Massachusetts Criminal Defense Lawyer Blog

Articles Posted in drug possession

Massachusetts Appellate Court Decides Cocaine Possession Case Based on Size of Plastic Bag

September 25, 2021 | by Michael DelSignore

The unfortunate reality is that oftentimes in criminal and civil trials, alike expert witnesses rely on pseudo-science and pseudo-psychology in their testimony. The Massachusetts Appellate Court recently decided the case of Commonwealth v. Delossantos, which dealt with an expert witness’s unreliable testimony about the behavior of drug users,

What happened in the Delossantos case?

Edward Delossantos was on a side corner near Northeastern University when a police officer saw him. The officer observed that Delossantos appeared to be in pain. When the officer approached Delossantos, Delossantos told the officer “they shot my nuts off.” Delossantos groin area was severely wounded, and Delossantos was transported to the Boston Medical Center for treatment. While in the emergency room, a bag of white rocks fell from Delossantos’s groin area. In the bag was thirteen other smaller bags. The white rockers were later analyzed and came back as cocaine.

College and University Police Authority to Search and Arrest in Massachusetts

January 1, 2014 | by Michael DelSignore

As a Massachusetts criminal defense attorney, I defend students arrested by college or university police on criminal charges. Clients are often surprised to learn that campus police – or public safety officers – are limited by Massachusetts state law from many law enforcement duties of regular city and state police officers. This blog will discuss several important factors that an experienced criminal defense attorney would consider when litigating a campus police search and arrest.

College or university police officers are appointed as special State officers under a Massachusetts statute (G.L. c. 22C, § 63) that grants them the same authority to make arrests as regular police officers for any criminal offense within their particular jurisdiction. But although students have more limited rights to privacy because of the college’s interest in keeping the community safe, this does not necessarily translate into more police power for campus police. In fact, the courts have consistently held that campus police officers are more restricted in making arrests and searching a student’s dorm room or possessions.

A good example of the statutory limits on a campus officer’s search and arrest authority is discussed in a case that involved Boston University police officers situated outside the University’s property and near an interstate highway. In Commonwealth v. Hernandez, two BU officers observed Hernandez pumping gas on a public road near an interstate highway outside the university grounds, and decided to check his registration. When the officers discovered that an arrest warrant was issued for Hernandez on a misdemeanor, they stopped and arrested Hernandez and conducted an inventory search of his vehicle. The officers discovered evidence of drug possession and distribution. Hernandez moved to suppress the evidence discovered in his vehicle, and the trial judge excluded them from admission.

Lab Flaws Leave Thousands of Massachusetts Criminal Cases in Jeopardy

September 6, 2012 | by Michael DelSignore

The bottom may have fallen out on thousands of criminal cases relying on drug testing analysis conducted at state labs, after a chemist was found flouting testing protocols. Both she and two of her supervisors have been placed on administrative leave, leaving thousands of convictions and ongoing criminal cases open to the possibility of dismissal.

Massachusetts criminal defense lawyers know that there are many criminal cases in which conviction may be contingent on whether drugs were found in a person’s system, what kinds of drugs and in what levels.

One example are DUI cases alleging prescription or illegal drug use.

Other times, laboratory results are used to determine whether a substance is an illegal narcotic. So if police find a white, powdery substance in a vehicle during a traffic stop, a conviction for a charge of possession of cocaine is going to be based largely on whether chemists proved that the substance was cocaine.

This is true for many aspects of a case. An experienced defense attorney will challenge evidence presented or allegations made by law enforcement officers, experts, alleged victims and other witnesses. One weak link can be enough to force a reduction or dismissal of charges, or at least a favorable plea deal. Failure to challenge the charges against you means the state is relieved of having to prove much of anything.

What happened here was that a single chemist, who has been working at the Massachusetts State Police crime lab since 2003, apparently had mishandled drug evidence and attempted to alter an evidence log. She reportedly failed to record the movement of drugs in and out of the evidence room. When supervisors discovered a problem, the errors were mysteriously fixed the following day.

The chemist resigned in March, and although she hasn’t been charged with anything, the state’s Attorney General’s Office has opened a criminal investigation into the matter. The woman’s husband was quoted by media as saying she is being used as a “scapegoat,” suggesting problems at the lab were far more widespread than the misdeeds of one person.

While officials believe 90 samples of drugs were jeopardized over the course of one day, the implications are that the problems may be systemic.

Police are working to gather a compilation of cases the chemist worked on during her time there. They and prosecutors will then be expected to go back and re-examine whether her work was central to the case. If so, they will need to inform defense attorneys, who can then either file a motion for a new trial or file a motion to vacate a guilty plea.

In addition to jeopardizing the prosecution in these cases, it also is likely to slow the progress of cases that are ongoing, as state officials work to sort through the mess. It also will no doubt allow defense attorneys to raise questions in the future with regard to the accuracy of state lab results.

