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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Frazier, 410
Supreme Judicial Court of Massachusetts,
Middlesex.
Argued
Decided
[410
Martha Coakley, Asst.
Dist. Atty., for the Com.
Alan Chapman,
Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.
LIACOS, Chief Justice.
Defendants
Michele Frazier and Donald R. Johnson were indicted for trafficking in cocaine
in excess of 200 grams, pursuant to G.L. c. 94C, §
32E(b )(3) (1986 ed.), (FN2) and for
conspiracy to traffic in cocaine, pursuant to G.L. c.
94C, § 40 (1988 ed.). Both Frazier and
Johnson filed motions to suppress. A
judge of the Superior Court allowed both motions, but, after the Commonwealth
filed a motion for reconsideration, the judge amended his original suppression
order by denying the motion to suppress as to Johnson. The Commonwealth and Johnson each filed an
application for an interlocutory appeal.
Each application was allowed by a single justice of this court, and the
appeals were entered in the
The
Commonwealth argues that the judge erred in finding that there was no probable
cause to search Frazier's handbag.
Johnson argues that the judge erred in ruling that he did not have
automatic standing under Commonwealth v. Amendola, 406 Mass. 592, 550 N.E.2d 121 (1990), to
challenge the search of Frazier's handbag.
The judge
made the following findings. In October,
1987, State Trooper John F. McCabe received information from a [410 Mass. 237] confidential informant, who had provided reliable information in
the past, that one Richard Bangs was "dealing in" cocaine and was
being supplied by a person named "Don" from Revere. Trooper McCabe verified the information as to
Bangs. Bangs's
residence was put under police surveillance.
On one occasion, the police observed a black
At 10 A.M.
on November 10, 1987, the informant telephoned Trooper McCabe. The informant stated that he had just spoken
with Johnson, who said he was going to court that day and might be
incarcerated. Johnson told the informant
that, if he wanted to purchase cocaine in the future,
he should deal with Johnson's girl friend, and he gave the informant a
telephone number. Trooper McCabe
verified that the number was listed in Frazier's name. Later that morning, the informant again telephoned
Trooper McCabe. He told Trooper McCabe
that he had just received a telephone call from Johnson to the effect that he
had not been incarcerated and that he would continue to handle the cocaine
business. The informant told McCabe that
Johnson had said he would be making a cocaine transaction between 1 and 2 P.M.
that afternoon at a liquor store in Malden.
Johnson also told the informant he would be driving the white Mercury
Cougar automobile.
Trooper
McCabe and other officers immediately set up a surveillance point in the
vicinity of the liquor store. Other
officers established a surveillance point at Frazier's residence [410 Mass. 238] in Revere. These officers
observed Johnson and Frazier leaving the apartment house and entering the white
Cougar automobile. They observed Frazier
carrying a white handbag with a small strap.
One of the officers who was participating in the surveillance of
Frazier's home recognized her from other drug surveillances.
The
officers attempted to follow Johnson.
However, Johnson operated the vehicle in a manner "which was
designed to 'shake' surveillance."
He succeeded in eluding the "tailing" officers. The officers who had been following Johnson
then took up stationary positions in the vicinity of the liquor store. McCabe observed the white Cougar automobile
pass his position on Route 16 in Malden, going in the direction of the liquor
store. Trooper McCabe followed Johnson
and Frazier into the parking lot of the liquor store. Johnson drove around the parking lot and then
drove back out onto the main thoroughfare to a doughnut shop where Frazier
alighted from the vehicle. Other
officers were dispatched to the doughnut shop to take up surveillance of
Frazier.
Trooper
McCabe followed Johnson back to the liquor store. He observed Johnson driving around the
parking lot. Johnson then stopped the
automobile and made a telephone call.
Johnson returned to his automobile and circled the parking lot
slowly. He came in proximity to one of
the surveillance automobiles. Trooper
McCabe concluded that the surveillance had been discovered by Johnson. The trooper communicated this information to
the other police officers.
McCabe
observed Johnson driving back to the doughnut shop. Johnson stopped the automobile in front of
the shop and signalled to Frazier to come out. Frazier shook her head to indicate that she
would not come out of the shop. Johnson
drove away. The police stopped him and
placed him under arrest.
The
troopers, who were inside the shop observing Frazier, also noticed that Johnson
had stopped the automobile in front of the shop and signalled
Frazier to come out. They also observed
Frazier shaking her head. The troopers
then walked over to Frazier, identified themselves as police officers, [410 Mass. 239] and asked, "[I]s that the guy you came with?" Frazier answered, "[N]o, that
isn't." Frazier's handbag was on
the counter. One of the troopers seized
the pocketbook and said, "I can feel a hard object." The trooper unzipped the bag and discovered
a large quantity of a hard white substance, later determined to be cocaine. Frazier was placed under arrest.
