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.

The Search And Seizure Of A Marblehead Drug Suspect (Part One)

While the rest of us were celebrating freedoms that are the legacy of heroes like the late Dr. Martin Luther King yesterday, one gentleman from the North of Boston was adjusting to the trade of his need of a defense attorney for a ten year term of imprisonment in Massachusetts prison.

Of course, he has already served approximately six of those years awaiting trial.

Geraldo S., 32, of Marblehead (hereinafter, the “Defendant”) was found to be in possession of a kilo of cocaine after a traffic stop in 2004. On Friday, he pled guilty to the reduced charge of trafficking over 100 grams of cocaine . This was the result of a plea bargain with the prosecution. Had a deal not been struck, the court would have had no choice but to sentence him to at least fifteen years in the event of a conviction.

Key to the plea bargain was a confession made to law enforcement.

The Defendant’s most recent criminal justice woes were the result of an investigation by the Marblehead police. Part of the investigation involved the fact that, apparently, the Defendant was known by several different names.

As part of the investigation, surveillance was set up at the Defendant’s home. Finally, on March 26th, Police Officer Jason Conrad stopped the Defendant in his blue 2000 Mercedes SUV in a parking lot on Green Street on suspicion of processing several identities and having multiple licenses from the Registry of Motor Vehicles. He also was in default in several courts for a variety of motor vehicle related cases according to court documents.

The officer conducted what is known as a “pat frisk” on the Defendant and found a round of ammunition in his right front pants pocket and $1,850 in cash.

The police took both him and his vehicle into custody. Back at the station, they did an inventory search of the vehicle. They reportedly found a hidden compartment under the passenger side where a kilogram (2.2 pounds) of cocaine was found, having an estimated street value of $50,000 to $60,000 at the time.

Next, the police searched the Defendant’s apartment where they found an unlicensed .38 caliber firearm along with drug packaging materials.

The Defendant was indicted by an Essex County grand jury in April of 2004 and has been held in custody since being arraigned.

Attorney Sam’s Take:

The Defendant’s tale presents several search and seizure issues.

“Hey, Sam, what’s with all these searches? Were they Constitutional?”

If the Defendant’s attorney was at all competent, he brought a motion to suppress evidence seized. If so, the court obviously ruled against him regarding all of the searches. Unfortunately for the Defendant, a number of these searches are good on their face.

As you know, When a suppression motion is brought, it is to prevent the government from using evidence they obtained. One looks back to the original stop/search of the Defendant and goes from there because if the first stop was unconstitutional, then whatever else was discovered thereafter, unless there is an independent basis, must also be suppressed.

In this case, the first such event was the car stop. In this case, it would appear that the stop was lawful because there was a warrant out for the Defendant’s arrest. Assuming that law enforcement was aware of this, those nasty default warrants from days gone by provided the right for the police to arrest him.

If they had not been aware of the warrants, they could have stopped the Defendant assuming they had the requisite cause to believe that the multiple identity crimes were being committed. They had the right to at least inquire. In that case, when they approached the Defendant they had the right to frisk him for their own safety.

“What is the difference between a ‘pat frisk’ and a search?”

Basically, the extent of intrusion.

When the Police arrest someone, such as if they were acting on the warrant, they have the right to search them. It is called a “search incident to arrest”. So, the ammunition and the money (which would be used to show the Defendant was involved in trafficking) is admissible.

“But what about the car? If the police were not aware of the warrant, could they have simply stormed into the Defendant’s house to question him?”

These are questions we will tackle tomorrow in Part Two of this blog.

In the meantime, as always, if you are facing such a scenario and wish to discuss it with me, please feel free to contact me at 617-492-3000.

To find the original story upon which this story is based, please go tohttp://www.thedailyitemoflynn.com/articles/2010/01/16/news/news08.txt

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