Defense attorneys in Boston understand that many government crime labs, due to a lack of funding and lowered staffing levels, are working under difficult and high-pressure conditions. However, when a person’s freedom is on the line, we expect a higher standard.

At the end of the day, lab workers have an inherent bias because they are essentially working for law enforcement (in this case, the Massachusetts State Police). That’s why defense attorneys will often request an outside, independent source for testing in cases where that evidence is key. Those who work in the industry say that safeguards simply aren’t in place to ensure that lab bias doesn’t consistently skew in favor of prosecutors.
Continue Reading ›

Brockton Couple Accused of Making Drug Distribution out of Minivan

December 24, 2011 | by Michael DelSignore

A Brockton couple was recently arrested in Whitman and now face charges of drug distribution from the back of their minivan, according to the Taunton Daily Gazette.

Charges of drug distribution or drug sales in Stoughton can be serious and can increase in severity based on many factors. Among them are the quantity of drugs allegedly sold, what type of drug, where the drugs are being sold and if there are other factors that may be used by police to enhance the penalties, such as if children are present, guns are used or the deal occurs in close proximity to a school.

Stoughton criminal lawyers understand that the government has been fighting the “War on Drugs” for decades and lawmakers are continuously updating and increasing drug crime penalties. A good portion of the number of people in our state prison system are there because of drug offenses. In some cases, treatment in lieu or jail is an option. In other cases, challenging evidence and preparing a case for trial offer the best options for a successful outcome.

There are defenses to these crimes, just like any other crime. In cases where an informant is used by law enforcement, there may be witness credibility issues that arise. If police don’t properly obtain a warrant to search a home or vehicle, evidence may be subjected to a suppression motion. Rules must be followed and if overzealous police officers break them, that could benefit the defendant.

In this case, the newspaper reports, police received a tip that a man was selling oxycodone out of his vehicle after he was convicted last year of a similar offense. Police obtained a search warrant for the Dodge Caravan and stopped him after he pulled into a restaurant’s parking lot.

Police allege that the driver, 43-year-old Kevin J. Connor, tried to run off, throwing a bag of oxycodone pills worth $400 onto the ground as he ran. Detectives found more pills, cash and two cell phones in the vehicle.

Last year, he received a suspended jail sentence for dealing oxycodone. Tina Foye, 42, a passenger in the minivan and who lives with Connor, was also arrested. The WEB Major Crimes and Drug Task Force — with officers from Whitman, West Bridgewater, East Bridgewater and Bridgewater — made the arrests.

The group has sought out oxycodone arrests, making it a focus of investigations the last 18 months, an officer said. Oxycodone is similar to morphine in its effect.

Connor recently pleaded guilty to a charge of possession with intent to distribute oxycodone after police raided his apartment and found 30 pills, plus marijuana and cash. He was sentenced to 18 months in jail, but the sentence was suspended by a judge in Brockton District Court.

The news article doesn’t make clear what charges the couple may face, though it implies Connor will face new charges of distribution of oxycodone. Charges for Foye, who was listed as a passenger in the minivan, are unclear.

For the passenger, who may have nothing to do with the drug sales, there may be a strong defense. For the driver, things may be different. But in a case such as this, the search warrant may be the most important factor. Finding out what officers based the affidavit for the search warrant on and how solid the information was will be key to fighting the initial stop and search.
Continue Reading ›

Seven Charged in Drug Buying/Selling Sting in Framingham

July 30, 2011 | by Michael DelSignore

Seven people, including a man the Commonwealth believes has a history of drug offenses, were recently arraigned in Framingham District Court on charges they were buying and selling heroin and cocaine, The MetroWest Daily News reports.

Drug charges in Framingham and throughout Massachusetts are serious crimes that can subject defendants to penalties that can range from months in jail to years in prison.

Quickly hiring an experienced and aggressive Framingham Drug Defense Attorney is the best strategy to combat the charges and protect a defendant’s rights.

According to the story, prosecutors say detectives followed Luis Hernandez, 41, of Natick and saw him complete what they believed was a drug deal in the parking lot of his apartment with co-defendant Gina Stucchi, 32. In the car with Stucchi were co-defendants Jennifer Mackey, 36, and Maria Woods, 35.

When detectives followed the vehicle, they allegedly found the three people in the car, about to inject themselves with cocaine. One of the defendants told police they had just purchased cocaine from Hernandez.

Police then followed Hernandez, who was riding in an SUV containing his roommate Geraldine Martinez and Alisha Conti, 24. They dropped Conti off at Lowe’s in Framingham and after Hernandez sold drugs to an unknown man in Natick, the vehicle returned to Lowe’s, where Hernandez met another co-defendant, William Roberts, 47, of Natick.

