Articles Posted in Drugs

The Massachusetts Court of Appeals recently reaffirmed in Commonwealth v. Stampley, 88 Mass. App. Ct. 1118 (2015) that the possession of even several baggies of marijuana without additional evidence of distribution is not sufficient to convict a defendant of possession with intent to distribute. As background, in 2008 Massachusetts voters passed a ballot decriminalizing the possession of small amounts of marijuana. The law went into effect in 2009. Before 2009, possession of any amount of marijuana was a criminal offense with offenders facing up to 6 months in jail. It should be noted that possessing more than one ounce of marijuana is still a crime, as well as distribution (dealing) of any amount and possessing any amount with the intent to distribute it.

In Commonwealth v. Stampley, a police officer approached two teenagers who were smoking a blunt. The two teens became nervous and fidgety and gave the officer false names. 17 individual, quarter-sized plastic baggies of marijuana were retrieved from the teens. The defendant had nothing else in his possession to indicate that he was involved in the drug trade. Continue reading

The Massachusetts legislature has recently adopted a definition of controlled substances that includes “controlled substance analogues,” or what is commonly known as “designer drugs.” The Massachusetts law is modeled on a similar Federal law that has already been put into place. This added definition would make criminalize analogues in the same way that the named controlled substances are criminalized, such as possession of the substance or distribution of the substance.

A controlled substance analogue is a substance that is similar in chemical structure and psychological effect to an existing controlled substance but has not yet been listed as a controlled substance. So in the statute, the analogues are not specifically listed by any name but are generally defined as a substance “substantially similar” to other controlled substances already listed.

The way the statute is written, a two-prong test is created for proving an analogue. First, the analogue (or “designer drug”) must be structurally similar to a controlled substance. “Structurally similar” essentially means that its chemistry must be very closely related. The second prong can be proven in one of two ways. One, the analogue causes a substantially similar or greater effect on the user as the named controlled substance. Or two, the analogue was represented to have or intended to have a similar effect on the user as the named controlled substance.

This addition to the controlled substance statute will cause a whole host of problems for police, prosecutors, defense attorneys, and most importantly, defendants.

One problem is how do you prove that an analogue has a “structurally similar” makeup to a named controlled substance? (And a whole separate problem is what named controlled substance will the analogue be tested against since there are numerous possibilities?) This is obviously going to require an expert in chemistry to test how similar the alleged analogue and the named controlled substance are. This will be a time-consuming and costly process for both the government and defendants. The need for an expert puts defendants who cannot afford to pay in a highly disadvantaged position when up against a big government budget. Since there is no scientific definition for what “substantially similar” means, the case could come down to one expert’s opinion versus another expert’s opinion. What method of testing the expert(s) utilize is also a problematic area with no right or wrong answer right now.
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We are not even halfway through 2015, but Urbelis Law has already had a very busy, and productive year with great results for our clients! Below is a list of cases that resolved very favorably for our clients since January 1st of 2015. We look forward to continuing to achieve such results for the remainder of the year and beyond!


FEDERAL CHARGES: Client was a middle school teacher with the 3 lead charges of the indictment carrying a MANDATORY MINIMUM sentence of 15 years in federal prison, each. There is no parole in federal cases. Client was also charged with two lesser included offenses as well.

Last week, a former Middlesex County, Massachusetts prosecutor has been indicted after allegedly supplying his drug dealer with confidential information in exchange for prescription ocycodone pills. Stephen M. Gilpatric, 35, served as a Middlesex assistant district attorney for 7 years, until this past October when the Attorney General’s Office began investigating his conduct. Ironically, Gilpatric’s most recent work was on public corruption, white-collar crime and major narcotic cases.

Gilpatric allegedly gave his drug dealer personal information about another man – including his probation record, police report, and a photograph – in exchange for oxycodone pills. He also provided the drug dealer and the drug dealer’s brother a confidential drug ring organizational chart and a criminal record in anticipation of receiving more oxycodone pills. Oxycodone is a prescription drug prescribed to treat moderate to severe pain, oftentimes after surgery. Oxycodone is an opiate, like heroin, and can be highly addictive. It is commonly known by the commercial name Oxycontin or the street name “oxycotton.”

