Boston Criminal Attorney Blog

In June 2009, the U.S. Supreme Court (SCOTUS, among the legal profession,) issued a landmark decision in the area of testimonial evidence in drug prosecutions, Melendez-Diaz v. Massachusetts. The ruling in that case essentially held that certificates of drug content analyses produced by a laboratory at the request of the prosecution, and introduced into evidence by the prosecution to prove what that substance is, are inadmissible without the in-court testimony of the laboratory technician who conducted the testing. Such drug analysis certificates are attached to an affidavit, signed by the chemist or laboratory technician who conducted the testing, stating that the analysis report is accurate.

Up until this ruling, prosecutors in Massachusetts who were trying Massachusetts drug offense charges, would simply introduce the lab results along with the affidavit of the technician who conducted the test, and the results would be admitted into evidence as conclusive as to what the substance actually is.

This ruling changed that procedure, and was a considerable blow to prosecutors trying drug cases, because it meant that each and every time the prosecution intended to introduce a drug analysis certificate into evidence to prove that the substance was an illegal drug, they henceforth had to bring in the actual chemist or technician who conducted the test, to testify as to the details of the testing. The court ruled this way, because it determined that the absence in court of the actual person who conducted the drug testing, violated the Sixth Amendment’s “Confrontation Clause” guarantee. This provision of the U.S. Constitution safeguards the right of a defendant to confront the witnesses against him, in person. The question that the court grappled with was whether the affidavits that accompany such drug analysis certificates are “testimonial,” thus rendering the affiants “witnesses” who would be subject to the defendant’s right of confrontation under the Sixth Amendment . The court answered “yes” to both questions. Now, in prosecutions involving Massachusetts drug offenses, prosecutors must bring the lab technicians who conducted drug analyses, into court for cross-examination by the defendant’s attorney. As a Dedham, Massachusetts drug offenses lawyer, I think this is extremely important, because through the cross-examination process, information can be brought before the jury as to such important items as: The technician’s education, training and experience; The method and technique that was used to test the substance; Prior testing errors that the technician may have previously been involved in; How many tests had he or she conducted on the day that the contested sample was tested; as well as several other areas.

Now, the Massachusetts Supreme Judicial Court (SJC) is weighing whether such in-court testimony should be required of Breathalyzer results that are introduced by prosecutors in cases that involve a Massachusetts OUI/DWI charge. The case is Commonwealth v. Zeininger, and was an appeal of a drunk driving conviction produced at the District Court level. After the defendant appealed to the Massachusetts Appeals Court, the SJC reviewed the case directly on its own motion. As background on trial procedure in Massachusetts DUI cases, in order for the Commonwealth to properly admit breathalyzer test results into evidence, the prosecutor is required to establish that the Breathalyzer machine that was used complies with both the annual certification and the periodic testing requirements imposed by a prior Massachusetts decision, Commonwealth v. Barbeau, 411 Mass. 782 (1992), as well as regulations promulgated by the Massachusetts Office of Alcohol Testing. In the Zeininger case, prosecutors did not call a live witness to testify to the annual certification of the machine, but instead relied on the certification noted on the implied consent form.

On appeal, the defendant essentially claimed that a certification form that is contained within the Consent Form that someone signs when they take a Breathalyzer test, absent the opportunity to confront the actual person who certified the Breathalyzer machine, violated his right to confront witnesses against him in similar fashion to the holding in Melendez-Diaz.

As a Dedham Massachusetts OUI/DWI attorney, I anticipate that the SJC will rule that the prosecutors must at a minimum introduce certification from the Office of Alcohol Testing concerning the particular Breathalyzer unit being challenged, and hold that the Commonwealth cannot rely solely on a notation on the implied consent form that the machine was, in fact, validly certified.

A second, and important, issue in this appeal is whether the police officer was properly allowed to testify as an expert concerning the breathalyzer machine. Over the objection of the defendant’s attorney, the District Court trial judge permitted the police officer to testify that the breathalyzer was functioning properly, Legally, I think this was impermissible because the prosecutor stated that his only training with the Breathalyzer machine in question was to administer tests, no evidence was introduced that qualified him to make a determination if the Breathalyzer was functioning properly.

