Drug Crimes

Massachusetts Court Affirms Conviction for Drug Possession on “Constructive Possession” Theory

Published on: March 7, 2018 | by Patrick J. Murphy, Esq.

Earlier this month, an appellate court issued a written opinion in a Massachusetts drug possession case requiring the court to determine if the evidence presented by the prosecution was sufficient to sustain the defendant’s conviction. Ultimately, the court determined that there was sufficient evidence to find that the plaintiff constructively possessed the drugs.

The Facts of the Case

In January 2015, the defendant’s apartment was searched by police who had a warrant. The police were looking for the defendant’s boyfriend, and when the police located heroin in the defendant’s apartment, they arrested her boyfriend. One of the arresting officers warned the defendant to stay away from the boyfriend.

The next month, police again searched the defendant’s apartment, and again, her boyfriend was present. At the time the police searched the apartment, the defendant was not home. The police asked the defendant’s boyfriend if there were any drugs in the apartment, and he told them that there was some heroin under the dresser in the defendant’s room and that the drugs were his.

Search Warrants Obtained After Illegal Search in Massachusetts Meth Crime Case

Published on: February 8, 2018 | by Patrick J. Murphy, Esq.

In a recent Massachusetts appellate case, a trial court judge allowed a criminal defendant’s motion to suppress evidence that had been seized by police executing a search warrant after first making two warrantless searches of the defendant’s apartment.

The case arose when police received a report that there was a smell like drugs coming from the defendant’s apartment. Later, they got another complaint from a neighbor describing a skunky and a minty smell and claiming she could see a bright light inside. Two days later, detectives went to the apartment and met with the neighbor. Nobody answered the defendant’s apartment door. The detectives weren’t able to see inside, but they could smell chemicals from beneath a running air conditioner.

A complaining neighbor told the detectives that two people, a boyfriend and girlfriend, lived in the apartment, and they usually left together in the morning. On that morning, the neighbor had spotted the defendant leaving alone. The detectives got the girlfriend’s phone number but weren’t able to get in contact with her. They went into the apartment to look for her. The building’s owner’s son took them through the basement, where the smell got stronger. When nobody responded to the detectives identifying themselves, they went in.

Field Sobriety Testing in Massachusetts Marijuana Cases

Published on: October 2, 2017 | by Patrick J. Murphy, Esq.

In a recent Massachusetts case, the court considered whether field sobriety tests were admissible in situations in which the police believe a driver may have been driving under the influence of marijuana.

The case arose in 2013, when the police watched a blue motor vehicle traveling south on Route 146 without its rear lights on. The police followed the car and activated their lights. The officer approached on the passenger side. There were three people inside: the driver and two passengers. Smoke was in the car, and the officer smelled burnt marijuana when the window was rolled down. The officer also saw cigar tobacco on the floor and a cigar slicer on the key ring of the key that was in the ignition. The officer asked the driver for his license and registration.

The driver gave the officer his license but said he didn’t have his registration. The officer asked him how much pot he had in the car, and the driver answered there were roaches in the ashtray. Two mostly consumed rolled cigarettes were taken out of the ashtray and provided to the officer, who asked when they smoked pot. A passenger replied they’d smoked 20 minutes earlier, but the driver answered it had been three hours earlier.

Plain View Doctrine in a Massachusetts Stolen Property and Heroin Case

Published on: April 19, 2017 | by Patrick J. Murphy, Esq.

In a recent Massachusetts case, the defendant appealed from convictions for receiving stolen property and trafficking in heroin. The case arose when the police received a report that someone had stolen a generator from a construction site. The surveillance video depicted a truck leaving the construction site with the generator. A few days later, the police were told that the replacement generator was also stolen from the site. The video showed that the same truck took the equipment and traveled onto Route 93.

About a week later, a construction company reported to a police department in Dedham that a trailer-mounted generator was stolen from a construction site. The generator had a wireless GPS tracking device that showed it was in Boston. When the police went to where it was located, they saw it was signaling in a parking area and a three-car garage. The officers peered through the fence around the parking area and saw the truck, as well as a generator that had the name of the second construction company on the side. The officers got a search warrant for the property and came back with a Boston police officer.

The Boston police officer also got a warrant to search a truck in Dorchester for construction equipment believed to be stolen. The police officer’s affidavit said he’d first come into the property with police officers under their search warrant for the stolen generator. He got another search warrant to investigate a different theft of a generator from a Boston construction site. On location, he got information from neighbors and also saw a metal stabilizer that would hold up a trailer.

Application of the Crime Bill to Massachusetts Cocaine Trafficking Law

Published on: February 3, 2017 | by Patrick J. Murphy, Esq.

In a recent Massachusetts appellate case, the court considered whether certain aspects of the Crime Bill applied to drug crimes. The defendant had been charged before the effective date of the law but convicted after it. The case arose when he was observed by cops performing what they thought were drug deals on the street. When they searched him, they found eight bags of cocaine weighing 28.14 grams.

In 2011, he was indicted for violating MGL c. 94C, § 32E(b)(2). This was a second-tier violation involving cocaine trafficking in the amount of 28 grams-100 grams. For a violation, the law required judges to sentence a defendant to at least five years, with at most 20 years imprisonment.

The Crime Bill was enacted in 2012 and changed § 32E by upping the weights that set the first tier to 18 grams-36 grams. Previously, the upper weight for this tier had been 28 grams. Judges were required to sentence defendants convicted of a first-tier offense to a minimum sentence of two years.

Trafficking in Oxycodone in Massachusetts

Published on: January 18, 2017 | by Patrick J. Murphy, Esq.

