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 manӳ 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 $8800.00 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 officerӳ 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 traffickerӳ 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 1β) 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 Calcagniӳ 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 manӳ 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 manӳ 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 traffickerӳ 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 manӳ 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 manӳ 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 manӳ 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 manӳ 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 Calcagniӳ 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 manӳ 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 manӳ home including the quantities of marijuana and heroin.
Following the Courtӳ 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 manӳ 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 manӳ plea and adopted the parties’ sentencing recommendation of probation. Attorney Calcagniӳ 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.
Criminal Case Result:
- Heroin Trafficking; Possession with Intent to Distribute Heroin; and Possession with Intent to Distribute Marijuana: Probation for 24 Months