[1][2] 1. Michele Frazier. The search of Frazier's handbag was
conducted without a warrant. A warrantless search is inherently suspect unless it falls
within one of the exceptions to the warrant requirement. The Commonwealth argues that the search was
valid as incident to the lawful arrest of Frazier. Commonwealth v. Bowden, 379
Mass. 472, 477, 399 N.E.2d 482 (1980).
When law enforcement officials use an informant's tip as the basis for
an arrest and search, art. 14 of the Massachusetts Declaration of Rights
requires that the Commonwealth satisfy the two‑pronged test set out in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410,
89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The
Commonwealth "must demonstrate some of the underlying circumstances from
which (a) the informant gleaned his information (the 'basis of knowledge'
test), and (b) the law enforcement officials could have concluded the informant
was credible or reliable (the 'veracity' test)." Commonwealth v. Cast, 407
Mass. 891, 896, 556 N.E.2d 69 (1990). If
the information provided by the informant fails to meet either or both of the Aguilar‑ Spinelli
prongs, independent police corroboration can be used to compensate for the
deficiency. Id.
The judge in the case at bar found that the Commonwealth satisfied the
"veracity" test because the confidential informant had provided
information in the past which led to the arrest and conviction of a named
individual. See Commonwealth v. Vynorius, 369 Mass. 17,
21, 336 N.E.2d 898 (1975).
[3][4] The
judge found, however, that the Commonwealth failed to satisfy the "basis
of knowledge" test. The judge's
findings of fact will not be disturbed unless clearly erroneous.
Commonwealth v. Bottari, 395 Mass. 777,
780, 482 N.E.2d 321 (1985). While the
judge's rulings of law, as they bear on constitutional issues, are open for
reexamination by this court, they are entitled to substantial deference. Id.
[5] [410 Mass. 240] At the time of the arrest, the police had the following
information regarding Frazier. The
police observed Frazier, and an automobile registered in her name, at the home
of Richard Bangs. In addition, they knew
that Johnson had told the informant that, if he was incarcerated, the informant
should deal with Johnson's girl friend, and provided the informant with a
telephone number. The information as to
Frazier's automobile registration number and telephone number was corroborated
by the police. However, these were
merely innocent details to the extent they related to the registration of the
vehicle and to Frazier's telephone number.
See Commonwealth v. Bottari, supra at 784, 482 N.E.2d 321 (corroboration of
innocent details less significant in establishing probable cause than
corroboration of facts suggestive of criminal activity). There was no evidence that activity
consistent with drug dealing was taking place at Bangs's
residence where Frazier and her car were observed. There was no evidence prior to the day of
arrest which would have established probable cause to arrest Frazier.
[6] A
person may not be arrested based on mere suspicion and association with another
individual, even if there is probable cause to believe that the latter
committed a crime. See Commonwealth v. Dirring,
354 Mass. 523, 531, 238 N.E.2d 508 (1968).
Cf. Commonwealth v. Jacobson,
19 Mass.App.Ct. 666, 675‑676, 477 N.E.2d 158
(1985). The only information that the
police had as to Frazier's involvement in illegal activity was her association
with Johnson. The fact that Johnson told
the informant to deal with his girl friend should he be incarcerated does not
implicate Frazier on the day of her arrest since Johnson was not incarcerated. The only reasonable inference as of the day
of Frazier's arrest was that Johnson was able to conduct the business
himself. As the motion judge pointed
out, "the fair inference with regard to Johnson's statement to the
informant was that Frazier was not presently involved with the dealing."
The
Commonwealth argues that Frazier's conduct on the day of her arrest, combined
with the information provided previously, established probable cause. We disagree.
Frazier [410 Mass. 241] was observed at a doughnut shop; the transaction was to have occurred at a
liquor store. Frazier was not at the
place where, according to the informant, the drug transaction was to
occur. "[A] person's mere
propinquity to others independently suspected of criminal activity does not,
without more, give rise to probable cause to search that person.... Where the standard is probable cause, a
search or seizure of a person must be supported by probable cause
particularized with respect to that person." (Citation omitted.) Ybarra v. Illinois, 444
U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238
(1979). Frazier's conduct at the
doughnut shop consisted of the shaking of her head in apparent response to
Johnson's gesture that she come out of the shop and lying to the police about
having arrived at the shop with Johnson. We do not think that Frazier's conduct at the
doughnut shop is sufficient to establish probable cause.
