Search and Seizure
Boston Search and Seizure Defense Lawyer
Massachusetts Search and Seizure Attorney
Search and Seizure Issues in Defense of Drug Charges and Other Crimes
Contact Boston Search and Seizure Attorney Steven J. Topazio
One of the most compelling defenses for any criminal charge revolves around search & seizure law. The 14th Amendment to the U.S. Constitution says it’s unlawful for law enforcement officials to conduct a search of you or your property without justifiable cause or a warrant. The amendment states:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Just because investigators and police officers are in a position to enforce the law, does not mean they are above the law. No police officer, investigator, or other official has the automatic authority to search you or your home without a warrant or justifiable cause or reason. When a law enforcement official conducts a search without a court-issued search warrant or without justifiable cause, any evidence found during the search will be deemed inadmissible in court and thrown out.
If a Massachusetts law enforcement agency infringed on your constitutional rights in connection with a criminal arrest, we would like to know about it. Our law firm focuses on state criminal defense in Massachusetts. Every day and every week, we are hard at work standing up on behalf of our clients before government agents of all kinds, including prosecutors and judges — insisting that we will not let unconstitutional search and seizure tactics slide by when our clients have been criminally charged as a result.
Did the police perform a wire tap on your phone without following the proper procedures of applying for a search warrant and showing probable cause? Did law enforcement agents commit an illegal stop or an unlawful search to gather key evidence before arresting you for any crime such as the following:
- * An Internet crime
- * A business crime
- * Drunk driving
- * A serious traffic offense
- * Domestic violence
- * A sex crime
- * A drug crime
Boston Criminal Defense Attorney Topazio is prepared to advocate zealously on your behalf if you have been charged with a crime in Massachusetts as a result of illegal search and seizure tactics.
Comprehensive Investigation and Case-Building
Boston Criminal Defense Attorney Steven J. Topazio is prepared to investigate every aspect of the allegations and circumstances of your case, in order to identify the right strategy and build an aggressive defense on your behalf. Contact Boston Criminal Defense Attorney Topazio online or call to discuss your case.
January 24, 2014
Chelsea District Court
Docket # 1314CR1793
Possession to Distribute Class D, Subsequent MGL c94C § 32C(b)
Failure to Yield MGL c89 § 8
Search and Seizure
The client, a 31-year old restaurant employee, was arrested during the course of a routine motor vehicle stop. The police report indicates that after the client’s motor vehicle was stopped, State Police searched the client’s car after smelling an odor of marijuana and found a quantity of marihuana in a backpack, hired Boston Criminal Attorney Steven J. Topazio to defend him. Attorney Topazio filed a motion to suppress evidence arguing that following the decriminalization of less than an ounce of marijuana (MGL 94C § 32L), the mere smell of marijuana raises only an outside possibility that someone has more than an ounce in their possession to justify a search. The mere smell of marijuana Attorney Topazio argued, is not reliable evidence so as to establish that a party has more than an ounce on him so as to subject him to a search. Attorney Topazio argued that his client exhibited no characteristics of impairment therefore the trooper did not have probable cause to believe that the client was operating under the influence of marijuana so as to create probable cause to search. Since the client was not engaged in any type of criminal activity or presented a danger to the trooper or others Attorney Topazio argued that the search was not justified and the court agreed. Today Attorney Topazio persuaded the court to dismiss all charges against his client.
Result: Case dismissed
December 12, 2013
Malden District Court
Docket # 1250CR0359
Heroin, Being Present Where Kept c94C § 35
The client, a 25-year old unemployed laborer, was arrested by Malden Police when he walked into a home during the execution of a search warrant. The client was charged with knowingly being present where heroin is kept after the Malden Police found several bags of heroin in the home they were searching. The client hired Boston Criminal Attorney Steven J. Topazio to represent him after his initial attorney was unable to resolve the case. Attorney Topazio realized that the client was not the original target of the police investigation. Malden Police had focused their investigation on another individual allegedly dealing drugs out of a home in Everett, Massachusetts, where a lot of complaints from neighbors about drug use were made and a lot of foot traffic was occurring. The Malden Police utilized a confidential informant to obtain information about the distribution of illegal narcotics for the home. The confidential informant made a controlled buy of heroin for police, and obtained a search warrant. Thirty minutes before police executed the search warrant, the client was observed entering the premises. When Malden police entered the Everett home on the authority of the search warrant, they seized several items, including plastic bags containing heroin in the room the client was found in. Attorney Topazio argued that there was insufficient evidence to establish that his client knew that he was in the presence of heroin so he pushed the case to trial. On the day of the trial, Attorney Topazio was successful in persuading the Judge to place his client on a period of pre-trial probation for six months, despite his client’s extensive criminal record.
