Drug Crimes

Published on: August 12, 2014

Framingham Couple Arrested on Drug Distribution Charges

According to an article in the MetroWest Daily News, a Framingham couple was arrested last week for allegedly selling cocaine and heroin out of their apartment. The man and woman were arrested at their home, located at 140 Franklin Street. According to the article, the police began investigating the pair approximately one month ago after they received a tip that the two were selling drugs out of the apartment. During the investigation, confidential informants allegedly bought drugs from the couple inside the home. The undercover purchases led to the issuance and execution of a search warrant for the apartment. During the course of the search, the police found 40 plastic bags of heroin, totaling 17.5 grams, and 7.5 grams of cocaine. The police also reportedly found a stun gun and a .22 caliber bullet. The police further reported that the door to the apartment had more bolts and locks than the “average” apartment. Both the man and woman were charged with possession with intent to distribute heroin and cocaine, possession of ammunition without a firearm identification card, and illegal possession of a stun gun.

While the pair may have some trouble defending the ammunition and stun gun charges, they both appear to have a defense of straight possession in relation to the drug charges. To prove that they each possessed the heroin and cocaine with the intent to distribute it under G. L. c. 94C, §§ 32 and 32A, the Commonwealth must prove the following beyond a reasonable doubt: (1) that the substances were in fact heroin and cocaine; (2) that both the man and the woman respectively possessed the heroin and cocaine with the intent to distribute it to another person or person; and (3) that they did so knowingly and intentionally.

While the police may use information from confidential informants to obtain search warrants, the Commonwealth generally does not call such informants to testify to undercover purchases at trial. The reasoning behind this practice is that the police do not need to provide the identity of a confidential informant to obtain a valid search warrant, as long as the police establish that the informant had a basis of knowledge for the information provided, and that the informant is reliable. In contrast, if the confidential informant were to testify at trial that he or she had purchased drugs from the defendant(s), his or her identity would no longer be confidential, as the informant would be testifying in open court. Given the fact that virtually all confidential informants value their anonymity, they would not be inclined to participate in undercover buys if they knew that they would be called to testify at trial. Assuming the Commonwealth follows this practice in this case, it would have to proceed solely on the evidence obtained as a result of the search, namely, the drugs. Continue reading →

Published on: July 22, 2014

SJC Rules that Smell of Unburnt Marijuana is not Enough to Search People, Cars

By Daniel Cappetta

This past week, in Commonwealth v. Overmyer and Commonwealth v. Craan, the Supreme Judicial Court ruled that the smell of unburnt marijuana alone is not enough to establish probable cause to search a car.

The facts of the cases are as follows: Overmyer was in a car accident in Pittsfield and police responded to the scene. Upon arrival, officers noticed “a very strong odor of unburnt marijuana.” Police asked Overmyer if there was marijuana in the car and he told them that there was a bag of marijuana in the glove compartment. There was no specific information indicating that the bag contained more than an ounce of marijuana. The police believed that Overmyer had more marijuana and proceeded to search his car. Officers found a backpack with marijuana in the back of the vehicle. As a result of the additional marijuana found in the backpack, the police charged Overmyer with possession with intent to distribute a class D substance (marijuana).

Craan was stopped in Dorchester in 2010 by Massachusetts State Police operating a sobriety checkpoint. The trooper involved in the stop smelled unburnt marijuana and asked Craan about it. Craan showed the trooper a bag of less than ounce of marijuana in the glove box. The trooper then ordered Craan out of the car and subsequently searched it. As a result of the search, the trooper located three Ecstasy pills and .38-caliber ammunition inside the car. Craan was charged with possession with intent to distribute a class D substance (marijuana), possession of a class B substance (ecstasy), and possession of ammunition. Both Overmyer and Craan filed motions to suppress, arguing that the smell of unburnt marijuana alone did not provide a sufficient basis for a search of their respective vehicles because possession of less than an ounce of marijuana is not a crime in Massachusetts, and there was no indication that either were in possession of a criminal amount of the drug. Continue reading →

Published on: May 6, 2014

Man Arrested in Framingham for Illegal Entry and Drug Charges

By Daniel Cappetta

According to an article in the MetroWest Daily News, a man attempted to enter a Framingham apartment located at 12 Richardson Circle in the early hours of Saturday morning. A resident reportedly called the police and alleged that someone had broken into his home. The resident stated that he noticed that a man had opened the door to the apartment and was starting to enter. The resident stated that he was scared, but was able to force the door shut and then called the police. When the police arrived, they found the man in the mudroom and arrested him. During the course of the arrest, the officers searched the man and located several bags of marijuana hidden in his sock. The man was subsequently charged with (1) entering without breaking in the nighttime, owner put in fear, under G. L. c. 266, § 17; and (2) possession of marijuana with the intent to distribute, under G. L. c. 94C, § 32C.