Since
there was no probable cause to believe that Frazier was committing a crime, the
arrest was unlawful. Since the arrest
was unlawful, the search incident to that arrest was invalid. Thus, the judge's suppression of the cocaine
found during the search of Frazier's handbag was proper as to Frazier.
[7] 2. Donald Johnson. Johnson argues that he has automatic
standing under Commonwealth v. Amendola, supra, to challenge the search of Frazier's
handbag. The Commonwealth contends that,
since Johnson did not have possession of the items seized at the time of the
search, nor was he present at the place where the search was conducted, he does
not have automatic standing to challenge the search.
The
automatic standing rule was enunciated by the Supreme Court in Jones v. United States, 362 U.S. 257,
80 S.Ct. 725, 4 L.Ed.2d 697 (1960). In
Jones, the Court held that defendants charged with crimes of possession
have standing to challenge the search. Id. at 263, 80 S.Ct.
at 732. To hold to the contrary, the
Court concluded, would allow the government to convict a defendant because of
his possession of the seized item, and at the same time to deny the defendant
an opportunity to challenge the search on the ground that he did not have
possession. Id.
The Court reasoned that such a contradictory position by the prosecution[410 Mass. 242] left the defendant with
the unfair dilemma of either incriminating himself by claiming possession of
the contraband, or not claiming possession, and giving up the opportunity to
challenge the search. See id. at 261‑262, 80 S.Ct. at 731.
Twenty
years later, in United States v. Salvucci, 448 U.S. 83, 100 S.Ct.
2547, 65 L.Ed.2d 619 (1980), the Court abandoned the automatic standing
rule. The Court in Salvucci explained that the defendant's
self‑incrimination dilemma, used in
Jones to support the adoption of the automatic standing rule, was
eliminated by the Court's holding in Simmons v. United States, 390 U.S. 377,
88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), that testimony
given by a defendant in support of a motion to suppress cannot be admitted as
evidence of guilt at trial. Salvucci, supra
448 U.S. at 89‑90, 100 S.Ct. at 2551‑52.
In Commonwealth v. Amendola,
supra, we stated our view that the concerns of the Jones Court remain valid today.
In Amendola,
marihuana was found inside the trunk of an automobile which did not belong to
the defendant. We stated that
"[t]he Commonwealth, in order to prove possession, aims to show that the
defendant was the driver of the [automobile] and was in possession of the
contraband. But in arguing against
standing, the Commonwealth claims that the defendant had no connection with the
[automobile] and was not in possession of the contraband. The Commonwealth may not have it both
ways." Commonwealth v. Amendola,
supra 406 Mass. at 600, 550 N.E.2d 121.
We pointed out in Amendola that the defendant's self‑incrimination
dilemma was not eliminated by Simmons,
supra, since "[t]he use of the testimony for impeachment purposes
would subject a defendant to precisely the same dilemma, unless he was prepared
to relinquish his constitutional right to testify in his own defense, and would
thereby create a strong deterrent to asserting [claims under the Fourth
Amendment to the United States Constitution]." Id., quoting United States v. Salvucci,
supra 448 U.S. at 96, 100 S.Ct. at 2555
(Marshall, J., dissenting). We held, as
matter of State constitutional law, that, "[w]hen a defendant 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, the defendant shall be
deemed to have standing to contest the legality of the search [410 Mass. 243] and the seizure of that evidence." Commonwealth v. Amendola, supra 406 Mass. at 601, 550 N.E.2d 121. We added in a footnote, however, that our
adoption of the automatic standing rule was limited to searches of automobiles
and houses. Id. at 601 n. 4, 550 N.E.2d 121. We left "to a case by case analysis the
question whether the rule should be extended to other circumstances where
possession crimes are in issue." Id.
[8][9] The
dispositive issue in determining whether a defendant
has automatic standing is whether "possession of the seized evidence at
the time of the contested search is an essential element of guilt." Amendola, supra at 601, 550 N.E.2d 121. See
Jones v. United States, supra 362 U.S. at 263‑264, 80 S.Ct. at 732.
"Possession implies 'control and power,' ... exclusive or joint
..., or, in the case of 'constructive possession,' knowledge coupled with the
ability and intention to exercise dominion and control."
