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.

MAN IN CHELSEA HOTEL FOUND TO HAVE SWALLOWED CONDOMS OF HEROIN IS CHARGED WITH DRUG TRAFFICKING

This Sunday, the Chelsea Police Department had occasion to come to the aid of a suffering Venezuelan man. Well, sort of.

It seems the man, 40-year-old Luis Sanabria-Morales (hereinafter, the “Defendant”) was found at the Wynham Boston Chelsea Hotel to be suffering from a potential overdose in a room which was supposed to be vacated that day.

The police came to the scene and found the Defendant. They then transported him to Whidden Hospital in Everett where he remains hospitalized…but also under arrest. You see, while treating him, the Defendant was allegedly found to have swallowed balloons or condoms that had been filled with heroin.

Some of these packages have been recovered, but there is belief that more may still be in his system. So…to some extent…it is a waiting game.

The local district attorney’s office tells us that “Condoms are used as a holding device. He could have used a combination” of condoms and balloons. The spokesperson also added that both ways are commonly used to conceal drugs.

Finally, the prosecutor’s office has announced that there was enough heroin for Sanabria-Morales to be charged with drug trafficking.

Attorney Sam’s Take On Issues Of Proof In Drug Cases

Believe it or not, this is not an unusual way to transport drugs. As such, it is no longer unsuspected by law enforcement . Of course, it is also not the safest way to transport the drugs. Sometimes the condom breaks. When that happens it is often a race for law enforcement in what happens next…the arrest or the death of the carrier.

Such a race was apparently present in this case.

While the amount of drugs recovered might be enough to bring certain drug-related charges, the question of whether or not the Defendant was actually trafficking will be for a jury to decide.

“Sam, how do they determine that the Defendant is a drug dealer?”

Well, the other choice is that he had them for his own personal use. Because of the amount of heroin found, the Commonwealth alleges that such an amount is only consistent with selling. Prosecutors may also allege that the way the drugs were packaged indicates that they were for sale.

Usually, however, prosecutors like to have other evidence to add to the supposition that a defendant is a drug trafficker. For example,, having some drug paraphernalia or large amounts of money are helpful for that.

In this case, it would appear they only have the packaging and the weight.

There may be problems of proof with this case. First of all, let’s look at the packaging. During drug trials, the prosecution always argues that the type of packaging is “consistent” with drug selling. To me, this has always been a misleading argument. After all, if the packaging is consistent with selling, then it is also consistent with buying.

Assuming there is no magic transformation in packaging, or that, at the time of sale, the seller does not open the packaging and dump the bare drugs into the buyer’s hand…that argument seems to have the consistency of thin air.

As for the amount of heroin seized…that may a be a different story. It should be pointed out, however, that the story does not indicate exactly how much heroin is either already recovered or expected to be recovered. Often, what the Commonwealth considers “enough” strains credibility. I have seen three small bags considered “enough” to charge drug dealing.

Experts will tell you that sometimes people will buy in a certain amount of bulk. Therefore, it is possible that this amount, while perhaps giving a presumption of selling, may simply be the amount the Defendant was transporting for his own use.

“What about the fact that he actually swallowed the drugs? Does that show that it was for his own use?”

No. First of all, people do not usually consume the drugs through condoms. Second, they may also not take it by swallowing it. In any case, it sounds like, if the bags broke, which it seems might have happened to at least one of them, the result is likely to be an overdose.

“Don’t the police need a search warrant to recover the drugs from the Defendant?”

While there may be some interesting arguments about search and seizure in this case, probably not. After all, it seems that it was the medical staff that recovered the drugs, not the police. However, whether the police directed the medical staff or interrupted confidentiality between physician and patient might be an issue.

On the other hand, it sounds like the Defendant may have made a couple of statements at the hotel as to what was likely bothering him. Another motion to suppress to be sure (to attack the statements’ admissibility), but it would certainly help the Commonwealth in the search and seizure issues.

For the original article upon which this blog is based, please go to http://www.boston.com/metrodesk/2012/11/13/chelsea-man-allegedly-swallowed-balloons-condoms-containing-heroin/Ev8PnxeE6DRrhFjnwRDQdN/story.html

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