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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Garcia, 34 Mass.App.Ct.
386 (1993)
Appeals Court of Massachusetts,
Hampden.
No. 92‑P‑501.
Argued
Decided
Kim C. Rosen,
Marcia B. Julian, Asst. Dist. Atty., for the Com.
Before KASS, JACOBS and
GREENBERG, JJ.
[34 Mass.App.Ct. 387]
GREENBERG, Justice.
The
defendant was convicted of five counts (FN1) of various drug‑related
offenses after a jury‑waived trial in a District Court, at which the
Commonwealth relied upon evidence garnered as a result of two discrete warrantless searches:
the first involved Hector Rodriguez, to whom the defendant allegedly
sold cocaine; the second, of the
defendant himself, led to his arrest. At
the trial, the Commonwealth offered evidence in some respects different from
what had been presented to the same judge at the hearing on the defendant's
motion to suppress evidence obtained in the search of his person.
Our task
has been made more difficult because the judge did not make any findings after
he ruled against the defendant on the motion to suppress evidence obtained in
searches of his person and of a nearby mailbox.
(FN2) This failure, which is not,
in and of itself, reversible error, requires us carefully to examine "the
record to see if the findings implicit in the judge's ruling are
supported." Commonwealth v. Gaulden,
383 Mass. 543, 547 (1981). Another part
of the defendant's consolidated appeal, which is addressed to the judge's
denial of his motion for a new trial, is premised on the theory that defense
counsel mistakenly assumed the defendant lacked standing to challenge the
search of Rodriguez. Represented by new
counsel on appeal, he argues that the failure to file a motion to suppress evidence
seized from Rodriguez amounted to ineffective assistance of counsel.
The trial. Following the denial of his suppression
motion, the defendant was convicted: (1)
of the knowing possession of a Class A substance, heroin, and a Class B
substance, cocaine, with intent to distribute both (G.L.
c. 94C, § 32); (2) of separate counts
alleging that those offenses occurred [34
Mass.App.Ct. 388]
within 1,000 feet of school property (G.L. c. 94C, §
32J); and (3) of a single count of
unlawful distribution of a Class B substance, cocaine (G.L.
c. 94C, § 32A). (FN3)
The
Commonwealth's case against the defendant ran as follows. On October 15, 1990, at about 1:00 P.M., a
seven‑person team of police officers was assigned to the surveillance of
a block of apartments on Ferguson Place in Holyoke, an area known by the police
to be favored by drug dealers to hawk their wares. From his vantage in an unmarked cruiser,
Officer Guzman peered through his binoculars and spied the defendant, about 200
feet away, talking to several persons on the sidewalk near the apartment
building. He observed a motor vehicle
driven by a woman pull into a vacant lot in front of No. 3 Ferguson Place. A male occupant, later identified as Hector Rodriguez,
got out of the automobile, engaged the defendant in conversation, and handed
him money. This was followed by their
entrance into No. 3 Ferguson Place. A
moment later Rodriguez‑‑now alone‑‑left the building,
put a small package into his left front pants pocket and departed in the same
vehicle. Believing this to be a drug
transaction, Guzman radioed his observations to the other officers patrolling
the area in unmarked cruisers.
Officers Gelinas and Marouka, who received
Guzman's radio transmissions, stopped the vehicle described in the
message. Rodriguez was asked to step out
and was patted down. Officer Marouka, knowing that Rodriguez had placed something in his
pocket, removed needles and syringes from his left front pocket and Gelinas removed four bags of cocaine (about 6 grams) from
his right front pocket.
While this
was going on, two other officers, Egan and Fletcher, approached the defendant,
who remained on the sidewalk outside No. 3 Ferguson Place which, as it turned [34 Mass.App.Ct.
389] out, was not the defendant's
residence. When questioned, he denied
any knowledge of meeting Rodriguez there and denied selling drugs on October
15. Meanwhile, Egan nosed around the
mailboxes located in the front hallway.
