Motion to Suppress Evidence

A motion to suppress is written motion filed with the court by the defendant in the case.  A motion to suppress is argued in front of the judge with both sides supporting their own position. In addition, an evidentiary hearing may be requested by the defendant. During an evidentiary hearing, witnesses, such as police officers may be required to testify. The witnesses will be subject to both direct and cross-examination. After the hearing, the judge will make a ruling on the motion.

Under the United States Constitution, Amend IV, and Article 14 of the Massachusetts Declaration of Rights, a defendant has a right to be free from illegal searches and seizures. In addition, the search of the defendant’s person or property must have been conducted by someone acting on behalf of the “state”, such as police officers or their agents, in order for a defendant’s rights to be violated. If a search and seizure is conducted by a private entity, then a defendant cannot claim that his rights have been violated.

A defendant must have also an expectation of privacy in the area that has been searched.  A defendant cannot claim that the police illegally searched a stolen car that he operated, nor can a defendant claim that he has an expectation of privacy to things that public also has access to, such as a trash barrel placed outside.

A defendant must also have “standing” in order to claim that his rights have been violated.  In Massachusetts, a defendant can claim that he has standing it if he is charged with a possessory crime or was present when the item in question was seized.  “When a defendant is charged with a crime in which possession of the seized evidence at the time of the contested search is an essential element of guilt, the defendant shall be deemed to have standing to contest the legality of the search and the seizure of that evidence”. Commonwealth v. Amendola, 406 Mass. 592, 610 (1990). The law in Massachusetts is different from the Federal law, which does not provide this type of “automatic standing” to a defendant.

If you believe that you were illegally searched or seized, please contact Attorney Gomes at 617-524-6600 for a consultation.

The Smell of Burnt Marijuana Is Not Sufficient To Remove A Person From A Motor Vehicle

The Massachusetts Supreme Judicial Court ruled today that the smell of burnt marijuana is not sufficient to remove a person from a motor vehicle. Please read the article below.

By Martin Finucane, Globe Staff

The odor of burnt marijuana is no longer enough for police officers to order a person from their car, now that possession of less than an ounce of marijuana has been decriminalized in Massachusetts, the state's highest court ruled today.

"Without at least some other additional fact to bolster a reasonable suspicion of criminal activity, the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order," the court ruled in a decision written by Chief Justice Roderick Ireland.

The court said the people's intent in passing the ballot question decriminalizing the possession of small amounts of marijuana was "clear: possession of one ounce or less of marijuana should not be considered a serious infraction worthy of criminal sanction."

"Ferreting out decriminalized conduct with the same fervor associated with the pursuit of serious criminal conduct is neither desired by the public nor in accord with the plain language of the statute," the court said.

Justice Judith Cowin, who has since retired, penned a dissent.
She wrote that up until today, state law has allowed police to perform a warrantless search if they smelled burnt marijuana in a car.

"Even though possession of a small amount of marijuana is now no longer criminal, it may serve as the basis for a reasonable suspicion that activities involving marijuana, that are indeed criminal, are underway," she wrote.

"Our case law is clear that 'the odor of marijuana is sufficiently distinctive that it alone can supply probable cause to believe that marijuana is nearby.' The advent of decriminalization certainly has had no effect on the distinctiveness of marijuana's odor. Nor has decriminalization affected the criminal status of numerous other activities involving marijuana," Cowin wrote.

Voters in November 2008 overwhelmingly approved Question 2, which decriminalized marijuana, with backers calling for a "more sensible approach" to marijuana policy and focus by law enforcement on more serious and violent crimes. Opponents argued that the law would promote unsafe drug use.

-Attorney Gomes

Can My Statements Be Used Against Me in a Criminal Trial?

The answer to this question is an overwhelming YES! Any statement that a defendant gives to the police or to anyone else involved with an incident are called admissions, and can be used at the defendant's criminal trial. While most people who are stopped by the police believe that if they talk to the police and give them as much information as possible that they are being helpful, this is generally not the case.

Although a police officer may tell you that if you cooperate that he/she will "Cut you a deal" or "Put in a good word for you with the DA", these are usually ploys to get you to give the officer information that will later be used against you.  Even if a police officer does make a recommendation to the district attorney regarding what type of sentence a defendant should receive, there is no guarantee that the district attorney will make that recommendation to the Judge.

Massachusetts Criminal Court Process

Many defendants attending criminal court for the first time can find the experience very overwhelming especially in some of the busier courts, such as the Dorchester District Court. This post is meant for those individuals and is intended to be a guide for individuals that do not frequent criminal court houses.

Generally, your first court appearance will be the arraignment. During the arraignment hearing you will be notified about the crimes you are charged with. Any issues of bail will be determined, and you will be given a date to return for a pretrial conference. The next court date will be the pretrial conference. At the pretrial conference your attorney will exchange information/evidence with the assistant district attorney.

Can the Police Search My Car Without My Permission or a Warrant?

In most instances the police cannot search your car without your permission in Massachusetts under the 4th Amendment of the U.S. Constitution. The main reasons that a police officer may lawfully search your car is if he or she has probable cause that you have committed, are in the process of committing, or are are about to commit a crime; or if they believe you are armed and dangerous.

If the police stop you for a motor vehicle violation, they are allowed to ask you for your driver's license and registration in order to make sure that they are both valid. Once the officer has confirmed that both your license and registration are valid, the officer is obligated to write you a ticket and release you unless he or she has probable cause to investigate further.

A police officer may not order you from your vehicle unless he is placing you under arrest, or he has probable cause to search your car. If an officer asks for your consent to search your car it is your right to refuse his request. Please remember that if you give a police officer consent to search your car, you cannot later claim that he violated your rights. Also, please keep in mind that the 4th Amendment does not apply in cases where the car is stolen.

If you think you are the victim of an illegal search in Boston, MA, or surrounding areas, please contact Attorney Theresa Gomes at (617) 524-6600 immediately for a Boston criminal defense attorney who will work hard in your defense.

Do I Have to Testify at my Criminal Trial?

The short answer to this question is NO! I guess after a number of years working as a criminal defense attorney, and my prior experience as a police officer, I operate under the assumption that everyone knows the answer to that question. However, after a trial I had last week, and after speaking with a friend, I am beginning to think that not everyone knows that they don't have to testify at their criminal trial.

Under the U.S. Constitution, we all have a 5th Amendment Privilege against self-incrimination. In other words, if you are charged with a crime, a court cannot force you to testify against yourself. We are all presumed innocent until proven guilty. It is not your responsibility to help the government prove or disprove your innocence. You can choose to testify, or not to testify at your trial, whether you are guilty or innocent. In addition, a judge or jury cannot hold the fact that you didn't testify at the trial against you.

I had a trial last week, involving distribution of heroin, where my client did not testify. The jury found him not guilty after thirty minutes of deliberation because the government was not able to prove its case. I'd like to think this is an example of the 5th Amendment at work.

If you have any questions about this post please feel free to leave a comment or email Attorney Gomes at tgomeslaw@yahoo.com. If you want to hire an experienced criminal defense attorney that will work hard for you, call (617) 265-2700 x106 now.