Gilpatric is also accused of taking $1,500 from a mother who wanted her son’s commercial driver’s license reinstated after it had been revoked in a criminal case. Gilpatric was indicted by a Statewide Grand Jury on the following charges: unlawful gratuity, unlawfully communicating criminal offender record information and receiving unlawful compensation. Unlawful gratuity and receiving unlawful compensation hold a maximum prison sentence of 5 years each, and unlawfully communicating criminal offender record information holds a maximum jail sentence of one year.
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Victor A. Merlino
, a Brockton resident, is being charged in Brockton Superior Court with trafficking in cocaine, unlawful possession of a firearm, unlawful possession of a loaded firearm, unlawful possession of ammunition without an FID card, unlawful possession of a class E substance (steroids), assault and battery with a dangerous weapon, two counts of assault and battery and two counts of a threat to commit a crime.

Reports indicate that during the early morning hours on Sunday, Sept. 1, police forced their way into Merlino’s apartment after receiving reports from an unknown source that a 27-year-old woman who was in a relationship with Merlino had been missing and could be in danger. Police forced entry into Merlino’s home with weapons drawn to find Merlino and the woman in a back bedroom. During the forced entry, police officers seized a bag of cocaine, prescription pills and firearm ammunition. Police officers later returned with a search warrant and seized over $10,000 in cash, an additional 40 grams of cocaine, as well as digital scales.

Though this case may seem like there is strong evidence against Merlino, there are many factors that come into play. In order to fight this case, a skilled criminal defense attorney would have to look at the validity of the information given to law enforcement, the validity of the forced entry into Merlino’s home, the validity of the seizures, as well as the validity of the search warrant.

In late August 2013, the United States Department of Justice announced that it is “deferring its right to challenge” the Colorado and Washington initiatives that “tax and regulate marijuana like alcoholic beverages.” This announcement indicates that the administration is willing to take another look at marijuana laws and discuss possible reform with Congress and the States.

It has been suggested that the states and Congress should adopt a “child-protection agricultural produce” model for the cultivating of marijuana.This model would make marijuana possession legal for adults only. The Massachusetts Cannabis Reform Coalition conducted a poll in 2011 and found that 58 percent of Massachusetts voters already support a similar model. The model would be sure to severely punish the distribution of marijuana to minors with significant jail time and/or fine, and would require adults to take serious precautions in order to prevent access to marijuana by minors.

Currently, possession of marijuana has been decriminalized in Massachusetts and is not punishable as a crime unless a person is in possession of more than one ounce. According to this suggested model, for those under the age of majority, it would remain a crime/delinquency to grow, sell, or possess over an ounce of marijuana and a civil offense to possess an ounce or less. Despite these changes, the model would have no affect on the “drug-free” schools policy and it would still be a crime to possess marijuana on school property. Also, by recognizing marijuana as the herb it is, all laws that now apply to selling fruits and vegetables (including regulation of fertilizers and pesticides, income tax and land use) would apply to those cultivating marijuana.

Thirty year old Joshua Snow, of Lynn, Massachusetts, recently plead guilty to charges of possession with intent to distribute oxycodone. He was sentenced in federal court in Maine to twelve years in prison as well as six years of probation upon release.

According to court records, Snow was discovered to be in possession of 500 oxycodone pills when pulled over by police officers. Snow allegedly admitted that the pills were his and that he intended to distribute them. In my opinion, based on the limited information given, this admission made to the officers was the main evidence that allowed for Snow to be charged with drug distribution. There is no mention of the packaging of the pills, presence of cash, or any other incriminating evidence. Though the quantity was extremely excessive, if Snow had a valid prescription for that amount of oxycodone there would have been no other evidence of his intent to distribute. Snow’s statements incriminated himself and allowed for him to be charged with a much more severe crime.

