Articles Posted in Motions to Suppress

On September 26, 2014 BQ, was driving from Western Massachusetts back to her home in Cambridge.She was transporting a substantial quantity of mushrooms (a Class C controlled substance) and marijuana (a Class D controlled substance). As she drove down Route 2 in Concord a local police officer ran her plate and determined that the car did not have a current inspection sticker. The officer pulled BQ over and approached the car. The officer immediately smelled “an overwhelming odor of raw marijuana coming from the vehicle”. The officer asked BQ where the marijuana was in the car and she said there was none. The officer told her that the car reaked of marijuana and BQ again said there was none.The officer ordered BQ out of the car and had her perform field sobriety tests – which she passed without hesitation.The officer told BQ that he would then search her car; BQ protested saying she did NOT consent to any search of the car. The officer went ahead with the search and seized large quantites of mushrooms and marijuana from the car. BQ was arrested and charged with Possession with Intent to Distribute Mushrooms (Class C), Possession with Intent to Distribute Marijuana (Class D), Possession Class C, Possession Class D, and No Inspection Sticker.
BQ retained Attorney Robert Lewin. It became immediately apparent to Attorney Lewin that the search of the car was unlawful and that ALL the evidence that the police seized (including all the drugs) would have to be suppressed. On July 9, 2014 the Massachusetts Supreme Judicial Cort ruled that the smell of unburnt marijuana is not enough to justify the search of a motor vehicle.
Attorney Lewin immediately contacted the District Attorney’s Office at Concord District Court. To her credit, the Assistant District Attorney agreed with Attorney Lewin and agreed that the evidence would be suppressed and that the Commonwealth would not be able to go ahead with the charges. On October 29, 2014 BQ and Attorney Lewin appeared in Concord District Court. All of the charges were DISMISSED PRIOR TO ARRAIGNMENT. As a result of this disposition the cases did not go on BQ’s criminal record and she has no record. At Attorney Lewin’s request the police returned BQ’s backpack and the cash they seized from her at the time of her arrest. The drugs got destroyed! Every week, the decisions of the Massachusetts Supreme Judicial Court and the Massachusetts Appeals Court are published and every week since he became a lawyer in November of 1971 Attorney Lewin has read the decisions. His ready knowledge of the law helped BQ avoid from having a felony charge on her record. BQ left the courthouse absolutely thrilled with the result in her case.

On November 8, 2012 in the early afternoon, DB, a 47 year old roofing company foreman, was pulled over by the Malden Police on the basis of an anonymous tip. He had just pulled out of the parking lot of a local bar in Malden where he had been drinking for about one and a half hours. He was asked to exit his vehicle which he did. He was asked to perform field sobriety tests and he refused. He was asked to submit to a breath test and he refused. Based on the observations of his condition by the police he was arrested and charged with operating under the influence. He was brought to the Malden PD where a check of his criminal record revealed that he had three prior convictions dating back to 1984. As a result of his refusing the chemical test he was immediately subjected to a lifetime loss of his license. Massachusetts law imposes a mandatory lifetime loss of license on anyone who refuses a chemical test following an arrest for OUI if that person has three prior convictions for OUI in his lifetime at the time of the arrest. DB also faced a potential 5 year state prison sentence or a 2 1/2 year sentence to the House of Correction. An OUI 4th offense carries a mandatory minimum 2 year sentence of which 1 year must be served before parole eligibility. DB retained Attorney Robert Lewin.
Attorney Lewin immediately got the police reports and reviewed them with great care. Attorney Lewin obtained the turret tapes from the Malden PD to hear the dispatch information that was given out to the officers in the street and in particular to the officers involved in pulling DB’s car over. The stop of DB’s car by the police did not seem right. Before the police can stop a motor vehicle on the roadway they must have a “reasonable suspicion based upon articulable facts that a crime has been, is being, or is about to be committed”. The police were claiming that they had received a “tip” that a man who appeared to be drunk was entering a motor vehicle behind the bar and was headed out onto the street. When the police dispatcher first gave out the call he said that a bank teller had witnessed the drunk man getting into the motor vehicle; when the officers pulled DB over they radioed the dispatcher as to who had given out the tip. The dispatcher radioed back that it was a bank customer. This created a real doubt about whether a tip had actually been received. Attorney Lewin filed a Motion for a Copy of the 911 Tape; no recording (such as a 911 call) of the tip was ever found or produced. Attorney Lewin prepared and filed a Motion to Suppress all the evidence obtained by the police following the stop of DB’s vehicle. This included the identity of DB as the operator of the vehicle and all observations of his condition. On January 6, 2014 (some 14 months after his arrest) there was a full evidentiary hearing in Malden Court on the Motion to Suppress the evidence. The Judge hearing the Motion made the following findings and rulings: “The police had no reasonable suspicion to stop the Defendant’s motor vehicle; the so-called reporting party was never identified; no description of the operator of the vehicle was ever furnished; there was no evidence of any reasonable suspicion to stop the driver of the Defendant’s motor vehicle.” The Judge then granted the Motion to Suppress ALL the evidence the police obtained following the stop of DB on the street. In other words the Judge threw out all the evidence on the grounds that the stop of DB’s motor vehicle was illegal. The Middlesex County DA’s Office filed a Motion to Reconsider which the Judge denied. On March 21, 2014 the DA’s Office filed a “Nolle Prosequi”. A “Nolle Prosequi” is a termination of the prosecution of a criminal case by the Commonwealth. The “Nolle Prosequi” reads as follows: “The motion to suppress was allowed and all evidence was suppressed. As a result, the Commonwealth cannot proceed.” Two hours ago DB and Attorney Robert Lewin walked out of Malden Court. DB, with a big smile on his face, thanked Attorney Lewin and asked Attorney Lewin to send him a copy of the “Nolle Prosequi” so that he could frame it.

A 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.