Massachusetts Legal Developments Blog

Massachusetts Legal Developments Blog

Defending Against Charges of Dissemination of Obscene Material in Massachusetts

 

A Massachusetts doctor was recently arrested after a four-month investigation by law enforcement. The doctor is accused of giving a young boy cash in exchange for sex. Communication between the doctor and the boy is alleged to have included images of child pornography. The hospital that employed the physician has since terminated the doctor from his position.

Later, during a search of the doctor’s home, investigators seized several communication devices, narcotics, and child pornography. The doctor has since been charged with sex trafficking, possession of child pornography, two counts of electronic enticement of a child for prostitution, and two counts of disseminating obscene matter to a minor.

In the state of Massachusetts, charges of dissemination of obscene material have the potential to result in serious penalties. In these situations, it is a wise idea to obtain the assistance of an experienced attorney who can create a strong defense strategy. The following will review some of the most common defenses that are raised in response to these charges.

Prosecution Failed to Establish an Element of the Offense

To convict a person of a criminal offense, the prosecution must establish each element of a criminal offense beyond a reasonable doubt. If you are convicted of the dissemination of obscene material in Massachusetts, General Laws Chapter 272 Section 29 can result in you facing a maximum of several years of imprisonment. The elements of the dissemination of obscene material include the following:

  • The material involved must be obscene

  • The person being charged disseminated the material or possessed the material with the intent to disseminate it, and

  • The defendant understood the obscene nature of the material. Under Massachusetts law, obscene material can include any printed or visual materials, which most often includes books, films, magazines, and photographs.

To fully understand these three elements, it is critical to understand what constitutes obscene material. To be classified as obscene, material must meet three elements:

  • The material must appeal to the prurient interest of an average person who lives in the county where the offense occurred

  • The material must display sexual conduct in an offensive way to an average person who lives in the county, and

  • The material must lack any artistic, literary, or scientific value.

The Behavior Was Protected Under the First Amendment

The First Amendment of the United States Constitution protects a person’s freedom of expression as well as speech. If the material possesses any type of artistic, literary, or scientific value, then the work is likely protected under the First Amendment and a person cannot be convicted of the dissemination of the material.

Libraries, Museums, and Schools

If a person is able to establish that obscene material was being collected for a bona fide library, museum, or school, it is possible to raise a strong defense. If a person was acting in the course of employment for a bona fide library, or museum, or school, a strong defense can also be raised.

Contact an Experienced Criminal Defense Lawyer

If you or a loved one has been charged with the offense of the dissemination of obscene material, do not hesitate to contact experienced criminal defense attorney Edward Molari.

 

Massachusetts Supreme Court Extends Cell Phone Privacy Rights

In April 2019, the Massachusetts Supreme Judicial Court, which is the highest court in the state, ruled that law enforcement’s access to real time cell phone data constitutes an intrusion on a person’s reasonable expectation of privacy. As a result of the decision, law enforcement in Massachusetts is now required to obtain a warrant before accessing this data provided that there are no exigent circumstances.

How the Case Arose

The case, Commonwealth of Massachusetts v. Almonor, involved law enforcement “pinging” the cell phone of a person suspected of murder to access location data. This information was ultimately used to pinpoint the suspect’s location. In support of this action, the state argued that it was able to obtain cell phone location data without a warrant provided the information was less than six hours old.

A trial court, however, did not agree with the state, and an appeal resulted. The opposing side responded by filing an amicus brief that asked the appellate court to recognize the decision of United States v. Carpenter, in which the United States Supreme Court held that people have a constitutional right to privacy concerning their physical movement. Because location data produced by a cell phone is capable of revealing a person’s every movement, law enforcement must obtain a warrant to access this information.

The Court’s Decision in Almonor

The Massachusetts Supreme Judicial Court ultimately held that manipulating a person’s phone to track an individual’s location constitutes an intrusion. In arriving at its decision, the court acknowledged that cell phone use is common in society and that a phone’s location is often synonymous with a person’s location. The court noted that society’s expectation is that law enforcement is not able to freely identify a person’s location. While the defendant raised both federal and state arguments, the court’s ultimate decision rested on Article 14 of the Massachusetts Declaration of Rights.

