Drug Crimes

Published on: October 1, 2013

Man Stopped in Framingham With Over Seven Pounds of Marijuana

A Weymouth man was pulled over in Framingham on September 23, 2013 for what should have been a routine traffic stop. According to an article in MetroWest Daily News, the man allegedly rolled through a stop sign on Franklin Street. Police patrolling the area observed the traffic infraction and pulled him over, presumably to give him a citation. According to the police, however, the man appeared to be nervous and the officer ordered him out of the car. After the exit order, the officer searched the man. The officer found over $5,000 in his pocket, and also allegedly saw marijuana in a jar and a glass pipe inside the vehicle. The officer called for back up and the car was searched. Police recovered between seven and eight pounds of marijuana in the trunk. The police also recovered an additional $2,000 from inside the car. The man was charged with possession of marijuana with intent to distribute, a school zone violation, and driving with a suspended license, subsequent offense. He was arraigned in Framingham District Court and held on $8,000 bail.

While many would argue that the amount of marijuana found in the car is indicative of possession with an intent to sell rather than mere personal use, the Commonwealth may nonetheless have trouble proving its case. Specifically, the constitutionality of the exit order, search of the man’s person, and subsequent search of the car is questionable. Under Massachusetts case law, the police are only allowed to order someone out of a car if the officer has cause to believe that the person has committed a crime, is armed and dangerous, or there is some pragmatic reason that requires the person to exit (for example, if the police have a legal basis to search the car and need the person to get out in order to do so). Although the police claim that the man was nervous, Massachusetts judges have repeatedly stated that appearing nervous when interacting with the police is a perfectly understandable reaction and that nervousness alone is not a lawful basis for any sort of search or exit order. Without some additional indicators that the man was involved in some sort of criminal activity or was a danger, the police had no legal basis for ordering him out of the car.

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Published on: September 11, 2013

SJC Rules that Law Reducing Mandatory Minimums for Drug Offenders is Retroactive

By Daniel Cappetta

In August 2012, the Massachusetts legislature passed the 2012 crime bill, which had both a positive and negative impact on the law. On the one hand, the bill amended sentencing for violent criminal offenses, creating the “three strikes” rule. This rule means that offenders that are convicted of certain violent offenses two or more times, and sentenced to 3 years or more in state prison on each of those convictions, now face life without parole if convicted a third time as a result of this bill. On the other hand, the bill reduced the minimum mandatory sentences associated with various drug crimes, and reduced the size of “school zone” violations, which carry enhanced penalties for drug crimes committed near a school, from 1000′ to 300′ from the school.

While the decreases in minimum mandatory sentences were undoubtedly a positive change, some uncertainty remains about the bill’s impact on the law. For example, anyone who was charged with a drug offense after the bill was passed will clearly benefit from the amendments to the law. But what about people charged prior to August 2012, but convicted after the passage of the law? And what about people serving sentences for drug offenses or school zone charges at the time the law was passed? There are many questions remaining in regard to people falling into these categories.

On August 23, 2013, the Supreme Judicial Court answered one of these questions in Commonwealth v. Galvin. In Galvin, the defendant was charged with selling cocaine to an undercover officer. The sale took place on June 3, 2011. The defendant was subsequently indicted for distribution of a class B substance, and for being a subsequent offender (i.e., having a previous conviction for distribution, or possession with intent to distribute). At the time the indictment was issued, the minimum mandatory sentence associated with the subsequent offender charge was 5 years. Therefore, if the defendant were convicted, the judge would have no choice but to sentence him to at least 5 years, and up to ten, in state prison.

The 2012 crime bill amended the law while the defendant’s case was pending, reducing the minimum mandatory sentence associated with his charge to 3.5 years. Specifically, on August 22, 2012, ten days after the bill was passed, the defendant went to trial on the charges and was convicted. The Commonwealth asked the court to impose the mandatory minimum sentence associated with the earlier version of the law – 5 years. The court declined to do so and imposed the minimum mandatory sentence associated with the amended version – 3.5 years. The Commonwealth claimed that the sentence was illegal and appealed.

