Blog Archives - Attorney Steven J. Topazio

Court Suppresses Firearm Discovered During An Investigatory Stop After It Finds Stop Was Based On A Hunch Rather Than Reasonable Suspicion Grounded In Specific, Articulable Facts And Reasonable Inferences Drawn Therefrom.

Commonwealth v. James Kearse, Docket # 18-P-1619 (2020) After observing the defendant, James Kearse, standing in the vicinity of two other men who engaged in a quick handshake, Brigido Leon, an officer in the Boston Police Department’s drug control unit (DCU), believed he had observed a hand-to-hand drug transaction.  Officer Leon radioed other officers to conduct an investigatory stop of the defendant and his companion.  As a result of this stop, the defendant was pat read More

The Exigent Circumstances Exception To The Search Warrant Requirement Is Inapplicable To Establish Probable Cause Where The Police Create The Exigency Themselves By Not Procuring A Search Warrant When It is Practical to Do So Before Going Into The Defendant’s Residence To Make A Warrantless Arrest

In the case of Commonwealth Vs. Jean Alexis, 481 Mass. 91 (2018) the SJC held that a Superior Court judge properly allowed the criminal defendant’s pretrial motion to suppress evidence that police officers observed in plain view during a protective sweep of his dwelling after his warrantless arrest, where, under art. 14 of the Massachusetts Declaration of Rights, the police could not avail themselves of the exigent circumstances exception to the warrant requirement when it read More

The Police Cannot Search An Individual’s Home For Drugs Unless They Obtain A Search Warrant Based On Probable Cause

In Commonwealth Vs. Jillian M. Silva, 94 Mass. App. Ct. 270 (2018), the Appeal’s Court reversed the allowance of the defendant’s motion to suppress drugs seized from her apartment and concluded that, contrary to the Superior Court Judge’s ruling, the police affidavit in support of its application for a warrant to search the apartment established probable cause to believe that drugs would be found there.  The Appeals Court found that police observations of an individual’s read More

Discharging a Firearm Within 500 feet of building in violation of MGL c. 269 § 12E is a Strict Liability Offense requiring No Criminal Intent or Mens Rea

In Commonwealth v. Kelly (No. SJC-12710) – January 30, 2020, the Supreme Judicial Court affirmed a defendant’s conviction of discharging a firearm within 500 feet of a building, in violation of M.G.L. c. 269 § 12E, and unlawful possession of a firearm, in violation of M.G.L. c. 269 § 10(h).  The court, in this matter of first impression, held that section 12E does not require any mens rea as to the element of discharge and read More

The Validity Of An Inventory Search Turns On The Propriety Of The Underlying Impoundment Decision

In the case of Commonwealth vs. Wilson Goncalves-Mendez, 484 Mass. 80 (2020), the SJC affirmed the allowance of the defendant’s motion to suppress, because the impoundment of his motor vehicle was found to be unreasonable in light of his “passenger’s availability to drive and the failure by police to ask the defendant whether the passenger taking custody of the vehicle would be a preferred alternative.”  The court held that when the police are aware that read More

Stop and Frisk law in Massachusetts

The law on patfrisks has been clarified in the case of Commonwealth v. Torres-Pagan, 484 Mass. 34, (2019). A stop and frisk occurs when a police officer temporarily detains a pedestrian and pats down their outer clothing when there are specific and articulable facts leading a reasonable police officer to believe that the person is engaged in criminal activity and is armed and dangerous. Both the Fourth Amendment to the United States Constitution and art. 14 of read More

“Field Sobriety Tests” CANNOT be used to establish that a driver who has used marijuana is legally impaired in OUI Marijuana cases.

In the case of Commonwealth v. Gerhardt, the Supreme Judicial Court ruled that a police officer can testify to observations made during field sobriety tests of drivers suspected of being under the influence of marijuana, but the results of those field sobriety tests may not be used as the sole evidence to convict someone of driving under the influence of marijuana.  In order for a police officer to testify to the correlation between marijuana impairment read More

Restitution as a Condition of Probation

A defendant’s ability to pay is a consideration in determining whether to order restitution as a condition of probation. In the case of Commonwealth vs. Kim Henry, 475 Mass. 117 (2016), the court addressed the issue of restitution as a condition of probation to the victim.  The facts of the Henry case are as follows.  The defendant was employed as a cashier at a Walmart department store in Salem. A Walmart video camera captured the read More

The meaning of the “stay-away” provision in the typical 209A abuse prevention and 258E harassment prevention order

The protected party need not actually be present. In the case of Commonwealth v Goldman, 94 Mass. App. Ct. 222 (2018), the appeals court concluded that if no distance is specified in a harassment prevention order pursuant to G. L. c. 258E, then the provision that the defendant remain away from the protected party’s residence prohibits the defendant from crossing the residence’s property line, engaging in conduct that intrudes directly into the residence, and coming read More

Moped Operators can be charged with Operating Under the Influence but not Operating after Suspension

Whether a motorized two-wheeled vehicle qualifies as a motorized bicycle generally depends on the size of its engine, the nature of its transmission, and the maximum speed the vehicle is capable of achieving. G. L. c. 90, § 1 (definition of a motorized bicycle). A “pedal bicycle which has a helper motor” automatically qualifies as a motorized bicycle. G. L. c. 90, § 1. According to stature, ”Motorized bicycle”, is a pedal bicycle which has a read More