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.

STOP OF BUS FULL OF PASSENGERS RESULTS IN SUPPRESSION OF DRUGS IN BOSTON’S SUPERIOR COURT

It is not a legal decision that is etched into the proverbial stone (if any are). It is not a decision by either the SJC or the United States Supreme Court.

It is a decision from Superior Court. It, though, seem consistent with the case about which Ian discussed with you last week. This case was not one of ours, though. I was just asked to comment on it by Massachusetts Lawyer’s Weekly for last week’s issue.

The facts of the case come from an interstate bus arriving at Boston’s South Station on July 14, 2014. This bus came from New York. Gregory Luperon (hereinafter, the “Defendant”) was a passenger on that bus.

The bus was greeted by four MBTA officers were at the dock waiting to conduct a random drug interdiction. While three officers waited outside, Detective Richard Sullivan boarded the bus and announced to the passengers that the vehicle had been selected for a narcotics check and that they would need to remain on the bus while luggage was unloaded from the hold for police dogs to conduct an open-air sniff.

Sullivan testified at the suppression hearing that he saw a look of panic appear on the Defendant’s face.

Sullivan then left the bus, went toward its rear, and continued to observe the defendant through the window. At the same time, another officer, Detective Matthew Haney, noticed the Defendant through the window and says he saw him furiously texting on his phone and looking out the windows on either side. The Detective also noted that he saw the defendant go into the bathroom twice and that there were feverish movements inside, including the defendant moving his hands above the toilet. Sullivan claimed he, too, saw those movements.

The dog sniffs turned up no evidence of narcotics. Passengers were then allowed to leave the bus…except for the Defendant, who had stored no luggage where the dogs had investigated. Officers decided to question him and he denied drug involvement and even allowed police to search and a dog to sniff his backpack.

It was that last one that did it.

The dog signaled a narcotics alert. Detective Haney then went onto the bus and searched a cabinet above the toilet where he said he had seen the Defendant place his hands. He found two bags containing more than 1,200 blue pills, which appeared to be oxycodone, underneath paper towels.

The Defendant was arrested and charged with oxycodone trafficking. Thereafter, the Defendant moved to suppress evidence of the pills, the dog sniff, and his conduct on grounds that his detention on the bus while police searched other passengers’ luggage violated Article 14 and, thus, anything obtained as a result of the detention was unlawful.

The defendant maintained that the drug interdiction itself was unreasonable absent individualized police suspicion that any particular passenger was carrying contraband. Accordingly, he argued, all that happened thereafter which was occasioned by the interdiction should be inadmissible as the products of an unconstitutional detention.

Judge Charles J. Hely agreed, distinguishing random drug interdictions from Constitutionally permissible roadside sobriety checkpoints. He reasoned that, “While the drug problem in the United States is ‘certainly grave,’ the ‘risk that narcotic trafficking poses to the public is not immediate, as is the risk posed by a person operating under the influence,’”

The court ruled that the detention of the Defendant in this case violated his Article 14 right against “unreasonable seizures of his person because the officers detained the defendant before there was any individualized basis to suspect that he was engaged in criminal activity.”

Renee Algarin, a spokesperson for Suffolk County District Attorney Daniel F. Conley, whose office is handling the prosecution, said the Commonwealth will not appeal the decision.

    Attorney Sam’s Take On Unjustified Stops, Liberty And Fruits Of The Poisonous Tree

There are various circumstances in which the police may stop and detain someone even when they do not have probable cause to believe that the subject had just committed a crime. However, in such cases, there usually has to be at least a reasonable basis to suspect the person has committed, is committing, or is about to commit a crime.

And there are exceptions even to that rule. For example, such stops are allowed in the case of emergencies, security screenings in airports and courthouses, as well as roadblocks to maintain border security. There are even roadblocks allowed as sobriety checkpoints to catch drunk drivers.

In such cases, the law determines that the immediate potential harm to society overshadows the impingement of a reasonable stop. — the judge found that a random drug interdiction such as the one at issue does not constitute such an exception. For example, the SJC has permitted such checkpoints as an exception to the individual suspicion requirement “‘on the grounds that a “reasonable” roadblock involves a “minimal” state intrusion upon the reduced privacy of drivers, one that is outweighed by the strong public interest in reducing the carnage caused by drunk drivers,’” as Judge Hely said, quoting the SJC’s 1989 Commonwealth v. Anderson decision.

However, the SJC has ruled in other cases that drugs found transported in a vehicle does not pose an “immediate” risk to the public the way driving under the influence does.

“But, Sam, didn’t the Defendant give up any expectation of privacy to the drugs when he abandoned them in the bathroom?”

The court reasoned that the Defendant’s act of bringing them to the bathroom was caused by the unConstitutional stop itself. Because the stop and delay were unconstitutional, anything that resulted from it must be suppressed.

As I mentioned in the article, the courts often explain the reasoning with a theory called “Fruits of the Poisonous Tree”. The tree is poisoned by the illegal action of the police. Any “fruit” from that illegal action is therefore also “poisonous”.

“Why do you think the Commonwealth is not appealing?”

Right now, the unfavorable ruling for the Commonwealth does not have the same legal weight as it would coming from the Appeals Court or SJC. It is merely a Superior Court decision. Appealing the decision to a higher court would risk giving the ruling more weight.

Apparently, they did not think they would be successful in appealing the decision.

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