Articles Posted in Drug Crimes

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hair-1481587The Appeals Court recently issued a decision – Thompson v. Civil Service Commission – finding that the Boston Police Department’s drug screening method for screening its officers is flawed.

The background of the case is as follows: the collective bargaining agreement between the Boston police officers’ union and the Boston Police Department provides for annual hair testing for drugs as part of the department’s substance abuse policy. The portion of the agreement that specifically pertains to the testing states that “sworn personnel of the Boston Police Department will be tested for drugs and/or alcohol under the following circumstances…the parties agree that all sworn personnel shall be subject to an annual drug test to be conducted through a fair, reasonable, and objective hair analysis testing system.” The agreement goes on to state that an employee “will be subject to termination” for a positive test result…” The plaintiffs in the case are a total of ten officers who submitted hair samples, tested positive for cocaine, and were terminated as a result. The union then filed suit on behalf of the officers to appeal their terminations and the case ultimately ended up before the Appeals Court.

In reviewing the case, the Appeals Court found that the Boston Police Department’s use of officers’ hair samples in drug screening is scientifically unreliable and reinstated six of the ten officers with back pay and benefits. In its decision, the Appeals Court conducted an inquiry into the scientific reliability of the hair test and found that a positive test result was not conclusive on the question of voluntary drug ingestion.  It further found that a positive result may in fact be due to contamination from environmental exposure as opposed to drug use by the officer. The Court specifically held that the risk of a false positive was significant enough to require additional evidence prior to terminating an officer for drug use. In terms of six of the officers who had been terminated as a result of the positive test results, the Appeals Court found that the additional evidence presented by the officers outweighed the results of the hair test.   Continue reading →

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questions-1308019According to an article in The Patriot Ledger, questions have arisen about the Braintree Police Department’s oversight of evidence held in their custody. While town officials have been relatively quiet about what is happening, the article states that the town has hired an outside investigator to conduct an audit of all evidence held by the police department. Braintree’s mayor, Joseph Sullivan, issued a short statement earlier this week in response to an inquiry from The Patriot Ledger, saying that “[t]he evidence review is active and ongoing.” The mayor further stated that upon the completion of the review, “all findings will be communicated to the Norfolk County [D]istrict [A]ttorney’s office and at the appropriate time released to the public.” The mayor made no indication as to what triggered the audit and his statement said that he would have no additional comments. Braintree’s chief of police likewise declined to provide any information, stating that he was “not in a position to elaborate.”

The article further states that the Norfolk County District Attorney is aware of the review. The DA made his own statement saying that he has “been made aware of the ongoing internal investigation at the Braintree Police Department” and that, “[a]t this time, [the DA’s] office is not involved in the internal investigation. Although the mayor, the police, and the DA’s office appear to be in the know, other town officials do not appear to be as well informed. The Patriot Ledger reached out to the town council president shortly after the mayor issued his statement and he said that he was unaware of the audit and the mayor’s statement was “the first [he’s] heard of it.” The town council president added that the council will likely have “to wait until the investigation is completed” before taking any action. Continue reading →

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dutch-weed-1251539According to an article in the MetroWest Daily News, a Worcester man was recently arrested for various driving offenses because he admitted to officers that he had been smoking marijuana while operating his car. This past Wednesday, several officers were working on a detail on Union Avenue in Framingham when a passing Toyota sedan drew their attention. The article specifically states that all the officers noticed an “extremely strong odor of burnt marijuana” coming from the car as it passed. One of the officers pulled over the driver and spoke to him. The driver acknowledged that he had been smoking marijuana and handed the officer a joint. The driver went on to state that he “always” smokes and drives because it “relaxes” him. The officer then told the driver that it is “illegal to drive under the influence of marijuana” and proceeded to arrest him. The defendant was ultimately charged with driving under the influence of drugs (marijuana) and driving to endanger. Police also cited him for possession of less than an ounce of marijuana, as the driver provided the officers with a small bag of marijuana.

For the Commonwealth to obtain a conviction against the defendant for operating under the influence of drugs, it would have to prove the following beyond a reasonable doubt: (1) that the defendant operated a motor vehicle; (2) that he operated it on a public way; and (3) that while the defendant was operating the vehicle, he was under the influence of marijuana. As to the third element, someone is under the influence whenever he has consumed enough marijuana to reduce his ability to operate a motor vehicle safely by diminishing his alertness, judgment, and ability to respond promptly. This would include anyone who has consumed enough marijuana to reduce his mental clarity, self-control and reflexes, and thereby left him with a reduced ability to drive safely. The Commonwealth is not required to prove that the defendant actually drove in an unsafe or erratic manner, but it must prove that the defendant had a diminished capacity or ability to drive safely.