What the Decision Means for Others

There are a number of other cell phone privacy cases in Massachusetts and the rest of the country that will likely be influenced by this decision. Because the court in this case held that accessing this location data is an unreasonable search, cell phone users can expect to have their privacy rights respected.

What Happens When Law Enforcement Performs an Unlawful Cell Phone Search

The Fourth Amendment to the United States Constitution states that individuals have a right to be protected from unlawful searches and seizures. If a law enforcement officer violates your Fourth Amendment rights by performing an unlawful cell phone search, courts of law are able to exclude any improperly obtained evidence.

After blocking illegally obtained evidence, prosecution often experiences difficulty in satisfying all of the elements of a criminal offense beyond a reasonable doubt. If the prosecution is not able to satisfy every element of an offense, it is likely that a court will dismiss the charge.

Speak with an Experienced Massachusetts Criminal Defense Attorney

No matter the criminal offense with which you are charged, it is important to assert your cell phone privacy rights. Contact criminal defense attorney Edward Molari today to schedule a free initial consultation.

Defending Against Sex Crime Charges in Massachusetts

An Uber driver in Massachusetts was recently charged with two counts of rape in connection with an alleged sexual assault that occurred while the driver was traveling through Boston. After the alleged victim of assault was transported to an area hospital, law enforcement received a report of the incident and performed an investigation, which led to the driver’s arrest.

Following the arrest, law enforcement collected forensic evidence to further investigate the matter. In response to the arrest, Uber issued a statement about how horrible the crime was and stating that Massachusetts remains committed to law enforcement.

If you have been arrested and charges with a sex offense in Massachusetts, you should understand that these offenses are serious, which is why it often becomes critical to obtain the assistance of an experienced criminal defense lawyer. This is true no matter if you have been charged with assault with intent to commit rape, failure to register as a sex offender, indecent assault and battery, indecent exposure, open and gross lewdness, possession of child pornography, or rape.

The following will review some of the defenses that can be raised in response to these and other sex related criminal charges in Massachusetts.

Establishing that Offense Never Occurred

One of the strongest defenses is arguing that sex acts never occurred between the person being charged and the alleged victim. In some cases, this might lead to a criminal defense attorney gathering evidence to show that someone accused you of the offense in a malicious manner. If this evidence can be established, the prosecution will be left unable to prove that a person committed a sexual offense beyond a reasonable doubt.

While the Offense Occurred, Someone Else Committed it

Instead of arguing that an offense did not occur, this strategy involves establishing that the defendant was not the individual who committed the crime. It is important to understand that false identifications are common in sexual offenses for a number of reasons including that eyewitness identification is often not reliable. By providing enough doubt about whether a person is the exact individual who committed the offense, the prosecution will not be able to adequately establish this element of the crime.

The Act Occurred, but Was Not Criminal

Rather than point out the event did not happen or the wrong individual is being charged, this defense involves proving that no crime occurred in relation to a sexual act with which to charge someone. For example, in some cases involving “lack of consent,” the prosecution is unable to establish beyond a reasonable doubt that the criminal offense even occurred.

Speak with a Skilled Criminal Defense Lawyer

Being convicted of rape or any other sex offense in Massachusetts can result in serious penalties, but fortunately there are a number of defenses that can be raised in response to these charges. If you or a loved one is facing these charges, you should not hesitate to contact an experienced criminal defense lawyer like attorney Edward R Molari today.

What is Required for a Receipt of Stolen Property Conviction?

For many people who purchase items online with some frequency, it is not unusual to receive more than what you paid for from time to time. While many people respond to these situations by keeping the extra items, a Massachusetts case has called into question whether this is the best way to proceed.

Recently, a man in Massachusetts decided to keep a flat screen TV that had been sent to his home by mistake and as a result, the man was arrested and charged with larceny. The man was sent a TV that was 10” larger than the one he had ordered. The man decided to keep the TV. The shipping company that wrongly delivered the TV, however, made several efforts to contact the man before involving law enforcement in the matter.

