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) 492 3000.

Attorney Sam’s Take: Arrested In Boston For Drug Possession – Part Three (The Defense)

We have discussed the realities of being arrested for possession of controlled substances in Boston. We have investigated the importance of the location of that arrest. I have painted, I suppose, a fairly bleak picture. However, I have also told you that an experienced criminal defense attorney can make a difference as to the disposition of the resulting criminal matter.

There are certain defenses which are available in drug possession cases. Some of them may seem obvious, but given the state of the law, they need to be pursued in a particular way.

For example, it is probably already apparent that if there are no drugs in your possession when the police come, that it makes it harder to prosecute you. This is probably why I see many cases in which, upon seeing the police approach, the soon-to-be-defendant simply drops the bag of drugs down and runs away in hopes that, since the drugs are no longer in his hand, he cannot be prosecuted. Actually, that little gesture has not helped him at all. In fact, it has hurt him.

There is a legal term called “constructive possession”. According to this theory, a person still possesses something even though it is not on his person. An example of this is that I have a “lucky” pen that I always use. Let’s say I leave it in my office’s conference room and go to my room for a moment. I have not surrendered the pen. It is still mine. I am constructively possessing it.

In most cases, the defendant throws the bag down in plain sight of the police officers, so there is no mystery as to how it ended up on the ground. Further, the fact that the defendant ran away as soon as he dropped the bag is evidence of “consciousness of guilty” which the Commonwealth will now use against him at trial.

Self-help methods such as this are not terribly helpful in avoiding prosecution. There are, however, issues that a defense attorney can investigate to test the Commonwealth’s case against you.

For example, suppose, instead of dropping and running, the above suspect simply stayed there as the police approached. How the police handled the resulting approach may well make the difference between a successful or failed prosecution even if they found drugs. For example, there are Constitutional guidelines which allow the police to engage in a search up to a point of a suspect, but not beyond that point, unless there is probable cause to arrest. If the drugs are found in violation of these guidelines, they must be suppressed, which means the Commonwealth cannot use them against you.

There are other defenses available, for example, specific to the “intent to distribute” allegations. Straight possession of a drug, in other words, for one’s own use, is handled less harshly than possession with intent to distribute. One example of this is that any “school zone” count only attaches when the intent is to distribute. There are often other explanations why elements, assumed by the police to show intent to sell, exist. For example, there are a variety of reasons why a person might have a large amount of cash on their person other than it being proceeds from drug sales.

Trying to explain to the police during your arrest is not the correct time to present your defense, however. As I have often written, upon being approached by the police, you do not want to out-talk, out-reason, out-fight or out-run law enforcement. You will lose the attempt and simply make the Commonwealth’s case against you in court that much stronger.

Go along quietly and politely and then hire an experienced criminal defense attorney at the earliest possible time to protect you from ongoing investigations as much as possible, review the facts and determine what you have available in terms of your defense.

If you have found yourself under investigation or under arrest for drug possession, either straight possession or with the intent to distribute, and you wish to discuss your matter with me, feel free to call me at (617) 206-1942.

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