Additionally, though it may seem that twelve years in prison and 6 months of post prison probation are unheard of in relation to a drug distribution matter, Snow was found to be a career offender which subjected him to harsher sentencing penalties. No matter the offense, a Defendant’s criminal record is always a factor when deciding what disposition to reach in their case. Snow’s best bet was to be advised by a skilled criminal defense attorney in regards to his case and the possible penalties.

A Massachusetts man was arraigned in court on drug and OUI charges after he was arrested early Thursday morning. Fortunately, the man was released on personal recognizance after being charged with a marked lanes violation, operating under the influence of alcohol, possession of cocaine, possession of MDMA (Ecstasy) and possession of amphetamine salts (Adderall) with intent to distribute. According to police, he also failed three sobriety tests and had $1,792 in cash at the time of his arrest.

In Massachusetts, the maximum penalty for being found guilty of a 1st offense OUI is 2.5 years in jail, up to $5000 in fines, and license suspension for up to one year. According to MGL Chapter 94C 32(A), the maximum penalty for drug possession with the intent to distribute is imprisonment in the state prison for not more than ten years, or in a jail or house of correction for not more than 2.5 years, $10,000 fine, or both. Based on the information released, it is not clear as to whether this was the man’s first offense or if he has any other drug or alcohol related charges on his record. These factors have the potential to play an important part in determining what penalty the man will end up facing.

In this situation however, a few facts imply that there could have been some questionable police behavior involved. The information released informs us that the police officer found the drugs but waited until after the man had failed not one, but three field sobriety tests to inform him he was being charged with a drug crime. In my opinion, it seems as if the police officer had every intention of arresting the man and purposely withheld the fact that he had found the drugs in order to obtain more incriminating evidence against the man.

A new MassINC report by former defense attorneys, prosecutors, and public safety officials calls for changes to Massachusetts “tough on crime” laws by following several other states that focus more on preventing recidivism.

Since the 1980’s, the prison population in Massachusetts has tripled. Our current corrections policies cost more than $1 billion this decade and that number is expected to top $2 billion over the next, without any tangible changes in sight.

One of the major changes that the report proposes is following those states that have been able to curb the corrections budget by focusing more on reentry programs and eliminating mandatory minimum sentences. Currently, Massachusetts has one of the highest recidivism rates, as 6 out of every 10 county jail inmates commits a new criminal offense within six years of release.

On Wednesday, December 5, the Supreme Judicial Court of Massachusetts ruled that police do not necessarily need a search warrant to examine the call log of an arrestee’s cell phone to see that person’s recent contacts. The case had to do with the search of a person arrested for dealing drugs. The police had seen the man get into the car with a known drug user. Once back at the station, after having already been arrested, the police went through the suspect’s call log to find that he had recently been in contact with the known drug user, supporting their belief that the drug deal had been arranged via cell phone. The Court limited the scope of its decision to a simple view of the call log based on the circumstances surrounding the arrest, and did not say that the search would be valid in other circumstances, such as a complicated cell phone that might require a more intrusive search, or the viewing of text messages. The Court made its decision based on the permitted “search incident to arrest”, where police officers have long been allowed to perform a very limited search of an arrestee’s person and readily-accessible belongings.

As a Massachusetts criminal defense attorney, I am not surprised by the ruling. While Massachusetts generally has more procedural safeguards to protect the civil liberties of its citizens than most other states, the facts surrounding this case seem to have provided strong probable cause for the police to believe that the drug user’s phone number would have been listed in the arrestee’s recent call history. And with the intrusion being very minimal, as it was just a viewing of the phone numbers rather than any substantive search of texts, emails, or other data, I would have guessed that the SJC would validate this type of search as “incident to arrest.” I am, however, concerned that police officers may take this to mean that they can view text messages or more personal information that may be contained within a suspect’s cell phone. I anticipate that this is not the last we see of a challenge to this type of search. I believe that anything beyond looking at a “call list” could, and should, be held as beyond the scope of search incident to arrest, and would therefore require a search warrant before police could obtain such personal information.

If you have been arrested for a drug offense or any other crime in Massachusetts, contact my office for your free initial consultation: