Articles Posted in Drug Crimes

Braintree, Massachusetts firefighters responded to an alarm at an apartment complex two days ago sometime around 2:30 in the afternoon. After finding and eliminating the material that triggered the alarm they entered an adjacent apartment to make sure that the occupants were okay. While going through the home the firemen noticed a large quantity of marijuana in a bedroom closet. They observed very little furniture in the apartment and notified the police. Officers responded to the home and applied for a search warrant. Once inside the home they found one hundred sixteen pounds of packaged marijuana and some drug distribution paraphernalia. The property was secured. Just prior to the search Mary Mei Chan and Dang Huynh arrived at the home. Both were detained and ultimately arrested. They, along with the lessee of the apartment have been charged with trafficking marijuana and conspiracy to violate the Massachusetts drug laws. The case is pending in the Quincy District Court but will likely be prosecuted in the Norfolk County Superior Court in Dedham.

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Quincy, Massachusetts Criminal Defense Law Firm

Cases like this one present an interesting challenge for criminal defense lawyers. Three people have been charged with trafficking, none of whom were present when the firefighters responded to the alarm. The two people who did show up at the home were not identified as tenants of the apartment. How then is the prosecutor going to prove that either of these individuals intended to traffic this marijuana? I am not sure they can. Drug trafficking in Massachusetts requires the prosecution to proved beyond a reasonable doubt that the person 1) possessed the controlled substance, 2) that he did so with the intent to distribute that drug and 3) that the quantity exceeds the trafficking threshold, in this case fifty pounds. The only element that can easily be proven is the third element, the quantity of the substance. But establishing the elements of possession and intent to distribute for Chan and Huynh is not going to be easy. If both of them were smart enough to keep quiet and not talk to the police then proving the case against them will be difficult.

The same problem might apply to the lessee of the home. How can the district attorney prove that she had any involvement in drug trafficking activities. How long had she been the tenant? Did she actually live there at one time? Was she seen going in and out of the apartment building? Did she sublease this to someone else? Does she have a history of dealing controlled substances, particularly marijuana? I can certainly see where motions to dismiss might be viable in this case. Again, much of this depends on what if anything the defendants said to the police. Hopefully, for their sakes they said nothing.

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Sometime around three o’clock in the morning on Route 495 a Massachusetts State Trooper reportedly observed a car committing several motor vehicle violations, one of which was operating in the breakdown lane. The officer stopped the car. Then, according to a report in Boston.com, the officer developed information that resulted in him searching the vehicle. One of the passengers, Lesley Isler was found in possession of the cocaine and Percocet pills. Isler was arrested and arraigned in the Marlborough District Court on charges of trafficking cocaine and Percocet. The operator was simply given a citation for a civil motor vehicle infraction. Another passenger, Thomas Hamilton was cited for possession of less than one ounce of marijuana. In accordance with recent Massachusetts law this is not a crime.

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Marlborough, Massachusetts Drug Trafficking Defense Law Firm

I am always troubled when I read police reports or media accounts of routine stops that result in the arrest of passengers in motor vehicles. Massachusetts law does not permit the police to order a passenger from a vehicle following a routine traffic stop. The exception is where the officer has a “reasonable apprehension of danger”. The test used by courts hearing challenges to these exit orders is an objective one. Courts look at the facts and circumstances to see if they objectively give the police a “heightened awareness of danger”. In several instances Massachusetts courts have ruled that there is no basis to interrogate a passenger after the driver has produced a valid license and registration. Protections in Massachusetts in this area are greater than those provided by the Fourth Amendment, thus making your choice of a Massachusetts criminal lawyer a very significant decision. Any time I get a client that was subject to an exit order I immediately think that a motion to suppress should be considered. A successful challenge to a search results in suppression and suppression usually means dismissal.

Aside from the legal issues that may benefit Isler I can see some factual “observations” that make no sense. Do you really believe that the driver was operating in the breakdown lane and committing a variety of motor vehicle infractions? No way. Maybe if he were impaired. But that is not even remotely suggested here. I imagine the trooper had a hunch based on the time of day, the number of occupants in the car, the race of the people in the vehicle or maybe some information from other police officers that was not disclosed. Or, perhaps an informant had a role in this but the officers are protecting that person and not being honest in how they are reporting this matter. This is something that the defendant’s lawyer will investigate.