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Published on: June 18, 2013

Massachusetts student facing drug charges following school sweep

By Daniel Cappetta

Police conducted an unannounced drug sweep on Friday, June 14th at Algonquin Regional High School, according to an article in the MetroWest Daily News. The sweep was conducted by police from both Northborough and Southborough Police Departments, as well as Massachusetts State Police K-9 handlers with their drug detection dogs.

In one boy’s locker at Algonquin Regional High School, police reportedly found marijuana in a package. The boy was then reportedly called out of class, and police found more marijuana concealed in foil wrappers in his backpack. The student was charged with possession of a Class D controlled substance with intent to distribute.

The sweep was reportedly part of a larger school safety initiative. Police announced on February 11th that drug searches would be forthcoming. The first drug search occurred on March 14th. Students were reportedly aware of the date and time that the drug search would occur. Police also reportedly announced that criminal prosecution would follow any illegal drugs that were found, and announced to students that future unannounced drug searches would occur, as well. Friday’s drug search was reportedly the first unannounced drug search conducted at the school.

Laws concerning marijuana have become increasingly muddled throughout Massachusetts and much of the rest of the country. Efforts to legalize marijuana have left many laws in conflict at the state and federal levels. Additionally, laws in Massachusetts confuse many, due to the decriminalization of small amounts of marijuana. Possession of one ounce of marijuana or less is not considered a crime in Massachusetts. However, the packaging of those small amounts of marijuana are important because possession with intent to distribute is still a crime. Intent to distribute is often determined by the amount, as well as the way that the marijuana is packaged. Likely because this student’s marijuana was packaged in foil wrappers, police determined that he was intending to distribute the marijuana. The article does not state how much marijuana the student possessed or whether any other items, such as scales were in his possession.

Possession with intent to distribute is a more serious crime than simple possession of a drug. Possession with intent to distribute is a felony that can result in jail time, although jail time is not mandatory with this charge. Because this student is a minor, he may not face penalties as serious as an adult in this circumstance. For an adult, this charge can certainly be life-altering. The article does not state whether the student has prior criminal convictions in his record. If he does, he may face more serious penalties than if this is his first time. Also, the location of the crime is also important. Possession with intent to distribute in a school zone is more serious than in other locations, though the article does not state whether he is facing that charge.

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Published on: April 16, 2013

Supreme Judicial Court Rules Social Sharing of Marijauana not a Crime

By Daniel Cappetta

In 2008, Massachusetts decriminalized the possession of marijuana in amount of one ounce or less. Since the decision, many question have remained about how this ruling affects other aspects of Massachusetts laws concerning marijuana. A recent article details a few cases that have recently come before the Supreme Court of Massachusetts for clarification.

Over time, the Massachusetts Supreme Judicial Court has handed down rulings that have helped to clarify those questions. I have written extensively about those changes as they have occurred. The latest rulings about marijuana from the SJC help clarify the laws regarding social sharing of marijuana. Additionally, the SJC has ruled that some statements given to police and some evidence seized in searches are not admissible in court against the defendants because these defendants came to the attention of the police due to civil infractions, rather than criminal violations. However, the SJC also stated once again that cultivating marijuana is still illegal.

Hempfest, an annual event in the Boston Common, involves many people publicly smoking marijuana. Many of these people share their marijuana with each other. Kityan Jackson, a Hempfest attendee, was seen by police sharing a joint with friends. Officers then searched his backpack without a warrant. Upon searching his backpack, officers found small amounts of marijuana packaged in small, individual bags in a quantity that totaled less than an ounce.

Jackson was charged and prosecuted for possession of marijuana with intent to distribute. However, in one of the recent rulings, the SJC sided with Jackson and set aside his conviction. The reason that he cannot be convicted of this offense is that police first approached Jackson due to a civil infraction–sharing a joint with friends. Sharing a joint is not a criminal offense in Massachusetts. In the unanimous ruling, the SJC proclaimed that social sharing of marijuana is akin to simple possession and does not constitute drug distribution. There is no buyer or seller in social sharing of marijuana as there is in drug distribution. Additionally, and crucial to Jackson’s case, observing the social sharing of marijuana does not give police justification to conduct a warrantless search.

