Articles Posted in Drug Offenses

In my previous post, I reported on the SJC’s ruling last week, restricting police authority to order the operator or occupants of a stationery vehicle to exit the vehicle, based solely upon the odor of marijuana. In their ruling, the SJC emphasized that the public’s approval in 2008 of the ballot initiative decriminalizing personal possession of an ounce or less of marijuana, was in effect a mandate that police and prosecutors concentrate their resources and efforts on serious crime.

It is this key point regarding the voters’ clear mandate in 2008 that police and law enforcement focus on serious crime and violent offenders, which I want to address now. I have blogged previously about the foolishness and counter productiveness of our present drug laws, state and federal. When it comes to marijuana alone, billions of dollars of taxpayer money are spent each year in this country, arresting and prosecuting an activity that has been proven scientifically, time and again, not just to be nor more harmful than alcohol, but far, far less harmful. As a Boston drug offenses lawyer, I have personally witnessed the waste of enormous police, court and prosecutorial resources, “chasing “this victimless, extremely benign recreational activity. Tens of millions of dollars are wasted each year paying police to chase and arrest, and then paying District Attorneys’ offices even more to prosecute, the use of a substance that is far, far less dangerous and far, far less harmful than a single can of beer.

These points have been argued rationally and responsibly for years now, by respected organizations such as the National Organization for the Reform of Marijuana Laws, which filed a supporting brief for the defense in this case. Time and again, NORML and state affiliates such as MassCann, have said that personal use of marijuana does not deserve the attention and the expense utilizing police resources that should inarguably be spent dealing with violent and predatory crime.”

This past week saw a major decision announced by the Massachusetts Supreme Judicial Court (SJC,) on the subject of the presumption of criminal conduct being associated with the use of marijuana. The ruling, Commonwealth v. Cruz, Mass. SJC No. 10738, overturns precedent, establishes a major new benchmark in this area of law, and represents a major victory for reasonable and logic-minded thinking toward Massachusetts marijuana laws. Given the importance of this ruling, I’m going to devote two parts to this post. Part Two will be published in a couple of days.

The ruling deals specifically, and for the time being only, with police officers’ authority to order the occupants of a parked vehicle to exit the vehicle, based only on the smell of marijuana smoke. At this time, the ruling appears to apply solely to circumstances where a vehicle is stationary, not moving, but the central point of the decision is that police and prosecutors can no longer presume that a person is engaged in criminal conduct, solely because officers may detect the order of marijuana in the air or on the person of a driver or occupant. The defeat of that presumption is an extremely important legal point in the development of sound and rational marijuana policy. These policies have been advocated by respected organizations such as Law Enforcement Against Prohibition (LEAP,) and others I will discuss in Part Two of this post, for years.

Some important background of the case that produced this key ruling: In the summer of 2009, two Boston police officers were patrolling in an unmarked car in the Jamaica Plain area. The officers pulled up to a car parked beside a fire hydrant; inside the car were a driver and a passenger. The officers testified that they noticed the driver in the car light a small cigar that they claimed is commonly used to mask the odor of marijuana. Approaching the vehicle, the officers claimed they smelled a “faint odor” of marijuana, and one of the officers asked the driver if he had been smoking. The driver answered that he had smoked some pot “earlier in the day.” Importantly, neither officer saw anything illegal in the vehicle, but claimed that the driver and the passenger both seemed nervous. The officers then radioed for backup and ordered the men out of the car, based solely on “the smell of marijuana and the way they were acting.” Forced out of their car, one of the officers then asked the passenger, (a Benjamin Cruz, then 19,) whether he “had anything on his person.” At that point Cruz responded that he had “a little rock for myself,” which turned out to be 4 grams of crack cocaine. Cruz was arrested.

An arrest at Logan Airport earlier this week, alleging a Massachusetts drug offense, highlights an increasing problem in our nation’s increasingly ineffective “War on Drugs.”

