The Massachusetts Appeals Court today ruled that a defendant, who ate a packet of heroin to prevent its seizure by a police officer, could be charged with violating the witness intimidation statute. The name of the case is Commonwealth v. Tejeda.
Boston police officers were conducting surveillance in an area of the city notorious for illegal drug activity. The officers watched the defendant and two others engage in what appeared to be a drug deal. One of the cops approached one of the men who was known to be a heroin user. After the user refused to show his hands, the cop grabbed his right shoulder, causing him to drop a bag containing a powdery substance on the ground. The powder appeared to be heroin. Before the police could seize the bag of heroin, the defendant arrived on the scene, picked up the baggie, put it in her mouth, and swallowed it. As a result, neither the baggie nor its contents were recovered.
The Commonwealth charged the defendant with possession of heroin and misleading a police officer (which is a sub-category of intimidation of a witness). The defendant moved to dismiss the charges against her. A district court judge concluded there was probable cause for the heroin possession charge but no probable cause for the misleading a police officer charge. The Commonwealth appealed and the Appeals Court reversed, ruling there was probable cause for both charges.
The Court noted that the witness intimidation statute was expanded in 2006 to criminalize a number of new acts, including “misleading” a police officer. Under the revised statute, a person has violated the statute by willfully misleading a police officer while intending to obstruct, impede, delay, punish, harm, or otherwise interfere with a criminal investigation. For purposes of this case, misleading is defined as using a scheme, trick, or device with the intent to mislead law enforcement personnel. The Appeals Court concluded the defendant’s act of picking up the purported heroin and swallowing it before the police could take custody of it constituted a trick – a mischievous act intended to outsmart the cops by preventing the seizure of the baggie and ultimately making it impossible to analyze and confirm the substance therein as heroin. The Court reasoned that the Legislature had intended for such conduct to be criminalized under the witness intimidation statute and to allow the police to have resources to counteract deliberate interference with criminal investigations.
The defendant’s conduct here will make any prosecution against anyone for possessing the powder impossible. In order for the Commonwealth to prove anyone possessed heroin, it needs to prove beyond a reasonable doubt that the powder contained in the baggie satisfied the legal definition of heroin. To satisfy its burden of proof, the prosecutor would need to have the powder analyzed by a chemist, who would run tests to confirm the powder possessed the chemical characteristics of heroin. Once the defendant swallowed the substance, such analysis became impossible and the Commonwealth will no longer be able to prove anyone guilty of possessing heroin. Because drug dealers and users know how heroin cases are proven in court, it is very common for them to swallow illicit drugs as the police are approaching them. While it’s a dangerous act (as the baggie could explode in the defendant’s body and poison the defendant), most drug dealers and users are prepared to assume the risk.
Today’s case changes the calculation in these cases. The defendant will beat the possession charge by having swallowed the baggie, but instead she is charged with intimidation of a witness, which is a more serious crime (and a felony).