O'Brien Law Boston

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Smell of Unburnt Marijuana Does Not Provide Probable Cause Justifying Warrantless Search of Vehicle


 AUGUST 11, 2014

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After Massachusetts made it legal to possess one ounce or less of marijuana, the Massachusetts Supreme Judicial Court (SJC) ruled in Commonwealth v. Cruz that the odor of burnt marijuana alone could not provide reasonable suspicion of criminal activity to justify a warrantless search. In a recent case, the SJC expanded that decision and held that the smell of unburnt marijuana does not provide probable cause for the police to search a vehicle.

In Commonwealth v. Overmyer, the defendant was involved in a motor vehicle crash. When the police arrived at the scene, they encountered a “very strong odor” of unburnt marijuana emanating from the defendant’s vehicle. After questioning the defendant about marijuana being present in the vehicle, the defendant acknowledged that a bag of marijuana was in the glove compartment, and gave the keys to the police. After the police retrieved a “fat bag” of marijuana, the officers continued to smell an odor or marijuana in the vehicle, and questioned the defendant about the possibility of the vehicle obtaining a larger amount of marijuana. Although the defendant denied this, the police proceeded with a search of the car, and found a backpack in the back seat filled with marijuana. 

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Posted In: Automobile Search , Possession , Probable Cause , Search and Seizure

Violation of Right to Public Trial Earns Defendant New Trial

AUGUST 18, 2014

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In a recent decision, the Massachusetts Appeals Court affirmed a superior court judge’s decision that the closure of the courtroom for the general questioning of the venire violated a criminal defendant’s Sixth Amendment right to a public trial.

In Commonwealth v. Timothy White, the defendant, a former state police sergeant, had allegedly stole drugs from the state police evidence room and sold them for profit. The defendant was charged with trafficking in cocaine, larceny over $250, and conspiracy to traffick in cocaine. Due to the media attention the case attracted, the defendant’s counsel requested individual voir dire of prospective jurors. Unbeknownst to the defendant or the judge, the courtroom was closed to the public for the first phase of the juror selection process, based upon the courtroom lacking sufficient space to seat all members of the venire.

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Posted In: Drug Trafficking , Right to Public Trial , Sixth Amendment

SJC Reverses Conviction Based on Improper DNA Evidence Testimony

AUGUST 20, 2014

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The Massachusetts Supreme Judicial Court (SJC) recently reversed a defendant’s conviction and remanded the case for a new trial due to the improper admission of expert testimony regarding DNA evidence. The SJC concluded that an opinion regarding the results of DNA testing is admissible only where the defendant has a meaningful opportunity to cross-examine the expert witness about the reliability of the underlying data produced by such testing.

In Commonwealth v. Tassone, a superior court jury convicted the defendant of unarmed robbery and assault and battery. The defendant had been arrested in connection with the robbery of a small variety store in Pittsfield, MA. The defendant was the allegedly the only customer in the store at the time of the robbery. It was alleged that the defendant went to the counter to purchase an item, and when the store manager opened the register door, the defendant reached into the register to take the money. A fight ensued, ending with the manager on the floor and the defendant fleeing with $350. When police arrived at the scene, they recovered a pair of eyeglasses on the floor that did not belong to the store manager.

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Posted In: Criminal Appeals , DNA Evidence , Expert Testimony , Robbery

Appeals Court Affirms Suppression of Firearm Seized During Warrantless Search of Vehicle

AUGUST 25, 2014

The Massachusetts Appeals Court recently upheld a superior court ruling allowing a motion to suppress a firearm seized after a warrantless search of a backpack following an investigatory stop of a motor vehicle.

In Commonwealth v. Rutledge, two defendants were charged, among other things, with numerous firearms offenses. The arrest was made on July 13, 2011 after a 911 operator in Brockton received a call from a woman who overheard an argument between her current boyfriend and former boyfriend, when the former boyfriend allegedly pulled a gun on the current boyfriend, threatening to kill him.

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Posted In: Automobile Search , Firearm Offenses , Searches and Seizures , Warrantless Search

Convictions Reversed Based Upon Unlawful Police Entry Into Apartment During Execution of Arrest Warrant

JANUARY 13, 2014

Today, the Massachusetts Supreme Judicial Court (SJC) reversed a defendant’s two convictions on the grounds that both convictions were based on evidence that was seized by the police during an illegal entry into the defendant’s home to execute an arrest warrant.

In Commonwealth v. Gentile, a police trooper spoke with the defendant about one week prior to his arrest, and viewed the defendant’s identification card which listed the defendant’s address as an apartment in Leominster. The trooper later learned that there were two outstanding arrest warrants for the defendant. After he confirmed that the Leominster address matched the defendant’s address on his driver’s license, the trooper went to the apartment to execute the arrest warrants.

Continue reading “Convictions Reversed Based Upon Unlawful Police Entry Into Apartment During Execution of Arrest Warrant” »

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Posted In: Civil Rights Attorney , Criminal Defense , Unreasonable Search and Seizure , Warrants

Drug Trafficking Conviction Reversed Based Upon Invalid Warrantless Search of Vehicle

JANUARY 6, 2014

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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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Posted In: Cocaine Violations , Controlled Substances , Criminal Activity , Criminal Allegations , Drug Bust , Drug Dealing , Drug Offense , Drug Possession , Warrants