To prove that the man is guilty of entering without breaking, the Commonwealth would have to show beyond a reasonable doubt that he entered a building, and put the owner (or in this case, resident) of the building in fear. Entry is defined as the unlawful making of one’s way into a building. Entry occurs if any part of the defendant’s body – even a hand or a foot – physically enters the building. To prove that the man is guilty of possession with intent to distribute marijuana, the Commonwealth would have to prove beyond a reasonable doubt that the substance that was found is in fact marijuana, that the man possessed the substance, that he had the intent to distribute it to another person, and that he did so knowingly or intentionally.

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Published on: March 14, 2014

Office of the Inspector General Issues Report on Hinton Lab Scandal

By Daniel Cappetta

This past week, the Massachusetts’ Office of the Inspector General (OIG) issued its long-awaited report on the Hinton drug lab scandal. The purpose of the OIG’s investigation was to look at how the Hinton lab was run for the 10 years before it was shut down in 2012, identify deficiencies in the practices and protocols, and determine the scope of the malfeasance at the lab.

The OIG found many major problems relating to Annie Dookhan, the disgraced chemist who is currently serving a 3-5 year sentence for her misconduct, and the way in which the drug lab was run. The OIG did not, however, go so far as to say that all results coming out of the lab were suspect. To the contrary, the OIG found that chemist Dookhan was the “sole bad actor.” The report therefore concluded that only the 40,323 cases in which Dookhan was directly involved needed to be “treated as suspect and be subject to careful review.”

Despite this finding, the report revealed that the way in which the lab was run was alarming, to say the least. The report was highly critical of the drug lab’s managers and the Department of Public Health leadership – the OIG slammed the management and operation of the lab, finding grave and systemic deficiencies on virtually every level. The report specifically stated that the lab “lacked formal and uniform protocols with respect to many of its basic operations, including training, chain of custody and testing methods. This lack of direction, caused in part by the Drug Lab’s lack of accreditation, allowed chemists to create their own insufficient, discordant practices.”

The OIG also found that for trafficking cases involving many drug samples, where every sample wasn’t tested, there were problems with how some chemists estimated the total weight.

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Published on: March 10, 2014

SJC Weighs in on Annie Dookhan

By Daniel Cappetta

Earlier this week, the Supreme Judicial Court issued its decision in Commonwealth v. Scott. In the decision, the SJC made it easier for defendants who were convicted of drug offenses involving Dookhan drug certificates, and who are now seeking to vacate their pleas.

In April 2011, Scott was arrested. Following his arrest, officers found what they believed to be crack cocaine on Scott’s person. The suspected cocaine was then sent to the Hinton Laboratory in Jamaica Plain for testing. The lab subsequently issued a drug certificate identifying the substance as cocaine. Dookhan was the primary chemist listed on the certificate (primary chemists conduct preliminary testing and prepare the sample for use in confirmatory tests, which are more comprehensive).

In September, 2011, before Dookhan’s wrongdoing had been made public, Scott pled out. After the lab scandal broke in August of 2012, Scott filed a motion to vacate his plea pursuant to Mass. R. Crim. P. 30(b) on the ground that his plea was not made knowingly and voluntarily, as is required under the law. Specifically, Scott claimed that his guilty plea invalid because he was not informed of Dookhan’s misconduct prior to the plea, and that her misconduct was material to his decision to plead out. The motion judge granted Scott’s motion to vacate his guilty plea and the Commonwealth appealed the judge’s order.

Under Mass. R. Crim. P. 30(b), a judge may grant a motion for a new trial any time it appears that justice may not have been done. Under Massachusetts law, due process requires that a plea of guilty be accepted only where the defendant’s plea was intelligently and voluntarily made. A plea is intelligent if the defendant is aware of the elements of the charges against him, and the procedural protections he is giving up by pleading out. A plea is voluntary so long as it is not coerced. A defendant’s plea may be deemed involuntary because of external circumstances or information that later comes to light, including the disclosure of government misconduct.

In Ferrara v. United States, 456 F.3d 278, 290 (1^st Cir. 2006), the First Circuit Court of Appeals analyzed a motion for a new trial in the context of government misconduct. The First Circuit concluded that when a defendant seeks to vacate a guilty plea as a result of underlying government misconduct, the defendant must show (1) the existence of “egregiously impermissible conduct” by government agents, which pre-dated the entry of his plea; and (2) that “the misconduct was material to his choice to plead guilty.”

