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January 6, 2014

Drug Trafficking Conviction Reversed Based Upon Invalid Warrantless Search of Vehicle

In many cases, the evidence obtained against a criminal defendant can and should be suppressed in court, based upon the police's violation of the defendant's constitutional rights in obtaining that evidence. Generally, if the police did not follow constitutional procedure, then a jury may not know about the evidence obtained as a result of the constitutional violation. A recent Massachusetts Appeals Court case illustrates this concept.

In Commonwealth v. Diaz, the defendant was convicted of trafficking cocaine in an amount of 28 grams or more, based upon two packages of cocaine that the police seized from the defendant's vehicle during a warrantless search of the vehicle. Several months prior to his arrest, the police had obtained information from a confidential informant that the defendant sold drugs, including at a building where a business named Family Oil was located, and that he packaged drugs there.

The police observed the defendant's vehicle parked behind the Family Oil building, located on private property, and entered the property. They saw the defendant exit the building and quickly place his jacket into his car and try to go back into the building. The police immediately seized and restrained the defendant. They then entered the building, searched the occupants, and found cocaine on two of them. Returning outside, the police searched the defendant's vehicle, without a warrant to do so, and found two bags of cocaine.

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February 19, 2013

Where Evidence to Prove Drug Possession is Insufficient, Admission of a Drug Analysis Certificate is not Harmless

Where the evidence to prove drug possession is insufficient, the court's admission of a drug analysis certificate is not harmless to the defendant's conviction.

The defendant, Malone, was arrested by Officer Mark Templeman for possession of marijuana. At trial, Officer Templeman testified that the defendant was in possession of a green leafy vegetable matter. Officer Templeman also testified that the green leafy substance was packaged in such a manner consistent with street level distribution of marijuana. Based on his experience and the appearance of the green leafy substance, the defendant was arrested and charged with possession of marijuana. Officer Templeman gave no testimony regarding the odor of the green leafy substance.

According to the court, only describing the appearance of the substance is insufficient to prove that the substance is, in fact, the alleged drug, which in this case was marijuana. "[T]he Commonwealth here presented 'no evidence that the officers detected any identifiable odors or recognized any other distinguishing characteristics of the substances beyond their appearance." Further, "while the manner of packaging is certainly evidence of distribution, it is not conclusive on the chemical composition of the charged substance. ... Therefore, testimony on packaging cannot overcome the improper admission of a drug analysis certificate."

Also, even though "the defendant made several admissions that the substance was marijuana, both in his direct examination and during his counsel's closing arguments" there is no evidence that the defendant ever used marijuana," hence the defendant does not have sufficient experience to testify that the green leafy substance was marijuana. "And a defense 'construed around an admission' that the green leafy substance was marijuana does not relieve the Commonwealth of proving the substance was, in fact, marijuana ..."
Order denying the defendant's motion for a new trial on the possession of marijuana is reversed. Commonwealth v. Malone

If you or a family member has been charged with criminal activity, please contact Parker | Scheer LLP for a free consultation with one of our experienced Criminal Defense Lawyers.

November 1, 2012

Former Drug Lab Employee Malfeasance Could Give 200,000 Convicted Drug Felons a new shot at Freedom - Boston Criminal Defense Attorneys Parker Scheer

For nine years, Annie Dookhan worked at Hinton State Laboratory in Boston, testing drug evidence for criminal cases. During those nine years, the laboratory conducted almost 200 thousand drug tests. Sixty thousand were personally conducted by Dookhan for 34 thousand cases. Now the results of these drug tests, which led to the conviction of some of Boston's most dangerous criminals, are in question. Dookhan admitted she sometimes recorded drug evidence as positive when it was negative. Basically if some samples tested positive, Dookhan would list the whole batch as positive.

Dookhan now faces two counts of obstruction of justice. She also faces one count of falsifying her academic records after her resume to Hinton claimed she earned a Masters degree from the University of Massachusetts.

Over 100 drug defendants from Dookhan's criminal cases have been freed, had their bail reduced, or had their sentences suspended. A drug lab prosecutor, friends with Dookhan, has resigned. A special "drug court" has been set up to oversee "Dookhan defendants." The state's judiciary has asked the governor for almost $9 million to handle legal challenges, while Boston's mayor has asked for $15 million to handle the "crisis". Massachusetts's district attorneys are expected to request at least another $10 million.

"While Dookhan's actions may have led to the conviction of some dangerous and guilty criminals, it may also have resulted in the false incarceration of innocent people. This is unacceptable and will be remedied," stated Boston Criminal Defense Attorney Frank O'Brien, of Parker | Scheer.

"If you or a family member has been charged with criminal activity, and you believe that the Hinton State Laboratory in Jamaica Plain may have been involved in testing in connection with the case, please contact Parker | Scheer LLP for a free consultation with one of our experienced Criminal Defense Lawyers."
 

April 27, 2012

Drug Evidence Discovered Missing from Secure Storage

According to the Boston Globe, a recent routine audit of physical evidence held at the Boston Police Department's drug depository, has shown a discrepancy. The random sampling of 500 pieces of evidence, executed by the Boston Police Audit and Review Unit, was all accounted for with the exception of one package of evidence.

Boston Police spokesperson, Elaine Driscoll, has stated that the department is now trying to discover what has caused the particular piece of evidence to have gone missing. "The Boston Police Department is taking every appropriate investigative measure to reconcile that discrepancy. Those findings will determine if other investigative steps will be necessary."

After a January 2008 audit found that drugs were missing or stolen from 265 cases, the department reorganized its drug evidence storage procedures. Drugs missing included heroin, cocaine, and marijuana, but most were prescription oxycodone. The Globe reported last year that no one had faced internal discipline or criminal charges.

