The “war on drugs” has resulted in many jurisdictions imposing very serious penalties on defendants convicted of drug offenses. It is crucial for criminal defense attorneys to understand the structure of drug distribution schemes as well as the case law that will be most beneficial in defending their clients. This article provides insight and strategies for criminal defense attorneys who represent individuals charged with drug crimes.
The federal government began the trend of significantly increasing penalties for drug offenses with the enactment of the Anti-Drug Abuse Act of 1986.  Many states followed suit including Massachusetts, which has enacted legislation that requires the imposition of harsh mandatory minimum sentences for a variety of drug crimes. While the Massachusetts drug statutes have undoubtedly removed some significant drug dealers from the streets, they have also ensnared many low-level offenders who were dealing small amounts of narcotics.
The Ground Rules of Drug Cases
As a criminal defense practitioner, I start every case with this question: did the police lawfully seize the allegedly illicit substance? A large number of drug cases are vulnerable to motions to suppress either because the seizure of drugs results from the warrantless searches of suspects’ cars, clothes, or personal belongings, or because the seizure results from the execution of search warrants that were authorized on information provided by confidential informants.
Assuming the drugs were lawfully seized by the police, there are three main considerations in defending drug cases. First, can the Commonwealth prove the requisite nexus between the drugs and the defendant to establish that the defendant possessed the substance? Second, if the defendant possessed the substance, can the Commonwealth establish that the defendant intended to distribute the substance to another person? Third, if the defendant clearly distributed or intended to distribute the substance, is there a way to mitigate the damage to avoid or reduce a mandatory minimum sentence?
Many of the larger police departments have their own vice squads that work fulltime to rid the cities of illegal narcotics. The smaller departments often use regional task forces to infiltrate the local drug scene. These vice squads and task forces are very effective in sharing information with each other and with other police departments about the drug trade.
Use of Confidential Informants
Experienced drug detectives are able to develop relationships with drug users, usually after arresting them for possession of drugs, and utilize information provided by the drug users to trap dealers. These relationships are often manifested in the designation of these users as “confidential informants.”
Drug detectives will collect information from the drug users, label the users as confidential informants, and repeat the informants’ stories in affidavits to obtain search warrants for alleged drug dealers’ homes. Massachusetts applies the Aguilar-Spinelli test, which states that a warrant may issue based on information provided by a confidential informant only if the supporting affidavit establishes that the informant had a basis of knowledge for the information and the informant was reliable. 
Establishing Probable Cause
In challenging searches conducted pursuant to warrants, defendants are limited to arguing that what was written in the affidavit failed to establish probable cause for the warrant to have been issued.  While experienced drug detectives are highly effective in establishing probable cause to believe that individuals are dealing drugs, they may be less effective in describing the areas where drugs can be expected to be discovered.
Even if drug detectives produce persuasive evidence that an individual is a drug dealer, a magistrate may not necessarily issue a warrant to search the individual’s home. The Massachusetts Appeals Court has ruled that just because there is probable cause to believe a person is guilty of a crime (such as drug dealing), it does not necessarily mean there is probable cause to search the person’s home. 
The Massachusetts Supreme Judicial Court has said that when a magistrate is reviewing a police officer’s application for a search warrant, the officer’s affidavit must establish that the evidence sought is related to the underlying investigation and the evidence can reasonably be expected to be found in the place to be searched at the time the warrant is issued.  Therefore, even in cases in which there is overwhelming evidence of an individual’s drug dealing activities, defense attorneys would be wise to carefully examine the affidavit in support of the search warrant. Drug dealers who conduct their business exclusively from their cars or places of business should be secure in their homes absent a nexus between their illegal activities and their residences. 
Criminal defense attorneys can often use a police officer’s affidavit in support of a search warrant application to their client’s benefit. For example, I have represented many individuals who are charged with dealing drugs where the affidavit in support of the search warrant appears to offer airtight evidence that would authorize the issuance of the warrant. However, when reading the affidavit carefully, it becomes clear that the police have been unable to connect my client’s drug dealing activities with certain places in my client’s life. For example, overwhelming evidence of a defendant dealing drugs from his apartment and his place of business will not, without more, justify the search of his car.
