Massachusetts Criminal Defense Attorney Blog
The Lawrence Eagle Tribune reports that a Police Detective pulled over a car because he saw one of the passengers holding a bag “containing a green leafy substance.” According to the Tribune, based on that observation the Lawrence Massachusetts Police Detective pulled the car, that was filled with what the thought was “marijuana smoke” over. All four occupants were charged with possession of marijuana with intent to distribute and conspiracy to violate the drug laws. The driver faces additional charges including operating after his license was suspended.
Although all of the facts of this case are not known at this time, it appears that based on these facts an experienced Haverhill defense attorney should file a motion to suppress evidence. As most in the criminal law arena are aware, Massachusetts recently decriminalized the possession of marijuana that is under one ounce.
The state and federal constitution provide that individuals have a reasonable expectation of privacy on their person and in their home. This expectation of privacy often extends to drivers and passengers in a motor vehicle. What that means, is that police officers must have probable cause to believe that a crime has been committed or is going to be committed before conducting a search. Even a threshold inquiry, which is considered less intrusive, must be supported by “reasonable suspicion” of criminal activity.
In this case, it appears that an argument can be made that even if the detective saw smoke, that would not be a reason to pull the car over. How would the detective know that the smoke was “marijuana” smoke as opposed to cigar or cigarette smoke? Furthermore, the possession of marijuana under an ounce is no longer a crime but treated like a civil infraction Another are to peruse would be to investigate how the detective was able to see the alleged “bag of marijuana.” It seems that the likelihood of being able to see a clear plastic bag of anything in a moving vehicle, never mind being able to identify the substance is slim to none. Based on the facts available at this time, ti does not appear that the driver was committing any traffic violations. Accordingly, a strong argument can be made that the detective had no legitimate reason to pull the car over. Along the same lines, even if the detective smelled a “strong aroma of marijuana” upon opening the door, that does not necessarily support ordering the occupants out of the car and conducting a search. There is no indication that the driver was impaired, in fact it appears that he was not charged with operating under the influence of marijuana.
In the event that a motion to suppress evidence was filed and allowed, it is likely that would be the end of the case. However, even if the case went to trial these defendants have viable defenses. In order for the Commonwealth to secure a guilty on the charge of possession of marijuana with intent to distribute, they must prove beyond a reasonable doubt that a defendant possessed the substance with the intent to distribute. To prove “possession” the government must prove that the defendant had knowledge of the substance and the ability to control it. Thus, an argument can be made that the individuals that were not “holding” the bag did not have control over the substance. Additionally, in order to prove “intent to distribute” there must be some evidence that the defendants were going to share, sell or otherwise distribute the produce. In most cases large amounts of cash, scales, baggies, customer lists and cell phones are usually confiscated at the time of arrest to support this charge. It does not appear that there was any such evidence in this case.
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