Boston Criminal Defense Lawyer Blog

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.

Fingerprint Evidence in Massachusetts Larceny Case

Published on: April 5, 2017 | by Patrick J. Murphy, Esq.

In a recent Massachusetts appellate case, the defendant was found guilty of breaking and entering in the daytime, intending to commit a felony in violation of MGL chapter 266, § 18, as well as larceny of property over $250, a violation of MGL chapter 266, § 30 (1). The defendant appealed on the ground that the evidence was not enough to support the convictions.

The case arose from a 2013 break-in and robbery at a market. At trial, a store proprietor testified she’d closed the store at 6:00 p.m. one night and then come back after being told there was a break-in. She saw that somebody had broken the side window to get in and that $400-500 worth of cigarettes were stolen.

At the trial, police officers also testified. One testified he got there with his partner early in the morning, and when they got there, two men who lived next door to the market told them the front window to the store was missing. The officer noticed that a window pane had been taken off and was set against the door. Photographs showed that plexiglass was propped against the front door.

Larceny and Belief of Abandonment in Massachusetts

Published on: March 15, 2017 | by Patrick J. Murphy, Esq.

In a recent Massachusetts appellate case, the defendant appealed from a conviction for larceny of more than $250 under MGL c. 266 section 30(1). The defendant argued that the jury should have been given an instruction related to his defense of honest yet mistaken belief that the property was abandoned, and that the lower court should have granted his motion for a required not guilty finding.

The case arose when the defendant and two other people with a pickup torch and a blowtorch were on another man’s land. The land was fenced off, and no trespassing signs were posted. Access to the area where the defendant and his friends were was through a closed gate that wasn’t always locked, but had a chain. On the day at issue, the landowner’s son found the gate open. A metal cutting screener had been cut with the blowtorch and piece of it had been taken from the land. When he approached the defendant and his friends, the defendant ran. However, while he was talking to the friends, the defendant asked him not to call the cops and asked if they could work something out.

The landowner’s son called the cops. When a police officer arrived, the defendant told him that he and the other men had cut metal from the screener for days and brought it to the scrap yard for cash. The defendant gave the police officer a receipt, and then he was arrested and charged with larceny.

Massachusetts Juvenile Convicted of Assault and Battery

Published on: March 5, 2017 | by Patrick J. Murphy, Esq.

In a recent Massachusetts appellate case, a juvenile was found delinquent on a charge of assault and battery. He appealed, arguing that the judge had made a mistake in denying his motion for a required finding of not guilty and requiring him to pay restitution when there was no causal link between the crime and the loss.

The case arose out of an assault and battery. The juvenile claimed there wasn’t enough evidence to show that he’d pushed the victim or that he’d committed a joint venture, and none of the state’s witnesses identified him as a perpetrator. In order to convict him of assault and battery, the prosecutor was supposed to show beyond a reasonable doubt that he’d intentionally touched the victim in a harmful or offensive way without justification or excuse or that he’d wantonly engaged in conduct that resulted in an injury to somebody else.

To prove a joint venture, the prosecution had to show beyond a reasonable doubt that he knowingly participated in the commission of a crime alone or with others with the required level of intent.

Larceny by False Promises in Massachusetts

Published on: February 14, 2017 | by Patrick J. Murphy, Esq.

In a recent Massachusetts appellate decision, the defendant was convicted of violating MGL c. 266 section 30(1). This section criminalizes larceny by false pretenses involving over $250. To secure a conviction, the Commonwealth is supposed to prove beyond a reasonable doubt that the defendant made a false statement of fact that he knew or believed was false at the time he said it, that he intended to induce someone else to rely on it, and that someone did rely on it and as a result gave up his or her property. The defendant appealed, arguing that the evidence in his case was not enough to prove that he made a false statement of fact intending to induce reliance.

The defendant was a contractor who had agreed to repair a home in 2014, and in exchange for the homeowners’ agreement to pay 50% of the repair costs, he claimed he’d start the repair work the next day. Although he deposited the homeowners’ payment right away, he didn’t come back to the home for a few weeks. The work he did was poor and not completed.

The homeowners got in touch with him, but he kept putting them off. They saw him working on other homes in the neighborhood during that period. He tried to perform some additional work for an extra $550, claiming that he needed to pay laborers who were in his truck in order to start working. The homeowners found out that he had outstanding warrants in another state and asked for a partial refund. They didn’t talk further, and the work didn’t get done.

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.

Break-in at a Massachusetts Jewelry Store

Published on: January 5, 2017 | by Patrick J. Murphy, Esq.

In Commonwealth v. Burns, a Massachusetts appellate court considered a conviction for an after-hours break-in and larceny of items valued over $250. The case arose when somebody broke and entered a jewelry store after hours and stole jewelry.

At trial, there was testimony that the defendant admitted he stole from the jewelry store, and items from the burglary were found at his home, on him, and in the possession of his family members. There was also testimony that there were tire tracks at the scene that were similar to those from a tire removed from the defendant’s car.

The defendant appealed, arguing that the affidavit attached to the search warrant to search his home didn’t provide the police with probable cause to believe the stolen jewelry would be found at his house seven months after a confidential informant saw it there. The facts to establish probable cause in a warrant must show that there is a belief that evidence of a crime will be located at the place to be searched when the warrant is executed.

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.

Assault and Battery on a Family Member in Massachusetts

Published on: December 30, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Jones, the appellate court considered a case in which the defendant was convicted of violating M.G.L. c. 265, § 13M, assault and battery on a family member. In 2015, the defendant and his wife were at home. The wife was using the husband’s cell phone to get some information for him, and she saw that he’d been texting with a woman. When she mentioned it to the husband, he got angry. They went to dinner for their anniversary and returned to their bedroom afterward.

The husband lay down, but the wife watched television. She saw that the husband’s cell phone was receiving text messages and that it kept beeping. The text message said, “I made money.” She woke up her husband to ask about the text, and the defendant jumped up and grabbed her neck with his hands, squeezing. Later at trial, the wife testified that this was common for him—jumping out of bed and getting verbally abusive. She went to a dollar store nearby and called her mom. The defendant called her and asked that she come home.

The wife told him she didn’t like the texts she’d seen and asked for an explanation. She called 911. An officer came to her at the dollar store, and another officer went to the defendant’s home. The husband was charged, and the wife testified against him, explaining that he’d sometimes gotten violent with her, sending her to the floor.