Even though it might seem like there is nothing wrong with what the man did, this example provides a reminder of why a person should think twice about keeping property that was wrongly sent to them. The following will review some of the laws that come into play when property offenses are involved.

Massachusetts Law Regarding the Receipt of Stolen Property

Massachusetts General Laws Chapter 266 Section 60 states that any individual who helps conceal stolen property that he or she knew was stolen is at risk of being charged with receipt of stolen property.

This offense can result in over two years in jail for first offense as well as over five years in prison for a second or additional offense. A person can also end up facing more than five years in prison if the value of the property stolen is greater than $250.

The Elements of a Receipt of Stolen Property Offense

In Massachusetts, the prosecution must establish before a court of law that several elements exist to convict an individual of receiving stolen property. These elements include the following:

  • The property was stolen. Demonstrating this element requires the prosecution to establish that a person took and carried away property without the right to do so or the consent of the owner. The person who is charged must also have intended to deprive the property owner of the property permanently.

  • The person being charged was aware that the property was stolen. Establishing this element requires proving that the defendant had actual knowledge that the property was stolen.

  • The person being charged possessed, purchased, or helped to conceal the stolen property. For the purpose of this element, an individual is determined to have “received” property if that individual takes custody or control of the property.

Speak with an Experienced Accident Attorney

Being charged with larceny can result in serious penalties. If you or a loved one needs the assistance of an experienced criminal defense attorney to respond to such charges, contact attorney Edward R Molari to schedule a free initial consultation.

A Refresher on Massachusetts Marijuana Laws

At the end of March 2019, law enforcement in Whitman announced that a suspect was facing marijuana and weapons charges after the man was discovered selling drinks containing THC to an undercover law enforcement officer on three separate occasions. This behavior led law enforcement to search the suspect’s home and motor vehicle, which are both located in Whitman, Massachusetts. Law enforcement reports that it discovered approximately 140 bottles of THC-containing drinks in addition to other extracts.

Massachusetts was the seventh state in the country to legalize adult-use cannabis and has served a number of customers since the stores first opened. Despite this, there are still some important marijuana laws that must be followed in Massachusetts. One of these regulations includes restrictions on the amount of marijuana that a person is allowed to possess. Failure to comply with these laws can result in a person facing substantial penalties. The following will review some of the important details about marijuana in Massachusetts.

Where Marijuana can be Used

A person has a great degree of discretion on how he or she uses marijuana at home, but there are certain locations in Massachusetts where marijuana use is prohibited. For example, a person in Massachusetts cannot use marijuana in any form while on either public or federal land. A person in Massachusetts is also prohibited from having any type of open container with marijuana while in a motor vehicle that is on the road or at a place the public can access. If a person travels with marijuana, an individual must keep the amount stored in a closed container in a glove compartment or trunk.

The Amount a Person is Allowed to Possess

Even though marijuana usage is more acceptable than it once was, Massachusetts has placed a limit on how much marijuana a person may possess. A person is allowed to have up to one ounce of marijuana on his or her physical person and up to 10 ounces of marijuana inside his or her home. If a person does have more than an ounce of marijuana at home, it must be locked up to avoid children or pets from consuming it accidentally.

Recreational Growth Limits

Unlike many other states, Massachusetts allows individuals to grow marijuana in their residences with some limitations. A person is allowed to grow up to six plants at home and a total of 12 plants for two or more adults.

Vehicle Restrictions

A person in Massachusetts is prohibited from driving immediately after using marijuana. if a person uses marijuana, he or she should arrange alternative methods of transportation.

Speak with an Experienced Criminal Defense Lawyer

If you or a loved one is charged with a marijuana-related offense in Massachusetts, you should not hesitate to speak with an experienced criminal defense lawyer. Contact attorney at law Edward R. Molari today to schedule a free initial consultation.

Responding to Child Pornography Charges

A man in Winchester was recently arrested on charges of child pornography including posing and exhibiting a child in sexual acts, photographing an unsuspecting nude person, and possession of child pornography. The man was subsequently arraigned in Woburn District Court. This recent case is just one part of a recent investigation by Winchester law enforcement and occurred after law enforcement executed a search warrant on the man’s home.

