According to an article in the MetroWest Daily News, a Framingham couple was charged with distribution of cocaine this past week. The couple was traveling on Concord Street when an officer noticed that the vehicle in which they were traveling had a defective headlight. The officer pulled the car over and approached the driver’s side. As he was walking toward the car, the officer noticed that the man and woman were moving around “frantically.” The officer specifically saw the man reaching toward the woman’s mid-section. When the officer got to the car, he saw several empty liquor bottles and an open beer bottle. The officer also allegedly saw a plastic bag sticking out of the top of the woman’s pants, and could also reportedly see that the bag contained a white power. The officer then pulled the bags out of the woman’s waistband and saw that they consisted of two glassine bags with a white powder, which the officer believed to be cocaine. The officer ordered the pair out of the vehicle and conducted a more thorough search of both them, and the car. The officer found a digital scale in the vehicle, and a third plastic bag of cocaine in the man’s sock. The woman reportedly told the officer that the man had put the drugs in her pants, which is consistent with the officer’s observations as he approached the car. The man also told the officer that all of the drugs were his. Despite both of their statements, however, the police charged both the man and the woman with possession with intent to distribute cocaine.
To obtain a conviction for possession with intent to distribute cocaine under G. L. c. 94C, § 32A, the Commonwealth would have to prove that: (1) the substance was in fact cocaine; (2) the man and the woman each respectively possessed the cocaine with the intent to distribute it to another person; and (3) they did so knowingly or intentionally. As to the second element, the Commonwealth must prove that the cocaine was intended for distribution rather than held solely for personal use. Factors to be considered in making this determination include the quantity of drugs that were possessed, the purity of the drugs, the street value of the drugs, how the drugs were packaged, whether other items were found along with the drugs that might suggest drug sales, such as cutting powder or packaging materials, scales, or large amounts of cash, whether the is any evidence that a sale was in progress, and whether there is any evidence that the drugs were part of a larger stash. As to the third element, to act knowingly and intentionally, a defendant must have acted consciously, voluntarily, and purposefully, and not because of ignorance, mistake, or accident.
Given the allegations presented in the article, both the man and the woman appear to have a defense to the charge. First, the woman appears to have a strong defense that she did not knowingly or intentionally possess the drugs. As the officer approached the vehicle, he specifically noticed the man reaching toward the woman’s mid-section, consistent with the man placing the drugs in the woman’s waistband. Further, both the man and the woman made statements to this effect, indicating that the drugs were in fact the man’s, and that he had essentially made the woman hide them in her waistband. Given these facts, it appears that the woman has a strong argument that she did not act consciously, voluntarily, or purposefully. The man also appears to have a defense to the charge as well: that he merely possessed the cocaine, and that he did not have the intent to distribute it. The police do not appear to have found a significant amount of cocaine, and certainly not more than a drug user could be expected to have on him at any one time. Further, there was no activity observed that was consistent with any sort of drug transactions, nor was there any sort of packaging materials or other indicators of distribution. Although there was a scale in the car, that alone, without the presence of some other indicators of drug distribution, does not preclude a defense of personal use, as many users also have scales to make sure that they are getting the amount they are paying for.
Regardless of the strength of these potential defenses, however, both the man and the woman will need skilled attorneys to make sure that their defenses are identified and properly executed. If you or a loved one is facing similar charges, you will also need an attorney who can fight for you. Attorney Daniel Cappetta has extensive experience litigating drug cases and he will give you the best defense possible. Call him for a consultation today.