Commonwealth v. Pratt, 407 Mass. 647, 651, 555 N.E.2d 559 (1990),
quoting Commonwealth v. Brzezinski, 405 Mass. 401, 409, 540 N.E.2d 1325
(1989). The fact that a defendant did
not have actual possession of the seized item at the time of the search, or
that he was not present at the place where the search was conducted, does not
preclude in every instance the defendant from having standing to challenge the
legality of the search. See United States v. Anderson, 552 F.2d
1296, 1298‑1299 (8th Cir.1977) (defendant not present during search but
charged with possession of stolen merchandise has standing under Jones to challenge search of
codefendant's home); Glisson v. United
States, 406 F.2d 423, 427 (5th Cir.1969) (defendant, who was in jail at
time of search, has standing under Jones
to challenge search where charged with possessory
crime). If a defendant is charged with a
crime in which possession is an essential element, the fact that the defendant
did not have actual possession at the time of the search, or the fact that the
defendant was not present when the search occurred, does not eliminate the
problem of allowing the government to [410
Mass. 244] benefit from
contradictory positions, nor does it alleviate the defendant's self‑incrimination
dilemma. (FN3)
Johnson is
charged with two crimes, trafficking in cocaine in violation of G.L. c. 94C, § 32E(b
)(3) (1986 ed.), and conspiracy to traffic in cocaine in violation of G.L. c. 94C, § 40 (1988 ed.). General Laws c. 94C, § 32E(b ), then provided: (FN4) "Any person who trafficks
in cocaine ... [1] by knowingly or intentionally manufacturing, distributing,
or dispensing or [2] possessing with intent to manufacture, distribute, or
dispense or [3] by bringing into the commonwealth a net weight of twenty‑eight
grams or more of cocaine," shall be punished depending on the total weight
of the substance. (FN5) The indictment charging trafficking alleges [410 Mass. 245] that Johnson engaged in activities which fell under one or more
of
the three categories of conduct proscribed by G.L.
c. 94C, § 32E(b ). Since possession is an essential element in
two of the three categories of activities prohibited by the statute, and, since
the facts as alleged by the Commonwealth indicate that Johnson possessed the
seized cocaine with the intent to distribute or dispense it, we conclude that
possession is an essential element of the trafficking charge brought against
Johnson. Therefore, he has standing to
challenge the search of Frazier's handbag as it relates to the trafficking
indictment. (FN6)
[10] We
now turn to the conspiracy charge.
"The heart of a conspiracy is the formulation of the unlawful
agreement or combination. Attorney Gen. v. Tufts, 239 Mass. 458,
493‑494 [132 N.E. 322] (1921). The
law of the Commonwealth does not require an overt act to complete a conspiracy. Commonwealth
v. Harris, 232 Mass. 588, 591 [122 N.E. 749] (1919)."
Commonwealth v. Cantres, 405 Mass. 238,
244, 540 N.E.2d 149 (1989), quoting
Commonwealth v. Pero, 402 Mass. 476, 478, 524
N.E.2d 63 (1988). The Commonwealth,
however, must prove that the defendant combined with another "with the
intention to [commit the object crime]." Commonwealth v. Cantres, supra, quoting Commonwealth v. Zakas, 358 Mass. 265,
269, 263 N.E.2d 446 (1970). Possession
of the cocaine is not an essential element of the conspiracy charge, and,
therefore, [410 Mass. 246] Johnson does not have standing to
challenge the search as it relates to the alleged conspiracy. See, e.g.,
United States v. Rios, 611 F.2d 1335, 1345‑1346 (10th Cir.1979) (no
automatic standing under Jones since
possession of narcotics is not essential element of conspiracy charge);
United States v. Prueitt, 540 F.2d 995,
1004 (9th Cir.1976), cert. denied sub nom. Temple v. United States, 429 U.S. 1063,
97 S.Ct. 790, 50 L.Ed.2d 780 (1977) (same).
3. Conclusion. The police did not have probable cause to
arrest Frazier. Therefore, the search of
her handbag was unlawful, and the evidence properly was suppressed as to her. Johnson had automatic standing to challenge
the search as to the trafficking charge.
Since the search was illegal as to Frazier for lack of probable cause,
it was also illegal as to Johnson. Thus,
Johnson's motion to suppress as it relates to the trafficking charge was
improperly denied. Johnson, however, did
not have standing to challenge the search as to the conspiracy charge. We remand the case for proceedings consistent
with our opinion.
So ordered.
NOLAN,
Justice (dissenting, with whom LYNCH, Justice, joins).
