Articles Posted in Drug Crimes

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gavel-2-1236453-300x200In Commonwealth v. Claudio, the SJC ruled that where “a guilty plea [was] negotiated by a defendant who qualified for an enhanced sentence due to a subsequently vacated predicate offense that had been tainted by [state laboratory chemist Sonja] Farak’s misconduct,” “such a defendant may challenge the guilty plea without being exposed to a harsher sentence than that which he received in exchange for his plea.”

The background was as follows. “In 2013, the defendant … was indicted on two counts alleging aggravated statutory rape pursuant to G.L. c.265, §23A. In addition, he was indicted as a habitual criminal pursuant to G.L. c.279, §25(a), with two drug offenses on his prior record as the predicate convictions…. As G.L. c.265, §23A, carries a maximum penalty of life in prison, the defendant was exposed to a mandatory life sentence for a conviction on the aggravated rape charges. In 2015, the defendant accepted a negotiated plea agreement under which he pleaded guilty to lesser charges without the habitual offender enhancements, and received a prison sentence of from six to eight years…. In 2018, the defendant was identified as a so-called ‘Farak defendant.’ His conviction of possession with intent to distribute heroin, based on certificates of drug analysis … signed by Farak, was, therefore, dismissed with prejudice. As the vacated conviction was one of the two predicate offenses relied on for application of the habitual criminal enhancement, the defendant no longer qualified as a habitual criminal. Before seeking to withdraw his guilty plea, which was negotiated in circumstances that now no longer exist, the defendant requested a preliminary ruling from the Superior Court judge that if he were to succeed in withdrawing his plea, he would not be subject to a harsher punishment as the result of a reprosecution of the rape charges than the prison sentence that he received pursuant to the plea agreement.” The judge then reported the following question: “‘Do the protections from harsher punishment established for “Dookhan defendants” [i.e., those whose prosecutions were tainted by the misconduct of Annie Dookhan] in [Bridgeman v. District Attorney for the Suffolk Dist., 471 Mass. 465 (2015) (Bridgeman I),] apply to ‘Farak defendants’ who are challenging pleas based upon Farak-related grounds relating to G.L. c.279, [§25(a)], predicate offenses?’” Continue reading →

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cash-money-1520773-300x225In Commonwealth v. Watt, the Supreme Judicial Court reversed the denial of the defendant’s motion for a refund of the drug analysis fee that was imposed on him, but affirmed the denial of his motion for a refund of his inmate account fees.

The background was as follows. In 2010, the defendant pleaded guilty to two counts of distribution of cocaine and was sentenced to a term of incarceration. “In addition, he paid a drug analysis fee of $150, which was imposed pursuant to G.L. c.280, §6B. [Subsequently,] [h]e filed a motion for a new trial, seeking to withdraw his guilty plea due to the misconduct of Sonja Farak, a [state laboratory] chemist … who analyzed the substances seized in his case…. That motion was initially denied, but ultimately, after the defendant was released at the end of his sentence, the indictments were dismissed with prejudice on the Commonwealth’s motion. The defendant thereafter filed a motion seeking a refund of fees associated with the vacated convictions, namely, the drug analysis fee and certain fees incurred on the inmate account he was obligated to maintain while he was incarcerated. See G.L. c.124, §1(u).” The motion was denied and the defendant appealed. Continue reading →

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In a recent case – Commonwealth v. Fredericq – the Supreme Judicial Court affirmed the allowance of the defendant’s motion to suppress the fruits of the police action tracking the location of a cell phone for six days.

The basic facts were as follows. A homicide investigation led to the return of a murder indictment against a man named Dorisca. In the course of looking for Dorisca, the police acquired information that his best friend (Cassio) and other men, including the defendant, were driving to Florida in a Toyota SUV to purchase drugs. In addition, the police acquired Cassio’s cellular telephone number. “[T]he Commonwealth sought and obtained a court order, pursuant to 18 U.S.C. §2703(d) (2006), to require the cellular service provider to produce records for” that cell phone. “[T]the cellular service provider furnished [the police] with records showing that the defendant was the subscriber for [the cell phone], and that the defendant resided in an apartment in Brockton…. The cellular service provider used ‘ping’ technology to send radio signals to the … phone and record the … location of the … cell towers with which [it] communicated.” The provider “sent the resulting CSLI [cell site location information] records by e-mail” to the police every fifteen minutes. In this manner, the police, without a warrant, tracked the Toyota for six days, in the course of which it travelled to Florida and back to the defendant’s address in Brockton. The police went to that address, a multiunit house. On the third floor, they knocked on a bedroom door; the defendant answered and indicated that he resided there. The officers “informed the defendant … that [a] murder suspect might be in the building[,]” and that they “had information that the defendant ‘had just gone down to Florida and purchased a large amount of narcotics and … [was] possibly storing it [in his residence].’ The defendant … signed a form giving his consent for a search. During that search, the police found $2,200 in cash in the defendant’s bedroom and … two ‘bricks’ of cocaine” “in [a] … crawl space across from [his] bedroom.” After the defendant was indicted for cocaine trafficking, he moved to suppress the fruits of the search. The motion was allowed and the Commonwealth filed an interlocutory appeal. “The Commonwealth concede[d] that the CSLI tracking of the cellular telephone in this case was unlawful because it was not authorized by a search warrant. But the Commonwealth argue[d] that the motion to suppress should nonetheless have been denied because (1) the defendant had no standing to challenge the tracking of a cellular telephone that was registered in his name, but used solely by Cassio; (2) … the cocaine was not seized during a constitutional search because the defendant lacked any expectation of privacy in the crawl space where it was found; and (3) the evidence obtained during the search was sufficiently attenuated from the illegal [CSLI] tracking because of the defendant’s consent to the search, thus ‘purging’ the search of its taint.” Continue reading →

