dismissed and we have won serious drug cases and gun cases this way. This post takes a look at Massachusetts search warrants.

A Look at Massachusetts Search Warrants

A Look at Massachusetts Search Warrants

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The Lawrence Eagle Tribune reports that twenty-one year old Hector Martes of Lawrence Massachusetts was rushed to the hospital after he was stabbed in his upper abdomen and rib cage. According to reports, Martes told hospital workers that while playing “beer pong” at his home he was stabbed after an argument erupted with his stepfather and brother. The police are still investigating the incident and Martes is listed in stable condition.

Although all of the facts are unknown at this time, it appears that one of the parties could ultimately be charged with assault and battery by means of a dangerous weapon. In order for the Commonwealth to prove this crime, it must prove beyond a reasonable doubt that a defendant intentionally touched another person with a dangerous weapon. Another theory that the government may assert is that a defendant engaged in reckless conduct that resulted in bodily injury. In the event that the defendant’s step-father and/or brother are charged in this, potential defenses include misidentification by the victim as to who the perpetrator was and/or self-defense and defense of another.

It is also worthy to note that anyone questioned by the police is not under any obligation to speak to them. If you find yourself in a situation where you are being questioned by the police you should refuse to answer any questions until you have consulted with an experienced Boston area attorney. If you choose to speak with the police anything that you say may be used against you in court. If a defendant is questioned by the police an experienced Lawrence Massachusetts area lawyer will review the circumstances to determine whether a motion to suppress the statement should be litigated.

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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.

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Many people applauded when the legislature “decriminalized” the offense of possession of marijuana that is one ounce or less. The new section changes possession of an ounce or less of marijuana from a criminal offense to a civil infraction and an offender receives a civil citation. For adults, this offense is now punishable by a $100.00 fine and forfeiture of the substance. However, if a person is under eighteen years old he or she must complete a drug awareness program. This program requires of a minimum of four hours classroom instruction or group discussion and ten hours of community service. A certificate of completion of the program must be filed with the Clerk of the local district court within one year of the offense or the offender may face higher fines and possibility a criminal charge. Furthermore, being charged with possession of marijuana can still be problematic and sometimes have legal consequences.

For example, it appears that many teenagers are looking at this offense as a “free pass” to smoke marijuana and drive — it is not. If an individual is “high” and driving he or she can still face charges of driving under the influence of drugs. Furthermore, even if someone is in possession of an ounce or less of the substance admitting that he or she shared a “joint” with a friend or gave some of the product to another can result in being charged with distribution of marijuana. Informing the police that he or she intended to share the drug can result in charges of possession of marijuana with intent to distribute. In the event that a search is conducted and scales, baggies, a large amount of money, razor blades and/or mirrors [items often used to package contraband for distribution] are found when an ounce or less is involved, the police will likely charge those involved with possession with intent to distribute marijuana. Make no mistake about it — these are serious criminal charges that carry the potential for jail sentences, license loss and have life altering consequences. If you are in the unfortunate position of being charged with distribution or intent to distribute marijuana within 1000 feet of a school zone you face the possibility of a mandatory minimum of two years in jail. Furthermore, if you are on probation and being drug tested, testing positive for marijuana may be a violation of your probation. Make sure you and your teenagers understand the pitfalls people have been facing by underestimating the teeth in this recent legislation.

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The shooting death of Robert Plaza, 32 of Lawrence Massachusetts marks what the police suspect is the fourth homicide in the city this year and the second in less than a month. The Lawrence Eagle Tribune reports that Plaza careened into a chain-link fence in front of a local assisted living building. When firefighters and concerned citizens attempted to pull Plaza from his vehicle they discovered a gun shot wound to his chest. He was pronounced dead at the hospital a short time later. The authorities are treating Plaza’s death as a homicide and believe it was the result of a “drug transaction gone bad.”

If you have been charged with a firearm offense or a drug offense you must contact an experienced defense attorney as soon as possible. In Massachusetts, a conviction for possession of a controlled substance, possession of a controlled substance with intent to distribute and possession of a controlled substance with intent to distribute in a school zone can result in a commitment to the house of correction or to state prison. A conviction for a firearm offense can result in a defendant serving a minimum of eighteen months in jail.