Police say they witnessed another drug deal and when they approached to make an arrest; they said they saw Hernandez swallow what appeared to be a plastic bag of cocaine.

Martinez allegedly admitted there were drugs in the car and told police Hernandez kept drugs in a safe in their apartment. Conti allegedly told police she got heroin from Hernandez. Police searched the safe and found heroin, cocaine and drug paraphernalia.

Hernandez was charged with distributing heroin, possessing heroin with the intent to distribute, conspiring to violate the state’s drug laws and resisting arrest.
Martinez was charged with possessing heroin with intent to distribute, possessing cocaine with intent to distribute, distributing cocaine and conspiring to violate drug laws.
Stucchi, of 107 Concord St., Holliston, was charged with distributing cocaine (subsequent offense) and conspiring to violate state drug laws.
Woods, of 260 Union Ave., Framingham, was charged with possessing cocaine with intent to distribute, possessing cocaine, intimidating a witness, providing police with a false name and conspiring to violate drug laws.
Roberts, of 3 Lake St., Natick, was charged with possessing heroin, resisting arrest and conspiring to violate drug laws.
Mackey, of 28 Dana Road, Framingham, was charged with distributing cocaine and conspiring to violate drug laws.
Conti, of 31 McAlee Ave., Framingham, was charged with possessing heroin.

This case will likely come down to police observations, if they were well-documented, as well as the statements of the co-defendants. First off, the defendants would have been better off had they not talked to police. Providing a statement to police is dangerous because it can be used against the defendant in court and it almost always hurts them.

In these cases, it is sometimes possible to refute the charges if a person is simply inside a vehicle at the time of an arrest. But admitting fault to an officer will have a negative effect on the probability of winning a case.

There are times when a statement and other evidence in drug cases can be tossed out. So, consult with an experienced Framingham Criminal Defense Attorney before doing anything else. Reviewing your case and being by your side from the beginning gives the best chance at a positive resolution.
Continue Reading ›

Massachusetts Supreme Judicial Court holds that smell of burnt marijuana is insufficient to justify an exit order

April 19, 2011 | by Michael DelSignore

The Massachusetts Supreme Judicial Court addressed an important legal issues that arose once the Massachusetts legislature decriminalized simple possession of under one ounce of marijuana. Does the smell of burnt marijuana justify an order that a motorist exit a motor vehicle. In the case of Commonwealth v. Cruz, decided April 19, 2011, the SJC held that the smell of burnt marijuana alone does not justify an exit order.

The Cruz case involved the following facts. The defendant was a passenger in a car parked in front of a fire hydrant. The windows were rolled down in the car and the officers could see the driver light a cigar known to mask the smell of marijuana. The officers recognized the defendant and testified at the motion to suppress hearing that they saw the defendant smoking marijuana earlier in the day. Significantly, the defendant was not known to the officers as a dangerous person and even was counseled by one of the officers to “do more than hang out.” The driver was unknown to the officers. The officers further testified at the motion hearing that the defendant was smoking a cigar, that they could smell an odor of burnt marijuana and that the driver appeared nervous. The defendant and the driver were ordered out of the car.

In finding the exit order improper under Article 14 of the Massachusetts Declaration of Rights, the court stressed that by decriminalizing possession of under an ounce of marijuana the voters changed the status of the offense, meaning that the voters intended possession of marijuana under an ounce to be treated different from other serious drug crimes. Accordingly, the SJC concluded that the changed status of the offense implicates police conduct and requires some additional facts other than the smell of burnt marijuana to justify an exit order.

Under Massachusetts law, police must have a basis to support an exit order under Article 14 of the Declaration of Rights. An exit order is permissible in Massachusetts in one of three circumstances:

1. The police have a reasonable belief that their safety is in danger;
2. The officer has reasonable suspicion that the defendant is committing a criminal offense, other than a traffic violation.
3. The officer can order a defendant from the car if there is a legal basis for a warrantless search of the vehicle under the automobile exception to the warrant requirement.

Massachusetts provides greater protections to citizens under Article 14 than under the Fourth Amendment to the United States Constitution as under the Fourth Amendment as interpreted by the United States Supreme Court, the police do not need any basis to order a motorist from the vehicle.

In Cruz, the Commonwealth argued that the exit order was justified based on the officer’s belief that the defendant was engaged in criminal activity. The SJC held that there were no facts that would support the conclusion that a criminal amount of narcotics were in the vehicle. Further, the court rejected the reasoning of other State courts finding probable cause to believe a vehicle has any quantity of marijuana is sufficient to justify a warrantless search based on the likely presence of other contraband. In rejecting these other State court decisions, the SJC stressed that the standard to determine the validity of a warrantless search is the same used by a magistrate issuing a warrant. Applying this reasoning, the SJC concluded that under the facts of the case a magistrate could not issue a search warrant.
Continue Reading ›