Motor Vehicle Stops
There is extensive caselaw addressing when an experienced drug detective can conclude that occupants of a car are dealing drugs. Large numbers of drug cases result from simple motor vehicle stops by the police. A traffic infraction often leads to the police officer ordering the car’s occupants to exit the vehicle, which subsequently leads to the search of the occupants and the vehicle. Charges result from the discovery of drugs on the occupants or in the vehicle.
Motions to suppress evidence gleaned from traffic stops are valuable tools in defending drug cases. Was there a good faith basis for the initial stop? Was the officer justified in issuing an exit order? In Massachusetts, a police officer may issue an exit order to a car’s occupants during a routine traffic stop in only three situations: (1) where the officer reasonably fears for his safety; (2) where there is reasonable suspicion that an occupant of the motor vehicle is engaged in criminal activity; or (3) where the officer has probable cause to believe there is contraband in the car, or where the driver is being arrested and the officer is searching the car incident to the driver’s arrest.  There is always a question of whether a search of a motor vehicle and its occupants is appropriately limited in scope? 
Filing a Motion to Suppress
Filing a motion to suppress a search resulting from a traffic stop generally requires that the defendant submit an affidavit asserting that he or she was not acting in a suspicious manner. Therefore, it is necessary for the defense attorney to work closely with the defendant to draft the best possible affidavit for use at the motion, and to protect the defendant’s appellate rights in the event that the motion to suppress is denied and the defendant is ultimately convicted.
Until recently, police officers in Massachusetts were permitted to search a motor vehicle if they detected an odor of burnt marijuana coming from within the vehicle.  The purported odor of marijuana was the basis for many vehicle searches in the Commonwealth. That changed on December 4, 2008, when possession of less than an ounce of marijuana became a civil violation, rather than a criminal offense in Massachusetts.
The Massachusetts Supreme Judicial Court has ruled that the odor of either burnt or unburnt marijuana, without more, is insufficient to order occupants of a car to exit the vehicle or to search.  The Court held that since possession of less than an ounce of marijuana is no longer a crime, the odor of marijuana can no longer reasonably provide suspicion of criminal activity. The Court’s decisions in these cases have been enormously beneficial to criminal defense attorneys because a widely-used justification for warrantless searches has now been eliminated.
If a defendant is unsuccessful in suppressing the drugs, the next question becomes whether there is sufficient evidence to establish the defendant possessed the contraband. A conviction for simple possession of narcotics can result in catastrophic collateral consequences, including a substantial driver’s license suspension. Possession is defined as “control and power” or, in the case of constructive possession, “knowledge coupled with the ability and intention to exercise dominion and control.” 
Being present in the same area as a controlled substance is insufficient to establish criminal liability. The exception to this rule is the crime of knowingly being present where heroin is kept.  Thus, an individual who is riding in a car containing drugs or living in an apartment containing drugs is not guilty, without additional evidence, of possessing the drugs. Similarly, a defendant cannot be convicted of possessing narcotics simply because his or her possessions are in close proximity to a stash of drugs. 
Use of Laboratory Results
It recently became more difficult for the Commonwealth to prove drug possession cases. When police officers seize narcotics, they send the narcotics to the state laboratory for testing to confirm the illegal nature of the substance. A state chemist tests the substance and issues a certificate that declares the result of the laboratory testing.
Prior to 2009, prosecutors regularly introduced these laboratory certificates to establish that the substance seized by the police was, in fact, an illegal narcotic. However, the United States Supreme Court ruled in 2009 that introduction of a laboratory certificate without live testimony from the chemist who performed the testing and signed the certificate violates defendants’ Sixth Amendment confrontation rights.  Therefore, the Commonwealth is now required to call the state laboratory chemist to testify personally at most defendants’ trials. One exception to this rule is in cases in which a police officer can testify, based on his or her training and experience, that the substance seized from the defendant was marijuana. 
In addition to often creating logistical problems for the Commonwealth, given the limited number of chemists who are required to testify in a large number of courts, skilled defense attorneys can sometimes mount chain of custody challenges through cross-examination of the chemist. The chemist will testify at trial that he or she personally examined and tested the substance and concluded it was an illegal narcotic. However, the chemist will likely not have personal knowledge about: (1) who accepted the package when it arrived at the laboratory; (2) how many people handled the package; and (3) when the package was returned to the police station. The chemist will try to testify that there is a standard set of procedures in place to ensure the integrity of the chain of custody. However, the chemist will have to admit that he or she does not have personal knowledge about how many other people handled the substance and the manner in which it was transported back and forth to the police station. The defense attorney can then argue during closing argument that there is no way to know for sure whether the substance was mishandled or tampered with at the laboratory.