Sometimes, innocent individuals in Massachusetts end up facing child pornography charges and serious penalties if convicted. Fortunately, there are a number of strong defenses that can be raised in response to these charges. Because the exact defense that will work best for a case depends on a number of complex factors, it is often a wise idea to obtain the assistance of an experienced criminal defense attorney. The following are just some of the available defenses that can be raised in response to child pornography charges. Your criminal defense attorney can help you craft the defense that will be most effective in your case.

The Content was Not Pornographic in Nature

It is possible for material to be sexual in nature, but not pornographic. For example, material depicting child in a sexual pose might be merely erotic instead of pornography. A person cannot be convicted of child pornography for possessing content that is merely provocative or suggestive in nature and not actually pornographic.

The Evidence was the Result of an Unlawful Search or Seizure

The Fourth Amendment protects individuals from searches or seizures that are unreasonable in nature. If evidence was taken from your home as a result of an unlawful search or seizure, you likely can create a strong argument that your constitutional rights were violated and that the evidence cannot now be used as evidence against you.

The People Depicted in the Material are Over 18

There are some types of pornography that feature adults who only appear childlike. There is nothing illegal about this type of content. If the material does not depict any minors, then you likely have a strong defense that can be raised in response to a charge of child pornography.

You Did Not Intentionally Purchase the Materials

In some cases, receiving large amounts of lawful pornography online leads to a person also receiving illegal images or video without his or her knowledge. In other situations, computers can be hacked and child pornography might be downloaded without a person’s knowledge. In either of these situations, there is likely a strong defense that can be raised in response to these charges.

Speak with an Experienced Criminal Defense Lawyer

If you or a loved one has been charged with a child pornography offense, you should understand just how serious these charges can be. Being convicted of child pornography possession or another comparable offense can create numerous obstacles in a person’s life, including barriers to holding a professional license, continuing a career, and being respected by the community. Individuals who are charged with these crimes should not hesitate to obtain the assistance of an experienced attorney. Contact Attorney Edward Molari today to speak with a skilled criminal attorney who will remain committed to fighting for the results you deserve.

Massachusetts Open Arrest Warrants

Statistics reveal that each year, millions of Americans are listed as wanted on arrest warrants. In Massachusetts, there are currently over 390,000 open arrest warrants. Some of these cases remain open for years and some are forgotten by law enforcement as new warrants are filed. A recent study reveals that there are currently more than 5.7 million open arrest warrants in 27 states, which is the equivalent of over 80% of Massachusetts’ population. Massachusetts officials have declined to break down details about the warrants by offense or provide any specific information about the types of charges that are represented. Many of these warrants, however, arise from minor offenses like not paying a parking ticket or failing to obtain a dog license.

Law enforcement frequently issues warrants when they have evidence that a person committed a criminal offense but have not yet arrested or located in the individual. Even after an arrest warrant is issued, a person will often remain free provided that he or she does not encounter law enforcement officers who are aware of the warrant’s presence.

Having a Massachusetts warrant issued for your arrest can be a frightening experience. If you need help removing an outstanding warrant, our law firm is prepared to provide you with the strong legal representation necessary to resolve your case.

Reasons Why Warrants are Issued in Massachusetts

Courts in Massachusetts issue warrants for a number of different reasons, which include the following:

  • Missing a court appearance

  • Missing a court payment

  • Missing a probation fee

  • Violating probation conditions

In many cases, a person only learns about a warrant when the individual either tries to renew a driver’s license, obtains a new job, or fills out any type of government application.

The Role of Massachusetts Default Warrants

One of the most common types of warrants that are issued by judges in Massachusetts are default warrants, which are issued when a person fails to appear in court for a scheduled date. If a person is not present at this date, a judge will often issue an arrest warrant for the individual’s arrest. It is common for warrants to be around years before they present an obstacle for a person. Unfortunately, old and open warrants still have the potential to result in arrest, detention, the suspension of a person’s driver’s license, the denial of government benefits, and even loss of employment. While a person might have a good reason for missing a court appearance, courts might not be aware or a judge might find that the reason is insufficient. If you discover a warrant has been issued for your arrest, you should not hesitate to speak with an experienced criminal defense lawyer.