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In Commonwealth v Ortiz, decided earlier today the Massachusetts Supreme Judicial Court affirmed a conviction for drug distribution notwithstanding the failure of the prosecution to prove beyond a reasonable doubt that the substance charged was in fact cocaine. The facts of the case are as follows: In June of 2010 a Weymouth, Massachusetts police officer was conducting an undercover surveillance during which she observed what she believed to be a drug deal. One week later she saw the same car and same driver allegedly engage in identical activity. This time the officer approached the buyer and found her in possession of cocaine. A support team was notified and the car, being driven by Ortiz was pulled over. Ortiz was arrested and charged with distributing cocaine and a school zone violation. After a jury trial he was convicted.

The prosecutor and the defense lawyer agreed prior to trial to stipulate that the substance was cocaine. During the trial the substance was referred to as cocaine however at no time was a certificate of analysis produced nor was the stipulation offered by the assistant district attorney, the defense attorney or the judge. The judge did reference the stipulation during his jury charge. On appeal Ortiz argued that since the stipulation was not offered before the prosecutor rested his case the judge should have allowed the motion for a required finding of not guilty. The defendant further argued that a stipulation to an element of the offense should be in writing and signed by the defendant. Alternatively, the stipulation must be the subject of a colloquy. In rejecting the appeal and affirming the conviction the Supreme Judicial Court refused to answer the question as to whether the failure to enter the stipulation constituted error. Rather, the Court held that reaching that issue was not necessary since there was no substantial risk of a miscarriage of justice. Similarly, the challenge to the absence of a signed stipulation and the absence of a colloquy did not warrant a reversal of the conviction. However, this case has prospective application regarding stipulations to an element of the case. Going forward, such stipulation should be submitted to the jury prior to the government resting its case.

From my perspective this decision seems to relieve the district attorney of its
burden of proving all elements of the crime beyond a reasonable doubt. Even though there was an agreement that the substance was cocaine the agreement
itself was never conveyed to the jury. Thus, legally there was no adequate proof that the substance was in fact what was charged. It was incumbent upon the prosecutor or the judge to make this known to the jury prior to the final submission of all evidence.

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A few weeks ago I was reading an article in the Vineyard Gazette reporting the death of a fifty-year old man presumable from a Heroin overdose. According to the report, at 9:00 a.m. the police were called to a home in Oak Bluffs on Martha’s Vineyard, Cape Cod, Massachusetts. There, they a man they believed to have died from a Heroin overdose. A syringe was nearby along with some other Heroin related use paraphernalia. Apparently an informant provided information to the police that the man’s roommate would sell over five hundred bags of heroin per week. The police encountered the roommate that morning and learned that he had just used Heroin and a Class B drug. He was charged with Possession of Heroin, a Class A Substance in Massachusetts. While in the home officers saw additional drug related materials sufficient for them to apply for and obtain a Search Warrant. The execution of the Search Warrant disclosed enough drugs in the home to charge the roommate with Trafficking Heroin. I wondered just how long the man had been dead and what the roommate did after seeing him overdose.

Then today, I read an article about a proposed Minnesota law designed to encourage people to immediately report drug overdoses in exchange for immunity. The bill is being sponsored by a state senator whose daughter died of a drug overdose in 2007. The young woman overdosed on Heroin. Her companion at that time spent about one half hour cleaning up all evidence of Heroin Possession and use. Then he called 911 and reported that he had no idea why she was unconscious. The senator has maintained that if the other person present at the time of the overdose had no fear of consequences he might have reported the overdose in time for the woman to be saved.

Laws such as the one being proposed in Minnesota are known as Good Samaritan laws. They give immunity in some form to people who help people who overdose in their presence. Several states now have Good Samaritan laws. Massachusetts does not have one of this nature. Studies suggest that Good Samaritan laws can save lives. Drug overdose survival depends on who quickly medical assistance is provided. If someone had a heart attack everyone in the room would call 911 in hopes that the person’s life would be saved. Not so with drug overdoses. Drug users who overdose when not along are typically with other drug users or sellers. These people are not quick to call for help. Rather, like the man in Oak Bluffs, or the Minnesota senator’s daughter’s friend, they first try to conceal evidence of their involvement in criminal activity. Some simply walk away from the situation entirely. These laws would encourage people to act immediately and try to save a life rather than first trying to save their own criminal exposure.

