Introduction
Articles
Attorney Kevin J. Mahoney has successfully defended hundreds of individuals accused of drug offenses, including simple possession, possession with intent to distribute, and drug trafficking in the courts of Boston, Cambridge and throughout Massachusetts. Give Attorney Mahoney a call at 617-492-0055 to arrange a free consultation.
Motion to Suppress
The first line of defense against a drug offense is almost always a motion to suppress. In such a motion, the defense lawyer is seeking a court ruling “suppressing” the drugs as the fruits of an unconstitutional search and seizure, in violation of the Fourth Amendment to the United States Constitution or a similar provision in the state constitution. Unless they are in possession of a search warrant, the police, in violation of a suspect’s constitutional rights, often act on a hunch, rather than probable cause, when they search the suspect. “Probable cause” requires the police to have articulable facts from which they could reasonable infer the presence of drugs on the person they search.
Of course, in real life, the police search first and, if they find drugs, create the “reasons” afterwards. In the event that they don’t find any drugs or contraband, the police are satisfied that their exercise of power was at least unconstrained by the constitutional rights of the citizen they searched. Most members of law enforcement have nothing but contempt for the Bill of Rights – to the degree they understand or consider those rights at all. The officers who find drugs or contraband then busy themselves in crafting the justifications for the search. It is not uncommon for the police to fabricate reasons supporting their search in an effort to persuade the court that the search was “good.”
Law enforcement's quest for controlled substances has eroded the rights of citizens to be free of random, arbitrary and, at times, harassing police interference. Because judges are loath to suppress evidence, the police know that a search, preceded by the shoddiest of investigations or based on highly suspect police testimony, will be upheld. In the unlikely event that the motion to suppress is allowed, not only will the judge fail to criticize or penalize the offending police, the judge will apologize to the police! It never occurs to the judge that the citizen whose rights have been violated is owed the apology and that the constitutional role of the judge is restrain police power.
To win a motion to suppress, a lawyer must thoroughly research the case law, draft a convincing motion to suppress and skillfully attack the police during cross-examination. The criminal defense lawyer must craft his motion and his strategy to force the judge not only to appreciate the unconstitutionality the search, but to recognize that the law mandates that the judge suppress the evidence. Because judges will search for any exception, any loophole, or any interpretation of the “facts” that will allow them to uphold the search, the defense lawyer must cut off every avenue of escape – tying the judge up like a rodeo steer
If, despite the best efforts of the lawyer, the judge upholds the search, the lawyer must be prepared to put forward one of the following defenses:
- the government failed to prove that the substance was a controlled substance;
- the drugs did not belong to the defendant;
- the drugs belonged to the defendant, but were for personal use, not for distribution;
- the drugs were for distribution, but were not seized within a 1000 feet of a school zone.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable causes, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Fourth Amendment
“The poorest man may, in his cottage, bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement.”
N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution (1937).
The Warrentless Search & Street Level Drug Deal
Although the Constitution would seem to require the police to obtain a search warrant as a prerequisite to a search of an individual, the police routinely forgo a search warrant. The Courts allow the police to initiate such searches absent a search warrant. As consistently recognized in Massachusetts:
- A “police officer may stop an individual and conduct a threshold inquiry if the officer reasonably suspects such individual has committed, is committing, or is about to commit a crime.” Commonwealth vs. Mercado, 422 Mass. 367, 369 (1996);
- The officer must be able to articulate the facts that he relied upon in concluding that the individual was committing a crime. Commonwealth vs. Ferrara, 376 Mass. 502, 504 (1978). The officer must have something more than “a hunch.” Commonwealth vs. Cheek, 413 Mass. 492, 494 (1992);
- Stopping a motor vehicle "constitutes a seizure within the meaning of the Fourth Amendment to the United States Constitution." Commonwealth vs. Couture, 407 Mass. 178, 183 (1990); and,
- If the officer claims to have witnessed a street level drug transaction, the prosecutor must prove that:
the initiation of the investigation or the stop was permissible in the circumstances; in other words, the officer had sufficient reason to believe that he had witnessed a drug transaction because:
- the area was known to have a high incidence of drug traffic, the individuals involved were known to be drug dealers/addicts or the police saw packaged drugs; Commonwealth vs. Santaliz, 413 Mass. 238, 240-241 (1992) (reasonable suspicion found where prior to exchange, woman seen removing something from her waistband, handing to defendant, who approached taxi and handed to another woman who then gave him money); the driver briefly entering a location known for drug sales before driving a short distance to make the exchange, Commonwealth vs. Peters, 48 Mass. App. Ct. 15, 17-18 (1999); the exchange taking place in an area with a “high incidence of drug traffic”and between a driver and a known drug dealer, Commonwealth vs. Kennedy, 426 Mass. 703, 708-709 (1998); or one of the participants to the exchange is seen gripping a plastic bag containing a white substance, Commonwealth vs. Hill, 49 Mass. 238, 241-242 (1992).
- the behavior observed fit the characteristics of a drug transaction (there was “something” in particular about the transaction that made it suspicious); and,
- the officer possessed experience and/or training to reliably interpret what he witnessed.
