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.

SPRINGFIELD MAN IS SIEZED ON OUTSTANDING WARRANT AND OUI – MARIJUANA

Today is Memorial Day. I know that this is not the subject matter originally intended when this holiday was named, but just the suggestion of “memories” makes me…well…remember. I think back to when things seemed more simple in many ways. Sometimes that was good, sometimes it was bad.

Often, I hear people opine that folks were more civil back in yesteryear. Well, here is a story which shows that not everybody is immediately argumentative when it comes to law enforcement. Sometimes, the alleged criminal is completely cooperative.

Maybe even too cooperative for their own good.

Ricky Allende, a 30-year-old driver from Springfield (hereinafter, the “Defendant”), was cited in Springfield for a number of motor vehicle offenses. They included the alleged operation under the influence of drugs, failure to obey a stop sign, and failure to wear a seat belt.

This seems to be one in a few defendants who could not be charged with Intimidation of a Witness, Resisting Arrest…or even rudeness.

The Associated Press reports that Springfield Police Sgt. John Delaney, who stopped the Defendant’s vehicle, was allegedly “covered in a plume of smoke” when the Defendant rolled down his window for a traffic stop one evening last week.

Apparently recovering from the sudden localized cloud, Sgt. Delaney apparently asked the driver, “Are you smoking marijuana while operating this motor vehicle?”

The Defendant, nonplussed, is said to have responded, “Why, yes, I am, officer.”

Now, you might suppose that this little adventure ended well for the Defendant. However, as it turned out, his demeanor and honesty did not win the day. You see, the Defendant also had an outstanding warrant for other moving violations.

Sometimes it just does not pay to be nice.

Attorney Sam’s Take On Car Stops And Statements

In all seriousness, it does pay to be, to some extent, cooperative.

We have discussed many times what is likely to happen when one challenges the authority of law enforcement in any way. As Star Trek: The Next Generation added to our lexicon, “Resistance Is Futile”.

Of course, there is a limit. While a questioning officer might prefer for you to pleasantly offer a complete confession, you have a right not to. That is not one of the questions that you must answer, like name, date of birth, etc.

“But I thought pot was legal now!”

It is not a crime to be in possession of a certain amount. However, you still cannot drive under the influence of it…or anything else.

t goes without saying that there will be issues in this case which should lead to suppression hearings. First of all, we have no indication as to why the Sgt. stopped the car in the first place. For the sake of argument, let’s assume that the Sgt. felt that the car did not seem to be driven expertly. It really takes very little to give him reason to pull the car over…although there must be an articulable reason.

The Sgt. certainly had the right to ask the Defendant to lower the window, assuming that he did so. The issue comes with the pointed question of whether the Defendant was smoking weed while driving. While the Defendant may not have seemed to mind the question at the time, it is likely that he feels differently now that he realizes that the pleasant little question might lead to a criminal conviction.

There are a number of questions which the court must consider when deciding whether to suppress a statement. One of them is whether the Defendant was in custody at the time. If he was in custody, then he should have been read his Miranda Rights first. However, the fact that the Defendant allegedly found the Q and A rather enjoyable may lead the court to believe that the Defendant did not feel in any way coerced.

“What about the fact that the Defendant might have been high? Maybe he could not understand the situation he was in.”

That’s an argument. Unfortunately, it is not likely to carry the day for the defense. Voluntary intoxication, which this likely is, is not a defense.

The Defendant has his work cut out for him when it comes to this prosecution. He’d better make sure he has a experienced lawyer at his side.

Pleasant or not…let the lawyer do the talking from now on…!

For the original story upon which this blog is based, please go to http://www.boston.com/news/local/massachusetts/2014/05/21/why-yes-smoking-pot-officer/LO6Hm48zKRKm0Ep3UsFx7N/story.html

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