Motions to Dismiss
Commonwealth v. John Doe – Plymouth Superior Court
INDICTMENT CHARGING DRUGGING A PERSON FOR SEXUAL INTERCOURSE DISMISSED FOR LACK OF PROBABLE CAUSE.
Our client was indicted for Rape and Drugging a Person for Sexual Intercourse (G.L. c. 272, §3). The client met a woman on social media, and they got together for a date. They went to a bar for a few drinks. The woman was insistent that the client placed something in her drink at the bar and she had no memory of what occurred thereafter. Upon leaving the bar, they went to the woman’s apartment. She awoke the next morning and believed that she had been raped. She went to the hospital. Attorney Patrick J. Noonan filed a motion to dismiss the indictment for lack of probable cause because, absent her allegation, there was no evidence to show that she had been drugged. The indictment was dismissed.
Commonwealth v. D.L. – Taunton District Court
GUN CHARGE AGAINST FREETOWN TRUCK DRIVER, WHICH CARRIED A MANDATORY JAIL SENTENCE OF 18 MONTHS, WAS DISMISSED AFTER ATTORNEY PATRICK J. NOONAN PROVES THERE WAS NO PROBABLE CAUSE TO SUPPORT THE GUN CHARGE
Freetown Police were called to a residence after receiving 911 calls reporting that the Defendant retrieved a firearm and threatened to shoot his brother and then kill himself. Others in the house reported that the Defendant was mentally ill and a drug addict. Everyone had evacuated the home when police arrived. Defendant was arrested and brought to the hospital for a mental health evaluation. Defendant admitted that he did not have a license to possess the firearm and further stated that the bought the gun off the street.
Result: Defendant was charged with Carrying a Firearm without a License, which carries a mandatory jail sentence of 18 months. Attorney Patrick J. Noonan filed a Motion to Dismiss for lack of probable cause. Specifically, Attorney Patrick J. Noonan argued that it was not illegal for the Defendant to unlawfully possess a firearm, so long as the firearm was under his “exclusive control” and possessed by him “in or on his residence.”
Commonwealth v. Allen Costa – Docket No.: 1658 CR 0507
OPEN & GROSS: DISMISSED upon MOTION
OPEN & GROSS: DISMISSED upon MOTION
A woman approached Hanover Police Officers at Forge Pond Park and reported two incidents where she observed a man walking on the trail and the man was naked from the waist down. The woman provided police with a physical description of the male suspect. The police placed a trail camera in the area where the witness reported seeing the male naked from the waist down. According to the police report, the camera showed a male party (matching the witness’s description) walking on the trail wearing no pants on two separate occasions on 03/28/16 and 03/30/16. Subsequently, police conducted a stakeout where they hid in the woods in the area where the male party was seen walking naked from the waist down. According to the police report, one officer observed a male party (later identified as the defendant) walking on the trail wearing no pants or underwear with his penis and testicles completely exposed and the male suspect was swinging his penis side to side with his right hand. The officers emerged from the woods and arrested the Defendant at gun point. At the police station, officers showed the defendant two pictures from the trail camera and the defendant acknowledged that he was the person depicted in the photos. The police charged the defendant with 3 counts of Open and Gross Lewdness. Two of the charges stemmed from the two separate occasions where the trail camera showed the defendant naked from the waist down on 03/28/16 and 03/30/16.
Result: Attorney Patrick J. Noonan filed a Motion to Dismiss the two counts that were based on the camera footage of 03/28/16 and 03/30/16. Attorney Noonan argued that the offense of Open and Gross Lewdness requires that the defendant “expose his genitals to one or more persons” and the law requires that the illegal conduct occur “in the presence of another person.” Attorney Noonan argued that the two charges should be dismissed because there were no human being(s) present to observe the illegal conduct. Attorney Noonan argued that the only witness to the alleged offenses on 03/28/16 and 03/30/16 was the trail camera (an inanimate object) and not a human being. The Judge agreed with Attorney Noonan’s argument and dismissed the two counts that were based on the camera footage.
Patrick Noonan Defends Man Caught Jogging Without Pants (Fox 25 News Video)
Commonwealth v. S.O. – Wareham District Court
OPERATING to ENDANGER (sub. offense): DISMISSED
Defendant had a lengthy record of criminal driving offenses. In 2014, Defendant was convicted of Operating to Endanger after a trial. In 2013, Defendant pled to the charge of Leaving the Scene of an Accident. In 2011, Defendant pled to the charge of Leaving the Scene of an Accident. In this case, witnesses observed the Defendant’s vehicle peel out of a Bar parking lot at a high rate of speed. The vehicle lost control and went off the roadway into the woods. Defendant’s vehicle struck the guide wire to a telephone pole ripping the guide wire off the telephone pole. Defendant left his motor vehicle in the woods and did not report the incident to police. The following day, police contacted the Defendant. Defendant admitted to driving his vehicle off the road, into the woods, and leaving the vehicle in the woods without reporting it.