The arrest and charges involve a drug mule. A “mule” is a drug courier, who more often than not is not suspected of being a drug dealer, or being a significant player in drug trafficking operations. Notwithstanding, the “mule” is the person who is charged with the crime of introducing the drug into Massachusetts. The mule in this case is one Karen Morla-Ramos, 22, a Dominican native who was arrested at Logan last Sunday, March 27 2011, after arriving on a JetBlue flight from Santo Domingo. State Police said they conducted a pat-down of Morla-Ramos after she acted suspiciously and found 1,040 grams of cocaine in a diaper-like garment she was carrying. It is often the case – though not always – that such “mules” have been forced, or at least pressured, by dealers in their home countries who are the kingpins and major players in the drug trade, to act as mules. Violence reigns in the drug trade. Very often, major drug dealers and traffickers in countries that are known to export illegal drugs, threaten or extort citizens of that country who are (quite literally) dirt poor and have no resources, to transport these drugs into the U.S., or face unthinkable results.

It’s not uncommon for a major drug trafficker to “loan” money to a poor family in a Third-World country, then come calling for repayment with huge interest suddenly attached to the loan. When the debtor can’t pay, they’re given a choice: Satisfy the debt by transporting drugs into the U.S. – where the major money is made – or face horrible consequences: The kidnapping or murder of their loved ones, or their own death. In circumstances less physically violent, but just as economically violent, poverty-wracked residents of Third-World countries such as the Dominican Republic, are offered what is billed by a major drug trafficker as “easy money”, to transport drugs aboard a flight to the U.S. While they know this is an illegal act, most of these “mules” are ignorant, uneducated, inexperienced, and uninformed about just how severe the risk is to them. Those realities don’t excuse the acts of these couriers, but it should, in fairness, provide some context.

When it comes to drug policy and criminal law, some states in this country move faster, and more intelligently, than others. Two of those more rational states right now happen to be our New England neighbors, Connecticut and Rhode Island.

I’ve blogged previously about how wasteful and counterproductive state and federal laws are that criminalize the possession and use of small amounts of marijuana for personal use. Individually, states that criminalize the possession or use of less than one ounce of marijuana spend tens of millions of taxpayer dollars arresting and prosecuting an act that is so benign it is actually laughable. Collectively, on a national scale, the states spend hundreds of millions of dollars each year chasing a substance that is medically and scientifically benign. Across the United States, tens of thousands of local and state police spend untold numbers of man-hours and taxpayer dollars “investigating”, arresting and prosecuting people who are no more harmful than their next door neighbor (and who in reality probably are their next door neighbors.) Indeed, on the “harmfulness” scale, pot is exponentially far less harmful than drinking alcohol – yet for persons over 21, drinking is entirely legal. The most irrational, fervent opponent of marijuana decriminalization has yet to explain this glaring contradiction.

This legal schizophrenia is not only ridiculous; it’s unjustified on any level: Medical, legal, financial. As a Dedham, Massachusetts drug offenses lawyer, I can assure you, this is a complete and total waste of taxpayer dollars, law enforcement and prosecutorial resources. Yet, slowly, there is hope that the legal and legislative climate on drug laws is changing. Massachusetts drug laws changed dramatically in the area of pot decriminalization two years ago, but only in response to a state voter referendum – not a legislative act signed by a governor.

Just last week, I criticized Gov. Deval Patrick for his proposal to change the way public defenders are provided for indigent criminal defendants. Today, I want to do just the opposite: Commend him for another of his proposals dealing with criminal law.

Specifically, Gov. Patrick should be lauded for his legislative initiative to repeal the current law in Massachusetts that requires mandatory minimum jail and state prison sentences for anyone convicted of “dealing” drugs in a “school zone.” I’ve blogged and spoken previously on the foolishness of mandatory minimum sentencing, which almost always results from a Legislature pressured to act on largely misdirected public anger following high-profile crimes. Several years ago, that public pressure descended on the Legislature primarily due to inner city frustrations over the problem of drug dealing in urban areas; specifically, from parents’ fears that drug dealers were actively targeting young school children to sell drugs to. The result? The Massachusetts Legislature passed a law that required mandatory minimum jail sentences for anyone convicted of any kind of an offense involving a controlled substance or otherwise illegal drug.

Care to know just how harsh and unjust this law is? If anyone is convicted – whether following a trial or if a defendant otherwise enters a pre-trial plea equating to a “conviction” – of a drug offense occurring within 1000 feet of a school, that person is automatically sentenced to anywhere from two to 15 years behind bars. If the term is 2 ½ years or less, the sentence can be served at a county House of Correction; If it is more than 2 ½ years, the sentence must be completed at a State Prison – and that is extremely severe. I don’t think anyone – least of all a clueless Legislature not known for its collective intelligence – realizes just how great a distance 1000 feet really is. Let me put it in sports terms: Would you think that a football field is a long distance? It’s 300 feet. 1000 feet is over three football fields in length. The idea behind this law was, supposedly, to prevent drug dealers from targeting children in (largely urban) schoolyards and school grounds. Instead, it has done two things: 1) Created a foolishly large, expansive distance to measure an alleged drug crime from in relation to any school, and 2) Included in that law, any drug transaction deemed illegal, no matter how minor.