The
purported reason for the "automatic standing" rule is to relieve criminal
defendants from the perceived dilemma they face when seeking to exclude
evidence in this type of crime. In Simmons v. United States, 390 U.S. 377,
88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the United
States Supreme Court held that testimony given by a defendant in support of a
motion to suppress cannot be admitted as evidence of his guilt at trial. The only remaining "dilemma" is
that, if the defendant chooses to testify at trial in a manner inconsistent
with his or her testimony at the suppression hearing, the prior inconsistent
statements may possibly be introduced to challenge the witness's credibility
(this issue has not yet been decided).
Nothing in
the Massachusetts Constitution purports to protect a criminal defendant from
the consequences of his [410 Mass.
247] perjury. The court, however, interprets art. 14 of the
Massachusetts Declaration of Rights to require a special rule designed to
protect those that the court thinks are most likely to perjure themselves. The court holds that, in order to prevent
perjury, the party most likely to commit perjury should be permitted to prevail
without testifying at all. This is a
strange result. Cf. Commonwealth v. Panetti, 406 Mass. 230,
235, 547 N.E.2d 46 (1989) (Nolan, J., dissenting). I enthusiastically dissent from this
unwarranted and unsupported interpretation of our Declaration of Rights.
(FN1.) Two against Donald R. Johnson and one
against Michele Frazier.
(FN2.)
See note 4, infra.
(FN3.)
The United States Supreme Court has linked a defendant's standing to challenge
a search with the issue whether there was a search for Fourth Amendment
purposes. See United States v. Salvucci, supra 448
U.S. at 92‑93, 100 S.Ct. at 2553‑54; Rakas v. Illinois, 439 U.S. 128, 138‑139, 99 S.Ct. 421, 427‑28, 58 L.Ed.2d 387 (1978). The Court has abandoned a separate inquiry
into whether a defendant has standing to challenge the search, and has instead
focused on whether the defendant had a legitimate expectation of privacy in the
area searched. See Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct.
2556, 2561, 65 L.Ed.2d 633 (1980); Rakas v. Illinois,
supra.
We stated in Amendola that
a defendant will have standing to challenge a search if possession is an
essential element of the crime with which he is charged. Amendola,
supra 406 Mass. at 601, 550 N.E.2d 121.
Whether a defendant has standing under Amendola depends on allegations made by
the Commonwealth, not on whether the defendant had a legitimate expectation of
privacy in the area searched. We have,
however, applied the "reasonable expectation of privacy" test to
determine whether there has been a search for Fourth Amendment purposes. See
Commonwealth v. Pina, 406 Mass. 540, 544‑545,
549 N.E.2d 106 (1990); Commonwealth v. Panetti,
406 Mass. 230, 231, 547 N.E.2d 46 (1989).
In cases where possession is an essential element of the crime we think
it is best to separate the issue of standing from the question whether there
has been a search for constitutional purposes.
(FN4.) Johnson was indicted in March,
1988. General Laws c. 94C, § 32E(b ), was rewritten with an emergency
preamble in July, 1988. See St. 1988, c.
124.
(FN5.) In order to establish trafficking under
the statute, the Commonwealth does not have to show continuity of action or
organizational structure. Commonwealth v. Chappee,
397 Mass. 508, 521‑522, 492 N.E.2d 719 (1986). Instead, the Commonwealth must simply show
that the defendant engaged in conduct which violated one of the three
categories of activities set out in the statute. See id.
at 522, 492 N.E.2d 719; Commonwealth v. Silva, 21 Mass.App.Ct. 536, 540‑541 & n. 7, 488 N.E.2d 34
(1986).
(FN6.) The facts in United States v. Fields, 458 F.2d 1194 (3d Cir.1972), cert.
denied, 412 U.S. 927, 93 S.Ct. 2755, 37 L.Ed.2d 154
(1973), are similar to the facts in the instant case. In
Fields, a defendant was charged with trafficking in narcotics in violation
of Federal statutes. The defendant
sought to challenge the search of his travel companion's flight bag. The court stated that, since "actual or
constructive possession of the seized narcotics was an essential element of
each of the two charges upon which [the defendant] ... [was] sentenced to
imprisonment," he was entitled under
Jones to "challenge the search." Id. at 1196. See
United States v. Oates, 560 F.2d 45, 53‑54 (2d Cir.1972) (defendant
charged with possession of heroin with intent to distribute has standing under Jones to challenge search of
companion).
We
do not decide that every defendant charged with trafficking in controlled
substances under G.L. c. 94C, § 32E(b ), has automatic standing to challenge
a search. It is possible, for example,
that the Commonwealth may allege facts involving the distribution or
dispensation of narcotics which do not involve possession as an essential
element.