For the Commonwealth to obtain a conviction against the defendant for driving to endanger (under the same statute), the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the defendant operated a motor vehicle; (2) that he did so on a public way; (3) that he did so in a negligent manner so that the lives or safety of the public might have been endangered. As to the third element, a person acts negligently when he fails to use due care, that is, when he acts in a way that a reasonable person would not act. This can happen either by doing something that a reasonably prudent person would not do under those circumstances, or by failing to do something that a reasonably prudent person would do. The defendant acted negligently if he drove in a way that a reasonable person would not have, and by doing so created an unnecessary danger to other people, a danger that he could have avoided by driving more carefully. A person can be found to have driven negligently even if no accident resulted, and even if there was no one else actually on the road to be put in danger. A person is negligent if he drives in a way that has the potential to cause an accident or to endanger anyone who might be on the road. Continue reading →

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various-abusive-drugs-489543-mAccording to an article on the American Civil Liberties’ website, thousands of criminal defendants impacted by the Annie Dookhan/Hinton Drug Lab scandal still have not received justice.  The article states that in May 2015, the Supreme Judicial Court issued a decision in Bridgeman v. District Attorney for Suffolk County.  The decision stated that Dookhan defendants have the right to challenge their convictions without fear of further punishment.  Specifically, the ruling stated that criminal defendants who brought a motion to vacate a conviction based on Dookhan related issues could not face more serious charges, or longer sentences following the allowance of such a motion.   The SJC then sent the case to SJC Justice Margot Botsford to determine how defendants would be identified and notified of their rights.  Justice Botsford subsequently issued a ruling requiring state prosecutors to produce lists of Dookhan defendants.  Despite her order, however, prosecutors have been slow – extremely slow – to respond.  Justice Botsford held a hearing on May 11, 2016 to discuss the need to notify defendants.  This past week, almost five years since Dookhan’s misconduct was uncovered, and one full year after the issuance of Bridgeman, prosecutors have finally issued the requisite lists.

The lists identify more than 24,000 drug cases in which people were convicted, or had other adverse dispositions, as a result of tainted drug testing completed by Annie Dookhan.  These Dookhan cases appear to account for 25 percent of all drug prosecutions that led to convictions in the seven counties that used the Hinton State Lab during Dookhan’s tenure, and one in six of such drug prosecutions in the Commonwealth, over a 10-year period.  Despite these staggering numbers, the vast majority of the defendants in these 24,000 cases have not received any official notice that Dookhan worked on their case, let alone legal representation to help them challenge their tainted convictions.

These revelations follow on the heels of a report issued last week from the Massachusetts Attorney General’s Office, written at the request of the Massachusetts Supreme Judicial Court, which found that Massachusetts is also confronted with a second enormous lab scandal arising from misconduct by chemist Sonja Farak at another state drug lab, in Amherst.  According to the report, Farak used drugs daily during her eight years on the job, and her misconduct likely affects thousands more cases. Continue reading →

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dutch-weed-1595294According to an article in the MetroWest Daily News, three men fled from the vehicle they were traveling in during a traffic stop in Framingham earlier this week. The article states that the police pulled the car over for a traffic violation on Hollis Street. Although the driver initially pulled the car over, he then restarted the vehicle and attempted to get away from the police. The driver cut through the Tedeschi’s parking lot and turned down an alleyway next to Auto Brite Car Wash. The alley, however, is a dead end and the three men were trapped. Officers ordered the driver and the two passengers out of the car and proceeded to search it. The police recovered nearly three ounces of marijuana and several digital scales. All three of the men were arrested. The driver was charged with failure to stop for police, driving with a suspended license, driving to endanger, possession of marijuana with the intent to distribute, and conspiracy. The two passengers were charged with possession of marijuana with intent to distribute and conspiracy.