To satisfy the first prong, a defendant must show (a) that there was egregious misconduct; (b) by a government agent, prior to the entry of the defendant’s guilty plea; and (c) that the misconduct specifically occurred in the defendant’s case, i.e. the defendant must show a nexus between the misconduct and his case.

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Published on: December 15, 2013

Police Search Framingham Man and Find Various Drugs

By Daniel Cappetta

A Framingham man was arrested last week on various drug charges. According to an article in the MetroWest Daily News, police responded to a report of a loud argument on Carlson Road. When the police arrived, they found the defendant and several other people walking in the area. The police reportedly observed a bag of marijuana hanging out of the defendant’s pocket, about to fall out. The police then seized the marijuana, which consisted of two smaller plastic bags inside a larger bag. After the seizure of the marijuana, the police conducted a further search of the defendant and found a Skoal can on his person, which contained several Adderall pills and a plastic bag of cocaine. The defendant then made some statements about who the can belonged to – first stating it wasn’t his, and then stating that it was for personal use. The defendant also had $370 on his person. He was ultimately charged with: (1) possession of Adderall with intent to distribute; (2) possession of marijuana with intent to distribute; and (3) and possession of cocaine.

Fortunately for the defendant, he may well have a strong argument that the police did not have the right to search him in the first place. He can therefore argue that the evidence that the police found as a result of the search should not be admitted against him. Specifically, the police are not allowed to search people whenever they feel like it – there must be some legal basis for the search to be valid. If the police search a person without a legal basis, any evidence they find is not admissible against the person at trial, and the person can file a motion to suppress to have the evidence excluded.

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Published on: December 4, 2013

SJC Holds that Juvenile Court Judges May Allow Motion to Dismiss Prior to Arraignment

By Daniel Cappetta

For a criminal charge to issue against an individual, a police officer must submit an application to the court for a criminal complaint. The application includes the alleged facts and the charges sought. A clerk magistrate then reviews the application to determine whether there is a sufficient basis for the complaint to issue. The specific legal standard is whether the information presented to the clerk magistrate establishes probable cause to believe that the individual committed a particular crime. If the clerk magistrate finds that there is probable cause, the complaint issues and the individual charged is brought to court and is arraigned on the charges.
An arraignment essentially consists of the court notifying the person of the charges, a plea of not guilty entering, and a bail argument. Once a person has been arraigned, the charge is entered onto the person’s Criminal Offender Record Information (CORI) or, in the case of juveniles, Court Activity Record Information (CARI). Following the arraignment, the case proceeds through the pre-trial process, and ultimately to some sort of resolution, such as a trial, a dismissal, or a plea. The pre-trial process may include a motion to dismiss on the ground that the application for the complaint lacked sufficient probable cause, and therefore the clerk magistrate should not have issued the complaint.

When a motion to dismiss for lack of probable cause is brought, the judge must review the information presented to the clerk magistrate and make his or her own determination as to whether the information was sufficient to establish probable cause. Even where a person wins a motion to dismiss, however, the charge remains on the person’s CORI or CARI. Further, although public access to a person’s CORI/CARI is limited, certain institutions, such as courts, public housing authorities, and certain employers, do have access to CORI/CARI information. Therefore, institutions with such access are able to see that a person has been charged with a crime, including the specific charge, even if the charges are ultimately dismissed for lack of probable cause.

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Published on: November 25, 2013

SJC Rules that Law Reducing School Zone Radius is Retroactive

By Daniel Cappetta

On August 2, 2012, the Massachusetts legislature passed the 2012 crime bill. Part of this bill reduced the minimum mandatory sentences associated with various drug crimes. This included a reduction of the size of “school zone” violations, which carry enhanced penalties for drug crimes committed near a school. The bill specifically reduced the radius encompassed by a school zone from 1000′ to 300′ from the school. Despite the fact that the reduction is a positive change, a number of practical questions about how the new law should be applied remain. One unresolved issue is how to treat pending cases, i.e., cases in which defendants were charged prior to the passage of the law, but convicted after the law was enacted.

In August 2013, the Supreme Judicial Court issued a ruling in Commonwealth v. Galvin that squarely addressed whether the changes in the minimum mandatory sentences should apply to pending cases. This week, in Commonwealth v. Bradley, the SJC reached a similar conclusion in relation to defendants with pending school zone charges.

