Massachusetts Criminal Lawyer Blog
A Framingham man was arrested last week on various drug charges. According to an article in the MetroWest Daily News, police responded to a report of a loud argument on Carlson Road. When the police arrived, they found the defendant and several other people walking in the area. The police reportedly observed a bag of marijuana hanging out of the defendant’s pocket, about to fall out. The police then seized the marijuana, which consisted of two smaller plastic bags inside a larger bag. After the seizure of the marijuana, the police conducted a further search of the defendant and found a Skoal can on his person, which contained several Adderall pills and a plastic bag of cocaine. The defendant then made some statements about who the can belonged to – first stating it wasn’t his, and then stating that it was for personal use. The defendant also had $370 on his person. He was ultimately charged with: (1) possession of Adderall with intent to distribute; (2) possession of marijuana with intent to distribute; and (3) and possession of cocaine.
Fortunately for the defendant, he may well have a strong argument that the police did not have the right to search him in the first place. He can therefore argue that the evidence that the police found as a result of the search should not be admitted against him. Specifically, the police are not allowed to search people whenever they feel like it – there must be some legal basis for the search to be valid. If the police search a person without a legal basis, any evidence they find is not admissible against the person at trial, and the person can file a motion to suppress to have the evidence excluded.
In this case, recent case law indicates that the police officers’ observation of the bag of marijuana was not a sufficient legal basis to justify a search. In Commonwealth v. Pacheco, the Supreme Judicial Court held that the fact that a person is in possession of a less than an ounce of marijuana is not sufficient to establish probable cause to believe that a criminal amount of contraband or evidence of a crime will be found in that person’s possession because possession of less than an ounce is a civil violation, not a criminal one. Therefore, possession of less than an ounce does not amount to probable cause to search a person. Given the fact that there is no indication that the police believed that the defendant possessed more than an ounce of marijuana at the time of the search, he may argue that the search was illegal. Although the Commonwealth may try and argue that the presence of the two smaller bags of marijuana inside the larger one indicates an intent to sell the marijuana, which would be establish probable cause to search because possession with intent is a criminal violation, the defendant can still argue that the police were simply alleging an intent to distribute for the pre-textual purpose of charging him with a crime so they could search him, which the SJC recently warned against in Commonwealth v. Humberto H. If the court agrees that the police did not have the right to search the defendant, the drugs found on him will not be admissible at trial, and the Commonwealth will not be able to prove its case against him.
If the police found incriminating evidence on you or a loved one after a search, you will need an experienced attorney to help you determine whether you have a valid motion to suppress. Attorney Daniel Cappetta is well versed in search and seizure law and will make sure your right against unlawful searches is protected. Call him for a free consultation.