Massachusetts Legal Developments Blog

In order to convict someone of drug trafficking in Boston, prosecutors must first prove that the drugs in question actually exist. This almost always requires some degree of analysis in a laboratory. Lab technicians must determine that the substances recovered from the defendant are actually prohibited, and this may require significant analysis of the drug’s chemical structures. But what happens when the person who tested the drugs can’t testify? Can prosecutors call upon some other “substitute expert” to speak about the test results? This is a question that the Supreme Court of the United States was forced to answer.  

Supreme Court Sends Important Drug Trafficking Question Back to State Court

On June 21, the Supreme Court was asked to review a decision about a substitute expert in a drug case. The expert in question testified about analysis that he did not actually perform, and the defendant argued that this was a violation of his Sixth Amendment rights. Specifically, he argued that he had a right to face his accuser. This is also known as the “confrontation clause.” 

The Supreme Court mostly disagreed with this sentiment, although they left the door open for further debate in the future. Although the Justices were unanimous, many had very different things to say about how this type of situation should be handled. Justice Alito provided one of the most interesting comments, stating that the substitute expert “stepped over the line” and “testified to the truth of the matter asserted.” 

Could the Supreme Court Ban Substitute Experts?

Despite the unanimity of the Supreme Court's decision, the court may one day prevent substitute experts from testifying about drug analyses that they did not perform. Such testimony is routinely offered during drug trafficking trials in Massachusetts, and a potential Supreme Court decision could have serious implications. 

If prosecutors have no other choice but to locate the specific technician or analyst who performed the lab tests, they may struggle to get the testimony they need. It is much easier to find a random analyst who just so happens to work at the same lab, and this is a strategy that has served prosecutors well over the years. In the Commonwealth, prosecutors must present forensic evidence that proves beyond reasonable doubt the exact chemical composition of the drugs in question. 

Where Can I Find a Defense Attorney for Drug Distribution Charges in Boston?

If you are serious about fighting your drug distribution charges in Boston, contact Edward R. Molari, Attorney at Law. We have helped numerous defendants over the years, including those who face drug trafficking charges. We know how crucial drug testing analysis can be, and we can help you fight for your constitutional rights during this legal process. Book your consultation today to discuss the most appropriate defense strategy in more detail. 

Your criminal record in Massachusetts is tied to your license plate number. Assuming the vehicle is registered in your name, there is nothing stopping police officers from running a criminal record check based only on your license plate number. Unlike a traffic stop, they do not need probable cause to do this. Since criminal records are public, virtually anyone could do the same. A recent case in Massachusetts shows that police may initiate traffic stops having already decided whether they want to search vehicles. 

Boston Police Fail to Mention Use of Criminal Record Check Before Search

In May of 2024, the official website of the Boston Police announced that they had successfully recovered a large-capacity firearm during a traffic stop in Roxbury. They claimed to have initiated the stop because the defendant "failed to stop at a stop sign" on two separate occasions. They proceeded to pull the defendant over. For whatever reason, the Boston Police found it necessary to mention that the defendant did not stop "immediately" – implying some kind of pursuit took place. However, the same report notes that the defendant complied and pulled over on Washington Street.

The police then claim to have noticed the man "visibly shaking" while handing over his license and registration. It's not clear whether this can be corroborated by bodycam footage – or any evidence other than the officers' testimony. 

The report then goes on to say that the officers made "multiple attempts" to extricate the driver from their vehicle. Again, it's not clear how exactly this happened. Did the officers merely request that the driver exit this vehicle, or did they physically remove him against his will? They then searched the man's body but ostensibly found nothing. Unsatisfied, they proceeded to search the vehicle and recovered a firearm. 

Police say that the Glock 23 handgun is stolen and that it features a 21-round magazine. They also mention that it has been fitted with a laser sight, although this is completely legal in Boston. As a result of this traffic stop, the defendant was charged with numerous firearms offenses and receiving stolen property. 

Did the Police Decide to Search His Vehicle Ahead of Time?

As most people know, police officers in the United States need a valid reason to search a vehicle due to the Fourth Amendment of the United States Constitution. Based on this report, it seems that the Boston Police are trying very hard to justify pulling this man over under extremely flimsy circumstances. Most drivers would need to cause an accident to be pulled over for "not coming to a complete stop" at a stop sign.

The Boston Police also seem to imply that the defendant failed to stop "immediately," although he did pull over and comply fully. How long did the defendant wait before pulling over? Was he simply searching for a safe spot to stop? The police do not give any specifics in this regard, and they seem content to vaguely imply that this individual attempted to flee. 

Finally, we have the dubious claim that the man was "shaking" while handing over his license. This observation is the kind of thing that is impossible to confirm or deny. Even if he was shaking, one might argue that interacting with police is an inherently scary experience – even if you've done nothing wrong. 

In the end, it is safe to say that the police had already decided that they wanted to pull this man over and search his vehicle. They inevitably ran his plates before initiating the traffic stop, learned of his criminal record, and made a decision to violate his Fourth Amendment rights. While the Constitution is supposed to protect us from unreasonable searches, the reality is clear: Police can theoretically pull us over and search our vehicles whenever they feel like it. We should also note that although the recording of the interaction will be suppressed, the officers involved may testify "at trial as to what was said during the three transactions or what he observed during them."

Find an Experienced Criminal Defense Lawyer in Boston

If you have been searching for a Boston criminal defense lawyer, consider Edward R. Molari. We have helped numerous defendants fight unlawful searches, seizures, and traffic stops. We have considerable experience with firearms defense, possession defense, and more. Book a consultation today to discuss an appropriate defense strategy. 