Result: If convicted of Operating to Endanger, Defendant faced a year-long revocation of his driver’s license because this was a subsequent offense. Attorney Patrick J. Noonan was able to persuade the Commonwealth to dismiss the case saving his client a year-long revocation of his driver’s license. Defendant worked full-time as a construction worker. Defendant would have lost his job if his driver’s license was revoked for one-year.
Commonwealth v. D.W. – Brockton District Court
OPEN & GROSS LEWNDESS: IDENTIFICATION SUPPRESSED
An identified civilian witness called 911. She called to report that she was driving home when her vehicle was cut off and blocked in by another vehicle. She claimed that the male operator in the vehicle pulled out his penis and motioned for her to follow him. She claimed that the male operator turned on the interior light, thrust his hips upward, opened his pants, exposed his penis, and proceeded to masturbate. She provided police with the make, model, and license plate of the vehicle. She provided police with a physical description of the suspect as being: a white male, in his late 30s / early 40s, with a long strawberry colored beard, and heavy up top. Police conducted an RMV query of the vehicle, which was registered to the Defendant. The Defendant’s RMV photograph matched the witness’s description in that the Defendant’s picture showed that he had a long strawberry colored beard. The police presented a photo array of potential suspects to the victim. She identified the Defendant’s photograph and stated that she was 100% certain that the Defendant was the suspect. Attorney Patrick J. Noonan challenged the procedure by which the police conducted the photo array. Attorney Noonan pointed out that the Defendant’s photo “stood out” from the other photos. First, there were substantial disparities in the age of the suspects. The victim described the suspect as being in his late 30s / early 40s. The Defendant was 34 years old. The majority of the photos were of males that were in their early to mid-twenties. Second, several of the suspects had skinny builds unlike the Defendant’s build, which was heavier. Third, the most striking point of suggestion was that only two of the eight suspects had long facial hair. Fourth, the photos that were presented to the victim were in black and white, not in color. In addition to the Defendant’s photo standing out, Attorney Patrick J. Noonan challenged the procedure by which the police presented the photos to the victim. Originally, police generated an 8-person photo array. However, when the police presented the photos to the victim, they mistakenly left out two photos, and the photo array only consisted of 6 photos. The victim went through the six photos and stated that the suspect was not in the 6 photos. Police realized that they mistakenly left the two missing photos at the police station. Police generated the same 8 person photo array and conducted a second showing to the victim. Contrary to standard photo array practice, police re-used the same 6 filler photos, which were already shown to the victim. Contrary to standard practice, the police did not shuffle the photos and presented them in the same order as they did the first time. The victim breezed through the first 6 photos because she had already looked at these same six photos in the first presentation. The suspects in the first six photos did not have facial hair. When the victim got to the seventh photo, she identified the Defendant, as his picture showed that he had long facial hair. Contrary to standard photo array practice, police did not show the victim the eighth and final photo. The last photo showed a suspect with a long beard. Other than the Defendant’s photo, the suspect pictured in the last photo had a long beard, and this photo should have been shown to the victim.
Result: At the conclusion of the hearing, Attorney Patrick J. Noonan convinced the judge that the photo array procedure used by police was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification and therefore violated the Defendant’s constitutional rights. As a result, the judge suppressed the out of court identification from evidence and precluded the Commonwealth from presenting the victim’s positive identification of the Defendant at trial.
Commonwealth v. Juvenile – Dedham Juvenile Court
POSS. w/ INTENT TO DISTRIBUTE: EVIDENCE SUPPRESSED / DISMISSED
CONSPIRACY TO VIOLATE DRUG LAWS: EVIDENCE SUPPRESSED / DISMISSED
Three 17-year-old juveniles were arrested on a theory of joint venture to distribute marijuana. A police officer conducting patrol observed three males standing in the middle of the street and the police officer detected a “strong, distinctive odor of marijuana.” The officer stopped and questioned the three juveniles. Attorney Patrick J. Noonan’s client (Juvenile #1) had his backpack searched, which contained: a gallon zip lock bag containing marijuana, a marijuana blunt inside another zip lock bag, a digital scale with marijuana residue, and cash. The officer searched the backpack of another Juvenile #2, which contained: liquor bottles, a zip lock bag containing marijuana, a digital scale with marijuana residue, and a glass pipe with marijuana inside. The officer searched the person of Juvenile #3 and recovered four plastic baggies of marijuana. Attorney Noonan filed a Motion to Suppress the physical evidence seized from his client’s backpack. Upon examining the arresting officer, Attorney Noonan established that: the officer seized the juveniles immediately upon approaching them; the officer exceeded the scope of the threshold inquiry because possession of less than one-ounce of marijuana is not a criminal offense, and social sharing of marijuana is not a criminal offense, and most importantly, that the search of Juvenile #1’s backpack was not justified as a lawful pat and frisk for weapons. The officer testified that he searched Juvenile #1’s backpack for weapons because Juvenile #1 had a knife on him. Attorney Patrick J. Noonan established that a reasonable person in the officer’s position would not fear for his safety – as to justify a pat-frisk of the backpack for weapons.
