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 Two Massachusetts Drug Suspects (Part Two)

Yesterday, we began our examination of the arrest and sentencing of a Geraldo S., 32 of Marblehead (hereinafter, “Defendant 1”). He recently pled guilty in a Massachusetts superior court and received a ten year sentence. We were looking at the story from a search and seizure angle.

We left off when it came time to explain the search of Defendant1’s vehicle.

As you may recall, Defendant1’s arrest took place back in 2004. To show you things have not changed very much, let’s turn the clock forward to this very weekend. On Saturday, Henry T., 21, (hereinafter, “Defendant2”) of Randolph was blessed with similar police attention.

Braintree police say that Defendant2 had been driving without his headlights on early Saturday morning. They checked their computer to get information on the vehicle and found that Defendant2’s license had been suspended.
That’s a crime in the Commonwealth.

And so it was that Defendant2 was pulled over. According to the police, “A subsequent search uncovered a small amount of marijuana in his pants pocket. A search of the vehicle uncovered a plastic bag containing a larger quantity of marijuana, along with additional plastic bags and a scale.”

Boom. The charge of possession with the intent to distribute.

Attorney Sam’s Take:

In Defendant1’s case, there had been an ongoing investigation before he was stopped. It was this investigation and/or the outstanding warrants which made it lawful to stop him. In Defendant2’s case, they had probable cause to stop him because of his lack of license as well as his driving without his lights on.

“Well, what about having him exit the car and searching both him and the car?”

Driving with a suspended license is one of those crimes where the police have a certain amount of latitude. They could have issued Defendant2 a summons and let him go on his merry way, or arrested him. Unless there was a reason to fear for his/her safety, the officer would have had no cause to have Defendant2 step out of his automobile. However, if the officer was arresting him, then it is a “search incident to arrest” just as it was in Defendant1’s case.

“And again law enforcement searched the car.”

Yes, and that is where we left off yesterday.

When a defendant is arrested in his/her car, and there is both a passenger who can drive the car back home and no probable cause to search the automobile, the officers generally let the passenger drive the car off with the owner’s consent. However, if there is nobody there to drive the car home, then the officers impound the car for public safety reasons.

Guess what this means?

For both safety and liability reasons, they need to know what is in the car, right? After all, they do have it in their custody. They police perform what is known as an “inventory search” of the car. Any contraband, such as drugs, found in the search, of course, is fair game.

Finally, in Defendant1’s case, the police next searched his home. While the article is not clear about how that was done, there are two rationales available.

One is search the house without a warrant. The argument would be that there were “exigent circumstances”. In other words, it was an emergency because, seeing Defendant taken away wearing the Commonwealth Bracelets of Shame, his compatriots would get rid of the remaining drugs.

In this case, that is a pretty weak argument, especially since we have no word of any other compatriots. Most likely, the police got a search warrant for the house. I will point out, however, that a full confession was mandated by the prosecutor for this plea bargain. I suspect that this confession could have described Defendant1’s operation (at least as the Commonwealth saw it) and potentially named upcoming arrestees, aka compatriots.

And so the investigation may be continuing.

In the meantime, of course, if you are in a similar position as either Defendant1, Defendant2 or even the compatriots, you want to have an experienced defense attorney at your side. The search and seizure laws, as well as drug laws in general, can be confusing and complicated. Get someone who knows them and can use them to your advantage if possible. 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 stories upon which this story is based, please go to http://www.thedailyitemoflynn.com/articles/2010/01/16/news/news08.txt and http://www.patriotledger.com/news/x1685418312/Braintree-traffic-stop-leads-to-drug-arrest

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