Articles Posted in Search and Seizure

Massachusetts’s ban on the possession of stun guns has been ruled unconstitutional by the Supreme Court as a violation of the Second Amendment’s right to bear arms. In 2015, the Supreme Judicial Court of Massachusetts (“SJC”) upheld the constitutionality of Massachusetts’s prohibition on the possession of stun guns (Jaime Caetano v. Massachusetts, 470 Mass. 774 (2015)). This year, the Supreme Court of the United States (“SCOTUS”) overturned this decision finding the categorical prohibition inconsistent with SCOTUS precedent. (Jaime Caetano v. Massachusetts, 577 U.S. ____ (2016)).

As background, the case began when a woman, Jaime Caetano, was given a stun gun by a friend to protect herself against an abusive ex-boyfriend and the father of her children. It is important to note that Ms. Caetano obtained multiple restraining orders against her ex-boyfriend that all proved futile. One night after work, Ms. Caetano’s ex waited outside her work place, confronted her, and began screaming harassing statements towards her. Ms. Caetano pulled out her stun gun and threatened to use it. The ex-boyfriend backed off and left. At a later date, Ms. Caetano was suspected of shoplifting. She consented to have her purse searched, and police officers found the stun gun in her bag. She was arrested, charged, and eventually found guilty of “possessing an electrical weapon” aka the stun gun. She appealed to the SJC on Second Amendment grounds. The SJC rejected her claim. Continue reading

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.

It has been quite some time since I’ve blogged, but a recent Massachusetts article on a drug bust caught my attention. As I read this article, describing the circumstances surrounding a 20 pound marijuana bust by the Massachusetts State Police, I couldn’t help but do so through the lens of a criminal defense attorney. By the time I finished reading the article, I thought to myself, “I’d like to have this case.” I believe that the search of the suspect’s car could be thrown out, which would result in dismissal of the entire case.

It is well-established in Massachusetts that before a police officer can either order a person out of his or her vehicle during a routine traffic stop, there must be a reasonable belief of either ongoing criminal activity or a reasonable concern for the safety of the officer or the public. Up until four years ago, possession of marijuana in any amount was a criminal offense in Massachusetts, therefore a reasonable belief that a person had marijuana in the car was enough to justify either an “exit order” or a search of the vehicle.

In 2008, Massachusetts passed a law to decriminalize possession of less than one ounce of marijuana. (Other circumstances could justify charging a person with intent to distribute, even when less than one ounce is present, such as large amounts of cash, baggies, a scale, or other items associated with drug distribution). Now that possession of less than an ounce of marijuana is, in and of itself, no longer a crime, the Supreme Judicial Court held that the odor of freshly burnt marijuana alone is not enough to justify an “exit order” and courts have ruled that even when such an odor of marijuana is combined with other factors, such as nervousness, these factors alone are not enough to suggest criminal activity to justify a search of the car. Commonwealth v. Cruz, 459 Mass. 459 (2011); Commonwealth v. Damon, 82 Mass.App.Ct. 164 (2012).