Articles Posted in Drug Crimes

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various-abusive-drugs-1194951-300x225On January 19, the SJC issued its decision in Commonwealth v. Plasse, ruling that a court may, in certain circumstances, incarcerate a defendant for the sole purpose of addiction treatment.

The background was as follows.  The defendant received a one year continuance without a finding for stealing video games from Walmart. The one year probationary period was ultimately extended for an additional two years (for a total of three years of probation) because the defendant repeatedly tested positive for controlled substances and was kicked out of a number of treatment programs due to lack of compliance. Having already been detained during the course of the probationary period as a result of these various violations, the defendant eventually asked for a committed sentence of nine months and specifically requested to be sent to the Howard Street jail facility in Hampden County, as there was a particular substance use disorder treatment program at the facility in which the defendant wanted to participate. The judge calculated that the incarceration term would need to be nine months to participate in the Howard Street program. The judge then sentenced the defendant to two years of incarceration, which exceeded the eighteen month recommendation of the probation officer and the nine month request of the defendant. The judge stated that he was not punishing the defendant, but rather that he was making sure that she got the help that she needed. The defendant subsequently filed an appeal, arguing that the judge unfairly considered the length of a jail rehabilitation program in determining the length of the sentence. Continue reading →

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various-abusive-drugs-1194951-300x225In a recent decision – Commonwealth v. Martinez – the Supreme Judicial Court applied the holding of Nelsonv. Colorado, 137 S.Ct. 1249 (2017) and “provide[d] guidance to trial courts and litigants regarding the repayment [to a defendant] of probation fees, victim-witness assessments, restitution, fines, forfeitures, and court costs after a conviction has been invalidated.”

The background was as follows. In Nelson, “the United States Supreme Court held that ‘[w]hen a criminal conviction is invalidated by a reviewing court and no retrial will occur,’ the State is required under the due process clause of the Fourteenth Amendment … ‘to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction.’ There can be no doubt that, because of this controlling authority, Massachusetts courts are required to order” such refunds after the invalidation of a defendant’s conviction. In the present cases, defendants Martinez and Green sought refunds … after their drug convictions were vacated and their indictments were dismissed with prejudice pursuant to Bridgemanv. District Attorney for Suffolk Dist., 476 Mass. 298 (2017), because the convictions were tainted by the misconduct of [state drug laboratory chemist] Annie Dookhan.” The two cases “present ten reported questions regarding the scope and application of the due process obligations established in the Nelsondecision. [The SJC] reformulated the reported questions into three broader questions.”

In its decision, the SJC “address[ed] each of the reformulated reported questions.” Question 1: “What is the scope of the due process obligation to refund money paid by a defendant ‘upon, and as a consequence of’ a conviction that has been invalidated?” Response to question 1: (a) Probation fees. “Here, all of the counts for which both defendants were sentenced to probation have been invalidated. As a result, all paid probation fees [under G.L. c.276, §87A] must be refunded.” (b) Victim-witness assessments. “As with probation fees, … the victim-witness assessment [paid] under G.L. c.258B, §8,” must be refunded. (c) Restitution. “Due process requires the refund of restitution.” “Because the restitution here was paid [by Martinez] to the Haverhill police department and has been repaid, we need not decide whether Nelsonrequires the Commonwealth to refund restitution paid by a defendant as a consequence of an invalidated conviction where the restitution was paid not to the Commonwealth, but to a private victim.” (d) Fines. “Green is … entitled to a refund of fines and surfines” that she paid as part of her sentence. (e) Forfeiture. “Green is not entitled to return of … forfeited funds because forfeiture … ‘is outside the scope of the criminal matter and constitutes a civil proceeding.’ Commonwealthv. Brown, 426 Mass. 475, 480 (1998).” Continue reading →

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A divided panel of the Appeals Court reversed the denial of the defendant’s motion to suppress cocaine and other items seized from his vehicle in Commonwealth v. Barreto on the ground that the police did not have reasonable suspicion to issue the exit order that led to the discovery of the seized items.