Speak with an Experienced Defense Attorney

If there is an open warrant out for your arrest, reach out to an experienced criminal defense attorney. Contact Attorney Edward Molari today to schedule an initial free case evaluation. Attorney Molari understands just frightening it can be to have an open warrant out for your arrest, and he can help your case resolve in the best possible manner.

Defending Against Massachusetts Kidnapping Charges

A man in Bedford, Massachusetts was recently accused of breaking into a home. The victim told law enforcement that he was held at knifepoint and forced to drive to various locations throughout Massachusetts. Eventually, however, the suspect exited the victim’s vehicle and the victim contacted law enforcement. Later, a search discovered a knife inside the victim’s vehicle. Law enforcement also managed to obtain footage from a surveillance camera and later obtained a warrant for the suspect’s arrest. When law enforcement later spotted a man in Florida matching his description, FBI agents swarmed on the area and arrested the suspect. The suspect now faces charges in Massachusetts connected to armed home invasion, kidnapping, armed assault, armed assault in a dwelling, and burglary.

Massachusetts Law Chapter 265 section 26 defines kidnapping as the unauthorized confinement of another individual of any age against his or her will. Physical injury against a person is not required. Merely refusing to allow an individual to leave a confined space can equate to kidnapping. Under Massachusetts law, kidnapping is also found when a person demands something of value in exchange for freeing an individual. Kidnapping can also occur when a non-custodial parent takes a minor child without first obtaining the consent of the custodial parent.

Proving Kidnapping Charges

To convict a person of kidnapping, Massachusetts prosecutors must establish that several elements occurred, which include the following:

  • The person being charged must have lacked lawful authority concerning the control of the victim.

  • The person being charged forcibly or secretly confined the other individual.

  • The confinement was against the will of the individual.

  • There was a demand for something valuable, the use of a weapon, or sexual assault of the victim.

Common Defenses to Kidnapping Charges

There are a number of defenses that can be raised in response to kidnapping charges, which include the following:

  • If the victim consented to the taking and confinement, then the act was not against his or her will.

  • Some types of kidnapping, such as kidnapping with the intent to extort money, require a specific state of a mind. If it can be establish that this state of mind was not present, a person will be able to create a strong defense to a kidnapping charge.

An experienced criminal defense attorney can review your case and determine the best way to create a strong defense strategy in response to these charges.

Speak with an Experienced Criminal Defense Lawyer

If you are charged with kidnapping or any other comparable offense, you can be facing serious penalties. It is often a wise idea in these situations to quickly obtain the assistance of an experienced criminal defense attorney like Edward Molari. Contact Attorney Molari today to schedule an initial free case evaluation.

Driving While High on Marijuana in Massachusetts

A court in Massachusetts recently held that law enforcement in the state is still able to arrest individuals for driving under the influence of marijuana if signs of the impairment are visible. This decision comes at a time when more retail marijuana stores are opening up throughout the state. The ruling came from a case involving a driver who was arrested on the Massachusetts Turnpike after he was pulled over by Massachusetts law enforcement for driving 80 mph as well as tailgating other vehicles.

At the time of the accident, there were two other passengers in the vehicle, and law enforcement detected a strong odor of marijuana emanating from inside of the vehicle. A jury later acquitted the man on the drugged driving and firearm possession charges, but did find that the man was guilty of a drug possession charge. The man later appealed the arrest based on law enforcement’s search of the vehicle, which led to discovery of oxycodone, cocaine, and a firearm.

The appellate court, however, held that the initial arrest for driving while under the influence of marijuana was lawful. In reaching its opinion, the court noted that it can be difficult to determine marijuana impairment because there are not any validated field sobriety tests.