I’ll keep you posted on developments related to this much-awaited SJC ruling.

Hear the word “rape” mentioned, and people get very leery. Hear the words “child sexual abuse” mentioned, and you could sometimes start a lynch mob against the person accused. Some of these public attitudes are justified, but very often they aren’t. This is especially true when it comes to accusations made by young children often coaxed out of them by caring, friendly, and often overly suggesting – investigators. In my view as a Dedham, Massachusetts sex offenses attorney, the worst of this was witnessed in the famous Fells Acre Day Care case in the mid-1980’s.

So it was reinforcing to see that a young man who had been arrested and accused of a Massachusetts sexual offense against an 8 year-old girl, was exonerated recently by a grand jury who had been asked by Plymouth County District Attorney Timothy Cruz to indict him on charges of sexually abusing the girl. The girl reportedly told police that Kevin Treseler, 21, a Millis resident and Stonehill College student, had put his hands down her pants while working as a tutor at the Brockton elementary school she attends. Medical personnel who examined the girl found evidence that she had been sexually molested, but it was unclear who molested her or when. After the Plymouth County grand jury refused to indict Treseler, prosecutors moved immediately to dismiss all charges against him.

Held in secret and where the defendant’s attorney is not allowed, grand juries hear testimony from a prosecutor to decide if there is sufficient evidence to believe someone has committed a crime. An indictment from a grand jury clears the way for a trial in the Superior Court. Treseler's lawyer, said the district attorney's move not to prosecute his client was, understandably, an enormous relief for Treseler and his family, commenting “He's a beautiful kid, he really is. He had a tremendous amount of support from his friends and family when we were in court last week, over 20 friends and family members, which is unheard of for a (routine hearing)," said Michael Doolin. "It speaks to what kind of young man he is and what kind of family he comes from." Bridget Norton Middleton, a spokeswoman for Plymouth County District Attorney Timothy J. Cruz, defended the decision to arrest Treseler before seeking an indictment. She noted that a clerk in district court heard evidence from police before issuing a warrant for Treseler's arrest on March 21. On a legal level, that's hardly impressive. Hopefully, this person can go on with his life. Given the public nature of these charges, it won’t be entirely easy.

This is the kind of story I tell when some people ask me how I can defend people who are accused of horrible crimes. “Because that person may be innocent of the charges, that’s why. I then ask one more question.: Would you want an experienced Massachusetts criminal defense lawyer defending you if you were accused of a crime – or should we just assume you’re guilty because the police say so, lock you up and throw away the key?”

This can happen a lot more than most people think . If you or someone you care about has been charged with rape or a Massachusetts rape or Massachusetts sex offense, contact our office for a free consultation. We are extremely experienced – and quite successful – at defending these types of charges. Whatever you do, don’t hire a generalist or an attorney who doesn’t have years of proven success with these types of cases.

In my previous post on this case, I discussed how five of the six defendants charged criminally in the death of Phoebe Prince, have received sentences far tool lenient given the facts of this case.

For the death of an innocent 15 year-old who came to this country with hope and optimism, these five people were each sentenced to probation (and 100 hours of “community service.”) One year of probation, for deliberately terrorizing, assaulting, battering and driving another human being to the point of suicide. I find these sentences shocking in leniency, and unconscionable in the lighthearted judicial attitude toward what these students did. The judge who sentenced these defendants had the power to do more than this – much more. The charges that these five defendants pled guilty to – criminal harassment – is governed by M.G.L. Chapter 265, Sec. 43A. That statute provides for maximum penalties of 2 ½ years imprisonment in a House of Correction, a fine of $1,000.00, or both. Yet the judge hearing these cases sentenced these reprobates with essentially straight probation. As a Dedham Massachusetts criminal defense attorney, I find those sentences to be no more than a slap on the wrist, and unconscionable given the sickening facts of this case.