Personal Use or Possession with Intent to Distribute?
When the defendant’s possession of the substance is clearly established, the next question is whether the drugs were for personal use or whether the defendant intended to distribute the drugs. “Distribute” means to actually deliver (sell or give) a controlled substance to another person.
The question of personal use versus intent to distribute is enormously important for several reasons, not the least of which is the answer may determine whether the defendant is simply a drug user or a drug dealer. Possession of drugs with intent to distribute carries considerably harsher penalties than simple possession.  If the weight of the controlled substance meets certain threshold levels, the defendant may be charged with drug trafficking, which carries lengthy mandatory minimum state prison time. 
Finally, there are enhanced penalties for possessing drugs with intent to distribute within 300 feet of a school. The school zone statute was recently amended in Massachusetts by Melissa’s Law,  which reduced the school zone distance from 1,000 feet to 300 feet and imposed time restrictions on when a defendant can be charged with a school zone violation. The change in the law was appropriate, given that some cities were completely encapsulated by school zones and there was no requirement that the drug dealing activity have any impact on, or relationship to, the school in question.
The Defense Attorney’s Tool Box
Defense attorneys potentially have two powerful tools at their disposal in trying to persuade a judge or a jury that their client is guilty of simple possession instead of possession with intent to distribute – their client’s medical records and expert witnesses.
Defendants with long histories of drug abuse will likely have a trail of documentary evidence. Records of drug-related hospitalizations, inpatient rehabilitations, or even physical checkups with their primary care physicians can prove to be enormously helpful. If a person has been battling drug addiction for years, or even decades, it is reasonable to think that he or she might be in possession of a large amount of drugs to satisfy an addition.
It is compelling for an attorney to show the jury years’ worth of medical records illustrating that his or her client has a serious drug problem. Naturally, it is important for the attorney to review all of the records before subpoenaing them to court to ensure there are no damaging statements contained in them. For example, most medical records contain biographical information about patients. I have seen, buried in a paragraph about a client’s employment history, “patient admits to selling drugs to support habit.” Obviously, such a statement in the hands of the prosecutor would be devastating.
To establish that a defendant intended to distribute the drugs in his or her possession, the Commonwealth will have to present expert testimony. The expert will likely be a seasoned drug detective and will testify that based on years of experience and the evidence in the case, the drugs were more consistent with being possessed in order to distribute rather than possessed for personal use, based on the following criteria.
Packaging of the Drugs
While the quantity of drugs is important, perhaps equally important is the manner in which the drugs are packaged. An individual who is caught with one six-gram bag of cocaine will likely be better situated than an individual caught with six individually-wrapped, one-gram bags of cocaine. Large numbers of small quantities of drugs suggest the drugs are for distribution rather than personal use.
The Commonwealth’s expert will testify that drug dealers use certain innocent household items to package their illicit products. The presence of empty sandwich bags and digital scales are indicative of drug distribution schemes.
Drug dealers need to keep track of their customers, so it is reasonable to expect them to carry sheets of paper containing names and numbers, which act as order sheets and receipts.
Because drug dealing is a cash business, it is reasonable to expect drug dealers to have large quantities of cash, often in different denominations and located in different pockets.
Multiple Cell Phones and Pagers
Drug dealers need to keep track of their customers and often use multiple cell phones and pagers to do so. This was a more compelling argument several years ago before most of the population began carrying cell phones.
Because drug dealers often carry large amounts of cash in addition to their valuable product, they also often carry weapons to defend themselves from potential robbers.
Lack of Needles or Pipes
Drug addicts typically use their drugs immediately after receiving them. Therefore, if the police discover someone with drugs but with no method by which to ingest the drugs, they often assume the individual is a dealer instead of a user.
If any of these factors are present, the prosecutor will attempt to convince the jury that they are proof of the defendant’s intent to distribute drugs. Conversely, aided by a helpful defense expert, the defense attorney can argue that any missing factors point toward his client’s being guilty only of simple possession. Even if there is a large quantity of drugs, lack of other corroborating drug-dealing evidence is powerful in front of a jury, particularly if combined with medical records establishing the client’s long-standing addiction.
