CBS Boston

Brockton Man Indicted on Drug and Gun Charges

October 30, 2013

Victor A. Merlino, a Brockton resident, is being charged in Brockton Superior Court with trafficking in cocaine, unlawful possession of a firearm, unlawful possession of a loaded firearm, unlawful possession of ammunition without an FID card, unlawful possession of a class E substance (steroids), assault and battery with a dangerous weapon, two counts of assault and battery and two counts of a threat to commit a crime.

Reports indicate that during the early morning hours on Sunday, Sept. 1, police forced their way into Merlino’s apartment after receiving reports from an unknown source that a 27-year-old woman who was in a relationship with Merlino had been missing and could be in danger. Police forced entry into Merlino’s home with weapons drawn to find Merlino and the woman in a back bedroom. During the forced entry, police officers seized a bag of cocaine, prescription pills and firearm ammunition. Police officers later returned with a search warrant and seized over $10,000 in cash, an additional 40 grams of cocaine, as well as digital scales.

Though this case may seem like there is strong evidence against Merlino, there are many factors that come into play. In order to fight this case, a skilled criminal defense attorney would have to look at the validity of the information given to law enforcement, the validity of the forced entry into Merlino’s home, the validity of the seizures, as well as the validity of the search warrant.

All citizens are protected against unlawful searches and seizures by the Fourth Amendment to the U.S. Constitution and Article 14 of the Massachusetts Declaration of Rights.This means that police officers are prohibited from searching your body, property or home unless they have probable cause to believe an illegal activity is occurring, or they have a court-issued search warrant. In this case, the original search of Merlino’s home was based on information given to police through an unidentified informant. The validity of the search therefore becomes based on the reliability of the information given to police officers. Because it isn’t clear how law enforcement received this information about the 27-year-old woman, there are important questions to be asked. For example, did law enforcement receive this information from other law enforcement officials? If not, were police officers familiar with this informant? Had they used this informant before? Did the information the informant gave seem plausible at the time? Were there any other factors present that corroborated the informant’s information?

A criminal defense attorney must attack this information and show that it was unreliable. For example, if the informant was not other law enforcement and there was no other evidence to raise a suspicion that the 27-year-old woman was in danger or located in Merlino’s house, the search and seizure was based solely on the information given by an unknown source. The defense can argue that an unreliable informant’s information alone is not enough to establish probable cause to forcibly enter Merlino’s home.

Also, though the woman was found in Merlino’s home, there is no indication that the woman was in danger or harmed in any way. It is stated that the woman and Merlino were in a relationship and were found in a back room but there is no reference to her unwillingness to be there. These are factors that a defense attorney can use to show that the information that law enforcement relied upon was unreliable and unreasonable.

If it is shown that the information given was invalid to establish probable cause to search Merlino’s home, (unconstitutional), a skilled criminal defense attorney must formally move the Court to suppress any and all evidence that stems from the invalidity in order to protect their client’s rights. If the defense is successful, the government may not use any of the suppressed evidence against Merlino at trial which significantly weakens their case. This means that the bag of cocaine, prescription pills and firearm ammunition were all invalidly seized based on an unreliable informant. As for the evidence seized based on the search warrant, the defense can argue that the warrant was issued by the Court based on facts that only came to light as a result of the illegal entry into Merlino’s home. Consequently, the $10,000 in cash, 40 grams of cocaine, and digital scales are all “fruits of the poisonous tree,” meaning their discovery stemmed from the original unlawful search and also cannot be used against Merlino.

If you have been charged with a drug offense, firearm offense, or other criminal offense in Massachusetts, contact my office immediately for your free initial consultation:


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