Media Reports that Boston police seized almost a ton of marijuana earlier this week, will be seized on by marijuana opponents as dramatic evidence of a serious problem in our society – one that must be eradicated no matter what the cost to taxpayers, no matter what the waste in police and prosecutorial resources. From these corners, I’ve heard comments that say this is “Proof of how much of a problem we’ve got.”

I’ll agree we have a problem: But it isn’t the amount of pot that’s stored or circulating in Massachusetts, and isn’t Massachusetts crime – it’s the wasted financial and human resources that we spend trying to punish something that, when carried in modest amounts, isn’t even criminal anymore in this state. It has always struck me as amazing, how diehard opponents of marijuana can neither see nor learn from the lessons of this country’s failed, regrettable and ultimately tragic efforts at Prohibition in the 1930’s. That ill-conceived effort created more collateral crime, and caused more loss, deaths and heartache than had ever been conceived before its passage.

Criminalizing alcohol only spawned more crime, in the form of “protection money” to hide alcohol supplies; extortion to keep public officials and others silent about the use and location of it; and smuggling rings operated by organized crime (ever wonder where the name “Smuggler’s Notch” in ski country came from? It was a route alcohol smugglers used to illegally bring the product down from Canada, into New England.) These collateral activities resulted in violence, shootings and death on a shocking level. Police raids were conducted of ‘Speakeasies” where otherwise lawful people had to hide in basements just to socialize with a drink; “Dealers” came to prominence, who used violence to keep their territories and supply intact; Gang and turf wars were created, by competing underworld networks who battled to control the supply and availability of alcohol. Prohibition gave birth to Al Capone, fertilized and nurtured organized crime, and cost the nation and the states enormous money and law enforcement resources. The entire effort was a massive public policy failure, costing untold amounts of money and ruining many lives in the process. The federal government finally realized this failure, and made the sound decision to legalize the substance, regulate it, and tax it. Officials finally saw that any substance can be abused, that as human beings we are somehow pre-disposed to to seek relaxation from various natural substances, and that regulation and taxation of these products is the far wiser, more rational course than fighting something that cannot be defeated.

Here’s an interesting case that might fall under the tagline, “Don’t answer that phone!” In a case that illustrates occasional over-reaching by police officers in their attempts to secure evidence of criminal wrongdoing, a Massachusetts Superior Court judge recently ruled that evidence, obtained by police officers who answered a defendant’s cell phone while he was being booked, cannot be admitted as evidence against that defendant.

It’s a case that some people might say warranted the admission of the evidence obtained by the police, but constitutional principles say otherwise. It seems that last December 15 2008, Lynn police officers on patrol spotted one Felipe Diaz and a passenger, driving in Diaz’ older-model pickup truck. One of the officers recognized Diaz from prior encounters with the Lynn Police Department, also recognized his truck, and knew that Diaz’ drivers license had been revoked for previous Massachusetts motor vehcile offenses. The officers stopped Diaz, arrested him for operating without a license, and placed him in handcuffs in the police cruiser. Diaz’ passenger was interviewed and allowed to leave. The officers had Diaz’ truck towed, and consistent with standard police procedure, conducted an inventory search of the vehicle. They discovered seven small bags of heroin hidden behind the front seat.

While he was being booked at the Lynn Police Department, Diaz’ cell phone rang several times. After “four or five” calls came in from different numbers within approximately twenty minutes, different officers at the station answered the phone, obviously acting as though they were the phone’s owner. One officer claimed, that a female caller say, “I’ll take three.”,at which Diaz yelled out “I’m at the police station.” A separate officer answered another call and spoke with a man who identified himself as “Mike.” According to this officer, this caller made “statements indicating an interest in buying drugs.” Aside from the possession charge on the heroin located in his truck, as a result of these phone calls, the defendant was charged additionally with “Intent to distribute,” which is an even more serious Massachusetts drug offense. Prosecutors introduced evidence of these calls in support of the “intent to distribute drugs” charge. Diaz’ defense attorney objected, filing what is called a “Motion to Suppress.”

