Articles Posted in Search and Seizure

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In a 4-2 decision the Massachusetts Supreme Judicial Court affirmed a Superior Court judge’s decision to suppress a search made pursuant to a warrant. As a backdrop, the defendant in this case filed a motion to suppress cocaine, marijuana and drug related paraphernalia seized in his home during the execution of a search warrant. The search warrant was issued in reliance on a police officer’s affidavit. The affidavit stated:

1. That an informant told the officer that he had been buying cocaine from the defendant. The informant provided the defendant’s address. Police corroborated that this was the defendant’s address.
2. The informant told the officer that in order to buy drugs from the defendant he would call the defendant and arrange a location and time for the deal.
3. Using this information the officer set up a controlled buy. Surveillance watched the defendant leave his home and meet the informant at the predetermined location. Undercover officers witnessed the transaction.
4. The officer concluded that in his experience the defendant’s manner of operation was consistent with drug dealers’ tactics designed to evade law enforcement by changing times and delivery locations and that in these situations the drug dealers use their homes to store the narcotics.

Three days later the officer applied for and obtained the search warrant.

Citing earlier cases, the Massachusetts Supreme Judicial Court held that when the target location of a search warrant “is a residence, there must be specific information in the affidavit, and reasonable inferences a magistrate may draw, to provide ‘a sufficient nexus between the defendant’s drug-selling activity and his residence to establish probable cause to search the residence.'” The Court continued that “Information establishing that a person is guilty of a crime does not necessarily constitute probable cause to search the person’s residence.” On these facts the Court concluded that there was no “particularized information based on police surveillance or otherwise, that would permit a reasonable inference that the defendant likely kept a supply of drugs in his apartment.” One single observation of the defendant driving from his home to the location of the drug deal was insufficient to establish probable cause in this case.

See Commonwealth v. Pina, Slip Opinion, SJC-10240 March 19, 2009.

A large majority of drug cases handled by criminal defense lawyers involve search and seizure issues. Motions to suppress can result in judges excluding evidence unlawfully seized by law enforcement officials. The result is often a dismissal of all charges in that the district attorney is unable to go forward without the items seized.

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A two count felony complaint issued charging rhythm and blues singer Chris Brown with assault and criminal threats on a person referred to as “Robyn F.” “Robyn F.” is believed to be fellow singer and girlfriend Rihanna. According to news reports, Brown briefly appeared in a Los Angeles Court House and the arraignment was postponed until April 6, 2009. It has been reported that an affidavit has been filed indicating that Brown repeatedly puncehd “Robyn F.” and that during the altercation her mouth filled up with blood that spilled over into the car. Many sources reported that the physical altercation took place after Rihanna read a text message from a former girlfriend on Brown’s phone. Although Rihanna was not in court it was reported that she did not want a restraining order to issue that would prevent Brown from contacting her.

As a result of the incident Rihanna apparently received serious injuries including bruises to her face. Rumors have been circulating that the couple may have recently become married. In Massachusetts one spouse cannot be forced to testfiy against another spouse. This is commonly referred to as the marital privilege. The privilege belongs to the witness and not the defendant. Therefore, if the victim wants to testify he or she can waive the privilege and the Commonwealth can call him or her to testify at trial. Furthermore, even if a witness invokes the marital privilege if there is other evidence that the state can present during a trial the case can still go forward.

In Massachusetts, cases involving domestic violence often are prosecuted without the cooperation of the alleged victim. The prosecution may collect evidence from other sources. For example, if a search warrant was executed, evidence [such as bloody clothing or in some cases weapon(s)] may have been collected to support the government’s case. Also, the 911 tape may provide some evidence that the prosecution can use.

In Massachusetts, the use of the information on the 911 tape is not always admissible because the defendant has a right to confront witnesses. However, in certain situations the Massachusetts Courts have held that the state can use the tape. If you are facing criminal charges and the prosecution is attempting to use a 911 tape it is imperative that you contact an experience Massachusetts defense attorney to move to have the tape excluded from evidence. The exclusion of this evidence often destroys the Commonwealth’s case and results in an acquittal or a dismissal.

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After a two month investigation law enforcement officials in Norfolk County Massachusetts seized 340 pounds of marijuana at homes in Quincy and Canton.  In all three men were arrested and charged with trafficking marijuana.  The men have been identified as Tuan Ngoc Pham of Quincy; Jeffrey Falcone of Boston; and Alexandros Kostopoulos of Abington.  In addition to the drugs authorities seized $355,000 in cash.  The street value of the drugs are estimated at more than $1,000,000.  Bail was set on all men at the arraignment.