Prince’s mother, Anne O’Brien, broke her long silence to speak for the first time publicly, in court last week. In tears, she testified at the “sentencing” of Sean Mulveyhill, the football player who Prince had a brief relationship with and who later joined others in terrorizing her, saying that he went to great lengths to intentionally abuse, humiliate and betray Phoebe: “I can only imagine the pain (Phoebe) felt at his unrelenting desire to harass and humiliate her.” Mrs. O’Brien then read in court two of Phoebe’s last text messages in which she described her increasing desperation at the cruelty and brutality she was suffering at the hands of these students. One read, “I think Sean (Mulveryhill) condoning this is one of the final nails in my coffin,” she wrote. “I can’t take much more.” Her voice cracking, Mrs. O’Brien could barely read the second and final message: “It would be easier if he (Mulveyhill) handed me a noose.”

Throughout it all, Mulveyhill said nothing. According to courtroom observers present, his expression revealed not one iota of remorse, nor any emotion at all. For this and his other acts involved in assaulting and criminal stalking of Prince, he gets straight probation. This is justice? I think not. And as a Norfolk County Mssachusetts assault and battery lawyer for many years, I ought to know.

Only one other of these six defendants offered public remorse and contrition during last week’s proceedings: Kayla Narey, who offered apologies to Phoebe and her family. At the second of the two court appearances last week, where three others were “sentenced”, Flannery Mullins (reported to be the among the cruelest and most violent of these six defendants,) Sharon Velazquez, and Ashley Longe, Prince’s mother publicly expressed her disappointment for most of these sentences. Of Sharon Velazquez, Mrs. O’Brien told the judge that Velazquez was being let off too easy for the criminal actions she admitted to.“Her age (17) allows her to escape any reasonable sentence of community supervision. Hopefully, community service will allow her to reflect on the enormity of her actions, but I’m afraid I’m not sure anything would. She has throughout this case portrayed herself as the victim, not Phoebe.” Addressing the court, Mrs. O’Brien spoke of pain that will never cease: “It is impossible to measure the impact of Phoebe’s death upon our lives,” Phoebe’s mother told the judge. “There will be no more reading to Phoebe, no more hearing her lovely soprano voice. How do you measure a future that should have been rightfully hers? Phoebe was a beautiful, intelligent, gregarious daughter, with a kind heart, able to show compassion for others.”

I find these sentences shocking in their leniency. A few legal colleagues of mine cautioned me against saying this publicly in this blog. I disagree. As a criminal defense lawyer, I defend my clients 1,000 per cent, believing that every criminal defendant is entitled to the best defense available. Yet at the end of the case where a defendant has been competently and zealously represented by defense counsel, and where I have not acted as an attorney, I want to see justice done in that case. “Justice”, in this case, was not served with these non-sentences. And no, neither was an “effective” or clear message sent out, that future such bullying cases will be dealt with seriously; In fact, anything but.

We live in an increasingly uncivil, violent and crude world. The message that our courts should be sending is that this kind of violence will not be dealt with or responded to, with such a slap on the wrist. I’ll remind: Only one of these six arrogant reprobates freely cooperated with police investigators (Ashley Longe,) and only showed the slightest remorse in court: Kayla Narey. All the others, displayed a smug arrogance that insulted all involved in the legal process, and further injured Phoebe Prince’s family. In handing down these non-punishments, the court only magnified that insult, and the suffering of Phoebe Prince’s family even more.

And if anyone disagrees with that, I leave you with the following testimony last week from Phoebe Prince’s mother: “There is a dead weight that now sits in my chest”, she testified through tears. “It is an unbearable pain, and it will stay with me until my own death. I would not wish this kind of pain on any parent. It is torture." Unable to refrain from touching her deceased daughter one last time, she even spoke of lifting Phoebe’s dead body out of her coffin to hold her one last time: “My little girl. Once so full of life, was now so cold. I wept and asked her: “What am I going to do?”

I don’t know what to tell Mrs. O’Brien she can possibly do in the wake of this. I won’t presuppose to have that wisdom. But I know what could have been done by the judge in that courtroom last week – and what he didn’t do. These non-sentences mock the principle, and the practice, of justice.

That comment isn't is as unusual as it might seem, coming from a criminal defense attorney. These defendants had their day in court; they all had attorneys, and they were all afforded the opportunity of a jury trial. To no one's surprise given the evidence against them, they chose not to mount such a defense. The time came for appropriate punishment - and it was squandered - as was the opportunity to send a message loud and clear on this subject across the country.

I became an attorney to do the right thing in often difficult situations. If one does not reach down to a moral core to do the right thing when needed, then of what use are moral precepts at all?