In a ruling affecting a wide variety of criminal law cases in Massachusetts, especially drug crimes, the U.S Supreme Court has ruled that lab reports offered as evidence by prosecutors will henceforth require the in-person testimony of lab technicians at trial.

The landmark ruling had its origins in a routine Suffolk Superior Court drug prosecution taking place in 2002, and made its way all the way to the United States Supreme Court. In that Suffolk Superior Court trial, prosecutors sought to introduce lab certificates accompanying two batches of drugs recovered by police in the case. The defendant’s defense attorney objected, citing a recent U.S. Supreme Court ruling that these types of reports fall within the “Confrontation Clause” of the U.S. Constitution. The Confrontation Clause requires the appearance of live witnesses against a defendant in a criminal prosecution, as the Court ruled in the 2004 case Crawford v. Washington.

The judge hearing the case at that time, then-Superior Court Judge Barbara J. Rouse, overruled the defense objection, and allowed the lab certificates to be admitted into evidence pursuant to Massachusetts General Laws Chapter 111, Sections 12 and 13, which requires the Massachusetts Department of Public Health to “make … a chemical analysis of any narcotic drug … when submitted to it by police authorities … provided, that it is satisfied that the analysis is to be used for the enforcement of law.” Section 13 states that the “presentation of such certificate to the court by any police officer … shall be prima facie evidence that all the requirements [of section 12] have been complied with.”

As the Enterprise News made clear in an editorial last week, change begins with telling the truth. And the truth on this subject – the glaring truth – is that drug crime polices, both in Massachusetts and across the nation – have been essentially a complete failure, and a waste of hundreds of millions of dollars in law enforcement, prosecutorial and judicial resources.

The report I’m referring to, released Thursday June 18 2008 by the Massachusetts Bar Association, places the truth front and center. The report’s title: “The Failure of the War on Drugs.” This study, which is the result of more than a year’s work by a task force of respected lawyers, law enforcement and mental health professionals, comes to the conclusion that state politicians have almost universally ignored: Massachusetts’ drug laws and policies, like so many other states, are “wasteful, ineffective and cruel.” As a Massachusetts drug offenses lawyer, I can attest to the accuracy of that conclusion.

Among the task force’s findings:

When will this end?

Recently, a handful of cities and towns in Massachusetts have begun efforts to develop municipal ordinances and bylaws that would punish public possession of an ounce or less of marijuana, above and beyond the state civil fines that were approved in the November 2008 ballot measure that decriminalized possession of an ounce or less of pot. That measure (Question 2 on the November 2008 ballot) was overwhelmingly approved by state voters, by a 2 to 1 margin. That measure made possession of an ounce or less of pot a civil offense punishable by a $100 fine, with minors required to attend a drug awareness program. It also requires forfeiture of the pot found on the person. Yet some opponents, including law enforcement officials, claim the law is “poorly written” and unenforceable. I find this claim to be specious at best, and far more likely generated by the law enforcement community’s resentment that the public took away some of the powers that they had before pot was decriminalized through this ballot initiative. But the result has been that some cities and towns, with the encouragement of Police Departments, have begun to craft their own bylaws and ordinances to add their own, local, fines for public possession of an ounce or less of pot. Defenders of the new state law fear these efforts might presage a wider effort toward recriminalization. I don’t blame them.

As a Massachusetts drug offenses defense attorney, it was in my economic and professional interest to oppose the ballot initiative decriminalizing pot. But as a lawyer, a former Special Assistant District Attorney and taxpayer, I can’t support arguments to keep this a criminal offense. Tens of millions of dollars were wasted each year in this state, in the arrest and prosecution of a victimless “crime” that many respected authorities consider to be of an extremely minor nature. The new law retains all the punishments for driving while under the influence of pot, as it did before, and as now justifiably apply to driving under the influence of alcohol or any other drug. The new law retains all the previous penalties and punishments for trafficking and distributing large amounts of the drug as it did before. The new law requires minors to attend a drug awareness program and requires anyone fined, to forfeit the pot they might have on their person. A national organization of present and former law enforcement professionals, Law Enforcement Against Prohibition (LEAP), publicly supports decriminalization of an ounce or less of pot, publicly testifying that hundreds of millions of taxpayer dollars are wasted each year, on an offense that is extremely minor.