In order to properly defend against these types of crimes, a good Massachusetts trial attorney often files appropriate pre-trial motions. These motions include motions to dismiss and motions to suppress physical evidence and statements. Successful litigation of these types of motions often result in the dismissal of the charges.

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According to The Lawrence Eagle Tribune, a Lawrence Massachusetts man was arrested and charged with carrying a firearm without a license, discharging a firearm within 500 feet of a building, and possession of ammunition without a firearms identification card. The Tribune reports that police were called to the Fern Street neighborhood due to reports of a man firing up to six gunshots “over his head.” During the early morning hours, a neighbor heard commotion and went to his window where he saw a pair of men. One of the individuals was “holding a gun over [the other person’s] head.” After repeatedly firing the gun, witnesses stated that the man walked into an apartment on Fern Street in Lawrence.

The police arrested this defendant and three of his roommates. The paper reports that one of the roommates was charged with disorderly conduct and resisting arrest while the other two were charged as keepers of a disorderly home. Police recovered a .32-caliber semiautomatic handgun behind the home. Shell casings were also recovered from the street.

If you have been charged with any crime, you must contact a Massachusetts defense attorney to ensure that all of your rights are protected. In any case where “possession” of the alleged item is an element of the crime and experienced trial attorney can evaluate whether filing a pre-trial motion to suppress the evidence is a viable option. A successful litigation of a motion to suppress evidence means the suppression of the physical evidence and often times dismissal of the case against a defendant.

If you have been charged with a criminal offense, it important that you contact a criminal attorney familiar with the elements that the government must prove to secure a conviction. For example, to prove the crime of discharging of a firearm within 500 feet of a dwelling or other building in use you can face a penalty ranging from 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. However, there are exceptions to the enforcement of this law that include the lawful defense of life and property; any law enforcement officer acting in the discharge of his duties; (c) persons using underground or indoor target or test ranges with the consent of the owner or legal occupant thereof; (d) persons using outdoor skeet, trap, target or test ranges with the consent of the owner or legal occupant of the land on which the range is established; (e) persons using shooting galleries, licensed and defined pursuant to statute; and (f) the discharge of blank cartridges for theatrical, athletic, ceremonial, firing squad, or other purposes in accordance with the statute.

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According to The Salem News, a Peabody jury acquitted Alfred Cochrane Jr. of carrying a firearm without a license and discharging a firearm within 500 feet of a dwelling. According to reports, the defendant was charged with the firearm offenses after his downstairs neighbor reported that a bullet had come through his ceiling. Coincidentally, at approximately the same time, Cochrane was treated at the Salem Hospital for a gunshot wound to his foot. The government did not produce the actual gun and the jurors acquitted the defendant.

If you have been charged with illegal possession of a firearm it is critical that you contact a Massachusetts defense attorney as soon as possible. Succesfsul litigation of these types of cases includes filing all relevant pre-trial evidentiary and non-evidentiary motions. Motions that are part of a trial attorney’s arsenal include motions to suppress evidence, motion to suppress statements and motions to inspect and examine evidence. If convicted on this type of offense the penalties may include a mandatory eighteen month sentence.

Depending on the facts of the case a criminal defendant should consider the possibility of having an independent expert/witness examine the alleged firearm to determine whether it really is a firearm pursuant to the statute. In order to secure a conviction for this type of offense, the government must prove that a defendant was in actual, joint or constructive possession of the firearm. A skillful defense attorney can attack this element of the crime at trial. Additionally, the alleged firearm must be capable of discharging a bullet. A damaged or malfunctioning weapon, depending on the facts, may not meet the definition of a “firearm” in Massachusetts.

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Four mail carries who delivered mail in Lawrence Massachusetts have been charged with a number of offenses relating to receiving fraudulent prescriptions for Percocet from a long time receptionist at a North Andover doctor’s office. The Lawrence Eagle Tribune reports that the receptionist and mother-in-law of one of the carriers, and another worker in the office, provided the prescriptions in the names of the carriers, which were then taken to local pharmacies to be filled.