Result: Case to be dismissed after period of pre-trial probation.
October 31, 2013
East Boston District Court
Docket # 1205CR1706
Possession Class B, Cocaine, MGL c. 94C § 34
Motion to Suppress
The client, a 36 year old construction worker, was arrested after police alleged he was observed to be involved in a drug transaction, but when the alleged buyer disappeared into a building, the client was stopped, searched and found him to be in possession of cocaine, hired Boston Criminal Lawyer Steven J. Topazio to represent him. Attorney Topazio filed a motion to suppress the evidence in the case after the warrantless search, claiming the police lacked probable cause to search his client. The facts in this case indicated that the police hustled up to the client’s car when it was stopped at a red light, and ordered him out of his car and pat frisked him for weapons. During the pat frisk, and without manipulating the item, the police immediately recognize an item in the client’s shirt pocket to be cocaine. After an evidentiary hearing at which the Boston Police testified, the court found that the stop of the client was not supported by reasonable, articulable suspicion of criminality. The court also found that contraband nature of the drugs in the defendant’s pocket was not immediately apparent until manipulated in some fashion, which violated the client’s rights, and as a result, the court allowed the defendant’s motion to suppress evidence.
Result: Case dismissed after all evidence suppressed.
October 21, 2013
Malden District Court
Docket # 1250CR2268
Possession with intent to Distribute Class D – Marijuana–MGL c. 94C § 32C(a)
School Zone Violation MGL c. 94C § 32J
The client, a 23 year old barber, was arrested by Malden Police after they executed a search warrant at the client’s house and found a quantity of marijuana and packaging materials, hired Boston Criminal Defense Lawyer Steven J. Topazio to defend him. The police further alleged that the client possessed marijuana with the intent to distribute within 300 feet of a school/daycare, exposing him to mandatory jail time. The basis for the search warrant was five controlled buys at the client’s home with a cooperating informant. A “Controlled Drug” buy in Massachusetts is when the police have an informant purchase drugs in attempt to establish probable cause to search the alleged seller’s residence for illegal narcotics. Because of the high level of police investigation into obtaining the search warrant in this case Attorney Topazio realized a motion to suppress to attack probable cause might not have been successful, so he attacked the credentials of the school instead to get rid of the school zone charge. The prosecutor identified Little Rascals Family Childcare as a child care or daycare center licensed with EEC as the named school. In Massachusetts, a license is required to provide most childcare services by the Department of Education, office of Early Education & Care Programs (EEC) and if someone is to run a daycare service out of their home, EEC requires the homeowner to be licensed with the state. Although the prosecutor claimed Little Rascals Day Care was a school licensed with EEC, and a school for purposes of the school zone statute, Attorney Topazio proved there was no active license with the EEC and filed a motion to dismiss the school zone charge arguing that it did not qualify as a school under the statute. Today, Attorney Topazio obtained a dismissal of the school zone charge but because of the strength of the Commonwealth’s case, the client decided to tender a change of plea on the remaining charge. Despite the prosecutor’s recommendation of a guilty finding on the possession with intent to distribute charge because of five controlled drug buys, Attorney Topazio convinced the court to give his client a continuance without a finding.
Result: School zone charge dismissed and Client avoids mandatory jail time and receives continuance without a finding.
September 13, 2013
Chelsea District Court
Docket # 1214CR1092
Possession of Class A – Heroin c.94C § 34
The client, a 64 year old Army Vietnam War Veteran, was arrested for possession of heroin, was represented by Boston Criminal Defense Lawyer Steven J. Topazio. Attorney Topazio filed a motion to suppress to challenge the seizure of heroin and evidence found on his client. A motion to suppress is a formal, written request to a judge for an order that certain evidence be excluded from consideration by the judge or jury. Without the evidence of the heroin to use at trial, then the prosecutor will not have evidence to convict the client. According to the police report, the State Trooper saw the client leave his motor vehicle, enter a building in an area known for its high level of narcotics activity, and when the client exited the building within one minute, he was approached by the Trooper who stopped him and illuminated him with his flashlight. When the client recognized the Trooper as a police officer, the Trooper told the client to give up the drugs so you don’t make a scene. The client was charged with possession of heroin. Today, after arguing his motion to suppress, Attorney Topazio convinced the prosecutor that this warrantless search was not consensual, without probable cause, and violated his client’s rights. The court agreed and the case was dismissed.