Read Article:  Massachusetts Men Arrested In Drug Raid

Certain thoughts come to mind when reading this article.  It is highly likely that the searches of the homes were conducted pursuant to search warrants.  This typically implicates confidential informants or controlled buys or both.  The validity of the search warrant might be challenged.  If successful the fruits of the search, in this case the drugs get suppressed meaning that they cannot be introduced in court.  Often times this terminates the prosecution.  If the search is found to be lawful there are other defenses that might apply to one or more of the defendants.  These are predicated on what the investigation disclosed prior to the search, what happened at the time of the search and whether or not the defendants spoke to the authorities after they were arrested.

If convicted, the defendants in this case face a minimum mandatory 3 year state prison sentence.

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As I am sure most people involved in the criminal justice system are aware the legislature recently changed the law relative to an individual charged with possession of marijuana that is one ounce or less. Possession of an ounce or less of marijuana had been decriminalized. The new section changes possession of an ounce or less of marijuana from a criminal offense to a civil infraction. For adults, this offense is now punishable by a $100.00 fine and forfeiture of the substance. Under the new law, an individual found to be in possession of marijuana simply receives a citation.

Experienced and successful defense attorneys must strongly argue that an odor of marijuana, whether burnt or fresh, does not provide probable cause for the police to search an individual, a car or a home. An experienced attorney would file a motion to suppress any marijuana and related evidence i.e., a scale, baggies and money, that the police confiscated at a result of search a person, car or home because of an odor of marijuana. Although prior to the decriminalization of marijuana, in certain situations the Courts held that the odor of fresh marijuana provided reasonable suspicion to search, that rule does not comport with the proposition that marijuana citations should function like traffic citations. See Commonwealth v. Garden, 451 Mass. 43 (2008).

If you have been arrested and charged with possession of marijuana, trafficking marijuana, possession of marijuana with intent to distribute in a school zone and/or distribution of marijuana and the search was based on an odor of fresh or burnt marijuana, an experienced Massachustts defense attorney must file a motion to suppress evidence. A reasonable line of argument is that similar to the fact that evidence of a traffic violation provides a basis to issue a civil citation not to search, even if the court believes that a police officer possessed the training and experience to smell marijuana, that would not provide a basis to search a car, a person or a home. Clearly, an amount of marijuana cannot be determined based on a smell of the substance. Therefore, an odor of marijuana is more likely to be indicative of a non-criminal infraction of possessing an ounce or less of marijuana. Accordingly, the police must not be permitted to presume a criminal offense based simply on an odor of marihuana. The smell of fresh or burnt marihuana, without more, does not suggest that a person is committing or about to commit a crime and does not provide probable cause to search under the new law.

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On September 12, 2008, the Massachusetts Appeals Court reversed Harold Pierre’s conviction for possession of a firearm holding that the search conducted by the police at the time of the defendant’s arrest was unlawful. The police were conducting a surveillance in an effort to arrest the defendant on an outstanding warrant. Positioned in the area of Pierre’s home, the police observed him exit his residence and walk towards his car. After observing the defendant, the police announced their presence and ordered the defendant, and the individuals that he was with, not to move and to show their hands. The defendant complied and dropped a white plastic bag that he was carrying and put his hands in the air.

One member of the group with the defendant disobeyed these orders and entered the car through the rear passenger door. A police officer observed this individual take a firearm from his waistband and put “something” under the front seat where a firearm was eventually recovered. That individual was charged with possession of that firearm. Pierre was placed under arrest within “thirty seconds” of putting his hands in the air. The white bag that the defendant had dropped was placed in the car because it was raining. A police officer testified that sometime between a half hour and an hour after the car was brought back to the station he assisted in doing an inventory of the car. During this “inventory” he picked up the white plastic bag and removed a pair of pants from the bag. When he removed the pants from the bag, a firearm fell out. Pierre was charged with possession of that firearm and possession of ammunition.

It is well settled law in Massachusetts that under the Fourth Amendment to the United States Constitution and the Article Fourteen of the Massachusetts Declaration of Rights a search conducted without a search warrant are presumed to be invalid. See Katz v. United States, 389 U.S. 347, 357 (1967); Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 226 (1992). When the police conduct a warrantless search the burden is on the Commonwealth to prove that the search fell within one of the narrow exceptions to the warrant requirement. In the event that you, a family member or a friend, are charged with a crime in which possession is an element that the Commonwealth must prove, the experience and knowledge of a Boston Criminal Defense Attorney is necessary in order to mount an attack on the search that led to the possession charge. By successfully challenging the police conduct in searching an individual, home, car or other location, the Court will suppress the evidence and the case will likely be dismissed.

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