The evidence presented at the hearing on the defendant’s motion to suppress was as follows. The police received a tip “from an undisclosed source” “that a green Volvo station wagon containing a ‘large’ amount of drugs would be near a certain intersection [at an unspecified time]…. No other information regarding the tip [and none about the tipster] was provided at the … hearing” because “the prosecutor … did not want to risk identifying the informant.” The prosecutor sought to demonstrate that the search of the defendant’s vehicle was justified solely on the basis of the observations of the police officers who responded to the tip. According to the police testimony at the suppression hearing, four officers “set up surveillance at the intersection mentioned by the informant.” At some point, the officers “saw a green Volvo station wagon turn at the intersection” and park nearby. Then “one of the officers observed the vehicle’s operator, subsequently identified as the defendant, lean down toward his right side ‘as if he [were] reaching toward the floor of the passenger side with both hands.’…. [T]he officer could not see the defendant’s hands…. Observing from a distance, the officers saw a man approach the parked vehicle from an adjacent building[,] interact with the defendant at the driver’s side window for approximately half a minute[,]” and then walk away. While the judge found that the police observed the unidentified man … lean toward [the vehicle] ‘in a manner consistent with that man placing his hands on the Volvo door or reaching inside the Volvo,’ [the judge] also found that the police did not observe the defendant and the unidentified man actually ‘reach their hands toward each other … or exchange any object.’…. [Nonetheless,] the judge found that their interaction was ‘consistent with the two men exchanging something.’ After the man walked away, the defendant drove … to an adjacent street, where the police pulled his vehicle over.” “The defendant cooperated with the police after the stop.” “Although [he] appeared nervous, he produced his driver’s license and vehicle registration when requested to do so…. [One of the officers] ordered the defendant out of the vehicle. As [he] was stepping out …, the officer saw a roll of cash in a clear plastic bag on the inside of the driver’s door. After … a patfrisk of [the defendant] revealed nothing, the police initiated a thorough search of the vehicle,” which revealed “a large amount of cocaine,” $11,050 in cash, and other items. The judge denied the defendant’s motion to suppress those items, “conclud[ing] that the police had reasonable suspicion to stop the vehicle and to order the defendant out of it based on the brief interaction [purportedly consistent with a drug transaction] … between the defendant and the unidentified man who had approached his vehicle. Then, according to the judge, once the police observed the wad of bills in the driver’s door while the exit order was being executed, they gained probable cause that justified their subsequent search of the vehicle.” The defendant appealed.   Continue reading →

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various-abusive-drugs-1194951-300x225In Committee for Public Counsel Services & others v. Attorney General & others, the Supreme Judicial Court announced a comprehensive remedy for the evidence tampering by Amherst state laboratory chemist Sonja Farak and for “the deceptive withholding of exculpatory evidence by members of the Attorney General’s office, who were duty-bound to investigate and disclose Farak’s wrongdoing.”

The background was as follows. In a prior decision addressing the Amherst lab scandal, Commonwealthv. Cotto, 471 Mass. 97 (2015), the SJC “remanded the matter to the Superior Court to provide the Commonwealth an opportunity to fulfil its duty to ‘learn of and disclose … any exculpatory evidence that is held by agents of the prosecution team, who include chemists working in State drug laboratories’ (citation and quotations omitted). Id. at 112, 120. On remand, on December 7, 2015, the Chief Justice of the Superior Court appointed Superior Court Judge Richard J. Carey to hear all cases arising from Farak’s misconduct. In December, 2016, Judge Carey conducted an evidentiary hearing …, after which he found that the government had vastly understated the extent of Farak’s misconduct. Moreover, he determined that two assistant attorneys general [Foster and Kaczmarek] had perpetrated a ‘fraud upon the court’ by withholding exculpatory evidence” — Farak’s mental health records, which showed that her misconduct commenced earlier than had been thought — “and by providing deceptive answers to another judge in order to conceal the failure to make mandatory disclosure to criminal defendants whose cases were affected by Farak’s misconduct. The judge determined that certain cases in which Farak had signed a certificate of drug analysis … during her employment at the Amherst lab were subject to dismissal. He found further, however, that Farak’s misconduct had not undermined testing results reported by other chemists who had been assigned to the Amherst lab during the period that Farak was employed there.” The petitioners in the present case “sought relief in the county court through a petition pursuant to G.L. c.211, §3, and G.L. c.231A, §1, claiming that” a “‘global remedy’” was required. “Following a number of hearings, the district attorneys agreed to the vacatur and dismissal of approximately 8,000 cases in which Farak had signed a drug certificate…. The single justice reserved and reported the matter to the full [SJC], and issued three questions for the parties to answer in their briefs.” The first question subsequently became moot. “The [remaining] reported questions asked: ‘2. Whether the definition of “Farak defendants” being employed by the District Attorneys in this case is too narrow; specifically, based on the material in the record of this case, whether the appropriate definition of the class should be expanded to include all defendants who pleaded guilty to a drug charge, admitted to sufficient facts on a drug charge, or were found guilty of a drug charge, if the alleged drugs were tested at the Amherst Laboratory during Farak’s employment there, regardless [of] whether Farak was the analyst or signed the certificates in their cases[;]’ [and] ‘3. Whether, as the petitioners request, the record in this case supports the court’s adoption of additional prophylactic measures to address future cases involving widespread prosecutorial misconduct, and whether the court would adopt any such measures in this case.’”