In two more cases, and using the same reasoning as in Jackson’s case, the SJC held that prosecutors cannot introduce evidence against defendants that were gathered as a result of police approaching people who have engaged in civil violations. One case involved a defendant who was stopped for a broken headlight and another involved a man who was approached due to a curfew violation. Both cases involved police conducting warrantless searches after approaching the individuals’ vehicles and finding small quantities of drugs and weapons. All of the evidence that was found subsequent to police approaching the individuals for civil infractions was found to be inadmissible.
However, cultivation of marijuana is still illegal in Massachusetts, as the SJC made clear in the case of Kenneth J. Palmer Jr. Police found marijuana growing in Palmer’s closet in 2010. The marijuana that police found in the closet was of less than one ounce. However, officers also found that he had outfitted his closet with lights, a thermometer, and empty plastic bags.

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Published on: March 8, 2013

New Dog Sniff Cases to Impact Search and Seizure Law in Massachusetts Drug Cases

By Daniel Cappetta

The Supreme Court will soon decide whether police violate the Fourth Amendment by bringing a drug dog to the front door of a suspected marijuana grow house to execute a dog sniff, and the implications will be important for persons accused of drug crimes in Massachusetts and elsewhere.

The Court heard argument in the case of Florida v. Jardines, one of two recent dog sniff cases, in October 2012. The other case, Florida v. Harris, was decided in February 2013, with the court holding that the government does not need to produce records of a drug dog’s field performance to establish reliability. Oral argument from Jardines suggests a result more favorable to criminal defendants and those who care about the right to privacy.

In Jardines, police received a tip that the defendant’s home was being used to grow marijuana. Based on nothing more than that tip, police went to Jardines’ home with a drug detection dog. Police brought the dog onto the front porch, and the dog alerted on the front door. Police then obtained and executed a warrant to search the house and found evidence of a marijuana- growing operation. The Florida Supreme Court determined that, in this context, use of the dog was an unreasonable search. That court relied on Kyollo v. United States, in which the Supreme Court held that police use of a heat-sensing device aimed at the exterior of a house to investigate a suspected marijuana grow operation was unconstitutional. Florida officials are asking the Supreme Court to rule that, even at a home, a dog sniff is not a search at all.

At argument, the Justices seemed to be reluctant to adopt the government’s position that a dog sniff executed on a front porch is not a search. Much of the Justices’ questioning related to the academic question of whether the officer’s bringing the dog to the door amounted to a trespass. Justice Scalia thought that it would be a “search” for a police officer, with an intent to smell for drugs, to go up to a door with or without a dog. Justice Sotomayor noted that officers doing “knock-and-talks” are usually looking for something inside the home.

Based on the argument, my guess is that the defendant will win this one. However, as a Massachusetts criminal defense lawyer, I am still concerned about the disturbing possibility of ever-increasing privacy invasions. Consider the frightening possibility of the police going door to door with drug dogs who, in light of Harris, might not even have a history of accurate field alerts. If the Supreme Court rules in favor of the government in Jardines, then there would seemingly be nothing preventing police from doing just that.

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Published on: February 16, 2013

Three Men Charged with Larceny and Drug Crimes in Marlborough

By Daniel Cappetta

Three men were charged with larceny from a person, conspiracy to violate drug laws, and possession of more than an ounce of marijuana on February 3rd, according to the MetroWest Daily News. Two of the men are both reportedly from Rhode Island. The third is reportedly from Framingham. Police allege that the men traveled to Marlborough to purchase $2,000 worth of marijuana, but robbed their dealers instead.

Police were allegedly responding to a report of a domestic disturbance on Beach Street in Marlborough when a man and a woman flagged an officer down. The woman allegedly told the officer that a man had stolen her purse and run away with two other men toward Williams Street. Officers reportedly followed footprints in the snow to find the men in the Holiday Inn parking lot on Lakeside Avenue.

Police allege that one of the men that was arrested matched the description given to them by the woman whose purse was allegedly stolen. Police also allegedly found two pounds of marijuana and an air pistol on or near that individual.

