Tuesday, May 21, 2019
David and Erika Zerkel Maglio Story
**The views expressed here are solely those of the author in her/his private capacity and do not in any way represent the views of MassCann. The effects of prohibition continue to ruin lives; we invite those who share in this experience to share their story.
David and Erika Zerkel Maglio Story
Life can have a disturbing way of throwing unexpected curveballs and changes at us. I woke up one morning and in the blink of an eye my husband was taken from our home and my life was turned inside out and upside down. I will be explaining the events that led up to this in detail, but I’ll start with some basic personal history. My name is Erika Maglio. I married my husband David Maglio in August 2015 in San Francisco, California. We are both from California but decided to move to Massachusetts to be closer to family. We purchased a home in Hull, Massachusetts and moved in September 2015. My elderly mother-in-law moved in with us as well. This was our dream home and we were exceptionally excited to start our lives in this community.
David and I met about 5 years ago in San Francisco. We met through an online dating app– both swiped right. On our first date, we talked into the night about our lives – the ups and downs, the good and bad – everything. We talked about family and how much that meant to both of us. David revealed his tattered past to me – he was upfront and honest. I respected him for that and that is when I began to fall in love with him. David overcame his past, his challenges with addiction and rehabilitated himself through creating a productive and enjoyable life.
My husband is a gentle, caring, loving father and husband. He is so much more than what he has been portrayed as in his criminal record – he is not a line item, he is not a bad person, he is not the rebel boy depicted in his record 15 years ago. Although I didn’t know David during his early 20s, I do know that his crimes were nonviolent and against himself and not others – he was an addict. Addiction is an awful disease. I don’t know how anyone who is not an addict could even begin to understand or imagine what goes through the brain of someone who is. I feel as if he was thrown in jail and provided NO treatment at all for his addiction(s) at the time. Incarceration punishes you for a crime, but to this day, does not treat the disease or the associated underlying issues. Ten percent of US adults have a drug use disorder at some point in their lives. Seventy- five percent report not receiving any form of treatment. A survey of American adults revealed that drug use disorder is common, co-occurs with a range of mental health disorders and often goes untreated.
David’s addiction began after a motorcycle accident, as a teenager, that rendered him severely injured. His doctor prescribed him Oxycodone and he became addicted to this drug. Although David overcame his addiction to prescription drugs, he was still suffering from chronic pain, anxiety, depression, insomnia, and PTSD. He sought out alternatives to conventional medications, as he did not want to travel down the path of addiction again. In 2015, he went to an authorized medical marijuana doctor in Massachusetts and was prescribed medicinal marijuana. He became a medical marijuana patient with a hardship cultivation registration and was properly registered with the Massachusetts Medical Marijuana Program. He legally grew his prescribed medical marijuana in his basement.
At this time, medical marijuana was passed legally in Massachusetts and there were absolutely no licensed marijuana facilities that patients could buy medical marijuana from. Since no dispensaries existed, under the Act for the Humanitarian Medical Use of Marijuana 2012 Mass Acts 369, patients with a hardship cultivation registration were allowed to cultivate a sufficient number of marijuana plants to produce and maintain a sixty-day supply of marijuana.
I know David as a loving, caring, open, gentle and honest person. He is a man who showed me how to love and opened my heart when I was ready to give up on love. He is a husband that loves me for who I am, not how he wants me to be; he wants to be my partner; care for me when I’m sick or feeling down; doesn’t judge me because I gained a few pounds; wants to grow and learn with me; wants to travel the world together. He is a man who laid on the beach with me reading a book; a man who opened up about his tumultuous past of being sexually abused by a neighbor and of not having a father while crying on my shoulder. A man who jumped over every obstacle to make sure he was waiting with open arms whenever I arrived at the airport. A man who packed my lunch for me and included little love notes wrapped in plastic wrap. This is the David I know and fell in love with- the man I want to spend the rest of my life with and build our family together.
