Massachusetts Criminal Lawyer BlogA Judge in Woburn District Court orders drugs seized during a motor vehicle stop suppressed. MD, a 22 year old woman was on probation in Salem District Court for possession of heroin, cocaine, and class E drugs. While on probation she got pulled over by the Reading Police; a search of her pocket book yielded numerous packets of heroin and several implements for drug use. She was faced with two cases: (1) the new drug possession case brought by the Reading Police in Woburn District Court and (2) a probation revocation proceeding brought by her probation officer in Salem District Court. MD retained Attorney Robert Lewin to handle both cases. The facts leading to the stop of MD’s car were as follows. A Reading Police Officer was on patrol in an area of Reading where there had been reports of suspicious activity at a house on a particular street. The Officer testified that he had received reports of numerous cars coming and going at a house on a named street. One night at about 10:00 PM the officer observed a black sedan exiting the street. He followed the sedan. The driver (MD) drove slowly and appeared to the officer to be driving “too carefully” so as to avoid being stopped. The officer ran the license plate and was able to determine that the owner of the car was a young woman with an open drug case in Salem District Court. He testified that he observed the woman who was driving stuffing what appeared to be a plastic bag into her purse on the front seat of the car. Based on those facts he pulled her over and searched her purse and discovered heroin. Before an officer can lawfully stop of motor vehicle the officer must have “a reasonable suspicion based upon articulable facts that (the operator) has committed, is committing, or is about to commit a crime”. “A mere hunch is NOT enough” to justify a stop of a motor vehicle. Attorney Lewin filed a Motion to Suppress the evidence discovered by the officer following the stop of the motor vehicle. The Judge in Woburn District Court conducted a full evidentiary hearing at which the Officer and MD testified. After the hearing the Judge wrote a decision in which he ruled that the officer had a hunch, but not a reasonable suspicion. On February 8, 2012 the Judge allowed Attorney Lewin’s Motion to Suppress the drugs. The case is next scheduled for February 29, 2012 at which time the District Attorney’s Office must decide whether to appeal the Judge’s decision or allow the case to be dismissed. In the meantime MD and Attorney Lewin went over to Salem District Court to address the probation revocation proceeding. Attorney Lewin got MD into a drug treatment program (and she is doing well) and the notice of probation surrender in Salem District Court was withdrawn.
Articles Posted in Probation Violations
TWO POUNDS OF WEED – CASE DISMISSED
AO, a 22 year old entrepreneur, was on probation for possession with intent to distribute marijuana. With three months left on his two year probation, AO helped a college friend move from one apartment to another. AO used his car to help shuttle the friend’s boxes and suitcases from the old apartment to the new apartment. After the last trip, the friend took his remaining belongings from AO’s trunk, thanked AO for the help and went on his way. Or so AO thought. AO ran some errands and was heading back to his house in Watertown. When he was just 3 blocks from his home in Watertown, a State Police officer pulled him over for speeding. The State Police officer believed that he smelled the odor of burnt marijuana from within the vehicle and ordered AO to get out of the car. The State Trooper searched the car and then the trunk. There was a cardboard box mixed with some of AO’s belongings in the trunk. AO’s friend had left the box in the trunk. The State Trooper asked what was in the box and AO explained that the box was not his. The State Trooper was undeterred and opened the box. The box contained two pounds of high quality marijuana. The State Trooper filed an application for criminal complaint charging AO with possession with intent to distribute marijuana. Because AO was already on probation for the same thing, he faced not only two years on the new charge but also revocation of his probation and a jail sentence up to two years in the old case. In June 2011, AO was summoned to the Waltham District Court for a show cause hearing (sometimes called a Clerk-Magistrate’s Hearing) before a Clerk-Magistrate. The stakes were high, as AO could have been sentenced to two years in jail on each of the two cases if the Clerk-Magistrate issued a criminal complaint. AO retained Attorney Joshua Lewin. Attorney Lewin thoroughly prepared the case for the hearing before the Clerk-Magistrate and made a persuasive presentation at the hearing. After the hearing, the Clerk-Magistrate dismissed the application and did not issue a complaint. Once the new charge was dismissed probation chose not to go forward with a probation surrender. AO walked on both cases and could not have been more thankful for Attorney Lewin’s services.