The man matching the description then reportedly admitted to the police that he and the other two individuals had driven to Marlborough for the purpose of conducting a drug deal. The man allegedly stated that the three of them had made an agreement with the alleged drug dealers in which the men would pay the dealers $2,000 for the marijuana. However, the man allegedly stated that he did not have the money and had no intention of paying for the marijuana. He allegedly said he grabbed a paper bag containing the marijuana from the woman and ran away. The man allegedly contended that the air pistol police reportedly found on him had been tucked into the front of his pants and had not been shown during the alleged robbery.

All three men were reportedly released on personal recognizance at their arraignment in Marlborough District Court on February 4th.

The man and woman who flagged down police had not been charged when police released arrest logs Monday morning.

In order to prevail on the larceny from a person charge, prosecutors will have to prove that each of the men took property that was owned by someone other than him and that he intended to deprive that person of the property permanently. To prove the conspiracy to violate drug laws, the prosecutors will have to prove beyond a reasonable doubt that each of the three men joined in an agreement or plan, the purpose of which was to violate Massachusetts drug laws, and that each of the men knew the plan was unlawful and intended to help carry it out. Finally, to prove the charge of possession of more than an ounce of marijuana, prosecutors will have to prove beyond a reasonable doubt that each of the men possessed marijuana in an amount greater than one ounce. The other two men may have a defense against the possession charge since the marijuana was found on or near the first man. However, it is also possible for the charge to be proven against them despite the marijuana being in a companion’s possession. The three men are facing serious charges and could face the punishment of incarceration in prison or a house of corrections.

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Published on: January 31, 2013

Franklin Drug Lab Chemist Facing Multiple Charges

By Daniel Cappetta

Annie Dookhan pleaded not guilty to fifteen charges on Thursday December 20th at Suffolk Superior Court. The MetroWest Daily News has been following Dookhan’s case. Dookhan is the former Massachusetts drug lab chemist accused of tampering with evidence in a drug testing scandal that threatens thousands of criminal cases. Dookhan has been charged with tampering with evidence and perjury. She was indicted by a grand jury on Tuesday, December 18th. Dookhan of Franklin, Massachusetts faces another twelve charges in other counties.

Dookhan, 35, pleaded not guilty to one count of perjury, five counts of obstruction of justice, one count of making a false claim of holding a master’s degree and eight counts of evidence tampering. Dookhan was released on $10,000 bail in September at the time of her arrest. Dookhan had previously but issued a 6:00 p.m. curfew. However, the Judge extended her curfew to 10:00 p.m. on December 20th. Dookhan has also been ordered to wear a GPS tracking device.

State prosecutors allege Dookhan fabricated test results and tampered with evidence when she tested substances for criminal cases. Judges throughout the Commonwealth have released approximately 200 defendants from custody over the last few months. Judges have put cases on hold for these defendants while this case is evaluated. The state is also reviewing thousands more cases that may be affected by Dookhan’s alleged crimes. The lab has been shut down since August 2012.

State police shut down the lab in August. Many more than the 200 cases that were put on hold since then could be affected. Authorities say Dookhan tested more than 60,000 samples involving 34,000 defendants during her nine years at the lab.

During Dookhan’s arraignment in September 2012, an Assistant Attorney General alleged that 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 Dookhan’s work. The Assistant Attorney General also alleged that Dookhan admitted to state police that she would take shortcuts in her work, such as only testing five out of fifteen to twenty samples and then listing them all as positive for the presence of a drug.

She also allegedly acknowledged that sometimes, if a sample tested negative, she would take known cocaine from another sample and add it to the negative sample in order to make it test positive. Dookhan’s alleged motive in this case is that she wanted to be seen as a good worker in the lab.

Dookhan was suspended from lab duties after she allegedly was caught forging a colleague’s initials in June 2011. She resigned in March during an internal investigation by the Department of Public Health.

Dookhan’s case undermines the validity of drug testing in criminal cases. Hundreds, or even thousands, of cases in Massachusetts will be affected by the claims against Annie Dookhan.