Being a Boston, Massachusetts criminal defense lawyer is not an easy job. It carries a high level of professional responsibility. It also requires the very special ability of being able to defend in court, people that you either know or strongly suspect are guilty of the crime they are charged with. And, unfortunately, some of those crimes can be pretty nasty – downright ugly. But the respect I have for our system of laws in the United States, and in Massachusetts, is what makes me able to stand up for my clients, and fight to preserve their legal rights in a court of law. It’s what I do for a living, and I do it very well.

So it was, however, with no small surprise to myself, that I was left noticeably disappointed, to say the very least, at the unconscionably lenient sentences handed down in two separate days last week in a courtroom in Northampton, Massachusetts. In court on the first of those two days were two of the six defendants charged criminally in the January 2010 suicide of Phoebe Prince, aged 15. All six are to blame morally – and I believe, legally – for the young girls’ desperate suicide – yet of the six, only one has really showed remorse or contrition for what happened here. The six students were charged in the late winter of 2010 by then-Berkshire County District Attorney Elizabeth Scheibel with various counts of criminal charges in Prince’s death. Five of those defendants faced varying misdemeanor charges of assault and battery and criminal harassment, and it is beyond dispute and question that the six youths conspired together to assault, bully, harass, batter, and torment Prince. Finally, she could take no more. Despondent and bereft of any hope in herself or in the adults in her school that both she and her mother appealed to for help, the young girl took her own life. She hung herself with the scarf her sister had given her as a Christmas present. That same sister found her, dead. One defendant, Austin Renaud, 18, was charged with a felony offense of Massachusetts statutory rape against Prince – but surprisingly, Prince’s parents asked Scheibel’s successor, Berkshire County District Attorney David Sullivan, to drop those charges. As a Norfolk County Massachusetts rape defense lawyer, I assure you that says more about Prince’s parents, than it does Renaud, who will return to court later to have that judge likely dismissed.

Charging these youths was an act of courage by Elizabeth Scheibel. Many accused her of overcharging what these apologists characterized as “typical schoolyard behavior.” The callousness, frigidity, and arrogance of those kinds of comments is beyond understanding. I would have loved to drag every one of the morons who made such comments into Phoebe Princes’s wake, forced them to stare at her lifeless body and her devastated family, and hear them make those claims again. As a Dedham Massachusetts Assault & Battery lawyer, I believe that the facts and the law provided grounds to charge some of the youths with more serious crimes than the charges that five of the six were ultimately charged with, and had I been the District Attorney overseeing these cases, I would have pressed for more serious charges, no matter how incremental they were. Nonetheless, it took courage on Scheibel’s part to take the stand she did. In the approximately 15 months since Price hanged herself and these youths were charged with the crimes they were, the airwaves and water coolers around the very nation have been saturated with differing opinions on what legally should be done to punish these kids. The opinions ranged from serious jail time, to apologists who felt the youths should not have been charged in the first place.

Last week, five of those cases came to a close, with the sentencing of Kayla Narey, 18 , Sean Mulveyhill, Sharon Velzquez, 17 Ashley Longe, 17, and Flannery Mullins, 18. It should be noted that these sentences, which I’ll discuss in Part Two of this post in a few days, followed joint recommendations which had been submitted to the judge by prosecutors and defense lawyers. It is equally important to note that such Joint Sentencing Recommendations, while often helpful to a judge, by no means bind the judge to follow them. He or she can accept or reject all or part of a recommendation. And that is where the ball was dropped here.

I’ll examine the reasons why that is so, in Part Two of this post, in a few days.

Springfield, Massachusetts has been suffering recently from a spike in violent crime; most of it gang and drug-related. That’s not an easy environment to live in, or work in. This is especially so for police officers that are assigned to violent crime units. These units can be either plainclothes or uniformed, and either way it is difficult and often highly dangerous work.