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police-car-1515955-300x225In Commonwealth v. Bones (http://www.socialaw.com/services/slip-opinions/slip-opinion-details/commonwealth-vs.-leonides-bones), the Appeals Court affirmed the defendant’s conviction of possession of a class A controlled substance with intent to distribute, ruling that the judge properly denied the defendant’s motion to suppress.

The basic facts were as follows. Chelsea police sergeant Dunn “responded to a call from a party reporting possible drug activity…. On Division Street, … Dunn observed a black male matching the caller’s description. From prior encounters, … Dunn recognized the man as the defendant….  Dunn observed the defendant ‘drinking out of a nip type bottle of alcohol’ while he was walking down the sidewalk…. Dunn stopped his cruiser and got out to speak with the defendant.” Upon seeing Dunn approaching him, “the defendant said, ‘I’m sorry, I didn’t see you. I’ll dump it out,’ and began dumping [the] contents of the bottle of alcohol onto the sidewalk…. Dunn did not order the defendant to stop drinking the alcohol or make any other show of authority.” As Dunn later “testified without objection[,] … ‘drinking alcohol in public is an arrestable offense in the [c]ity of Chelsea.’ He … detained the defendant to see whether he had any active warrants. After determining that the defendant did have an active warrant for his arrest, … Dunn and other officers who had arrived on scene arrested the defendant on the warrant and transported him to Chelsea police headquarters.” There, “the officers conducted an inventory of the defendant’s personal property.” Upon removing the defendant’s shoes, “[t]he officers noticed a bulge protruding from the defendant’s sock…. In [the] sock, [they] found a large plastic bag filled with fifteen individually wrapped smaller bags of heroin.” Upon the return of indictments against the defendant, he filed a motion to suppress the drugs on the ground that “Dunn was not justified in detaining him to check for warrants because drinking in public is not a crime under either the General Laws of the Commonwealth or the ordinances of the city of Chelsea.” The judge denied the motion and the defendant was convicted of possession of a class A controlled substance with intent to distribute. On appeal, he challenged the judge’s rejection of his argument for suppression of the drugs.

In its decision, the Appeals Court stated that “[t]he defendant’s argument fails for several reasons. First and foremost, the defendant overlooks the testimony by Sergeant Dunn, credited by the judge, that drinking an alcoholic beverage on the street or a sidewalk in the city of Chelsea is a criminal offense. In Massachusetts, the contents of a municipal bylaw or ordinance may be proved by oral testimony…. Here, … Dunn testified without objection that in the city of Chelsea, drinking alcohol in public is an arrestable offense. See G.L. c.272, §59 [] (providing that person who, in public, willfully violates ordinance ‘the substance of which is the drinking or possession of alcoholic beverage,’ is subject to arrest)…. The detention of the defendant for purposes of conducting a check for active warrants therefore was valid, because … Dunn had probable cause to arrest the defendant for violating the ordinance prior to his detention…. Accordingly, … Dunn’s subsequent arrest of the defendant based on an outstanding warrant was valid.”

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various-abusive-drugs-1194951-300x225In Commonwealth v. Eldred, the Supreme Judicial Court affirmed the revocation of the defendant’s probation and concluded (1) that “a judge may order a defendant who is addicted to drugs to remain drug free as a condition of probation”; and (2) that where a defendant has violated that condition, the judge has the authority, pending the final probation violation hearing, to detain the defendant while she awaits admission into inpatient treatment “for the safety of the defendant and the community.”