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Published on: November 27, 2012

Framingham Men Charged with Drug Crimes

By Daniel Cappetta

A Framingham man was arrested on Howard Street at 10 p.m. on Monday, November 19th after allegedly signing for two large boxes that were delivered to him by an undercover Framingham Police detective dressed as a UPS driver, according to a recent article in the MetroWest Daily News. The boxes allegedly contained about $700,000 worth of cocaine and marijuana.

Police also arrested a second man (from Quincy) after he allegedly came to pick up the boxes from the Framingham man.

Both of the men were charged with trafficking cocaine, possession of marijuana with intent to distribute, and conspiracy to violate Massachusetts’s drug laws.

The Quincy man was ordered held on $25,000 bail. The Framingham man received $50,000 bail for the charges of this case. However, the Framingham man has been ordered held without bail on a probation violation for failing to pay $800 in fines for a drunken driving chase in July.

The two men are both due back in court on Dec. 13 for a pretrial conference. The Framingham man will also have a probation violation hearing for his former charges.9
Police in this case gathered evidence prior to the arrests. Investigators from the San Bernadino, California, Sheriff’s office reportedly contacted the Framingham Police Departemtn about boxes containing large amounts of marijuana being sent to 243 Howard St. in Framingham. The boxes reportedly matched past shipments that had been seized. A police officer reportedly posed as a UPS employee and contacted the recipeient of the boxes. The recipient, allegedly the Framingham man, asked for the packages to be dropped off. He was arrested when he allegedly signed for the packages.

According to police, the Framingham man told police he is paid to “catch packages,” which is a term used in the drug trade to refer to dealer having packages delivered to others to protect their identities. He also allegedly told police that he had received around ten shipments for the person and had received around twenty total packages of drugs.

The Quincy man was arrested an hour later after he reportedly arrived to pick up the drugs. He allegedly told police he was paid to pick up the package after the first man telephoned a different person to pick up the drugs.

The two men are facing serious charges and imprisonment. Drug trafficking is the most serious drug charge under Massachusetts law. In order to prevail on the trafficking charge, prosecutors will have to prove that the men possessed cocaine with an intent to sell it and that the amount of cocaine meets the threshold to constitute trafficking. If convicted of the charge of trafficking cocaine, the men are facing imprisonment. The packages contained approximately thirteen pounds of cocaine, which means that the men are facing a mandatory minumum of fifteen years in prison with a possibility of receiving a twenty-year sentence. To prevail on the possession of marijuana with intent do distribute charge, prosecutors must prove that the men had possession of marijuana and had the intent to distribute it. If convicted of this charge, they are facing facing possible jail time, but this charge does not carry a minimum jail sentence.

Prosecutors may have a difficult time proving their case against the men due to the fact that they will have to prove that the men knew that drugs were in the packages they were coming to pick up. Because the men each allegedly confessed to picking up the packages for money, prosecutors may have an easier time than they would have if the men had not given those statements. However, the strength of the prosecutors’ case may be determined by what exactly the men said to each other on the phone and what they said to the police. Also, statements can often be suppressed if the suspects had not been read their Miranda rights or if they were not fully aware of their rights before they spoke to police.

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Published on: November 25, 2012

Wellesley Doctor Facing Multiple Charges Following Accident

By Daniel Cappetta

A recent article in the MetroWest Daily News tells the story of an accident that occurred recently in Wellesley. The woman involved in the accident was arrested Friday, November 9 at 8:45 a.m. for allegedly driving under the influence of alcohol and drugs. The woman is an emergency room doctor and was arrested on her way to work at Newton-Wellesley Hospital. According to witnesses, the woman’s car struck multiple cars, a fence, a post, and a tree; The woman’s car was airborne at one point before triggering a multiple-car crash at the intersection of Washington and State streets, outside the Whole Foods parking lot. One driver in the crash was reportedly taken to Newton-Wellesley Hospital with injuries but was later released.

While speaking with the woman after the crash, officers allege that they could detect the smell of alcohol. The woman agreed to perform and subsequently failed two field sobriety tests, police said. The article does not state whether the police performed a breathalyzer test. If the woman did not register as .08 or above on a breathalyzer test, the police will have to prove that she was operating under the influence of an intoxicating liquor in order to prove the OUI charge pertaining to alcohol.