David is a family man who wants the chance to be a father and a husband. I wish for David to be able to keep moving forward without his past following him at every turn. He has overcome so much, but in his current state, is haunted by his past. The struggle is real for him, but he won’t give up- he is dedicated to his well-being and the ability to care for his family.
When I thought of law enforcement officers, I used to think of men and women who had taken an oath to uphold and abide by the U.S Constitution. However, my family has greatly suffered for over three years at the hands of a law enforcement officer that broke his oath to this country. The officer’s name is Sergeant Craig J. Lepro of the Hull Police Department. Lepro blatantly lied on a search warrant affidavit to gain access to our home. The search warrant was based, in part, upon an identified informant’s “tip” about a possible grow operation located at 83 Main Street in Hull, Massachusetts, and the search resulted in the confiscation of items from the property. David had a valid medical marijuana hardship cultivation card at the time of the search. Sergeant Craig Lepro of the Hull Police Department made false statements, knowingly and intentionally, to gain access to our home and made omissions, with reckless regard for the truth, within the search warrant affidavit that was served to us. Most notably, he illegally altered a Boston Police report in order to provide more credibility to a jailed informant that he had neither met or directly spoke to, whom he had based the information in his search warrant on in order to gain access to our home. He made false statements and omissions in order to establish enough probable cause to have a search warrant issued.
In September of 2015, David properly and timely notified the Massachusetts Department of Public Health of his new address in Hull, Massachusetts so that his medical marijuana hardship cultivation card was registered and linked to his new address. At the time of the search in our home, there was no plant count established that could be grown by the holder of a medical marijuana hardship cultivation card.
Honorable Mark L. Wolf United States District Judge and Scott D. Peterson Justice of the District Court Department who were involved in this case, have acknowledged in writing that the search warrant affidavit of Lepro contained numerous intentional misstatements and omissions. However, neither judge, to date, has reported this illegal activity to their superiors. The question that comes to mind is, why? Isn’t an officer of the law who is guilty of lying under oath subject to criminal prosecution or administrative discipline? If not, does this manifest a curious cynicism concerning the rule of law in our society? Are these judges condoning illegal behavior? One would assume if it was unmistakably clear, that if a police officer lied under oath he/she should be prosecuted for committing perjury. When law enforcement is not being held responsible for committing perjury and disciplined for their illegal behavior, law enforcement officers and judges like this can continue to destroy lives families without any regard to upholding the law… yet they are not above the law! This is my story…
In November of 2015, my father came to visit David and me for Thanksgiving. He drove up from Florida and at the time was carrying a small handgun with him. My father has been a licensed gun dealer and carrier for well over 40 years. He flew home about a week later and left the gun at our house, as he could not legally carry it on the plane with him.
The day after Thanksgiving, David’s nephew was involved in a traffic accident in front of our home with David as a passenger. My house sits approximately 200 feet back from the closest public street. The first patrol officer on the scene, Edward Minelli, stormed up our driveway and began harassing David for no apparent reason. David was calmly sitting/standing (choose one) on our private driveway, while David’s nephew answered questions about the traffic accident. David, feeling attacked, told Officer Minelli that he was on private property and inquired why he would charge up the driveway and start verbally assaulting David for no apparent reason. Minelli asked him who the hell he was and that this house belonged to “Johnny Cupcakes” and that he’d (David) better have an explanation for occupying the property (the previous owner of the home was Johnny Cupcakes, a renowned owner of t-shirt businesses fashioned after local bakeries). He demanded David’s ID. David informed him that we were the new owners of the home. Officer Minelli then turned his attention to interviewing the other driver. My father, David and I witnessed Minelli leave the premises, drive approximately one block from our home, and park on the side street. We were all shocked at the erratic behavior of Officer Minelli.