The background was as follows. Charged with the theft of jewelry, “[t]he defendant admitted to the police that she had stolen the jewelry and had sold it to obtain money to support her heroin addiction.” Subsequently, she admitted to sufficient facts to warrant a finding of guilt. The District Court judge “continued the defendant’s case without a finding, and imposed a one-year term of probation with special conditions related to her substance abuse that included requiring her to remain drug free, submit to random drug screens, and attend outpatient substance abuse treatment three times each week.” “[O]nly eleven days after … the probation had been imposed, the defendant tested positive for fentanyl, following a random drug test administered by her probation officer…. The … officer then filed a ‘Notice of Probation Detention Hearing’ with the District Court,” seeking to hold the defendant in custody pending a probation revocation hearing to determine whether her probation should be revoked.

At “the detention hearing, the judge … determined that there was probable cause to believe the defendant had violated the ‘drug free’ condition of her probation by using fentanyl. Because defense counsel was not able to secure a placement for the defendant at an inpatient treatment facility [that day], the judge ordered that the defendant be held in custody until a placement became available. The defendant was released into an inpatient treatment facility after ten days in custody.” Two months later, “a different District Court judge presided over the defendant’s probation violation hearing. Despite conceding that she had used fentanyl, the defendant contested that she had violated the terms of her probation.” She contended that because “she had been diagnosed with SUD [substance use disorder, i.e., addiction],” she was “incapable of remaining drug free,” such that “her use of drugs could not constitute a wilful violation of her probationary condition to remain drug free…. The judge determined that the defendant had violated the drug free condition of her probation by testing positive for fentanyl. The defendant filed a motion to vacate the condition of probation requiring her to stay drug free, arguing that the condition violated various State and Federal constitutional rights. That motion was denied. The judge then modified the conditions of the defendant’s probation by adding the condition that she continue inpatient treatment.” The defendant appealed. Continue reading →

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what-s-that-1527433-300x264In Commonwealth v. Monteiro, the Appeals Court reversed the suppression of items seized by the police from the defendant’s apartment because the judge erroneously ruled that “the information provided by a first-time, confidential police informant (CI) was [not] sufficiently corroborated by a single, imperfectly executed controlled ‘buy’ of cocaine for the purposes of establishing probable cause [in the affidavit in support of an application for] a warrant to search the defendant’s apartment.”

The basic facts were as follows. A police detective (Gracia) spoke with a first-time CI, who reported that he regularly purchased cocaine from the defendant. Gracia and the CI met “to arrange a controlled buy of cocaine from the defendant. The CI was searched and determined to be free of contraband and money…. Gracia then gave the CI money to purchase cocaine from the defendant…. Gracia and other [officers] maintained surveillance of the CI. They observed the CI walking toward the rear exterior door of the defendant’s apartment building. A short time later, the CI was seen leaving the walkway [outside of] the rear exterior door. The defendant was not observed entering or exiting the apartment building through the rear exterior door. The CI was kept under surveillance until [he] met … Gracia at a predetermined location where the CI provided … Gracia with a quantity of what” was later determined to be cocaine. “The CI stated that [he] purchased the cocaine from the defendant inside [the latter’s] first-floor apartment. The CI was again searched and determined to be free of money and contraband.” Based on the controlled buy, Gracia procured a warrant to search the defendant’s apartment. During the search, the police found drugs and drug paraphernalia, which led to the return of an indictment charging the defendant with trafficking in cocaine. The defendant filed a motion to suppress the seized items on the basis that the police affidavit in support of the application for a warrant did not establish probable cause. The judge allowed the motion, on the ground that under the AguilarSpinelli test, the affidavit failed to establish the CI’s veracity. The Commonwealth appealed. Continue reading →

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ir-hemp-leaf-1364000In Commonwealth v. Richardson, the Supreme Judicial Court reversed the defendant’s conviction of unlawful cultivation of medical marijuana because “the jury were not properly instructed as to the standard for evaluating whether a defendant exceeded the home cultivation limit,” and because “the evidence was insufficient to support such a finding.”

