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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 28, 2013

WALTHAM HIGH SCHOOL SECURITY GUARD IS ARRESTED FOR STEALING AND POSSESSING CHEMICALS FOR EXPLOSIVES

We end the month of February this year with a story about a watcher who should have been watched. It concerns Gardner’s 23-year-old Jesse Holland (hereinafter, the “Defendant”). It also deals with the issue of Massachusetts search and seizure.

The Defendant is an involuntary guest of the Commonwealth this evening. He is being held without bail as the local prosecutors charge that he is too much of a threat to be let out of custody.

The Defendant works (or worked, at least) as a security guard at Waltham High School. He stands charged with possessing chemicals that could be used to make an explosive.. Law enforcement says that he stole these chemicals from the high school. The materials include iron powder, aluminum powder and magnesium metal ribbon.

Mixed together in the right way, apparently, a rather strong bomb can be made.

The Defendant was arrested on Wednesday morning in a Leominster store parking lot. Police say that, when they noticed him, he acted suspiciously as he was downloading a movie. Somehow, noticing him “act suspiciously” led to the search of his vehicle. During the search, officers say they found the chemicals, a hatchet and a stun gun.
Apparently, the Defendant was also give to making inculpatory statements to the officers. They say that he told them that he intended to throw the chemicals into a fire to "see what would happen."

In the video I watched online, I saw one of the officers indicating that he did not see the Defendant as someone who wanted to hurt anyone.

Apparently, the prosecutors did not share that view at arraignment.

Attorney Sam’s Take On “What Could Have Happened”

It is important to realize the type of explosive we are talking about here. It is not of the atomic or nuclear variety. It will not blow up the neighborhood. However, as one can see on the video on the news, one can certainly cause damage and serious personal injury.

On the other hand, as the officer points out, there is nothing to indicate that he intended to do anything like that.

But, of course, that is what could have happened had the Defendant not been arrested. As a result of that, the Defendant is being held as a threat to the community without bail.

Of course, there does seem to be enough evidence to show the theft of the materials as well as the type of materials they are. Further, due to the Defendant’s open-mouth policy, there is evidence that he did, indeed, intend to build the explosive.

As a criminal defense attorney, and having been involved in the trenches of the criminal justice system for longer than I am in the mood to admit right now, I am most interested in how the search of the car took place.

You see, there is a lot of case-law written about when the police do and do not have enough reason to search someone’s car. The fact that the Defendant was “suspiciously” downloading a movie does not really give the police enough to search the car. In this car, not only was inside of the car searched, but the trunk as well. If a motion to suppress is granted, then the Commonwealth will not be able to use the items against the Defendant. In that case…the matter will have to be dismissed.

“But, Sam, what about his statements?”

Good point. The statements can certainly be used against him and he admits to just about everything possible.

However, should the motion to suppress the items be allowed, then the statements might be thrown out as well. The primary argument would be that those statements were made stemming from the results of the bad search. Therefore, under a doctrine referred to as Wong Sun, the statements could be “fruits of a poisonous tree” and therefore not admissible either.

Even if the motion to suppress what was found during the car search is denied, there would still likely be a motion to suppress the statements. It would certainly seem like the Defendant was in custody. The question would be if the police warned him of his Miranda Rights or that there was some reason that the admissions were not results of custodial interrogation.

For his sake…the Defendant had better have a very good and experienced criminal defense attorney…!

For the original story upon which this blog is based please go to: http://bostonherald.com/news_opinion/local_coverage/2013/02/mass_school_guard_faces_chemical_charges
Note: More information is on the video on the page as well