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.

CRIMINAL DEFENSE ISSUES IN DRUG POSSESSION CASE

Yesterday we discussed the recent car-stop-turned-drug-bust in which two people were arrested. The driver seems to have been arrested for driving without a license while the passenger (hereinafter, “Mr. Stoner”), was arrested for the usual jitney of drug possession crimes.

Once this amount is seized, not to mention a scale and money, the assumption is that the possession was for the purpose of trafficking, not simply earning Mr. Stoner’s name.

Attorney Sam’s Take On Possession And Criminal Charges

One of the first things an experienced criminal defense attorney does upon hearing of a case like this is to look at the stop itself. Was it a legal stop? What, if any, evidence could be suppressed.

We discussed that yesterday.

While there are still many details in the matter about which I do not know, there are a few potential trial strategies already apparent.

In order to be convicted of Possession With Intent To Distribute, the necessary element of “intent to distribute” must be proven beyond a reasonable doubt. While simple possession of marijuana in this amount is still illegal, the seriousness of the charge does not rise to the level of possession with intent. Further, it will not trigger what is apparently an earlier conviction for possession with intent to distribute. Finally, although the story does not mention it, there is likely an added charge of possession with intent while in a school zone. This charge disappears if it is merely straight possession as well.

Of course, the packaging and what else was in the car will be important evidence towards distribution. Therefore, it might be a bit of a stretch to simply go for the “possession for own use” defense.

Although, it is worth noting that there were remnants, both remains and the smell, of burnt marijuana.

It seems to me that there may actually be a better shot going for a complete acquittal and claiming that the Commonwealth cannot prove the marijuana was his.

The fact that the pot was not found physically on Mr. Stoner is not, in itself, poison to the prosecution. There are various theories of possession which the Commonwealth may claim. One of them is constructive possession. In other words, I can still possess something even if it is not on my person. I put my Ipad down and walk away for a few minutes and the Ipad is still mine.

For how long, of course, is anybody’s guess.

But I digress.

In this car, it is not clear exactly where the marijuana was found. We know it was in the automobile. We also know it was found in a black bag on the passenger side according to law enforcement.

Who owned and controlled the vehicle is vitally important here. Very likely, it did not belong to Mr. Stoner as he seems to have been a passenger.

“Well, isn’t that it, then? The passenger side is where the bag was found.”

Yes, the black bag. If this car belongs to the driver, then either he or any other person who uses the car could have stored the bag on the floor. Why would someone who sees a black bag on the ground necessarily know what is inside it? Furthermore, how do we know it was kept on the floor. It could have rolled over to where the police say they found it when the car was stopping.

It is worth noting that neither the driver nor Mr. Stoner did anything to seem uncooperative or something the Commonwealth would claim to be “consciousness of guilt”. Unless, of course, you believe and focus upon the “furtive movements”.

Of course, the strongest part of this defense appears to be the suppression issues. There are too many arguments to support that than I can get into two blogs.

It will be interesting to see what happens to this case. My guess? It will never get to trial.

Have a great, safe and law-abiding weekend!

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