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Articles Posted in drug distribution/drug trafficking

Those facing a Massachusetts Drug Distribution or Trafficking charge often contest the Constitutional basis of the search and seizure as part of the defense to the case.  This was the case in Commonwealth v. Costa, which began as a drug distribution case out of the New Bedford District Court and was decided by the Massachusetts Appeals Court on April 10, 2020.

The Appeals Court found that a search warrant was not based on probable cause as it did not establish the relialbiity of the confidential informant.  In drug distribituion and trafficking offenses, it is very common that the police will obtain a warrant to search a house based on information provided by a confidential informant.  The informant will provide information that results in the police obtaining a warrant.  The Costa case involved this type of investigation by the New Bedford police department where they seek to search a house based on probable cause being established as a result of a controlled drug buy.

I have handled many drug cases where the New Bedford police have used an informant to attempt to get a warrant.

The U.S. Supreme Court will decide whether to hear the case of Zamudio v. United States which raises the issue of whether a search warrant can legally be issued for a suspected drug trafficker’s residence without evidence that the residence is being used for criminal activity. Attorneys for Juan Zamudio filed a petition for writ of certiorari asking the U.S. Supreme Court to resolve the current circuit split and establish a uniform legal standard for the basis of search warrants for suspected drug traffickers’ residences.

When can a judge approve a search warrant for a home in a Drug Trafficking case?  

Typically, a judge can only approve a search warrant application if there is a “nexus” between the crime and the location to be searched and “reasonable cause to believe specific things” with be found there. In the 7thcircuit, however, the mere fact that there is evidence a person is engaged in drug trafficking is sufficient evidence for a judge to issue a search warrant for the suspect’s residence, even if there is no evidence that anything specific will be found there which links the suspect to the alleged criminal activity.

The Massachusetts Supreme Judicial Court heard oral argument on April 2 in the Commonwealth v. Long. This case raises the issues of the detection of marijuana and probable cause to search a commercial building.  

In this case, two officers were conducting patrol when they noticed two vehicles parked behind a commercial building. Another officer arrived on scene, and all three secured a perimeter around the building. Upon doing so, the officers detected an overwhelming odor of unburnt marijuana. The officers also noticed that the ventilation inside the building was covered with plywood. The building was being leased to Defendant Long, who had a criminal drug history. The owner of one of the vehicles also had a prior drug history. Using these facts as support for probable cause, an application for a search warrant was made and a search warrant was issued. Defendant Long was charged with trafficking more than fifty but less than one hundred pounds of marijuana. Long filed a Motion to Suppress and the case is currently before the SJC.

The Justices will have to determine whether the untrained nose can reliably detect, based on odor, the presence of a criminal amount of marijuana in a building as opposed to in a vehicle. The Justices also have to determine whether the presence of a vehicle registered to an owner who has a marijuana conviction is sufficient to establish probable cause. The answer to these questions will provide useful guidance to law enforcement officers.

The Massachusetts Supreme Judicial Court heard oral argument in the case of Commonwealth v. Jesse Carrillo, where the defendant was convicted of involuntary manslaughter based on providing heroin to the deceased.  The defendant was a heroin addict himself and the evidence at trial indicated that he went to New York to buy heroin and that he would bring some heroin back to the victim.

At trial the defendant was convicted of both distribution of heroin and involuntary manslaughter.  The defendant claimed that the trial court committed reversible error by refusing to instruct the jury on the lesser included offense of joint possession of heroin.  It was the defendant’s claim throughout the trial that he was a user and an addict but was not distributing heroin or making any profit from selling heroin.  The defendant testified in his own defense at the trial and outlined his heroin addiction.  The defendant also presented expert testimony.

Defense Expert

Recently, the Massachusetts Supreme Judicial Court addressed a plan to handle the numerous potentially-tainted drug cases that are a result of Annie Dookhans mishandling of evidence. Originally, there were several indications that the criminal justice system would adopt a blanket approach to handling the cases; many people called for complete and utter dismissal of all convictions tied to Annie. However, the Supreme Judicial Court ultimately declined this method, and outlined a process to put the scandal in the past.

Massachusetts District Attorneys are going to have the responsibility of sorting through and dismissing any cases that would not be able to be re-prosecuted in a court of law. In accordance, District attorneys across the state will have 90 days to accomplish this task, and notably have to follow a three-step process in doing so; defendants whose cases would not be dropped will be alerted, and will have an opportunity to obtain counsel if they want to dismiss their plea or request a new trial. If you want to stay informed make sure to read the latest news on the Annie Dookan case at the Bostonherald.com.

