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.

MASSACHUSETS CRIMINAL INVESTIGATIONS INTO DRUG TRAFICKING CONTINUE DESPITE CRIME LAB FIASCO

…And the wheels on the criminal justice machine continue. including drug cases. Despite the recent Boston Crime Lab debacle don’t think for a minute that the Commonwealth is slowing down in its criminal investigations into drug dealing. Of course, some cases appear to be more stereotypical than others.

You have no doubt heard about the stereotypical love of Dunkin’ Donuts that law enforcement is supposed to have. I don’t know what level of truth there is in that, but I do know that when I go to DD’s, there is usually a police presence. And I don’t think that they are after me….

One Framingham DD got alittle more police attention than it wanted earlier this week. Law enforcement claims that at said restaurant, the menu included more than coffee, pastry and sandwiches. An employee, 18-year-old Anthony Buskey (hereinafter, the “Defendant”) was allegedly making a little money on the side by selling marijuana out of the shop.
Yesterday, the Defendant pleaded not guilty to possession of marijuana with intent to distribute. He was released on personal recognizance.

Officers say that they had received a tip about the drug trafficking. They then set up a sting operation targeting the marijuana side-busyness.

Sure enough, they say they saw the Defendant leave the DD and get into a car with two men and conduct what appeared to be a drug deal. The officers moved in and searched the car.

Marijuana was said to be found.

Now they just have to find a working lab in which to test it.

Attorney Sam’s Take On Search, Seizure And Drug Dealing

“Wait a minute, Sam. I thought possession of a small amount of pot was no longer illegal”.


True. However, selling it is just as much a crime as it ever was. You can possess it, but you cannot sell it…or even give it away or share it. That is called “distribution” and places you at risk for incarceration.

“How am I supposed to get it if nobody can sell it to me?”

I don’t know.

“Can I grow my own?”

Nope. Illegal.

But you can smoke it, though, so long as you are not driving.

“I can smoke it…I just can’t buy it.”

No…you can buy it.

“But nobody can sell it to me.”

Now you’ve got it.

Leaving aside realities which are reminiscent of the old Abbott and Costello bit “Who’s On First“, this case’s fact scenario is very familiar. As a defense attorney, I see it all the time.

“Is such a case defendable?”

As I have told you in the past, I consider just about any case defendable. Of course, some such defenses have more of a chance with prevailing than others. This fact pattern, however, has its own inherent weaknesses for the prosecution.

We have discussed motions to suppress before. In this case, such a motion would be vital to bring for a number of reasons. The first reason, of course, is that if you win such a motion, and the Commonwealth cannot use the pot against you…the case is over. It is dismissed.

In this case, there are two areas of attack when it comes to challenging the search and seizure of the alleged pot. First of all, did the police have the right to descend upon the car in the first place. The second area is whether they had the right to actually search the car. Important to this consideration will be where in the car the pot was supposedly found.

We do not know whether the tip was something the officers had the right to rely on. There is case law specific to that. The observations of the officers is the next area of inquiry when it comes to justifying their actions. What do they claim to have seen and could they really have seen it. Clearly, the definition of what “looked like a drug deal” is. What time was it? Were the windows tinted? How far away were the officers?

If the evidence is that, simply, the officers had gotten an anonymous and vague tip and, based on that, they decided to “stake out” the store to verify…that’s ok. It is ok because all they have done is sit outside the shop and watch. If the rest of the evidence turns out to be that they then simply saw the Defendant go into the car and so assumed it was “drug deal time”, the Commonwealth is going to have a problem.

The second major reason to bring the suppression motion is the fact that the officers will be called to testify at such a hearing. This will give the defense attorney a chance to size up these officers as witnesses as well as get the specifics of their testimony. This is important for too many reasons to attempt to describe here. Most are probably obvious, however.

This may seem somewhat simple. It isn’t. The law is changing all the time in this area and only an experienced criminal defense attorney who keeps up with the times is going to be able to give the best defense possible.

Uncle Einstein who once did a brilliant job defending in a personal injury lawsuit is most likely not that. As shrewd and cunning as he may be…if he does not know the realities of the criminal justice system, he is not likely to do you much good.

Get a real criminal defense attorney.

It is your best bet at freedom and not having your life’s plans destroyed.

For the original story upon which this blog is based, please go to http://www.bostonherald.com/news/regional/view.bg?articleid=1061164989&srvc=rss

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