According to an article in MetroWest Daily News, two men were stopped in a car on October 1st in Framingham. The operator was driving on Waverly Street when officers on patrol reportedly saw him and knew that he had a suspended license. The officers then stopped the car. After the stop, the officers allege that they smelled fresh marijuana. Although the article does not clearly indicate exactly how the stop unfolded, presumably the men were ordered out of the car. Both men were searched and the passenger had over $500 in his possession. The police also searched the car and found a backpack under the front passenger seat, where the passenger had been sitting. Inside the backpack were seven individually wrapped bags of heroin. Notably absent was any marijuana – fresh or otherwise. Both men were subsequently charged with possession with intent to distribute the drugs. The driver was also charged with driving on a suspended license, subsequent offense (meaning that he had previously been convicted of driving on a suspended license in the past).
Both men have strong defenses. While the police were authorized to stop the car and arrest the driver if they were really aware that he was driving with a suspended license, the search of the car is certainly questionable. If the police choose to tow a car because the driver has been arrested, they may conduct an inventory search of the vehicle, which includes a search of the entire car. There is no indication, however, that this was the purpose of the search in this case – to the contrary, it appears that the police searched the car because they supposedly smelled fresh marijuana. The fact that absolutely no marijuana was found in the car seriously undercuts the legitimacy of this claim. If the police had no lawful basis to search the car, the evidence that they recovered should be suppressed – in other words, the court should refuse to allow the prosecution to use this evidence against either defendant at trial.
Even if this avenue fails, however, both men have an argument that the drugs were for personal use rather than intended for sale. To prove that the men possessed the heroin with the intent to distribute it under G. L. c. 94C, § 32, the Commonwealth must show (1) that the substance in question was in fact heroin; (2) that both defendants “possessed” the controlled substance with the intent to distribute it to another person; and; (3) that they did so knowingly and intentionally. A jury could consider the quantity of the drugs possessed, how the drugs were packaged, whether there was any evidence that the some sort of sale was in progress, and/or whether other items were found along with the drugs which might suggest drug sales. Such items include a cutting agent (commonly used to dilute the purity of the drugs), packaging materials, scales, or large amounts of cash. In light of the fact that many of the above mentioned indicators of drug dealing were not present here, an argument that the men intended to use the drugs themselves rather than sell them will likely have some traction with a jury.
The passenger also has a strong claim that he did not even possess the drugs. To prove this element of the crime, the Commonwealth must prove that the passenger both knew of the existence and presence of the heroin, and had the ability and intention to exert dominion and control over it. A person’s mere presence in a place where drugs are located is not sufficient to prove possession. Given the fact that the passenger does not appear to have any connection to the car, other than being in the car for a brief period of time, as well as the fact that the drugs were concealed in a backpack, which was further hidden under his seat, the Commonwealth is not likely to be able to prove that the passenger “possessed” the drugs.
If you have been accused of possession with intent to distribute any drug, you will need a skilled attorney with experience defending this type of charge. Attorney Daniel Cappetta can help you determine what potential defenses you may have. Contact him for a free consultation today.