A Quincy Police officer arrested Thomas Higgins of Quincy over the weekend and filed a criminal complaint against him in the Quincy District Court. According to the Patriot Ledger, Officer David Levine saw Higgins crossing an MBTA footbridge at 11:30 p.m. on Saturday night. Levine apparently became suspicious because Higgins kept looking in his direction. Levine caught up to Higgins in a parking lot looking at vehicles. When asked to show identification, Higgins gave the officer a license with another man's photograph on it. When officer Levine pointed out the discrepancy, Higgins took off running. He was quickly apprehended and found to be in possession of a "green leafy substance believed to be marijuana."
Higgins was scheduled to be arraigned Monday on charges of possessing marijuana with the intent to distribute it, and attempting to commit a crime. As a criminal defense attorney there are three obvious issues that require exploration on behalf of Mr. Higgins.
1. THE STOP OF HIGGINS AND REQUEST FOR IDENTIFICATION. Based solely on the facts contained in this article, Mr. Higgins appears to have a viable motion to suppress the marijuana found in his possession. The constitution requires police to have probable cause or reasonable suspicion of criminal activity before they may stop/seize a person for questioning. Asking a pedestrian for identification is a stop/seizure in the constitutional sense. What does the article reveal to support Levine's stop of Higgins? Only that Higgins was walking in an area where there had been recent break-ins at 11:30 p.m., looking in the officer's direction, and then looking at cars in a parking lot. This may not be enough to seize Higgins since these actions are just as consistent with innocent activity as they are with potential criminal activity.
In the event that Higgins challenges the police actions with a motion to suppress, it will be up to a motion judge to decide. If he wins the motion, the marijuana charge will be dismissed.
2. PROOF OF HIGGINS' INTENT TO DISTRIBUTE MARIJUANA.
With regard to the marijuana, the article simply states that "a green leafy substance believed to be marijuana was found on [Higgins]." Well, since Levine obviously did not see Higgins participating in any marijuana sales and Higgins obviously did not say that he intended to sell the leafy substance, proof of an intent to distribute will have to be established with circumstantial evidence. One would think that if the amount of marijuana was large enough for a jury to infer an intent to distribute, the Quincy Police would have revealed that significant fact to the Patriot Ledger. Since they did not, it is safe to assume that the quantity was not a factor.
The amount seized, however is not the only circumstance relevant to a determination of whether a person possessed a drug with an intent to distribute it. If the police found large amounts of money, packaging materials, notes showing sales, a scale, or other indicators not mentioned in the article, perhaps the "intent to distribute" charge will stick. If not, it may be a simple possession charge. But, since decriminalization in 2008, if it weighs less than an ounce it should not be the subject of a criminal charge at all.
The decriminalization of marijuana has created a recurring legal issue that may or not arise in this case. It seems that the some charging officers believe that there is no longer a crime of possession of marijuana, hence having more than one ounce is not possession, but possession with intent. I do not believe this to be the case. Possession of less than one ounce is a civil possession violation and possession of more than one ounce is a criminal possession violation. In fact, one may still be convicted of possessing less than one ounce with the intent to distribute it if there is sufficient evidence of that intent, such as actually offering the small amount for sale. This has always been the case.
3. PROOF OF AN ATTEMPT TO COMMIT A CRIME. I assume that the crime that the police say that Higgins attempted to commit was breaking into cars. According to the article, Officer Levine found Higgins in a parking lot "looking at vehicles." Since it would actually be unusual to be in a parking lot and not look at vehicles I suspect that Officer Levine will testify to more suspicious activity than that. However, unless Higgins took some actions towards breaking into cars, there simply does not appear to be enough evidence to support this charge.
To prove "attempt to commit a crime" the government must prove 1) a specific intent to commit a particular crime, 2) an act taken towards committing the crime coming reasonably close to committing it. So here again, the prosecution must prove Higgins' intent -- a specific intent to break into cars. And just where will the prosecution find support for this? There is no evidence that he had any tools designed for breaking in; if he had he would have been charged with possession of burglarious tools. The prosecution may argue that he was looking for unlocked cars, but how will they possibly back this up with real evidence?
Even more importantly, where is the proof of the second element? - Taking some action towards breaking in and coming close to doing so. He was just walking through the parking lot. That may be a step towards committing a crime, but it is not enough of a step to come reasonably close to actually breaking in. Whether he had the intent or not, he did not do enough to prove an attempt.
Higgins should have a reasonable expectation of prevailing on all counts.