Distribution of Drugs
There are generally two categories of drug distribution cases. There is the case where the defendant sells to an undercover police officer, and there is the case where the defendant sells to a drug addict.
A client who sells to an undercover officer is in a difficult position. Absent highly unusual circumstances, such as entrapment, the defendant who sells to an undercover officer should usually explore the best possible plea deal. The defendant who sells to a drug addict, on the other hand, has a much better outlook.
The drug addict will usually not testify against the defendant because the drug addict has a Fifth Amendment privilege. Even if the drug addict chooses to testify or is given immunity by the Commonwealth and is forced to testify, the addict’s drug use should be admissible to establish his or her state of mind. The defendant’s attorney should be able to attack the addict’s ability to recollect events clearly. If the addict does not testify, it is often difficult to determine which party was selling the drugs and which party was buying. Any statements made by the addict to law enforcement personnel will constitute inadmissible hearsay.
Every drug case involves a series of steps to determine what type of conviction, if any, the Commonwealth will be able to obtain. Defendants first need to see if there is a basis to suppress the evidence. If the evidence is not suppressed, can it be connected to the defendant? If the defendant did possess a drug, was it for personal use? By methodically addressing each step, defendants will put themselves in the best possible position to either beat their drug cases or mitigate the potential damage.
There is no sign of the “war on drugs” slowing down. In every community across the country, drug detectives and regional task forces are working around the clock to bring charges against participants of the drug trade. Although the police officers involved in these cases are highly trained professionals, they are still dependent on receiving information from confidential informants. Even the strongest cases are usually vulnerable to some sort of attack, either on the issuance of the search warrant, the execution of the search warrant, or the police officer’s conclusion that the defendant was a drug dealer rather than a drug user. By using the tools discussed in this article, practitioners will be in a position to attack the Commonwealth’s case and mitigate the damage to their clients.
About the Author
Attorney Christopher Spring graduated from Notre Dame Law School in 2001 and started working in the Middlesex (Massachusetts) District Attorney’s Office. He served as an assistant district attorney for more than three years, prosecuting defendants charged with a variety of crimes in district and superior courts. As a superior court prosecutor, Mr. Spring concentrated on prosecuting violent street crime and high-level drug distribution and drug trafficking cases. Following his career in the district attorney’s office, he founded Spring & Spring, which is a full-service criminal defense firm serving Eastern Massachusetts. Mr. Spring has tried more than 150 cases before a jury and has argued in front of the Massachusetts Supreme Judicial Court and the Massachusetts Appeals Court.
 21 U.S.C.A. § 801 (West 2012).
 Commonwealth v. Upton, 394 Mass. 363 (1985).
 Commonwealth v. O’Day, 440 Mass. 296 (2003).
 Commonwealth v. Olivares, 30 Mass. App. Ct. 596 (1991).
 Commonwealth v. Matias, 440 Mass. 787 (2004).
 See also Commonwealth v. Smith, 57 Mass. App. Ct. 907 (2003), Commonwealth v. Bookman, 77 Mass. App. Ct. 546 (2010), andCommonwealth v. Dillon, 79 Mass. App. Ct. 290 (2011); and compare Commonwealth v. Blake, 413 Mass. 823 (1992), Matias, supra, and O’Day, supra.
 Commonwealth v. Elysee, 77 Mass. App. Ct. 833 (2010).
 See Commonwealth v. Griffin, 79 Mass. App. Ct. 124 (2011) (in which the Massachusetts Appeals Court held that probable cause to search a vehicle does not necessarily extend to probable cause to search its occupants).
 See Commonwealth v. Kitchings, 40 Mass. App. Ct. 591 (1996).
 See Commonwealth v. Cruz, 459 Mass. 459 (2011) and Commonwealth v. Overmyer, 469 Mass. 16 (2014).
 Commonwealth v. Brzezinski, 405 Mass. 401 (1989).
 See Mass. Gen. Laws Ann. c. 94C, § 35.
 Commonwealth v. Humphries, 76 Mass. App. Ct. 702 (2010).
 Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).
 Massachusetts v. MacDonald, 459 Mass. 148 (2011).
 See Mass. Gen. Laws Ann. c. 94C, §§ 32, 32A-D, and 34.
 See Mass. Gen. Laws Ann. c. 94C, § 32E.
 See 2012 Mass. Legis. Serv. c. 192 (West).