He discovered that inside the only locked mailbox was a magnetic key
case which he could see through the slits.
According to Egan's testimony, it had become a modus operandi of the
drug trade to conceal narcotics inside magnetic key cases. Egan instructed Fletcher to search the defendant
for any item that would unlock the mailbox.
Found in the defendant's pockets were a set of keys and $110 in
cash. Comparing the markings on the
mailbox with those of each of the keys, Egan was able to match one of them, and
managed to open the mailbox, which bore no identification. Within the magnetic key case were three
"bags" of heroin and two "bags" of cocaine. The trial closed on that note.
1. The Failure of Counsel to Contest the
Search of Rodriguez.
Apart from
claimed emanations from the negative decision on the suppression motion defense
counsel did file, the defendant argues that he was denied the effective
assistance of counsel as guaranteed by the Sixth Amendment to the United States
Constitution and art. 12 of the Declaration of Rights of the Massachusetts
Constitution because of trial counsel's failure to move to suppress the cocaine
found on Rodriguez. The defendant
contends that had the search of Rodriguez, which netted the four bags of
cocaine, been successfully challenged, the evidence would have been insufficient
to convict him of cocaine distribution.
Further, the argument goes, all of the other evidence should have been
suppressed as "fruit of the poisonous tree." The Commonwealth, on the other hand,
counters that defense counsel was not ineffective because filing a motion to
suppress the evidence from the search of Rodriguez would have been futile as
the defendant lacked the requisite standing. On this score, we agree with the
Commonwealth's position.
The
defendant does not claim that he had an expectation of privacy to contest the
search of Rodriguez or the automobile[34
Mass.App.Ct. 390] in which he was a passenger; rather, he invokes the automatic standing
rule explicitly recognized under art. 14.
See Commonwealth v. Amendola, 406 Mass. 592, 550 N.E.2d 121 (1990). (FN4)
According to the defendant, the cocaine was taken from Rodriguez's
person after the stop without probable cause.
As the search of Rodriguez resulted in the evidence which linked the
defendant to the officers' earlier observations, and formed the evidentiary
basis of his conviction for unlawful distribution of cocaine, the defendant
claims to have automatic standing.
[1][2] His
argument ignores the central premise of the automatic standing rule; namely, that the crime for which the
defendant is convicted must have as an essential element of guilt, possession
(either actual or constructive) at the time of the contested search. Amendola, supra at 601, 550 N.E.2d 121. Admittedly, possession is an essential
element in one of the categories of activity prohibited by G.L.
c. 94C, § 32A, under which the defendant was convicted. Commonwealth v. Frazier,
410 Mass. 235, 245, 571 N.E.2d 1356 (1991).
However, possession by the defendant of the contraband seized from
Rodriguez was not the subject of any complaint against him. Id. at 245 n. 6, 571 N.E.2d
1356. See Commonwealth v. Scardamaglia, 410 Mass. 375, 379, 573 N.E.2d 5 (1991)
(no tangible evidence seized in the allegedly unlawful stop of a purchaser of
drugs was introduced against the defendant who was charged with the sale);
Commonwealth v. Santaliz, 413 Mass. 238,
240 n. 5, 596 N.E.2d 337 (1992) (FN5)
[34 Mass.App.Ct.
391] As to the transaction with
Rodriguez, the complaint alleged distribution and the evidence at trial was
submitted on that theory. At no time
during the trial did the Commonwealth suggest, or even hint, for purposes of
proving the distribution charge, that the defendant constructively or jointly
possessed the cocaine which he had supposedly sold to Rodriguez. The essence of our holding on this point is
that once possession or a claim of right to possession of the contraband ends,
so does standing to contest the search.
At that stage of the transaction the defendant's interest is in the sale
process‑‑not the drugs.
