Boston Criminal Defense Lawyer Blog

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.

Pleading Guilty to Unarmed Burglary and Larceny in Massachusetts

Published on: November 17, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Wallace, the defendant appealed from a sentence imposed for an unarmed burglary conviction. He’d pled guilty to larceny from a building and unarmed burglary. The event giving rise to the charges involved his going into a home in the dead of night and stealing many items while two people were asleep.

The defendant entered into a plea agreement. In the agreement, the prosecution agreed not to pursue an allegation in the indictment that the defendant had habitually offended. The defendant was previously charged in connection with breaking and entering during the daytime. He’d stolen property and led the police through a neighborhood before he jumped out of his car and fled.

Because of the new offense and the defendant’s failure to pay the DNA sample fee and restitution, the court found that he’d violated his probation. He then asked to withdraw the guilty plea. The defendant was sentenced to 7-10 years in state prison. After the charges, the defendant started attacking his guilty plea. A motion judge denied his motion and his request that the court reconsider.

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.

Right to an Attorney Before Breathalyzer in Massachusetts?

Published on: October 18, 2016 | by Patrick J. Murphy, Esq.

Under the Sixth Amendment and article 12 of the Massachusetts Declaration of Rights, a defendant is supposed to be advised of the right to an attorney before a critical stage of criminal proceedings. In Commonwealth v. Neary-French, the Massachusetts Supreme Judicial Court considered whether the 2003 amendment to M.G.L. chapter 90 section 24, which created a theory whereby a breath test reading .08 or more is an element of the offense, made the decision of whether to take a Breathalyzer a critical stage, such that the defendant needed to be advised of the right to counsel.

The case arose when a woman signaled to the police department that the defendant’s car was bumping into another car. An officer approached the defendant and observed she might be operating under the influence. Another officer came to the scene to administer a field sobriety test.

Due to his observations and her performance on the tests, the defendant was arrested. At the police station, she was advised of her Miranda rights and given a statutory rights and consent form, which advised her of her right to make a phone call, her right to a physician, the consequences of a refusal to submit to a chemical test, and other warnings. The defendant initially refused the Breathalyzer but a few minutes later agreed. The test showed her blood alcohol content was greater than .08.

Resisting Arrest in Massachusetts

Published on: October 5, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Hill, the defendant was convicted of resisting arrest in violation of G. L. c. 268, § 32B, larceny in violation of G. L. c. 266, § 30(1), and assault and battery on a police officer. The case arose when a Sears & Roebuck Company loss prevention officer was monitoring the sales floor of the department store and spotted the defendant leaving the store with certain clothing items that were still tagged, not in bags, and without a receipt.

The jury could have found the following facts. William Punch, a loss prevention officer employed by Sears & Roebuck Company in Dedham, was watching the sales floor of the department store when he noticed the defendant leaving with multiple un-bagged clothing items that still had tags. He called the loss prevention office, which told him none of these things had been paid for. He followed the defendant as he left the store and called the police from his cell phone as he continued to follow the defendant.

The police responded. An officer saw the defendant run down the street without the clothes. The defendant fled into the back yard of a nearby residence. A little bit later, the police caught the defendant where he had hidden behind a tractor trailer at the mall.

Criminal Liability for Hit and Run in Massachusetts

Published on: September 12, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Anderson, a Massachusetts appellate court considered a criminal hit and run case. The defendant was charged with leaving the scene of a motor vehicle accident after causing personal injury and property damage, as well as reckless operation of a motor vehicle.

The case arose after 2:00 a.m., when police officers and firefighters responded to a car accident. A Ford Mustang had crashed through the wall of a house, such that it was partially inside and partially outside. A woman and her boyfriend occupied the house. The boyfriend was injured and had to go to the hospital. By the time the police arrived, nobody was inside the Ford Mustang, and nobody identified himself as the driver. The key was left in the ignition, and the glass and locks were intact. The defendant was the registered owner.

When police tried to reach the defendant, they got his parents. Later, the defendant came to the police station and talked to one of the officers who’d responded to the scene. He told the officer that he’d lost control of the Mustang, hit the house, and in a panic, left for a friend’s house. Other than this confession, nobody came forward to identify him.

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.

Probable Cause to Believe a Joint Venture Crime Has Been Committed

Published on: August 21, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Sanchez, the Commonwealth of Massachusetts appealed from orders that granted motions to suppress evidence that was seized during the search of codefendants. There were four companion cases.

The issue in the case was whether the police had enough of a basis to believe that the codefendants were joint venturers with Jose Rotger, a man who’d broken into a car and stolen objects from it while the codefendants stood nearby. On the evening of the theft, the codefendants and Rotger were walking down the street. Rotger looked into a parked car. The codefendants didn’t look into the car but stood nearby looking around. The three men kept walking, but Rotger looked into another car, while again the codefendants stood nearby.

At this car, the defendant opened the passenger door, reached into the car, and then closed the door, leaving it unlocked. The three continued down the street. Officers who were watching them thought they were handing something back and forth. They ran the license plate of the car and found it was registered to a woman.

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.