The current Good Samaritan laws protect people from prosecution for Possession of Drugs, Possession With the Intent to Distribute small quantities of drugs and low level Distribution of Drugs. They do not protect people engaged in Drug Trafficking activity. As a Massachusetts Criminal Defense Lawyer who has represented hundreds of clients charged with Massachusetts Drug Crimes I would like to see one of these laws passed in Massachusetts.

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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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Yesterday I read Douglas Moser’s column in the Lawrence Eagle Tribune about the rise in Heroin use in Massachusetts. The article touched on many aspects of the problem associated with the drug. It talked about overdoses, deaths from Heroin abuse, changes in the demographics of Heroin users and ultimately an increase in Heroin related arrests. As a Massachusetts Criminal Defense Lawyer who has defended hundreds of Heroin cases the timing of this article came as no surprise to me. I have seen a tremendous increase in my business as a result of this problem. It seems like more people than ever are being charged with Heroin Possession, Possession With the Intent to Distribute Heroin, Distribution of Heroin, Trafficking Heroin and Knowingly Being Present Where Heroin is Kept.

As Moser states, people are driving down to Lawrence, Massachusetts from Main and New Hampshire to buy Heroin. Most of the cases I see have resulted from arrests made in Lawrence and Methuen. The people from out of state who get arrested are primarily being charged with Possession of Heroin. The police witness what they presume to be drug transactions. They stake out areas known to them to be associated with drug distribution. The pattern is all too common. A car bearing New Hampshire plates drives around a neighborhood for a few minutes. Some of these areas are in the more desirable parts of the city. The driver and passenger(s) appear to be looking for someone. Then, a car being driven by someone with Massachusetts, usually from Lawrence approaches. The officers observe what they believe to be a drug transaction. They watch the parties part ways and, believing the car with the New Hampshire plates contains the “buyers” a stop is made. Sure enough the cops find the occupant(s) in possession of Heroin and charges are brought. Other times, the amount of Heroin purchased is sufficient to charge Possession With Intent to Distribute Heroin, a Class A substance. Sometimes the officers actually watch the “users” pull over and shoot up. I can’t even count the number of cases I have had where someone was supposedly caught injecting, snorting or smoking Heroin. The “non-users” get charged with Knowingly Being Present Where Heroin is Kept.

The Massachusetts Heroin Trafficking arrests stemming from this scenario pale in comparison to the possession arrests. The reason is simple. Dealers typically do not bring large quantities to street deals. So what sometimes happens is this: the cops cut a deal with the buyers. Usually those who buy quantities over that considered for personal use only. These people work with the police and set up larger transactions where the amount of heroin sought and ultimately seized reaches the trafficking threshold.

Here is what else criminal defense lawyers see as a result of the increase of heroin in Massachusetts. Sex Crimes. It is not unusual for people to Prostitute themselves in order to get drugs. We have also represented people caught in various sex acts, Open and Gross Lewdness or Lewd and Lascivious Conduct, being performed for drugs.

Why the current increase in Heroin related drug crimes? Moser suggest one reason is the increase in OxyContin use. OxyContin is expensive at the street level. So, once a person’s prescription runs out getting the drug can be a financial hardship. Heroin is a cheap alternative that seems to satisfy the addict’s urge.

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This past Friday morning police in Oak Bluffs police were called to a location on a report of a dead body. When they arrived they went to a bedroom where they observed the body of a fifty year old man. Based on the presence of Drug Paraphernalia including baggies and a syringe officer believed that the man may have died of a drug overdose. The deceased’s roommate, Mathew Hubert was at the scene. Police reported that Hubert would obtain five hundred bags of Heroin from a source in western Massachusetts and would sell them at the cape. Hubert was immediately arrested when officers found a Class B drug and some Heroin in Hubert’s room. The police then secured a Search Warrant. They executed the warrant at the home and found evidence sufficient to file a criminal complaint for Trafficking Heroin, a Class A substance.