This reality was put on full display last Saturday, April 30, when a prison inmate held at Massachusetts Correctional Institute/Shirley escaped, and headed to Springfield to reportedly avenge the recent, non-fatal shooting of his mother on April 23. No arrests have been made in that shooting. MCI/Shirley is a minimum-security state prison. The convict, Tamik Kirkland, 25 and originally from Springfield, reportedly made his way to a barbershop on State Street, where he shot two men, a barber and a customer. The customer was killed in that shooting, and the barber critically wounded. Police have not yet released the names of either man. After the shooting on State Street, Kirkland allegedly fled to a Cambridge Street residence, where he opened fire on police from the trunk of a car where he was hiding. At a press conference held outside Springfield Police Headquarters late Saturday afternoon, Springfield Police Commissioner William J. Fitchet. Fitchet said that after the State Street shooting, Kirkland fled up Montrose Street on foot. Based on intelligence that police had about Kirkland, they sped to a duplex that they suspected that Kirkland had ties to, and where believed that he would run for assistance. Special police units watched a silver sedan back into the driveway at that location, and saw Kirkland jump into the trunk. As the car tried to exit the driveway, police surrounded it, pulling a female driver from the car. To see a video of that press conference, click here.

Fitchet said that before police were able to pull the female from the car, “The trunk had been popped the suspect (emerged from the trunk) and started shooting It happened over a matter of seconds.” A Springfield police officer, Raul Gonzalez, a 15-year veteran of the force, was hit with gunfire in the chest, as was an unnamed Massachusetts State Police trooper. The only reason these officers were not killed or not critically wounded is because each of them was wearing a Kevlar vest. Both officers returned fire on Kirkland, shooting him several times. Kirkland is in serious condition but is reportedly recovering from his wounds. The back-to-back shootings prompted an immediate and massive police response – due to both officers being down and because Kirkland was already being hunted by a fugitive task force.

Immediately after the shooting, police were even more shocked to discover a 6 month-old baby in in the back seat of the vehicle. The infant was unharmed. Police refused to release the driver’s name or her relationship to Kirkland, if any. Since Kirkland was in the trunk and could not have harmed the baby, it is a reasonable assumption that the female driver was known to Kirkland and was voluntarily assisting him in his escape. Translation without elocution: A real dirt bag. Kirkland, prior to his escape from MCI/Shirley, was serving time for Massachusetts gun & firearm offenses and Massachusetts drug charges.

This is all pretty scary stuff, and I wanted to write about it here for one reason: Even though, as a Boston criminal defense attorney I am on the opposite side of the courtroom aisle from police, I know that the work that many of them do is very dangerous, and the work that officers do in gang units, organized crime units and drug units, is extremely admirable. These types of officers are placed in far more dangerous positions than the average patrol officer in most police departments, and I want to say that I admire them for their work. While, as a Massachusetts criminal defense lawyer, I utilize every procedure and legal talent I have to provide the best legal defense possible, I nonetheless admire these officers. And one more thing: I’m grateful to them. Because whether I’m on the opposite side of a case with them or not, they make my life, and the lives of the people I care about, safer. So here’s to them.

From a total of over 80 potential jurors, sixteen have advanced to the final round of jury selection, as of Friday, April 29 2011, in the corruption trial of former Massachusetts House Speaker Salvatore F. DiMasi.

The sixteen, however, isn’t enough. U.S. District Court Judge Mark Wolf must select an additional 20 jurors before the pool is finally narrowed down to the 16 people who will actually hear the case. 12 of those 16 will act as primary jurors, and 4 will serve as alternates in the event that one or more jurors are excused or dismissed for some unforeseen reason. Wolf has met personally with 37 members of the jury pool, to discuss their responses to 43 separate written questions that have been posed to each of them. The questions are designed to screen out biases, possible prejudices and/or pre-conceived opinions about the defendants or the case. Jurors were asked their opinions about lobbyists, accountants, Gov. Deval Patrick and other elected officials, who may be called as witnesses. Among the jurors who were dismissed was a woman who said she held a “jaded opinion” of elected officials, and a man who disobeyed the judge’s instructions not to research the case online, as well as another man who was overheard by a potential juror as saying “all politicians are guilty of something.”