The background was as follows. In 2013, the defendant, an unemployed tattoo artist, “obtained a written certification from a qualifying physician that approved his use of medical marijuana to treat a number of medical conditions…. The certification constituted a valid hardship cultivation registration permitting the defendant to grow up to ten ounces of marijuana every sixty days for his personal, medical use…. [T]wo months later, … the defendant telephoned 911 to report a home invasion at his residence.” Police officers converged on the scene and, in the course of their investigation, discovered twenty-two marijuana plants growing in the basement of the defendant’s home. In another room, the officers observed a digital pocket scale and numerous plastic baggies. The defendant was arrested. When the officers searched him, they found $2,135 in his pocket. He was charged with unlawful cultivation of medical marijuana and possession of marijuana with intent to distribute. At trial, the defendant’s former girl friend testified “that [the defendant] was not working at the time” of his arrest and that he was not a regular user of marijuana. In the judge’s instructions on unlawful cultivation of medical marijuana, he told the jurors “that the defendant had a valid hardship cultivation registration and that it was the Commonwealth’s burden to prove the defendant ‘had so many marijuana plants that the plant yield was certain to exceed [ten] ounces of usable marijuana every [sixty] days or that he intended to sell or distribute any of his usable marijuana.’” The defendant was convicted of both charged offenses. Continue reading →

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various-abusive-drugs-1194938-300x225In Commonwealth v. Rodriguez, the Appeals Court reversed the defendant’s conviction of trafficking in heroin because the field test of the purportedly illegal substance seized by the police was not evaluated for scientific reliability under the Daubert/Lanigan standard (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 [1993]; Commonwealth v. Lanigan, 419 Mass. 15, 26 [1994]).

The background was as follows. In April, 2009, Boston police officers executed warrants to search the defendant’s apartment, his vehicle, and his person. In a bedroom closet, “the police found … a small pouch that contained nine individually wrapped packages, or ‘fingers,’ of a substance that resembled sidewalk chalk. A search of the defendant’s person yielded two similar packages. Officer … England took the eleven packages to the police station and conducted a field test using a NarcoPouch 924 test kit.” The field test indicated that the substance was heroin. “The eleven packages were sent to the William A. Hinton State Laboratory Institute … for testing. As the primary chemist assigned to the case, Annie Dookhan ‘received [the packages] from the evidence office[,] … checked [them,] and [did] all the preliminary testing, which included doing the net weight, doing color tests, [and] perhaps … other kinds of testing.’ Della Saunders, the confirmatory chemist, received eleven vials prepared by Dookhan and tested them, concluding that ‘they were positive for the presence of heroin.’ Both Dookhan and Saunders certified that the packages seized from the defendant’s closet and person contained heroin.  Continue reading →

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In a recent decision – Commonwealth v. Smith – the Appeals Court affirmed the defendant’s conviction of possession with intent to distribute cocaine, the Appeals Court rejected the defendant’s contention that the testimony of a police expert on drug use and distribution “was admitted improperly because it was based on hearsay and profiling characteristics of drug sellers and users.”

The background was as follows. Police officers in a narcotics unit were conducting surveillance when they observed a “Volvo driving slowly” “back and forth through [an] intersection, [before coming] to a stop in the parking lot of a nearby liquor store that was closed…. A few minutes later, the officers saw the defendant” approach the Volvo and get into the front passenger seat. “About one minute later, the Volvo drove out of the parking lot” and travelled “a short distance from the original pick up location; the defendant got out of the car there. [Detective] Mercurio drove his unmarked police car past the Volvo,” stopped near the defendant, “and identified himself as a police officer; the defendant then stepped back and started running down the driveway of a house.” “Mercurio chased the defendant down the driveway, and observed the defendant’s hands go to the front of his pants as he was running…. As soon as the defendant turned the corner of the house, Mercurio lost sight of him.” After another officer detained the defendant, “Mercurio … went back to the area behind [the house] where he had lost sight of the defendant …; he found a clear plastic bag containing two rocklike substances that were individually wrapped ‘inside the corner of a bag and it was tied in a knot at the top.’ Approximately three feet away, another officer found ‘a second plastic bag and inside that plastic bag [were] thirteen more individually wrapped off-white colored rocklike substances.’…. The bags were tested and the substance was determined to be cocaine. At trial, an officer who had not participated in the investigation, Detective Keating, testified as an expert, based on his training and experience, regarding illegal drug distribution and drug use. Keating provided for the jury an overview of the consistency and street cost of crack cocaine generally in the [local] market…. He explained that the most common packaging of crack cocaine for street sales is for the ‘rock [to] be placed in the corner of a baggy, twisted, tied off and that’s how it’s individually wrapped’; the individual packets are then generally ‘held in one big sandwich bag.’” Keating opined that “the amount of drugs possessed by the defendant [and its packaging in fifteen individual bags] was not consistent with personal use but was consistent with an intent to distribute.” Continue reading →