One hour later we left our home to take the car to the body shop. I was driving and my father, David, and mother-in-law were in the car as well. Minelli pulled me over as soon as I pulled out of our driveway. He proceeded to tell me that I did not have a valid driver’s license. I asked him why he would come to that conclusion and he said that I had informed him of that when he was standing in our driveway. That was absolutely not the case and preceded to hand him my valid California Driver’s license. There was no citation issued as he clearly pulled us over to harass us. He then looked at us and said, “our kind isn’t welcome in Hull”. David is of Latin descent and dark skinned and I am Jewish.
Minelli pulled us over two times in the next two weeks beginning the day after the first incident. This time, we were on our way to the RMV for David’s driving test. David pulled out of our driveway and once again Minelli immediately pulled us over. He told us that we crossed over the double yellow line (it’s a wide turn out of the driveway). He came up to our car with his hand on his gun. David handed him his permit. Within minutes, three additional police vehicles, including a supervisor, showed up on the scene. We sat on the side of the road for 45 minutes. The officers insisted that David’s permit was not valid, even though it clearly was. They decided not to arrest him but instead issued him a criminal citation for operating a vehicle without a valid driver’s license/permit. Although we missed David’s driver’s test appointment, we continued to the RMV to confirm that his permit was indeed valid. The RMV confirmed it was valid and said that the police are lazy and usually don’t bother to properly look at the screen when putting in the permit number. We immediately went back to the Hull Police Department with proof of David’s valid permit and asked them to “tear up” the citation. They refused and informed us that we would have to go to court and explain it to the judge. We were shocked, as this was a mistake the police had made, but we were being inconvenienced and persecuted because of their “laziness” and inability to admit they were wrong. Although we did end up going to court to fight this and it was thrown out of court, we were astonished at how repugnant and dysfunctional this police department was. We also inquired about filing a complaint about Minelli with the Hull Police Department. We were discouraged from doing so, as the police stated we would have to complete a large amount of paperwork, which would not matter in the end. A few weeks later we saw Sergeant Robert Casagrande on the side of the road. We decided to stop and speak with him about Officer Minelli’s behavior. He informed us that Minelli had multiple complaints from citizens of the community related to harassment and intentional traffic stops of individuals and that the only reason he has not been removed from his position was due to his family’s long ties in the Hull community. (Note: In April 2019 Officer Minelli was promoted to Sergeant)
From this point forward, we began to notice strange behavior from the Hull police unit. David would play with our puppy on the front lawn and would notice multiple police cars (marked and unmarked) would drive by the house slowly. I would take the puppy for walks and stop at a park down the street. On each occasion, I would be followed by a police car. They would stop at the park then drive away once I left. This happened on more than a few times, which prompted me to stop walking to the park for fear of my life. We noticed that the police were, on most occasions, parked close to our home and would conveniently pull out as one of our vehicles past them. As one could imagine, this was exceptionally upsetting and disturbing and I was ready to move back to California. I have never been treated like this in my life.
David and I traveled to California at the end of February through March 15th visiting family and friends. At the time I was five months pregnant and became very ill with the flu. I arrived home on March 15th, with David arriving the next day. Two days later, our lives would change forever. Our home was raided by the police on March 17th at 6:00 a.m. by a swat team posing as the Hull Municipal Light Company. When executing the warrant, in addition to Hull police and Metro- LEC, the Old Colony Anti-Crime Task Force (OCPAC), a state agency, was also present. The only involvement of federal officials was when the Drug Enforcement Agency (DEA) Special Agents and Task Force Officers of the Cape Cod Task Force showed up for the execution of the search. They physically tackled David to the ground immediately upon opening the front door to our home.
Life as I knew it was over.
The police pulled me and my mother-in-law into the family room and David into the kitchen. Sergeant Lepro began questioning me and my mother-in-law. He asked me questions about how I could afford a house like this if I was unemployed. How did he know I was unemployed? I had just stopped working for Salesforce.com (one of the leading technology companies in the world) ending an eight-year career, making approximately $180,000/year. I was collecting unemployment from the State of California, however, Lepro claimed that it was illegal for me to collect unemployment from another state. Unemployment laws claim that if you live in one state and work in another, you can file for unemployment in the state where you previously had been working. If you lost your job and moved to another state, the same rule would apply. After a few more questions, he said he was arresting me, but did not state the charges until I asked him what this was in regard to. He said, “Because you own the home.” It did not make any sense, so I asked why he wasn’t arresting my mother-in-law, who also owned the home, and he said, “Why would I arrest a 71-year-old woman?”
