Heroin Trafficker: Probation for 24 Months.
The Commonwealth indicted a known drug trafficker with charges of
Heroin Trafficking; Possession with Intent to Distribute Heroin; and
Possession with Intent to Distribute Marijuana. These charges stemmed
from discovery of
illegal narcotics and drug trafficking paraphernalia
in the man’s apartment upon execution of a search warrant.
After nearly two years of pretrial conferences and motions, Attorney
Calcagni successfully had all charges
dismissed, except that pertaining
to marijuana, for which the man received a sentence of probation.
In the fall of 2011, police secured a search warrant for the second
floor apartment of a multi-family or three-family dwelling. The warrant
was issued solely on the basis of information provided to police from a
confidential informant who relayed that he purchased heroin on a number
of occasions from the apartment’s occupant. The occupant, a young man,
was a known drug trafficker with a history of drug offenses on his
criminal record. The man resided in the second floor apartment of this
home with his common-law spouse and three daughters. Based on this
information, police secured a warrant to search the residence.
Multiple officers visited the occupants’ home early one morning.
They entered the building and ascended to the second floor apartment.
Officers then forcefully entered the home and secured the known
trafficker and his family members. Officers then proceeded to search
the interior of the apartment. In the apartment itself, police located
and seized a total of nearly two ounces or 55.7 grams of marijuana.
These drugs were packaged in different bags and stored in different
locations within the kitchen. Police also discovered clear plastic
baggies and a digital scale, two items believed to be tools of the drug
trade. Officers also located and seized approximately $8,800.00 in U.S.
currency from inside the master bedroom.
No additional drugs or
drug-related paraphernalia was located inside the apartment.
While searching the apartment, one of the officers participating in
the warrant execution located an old-fashioned skeleton key. The
officer surmised that the key would unlock a door located somewhere
inside the multi-family dwelling. Based on this hunch, the officer
ascended to the third floor platform of the house and located a door
adjacent to the third-floor apartment. Due to the officer’s familiarity
with this standard style multi-family dwelling home, the officer
believed the doorway led to an upstairs attic. The officer tried the
door, but discovered that it was locked and secured. He then inserted
the skeleton key that he found in the trafficker’s apartment. The key
successfully unlocked the door. The officer then ascended upstairs into
the attic without the knowledge or consent of the trafficker, a
resident of that multifamily dwelling, or any other person. He enlisted
the assistance of another fellow officer. The two thoroughly searched
the attic, which led to the discovery of 146.6 grams of marijuana hidden
inside a hole in the wall along the attic stairway. Officers also
located 17.6 grams of heroin stored inside a hidden zipper compartment
located on the back of a stuffed animal that was found co-located with
other children’s toys.
Based on the items discovered from the search, the known trafficker
was taken into police custody and charged with a series of
narcotics
offenses. Weeks later, the Commonwealth indicted the man for
Heroin
Trafficking; Possession with Intent to Distribute Heroin; and Possession
with the Intent to Distribute Marijuana. The known trafficker had
prior drug convictions on his record. If convicted of these indicted
offenses, the Heroin Trafficking charge alone carried a
mandatory
minimum jail sentence of three years in jail with a maximum potential
sentence of fifteen (15) years. The other charges, Possession with
Intent to Distribute Heroin and Marijuana carried potential jail
sentences of five (5) to fifteen (15) years and one (1) to two and one
half (2 1Ž2) years, respectively. The known trafficker and his family
hired Attorney John L. Calcagni
III to represent and defend him against these serious drug charges.
Attorney Calcagni’s first line of attack on this case was to
challenge and call into question the police conduct and the search
warrant execution. The defense filed a motion to suppress challenging
the scope of
the search as unlawful in violation of the 4th Amendment to
the U.S. Constitution and the Massachusetts Declaration of Rights.