The plot was successful until the doctor’s office received a call from a Methuen pharmacy because a patient attempted to fill the prescription in the same week. Suspecting foul play, the Doctor brought in the North Andover police and the investigation led to the arrests four mail carriers, and two employees of the doctor. According to reports, the carriers were using the Percocet for themselves and not dealing them for profit.

The carriers were each charged with receiving stolen property, uttering a false prescription, obtaining drugs by fraud, and conspiracy to violate drug laws. The receptionist. who accordinf to the police, is the mother-in-law of of one of the carriers, was charged with larceny under $250, forgery, uttering a false prescription, obtaining drugs by fraud, and conspiracy to violate drug laws. The other employee was charged with larceny under $250, forgery and conspiracy to violate drug laws. The crew is due back in court on June 19th.

In order for the Commonwealth to secure a conviction against a defendant for conspiracy to violate the drug laws it must prove that there was an agreement between the parties or possession from which an agreement to posses s may have been incurred. In Massachusetts, the Courts have held that it is the agreement to possess the controlled substance with the intent to violate the particular controlled substance law that is the key not the actual possession of the contraband. If convicted for the offense an individual can receive imprisonment or a fine, or both, which punishment shall not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the conspiracy.

If you have been charged with any violation of the controlled substance act, you must have an experienced Massachusetts defense attorney on your side. Depending on the facts of the case, filing pre-trial evidentiary and non-evidentiary motions can lead to a favorable disposition. A successful trial attorney will file all necessary motions and fight for your rights from the arraignment through disposition.

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The Massachusetts Supreme Judicial Court, in a 4 to 1 decision, ruled that the Bristol County District Attorney’s Office misinterpreted the “dangerousness statute” when proseuctor’s moved for detention against defendants charged with illegal possession of a firearm. The Supreme Judicial Court ruled against Bristol County District Attorney C. Samuel Sutter’s interpretation of Massachusetts General Laws § 58A (1), which permits the Commonwealth to move for pretrial detention if a defendant has been charged with “any other felony that by its nature involves a substantial risk that physical force against the person of another may result.”

In Commonwealth v. Young, following a § 58A hearing on October 26, 2007, a judge in the District Court, citing “firearm w/o license, FID” as predicate offenses, ordered that the defendant be detained pending trial. Young filed a petition for review of the pretrial detention order in the Superior Court. See § 58A (7). The petition was allowed and bail was set at $7,000 cash.

The Commonwealth subsequently sought relief from a single justice pursuant to G.L. c. 211, § 3, contending that possessory firearm offenses come within § 58A (1), which permits the Commonwealth to move for pretrial detention if a defendant has been charged with “any other felony that by its nature involves a substantial risk that physical force against the person of another may result.” § 58A (1) (residual clause). The single justice reserved and reported the cases to the full court. The Court agreed with the defendant and held that unlicensed possession of a firearm does not manifest a disregard for the safety and well-being of others, and therefore lacks the “menace of dangerousness” inherent in the crimes specifically included in § 58A (1). Justice Spina, writing for the majority, explained that, “[U]nlicensed possession of a firearm does not, by its nature, involve a substantial risk that physical force against another may result.”

If you have been charged with a violent crime or with illegal possession of a firearm in Massachusetts it is crucial that you have an experienced defense trial attorney from the beginning of your case. Kathleen McCarthy will make sure that all of your rights are protected from the arraignment through disposition. In order to prove illegal possession of a firearm the government must prove that an individual was in illegal possession of a working firearm. To prove possession the prosecutor must convince the jury that the defendant had actual physical or constructive possession of the alleged firearm. In order to prove constructive possession the government must prove that the defendant had the intent and ability to control the alleged firearm. They must also prove that the alleged weapon was capable of firing. If the firearm was not successfully fired on the first attempt, that is a fertile grounds to develop a successful defense.

Successful litigation of a weapons offense usually includes filing and litigation many non evidentiary and evidentiary pretrial motions. Non evidentiary motions often include a motion to inspect the firearm and for the defendant’s expert to present during any testing [DNA, fingerprinting and test firing]. In this type of offense, as with most offenses when an individual is charged with illegal contraband, an evidentiary motion to suppress physical evidence should be filed.

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