DiMasi, accountant Richard Vitale and lobbyist Richard McDonough are accused of political corruption charges in allegedly steering two state contracts worth $17.5 million to the Burlington software company Cognos, in return for hundreds of thousands of dollars in hidden payments. DiMasi is accused of collecting $65,000 in kickbacks. Vitale allegedly received $600,000, and authorities said McDonough got $300,000. As a Boston criminal defense lawyer, I have to say I’m quite surprised at DiMasi’s apparent refusal to this point, to accept a possible plea agreement with the U.S. Attorney for Massachusetts. Note: I emphasize “apparent” refusal, as I don’t know whether prosecutors have, in fact, offered any plea deal to DiMasi - but it’s not at all uncommon that such possibilities would be pursued between prosecutors and defense counsel, prior to trial. I would find it odd if I learned that prosecutors never proffered any kind of a plea deal in this case, at all. Also, I don’t know whether DiMasi’s attorney has advised his client to consider any plea if one was actually offered, or not. And most important, if DiMasi’s lawyer had recommended such an option, DiMasi is the one who would make the final call on that, as the client is the person who makes these final decisions, not the attorney. Hence, as this case appears headed for trial as of this writing, I have to assume one of three things: 1) The U.S. Attorney did not offer any kind of plea deal; 2) They did proffer such a deal, but DiMasi’s attorney advised his client against the deal and DiMasi agreed with his attorney’s advice; or 3) Prosecutors offered a deal, DiMasi’s attorney recommended he take it, and DiMasi refused his attorney’s advice. There aren’t many other answers to explain why DiMasi is barreling toward a jury trial here.

And if this case is tried and goes to a jury, I think DiMasi’s going to be very sorry. His co-defendant, Joseph P. Lally Jr., 50, of North Reading, got smart and cut a deal with prosecutors to plead guilty last month to conspiracy and fraud charges. In exchange, the U.S. Attorney’s office is expected to recommend a prison term of no longer than three years, and allow him to keep his home and bank account. Prosecutors had accused Lally of receiving $3.7 million in commissions selling the state two multimillion-dollar software contracts from the Canadian company Cognos as part of a bid-rigging scheme to pay DiMasi $65,000 in bribes, which it is alleged he tried to disguise as lawyer referral fees. Two other men, DiMasi’s longtime friend and financial advisor Richard Vitale, 66, of Stoneham, and Cognos lobbyist Richard McDonough, 65, of Foxboro, are also being tried for their roles in the alleged kickback scheme, with prosecutors claiming that each of them received kickbacks amounting to hundreds of thousands of dollars. I wouldn’t be surprised if they turned on him, also. Additionally, Steven Topazio, DiMasi’s former law practice associate, has already reportedly provided prosecutors damaging information about DiMasi’s role in the plan.

As if all this weren’t enough, the judge hearing the case, U.S. District Court Chief Judge Mark L. Wolf, has repeatedly telegraphed several signals that don’t bode well for DiMasi. Most of these have been seen in Wolf’s denial of key pre-trial motions filed by Dimasi’s lawyer regarding evidentiary and testimonial issues. Putting the nail in the coffin before the funeral, has been the very clearly communicated attitude recently of the U.S. District Court in Boston, on the subject of political corruption charges: Recently, two Massachusetts politicians charged with kickback schemes were sentenced to considerable prison sentences: Former state senator Diane Wilkerson and Boston city councilor Chuck Turner. In delivering each of these sentences, the judges went to considerable lengths to publicly convey the message that the court will no longer tolerate political corruption, and that the days when such defendants got a “slap on the wrist” are over (read: Former Massachusetts House Speakers Charles Flaherty and Thomas Finneran, neither of whom received prison time.)

Against this entire backdrop, as a Boston white-collar defense lawyer, I cannot fathom why DiMasi is going to trial, instead of pursuing a plea deal. But as I said, there are three potential answers to that question, and I don’t know for certain which one is controlling. But if DiMasi is headed to this jury as the result of turning down a plea offer that was put in front of him, I think he’s made an incredibly foolish decision.

Two recent Massachusetts Appeals Court rulings have caused yet more confusion over probable cause standards that police must meet to be granted valid search warrants of a person’s home for illegal drugs. One recent case seemed to lower the bar somewhat for police seeking warrants to search a person’s home for illegal drugs, while another case seemed to suggest police must meet a higher standard before being granted a warrant. The rulings come in the wake of two very important decisions issued by the Massachusetts Supreme Judicial Court in 2009 regarding Massachusetts drug prosecutions, as those SJC decisions appeared to set the current probable cause standard for search warrants.