Note: at the time of the search of the property there were two firearms recovered. Both firearms were properly registered to the individuals who owned them. One of those firearms was left at the house by my father and the other was left by my firearms safety course instructor who was going through a divorce at the time and needed a safe and secure place to store the firearm outside his home (he confirmed this in a written statement to the police after the firearm was recovered). At the time, we were unaware that in the State of Massachusetts it is unlawful for any person, other than the owner of the firearm, to possess such firearm in their home.
They took both me and David in a police car together to the Hull jail. The cell they tried to put me in was exceptionally hot- at least 100 degrees, and being that I was five months along in my pregnancy, I was having difficulty breathing. I voiced my concern and they removed me and placed me in a juvenile cell – a small room with a slit in the door. They locked the door, leaving me alone in this room as I began to hyperventilate and have contractions. I banged on the door to get their attention and they finally answered. I was transported to the local hospital. Once at the hospital, I was not placed in a room, rather I was handcuffed to a gurney in the lobby of the emergency room, as I continued to have labored breathing and contractions. I pleaded with the policeman who was standing next to me (Steven M. Saunders) and asked him if I could call my lawyer to be released on bail. He would not allow me to make any calls. I pleaded with the nurses to let me use a phone –NO ONE would help me. I continued to ask Saunders and yet he continued to refuse me of a basic right- to contact my attorney. It wasn’t until around 3 pm that someone brought me a phone and I was finally able to make a phone call. At 5 pm I was transported back to the police station. They put me back in the juvenile cell. Again I couldn’t breathe and banged on the door. Sergeant Scott T. Saunders just laughed at me and then starting talking about David and how he would never get out. Hours later, the bail bondsman finally arrived and I was released for $40 fee and on personal recognizance. (Note: In April 2019 Officer Saunders was promoted to Sergeant)
While I was being detained at the police headquarters, my mother-in-law relayed to me that she had witnessed these officers that come into my home earlier that day, order food, eat on my kitchen table, use my dishes, glasses, and silverware, while making jokes at my family’s expense. I felt violated.
When we were escorted home by Patrol Officer, Andrew Reilly, he told me that he did not agree with what the officers had done to us that day. He said that I should have been released that morning on personal recognizance, as was my right, but out of spite, the officers chose to keep me, a pregnant woman, locked up for the entire day.
David was charged federally with possession with intent to distribute and felon in possession of a firearm. Through this event, I was charged with a misdemeanor marijuana charge of distribution Class D drug that I have been fighting for over three years. When this was supposed to be the happiest time of my life as a newlywed and an expecting mother, my life began to shatter in front of me.
When we were arraigned in court on March 18, 2016, the media had been alerted and there were cameras and multiple reporters waiting in the courtroom for me and David. I was bombarded outside the courthouse by reporters, pushed and manhandled as I tried to walk to my vehicle. The press had no regard for me as a pregnant woman or a human being. All I was to them was their next story, their next paycheck. I was exceptionally afraid for the wellbeing of my unborn child. I had never been treated this way. My body ached from being tossed around in the sea of reporters and as I was approaching my home, there were even more reporters and news vans waiting outside, ready to rip my life further apart. They trespassed, walked up my driveway, banged and kicked at my door, screaming for me come outside and answer questions. Fearful of my life, I hid in my house and didn’t answer the door. I had nobody I could call to help us, as I suspected the police were behind this media frenzy outside. I did not have the protection for myself, my mother-in-law or my unborn child that would have been my right in any other situation. We were completely alone, at the hands of an unpredictable crowd forming in front of my home. I have never been so terrified in my life. I couldn’t imagine what this was doing to my elderly mother-in-law and my unborn child.