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various-abusive-drugs-1194951-300x225In a recent case – Commonwealth v. Agogo – the Supreme Judicial Court affirmed the suppression of “narcotics seized from the defendant’s crotch area as the result of a strip search,” on the grounds that “the police lacked the requisite probable cause to believe that the defendant had concealed narcotics somewhere on his person that could not have been detected through an ordinary search procedure.”

The basic facts were as follows. While conducting surveillance in a high crime area, two police officers (Torres and Betz) “observed the defendant standing … on the sidewalk outside [an apartment] building. While they watched, the defendant repeatedly entered the … building, remained inside for approximately thirty seconds, and then returned to the sidewalk in front of the building…. Based on his training and experience …, Torres believed that it was common for individuals engaged in street-level drug transactions to maintain the bulk of their narcotics elsewhere, so as not to have drugs on their persons if stopped, and to return to the ‘stash location’ after a sale in order to retrieve drugs for a new sale…. Torres believed that the defendant was engaging in this practice…. After … twenty minutes of observation, and having become increasingly suspicious of the defendant’s behavior, the officers saw an individual, later identified as James Foster, approach the defendant, who was again standing outside the apartment building. Torres noticed that Foster was ‘manipulating something in his hands’ as he spoke to the defendant; Torres believed that Foster was counting currency. Foster and the defendant then turned and walked around the corner, where they were no longer in view of the officers. Because the officers believed a drug transaction was about to take place, they, too, rounded the corner.” As they did so, Torres observed “the defendant [apparently] hand[ing] an item to Foster. Torres could not see the item, but thought that he had just witnessed a hand-to-hand drug transaction; therefore, he and Betz … approached the two men.” Continue reading →

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apartment-balcony-1477432-300x298In Commonwealth v. Arias, the Supreme Judicial Court affirmed the suppression of drugs seized from the defendant’s apartment on the grounds that the warrantless search of the apartment was not justified under either the emergency aid exception or the exigent circumstances exception to the warrant requirement.

The basic facts were as follows. The Lawrence police department received a tip from a 911 caller, who “stated that … she saw two ‘Spanish guys’ ‘with a gun … going up to the [apartment] building’ located at [a designated address]…. The caller ‘heard … one of [the men] load the gun,’ and saw the men enter the building.” The dispatcher disseminated the information provided by the caller and “[m]ultiple police officers responded to” the building described in the dispatch. The multi-unit “building contained two apartments on the ground floor, numbered ‘5A’ and ‘7A.’” “At the front of the building, [Sergeant] Simard spoke to residents of unit 7A…. [They] … denied seeing or hearing anything out of the ordinary, and said that they did not know who lived in unit 5A…. After obtaining the telephone number of the 911 caller [from the dispatcher], Simard spoke with her by telephone. [She] told Simard that she had seen three males [not two as she had said in her 911 call] … talking [calmly] on the front step of the building…. [She also told Simard] that the men likely had a key to the building because they entered the front door ‘easily.’” At some point, “[a]t the rear of the building, [Sergeant] Cerullo observed a Hispanic male leave the building [through a] door.” The man did not fit the 911 caller’s description of the men she had observed entering the front door. “With his firearm drawn, Cerullo shouted, ‘Lawrence Police. Show me your hands.’” The man “appeared ‘shocked’ and ‘quickly went back inside’ the building…. Cerullo … attempted to enter the building through the door [the man] had used, but” it was locked. Subsequently, Cerullo and Simard decided to enter unit 5A without a warrant. Inside the unit, they conducted a protective sweep “for any injured persons and the Hispanic male [whom Cerullo] had seen … at the rear of the building…. They did not find any people, but they did observe in plain view what appeared to be illegal narcotics” and drug paraphernalia. Based on these observations, the police obtained a search warrant pursuant to which they seized items from the apartment, which turned out to be the defendant’s residence. After the issuance of indictments against the defendant, he filed a motion to suppress evidence seized pursuant to the warrant, on the ground that the warrant was predicated on observations made during an unconstitutional search.” The motion was allowed and the Commonwealth filed an interlocutory appeal, arguing that the warrantless entry into the apartment was justified under the emergency aid exception and the exigent circumstances exception to the warrant requirement. Continue reading →

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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 (, 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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