To charge the men with possession with intent to distribute marijuana under G. L. c. 94, § 32C, the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the substance in question was in fact marijuana; (2) that the defendants possessed some perceptible amount of that substance with the intent to distribute it to another person; and (3) that the defendants did so knowingly and intentionally. As to the second element, the jury is allowed to consider the following factors in determining whether the defendants had the requisite intent to distribute: (1) the quantity of drugs that were possessed; (2) the purity of the drugs; (3) the street value of the drugs; (4) the defendants’ financial resources; (5) how the drugs were packaged; (6) whether other items were found along with the drugs which might suggest drug sales, such as cutting powder or packaging materials, scales, or large amounts of cash; (7) whether there is any evidence suggesting that a sale was in progress; (8) whether there is any evidence that these drugs were part of a larger stash of drugs; and/or (9) whether there is any evidence that the defendant repeatedly traveled at short intervals to known drug centers.  As to the third element, a defendant acts knowingly and intelligently if he acted consciously, voluntarily and purposely, and not because of ignorance, mistake or accident. Continue reading →

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dutch-weed-1251539According to an article in the MetroWest Daily News, three men were arrested earlier this week and charged with robbery in Marlborough. The article states that the three defendants met the alleged victim outside a Burger King for the purpose of buying marijuana from him. When the alleged victim presented the drugs, the three defendants reportedly reached into their pockets and pretended to have weapons. One of the defendants then reportedly grabbed the marijuana from the alleged victim while the other two defendants allegedly pushed him and attempted to steal his cellular telephone. The defendants then reportedly drove off in a silver vehicle. The alleged victim called the police and provided them with a description of the vehicle and the license plate number. Officers stopped the car a short distance away. Inside the vehicle, the officers found a bag of marijuana. Following the stop, the alleged victim identified the three men in the car as the people that robbed him. The driver was charged with unarmed robbery, use of a motor vehicle without authority, and conspiracy to violate the drug laws. The other two defendants were charged with unarmed robbery, assault and battery, and conspiracy to violate the drug laws.

The evidence against the defendants appears to be strong at first glance. However, the case ultimately hinges on the alleged victim’s testimony – he is the only witness who will be able to testify to what happened in the parking lot – and there appear to be two potential problems with calling him as a witness. Continue reading →

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dutch-weed-1251539According to an article in the MetroWest Daily News, a man and a woman were arrested in Framingham earlier this week by police officers searching for a suspect in an unrelated crime.  The article states that the police went to 10 Main Street in Framingham looking for a suspect believed to be involved in a pistol whipping incident at UMASS Amherst that occurred two weeks ago.  The man and woman that were arrested reside in one of the apartments at the Main Street address – the police specifically went to the address because they reportedly “had word” that the suspect in the UMASS incident was friends with the female resident.  When the police arrived, they immediately arrested the woman, who had an outstanding warrant for a probation violation.  According to the article, the police obtained a search warrant for the apartment and then proceeded to search the residence for the suspect in the UMASS incident.  The suspect was not located, but during the course of the search, the police found “a large amount of marijuana” (approximately half a pound) located in several jars under the sink.  In addition to the marijuana, officers also reportedly found $5,000 in cash, several scales, empty plastic bags, and other evidence of marijuana growing – there is no information as to where these items were found.  Following the discovery of the marijuana and other items, the officers arrested the male resident as well.  The man and woman were subsequently charged with possession with intent to distribute marijuana.

Fortunately for the defendants, there does appear to be a viable motion to suppress.  A motion to suppress is a written request by a defendant asking the court to keep certain evidence from being introduced against them at trial because that evidence was obtained as a result of unconstitutional or illegal police activity. The Fourth Amendment to the United States Constitution guarantees a person’s right to be free from unreasonable searches and seizures.  The police have a legal basis to enter a home if they have a search warrant, as long as the search warrant is supported by probable cause to believe that evidence of a crime is present in the location to be searched.  If the search warrant is not supported by sufficient probable cause, however, evidence obtained as a result of the search should be suppressed.  Continue reading →

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drugs-1-1539948Governor Charlie Baker recently signed a new bill, which will go into law ninety days after it was signed on January 25, 2015. The law specifically impacts civil commitments for individuals struggling with substance abuse.

Under G. L. c. 123, § 35, a police officer, doctor, family member, guardian, or court official may petition a judge in the district or municipal court to civilly commit a person whom he or she has reason to believe is an alcoholic or substance abuser. The court must then hold a hearing to determine whether: (1) the person is an alcoholic or substance abuser; and (2) there is a likelihood of serious harm as a result of the person’s alcoholism or substance abuse. If the court determines that the individual meets the above referenced criteria , the court may order the person to be civilly committed for a period not to exceed ninety days.