On March 29, 2016, I went to my OB for a scheduled checkup. I was forced to provide urine for a toxicology test. I inquired as to why I was being tested and my doctor told me just to do it- otherwise there would be problems. They made assumptions about me because they saw me on the news. The ironic thing is that I have never even smoked marijuana in my life, let alone take any drugs, including over the counter aspirin. I felt that I was being targeted by the community as well as local law enforcement and was not able to have even the most basic needs met, including adequate medical attention throughout my pregnancy.
In the state of Massachusetts, it is both medically and recreationally legal to use marijuana. I am not a criminal, nor have I ever been one, and I’m a model citizen. Prior to this event, I had never been arrested nor had any traffic citations. I put myself through college while working full time and obtained my BA in Economics with a Specialization in Quantitative Analysis. Over the years I have spent time volunteering with many organizations. I have helped build homes with Habitat for Humanity, helped care for animals for the SPCA, bagged groceries at food banks, raised money for breast cancer research, worked with the elderly through the Jewish Federation, cleaned and helped maintained grounds for the U.S. National Park Service and many other organizations. I have worked at some of the top law firms as well as in-house law firms at some of the top technology companies for my entire career as a corporate and securities law paralegal. I have taken an oath as a paralegal to uphold the United States Constitution and the laws that enforce it, however, I am being treated like I am a criminal that should be on death row.
And yet my life continued to fall apart. On August 19, 2016, I was in a serious car accident, hit head-on by a man who was high on heroin. At that time, my one-month-old son, 70-year-old father, and my puppy were in my Ram 3500 dually truck. The heroin-high man hit our truck at a force of 100 miles per hour. We were lucky to be alive, however, what I find astonishing is that the man who was high on heroin walked away with zero consequences. His license was eventually revoked because of the accident, but not until seven months later in March of 2017. He received a slap on the wrist for driving under the influence of heroin, speeding and almost killing my family. And surprisingly, I am still fighting a misdemeanor marijuana charge. This makes no sense at all.
I have been caring for my mother-in-law for over three years. She suffers from Logopenic Primary Progressive Aphasia due to Alzheimer’s disease. I have sadly watched her quickly decline during this time not only in her language disturbance, including making or understanding speech but also in her memory. There are times that she doesn’t know what day of the week it is. The most saddening question to me is when she asks where David is and what time he will be home. It’s heart-wrenching and I fear she will either forget who David is (a son she adopted and raised as a single parent) or she will pass away before he is released from prison. There are no words for this situation.
[According to the National Aphasia Association, “Primary Progressive Aphasia (PPA) is a neurological syndrome in which language capabilities become slowly and progressively impaired. Unlike other forms of aphasia that result from stroke or brain injury, PPA is caused by neurodegenerative diseases, such as Alzheimer’s Disease or Frontotemporal Lobar Degeneration. PPA results from deterioration of brain tissue important for speech and language. Although the first symptoms are problems with speech and language, other problems associated with the underlying disease, such as memory loss, often occur later.PPA commonly begins as a subtle disorder of language, progressing to a nearly total inability to speak, in its most severe stage. The type or pattern of the language deficit may differ from patient to patient. The initial language disturbance may be fluent aphasia (i.e., the person may have normal or even increased rate of word production) or non-fluent aphasia (speech becomes effortful and the person produces fewer words). A less common variety begins with impaired word-finding and progressive deterioration of naming and comprehension, with relatively preserved articulation.”]
I think what is forgotten or perhaps never talked about, is the impact of a prison sentence on marriage and family. I recently read an article that stated “the divorce rate among couples where one spouse is incarcerated for one year or more is 80 percent for men and close to 100 percent for women. Another study found that each year of incarceration increases the odds that the inmate’s marriage will end in divorce (before or after the inmate gets out of prison) by an average of 32 percent. That does not leave many couples in this situation with much hope of making their marriage work.” David has been incarcerated for all but six months of our marriage. I want our marriage to work. Incarceration doesn’t foster marriage – it fosters hate, anger, and violence. David has never held his son who will be three years old in July.
