Marijuana Policy Project

A lawyer for a Concord High student arrested in an alleged drug bust said yesterday that the student was illegally set up by both the police and the principal of Bishop Brady High School, who posed as a potential customer via text messages.

John Huckins, 17, has been charged with intending to sell marijuana after he was arrested in March near the Bishop Brady campus carrying a quarter ounce of marijuana, according to the police. The police say Huckins planned to sell to a Bishop Brady student who was a friend of his and who he thought had contacted him by cell phone.

In fact, Huckins was exchanging text messages with Jean Barker, the Bishop Brady principal. Barker was using a phone she had confiscated from a Bishop Brady student earlier in the day. Barker pretended to be that student to negotiate the drug deal and draw Huckins to the school's campus, the police said.

In a hearing in Concord District Court yesterday, Huckins's lawyer, Mark Howard, argued that Barker's actions — negotiating a drug deal and luring the potential dealer to the school — were themselves violations of the law. He said that Barker involved the police only after she had set up the proposed sale.

"The police relied entirely on the illegal and unauthorized activities of a private citizen," Howard said. "The only information the police have when they go to Bishop Brady is her summary of events."

Howard also argued that once police officers arrived at Bishop Brady, several minutes before the proposed sale, they urged Barker to continue luring Huckins to the school, even after he expressed reluctance to come. In testimony yesterday, Detective Mark McGonagle said Barker continued to exchange text messages with Huckins, suggesting that they meet on Columbus Avenue, near the school, when Huckins said he didn't want to meet on school grounds. Howard said the police were using Barker to entice Huckins to go through with the sale.

"It's the police who encouraged Barker to get Mr. Huckins to come to the school," Howard said. "That is entrapment."

Judge Gerard Boyle ruled there was enough evidence to allow Huckins's case to continue to trial. Howard said he planned to talk with prosecutors about possibly resolving the case before that. But he said he planned to pursue his argument that Huckins was illegally entrapped by the police if the case went to trial.

"It's clear that John was resisting this, and it's clear the police were encouraging Barker to get him to come and do this," Howard said in an interview. "That, at least, gives the basis for an entrapment defense."

Howard also said he will argue that Barker violated the state law against eavesdropping by reading the text message that Huckins sent to the confiscated phone.

In court yesterday, McGonagle said Barker told him she called the numbers in the confiscated phone to see if any other Bishop Brady students had cell phones in school, which would be a violation of school policy. McGonagle said Barker told him she called one number labeled "Juan Huckins," but no one answered. Several minutes later, a text message from Huckins arrived, reading, "Yo, need a bag?" according to a police report.

Since reading that message required Barker to open the phone and press a button, Howard said, that was a violation of Huckins's privacy, as protected by eavesdropping laws. State statute makes it a felony for people to "willfully intercept . . . any telecommunication or oral communication" not intended for them. The law also prohibits the use of any illegally intercepted telecommunication as evidence in a trial.

Ron Weikers, an adjunct professor at Franklin Pierce Law Center and software lawyer in Manchester, said in an interview it was unclear to him whether Barker's actions constituted illegal eavesdropping. But he said evidence obtained illegally is usually only discounted if it was gathered by the government or law enforcement officials.

"The only way you can get evidence thrown out is if the government is the one responsible for the interception without a warrant," Weikers said. "Here, we have a private citizen, who may or may not have violated the law. The only way that evidence is thrown out is if the principal was a state actor."

For instance, Weikers said, prosecutors can use evidence of child pornography that was first seen by a computer repairman to charge someone with a crime. But the nature of this case — based largely on text messages — makes clear application of the law difficult, Weikers said.

"Because the technology is new and always changing, and the laws are set in stone, sometimes they don't quite catch the entire flavor of the current state of technology," he said. "Text messages sort of fall in this gray area."

Huckins, a senior at Concord High, was suspended from school when he was arrested March 6. But under a deal reached earlier this week between the school district and his attorney, Huckins will be allowed to finish his senior year. Under the terms of the deal, Huckins will not be allowed to attend his prom, class day or graduation ceremony.

Huckins had sued the school, alleging that district officials violated their own rules regarding suspension procedures by extending his original 10-day suspension to cover the rest of the school year.