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 and Seizures
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
Everyone knows that it is a violation of your constitutional rights to be stopped without reasonable suspicion or probable cause. Both the federal and Massachusetts constitutions give us that protection. So the thought process of many teenagers and young adults is simple. As long as I am following the rules, staying within the speed limit, obeying all traffic signals and driving safely I won’t get pulled over. Right? Guess again. That is completely wrong. Cops pull teenage drivers over in Massachusetts without probable cause countless times each day. This post examines why cops do this and how you, the young driver can avoid getting pulled over for no apparent reason.
Fighting Illegal Stops in Massachusetts
Fighting Cops Who Violate Your Rights
Every criminal defense lawyer I know has tons of stories about how client’s constitutional rights were violated. Some involve motor vehicle stops for no reason. Others involve searches without warrants. Sometimes people are compelled or tricked into talking to the cops. The good news is that a significant number of these cases result in suppression of the fruits of the constitutional violation. That usually ends up in a dismissal of the case or a substantial reduction in the charges. Believe it or not, oftentimes when cops violate the law they just helped you win your case. So I remind my clients that when cops violate your constitutional rights don’t panic. They just might have helped you win your case. This article looks at a couple of examples of cases I won where cops violated people’s rights. Continue Reading
The manager of a rooming house in Lawrence, Massachusetts found a laptop in the laundry room that she believed belonged to one of the tenants. Rather than return it the woman opened it and found images of Child Pornography. She then called the police. It was determined that the computer belonged to Gerard Anthony Burbine, a registered sex offender. Lawrence police then secured the laptop. They obtained a Search Warrant and a search of its contents confirmed the presence of Child Pornography. Burbine was previously charged with and convicted of Possession of Child Pornography for which he received a jail sentence. Right now, according to the Lawrence Eagle Tribune Burbine is being held on thirty thousand dollars bail for Enticing a Minor to be Exhibited in a State of Nudity. The case is being prosecuted in the Lawrence District Court but will probably be moved to the Essex County Superior Court in Salem, Massachusetts.
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Massachusetts Child Pornography Defense Lawyer
Lawrence Massachusetts Sex Crimes Lawyer
I imagine that Burbine is being charged under Massachusetts General Laws Chapter 272 Section 29A. That statute prohibits anyone from enticing someone whom he knows or should know is under eighteen years old from enticing that person to be exhibited in a state of nudity. A conviction for that offense is a felony for which there is a ten year minimum sentence. The article here makes no mention of facts that support this charge. Thus, I can only assume that during the forensic examination of the computer there were some emails or chat line communications located that suggested some sort of enticement.
Any Experienced Massachusetts Criminal Lawyer will tell you that there are always defenses to cases like this one. It is likely that the rooming house has one IP address that the tenants share thereby making internet access easy for everyone. The fact that the laptop was found in the laundry room suggests that someone other than Burbine was using it. Think about it. Why would he need the laptop in the laundry room? And, if he was using it there why would he leave it there? People living in rooming houses have limited means and are inclined to protect their personal belongings, not leave them in open areas. Aside from the device, what links Burbine to the illicit activity? Did anyone see him perusing the unlawful material? Are there any personal identifiers showing that he was the person who accessed the Child Pornography? Perhaps there is nothing more than stated in this article thereby making a prosecution of this case more difficult that it initially appears.
In Broward County Florida a criminal charge issued in large part due to texting between defendants and Facebook posts that detailed their plan. The text messages discussed what to do with the victim’s body. The Facebook posts were more detailed and accompanied by photos and entries that offered law enforcement a nice timeline of the defendants’ activities. If this was not enough one of the defendants told a friend how he strangled the victim and where he left her body. This admission continued with complaints about how bad the decomposing body smelled followed by texts to the co-defendant repeating this concern. The defendant then went to visit with a drug counselor where he once again confessed to having killed a named and missing woman. The drug counselor contacted the police. The police responded and gave the man his Miranda warnings. He then spoke to the police and provided them with a statement.
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Getting Confessions Suppressed in Massachusetts
Any Massachusetts Criminal Defense Lawyer will tell you what I have repeated countless times to prospective clients, existing clients and through this blog. Nothing good can ever happen when you talk to the police. Nothing good can happen when you text about having committed crimes. Nothing good can happen when you post details of your criminal activities on Facebook. I cannot find any crime statistics in Massachusetts or other parts of the country that identify how many indictments or complaints would not have issued had the accused not opened his or her mouth. I am confident that the number is much more than one half. Another statistic that I am interested in is how many criminal convictions are directly attributed to the accused opening his mouth, or taking out a pen or entering text into some sort of electronic device. That number must be staggering. In my practice alone I see way too many people who have talked, texted or posted prior to calling me for advice.