I am a well-educated woman and a part of the legal community, yet this experience has demoralized me. As much as I stand tall and keep moving forward, I have been left at home to be a single parent and a caregiver, with all the responsibility of family and home sitting squarely in my lap. I’ve been judged, discriminated against, called names, and felt like an outcast. I feel guilt, shame, loneliness, fear, anger and so much more. I dread speaking to people – what do I say and what will they think of me? How does one person wrap their head around all of this? At this point, I am in extreme financial hardship and am struggling with a possible foreclosure on my house. The Hull Electric Company threatens me on a monthly basis that they will shut off my power, even though they cannot legally do so since I have a toddler and a sick elderly woman in my household. I struggle to find ways to pay our bills, put food on the table and raise a family as a single parent. At a basic level, I have to fund a phone in order to speak to my husband, which is unaffordable at times. Additionally, I fear David will be put in a prison so far away that visitation may be impossible, which will separate him from his family even more. Incarceration doesn’t just punish him – it punishes and destroys marriages, relationships with children, parents, etc.
When David was incarcerated at Plymouth County Correctional Facility, the Superintendent would not allow me, a pregnant woman at the time, to visit him because of the marijuana charge against me. There could have been an exception made via the US Marshalls, but the Superintendent was unwilling to do so. In addition, I was not allowed to drive his elderly mother onto the correctional facility’s property. I was forbidden by the Superintendent via his Executive Assistant and was warned that I would be arrested if I did so. I had to drop his mother off approximately half of a mile away, which is completely unacceptable, especially given her medical, emotional and physical limitations. I was unable to see my husband face-to-face for almost two years. It wasn’t until he was moved Norfolk County Correctional Center was I able to finally see him, as well as bring our son for visits.
I don’t know if or even how our lives will ever be the same. Our reputations have been tarnished by this tumultuous event, our civil rights have been grossly violated, and David is being persecuted for past events that he has already served time for. The law is supposed to protect those who have served their time, but not in this case. The officers and county of Hull continue to persecute him daily. The Double Jeopardy Clause in the Fifth Amendment to the US Constitution prohibits anyone from being prosecuted twice for substantially the same crime. The relevant part of the Fifth Amendment states, “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb”, however, we see this every day The US Attorney has now filed a sentence enhancement and David faces 15 years (10 of those years for marijuana) in Federal prison, whether he goes to trial or pleads out.
It is time to shed light on this law enforcement corruption. If this is happening to us, how many others are affected by this corruption? The time is now to take a stand and fight for the rights of inmates, and the families behind those inmates, that are being treated unjustly. We want our families back. We want justice to be served honestly, swiftly and constitutionally sound. Too many times we cower to those who use the law to their advantage. The law enforcement badge is meant to be an easily recognizable sign of legal authority with a code of conduct that must be followed. Where does it state that it is the authority of the law to break down families beyond the scope of their legal means? My badge stands for honesty, integrity, and transparency. It’s time this applies to all involved.
The Fourth Amendment of the U.S. Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
United States of America v. Paul Gifford (the “defendant”) is a recent case that strikes to the heart of the Fourth Amendment of the U.S Constitution. The defendant’s home was invaded by a swat team at dawn. The lead detective lied under oath about the defendant’s valid medical marijuana registration. He also lied about the sole informant’s background.
The facts surrounding police misconduct are the same for both mine and David’s case. I have been charged with a state misdemeanor marijuana charge and David has been fighting similar charges in federal court. We both have been in pretrial for over three years, which is approximately 1,200 days, to put it into perspective.
Below are excerpts from David’s motion hearing on October 2, 2018, before the Honorable Mark
- Wolf United States District Judge where the police misconduct has been acknowledged.
