The Somerville Patch reports that police officers who witnessed at least three drug deals in two days have arrested a Malden, Massachusetts woman, charging her with Possession of Heroin and Distribution of Heroin. Here is a look at what transpired. Last Friday around 3:30 p.m. the woman was seen meeting up with another woman. The two walked towards a man at which point a drug transaction occurred. The buyer, a sixty one year old Brockton, Massachusetts man was charged with Possession of Heroin and Conspiracy to Violate the Massachusetts Drug Laws. The next day, the same woman was again seen engaged in a drug sale. The police followed her and saw her involved in yet a third drug deal. As with the first deal, the alleged buyer, a thirty seven year old Winthrop man was arrested and charged with Conspiracy and Drug Possession. The case is being prosecuted in the Somerville District Court.
Any time I read a story like this one I immediately become somewhat suspicious and wonder about the exact location police officers were in when they made their “observations”. When I defend Drug Cases in Massachusetts like this one, one of the first things I do is visit the crime scene. Using the police report and other discovery materials I try to ascertain the surveillance location. When it is not clear from the report or more importantly, when it is clear that there was no legitimate surveillance point, I file a motion for the disclosure of the surveillance location. This is often met with opposition.
Discovery of information in criminal cases is often discretionary. The district attorney often argues that they are not obligated to disclose surveillance locations in that doing so might compromise ongoing investigations or that disclosure is not relevant to the case at all. The best Massachusetts case supporting the defendant’s right to have this information is Commonwealth v. Hernandez, 421 Mass. 272, 274-276 (1995). In Hernandez, the Supreme Judicial Court held that disclosure was necessary where the surveillance location was helpful and relevant to the defense in terms of attacking the officers’ represented observations. In many cases true cross-examination requires a disclosure of a surveillance location. There can be a need to show how certain obstacles might have impeded an officer’s views and to show that he never saw what he reported to have seen. It is important to note that there is no obligation for the defense to show what it believes the evidence might show in order to justify the request for disclosure. All that is required is that the defendant make a preliminary showing that disclosure would provide material evidence needed by the defendant for a fair presentation of his case to the jury. Once the surveillance location has been disclosed, photographing the area might be helpful when arguing for suppression before a judge or an acquittal by a jury.
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