Result: Case dismissed.
June 03, 2013
Franklin Superior Court
Indictment # 12-056
Dissemination of Child Pornography MGL c.272 § 29B
Two Counts of Possession of Child Pornography MGL c.272 § 29C
Cultivation of Class D MGL c.94C § 32C
Possession of Class D with Intent to Distribute MGL c.94C § 32C
Possession of Class C with Intent to Distribute MGL c.94C § 32B
The client, a 34 year old musician, was arrested for dissemination of child pornography, two counts of possession of child pornography, possession with intent to distribute class D and C substances and cultivation of marijuana, hired Boston Criminal Defense Attorney to defend him. Attorney Topazio learned that his client was the subject of an undercover investigation of peer-to-peer file sharing computer software (such as LimeWire and FrostWire) networks to identify those possessing and/or sharing child pornography. Once the client’s computer was identified by law enforcement as one that possessed and shared child pornography, a search warrant was issued and the client’s house was searched and his computers seized. According to the police report, police found child pornography in the form of DVDs, as well as in the form of files on two computers, 36 marijuana plants, large amounts of marijuana and mushrooms. Attorney Topazio attacked the search warrant of his client’s home by attacking the warrantless entry into his client’s computer by law enforcement. Attorney Topazio based his attack on Article 14 of the Massachusetts Declaration of Rights which protects against warrantless intrusions upon privacy interests. That protection covers the obvious disruption caused by police who enter a defendant’s house in search of criminal actors and evidence of their activities. Article 14’s protections also cover less obvious invasions, like the use of electronic devices or human ears to eavesdrop on private conversations. In evaluating the likelihood of success, and evidence against his client, the client decided to forgo the motion to suppress in favor of a change of plea. Knowing the maximum sentence for dissemination of child pornography was 10-20 years in state prison, the Commonwealth recommended a 4-5 State Prison sentence on a change of plea for the charge of possession of child pornography. In preparation of a change of plea, Attorney Topazio presented the court with a sentencing memorandum outlining mitigating factors. Attorney Topazio pointed out that his client was also a victim, being sexually abused by his father and sister starting at the age of three. Attorney Topazio pointed out to the court that his client’s father was a sex offender and was addicted to child pornography as well as drugs and alcohol, and that his client grew up in that environment, being abused and exposed to child pornography. Attorney Topazio encouraged his client to undergo sex abused therapy, which the court took into consideration. Today, despite the Commonwealth’s recommendation of imprisonment of 4-5 years in state prison, Attorney Topazio argued that his client did not require the strict security of state prison and persuaded the court to commit his client to 2 ½ years to the house of correction, followed by a term of probation.
Result: State prison sentence averted in favor of House of Corrections sentence.
March 29, 2013
Chelsea District Court
Docket # 1214CR1919
Possession to Distribute Class B MGL c. 94C § 32A(a)
Motion to Suppress
The client, a 28 year old father of two, was arrested after State Troopers stopped the client’s motor vehicle after the Troopers concluded that they witnessed a street level drug sale, was represented by Boston Criminal Attorney Steven J. Topazio. Attorney Topazio attacked the case by filing a Motion to Suppress evidence arguing the motor vehicle stop not based on reasonable suspicion. According to the police report, the Trooper states that his attention was first drawn to two males described as “sickly looking males pacing back and forth” and to be “nervous and looking around.” The troopers saw nothing exchange between the parties to conclude a drug transaction had occurred. Nevertheless, the troopers after approximately ten minutes watching these individuals state in their police report that they see a “white female who they know to be a drug user, prostitute and person who middles narcotics deals in the Shirley Ave area of Revere”. According to the police report, the two males and this woman begin to quickly walk down Beach Street towards North Shore Road. At North Shore Road the two males split away from the female and walked towards the beach. The female gets into a white van the client was driving. The van thereafter pulled away from the curb. At no time does anything else happen. Nothing is observed passed. No furtive motions of any party are mentioned. Where the white female comes from is not mentioned. The trooper merely concludes that he “suspected that there was a narcotics transaction about to take place”, stopped the van and discovered cocaine in the van. Attorney Topazio argued that the motor vehicle stop not based on reasonable suspicion. Attorney Topazio pointed out that even if there eventually was reasonable suspicion when the troopers saw a piece of torn plastic baggie on the floor of the van, the troopers did not have reasonable suspicion before pursuit began, as required by law, citing Commonwealth v. Stoute, 422 Mass. 782 , 788-789 (1996). Today, Attorney Topazio was able to persuade the Commonwealth to reduce the charges and obtain a six month CWOF for his client on the lesser included offense of straight possession.