According to the statute, the commitment is for the purpose of inpatient care in public or private facilities approved by the department of public health for the care and treatment of alcoholism or substance abuse. Among the criminal defense bar, however, there has been some question as to the effectiveness of such treatment. This has been particularly true because the facilities that an individual could be sent to currently include Bridgewater State Hospital – a hospital within the state prison system – for male individuals committed under the statute, and Framingham state prison, for females committed under the statute. Although there are other facilities not within the state prison system where such individuals may be committed, depending on bed availability at the various facilities, indviduals with substance abuse issues but no criminal history could ostensibly find themselves in the state prison system during the pendency of their civil commitments under this statute.   Continue reading →

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stacked-denim-jeans-16-1056359According to an article in the MetroWest Daily News, a Woburn woman was arrested on larceny and drug charges this past week at the Marshalls located at Shoppers World. The store security officers were allegedly familiar with the woman because she had been involved in thefts at both Marshalls and TJ Maxx on various dates in November of this year. These thefts reportedly consisted of the woman taking several pairs of jeans from the shelves and bringing them into the dressing room. Once in the dressing room, the woman would reportedly remove the security tags and bring the items to the help desk to return them. She allegedly used the gift cards that she got for the returns to purchase other items in the store. According to the article, the woman got more than $1,000 worth of gift cards. Police officers reportedly identified the woman from surveillance footage and obtained a warrant for her arrest. When the woman returned to Marshalls after the issuance of the warrant, store security alerted police, who then came to the store to make the arrest. After arriving, police reportedly confronted the woman and asked for her name, which she provided. When the officers told her that there was a warrant for her arrest, the woman allegedly claimed that the warrant was for her sister, not her. The woman then reportedly attempted to give a different name but was ultimately arrested. While effectuating the arrest, the woman reportedly resisted, flailing her arms. She also allegedly dropped a small plastic bag on the ground and attempted to kick it away. The officers recovered the bag and found that it contained a substance that they believed to be heroin. The officers also found two additional bags of what they believed to be heroin in the woman’s purse, as well as $500 in cash. As a result, the woman was charge with possession with intent to distribute heroin, resisting arrest, and five counts of larceny under $250.

Although the woman is facing serious charges, she does appear to have at least some defenses – specifically, she may well have an argument that she did not have the requisite intent to sell the drugs. To prove the woman guilty of possession with intent to distribute under G. L. c. 94C § 32, the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the substance in question was in fact heroin; (2) that the defendant possessed some perceptible amount of that heroin with the intent to distribute it to another person; and (3) that the defendant did so knowingly or intentionally. Continue reading →

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lit-232924-mThis past week, the Supreme Judicial Court rule that people who pled guilty in cases where evidence was mishandled by former state chemist Annie Dookhan may not be charged with more serious crimes if given a new trial and, if convicted, may not be given a worse sentence than the judge originally imposed. The decision – Commonwealth v. Bridgeman – was unanimous.

Dookhan is the former Massachusetts drug lab chemist accused of tampering with evidence in a drug testing scandal that threatened thousands of criminal cases in Massachusetts. Dookhan, who worked at the state’s Hinton Laboratory in Jamaica Plain, was accused of fabricating test results and tampering with drug evidence. She played some sort of a role in more than 40,000 drug tests at the Hinton lab, where she worked from 2003 until 2012. The state police first learned of Dookhan’s actions after a chemist at the lab in which she worked said that he observed “many irregularities” in her work. During a subsequent investigation, Dookhan admitted to authorities that she took shortcuts, such as only testing some of the samples that she was assigned to, and then listing them all as positive for the presence of a drug. She also acknowledged that sometimes, if a sample tested negative, she would take a known controlled substance from another sample and add it to the negative sample in order to make it test positively. Dookhan ultimately pled guilty in November 2013 to twenty-seven counts of misleading investigators, filing false reports, and tampering with evidence, and was sentenced to three to five years in state prison, followed by two years of probation that included mental health counseling if needed.

As a result of Dookhan’s malfeasance, the state shut down the laboratory in 2012. A list of so-called “Dookhan” cases was compiled so that the convictions could be re-visited and motions for new trials could be filed. Counties across the state set up “Dookhan” sessions to deal with defendants’ motions for new trials. Some defendants chose to go forward with new trials or re-negotiated pleas. Others chose not to for fear that they might lose at trial and get a worse sentence. Alternatively some defendants who had originally pled guilty to reduced charges in return for the plea chose not to try and vacate their pleas because of the concern that the original charges (rather than the reduced ones) would be reinstated. As a result, many defendants chose to take no action, despite the clear violation of their due process rights.

Continue reading →