Dookhan was a chemist at a Boston Laboratory utilized frequently by the Massachusetts State Police, the Hinton State Laboratory Institute; where she was eventually caught and admitted to faking drug results, forging paperwork and mixing false samples. There are allegedly more than 24,000 defendants that, through a process, have been linked to Dookhan.

The Massachusetts drug lab scandal impacted thousands of drug cases and resulted in new trials and convictions overturned in many.  Now New Jersey faces a similar scandal.

Lab technician Kamalkant Shah was found to have “dry labbed” suspected marijuana samples. Shah was observed writing ‘test results’ for suspected marijuana that was never actually tested. Shah recorded anticipated results and recorded those anticipated results without properly conducting the analysis. This disclosure has called thousands of test results into question.

In May 2015, a case of ‘dry labbing’ was reviewed by the Massachusetts Supreme Court to determine how many cases need to be looked over again. Over 40,000 cases may have been tainted by Annie Dookhan may have been tainted by Annie Dookhan, a forensic scientist who pleaded guilty to forging initials of other chemists, intentionally contaminating samples, and just glancing at samples during analysis, instead of actually testing them. Dookhan pleaded guilty to tampering with evidence in 2013, and is serving 3 to 5 years.

Last month the House voted unanimously for a bill that would repeal the 1989 Massachusetts law requiring automatic license suspensions for drug offenses, regardless of whether or not offenses had a driving component. The Bill was passed by the Senate last year. However, Republican House members added an amendment to the Bill restoring the five year license suspension for drug trafficking charges. In an effort to uphold the purpose behind the Bill, the Senate added an amendment abolishing the drug trafficking exception, effectively repealing the House’s amendment and stalling the Bill.

The automatic license suspension for drug charges arose under a federal law created during the “War on Drugs” that called for automatic license suspensions for drug offenders but allowed states to opt out. 34 other states have repealed similar suspensions. As the law stands now anyone who has been convicted of a drug offense faces a six month to five year license suspension and additional fees to reinstate. The license loss is also reported on their Registry of Motor Vehicles record, which can be accessible by employers.

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There are often times when police officers have to rely on anonymous callers who dial 911 to tip police off on a crime they had observed. Whenever a defendant is arrested as a result of such a tip, the trial court must determine the caller’s reliability before allowing the case to proceed to trial. In the case of Com. v. Depiero, the Appeals Court determined that it was lawful for police to arrest a driver with a history of drunk driving after receiving an anonymous 911 call reporting erratic driving.

The 911 Call

Police dispatch received a call stating that a “drunk driver” operating on Memorial Drive was “swerving all over the road.” The caller did not identify him/herself, but did provide the dispatcher with a license plate number, make, and model of the car. A state trooper was then dispatched to the driver’s address, where he observed the driver pull into his driveway. After the driver parked, the officer turned on his emergency lights and conducted a traffic stop. The driver admitted to having drunk alcohol, and subsequently failed the field sobriety tests.

Surpreme Judicial Court Justice, Associate Justice Margot Botsford, has requested that state’s highest court dismiss thousands of the drug convictions that Annie Dookhan had handled evidence for. Based on a petition filed by the American Civil Liberties Union (ACLU), Botsford submitted a five-page report, in which she also describes the need for a more ‘systematic approach’ to the convicted cases tied to Dookhan. Supported by the ACLU, Botsford believes the Dookhan case needs to be taken more seriously, and that the issue of mishandled evidence is more profound than the court believes.

Background Annie Dookhan was arrested and charged in 2012 with a total of 27 charges- including counts of obstruction of justice, tampering with evidence and perjury. In November 2013, the chemist pleaded guilty and was sentenced to 3-5 years jail time. Responsible for over 40,000 cases during her 10 year career at the Boston lab, Massachusets govenor Deval Patrick closed the entire lab and ordered prosecutors to reevaluate cases tied to her work.

The ACLU Petition

The highest appellate court of Nebraska recently overruled a trial judge who allowed evidence of drunk driving to be admitted during trial, where that evidence was obtained as a result of an traffic stop based on an anonymous tip. Applying recent federal case law, the Nebraska Supreme Court found that the driver’s Fourth Amendment right against unreasonable searches and seizures was violated when the officer stopped the driver without first confirming the reliability of the anonymous 911 caller’s tip, or reasonably believing a crime was committed.

State v. Rodriguez

In the matter of State v. Rodriguez, a 911 dispatcher received an anonymous call alleging that the caller was just pushed out of a moving vehicle. The vehicle was identified as a green GMC Envoy heading westbound on Highway 26. An officer was dispatched to the location, where he observed a vehicle matching the description traveling westbound past the location of the caller. The officer followed the vehicle then activated his emergency lights and began to question the driver about the reported disturbance.

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