Page 8 of 20 Line 10:
“On page 8 of 17 [of the affidavit], Lepro made a statement which the government acknowledges, I [Judge Wolf] believe, is false.”
Page 8 of 20 Line 20:
“…That I [Judge Wolf] find in not true.”
Page 9 of 20 Line 7:
“On page 12 of 17 [of the affidavit], there is another inaccurate statement. It says Maglio does not have a medical marijuana registration. In a police report from Rutland, Massachusetts that was available to Lepro, Mr. Maglio’s mother said she thought he did have a registration. If the record check had been run properly, it would have shown he did have a marijuana registration. However, I [Judge Wolf] believe it’s stipulated that the marijuana registration permitted only the cultivation of 10 ounces for personal use. But I [Judge Wolf] find that this misstatement about Albuquerque providing information that led to the discovery of the THC extraction lab in West Roxbury was knowingly false or, at a minimum, in reckless disregard of the truth. I [Judge Wolf] find that the statement about Mr. Maglio not having a medical marijuana license was false and, I [Judge Wolf] assume for present purposes, in reckless disregard for the truth.”
Page 15 and 16 of 20 Line 25 and Line 1 respectively:
“As I said earlier, on page 12 it was incorrect, false to say that Mr. Maglio didn’t have a medical marijuana registration. Evidently, Lepro tried to use the system to determine if he had one and repeatedly did it incorrectly.”
Page 17 of 20 Line 14:
“And this court doesn’t condone, let alone commend, the false or inaccurate information in the affidavit.”
Below is an excerpt from my Order on Defendant’s Motion for Reconsideration dated February 25, 2019 before Scott D. Peterson Justice of the District Court Department where he also acknowledges police misconduct. Note that in his original findings and the motion for reconsideration, Peterson completely neglected to mention David’s valid medical marijuana card even though it was heavily discussed in my Motion to Suppress, Motion for Franks Hearing and Motion for Reconsideration.
Page 2 of 3 Paragraph 2:
“While it is true that the court found Detective Lepro’s statement that “Albuquerque has provided reliable information to law enforcement resulting in the discovery of a THC lab and the prosecution of the offenders” was false or at least made with reckless indifference to its truth…”
In addition, there are many other legal issues aside from the aforementioned misconduct that is wrong.
- Prior to and at the time our home was searched, David had a valid medical marijuana registration providing for hardship cultivation. Lepro knew that David possessed a medical marijuana card since June 2015 from what was stated in a Rutland police report he had in hand
- As stated in [David’s] Supplement to His Motion for Frank’s Hearing and Motion to Suppress and Response to Government’s Opposition filed January 2, 2018, “Even with this knowledge, Lepro then failed to locate the card through the Medical Use of Marijuana Online System (“MMJ System”) by either recklessly or intentionally entering the wrong or incomplete information into the system. In support of the government’s Opposition To Motion For A Franks Hearing, Lepro produced the MMJ system query for Zerkel on February 7, 2016, and Maglio on February 21, 2016. (Doc. 63, at 19, n 7; Doc. 63-1, Exhibit A). As indicated by the Department of Criminal Justice Information Services records included in the appendix, however, Lepro also queried the MMJ system concerning Maglio’s medical marijuana card on February 7, 2016. App/ 7. Regardless, in both instances, insufficient or incorrect information was entered in the “request parameters” by Lepro. Specifically, the two times Lepro searched the MMJ system for Maglio and the one time he searched for Zerkel, he failed to include the defendant’s date of birth, and simply put “Maria” for the defendant’s mother’s maiden name, and not her last name as required for this necessary field. He also failed to search any registration type other than “patient.” App/ 7-9. Not surprisingly, no records were found based on these glaring deficiencies that again appear to deliberate, or with such recklessness that the appropriate results did not appear. seeing as Lepro lied about Maglio not having a medical marijuana card allowing for cultivation beginning sometime before June 2015. App/ 5.”
