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.

HOLYOKE DRUG AND GANG SWEEP RESULTS IN ARRESTS, GUNS AND DRUGS

In case you were not aware of it, the police do not always simply lay in wait of alleged criminal activity. Sometimes they go out and target certain types of crimes. Such incidents are usually called “sweeps” and have fancy names for the operation.

Today’s story involves a sweep of alleged gang members.

In Holyoke, law enforcement arrested 20 people in a gang and drug sweep. It was a multi-agency criminal investigation

The sweep took place on Thursday. Hampden District Attorney Mark Mastroianni announced that said suspects face a variety of drug charges. Further, six people who were already in custody face additional charges. Finally, arrest warrants were issued for four more people who remain at large.

The DA also announced that the criminal investigation into what he referred to a “La Familia gang” also resulted in the seizure of 3,300 bags of heroin, two guns and cocaine.

The DA says the sweep was part of an ongoing effort to interrupt the illegal drug trade in the city.

Attorney Sam’s Take On Sweeps, Gangs And “Mere Presence”

You do not need a Boston Criminal Lawyer to tell you that when these sweeps take place, anyone alleged to be carrying any drugs or guns are going to be arrested. The chief issue is likely to be whether the police had the right to the search and seizure involved. That is an issue we have discussed, and will discuss further, in future blogs.

Today, though, let’s discuss other issues that this story brings up.

First of all, it might surprise you to know that belonging to a “gang” is not, in itself, illegal.

“But, Sam, you are always talking about criminal conspiracies and joint ventures! You say that in such cases, one person is held responsible for what the others do.”

Yes, and that is correct. However, there has to be evidence that the person is part of that particular conspiracy or joint venture.

“Mere presence”, as the cases call it, is not enough.

For example, let’s say I belong to the a group called “Blogging Criminal Defense Advocates”. Assume that we do various things, such as criticize law enforcement and argue about the United States Constitution and the Massachusetts Declaration of Rights. However, at one of our functions, a quarter of our group are using the opportunity to plan a robbery.

The fact is that the conspiracy is limited to those participating in the planning and the conducting of the robbery. The rest of us are simply present. So, should law enforcement learn of the plan and stomp into our function, they really do not have cause to arrest the other three quarters of us because we did not even know about the conspiracy, much less participate in it.

“What if, during the arrests, they search everybody and find that a couple of those who are not part of the conspiracy were carrying illegal guns or drugs?”

Then, assuming the search stands up in court, they have enough to arrest those individuals for possession. However, it has nothing to do with the conspiracy unless there is further evidence that those people were involved in the conspiracy.

“What if the other three quarters of lawyers were aware that, sometimes, members of the group performed crimes?”

That may change things if the government can prove “willful blindness“. However, they would still have to prove that the individuals had reason to know about the conspiracy and ended up furthering its cause. Again, mere presence, even if one knows that there may be other members involved in criminal activity, is not enough.

“Ok, but in this story we are talking about a criminal gang. It is a gang that is regularly involved in criminal activity.”

Maybe it is. Maybe it is not. The Commonwealth surely thinks it is. However, even if the Commonwealth is right, the individuals they arrest must be arrested for actual criminal activity.

Let’s say I walk down the street with a t-shirt that reads, “I love, admire and belong to the La Familia Gang”. Now, wearing the shirt may show bad judgment from a couple of angles…but it is not, in itself, illegal.

Often, these sweeps take place on a particular street or other location. What happens is a group of folks are stopped and searched. Many of those stopped end up getting released because there is no evidence against them other than the fact that they might have been present at a scene where some others were committing crimes.

I suspect that this may be changing, though. There seems to be a movement that more and more district attorneys are trying to hold people criminally responsible for what, historically, have not been ground for criminal prosecution. We have discussed several of those cases recently.

As always, of course, if pulled into such investigations or arrests, the best thing to do is hire experienced criminal counsel.

In the meantime, have a great, safe and law-abiding weekend!

To view the original story upon which today’s blog has been based, please go to http://www.boston.com/news/local/massachusetts/articles/2012/02/10/20_arrested_in_holyoke_gang_sweep/

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