So how do Massachusetts Criminal Lawyers handle this issue. Well, filing a Motion to Suppress is always prudent. If the police took the statement without following proper constitutional requirements the case may be dismissed. Similarly, at times text messages or Facebook posts can only be properly accessed through Search Warrants and a failure to get one validly issued can be fatal to the district attorney’s case. Where the post or text is published in a public forum suppression is not that easy and the accused may have to resolve his case without a trial to get the best result. Social media and electronic communications make prosecuting much easier these days. That is why it is necessary for the accused to Hire an Experienced Criminal Defense Lawyer.
This past weekend police in Framingham, Massachusetts raided the home of Douglas Lester (a pseudonym), a twenty one year old man living on Day Hill Road. The Metrowest Daily News reports that early Sunday night Lester was seen selling marijuana to a female not far from his home. Police stopped the woman. She surrendered the drugs and the police applied for and obtained a Search Warrant for Lester’s home. Inside they found over fourteen grams of Meth (Crystal Methamphetamine) in various locations in the home. They also found several bags of marijuana. In excess of thirteen thousand dollars cash was taken during the raid. Scales, packaging materials and assorted Drug Paraphernalia were seen in the premises during the search process. Lester has been charged with Possession With the Intent to Distribute Marijuana and Trafficking Methamphetamine. Bail was set in the amount of twenty five thousand dollars. Lester is facing a Probation Violation as well. The case in currently in the Framingham District Court. The district attorney will likely indict this case and prosecute Lester in the Middlesex County Superior Court in Woburn.
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Framingham Drug Trafficking Defense Lawyer
Any Massachusetts Criminal Lawyer will tell you that based on the information in this article Lester’s chances of success hinge on the constitutionality of the Search Warrant. The first thing to analyze is the credibility of the police officer’s observations relative to the sale between Lester and the unidentified woman. What did they see? From what vantage point or location did they see the purported transaction? Was their view clear? How did they in fact determine that this was a drug deal? The next thing to look at is the credibility of the woman they stopped. What was in her possession? If there were drugs, what type? Marijuana? Crystal Meth? How much drugs was she possessing? What information did she give the police? What was her motive in providing this information? Does she have a criminal record? Was she using drugs at that time? Was she arrested and if so, with what was she charged? The next part of the analysis contemplates whether the information this woman provided coupled with the police observations gives rise to the issuance of the Massachusetts Search Warrant. This woman’s veracity and her basis of knowledge must be properly assessed if the information she provided is considered in the Search Warrant Application process.
Trying to Suppress Searches in Massachusetts is something our office attempts regularly for Massachusetts Drug Cases. Suppression often results in the dismissal of a criminal case. Without the drugs the district attorney is usually unable to proceed with its criminal charges. Hiring a Massachusetts Drug Crimes Lawyer who knows the law and is able to convince judges that a Search and Seizure was unlawful is critical to anyone charged with a Drug Crime in Massachusetts. Our offices have won countless drugs cases this way in counties throughout the state.
A Salem, Massachusetts police officer became suspicious the other day when he saw a car with dark tinted windows. He then followed the car. He observed the car failing to stop for people in a crosswalk. The officer pulled the car over and quickly learned that the driver, Julio Cruz of Salem, Massachusetts was Operating With a Suspended License. Cruz, who was known to the officer claimed that he was out delivering pizza. No pizzas were in the car. Cruz was then arrested. His passenger, Enrique Gray-Santana, also of Salem, Massachusetts was also arrested for carrying a knife with a blade longer than permissible by town ordinance. The car was towed. It was also searched. Inside of the vehicle officers found enough cocaine to justify a trafficking charge. Both men now face charges of Trafficking Cocaine in the Salem District Court. If the weight of the cocaine satisfies trafficking threshholds then the case will be prosecuted in the Essex County Superior Court in Salem. Cruz has a pending Cocaine Distribution case pending in the same county.
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Salem, Massachusetts Cocaine Trafficking Defense Lawyer
Cocaine Distribution Law Firm in Massachusetts
Depending on the information contained in the police reports the district attorney’s case here might be susceptible to a Motion to Suppress. Forget about the stop for a minute. Forget about the “Motor Vehicle Violation”. Even if there is justification for the stop the officer’s conduct might have exceeded what is permissible under the United States Constitution and the Massachusetts Declaration of Rights. The law in Massachusetts does permit what are called “inventory searches” in some situations. The police may search someone arrested at the place of detention to secure the person’s property. An inventory policy must be followed to justify the search and if done properly the items seized can be used as evidence against that person. Inventory Searches of Motor Vehicles however are subject to a different procedure. Impounding motor vehicles is generally found to be justifiable if the district attorney can show public safety concerns or a risk of vandalism or theft to the vehicle if abandoned at the scene of the arrest. If an unarrested passenger can drive the car the impoundment will be considered illegal. Subsequent searches of the impounded vehicle might however be subject to a constitutional challenge. For example, Massachusetts Courts have held that the search of a towed car was investigatory and not an inventory search where the police used a drug sniffing dog to find drugs. Investigatory searches require Search Warrants. Inventory searches do not. Police inventory polices must be in writing and followed for an inventory search to survive a Motion to Suppress. Inventory searches have three purposes in Massachusetts; to protect the property in the car, to protect the police against claims of theft and to protect the public from danger. It is the district attorney’s burden to establish that he search was a lawful inventory search.