- The credibility of the informant
- The curtilage issue (my house sits almost 200 feet away from the closest public way and my property is surrounded on all sides by houses). How would it be possible for Lepro to be within 50 feet of my house, as he stated in the affidavit, without trespassing on my property? High electricity bills and marijuana odor do NOT constitute probable cause, etc.
Below are various excerpts from cases that are relevant to the defense of our cases: Franks v. Delaware (1978)
“Where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment, as incorporated in the Fourteenth Amendment, requires that a hearing be held at the defendant’s request.”
An allegation is made with “reckless disregard for the truth” if the affiant “in fact entertained serious doubts as to the truth of the allegations or where circumstances evinced obvious reasons to doubt the veracity of the allegations in the application.”
Commonwealth v. Josiah Canning Supreme Judicial Court of Massachusetts, Barnstable 2015
”Overview of the act. The voters approved the act as a ballot measure in 2012, and the act went into effect on January 1, 2013. St.2012, c. 369. Section 1 of the act sets out a statement of purpose:
“The citizens of Massachusetts intend that there should be no punishment under state law for qualifying patients, physicians and health care professionals, personal caregivers for patients, or medical marijuana treatment center agents for the medical use of marijuana, as defined herein” (emphasis added).”
Commonwealth v. Josiah Canning Supreme Judicial Court of Massachusetts, Barnstable 2015
“A qualifying patient or his or her personal caregiver is permitted to possess up to a sixty-day supply of marijuana necessary for the patient’s personal medical use. See id. at § 4(A). In addition, a qualifying patient whose access to a licensed medical marijuana treatment center is limited by finances or an inability to travel to a licensed center may obtain a “hardship cultivation registration” that allows the patient or the patient’s personal caregiver to cultivate a sufficient number of marijuana plants to produce and maintain a sixty-day supply of marijuana.”
“Under the medical marijuana regulations of the Department of Public Health (department), discussed in the next paragraph of the text, the presumptive sixty- day supply of medical marijuana is defined as ten ounces. See 105 Code Mass. Regs. § 725.004 (2013). The sixty-day supply may be greater than ten ounces for an individual qualifying patient upon the patient’s certifying physician providing written certification and documentation that a greater supply is necessary. See 105 Code Mass. Regs. § 725.010(I) (2013). The regulation does not identify the number of marijuana plants that may be necessary to grow ten ounces of marijuana.”
“A license does constitute an affirmative defense at trial to be raised by the defendant. See G.L. c. 278, § 7.13 See also Commonwealth v. Gouse, 461 Mass. 787, 804–808 (2012); Couture, 407 Mass. at 181–182; Commonwealth v. Jones, 372 Mass. 403, 405–406 (1977). But this case is not about defenses at trial; the issue is probable cause to conduct an investigatory search. At the trial of a case in which the existence or nonexistence of a license defines whether the charged conduct was legal or instead a crime, as Couture explains, the defendant “has every opportunity to respond” by producing the license authorizing his conduct, and in the absence of the defendant’s doing so, it is not unfair for the jury to presume in accordance with c. 278, § 7, that the defendant did not have a license. Couture, supra at 182. Accord Gouse, supra at 806. At the time of a search, however, such a defendant is in a very different position: the police arrive, armed with (among other things) a warrant authorizing the search; the defendant has no right to object or respond, and indeed may not even be present.”
ZERKEL - DECISION - Motion To Dismiss
ZERKEL - DECISION - Motion For Reconsideration
ZERKEL - DECISION - Franks Hearing - Suppress Search Warrant
MAGLIO - Supplement to Defendants Motion for Franks Hearing and Motion to Suppress and Response to Governments Opposition filed January 2 2018
MAGLIO - Motion Hearing Excerpt - October 2 2018
MAGLIO - Exhibits to Supplement to Defendants...
Attachment to Maglio letter to Hull Police Captain 4-22-19
Maglio letter to Hull Police Captain 4-22-19