In Massachusetts, you might assume that your medical records are always private. Federal privacy laws prohibit healthcare providers from revealing your records, and doctors also protect your confidentiality from a purely ethical standpoint. But what happens when the authorities attempt to use your medical records to prove that you were Operating Under the Influence (OUI) in Massachusetts?  

In 2022, The Supreme Court Protected Medical Privacy for OUI Cases

In 2022, the Supreme Judicial Court (SJC) of Massachusetts ruled that obtaining someone’s hospital records to establish their BAC level was unlawful. In the case of Commonwealth v. Eric J. Moreau, the State police obtained these BAC levels by analyzing a blood draw conducted by hospital staff while a defendant received medical treatment. The defendant never consented to having his blood taken, and the police never even informed him of what was happening. 

Initially, a judge stopped the defendant from suppressing the evidence. After review, however, the SJC found that this was a clear error. They concluded that every defendant must consent to a blood test – whether it is made by police officers or “at the direction” of police officers. The SJC concluded that if authorities fail to obtain consent, any subsequent test results become inadmissible. 

Things might have been different if the suspect had been transported to a police station instead of a hospital. Specifically, the SJC noted that if the officer had placed the defendant under arrest, refusal to consent to a BAC test would have resulted in separate penalties. This type of situation happens quite frequently, as car accidents often cause injuries that require immediate hospitalization. The SJC also noted that the officer could have theoretically placed the suspect under arrest before transport to a hospital. In past cases, officers have placed OUI suspects under arrest while traveling with them in ambulances. 

In 2024, The Supreme Court Reduced Medical Privacy With a New Decision

While Massachusetts gave defendants solid medical privacy for a few years, the SJC returned to the issue two years later and started backpedaling. In Commonwealth v. Bradley Zucchino, the Supreme Court ruled that the Moreau decision only applied to simple OUI. Because the defendant in this case was facing a charge of OUI causing serious bodily injury, authorities were allowed to use blood samples taken from the defendant during their hospital treatment – without consent. Although the defendant sought the same privacy protections under Moreau, the judge denied this motion – a decision that was backed up by the SJC. 

What made this crash different? First, the crash in the Moreau case was a single-vehicle collision where the defendant had crashed into a tree. Aside from the defendant, no one else was injured. In Zucchino, the defendant had crashed into another vehicle – and this collision caused one death. The defendant then faced charges of OUI causing serious bodily injury – preventing them from seeking the same protections laid out by Moreau. The SJC wrote that the defendant’s reading of Moreau was “too broad.” 

Contact Edward R. Molari Today

The conflict between medical privacy and OUI laws can be complex. To discuss your case and potential defense strategies in more detail, contact a Massachusetts OUI defense lawyer today. Book your consultation with Edward R. Molari. 

A recent case in Massachusetts focused on Callyo, a new software application gaining popularity among undercover police officers across the nation. While the app certainly has its uses, recordings made with this software may violate the Commonwealth’s wiretapping laws. A recent decision shows that these recordings may be suppressed. But can wiretapping laws really protect you from undercover police officers in Massachusetts? 

Commonwealth v. Du 

In October of 2023, the Commonwealth issued an important decision on the admissibility of secret recordings made by undercover police officers in drug distribution cases. In Commonwealth v. Du, a defendant faced distribution charges after being recorded making drug transactions on three different occasions. Each time, the defendant sold about $100 worth of narcotics to an undercover officer. Each time, the officer made secret recordings of the transaction without a warrant. The Callyo app transmitted the recordings live to other officers who were listening in, and it also uploaded and stored the recordings to the cloud. 

After facing distribution charges, the defendant argued that the recordings violated the Commonwealth’s wiretap statute. The Commonwealth then attempted to argue that the defendant had no expectation of privacy since the drug transactions were carried out in public spaces. In addition, the Commonwealth claimed that there was “reasonable suspicion” that the defendant had engaged in a drug distribution network – providing a clear exception to the wiretap law. 

These arguments failed upon review. The fact that the transactions occurred in public was irrelevant since the Commonwealth’s wiretap statute bans all “secret” recordings – regardless of where they take place. In addition, there was never any evidence that the defendant had carried out drug transactions as part of an organized crime organization. Officers only collected evidence of the “controlled buys,” and they never presented anything to suggest the defendant was part of a “narcotics distribution network.” The Commonwealth specifically noted that each of the three transactions involved small amounts of narcotics. In other words, the “organized crime” exception to the wiretap ban did not apply. 

As a result, the recordings were suppressed. The Commonwealth even discussed whether the officers should face criminal penalties for violating the wiretap statute. In Massachusetts, you can face up to five years in prison for willfully violating these wiretapping laws. A $10,000 fine is also possible. 

What Does This Case Mean?

While some observers may feel encouraged to hear that the Commonwealth is protecting its citizens against illegal surveillance from the authorities, the decision in Commonwealth v. Du does not completely negate the efficacy of undercover operations. In its decision, the Commonwealth specifically stated that the undercover officer who made the recordings could still testify on what they had witnessed during the transactions. This testimony could be as effective as a video/audio recording, and it might detail exactly what the defendant said and did during the transactions. 

In addition, the result might have been different if the defendant had been charged with drug trafficking, as the Commonwealth’s wiretapping laws would not have applied. 

Work With a Qualified Massachusetts Defense Attorney

If you have been charged with drug trafficking or drug distribution due to undercover police recordings, it is important to work with a Massachusetts defense lawyer. Book a consultation with Edward R. Molari today to get started.