To read the full article click here.

Analysis by Parker | Scheer LLP Attorney Vincent A. Tofani:

This will be an interesting investigation to keep an eye on because anytime evidence goes missing, it is a huge deal! In an attempt to minimize the risk of issues regarding missing evidence, both the Massachusetts Rules of Criminal Procedure and the Boston Police Department policies provide for strict guidelines instructing the appropriate manner in which to handle and store evidence. It is essential that such guidelines are followed in order to preserve evidence and prevent the possibility of contamination or any tampering therewith.

Occasionally, during the course of a criminal case, issues may arise with regard to the storage and transfer of important pieces of evidence that the Commonwealth intends to offer against the defendant. For example, an experienced criminal defense attorney may file a motion to suppress evidence on the grounds that the Commonwealth can not sufficiently establish the "chain of custody" of the piece of evidence that is meant to be offered. Essentially, to establish the "chain of custody," the Commonwealth often introduces sworn testimony of the custodian of the evidence in question in an effort to prove: 1) the receipt of the item; 2) the ultimate disposition of the item, (i.e. - whether the item was stored, transferred, tested, etc.); and, 3) the steps taken to safeguard the item during the time that it was in custody, specifically designed to prevent the contamination of, or tampering with the piece of evidence. Notwithstanding, the court will not automatically exclude evidence when there is a question as to the sufficiency of its storage or the record indicates the possibility of a "missing link" in the "chain of custody."

Instead, the court exercises its discretion in order to fashion the most equitable remedy given the specific circumstances of the particular case and piece of evidence that is involved. The court will generally look to the materiality of the evidence (i.e. - its evidentiary value with respect to the criminal case in which it is being offered), and whether the record indicates a likelihood of contamination of the evidence. Additionally, the court will often consider whether the exclusion of the particular piece of evidence will result in significant prejudice to either the Commonwealth or the defendant. Like so many components of criminal proceedings, the underlying objective is to afford every individual charged with a criminal offense in the Commonwealth of Massachusetts due process to the full extent of the law, in accordance with the fundamental rights guaranteed by both the United States Constitution and the Declaration of Rights of the Commonwealth of Massachusetts.

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September 21, 2011

City of Boston Condemns Dorchester "Drug Den"

A Dorchester three-decker home was condemned Monday September 19, and fined thousands of dollars after Boston city inspectors discovered a makeshift drug den, an illegal attic apartment, tampered gas meters, and suspect wiring.

The condemned house is located on 9 Inwood Street in Dorchester. According to reports, when inspectors arrived at the house they found a tenant dismantling TVs and computer monitors and illegally disposing of the mercury and dangerous chemicals inside them.

One of Mayor Menino's top priorities has been to clean up suspected drug dens and rid them of illegal activity and prostitution, says his spokeswoman Dot Joyce.

The full article can be seen here.

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August 3, 2011

Driver of Special Needs Passengers Possibly Under Influence of Drugs

In Newton MA, the driver of a van carrying special needs adults crashed into a garbage truck. The driver, Gabriel Woldeguiorguis, 50, of Dorchester, and the 12 passengers aboard were injured. Newton Police reported that Woldeguiorguis was arrested following the accident on charges of operating under the influence of drugs.

According to police reports, the three of the 12 injured persons were seriously injured. 10 of the injured passengers were taken to Newton-Wellesley Hospital with minor injuries, and the three with serious injuries were taken to Beth Israel Deaconess Hospital in Boston. No one in the garbage truck was injured.

The registry of motor vehicles reported that Woldeguioruis had a long list of violations over the past 10 years, including drug possession and leaving the scene of an accident. He told Newton Police that he was not under the influence, but crashed into the garbage truck because he was blinded by the sun.

The full article can be seen here.

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July 11, 2011

Boston Drug Den Cleaned Out

Boston city workers helped residents of Dorchester breathe a sigh of relief after they cleared out a trash filled vacant lot that housed an old camping trailer that had become a 'drug den' and setting for illegal activity. Darryl T. Smith, assistant commissioner of constituent services at the city's Inspectional Services Department, said cleaning out the lot "gives hope to the community because they had to put up with trash and vagrants."

The trailer was littered with used drug needles, feces, trash, and housed at least two people. It was located in an abandoned lot near Paxton and Harvard streets. The clean up was spurred by repeat complaints to the mayor's Neighborhood Response Team of Dorchester and Mattapan.

Inside the trailer two juveniles had been arrested last week for allegedly using drugs inside. Tyrone Davis, 40, of Boston owns the adjacent property at 8 Paxton Street, and the Cave family of Boston owns the lot in question. Both Davis and the Caves have been charged with related fines.

The full article can be seen here.

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April 25, 2011

State Fugitive Escapes Prison

The Massachusetts state's prison fugitive squads are on a hunt for a 24 year old convict who has escaped from MCI Shirley this morning. The fugitive, Tamik Kirkland, formerly of Springfield, has a violent past and criminal charges. He was serving a two to four year sentence for weapon offenses. According to the Department of corrections, Kirkland was declared an escapee at 7:37 a.m this morning.

In 2009 Kirkland pleaded guilty to possession of a large capacity firearm and additional weapon charges in connection to an attempted murder charge. He also pleaded guilty to drug possession with intent to distribute. The Department of Correction states that this is Kirkland's first time in a Massachusetts prison.

If Kirkland is caught he will be placed in what the Department of Corrections deems "higher custody" and his sentence could be extended. The DOC has not yet revealed how the escape happened but they have confirmed that "the incident is under investigation." The last escapee from MCI Shirley was in 2008 during a massive ice storm.

The full article is featured here.

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