Even though recreational use of marijuana is now legal in the state of Massachusetts, driving while high on marijuana is still prohibited, even if the drug has been prescribed to a person by a doctor. The prosecution, however, often has a difficult time pursuing operating under the influence (OUI) charges because there is not an accepted standard for cannabis or THC impairment. The following is a brief examination of how these charges are treated in the state of Massachusetts.

Why Testing for OUI of Marijuana is Challenging

As of January 2019, no one has been able to create a test that can reliably detect the presence of marijuana in the bloodstream. Some of the factors that make it particularly difficult to test for marijuana impairment:

  • THC in marijuana is stored in a person’s fat cells where the substance can remain for a significant period of time, sometimes long after the driver has used marijuana.

  • Not only does law enforcement need to worry about the presence of marijuana on a person’s breath, drivers can also consume edible products containing marijuana.

  • The effects of THC on a person vary substantially based on the physiology of individual in question.

  • Secondhand marijuana smoke has the potential to create a contact high in people who do not smoke. Even if a device could be created to detect the presence of marijuana in individuals, there is a risk that people exposed to secondhand smoke would be deemed intoxicated through no fault of their own.

Speak with an Experienced Criminal Defense Lawyer

If you are charged with a marijuana-related offense in Massachusetts, the resulting penalties can be serious. To avoid the numerous potential penalties, contact an experienced drug crime defense attorney. Schedule an initial free case evaluation with Attorney Edward Molari today for assistance.

Illegal Firearm Charges in Massachusetts

A Massachusetts Appeals Court recently ruled that law enforcement in the state did not have a reasonable ground to deny a business owner a gun license, and subsequently ordered the department to issue the man a license for self protection. As a business owner, the man sought a firearm because he is responsible for closing the store at night and making cash deposits at a bank and was recently robbed at gunpoint.

After the man was robbed at gunpoint, it was suggested by law enforcement that the man obtain a license to carry a firearm. As a result, the man went to a police station in Dorchester in 2013 and applied for a firearm license. Despite the man stating that he needed the firearm for self protection, the officer who helped him wrote “sport and target” down on his application. The man later received a Class A license to carry a firearm, which was limited to sport and target.

Law enforcement later wrote the man a letter stating that he had failed to demonstrate an adequate purpose for holding an unrestricted firearm license. Law enforcement also later argued that the recommendation that the man obtain a firearm for protection was really the result of a misunderstanding, citing the man’s criminal history.

While the man had not been convicted of a crime, he was charged with various nonviolent crimes between 2005 and 2010. After petitioning a Boston court for judicial review, the court later held that law enforcement in Massachusetts has a right to prohibit individuals who are classified as “unsuitable” from receiving firearm licenses.

The Second Amendment to the United States Constitution guarantees each person the right to bear arms. While the Second Amendment is recognized by many people as a fundamental American right, the right has also become a great source of controversy over the last few years. Currently, Massachusetts has several laws prohibiting the use of firearms in the state, which will be reviewed below.

Illegally Carrying Firearms

Massachusetts law prohibits individuals from knowingly possessing a loaded or unloaded firearm provided that several conditions are met. First, that person must not be present at his or her own residence or place of business, the person must not have a required firearm license, and the person must possess an illegal weapon.

Possession of an Unlicensed Firearm at Home or Work

Laws in Massachusetts prohibit individuals from possessing firearms without a license or permit even if that individual is located in his or her residence or place of business. Violations of these laws result in penalties of two years maximum imprisonment.

Carrying a Firearm on a Public Path

Massachusetts law prohibits individuals from carrying firearms on a public way, which includes streets, sidewalks, or other public areas. If a firearm is loaded, a person can end up facing a maximum of two years in prison as well as substantial fines.

Possession of a Firearm in Commission of a Felony

If a person is charged with a felony and possessed a firearm during the commission of an offense, he or she can expect to be charged with additional criminal penalties.

Obtain the Services of a Skilled Criminal Defense Lawyer

When it comes to illegal firearm possession in Massachusetts, there are a number of serious charges with which a person in Massachusetts can be charged. Contact Attorney Edward Molari today to schedule an initial free case evaluation. Attorney Molari understands the complex issues that can arise in these cases and will remain committed to creating the strongest defense possible.

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