Those 2009 SJC decisions, Commonwealth v. Pina and Commonwealth v. Medina, seemed to establish the current probable cause test regarding warrants to search a person’s home for illegal drugs. That test, or standard, basically outlines how much evidence police must present in an application for a search warrant, before a judge can issue a valid warrant to search a person’s home for illegal drugs. Commonwealth v. Pina was the first of those two cases, Medina the second. In deciding Medina, the SJC cited its holding in Pina, which enunciated the principle that evidence establishing that a person may be guilty of illicit drug activity does not necessarily establish probable cause to search that person's home for illegal drugs.  Clarifying this, the SJC stated that “the fact that a defendant drives from his home to the location of a drug transaction, and returns to his home on the transaction's conclusion, with no other facts connecting the residence to drug sales, does not provide probable cause to search the residence.”  Commonwealth v. Pina, supra at 441, 902 N.E.2d 917.

Hence, Pina and Medina seemed to establish that the current test for this type of search warrant required a nexus between the observed activities of the defendant, and probable cause that illegal drugs were being either stored in, or sold from, the defendant’s residence. Those decisions made it harder for police to receive valid warrants to search a person’s home, and harder for prosecutors to use that evidence against a drug defendant.

Now, those important evidentiary standards are not so clear, as two more recent Appeals Court decisions seem to create only more confusion about what the current standard actually is for these types of warrants. One of these two cases, Commonwealth v. Escalera, 79 Mass. App. Ct. 262, held that police could secure a valid warrant to search a defendant’s home based on less stringent evidence than the SJC discussed in either Pina or Medina. In Escalera, evidence was seized from the home of a suspected Massachusetts drug dealer, pursuant to a search warrant obtained by police. The defendant argued that the seized evidence should have been ruled inadmissible, because police failed to demonstrate a “probable cause nexus” between his observed activities, and illegal drugs being stored in or sold from his home. The court ruled against him, holding that “The defendant was seen leaving and returning to his residence multiple times to what were either known drug sales or to encounters that could readily be inferred to be drug transactions. A pattern of activity such as this, in our view, provides sufficient nexus to a dealer’s residence to satisfy probable cause to search it.”

The ruling was 2-1, and the dissenting opinion argued that “a hunch is not enough under the particularized probable cause requirements of the Fourth Amendment to the U.S. Constitution and art. 14 of the Massachusetts Declaration of Rights.” Applying the SJC’s reasoning in Pina and Medina to the Escalera case, Judge Janis Berry wrote that police surveillance of Escalera’s single round-trip from his home in his car, where a drug sale took place away from his home, was insufficient to establish probable cause that illegal drugs were being stored in or sold out of his home. The majority ruling noted the obvious discord in this area of law, stating that case law on the issue of nexus and probable cause “no longer appears to provide useful precedent” and “would benefit from reexamination.”

Just one day after issuing Commonwealth v. Escalera, however, the Appeals Court then ruled the opposite way on an almost identical case, Commonwealth v. Dillon. In that case, Lowell police obtained four search warrants for a suspected oxycodone dealer’s two vehicles and his two residences after confidential informants provided information about that dealer’s activities. In their warrant application, police claimed that the defendant resided at two different locations. They alleged the defendant took drug orders from one residence, later delivering drugs by car. At the defendant’s second residence, sales records, $23,000 in cash and a firearm were seized by police. Prior to trial, the defendant sought to suppress evidence that police secured at the second residence on the grounds that the search warrant was defective. A Superior Court judge hearing the motion denied it. The Appeals Court overturned that ruling, holding that "the affidavit lacked sufficient particularized facts to establish a nexus between the defendant’s drug-selling activity and the [second] residence,” noting the warrant application contained only a general statement made by a single informant.

Hence, it’s obvious that in the area of evidence seized from homes of defendants charged with Massachusetts drug crimes, there is still too much grey area. Hopefully, the SJC will issue clarifying decisions in this key legal area. In the meantime, if you need to learn more about the law governing Massachusetts drug offenses, please contact my office for a free consultation. As a highly experienced Massachusetts drug offense attorney, my firm knows how to defend these cases.