201611.25
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PROBABLE CAUSE TO ARREST FOR DRUG DISTRIBUTION EVEN THOUGH POLICE DID NOT ACTUALLY SEE ANY HAND-TO-HAND TRANSACTION – OR EVEN ANYTHING CLOSE TO ONE

Recently, the Massachusetts Supreme Judicial Court further fleshed-out the law with respect to probable cause to arrest for street-level drug transactions.  Typically, these cases involve the police observing someone passing an object to another person under suspicious circumstances, such as when one car pulls alongside another in a parking lot, and the occupants of the vehicles exchange items and then drive away.

Over the past 75 years, the Court has looked at a handful of non-exclusive factors in assessing whether probable cause exists in a street-level drug transaction, viz.:

(1) the observation of an unusual transaction;

(2) furtive actions by the participants;

(3) the event occurs in a location where the police know drug transactions are common; and

(4) an experienced officer on the scene regards the event as consistent with a street-level drug transaction.

In the early 1990’s, the Court added that “whether the officer sees an object exchanged is an important piece of evidence that supports probable cause, and its absence weakens the Commonwealth’s probable cause showing.”  And in 2014, the Court added that “the suspect’s movements, as observed by the officer, must provide factual support for the inference that the parties exchanged an object.”

In the context of all this prior case law, comes the case of Commonwealth v. Sanders (2015), in which the SJC considered “whether a police officer, experienced in drug investigations, had probable cause to believe a street-level drug transaction had occurred even though there was no observation of either an actual exchange between the parties or furtive movements.”

The Court in Sanders concluded that neither furtive movements nor an actual exchange were necessary for probable cause, and that the fact that the police officer recognized the defendant as a drug dealer (taken in combination with an unusual transaction, an experienced investigator and a high-crime area) provided factual support for the inference that the parties exchanged an object, notwithstanding the lack of observation of any particular movements by the suspect.

This case will have a likelihood of reducing the number of suppression and dismissal motions that are allowed in street-level drug transaction cases because, historically, a failure to actually see something being exchanged was often fatal to the government’s case.  Under Sanders, such motions will probably be denied even when the police did not notice anything even approaching a hand-to-hand transaction, so long as there are other factors present, and if one of the parties to the suspected transaction is a known drug dealer.

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