Opinion
No. 12–P–1363.
2013-10-15
COMMONWEALTH v. Rafael GONZALES, Jr.
By the Court (COHEN, KATZMANN & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Rafael Gonzales, Jr., raises two issues on appeal from his convictions on three drug charges: (1) whether the motion judge erred in denying the defendant's motion to suppress evidence; and (2) whether the defendant was denied his right to effective assistance of counsel at trial. For the reasons that follow, we affirm.
Background. At approximately 11:30 P.M. on February 9, 2010, Officer Rizza, a nine-year veteran of the Everett police department, saw Kenneth Saltman standing on the right side of the road in front of an Irving gas station—an area Officer Rizza knew as a location of numerous drug deals, drug investigations, and arrests. The gas station and all the businesses in the area were closed. Saltman “was looking up and down the street like he was waiting for somebody.” Officer Rizza had known Saltman for nine years, knew him as a drug user, and had “had numerous dealings with him with the Narcotics Unit.” Officer Rizza, who had been temporarily assigned to that unit and who had prior experience in drug investigations and had made numerous drug arrests, saw Saltman make several cellular telephone calls and then get into the passenger side of a vehicle that had just pulled up. The vehicle drove away and Officer Rizza decided to follow. Officer Rizza observed the driver, the defendant in this case, turn on the vehicle's interior light, straighten his body, reach into his pocket, then hand something to Saltman. Saltman turned his head down as if he were looking at something. The defendant then drove a short distance and dropped Saltman off, about one hundred yards from where he had picked Saltman up. Officer Rizza believed a drug transaction had occurred and stopped the vehicle. The defendant disobeyed Officer Rizza's orders to put his hands on the steering wheel and instead reached for the glove compartment and then into his pocket. Officer Rizza feared for his safety and removed the defendant from the vehicle. The defendant disobeyed the officer's order to put his hands on the vehicle, and again put his hand into his pocket. Officer Hannon, who arrived as back-up with another officer, executed a patfrisk search and removed a folded dollar bill from the defendant's pocket. Based on the way the bill was folded, the officers believed it contained narcotics. Indeed, the officers found the bill to contain a white powder which later proved to be cocaine. The officers then placed the defendant in handcuffs.
We recount the testimony of the police officers called by the Commonwealth at the suppression hearing, which there is no dispute that the motion judge credited. The trial evidence was substantially similar, with no differences material to our consideration of the defendant's ineffective assistance claim.
Subsequently two plastic bags of white powder (later confirmed as cocaine) were found on Saltman, for which he said he paid $60. Among items later recovered from the defendant were a cellular telephone and $60 in cash from one pocket.
The defendant moved to suppress the evidence obtained as a result of the patfrisk, and a judge denied this motion. A jury convicted the defendant of cocaine possession, cocaine distribution, and a school zone charge, and he now appeals.
Discussion. 1. The scope of the search. The defendant argues that his motion to suppress should have been allowed because the patfrisk exceeded the scope of a permissible search for weapons. Because in our view Officer Rizza, by the time of the patfrisk, had probable cause to believe that the defendant had just taken part in a sale of drugs, we affirm the denial of the defendant's motion on the ground that the search of the defendant and seizure of the cocaine was a valid search incident to an arrest. See Commonwealth v. Va Meng Jo, 425 Mass. 99, 102 (1997) (reviewing court can affirm on different grounds from those relied on by trial court).
On appeal, the defendant rightly does not contest the legality of the initial stop, the exit order, or the initiation of the patfrisk.
“[P]robable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense.” Commonwealth v. Storey, 378 Mass. 312, 321 (1979). In determining whether there was probable cause, Commonwealth v. Kennedy, 426 Mass. 703, 708–711 (1998), is instructive. In Kennedy, probable cause was found where an officer with eight years of experience observed the defendant, who was previously arrested for narcotics sales, approach the passenger side of a vehicle in a high crime area and exchange something with the passenger and walk away. Because “small quantities of drugs are easily concealed and move quickly in hand-to-hand exchanges,” it did not matter that the officer did not see exactly what was exchanged. Id. at 710. In this case, as in Kennedy, we must consider the events observed by Officer Rizza, not as an ordinary lay person might view them, but instead as they appeared to an experienced narcotics officer. When viewed in this manner, there was probable cause for the defendant's arrest based on evidence that Saltman, a known drug user, made several telephone calls in a high drug crime area at an hour when all the businesses were closed, was picked up by a vehicle driven by the defendant, and was quickly dropped off after exchanging something with the defendant, who refused to take his hands out of his pockets when instructed to by law enforcement. These events make up a picture, the “ ‘silent movie’ [that] disclosed to the eyes of an experienced narcotics investigator a sequence of activity consistent with a drug sale.” Commonwealth v. Santaliz, 413 Mass. 238, 242 (1992). The officer did not need to see precisely what was transferred to make the reasonable judgment that a drug crime was committed. See Commonwealth v. Soto, 45 Mass.App.Ct. 111, 112 (1998). Because there was probable cause to arrest, the search conducted in this case was proper as a search incident to arrest. Such a search may precede the formal arrest as long as there is probable cause for the arrest and the arrest and search are “roughly contemporaneous.” Commonwealth v. Washington, 449 Mass. 476, 481 (2007).
2. Ineffective assistance of counsel. The defendant argues that he was denied effective assistance of counsel at trial where trial counsel failed to give an opening statement, failed to cross-examine three of the four witnesses the Commonwealth produced at trial, and then argued during closing argument that the defendant was in possession of cocaine. Even if the defendant has raised questions about trial counsel's performance that might be worthy of consideration, “[t]his issue was not presented to the judge in the form of a motion for a new trial and thus is not properly before us. Whether there was a strategic reason for counsel's action requires fact finding and must be undertaken by the trial judge.” Commonwealth v. Cortez, 438 Mass. 123, 131 (2002). Only when counsel's inadequate performance “appears indisputably on the trial record” can relief be granted in the first instance on direct appeal. Commonwealth v. Zinser, 446 Mass. 807, 811 (2006), quoting from Commonwealth v. Adamides, 37 Mass.App.Ct. 339, 344 (1994). This is not such a case.
Judgments affirmed.