FLORIDA RESIDENT WITH MASSACHUSETTS PROBATION VIOLATION
In 1992, JB pled guilty to possession of cocaine and heroin in the Lowell District Court. He was sentenced to one year in the House of Correction, but the Judge suspended the jail sentence for one year. This meant that JB would never see the inside of a jail cell so long as he complied with the terms of his probation for one year. During his third month of probation, however, JB left snowy Massachusetts and moved to sunny Florida without getting the approval of his probation officer or the Judge. The Probation Department at Lowell District Court issued a Notice of Surrender for Alleged Violation of Probation and the Court issued an arrest warrant in 1993 for JB. JB never returned, instead establishing himself and a career in Florida. After 17 years living in Florida, however, the law caught up to JB. While attempting to renew his driver’s license, the State of Florida informed him that he had an outstanding warrant in Massachusetts and that Florida would not renew his driver’s license until the warrant was cleared. JB needed his license to work but was scared that the Judge would send him to jail for one year if he returned to Massachusetts. JB called attorney Joshua Lewin and explained the situation. After discussing the case, JB retained Attorney Lewin. Attorney Lewin promptly went to the Lowell District Court and was able to get the warrant recalled without JB having to be present in Court. As a result, JB was able to renew his license in Florida and he was not without a license for a single day. But that was only half the battle, as JB was still facing a one year jail sentence in Massachusetts. Attorney Lewin spoke to the probation department and court prosecutors about the case. On a snowy April morning, JB returned from Florida to Lowell and appeared in front of the Judge with Attorney Lewin. Attorney Lewin persuaded the Judge that it was not in the interests of Justice to send JB to jail. In fact, Attorney Lewin’s argument was so persuasive that the Judge terminated JB’s case entirely and set him free without any punishment. When he came to Massachusetts, JB was facing a one year jail sentence. The only punishment he got was having to deal with a freak New England spring snow storm. That was punishment he was willing to accept. Oftentimes we are able to get the Judges to terminated probation in these old cases without the client having to return to Massachusetts; every now and then, however, we get a judge who insists that the client return to Massachusetts. This was the case here; but when the client did appear the Judge terminated the probation and discharged the client from any further responsibility in the case.
RAPE PROBATION VIOLATION SUCCESSFULLY DEFENDED
In 1983, WC – then age 28 – went out on a date with a woman and ended up being accused of Rape. He did not deny the charge and was able to negotiate a plea where he was given a 7-10 year suspended state prison sentence and he was placed on Probation for five years. For four years he was a perfect probationer. At the beginning of his fifth year of probation he simply walked away from the probation and moved to Louisiana. From 1988 to 2011he lived in Louisiana. He started a business and became successful. The business was a custom motorcycle engine shop. On a February day he was in his shop when the US Marshalls showed up with a warrant for his arrest for being a fugitive from justice from the state of Massachusetts. They cuffed him and brought him to a local court in Louisiana where he was held for rendition back to Massachusetts. His friends contacted Attorney Robert Lewin in Massachusetts. WC ultimately waived a hearing in Louisiana and was transported back to Massachusetts. He was brought to Middlesex Superior Court (now in Woburn, MA) and brought before a Magistrate where he was ordered held without bail. He was served with a Notice of Surrender for Alleged Violation of Probation. There was no question that he had violated his probation: he left the state without permisssion; he failed to keep in contact with probation; he failed to report to probation; etc. The Probation Department was asking that his probation be revoked and the 7-10 year state prison sentence be put into effect. Attorney Lewin put together a memorandum for the Judge that included letters from associates in Louisiana, business records, and medical records. The case required some thinking outside the box. Extending his probation did not make sense as that would require that he not leave Massachusetts and that he wear a GPS bracelet. Sending him to prison to serve 7-10 years for a crime that occurred 28 years earlier did not make much sense either. WC’s friends in Louisiana were willing to put together a free WC fund and raised $15,000. Attorney Lewin suggested to the Judge that she find WC in violation of his probation and that she assess $5,000.00 as a court cost penalty and terminate his probation. The Judge liked the idea but thought the money way too short. The horse trading began and when the dust settled on March 22, 2011 the Judge ordered $15,000. WC’s friends wired the $15,000 up to Attorney Lewin who paid it to the Court. WC was brought back before the Judge who ordered his probation TERMINATED and ordered him RELEASED FROM CUSTODY. He was then discharged from the case and the case was closed. WC is back in Louisiana building engines and catching shrimp.
