Court overturns downtown drug conviction because cops didn't have enough cause to look for the cocaine they found

The Supreme Judicial Court today overturned a convicted drug dealer's second conviction on drug-distribution charges, ruling police only found the 12 packets of cocaine he had in a 2008 incident because of a search they should never have conducted.

In its ruling, the court gave Suffolk County prosecutors the choice of just dropping the case altogether or re-trying Paul Stewart without the very evidence that led to his conviction in the first place.

According to the ruling, a Boston police detective and three officers watched Stewart walk onto the narrow Hayward Place early one May evening along with three other people. Officers watched the four huddle, then separate and leave Hayward.

The detective knew Stewart had a prior conviction for cocaine dealing and knew that Hayward Place was a preferred location for drug sales, so he stopped Stewart for a chat. He testified Stewart at first denied being on Hayward at all:

[Sgt. Det. William] Dwan then inquired about the contents of the thin nylon backpack that the defendant was carrying, which "was noticeably weighed down with an object." The defendant stated that the backpack contained his cellular telephone charger. Dwan asked for permission to search the bag, whereupon the defendant removed the bag and handed it to him. Dwan removed a hard box that was designed to look like a cigarette package, but was "noticeably heavier." At this point, the defendant changed his mind and told Dwan that he could not look in the bag. On opening the box, Dwan discovered that it was a digital scale, which contained a white powder residue that he believed to be cocaine. The defendant was then arrested for possession of cocaine. In the search of the defendant that immediately followed, the officers found money and a plastic bag containing twelve smaller packages of cocaine.

The state's highest court ruled that while the detective had enough reason to talk to Stewart - including his initial lying about being on Hayward Place - that was not enough to warrant opening the box, especially not after he revoked his permission to do so because the detective never testified he actually witnessed what appeared to be a drug transaction on Hayward:

A careful look at Dwan's testimony reveals that he did not see such an exchange, but inferred from what he saw that an exchange had occurred. Dwan testified that he had an unobstructed view of the four persons after they "huddled together," but could see only "their upper torso area." When initially asked, "Did you see any exchange at all," he answered, "No, I didn't." ... There was no evidence at the motion hearing, either from what Dwan testified to at the hearing or before the grand jury, that Dwan actually observed an exchange.

Our finding that Dwan did not see an exchange, but simply inferred from what he knew and saw that an exchange had occurred, is supported by the absence of any evidence as to who participated in the exchange. If Dwan truly had observed an exchange, he could have testified to who made the exchange; he did not. Consequently, there was no evidence that the defendant participated in the exchange that Dwan inferred had happened during the "huddle." ...

Based on reasonable suspicion, the officers lawfully stopped the defendant and questioned him as to what had just happened. But reasonable suspicion alone was not sufficient to allow Dwan lawfully to open the hard cigarette box, where there was nothing to suggest that a weapon was inside [Note: Officers can do an in-depth search if they fear for their safety]. Nor was opening the cigarette box lawful based on the defendant's initial consent to Dwan's looking inside his backpack, where the defendant had withdrawn his consent before Dwan opened the cigarette box. A consent to search can be withdrawn or limited at any time before completion of the search. ... Although evidence found during the search before the withdrawal of the consent may be lawfully admitted, a search must end on the withdrawal of consent where there is no other legal justification.

And because the search of the box was illegal, so was Stewart's arrest as well as the discovery of the cocaine packets:

Because the seizure of the plastic bag containing cocaine and the cash found during the search of the defendant was a fruit of the illegal search of the cigarette box, the cocaine and the cash should have been suppressed. Where the prosecution's case rested primarily on the defendant's possession of these items, the admission of the cocaine and cash was not harmless beyond a reasonable doubt.




I still say it's better to

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I still say it's better to treat the adiction than to rifle through bags, get all the way to court and get thrown out because of that pesky 4th Am. that says one of the cornerstones of this country is police can't just rifle through your bags.

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Sure, except the defendant

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Sure, except the defendant wasn't the addict, but the dealer preying on the addicts.

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I'm glad the SJC ruled to

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I'm glad the SJC ruled to uphold the constitution. And let it be a lesson to everybody: When asked by an officer if you consent to a search - Just Say No! Also, just say no to drugs.

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