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Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network.
To speak to Sam about a criminal matter call (617) 206-1942.

Posted On: February 13, 2012

DORCHESTER DRIVER IS ARRESTED FOR DRUGS, WEAPONS AND…A SMART PHONE APP?

The Boston Criminal Lawyer Blog has discussed many stories which demonstrate that, particularly with new technology, law enforcement has such tools in its arsenal that attempting to out-race them is futile.

Well, Boston police made an arrest on Friday night which shows that the reverse is not necessarily true.

Twenty-two year old Dexter Winnie (hereinafter, the “Defendant”) was pulled over by a plain clothes officer for failing to use his turn signal. Officers then searched the Defendant and his car after noting the smell of marijuana. The search turned up marijuana, a knife, and brass knuckles.

The Defendant was arrested on weapons and drug charges, as well as receiving the original traffic citation.

During the stop, the officers report that they could hear a Boston Police Operations broadcast coming from inside the Defendant’s car. It turns out that the transmission was coming from an application from the Defendant’s phone.

So they seized the cell phone too.

Attorney Sam's Take On Search, Seizure And Pot


One wonders what the Defendant heard during the moments preceding his car being stopped. Clearly, it did not give him enough warning to be wary.

Perhaps the facts of this case will all come out someday. If it does, it is unlikely to be because of the trial of the matter.

“Why is that, Sam? Because the Defendant was caught with the contraband and so he has no choice but to plead guilty?”

No. Quite the opposite in fact. There is a decent chance that this case is going to be dismissed, assuming the defense attorney has the experience necessary.

You see, what the police did here used to be ok. However, that has changed. That’s right, just like the drug-certification change we discussed last week. Now, possessing a small amount of marijuana is no longer a crime in the Commonwealth. An odor of marijuana is no longer considered enough reason for an officer, with nothing else, to pull someone out and search them and their car.

“Are there exceptions?”

Always.

Not that it seems to be articulated here, there could be a case where the officer believes the driver is operating under the influence of the marijuana he smells. He then has the right to ask the driver to step out and discuss nasty things like field sobriety tests. Should the driver end up arrested, the police would then usually have the right to tow the car and take an inventory search of the car. In such a case, the weapons and drugs would have been discovered lawfully.

Another possibility is if this was an investigation into the actual trafficking in drugs. While mere possession is no longer illegal, possession with intent to distribute is still illegal.

Of course, another issue is where the materials were found. For example, if they were in plain view, and the officers could see them through the window, then they may be lawfully seized.

As for the cell phone…while it gives an ironic twist to the story…there was really no reason to seize it. It is not illegal to have that app and, unless the Commonwealth intends to bring the charge that the Defendant was texting while driving, there is really no reason for the police to keep it.


To view the original story upon which today’s blog has been based, please go to http://boston.cbslocal.com/2012/02/11/police-scanner-phone-app-cant-keep-dorchester-man-out-of-trouble/