Police charged The woman with driving under the influence of alcohol, driving under the influence of drugs, operating recklessly so as to endanger, leaving the scene of property damage and leaving an accident scene after property damage. These charges reportedly stemmed from the woman’s driving, the significant damage to her car and the other cars involved, her slurred speech, her glassy eyes, and the slight odor of alcohol on her breath. The woman was reportedly also charged with possession of a class C substance, and possession of a class E substance.

In order to prove the OUI charge pertaining to drugs, prosecutors will have to prove that the woman consumed enough of a drug to reduce her ability to operate her vehicle safely. To prove that she operated a vehicle recklessly, the prosecutors must prove that she was operating her vehicle in a place where the public has a right of access and that she did so recklessly. Just because an accident occurred does not mean that she operated her vehicle recklessly. Prosecutors must prove that she was at fault and that her actions rose to the level of recklessness. To prove the possession charges, prosecutors must prove that the substances were controlled substances, that she possessed some perceptible amount of the substance, and that she did so knowingly.

Police allegedly found prescription drugs in the woman’s possession during the booking process and in her car during an inventory search. Some of the drugs were allegedly in prescription bottles, while others were not. Prosecutors reportedly stated in court that they believe the woman had been prescribing drugs to herself.

The woman was arraigned Tuesday, November at the Dedham District Court and pleaded not guilty to her charges. Prosecutors asked that the woman be held on $10,000 bail, but a judge released her on personal recognizance. She is due back in court on Jan. 7.

The woman is facing numerous serious charges. She is facing various fines and, potentially, imprisonment. However, the woman may be able to beat some of the charges she faces. If the police did not give her a breathalyzer test or a blood test, she may be able to overcome the OUI charges she faces. Additionally, if she is able to get the possession evidence suppressed from the searches, she may be able to overcome the possession charges, as well.

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Published on: November 15, 2012

Massachusetts Medical Marijuana Ballot Question Passes

By Daniel Cappetta

On Tuesday Massachusetts residents voted to pass a ballot initiative allowing the use of medical marijuana. The new law eliminates state criminal and civil penalties for the medicinal use of marijuana. The law will go into effect on January 1, 2013.

In order to get a prescription for medical marijuana, a person needs to have a qualifying illness, such as cancer, Parkinson’s disease, HIV, or AIDS. The person must also have a written certification from a physician with whom the patient has a doctor-patient relationship. The patient is allowed to possess up to a sixty-day supply of marijuana for medical use.

The law allows non-profit medical marijuana treatment centers to grow, process and provide marijuana to patients or their caregivers. The law also requires the Department of Public Health (DHP) to issue a cultivation registration to qualifying patients whose access to a treatment center is limited by financial hardship, physical inability to access reasonable transportation, or distance. The patients or their caregivers are only allowed to grow enough plants for a sixty-day supply of marijuana. DPH could revoke any registration for a willful violation of the law. Fraudulent use of a DPH registration could be punished by up to six months in a house of correction or a fine of up to $500, and fraudulent use of a registration for the sale, distribution, or trafficking of marijuana for non-medical use for profit could be punished by up to five years in state prison or by two and one-half years in a house of correction.

Despite the major changes this new law brings to Massachusetts, there is much that this new law does not do. The law does not give a person immunity under federal law. It does not supersede the Massachusetts laws prohibiting possession, cultivation, or sale of marijuana for nonmedical purposes. The law does not allow the operation of a vehicle while under the influence of marijuana. The new law also does not require a health insurer or government entity to reimburse for the costs of the medical use of marijuana. The law does not require any health care professional to authorize the medical use of marijuana. The law does not require any accommodation of the medical use of marijuana in any workplace, school bus or grounds, youth center, or correctional facility. Finally, the new law does not require any accommodation of smoking marijuana in any public place.

The new law will likely lead to confusion, due to the supremacy of federal laws, as well as those Massachusetts laws that supersede the medical marijuana law. Other states, such as California, have had residents face federal charges, despite the state laws that allow the sale and use of medical marijuana.

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