Result: Motion to Suppress results in reduction of charges and client accepts a six month CWOF for straight possession.
September 12, 2012
Waltham District Court
Docket # 1251CR0322
Possession with intent to Distribute Class D – Marijuana, M.G.L. c. 94C § 32C
Distribute Class D – Marijuana, M.G.L. c. 94C § 32C
The client, a senior at Babson College, was arrested after police from the Suburban Middlesex Drug Task Force executed a search warrant on the client’s home, after completing an investigation involving several undercover purchases of marijuana of approximately one ounce per buy from the client, over the course of several weeks, hired Boston Criminal Drug Attorney Steven J. Topazio to represent him. Boston Criminal Attorney Topazio obtained the return on the search warrant and learned that several pounds of marijuana, a digital scale, large sums of US currency, several smaller bags of marijuana, a heat sealing packaging machine, and numerous plastic bags used for packaging were seized from his client’s home. Boston Criminal Lawyer Topazio mounted a defense of trying to suppress the drugs by challenging the search warrant. Massachusetts Defense Attorney Topazio analyzed his client’s case which consisted of three undercover police buys of marijuana directly from the client himself at his home. The undercover police buys of marijuana were the basis of the evidence presented to for the magistrate for the issuance of the search warrant. Massachusetts Criminal Attorney Topazio filed discovery motions and prepared a motion to suppress with memorandum of law to challenge the search warrant. During the course of negotiations, the client agreed to tender an admission to sufficient facts but wanted to avoid jail time and a conviction at all costs. Today, Massachusetts Criminal Defense Lawyer Topazio persuaded the court to give his client a CWOF on three counts of distribution to an undercover officer and one count of possession with intent to distribute despite the Commonwealth’s recommendation of a guilty finding and a two year suspended sentence. A CWOF had the further benefit of not causing his client’s driving privileges from being suspended.
Result: Client avoids jail and a conviction on his CORI by admitting to sufficient facts and receives a CWOF on all counts.
May 03, 2012
Dorchester Division of BMC
Docket # 1207CR0566
Search and Seizure
MV Lights Violation, M.G.L. c. 90 § 7
Possession Class D Drug, M.G.L. c. 94C § 34
The Client, a 31 year old self employed medications courier for nursing homes, was arrested on drug charges, hired Boston Criminal Defense Lawyer Steven J. Topazio to represent him. According to the police report, the Client was stopped in his motor vehicle after a State Police Trooper alleged the Client’s rear motor vehicle plate light was broken. When the Trooper approached the vehicle, the Trooper claimed he detected a strong odor or raw un-burnt Marijuana. According to the report, the Trooper asked the Client if there was any Marijuana in the vehicle and how much. The Trooper reported that the Client stated that he had “an ounce,” then produced 3 small plastic bags containing 1.37 ounces of Marijuana. An ounce or less of marijuana is a non-arrestable civil violation. An ounce of marijuana or more is a criminal offense. Attorney Topazio attacked the Trooper’s rendition of the facts as not being credible. Attorney Topazio alleged the Trooper threatened his Client and forced the Client to produce the Marijuana that was secreted in the motor vehicle. Attorney Topazio argued that due to the recent changes in the law which decriminalized an ounce of marijuana or less, the police can no longer search a motor vehicle based on an odor of marijuana alone. Today, Attorney Topazio persuaded the District Attorney to dismiss the charges against his Client on the payment of court costs.
Result: Case Dismissed.