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.

Amesbury Man Is Charged With Possessing Marijuana With Intent To Distribute In Newburyport District Court

32-year-old Michael Makiej of Amesbury (hereinafter, the “Defendant”) was in Newburyport District Court Monday. He has been charged with Massachusetts drug crimes and the drug at issue is marijuana. He maintains his innocence.

The Defendant’s problems arose, as often is the case, when a criminal investigation began without his knowledge. Federal agents informed state investigators that they suspected that a package containing marijuana would be delivered to the Defendant’s home. Amesbury police say it was to be delivered on Friday.

And so it was.

When the package was delivered, the Defendant was not home. However, the police used a drug-sniffing dog to fortify their suspicions about the package. Then, the police obtained a search warrant to search the package.

According to law enforcement, they found two pounds of marijuana inside. It was valued at about $5,000 to $8,000.

The police used this additional information to obtain another search warrant…this time to search the Defendant’s house. Inside, they say they found 25 marijuana plants of various sizes hidden in a room behind a false wall in a closet on Sunday.

The Defendant was then arrested and charged with possession of a Class D substance with intent to distribute and manufacturing/cultivating a class D substance.

After a bail hearing, the court set bail at $5,000.

Attorney Sam’s Take On Drug Possession and Massachusetts Search And Seizure

Often, when we hear about Massachusetts gun and drug arrests, there is no warrant involved. That is because it often happens on the Commonwealth’s mean streets. However, when possible, warrants are generally required in order for a search to be lawful.

In this case, the police appear to have been quite careful, obtaining a warrant each step of the way.

“But, Sam, they did not get a warrant to have the dog sniff the package.”

This is true. However, a warrant is not necessary if the police (including their dogs) observe the contraband from a place they are lawfully allowed to be. You see, one of the guiding principles here is what the suspect’s “expectations of privacy” are. The Defendant could certainly expect that, absent the requisite circumstances, the police would not open and look inside his package. However, officers could certainly sniff it as it was outside the house. The dogs sniffed it and the police were so careful that even then they did not seize the package.

Clearly, the police wanted to get inside the home. They wanted the Defendant to bring the package inside, give him time, and then raid the house so that they could get a clearer picture as to what was going on inside. So, the careful approach helped in two angles:

1. Protecting the prosecution from a motion to suppress evidence and 2. Not having to be stuck with merely the package when they could gain access to inside the house as well.

“Sam, how could they charge the Defendant with the intent to distribute the pot? They did not see any sales. In fact, there was reason to believe that he actually purchased the package of pot.”

True, and that is likely to be the battleground in this case…the intent.

You see, we have not yet developed x-ray equipment advanced enough to read intent. So, we look at the surrounding circumstances. As we do so, we usually see what we want to see.

For example, a guy walking down the street is found with two bags of crack, cocaine. It is in its packaging. The police, upon finding it will describe that the coke is packaged for sale and generally charge him with intent to sell. However, the fact is that it is also packaged to buy! I would argue that the packaging in such a case is irrelevant on the issue of intent..

Law enforcement looks to other things to show intent to sell. They look at amount of drugs and the presence of money, firearms and drug paraphernalia (scales, empty packaging, etc.)

“But, Sam…that’s all circumstantial evidence!”

Sure. Did someone tell you that criminal cases cannot be proven through circumstantial evidence?

If so, I would bet they are not an experienced criminal defense attorney…!

To view the article upon which this blog is based, please go to http://www.boston.com/Boston/metrodesk/2011/07/amesbury-man-charged-after-pot-allegedly-found-growing-secret-room/rTtyrAivToVpqFrONgGGNL/index.html

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