In Bradley, the police searched the defendant’s dormitory room and recovered marijuana. The search occurred in 2010. The defendant’s room was approximately 700 feet from an accredited preschool facility, which qualifies as a “school” for the purposes of the statute. Shortly thereafter, the defendant was charged with possession with intent to distribute marijuana, and committing a school zone violation – specifically, distributing or intending to distribute a controlled substance within 1000′ feet of a school. The case was still pending at the time that the 2012 crime bill was enacted. After the passage of the bill, the defendant moved to dismiss the school zone violation, arguing that changes in the law – specifically the reduction of the school zone radius from 1000′ to 300′ – applied to pending cases. The trial court judge reported the question to the Appeals Court and the Supreme Judicial Court granted a request for direct appellate review. The SJC then answered the question in the affirmative, holding that the reduction in the school zone radius applied to all cases alleging a school zone violation for which a guilty plea had not been accepted or a conviction entered as of August 2, 2012, regardless of whether the alleged violation occurred prior to the enactment of the law.

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Published on: November 3, 2013

Westborough High School Student Arrested on Drug and Alcohol Charges

By Daniel Cappetta

According to an article in the MetroWest Daily News, an eighteen-year-old student at Westborough High School, was recently arrested for a number of drug related offenses, including possession with intent to distribute marijuana. A school administrator allegedly saw the defendant and two female students enter the defendant’s car, which was parked in the school parking lot, multiple times Wednesday morning. According to the article, the defendant and the two female students smelled like burnt marijuana when they re-entered the school. The administrator then contacted the police, who arrived and looked into the car from the outside. The police reportedly saw a marijuana grinder through the car’s window. Further, a police dog alerted to the presence of marijuana inside the car. The police then entered and searched the car. Officers found a scale, a bong, glass pipes, 4 grams of marijuana, and several empty bags. Bottles of vodka and tequila were also removed from the car. The defendant was subsequently charged with (1) possession of drugs within a school zone; (2) possession of alcoholic beverages on school property; (3) being a person under 21 transporting alcoholic beverages in a motor vehicle; and (4) possession of marijuana with intent to distribute.

Despite the observations made by the school administrator and the police, the defendant may well have a strong defense to at least some of these charges. First and foremost, he likely has a strong argument that the possession with intent to distribute charges should be dismissed. In April of this year, the Supreme Judicial Court explicitly stated in Commonwealth v. Jackson that sharing marijuana with friends is not a criminal offense in Massachusetts. The Court stated that social sharing of marijuana is akin to simple possession, and therefore does not constitute drug distribution. In the defendant’s case, there is no indication that he and the other two students were doing anything other than sharing the marijuana. In particular, they all entered the car together, and they all smelled like burnt marijuana when they returned to the school building. Although the police found a scale, which might indicate an intent to sell, there does not appear to be any other evidence of drug sales. To the contrary, the fact that there was a bong and glass pipes in the car seems to indicate that the marijuana in question was for personal use, as opposed to sale.

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Published on: October 5, 2013

Car Stop in Framingham Yields Heroin

By Daniel Cappetta

According to an article in MetroWest Daily News, two men were stopped in a car on October 1st in Framingham. The operator was driving on Waverly Street when officers on patrol reportedly saw him and knew that he had a suspended license. The officers then stopped the car. After the stop, the officers allege that they smelled fresh marijuana. Although the article does not clearly indicate exactly how the stop unfolded, presumably the men were ordered out of the car. Both men were searched and the passenger had over $500 in his possession. The police also searched the car and found a backpack under the front passenger seat, where the passenger had been sitting. Inside the backpack were seven individually wrapped bags of heroin. Notably absent was any marijuana – fresh or otherwise. Both men were subsequently charged with possession with intent to distribute the drugs. The driver was also charged with driving on a suspended license, subsequent offense (meaning that he had previously been convicted of driving on a suspended license in the past).

Both men have strong defenses. While the police were authorized to stop the car and arrest the driver if they were really aware that he was driving with a suspended license, the search of the car is certainly questionable. If the police choose to tow a car because the driver has been arrested, they may conduct an inventory search of the vehicle, which includes a search of the entire car. There is no indication, however, that this was the purpose of the search in this case – to the contrary, it appears that the police searched the car because they supposedly smelled fresh marijuana. The fact that absolutely no marijuana was found in the car seriously undercuts the legitimacy of this claim. If the police had no lawful basis to search the car, the evidence that they recovered should be suppressed – in other words, the court should refuse to allow the prosecution to use this evidence against either defendant at trial.

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