Result: Attorney Patrick J. Noonan’s Motion to Suppress was allowed. The judge found that the search of the Juvenile’s backpack was unlawful. As a result, the judge suppressed all evidence seized from the Juvenile’s backpack. With all the drugs suppressed from evidence, the Commonwealth was forced to dismiss all charges.
Commonwealth v. M.S. – Brockton District Court
Docket No.: 1515 CR 4971
MALICIOUS DESTRUCTION: DISMISSED upon MOTION
MALICIOUS DESTRUCTION: DISMISSED upon MOTION
MALICIOUS DESTRUCTION: DISMISSED upon MOTION
MALICIOUS DESTRUCTION: DISMISSED upon MOTION
Defendant was charged with four felony counts of Malicious Destruction of Property. The allegations were that the Defendant was terminated from the Company he was employed at for over 30 years. The police report alleges that the Defendant vandalized the Company’s outdoor air chiller unit on at least four different occasions. The company told police that the equipment was vital to the day to day operation of the business. The company alleged that they had to shut down production due to the vandalism. The company claimed that the value of the damage caused by the Defendant was approximately $102,000.
Result: Attorney Patrick J. Noonan’s Motion to Dismiss was allowed. Attorney Noonan argued that the police report failed to present sufficient probable cause to support each element of the felony offenses.
Commonwealth v. S.H. – Wrentham District Court
CARRYING FIREARM while INTOX.: DISMISSED
Police were dispatched to a restaurant for a disturbance. Upon arrival, police encountered the Defendant in the parking lot. Police observed that the Defendant was intoxicated and they placed him in protective custody. Defendant had a loaded and chambered .40 caliber semi-automatic pistol in his back waistband. Defendant also had another loaded and chambered 9 mm. pistol in a holster affixed to his belt. Defendant also had five knives on his person. In his Motion to Dismiss, Attorney Patrick J. Noonan argued that the complaint should be dismissed because the Defendant was denied his opportunity for a clerk-magistrate’s hearing under G.L. c. 218, §35A. The Commonwealth argued that the Defendant was not entitled to a clerk’s hearing because he posed an imminent threat to the public based upon the nature of the charge, the level of his intoxication, the fact that the firearms were fully loaded and chambered, and because he was affiliated with a notorious motorcycle gang.
Result: Attorney Patrick J. Noonan’s Motion to Dismiss was allowed without prejudice and the Commonwealth must request a Clerk-Magistrate’s Hearing in order to pursue the charge.
Commonwealth v. K.J. – Brockton Juvenile Court
BREAKING & ENTERING FOR FELONY: DISMISSED
Police responded to the breaking and entering in progress. Upon arrival to the home, police detained a man walking across the front lawn. The man confessed to breaking into the home to steal $10,000 and stated that he committed the crime with two friends named Kevin and Andrew. A short distance away, police observed two males walking on the sidewalk. They were identified as Kevin and Andrew and were placed under arrest as joint venturers in the house break. In his Motion to Dismiss, Attorney Noonan argued that his client’s mere presence at the crime scene (without any other corroborative evidence of his involvement) was insufficient to charge him as a joint venturer.
Result: After Hearing, Attorney Noonan’s Motion to Dismiss was allowed and the felony B & E charge was dismissed.
Commonwealth v. M.R. – Taunton District Court
NEGLIGENT OPERATION: DISMISSED upon MOTION
Client was charged with Negligent Operation stemming from an incident on August 14, 2014 in which a State Trooper observed his Mustang and another vehicle (Toyota) traveling northbound on Route 495. While the two vehicles were traveling on this major highway, the passenger in the Mustang and the operator of the Toyota were attempting to pass an object (business card) between the two vehicles by traveling side-by-side and having the parties reach their hands out the window. Attorney Gerald J. Noonan argued a Motion to Dismiss arguing that his client was entitled to dismissal of the criminal complaint because he was denied the opportunity of having a hearing before the clerk-magistrate.
Result: Attorney Gerald J. Noonan’s Motion to Dismiss was allowed and the criminal complaint was dismissed upon court costs.