Consequently, on the record before us, any failure to challenge the
search of Rodriguez was inconsequential and certainly not an instance of
"serious incompetency, inefficiency, or
inattention of counsel‑‑behavior ... falling measurably below that
which might be expected from an ordinary fallible lawyer."
Commonwealth v. Pena, 31 Mass.App.Ct. 201,
204, 575 N.E.2d 774 (1991), quoting from
Commonwealth v. Saferian, 366 Mass. 89, 96, 315
N.E.2d 878 (1974). (FN6) See
Commonwealth v. Mattos, 404 Mass. 672, 680, 536
N.E.2d 1072 (1989); Commonwealth v. Wright, 411 Mass. 678,
687, 584 N.E.2d 621 (1992).
2. Search of the Defendant and the Mailbox.
The next
claim of error concerns the judge's denial of the motion to suppress evidence‑‑cocaine
and heroin‑‑seized without a warrant from the defendant's
mailbox. The defendant claims that the
officers' actions do not fall within any recognized exception to the warrant
requirement. The Commonwealth responds
that the defendant had no expectation of privacy in the mailbox and the key
case found inside it. In our review of
the judge's ruling on the suppression motion, we may not rely on the facts as
developed at trial. Commonwealth v. Singer, 29 Mass.App.Ct. 708, 709 n. 1, 564 N.E.2d 1037 (1991), and
cases cited. As we observed earlier in
this opinion, the [34 Mass.App.Ct. 392]
testimony presented at the suppression hearing differed in some material
aspects from that received at trial.
At the
suppression hearing Officer Guzman testified that during the surveillance he
observed the defendant walking in and out of No. 3 Ferguson Place several
times. Guzman also testified that the
defendant and Rodriguez merely had a conversation after Rodriguez got out of
the car. He did not testify that he saw
Rodriguez hand the defendant money, or that he saw Rodriguez put a small packet
in his pocket. Rather Guzman stated that
he saw Rodriguez put "something" in his pocket. Officer Fletcher stated at the suppression
hearing that, as a result of his subsequent search of Rodriguez, he found
heroin, rather than cocaine, as well as needles and a syringe.
As to what
preceded the search of the mailbox, Fletcher testified that, after a brief
conversation, he collared the defendant on the sidewalk and obtained the keys
as a result of a "pat‑down" search. There was no testimony offered by any of the
officers that they suspected any contraband to be found in the mailbox before
it was searched. Nor was there any
evidence that the mailbox and the keys found on the defendant had similar
markings. Finally, it is unclear from
the hearing transcript whether the defendant was in the vicinity of the mailbox
when the search took place.
[3] a.
Expectation of privacy. We
conclude that the mailbox was constitutionally protected here because the
defendant had a reasonable expectation of privacy in that area. In order for the Fourth Amendment or art. 14
to be implicated, the defendant must show that he subjectively believed he had
a privacy interest in the thing searched and that this expectation is one
society is prepared to recognize as reasonable. Commonwealth v. Cadoret, 388 Mass. 148, 150, 445 N.E.2d 1050 (1983).
[4][5]
Unquestionably the defendant thought he had a privacy interest, because he
locked the mailbox in order to keep others out.
Security of one's mail is an interest which society [34 Mass.App.Ct. 393] recognizes as reasonable.
(FN7) Even though the defendant
was not a tenant in the building and the hallway of the building was a place
accessible to the public, the defendant's privacy interest in the mailbox is
not diluted. See Commonwealth v. Montanez, 410 Mass. 290, 571 N.E.2d 1372 (1991).
It strikes
us as elementary that the receipt of letters and sealed packages is inherently
private; mail has long been recognized
as deserving of Fourth Amendment protection.
See United States v. Jacobsen,
466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85
(1984). Since a mailbox is the natural
repository of these protected "effects," it should be accorded the
same special protection. It shares characteristics
with a locked footlocker or a rental locker found in public places, in which a
defendant has been held to have an expectation of privacy. United States v. Chadwick,
433 U.S. 1, 11, 97 S.Ct. 2476, 2483, 53 L.Ed.2d 538
(1977) (locked footlocker at airport). Commonwealth v. Weiss, 370 Mass. 416,
419 (1976) (rental locker at an airport).