Specifically, the defense motion alleged that the police conduct ran
afoul of the limitations to search set forth within the four corners of
the search warrant. The warrant specifically provided the police with
lawful authority to search the man’s second floor apartment of the
multi-dwelling home where he and his family resided. The warrant did
not provide police with authority to search any other aspect of the
premises to include the attic. Notwithstanding this limitation, the
police took it upon themselves to seize a skeleton key that was located
within the man’s apartment; ascend to the third floor landing of the
multi-family dwelling; use the key to unlock a locked attic door; ascend
up one additional flight of stairs into the attic; and unilaterally
expand the scope of the search. The Commonwealth objected to the
defense motion, arguing that the locked attic was a natural extension of
the known trafficker’s apartment.
The Court held an evidentiary hearing regarding the motion to
suppress. At the hearing, the Commonwealth carried the heavy burden of
proving that the police acted lawfully when executing a search warrant
at the man’s apartment. In an effort to meet this burden, the
Commonwealth presented two law officers who participated in the warrant
execution. On cross-examination by Attorney Calcagni, the officers
admitted that their warrant limited the search to the man’s second floor
apartment and did not contain permission to ascend into or search
inside the upstairs attic. The officers also conceded that the attic
itself was located two flights above the man’s second floor apartment
and was locked at the time officers arrived to the third floor landing
where the attic door is located. It was only with the key seized from
the man’s apartment that officers were able to gain access to the attic.
After the officers testified, Attorney Calcagni called the landlord
of the multi-dwelling home to testify. She indicated that though she is
the landlord, she also resides in the first floor apartment and in the
fall of 2011, when the warrant at issue was executed, her daughter
resided on the third floor above the known trafficker. She also relayed
to the Court that only the tenants of the home had access to the attic,
which remained under lock and key at all times and was not considered a
common area open or viewable to the public. Each tenant was issued a
key to the attic upon moving into the home and the practice was for the
attic to remain locked at all times unless being accessed by one of the
tenants. Based on this collective evidence, the Court agreed with
Attorney Calcagni’s analysis and argument that the police, when
executing the warrant, exceeded their authority. The Court further
agreed with Attorney Calcagni that this incident violated the man’s
constitutional rights, and therefore, granted the defense motion. The
effect of this decision resulted in the Court ordering as suppressed all
evidence seized from the attic of the man’s home, including the
quantities of marijuana and heroin.
Following the Court’s favorable ruling for the defense, the
Commonwealth had no additional evidence to move forward with its
prosecution of the known trafficker on the most serious charges of
Heroin Trafficking and Possession with Intent to Deliver Heroin. As a
result, the prosecutor voluntarily motioned to dismiss them, which the
Court approved. With the most serious charges no longer pending, the
man solely faced one remaining charge of
Possession with Intent to
Distribute Marijuana.
Attorney Calcagni next successfully negotiated with the prosecutor
that no jail time or suspended jail time be imposed. Instead, he and
the prosecutor reached an agreement that in exchange for the man’s
admission of guilt to the remaining marijuana charge, he would receive a
sentence of two years of probation. Based on this joint agreement and
recommendation, the man offered his guilty plea to
Possession with
Intent to Distribute Marijuana to the Court. The Court accepted the
man’s plea and adopted the parties’ sentencing recommendation of
probation. Attorney Calcagni’s efforts reduced what was otherwise a
mandatory jail case involving serious drug trafficking felonies to a
less serious marijuana distribution charge with a probation sentence.
Congratulations to this client.
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The Law Office of John L. Calcagni, III offers clients representation in the areas of Criminal Defense, Military Defense, Federal Criminal Defense, OUI Defense in MA , Assault and Battery and all criminal matters.
As a Criminal and Military Defense Attorney and former prosecutor with the US Army JAG Corps, John Calcagni, is admitted to practice in the United States Court of Appeals for the Armed Forces and the U.S. Army Court of Criminal Appeals, as well as the state and federal courts in Rhode Island, New York, Connecticut, Florida and the Commonwealth of Massachusetts.
Please call (401) 351-5100 to arrange for a free consultation about your case or visit our website at
www,CalcagniLaw.com
If you cannot make it to one of our offices, we will to come to your home or detention center.