CALIFORNIA RESIDENT GETS MASSACHUSETTS WARRANT CLEARED
For RD, a sixty-two year old California real estate broker, life was good until in 2011 the California Department of Motor Vehicles refused to renew his driver’s license because RD’s driving privileges in Massachusetts were suspended. It turns out that in 1983 (yes, 28 years ago) RD was arrested for DUI in Massachusetts. Back in 1983 he went to Westborough District Court (Massachusetts), pleaded guilty, was placed on probation for one year and ordered to complete a first offender drunk driving program. Before beginning the program RD’s then employer moved his job to California. RD “blew off” the probation and the DUI Program and moved to California. RD got a California license and for the next 28 years life was good. Meanwhile RD’s case in Westborough District Court went into default status, a notice of probation violation was issued, a warrant for his arrest issued, and the Massachusetts Registry of Motor Vehicles suspended his driving privileges in Massachusetts. Unfortunately for RD, over the years the computer tracking systems dramatically improved and in March of 2011 the California Department of Motor Vehicles notified RD that he could not renew his California license until he got reinstated in Massachusetts. On Friday, March 4, 2011 RD contacted Attorney Lewin. Attorney Lewin contacted the Westborough District Court and confirmed that RD was in default of his probation and that there was a warrant outstanding against him. The Chief Probation Officer at the Court took the position that RD had “blown off” his probation and therefore they were unwilling to do anything for him unless he returned to Massachusetts. And then Probation’s position was that RD should suffer a 1 year loss of his driving privileges in Massachusetts (the typical penalty in Massachusetts for persons who are either kicked out of the program or fail to attend). This would have meant a one year loss in of license in California. On Saturday, March 5 RD wired a retainer to Attorney Lewin. Over the weekend Attorney Lewin did a one-hour phone conference with RD and gathered all the necessary information from RD so that an effective written and oral presentation could be made to the Judge on Monday and Attorney Lewin prepared a Motion to get the matter cleared up. On Monday afternoon, March 7, 2011 Attorney Lewin appeared in Westborough District Court. The Chief Probation Officer’s position had not softened. After a full hearing on the Motion that Attorney Lewin presented to the Judge, the Judge took the following action: (1) The Judge excused RD’s appearance in Court and allowed Attorney Lewin to appear in his behalf. (2) The Judge removed the default that had entered back in 1983. (3) The Judge ordered the Warrant cancelled. (The cancellation of the warrant is the first required step in getting the driving privileges reinstated.) (4) The Judge found that RD was in violation of his probation because he left the state without permission, because he failed to complete the DUI program, and because he had failed to report to probation. (5) The Judge then reprobated RD and extended his probation for 5 months and ordered that he could now do the First Offender DUI Program in California. (Over the weekend Attorney Lewin had downloaded information on the California First Offender DUI Program and furnished it to the Judge anticipating that the Judge might take that course.) Attorney Lewin left the courthouse late that afternoon and called RD in California. Attorney Lewin told RD that Attorney Lewin still had to go to the Massachusetts Registry of Motor Vehicles to complete the process. On Tuesday morning, March 8, 2011 Attorney Lewin went to the Massachusetts Registry of Motor Vehicles with the Notice of Warrant Cancellation from Westborough District Court. After a hearing the Massachusetts Registry of Motor Vehicles cancelled the suspension of RD’s driving privileges. This information was then entered (electronically) by Masscahusetts into the National Driver Register (NDR) System. Attorney Lewin left the Registry of Motor Vehicles building and called RD in California and told RD to get over to the California Department of Motor Vehicles and get his license. RD told Attorney Lewin “If you were standing in front of me I would give you a big hug!!!!” RD got his California License that same afternoon. Within 48 hours of being hired Attorney Lewin was able to clear up this 28 year old problem.
PROBATION VIOLATION NO JAIL
In 2008 JT plead guilty in Westborough District Court to two counts of larceny over $250 and one count of receiving stolen property. He was placed on Probation for 2 years, ordered to pay restitution and court costs, and ordered to have a substance abuse evaluation and treatment and remain drug and alcohol free. JT paid off the restitution and the court costs but then left the state without permission. He failed to follow through with the substance abuse evaluation. The probation department had a warrant issued for his arrest and he was subsequently picked up and brought to Westborough District Court. Attorney Lewin was retained. In November 2010. JT and Attorney Lewin appeared in Westborough District Court for a probation revocation hearing. Attorney Lewin had JT enroll in a substance abuse program. Attorney Lewin and JT met with JT’s probation officer and worked out a plan as an alternative to jail. The plan was presented to the Judge who extended JT’s probation for six month with the condition that he remian in treatment and not violate the criminal law. All JT had to do was remain clean for the six months and his probation would be terminated. JT was even given permission to relocated to Maine and his Probation supervision was transferred to Maine. Within a month JT was arrested in Maine and chraged with DUI and thereafter with Driving After Suspension Of His License. Maine notified Massachusetts and JT was once again served with a notice of revocation of probation. Attorney Lewin was once again retained and began negotiating with Probation. Ultimately Probation said they would recommend a 60 day committment to the House of Correction and then terminate his probation. On February 14, 2011 Attorney Lewin and JT appeared in Westborough District Court. The Judge found that on the basis of the subsequent arrests in Maine (for the DUI and the Operating After Suspension) that JT had violated probation. The Probation Officer recommended a committment to the house of correction for 60 days. Attorney Lewin reviewed for the Judge the entire history of the case including the fact that the restitution had been paid early on in the probation, that JT was an Honorably Discharged Veteran of the USAF, and that as a result of his arrests in Maine that JT was getting substance abuse treatment in Maine. Attorney Lewin pointed out that JT was employed full time in Maine as a machinist and was supporting his daughter and granddaughter (who also lived in Maine). Attorney Lewin suggested that rather than the State spending the money to house and feed JT for 60 days it would make more sense if JT paid a substantial sum to the Commonwealth to atone for his violations of probation. The Judge, after due consideration, agreed and ordered JT to pay $1,000 in court costs. JT’s family went immediately from the Courthouse to the nearest Bank of America, withdrew $1,000.00, returned to the Courthouse, and paid the $1,000.00 to probation. The Judge ordered the Probation terminated and JT was discharged from probation and from any further responsibility to the Court. The three cases in Westborough were closed and JT returned to Maine very happy. He had gone to Court in the morning prepared for the worst and left a happy man.