Opinion
10-P-1660
04-30-2012
COMMONWEALTH v. ALFRED J. SPRAGUE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions after a jury-waived trial in District Court of distribution of marijuana, possession of marijuana with the intent to distribute, and a related school zone violation. The defendant argues that his motions to suppress and for a required finding of not guilty were erroneously denied. We affirm.
Background. As the majority of our discussion concerns the motion to suppress, we recite the facts as derived from the hearing on the defendant's motion to suppress. Detective Grace, a member of the Wakefield police department, was the sole witness at the motion to suppress hearing. On March 3, 2008, Detective Grace was in the parking lot of a McDonald's restaurant in Wakefield. He observed a man later identified as Daniel Lawton using the pay phone. Detective Grace noticed that Lawton's telephone call was very brief, and that Lawton appeared nervous. After ending the call, Lawton entered his vehicle, drove to another area of the parking lot, and parked beside the defendant's vehicle. Detective Grace observed Lawton's passenger, Shane O'Donnell, exit Lawton's vehicle and approach the defendant. He saw the defendant hand a plastic baggie to O'Donnell in exchange for something he could not see. Both vehicles then left the parking lot.
Detective Grace had both conducted prior narcotics investigations and made arrests in that particular parking lot.
The defendant was known to Detective Grace, but not for prior drug activity.
Detective Grace followed Lawton's vehicle, which was eventually stopped. Detective Grace asked O'Donnell to exit the vehicle and provided him the Miranda warnings. He asked O'Donnell what had just transpired in the McDonald's parking lot, and O'Donnell stated that he had purchased ten dollars worth of marijuana from the defendant. Detective Grace seized a plastic baggie from O'Donnell, and collected a green leafy substance from the floor of Lawton's vehicle. He also seized a piece of paper upon which a telephone number was written. O'Donnell told Detective Grace that the number was the defendant's telephone number. After Lawton confirmed that they had just purchased ten dollars worth of marijuana from the defendant, Detective Grace returned to the McDonald's parking lot.
Upon seeing the defendant in the parking lot, Detective Grace approached the defendant's vehicle and asked him to exit. As the defendant exited, Detective Grace noticed a strong odor of marijuana. Detective Grace observed the defendant put his hand in his left pocket, prompting Detective Grace to pat frisk that pocket. Detective Grace immediately felt hard objects consistent with the baggie of marijuana he had seized from O'Donnell. Detective Grace seized five baggies containing what he believed to be marijuana from the defendant's pocket and placed the defendant under arrest. He then searched the defendant's vehicle. Detective Grace recovered a digital scale, thirty-five dollars, and several more empty baggies.
After he was booked, the defendant stated that he had begun selling marijuana two days earlier, and that he had sold marijuana to O'Donnell and one other person that day.
Discussion. 1. Motion to suppress. 'In reviewing a denial of a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error, but conduct an independent review of the judge's ultimate findings and conclusions of law.' Commonwealth v. Washington, 449 Mass. 476, 480 (2007). Here, the judge found that the defendant lacked standing to challenge the stop of Lawton's vehicle, and that Detective Grace had probable cause to search the defendant.
a. Standing. In challenging the admissibility of evidence seized from Lawton's vehicle, '[t]he defendant does not claim that he had an expectation of privacy to contest the search of [O'Donnell] or the automobile in which he was a passenger; rather, he invokes the automatic standing rule explicitly recognized under art. 14 of the Massachusetts Declaration of Rights.' Commonwealth v. Garcia, 34 Mass. App. Ct. 386, 389-390 (1993). Under art. 14, a defendant has automatic standing to challenge a search when he 'is charged with a crime in which possession of the seized evidence at the time of the contested search is an essential element of guilt.' Commonwealth v. Amendola, 406 Mass. 592, 601 (1990). This defendant, however, was charged with possessing the marijuana seized from his person -- not with possessing the marijuana seized from O'Donnell. The defendant does not claim any right to possession of the items found in Lawton's vehicle, and 'once possession or a claim of right to possession of the contraband ends, so does standing to contest the search.' Garcia, supra at 391.