In Commonwealth v. Marcelin, the defendant was convicted of trafficking in oxycodone, a Class B substance. After being convicted, he pled guilty to conspiring to violate drug laws.

The case arose in 2011, when a USPS inspector saw a package he believed might contain illegal drugs. What triggered his suspicion was that the package was mailed from Las Vegas, which was known to be a source city for illicit pills, and the sender listed didn’t appear in the postal service database. The addressee didn’t appear in the database as linked to the recipient’s address. The inspector contacted the police, who confirmed there was no record of the recipient living at that address in their database. The inspector learned on a different day that another package was due to be delivered at noon to the same address.

The police set up a controlled delivery by working with the USPS inspector and drug task force. On the morning of the delivery, five police officers used unmarked cars to watch the recipient’s address. They saw two people, one of whom was the defendant in a parked car, who were also watching the address. When another postal worker came to deliver mail, the defendant emerged from the car to watch the postal carrier. The two people looked around as if they were engaged in counter-surveillance.

Application of the Plain View Doctrine in Massachusetts Drug Crime Case

Published on: December 31, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Dow, a defendant appealed after being convicted of multiple counts, including possession of a class B substance under G. L. c. 94C, § 34, a class C substance under G. L. c. 94C, § 34, illegally possessing a firearm and ammunition, possessing without a firearm identification card, and possessing a large capacity feeding device.

The police had searched the defendant’s home after applying for and receiving a search warrant. The detective on the case had been an officer since 2001 and had experience with narcotics cases. He received a tip from a confidential informant that the defendant was selling cocaine from his cars. The informant told the detective detailed information about the cars and the defendant’s apartment. During 2011, the informant made four controlled buys of cocaine from the defendant, and during three of them, the police saw the defendant go from his apartment to the purchase location without stopping. The informant came back to the police station without stopping and handed them cocaine.

At that point, a warrant was obtained to search the defendant’s apartment. The warrant covered all class B substances, as well as paraphernalia and any materials used to prepare cocaine, money used to buy or sell cocaine, and personal property. While searching, the police found a $40 bag of cocaine, half of a Suboxone pill, a cell phone, and over $1,500. They also seized paraphernalia, $11,000, guns, ammunition, and a pill box filled with four different kinds of prescription drugs.

Possession with Intent to Distribute Crack Cocaine in Massachusetts

Published on: November 4, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Bowens, a Massachusetts appellate court considered a crack cocaine possession with intent to distribute case. The defendant was convicted of possessing a class B controlled substance with intent to distribute as well as possessing a controlled substance with intent to distribute within a park or school zone.

The case arose when police officers were engaged in surveilling a particular high-crime area that was known for violence and drug dealing. An officer saw the defendant walk from the parking lot toward a playground one afternoon. The officer saw the defendant pick up a milk carton in a playground area, place something white in the carton, and then put the carton in the trash. The defendant went back the other way.

The officer went to the trash and took out the carton. Inside, he found a white tissue-covered item, inside of which were eleven rocks, each packaged individually in a baggie. The rocks were found to be crack cocaine. The officer described the defendant to other officers, and they stopped him. They found that he had $180 on him but didn’t find paraphernalia for using the crack.

When Is a Patfrisk Appropriate in a Suspected Drug Crime Case in Massachusetts?

Published on: September 2, 2016 | by Patrick J. Murphy, Esq.

Commonwealth v. Nichols arose when two police officers trained in drug crimes went undercover to patrol a section of Boston. The officers had received multiple drug-related complaints for that neighborhood, which was already known to the police for its drug activity. The officers saw a man (Kyle Brito) on his cell phone, looking around as if he were being directed to a specific location and waiting for something. The defendant’s car pulled up. Brito looked around and then came up to the car.

Brito reached into the window. Twenty to thirty seconds passed, and then Brito walked away from the car. The officers thought a drug transaction occurred. They saw Brito leave but didn’t see him doing anything suspicious after he left. The officer later testified that he knew neither the defendant nor Brito. He followed Brito on foot, while the other officer followed the defendant’s car in an unmarked police car. The second officer asked a marked cruiser to stop the car and investigate. A third officer stopped the car and, while approaching it, saw the defendant put money into the center console of the car. He reported this to the second officer.

The second officer approached at the same time and asked the defendant to come out of the vehicle to talk. He was read his Miranda rights. The defendant had previously been arrested and said he understood his rights. The second officer asked the defendant about where he’d been and whether he’d met anyone in the last few minutes. The defendant responded and denied he’d met anyone. The officer then asked whether he had weapons or something else he shouldn’t have on him. He then patfrisked the defendant and found a knife. The defendant was cuffed, and the patfrisk continued.

Tips from Confidential Informants Related to Massachusetts Drug Crimes

Published on: August 3, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Ortiz, the defendant appealed from a second conviction of cocaine possession with intent to distribute within 100 feet of a public park or playground in violation of MGL chapter 94C, § 32A(c). He filed a motion to suppress on several grounds, including that the Commonwealth’s substitute chemist had not properly testified about the composition of what the police found during the search and that the evidence was not enough to prove he committed the previous offense. The motion judge denied his motion. The defendant appealed.

On appeal, the defendant didn’t dispute the reliability of the confidential informant, but he argued the Commonwealth had not established how he knew. The motion judge found the informant had given an accurate description of the defendant and his address and living arrangements. The defendant supplied drugs to the two heroin addicts leasing the apartment instead of rent.

The detective had independent knowledge of the nickname the defendant used, and the informant confirmed the defendant’s identity from a photograph showed to him. The informant had told the police the defendant sold drugs from a park adjacent to the apartment.