Blog Archives - Page 3 of 5 - Attorney Steven J. Topazio

When can a witness-spouse refuse to testify at trial?

If an argument between husband and wife escalates to one being charged with a crime or accused of domestic violence, the witness-spouse can later refuse to testify at trial. Under Massachusetts law, a witness-spouse has the right to exercise a marital privilege not to testify against their marital partner even if the prosecutor wants to prosecute the case and even without the witness-spouse’s testimony the criminal case might be dismissed due to lack of evidence. read More

Credit card fraud statute treats debit cards as credit cards.

Recently, a defendant argued that he couldn’t be convicted of credit card fraud for misusing a victim’s debit card, since proof of debit card misuse is not sufficient to support a conviction of fraudulent use of a credit card under G. L. c. 266, § 37C(e), because the instrument used was a “debit card” rather than a “credit card.” The defendant contended that because the debit card drew upon the victim’s own funds at the read More

When can a Police Officer Order you to Exit your Motor Vehicle after a traffic stop?

The Massachusetts Supreme Judicial Court held that a police officer may order a driver of a motor vehicle to exit the vehicle during a traffic stop if the officer has a reasonable suspicion that the driver poses a threat to officer’s safety.   An exit order is a minimally intrusive intrusion on the driver’s liberty, and is justified by the need to protect the officer from harm. The court also emphasized that an exit order read More

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