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Massachusetts Heroin Trafficking Defense Attorney

Cape Cod Massachusetts Drug Defense Lawyer

Here is something that immediately crosses my mind when reading this article. Absent a statement from the suspect, Mr. Hubert, how do the police know that he is in fact the person who was trafficking drugs as opposed to his deceased roommate? The simple answer is that the police do not. Both the decedent and Hubert used heroin. The police arrived at the home after receiving a call about a dead body. They were not at that time investigating heroin trafficking. It appears that the only evidence that the police have relative to Hubert and drugs is his admission that he had used heroin a couple of hours earlier and that there were drugs in his room at the time of his arrest. The quantity of those drugs led authorities to charge him with possession, not trafficking. Presumably, the trafficking charges stem from items located during the execution of the Search Warrant. These items can be attributed to Hubert’s roommate as easily as they can to him. I am curious to see whether or not these charges can survive a challenge on the basis of their sufficiency.

To prove Heroin Trafficking in Massachusetts the prosecution must prove beyond a reasonable doubt that Hubert 1) possessed Heroin, 2) that he did so with the intent to distribute the substance and 3) that the weight of the Heroin satisfied the threshold required for Trafficking. Here, there is no indication that Hubert was the person who intended to sell the material, nor did the substance found appear to reach the necessary weight to charge Trafficking Heroin. The evidence against Hubert is equally applicable to the roommate under these circumstances. Both use heroin. With heroin use often comes heroin sales so that the user can support his habit. The informant’s information will not likely be admissible at trial unless that person can provide information corroborating the theory that what the police found belonged to Hubert and was to be sold. I can see many scenarios where this case does not get prosecuted for anything more than simple Possession of Heroin.

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Over two weeks ago police in Norwood, Massachusetts executed a Search Warrant at an apartment complex. This followed an investigation into alleged Drug Dealing activities by Henry Samuels, a twenty-four year old Norwood resident. In August of 2012 Samuels was arrested for selling marijuana to minors. At that time he was charged with Distribution of Marijuana, a Second and Subsequent Offense. Authorities claim that Samuels was selling marijuana from his apartment and that the landlord was alerted to his activities. At the time it was suggested to the landlord that he evict Samuels from the property. Apparently he did not. Since that time, Samuels remained under investigation by local police for drug related matters. Then, on June 5, 2013, armed with what they believed was probable cause, the police obtained a Search Warrant. During the execution of the search they found several bags of marijuana with an estimated street value of five thousand dollars. Samuels was not home at the time but his mother, Lashauna Pettway was. She was arrested and charged with Possession With Intent to Distribute Marijuana and Possession of Marijuana. Samuels faces the same criminal charges. The landlord, who is not named in the article, is being charged with misdemeanor charges of permitting someone “to remain a common nuisance by the sale of controlled substances” in his building. The cases are being prosecuted in the Dedham District Court.

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Norfolk County Marijuana Distribution Defense Law Firm

As a Massachusetts Criminal Lawyer I am most intrigued by the charge against the landlord. Massachusetts General Laws Chapter 139 Section 20 makes it a crime for a landlord to permit tenants to engage in gambling, prosecution, the illegal sale of alcohol, the sale of drugs on their property. The statute requires the landlord, after proper notice, to take appropriate steps to evict the tenant. A failure to do so can result in a criminal prosecution and a sentence of up to one year in jail and a fine of one thousand dollars. The statute is rarely implemented, which, from a law enforcement perspective makes no sense. There are only three criminal cases in Massachusetts addressing this issue, and none of them firmly address the crime.

Here is what the law requires relative to this case. Back in August, once the landlord learned that Samuels had been arrested for selling drugs, he was required to commence eviction proceedings. In other words, the law imposes on him an affirmative duty to spend money on lawyer and go to court to remove someone who might not have been convicted and enjoys the presumption of innocence. No wonder this law is rarely employed. It might not survive a challenge to its constitutionality. Laws like this one if properly attacked can result in a dismissal of the criminal charges.

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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. Our Attorney 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.