Back in early February Hingham, Massachusetts Police responded to a call for a dispute between a landlord and her tenant. Officers were advised that the woman had several aliases and was using multiple identities. An ensuing investigation showed that the woman, Wanpen Florentine had multiple birth dates, a couple of Massachusetts drivers’ licenses and perhaps more than seven names. Florentine was registered to vote under two difference names. Last week Florentine was arrested and charged with various Fraud and Identity Theft crimes, five of which are felonies. This past Monday a Search Warrant was obtained and Florentin’s home in Hingham was searched. The defendant is sixty two years old. She is being held on one hundred twenty five thousand dollars bail.
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Massachusetts Identity Fraud Crimes Defense Lawyer
The Massachusetts Identity Theft statute is G.L. c. 266 §37E which states that anyone who poses as someone else without that person’s permission and uses that identifying information to obtain goods, money or other items of value, or uses that identifying information to harass someone else is guilty of a misdemeanor. The punishment for a conviction for this offense is no more than two and one half years in the house and the possibility of a fine of up to five thousand dollars. Interestingly enough, it does not appear that the defendant in this case has been charged with this offense. Instead, she has been charged with Fraud related Motor Vehicle Crimes that are felonies, meaning that there is a possibility that the defendant will be indicted and could face a state prison sentence. Obviously the district attorney believes that her actions were serious enough to warrant prosecuting pursuant to other statutes.
Identity Theft is becoming rampant in this country. It is estimated that over nine million people are the victims of some sort of identity theft crime every year. The danger to fraud victims is real and may not be realized for years. Victims of this type of criminal activity may be denied job opportunities, loans and are sometimes arrested for allegations that they committed crimes that they in fact never committed. We have represented many people who have been charged with Crimes in Massachusetts who never actually committed these crimes. The people who stole their identity were the actual perpetrators of the crime. You can imagine the surprise and shock to the accused in these cases when they are arrested for drug offense, theft crimes or crimes of violence that they never even heard about.
Roberto Saldana of Boston and Rose Marquez-Cartegena of Lawrence, Massachusetts were arrested late last week by members of the Essex County Drug Task Force. The Lawrence Eagle Tribune reports that Saldana was caught Distributing Heroin on six occasions to an undercover officer starting in January of 2012 and ending with his arrest on February 28, 2012. Each time Saldana was within one thousand feet of Central Catholic High School. During Saldana’s arrest the police found a set of keys to a local apartment in Saldana’s possession. Officers then took Saldana back to the home and has him open the apartment door. There officers found Marquez-Cartegena who was also arrested. A Search Warrant was obtained following her arrest. In the apartment authorities located and seized over seventeen thousand dollars cash, Drug Paraphernalia including cutting agents, packaging materials and a scale. Marquez-Cartegena has been charged with Possession With the Intent to Distribute Class A Heroin in a School Zone. The cases are pending in the Lawrence District Court. It is probable that the district attorney will not indict these cases.
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Lawrence Massachusetts Heroin Distribution Lawyer
Massachusetts Drug Violation in a School Zone Defense Attorney
The Massachusetts School Zone Drug Law was established in 1989 under G.L. c. 94C §32J. The law makes it a felony for anyone to Distribute, Possess With the Intent to Distribute or Traffic a controlled substance within one thousand feet of a school zone or within one hundred feet of a public playground or park. There is a minimum mandatory two year sentence for a conviction of this crime. Schools for the purpose of this law includes both public and private schools, pre-schools, secondary schools and vocational schools. It makes no difference if the school is in session or not, day night or vacation. In 2010 the Massachusetts legislature amended the law so that in many instances someone convicted can be paroled after serving one year.
As most Massachusetts Criminal Defense Lawyers will tell you School Zone Cases are often “broken down” by the district attorney’s office. This means that for many accused, particularly first time drug offenders with no criminal record, the district attorney’s office will agree to dismiss the School Zone Charge in exchange for a plea to a either a Possession With Intent charge or a simple Possession charge. Oftentimes an experienced Massachusetts Criminal Lawyer will be able to negotiate a continuance without a finding to the remaining charges thereby keeping the accused’s criminal record clean.
Here, while Saldana might have some problems it seems like Marquez-Cartegena’s case might have some good defenses. The police had no right to force Saldana to open the apartment door prior to obtaining a search warrant. If anything learned as a result of that unlawful entry gave a basis for the issuance of the search warrant the warrant might be declared invalid and the search struck down as unconstitutional. Also, Marquez-Cartegena’s mere presence at the apartment does not by itself provide sufficient evidence by which a jury might find her with the intent to distribute drugs. Massachusetts case law has been clear on this point. Presence at the scene of a crime with nothing more is insufficient to sustain a conviction for a crime.
Massachusetts Criminal Defense Attorney Blog