The defendant conceded at the hearing on his motion to suppress that he lacked standing to challenge the stop of Lawton's vehicle.
We do not consider the defendant's argument, made for the first time in his reply brief, that he had 'target standing' to challenge the stop of Lawton's vehicle. See Canton v. Commissioner of the Mass. Hy. Dept., 455 Mass. 783, 795 n.18 (2010). Moreover, this case does not involve the kind of'serious, distinctly egregious' police misconduct required to establish target standing. Commonwealth v. Waters, 420 Mass. 276, 278 (1995).
b. Probable cause. The defendant challenges the stop of his vehicle as well as Detective Grace's exit order and subsequent search. 'A police officer may stop a vehicle in order to conduct a threshold inquiry if he has a reasonable suspicion that the occupants have committed, are committing, or are about to commit a crime.' Commonwealth v. Wren, 391 Mass. 705, 707 (1984). In this case, Detective Grace observed Lawton making a telephone call, saw Lawton and O'Donnell approach the defendant, saw the defendant exchange something with O'Donnell, was informed by O'Donnell and Lawton that they had just purchased marijuana from the defendant, and seized marijuana and a piece of paper containing the defendant's telephone number from O'Donnell. Detective Grace observed an exchange between O'Donnell and the defendant in an area where he had previously conducted narcotics investigations and made arrests, and seized marijuana from O'Donnell immediately thereafter. Such 'specific, articulable facts and reasonable inferences drawn therefrom' support a reasonable suspicion that the defendant had sold marijuana from his car, which justified Detective Grace's stop. Ibid.
Detective Grace's observations, together with the information given him by O'Donnell and Lawton, also provided probable cause to arrest the defendant for selling marijuana. See Commonwealth v. Storey, 378 Mass. 312, 321 (1979), cert. denied, 446 U.S. 955 (1980) ('probable 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'). As such, Detective Grace was entitled to order the defendant out of the car, see Commonwealth v. Bostock, 450 Mass. 616, 622-623 (2008), search the defendant's car without first obtaining a warrant, see id. at 624; Commonwealth v. Nicholson, 58 Mass. App. Ct. 601, 607 n.7 (2003), and search the defendant incident to his arrest. See G. L. c. 276, § 1. Because Detective Grace had probable cause to arrest the defendant, '[t]he fact that the search preceded the formal arrest is not important.' Commonwealth v. Johnson, 413 Mass. 598, 602 (1992).
2. Motion for required finding of not guilty. The defendant argues that his motion for a required finding of not guilty should have been allowed because the Commonwealth failed to establish that the substance at issue was marijuana. In reviewing the judge's ruling, we analyze the evidence in the light most favorable to the Commonwealth to determine whether sufficient evidence has been presented 'to permit the jury to infer the existence of the essential elements of the crime charged.' Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Commonwealth v. Sandler, 368 Mass. 729, 740 (1975).
Although no certificate of chemical analysis was introduced in this case, '[p]roof that a substance is a particular drug . . . may be made by circumstantial evidence.' Commonwealth v. Dawson, 399 Mass. 465, 467 (1987). At trial, Detective Grace, whom the judge qualified as an expert, testified that he smelled and felt the substance recovered from O'Donnell and the defendant, which he recognized from his training and experience to be marijuana. Detective Grace's testimony, together with his 'familiarity with the properties of marijuana through past experience coupled with ' present observation' of the substance at issue [was] sufficient to establish its identity.' Commonwealth v. MacDonald, 459 Mass. 148, 153 (2011). Moreover, the judge, as fact finder, could infer that the substance was marijuana based upon the defendant's statement that he had sold marijuana to two people that day. See Commonwealth v. Fluellen, 456 Mass. 517, 527 (2010). Because such evidence permitted the inference that the substance possessed and distributed by the defendant was marijuana, the judge correctly denied the motion for a required finding of not guilty. See Commonwealth v. Nelson, 370 Mass. 192, 203 (1976).
Detective Grace testified that he had made between one hundred and 200 arrests involving marijuana.
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Judgments affirmed.
By the Court (Vuono, Grainger & Carhart, JJ.),