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).