Possession includes having drugs on your person, in your home, under your control or in a vehicle. It can either be direct possession, where you have it in your pocket, your purse, your bag or otherwise directly on you, or it can be what they call constructive possession. This is very common. For example, if drugs are either in your home or vehicle, the government has to prove not only that you knew they were there, but that you also had the intention to exercise control over the drugs. Simple possession is just what it sounds like. When we get into distribution or intent to distribute, there are a number of factual circumstances that are put together to prove those offenses. Sometimes it can be as simple as possession of large amount of drugs, which is unlikely to be for personal use. In that case, there is the inference that possession of such amounts would be to sell.
Another potential distribution or intent to sell scenario would be where the amount of drugs is not so large, that they could be for personal use. However, there are also other circumstances that might indicate that the person is selling. They could have packaging materials like Ziploc bags, scales and other things that might be used to cut the drugs, such as baby laxative.
The Courts look at all the circumstances. Maybe the person is believed to be making a deal, and the police observe them handing something to someone in exchange for money. Sometimes the police see many people coming and going from the person’s home where they are probably doing exchanges. Short visits, in and out of a vehicle is another example. The determining factors for distribution or intent to distribute: the circumstances, the amount of drugs and the presence of other implements of the drug trade.
What Is the Current Law on Medical Marijuana in Massachusetts?
A person who is either a qualified patient or a caregiver for a qualified patient can possess up to a 60-day supply of marijuana and/or plants that could give them enough for 60-days. Those people can buy up to 10 ounces every two months at dispensaries as well. Generally, for someone to be considered a qualified patient, they must have cancer, glaucoma, HIV, AIDS, hepatitis, ALS, Crohn’s disease or Parkinson’s.
Quite frankly however, there are many different conditions that do qualify for medical marijuana cards, such as depression, back pain and musculoskeletal pain. So it is very open-ended. If it is determined that you need it by a physician, you can be eligible to receive a medical marijuana card.
Are Drug Trafficking Offenses Common in Massachusetts?
I have seen a lot of drug trafficking cases over the course of my career. Some were people who were true dealers; others were just people that happened to have one of the larger amounts of the drugs involved. All drug trafficking cases depend upon the weight involved. For instance, the minimum amount of marijuana you would need to be considered a trafficker is 50 pounds or more. The minimum amount of cocaine or heroin, the other two most common drugs for trafficking, would be 18 grams or more. The minimum amount of fentanyl you would need to have for trafficking would be 10 grams or more. The sentences are generally determined by the amount of the drug you have. There is a different sentence for marijuana for having between 50 and 100 pounds versus 100 to 2,000 pounds. There are mandatory minimum sentences involved with all trafficking crimes.
Can Police Execute a Warrantless Search If They Suspect a Drug Offense?
No. They would have to have probable cause, which is different than just a suspicion. With regard to a car, truck or other vehicle, they just have to have probable cause. It used to be that you had to have probable cause and what they refer to as exigent circumstances, which is sort of like an emergency in that if they don’t act now, the evidence might disappear. However, Massachusetts developed what they refer to as the “automobile exception.” The courts have said that because a car is inherently movable, all they need is probable cause. The exigent circumstances are implied because of the car’s mobility. With regard to your home, most cases require a warrant.
However, if police have probable cause and exigent circumstances, such as an emergency situation where they have to move now or else they are going to lose that evidence, then there are exceptions to having the warrant. But for the home, they are much more limited than with a vehicle. They do have to have probable cause, not just some suspicion.
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