[6] b.
Search incident to arrest.
The Commonwealth suggests as an alternative argument that the search was
incident to the defendant's arrest. Even assuming the police had probable cause
to arrest the defendant, the Commonwealth's argument fails. (FN8)
[7] The
defendant concedes that he was under arrest when he was searched. A search incident to an arrest
"generally is limited for purposes of both the Fourth Amendment ... and art.
14 ... to the body of the person arrested and the area and items within his or
her immediate possession and control at the time." Commonwealth v. Santiago,
410 Mass. 737, [34 Mass.App.Ct. 394]
743, 575 N.E.2d 350 (1991), and cases cited.
Hence, the search of the defendant which led to the seizure of his keys
and the $110 cash was justifiable.
However, after his arrest, the mailbox and magnetic key case were not
within the defendant's immediate control and, consequently, a warrantless search of those areas was not justified. Whether the defendant was standing inside the
hallway where the mailboxes were located or standing outside of the building is
of no consequence. In either event, the
defendant could not have gained access to the locked mailbox and the key case
inside; and he did not pose any threat
that the evidence might be destroyed.
See Commonwealth v. Cohen, 359
Mass. 140, 268 N.E.2d 357 (1971) (sugar cubes containing LSD found in
refrigerator of defendant's apartment kitchen were not within defendant's
immediate control even though defendant was seated at the kitchen table). See also,
Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969) (there is no
justification for police officers to search through desk drawers or closed or
concealed areas within the room in which the defendant is found). Contrast
Commonwealth v. Madera, 402 Mass. 156, 161, 521 N.E.2d 738 (1988) (search
of gym bag defendant was carrying was
justified as search incident to arrest).
[8] c. Exigent
circumstances. Short of a search
incident to arrest, the Commonwealth asserts that exigent circumstances
justified the search. Under this
exception, "there must be a showing that it was impracticable for the
police to obtain a warrant and the standards as to exigency are strict."
Commonwealth v. Huffman, 385 Mass. 122, 124‑125, 430 N.E.2d
1190 (1982), quoting from Commonwealth v.
Forde, 367 Mass. 798, 800, 329 N.E.2d 717
(1975). To find a situation exigent
there must be a specific threat that " 'based on the surrounding
circumstances or the information at hand' it is reasonably concluded that 'the
evidence will be destroyed or removed before ... [the police] can secure a
search warrant.' " Huffman, supra 385 Mass. at 126, 430
N.E.2d 1190 [citation omitted]. See also Commonwealth v. Olivares, 30 Mass.App.Ct. 596, 599, 571 N.E.2d 416 (1991).
The record
is devoid of any evidence that the mailbox and its contents would soon be
removed or that it would have been impracticable to get a search warrant. The search took [34 Mass.App.Ct. 395] place at 1:00 P.M., while the Holyoke District Court was open for
business. It is safe to say that at
least four officers were present on the scene to secure the foyer, while
another could have obtained a warrant.
(FN9) Finally, there was no
testimony as to the existence of any accomplices or anyone who posed even a
remote threat to the evidence. See Commonwealth v. Hall, 366 Mass. 790,
803 n. 16, 323 N.E.2d 319 (1975); Huffman, supra 385 Mass. at 126, 430 N.E.2d
1190. Contrast Commonwealth v. Amaral, 16 Mass.App.Ct. 230, 234, 450 N.E.2d 656 (1983).
Since the
Commonwealth has failed to meet its burden of justifying the warrantless search of the mailbox and the key case, the
motion to suppress the cocaine and heroin found inside should have been
allowed.
Huffman, supra 385 Mass. at 127, 430 N.E.2d 1190 and cases
cited. The judge's ruling was incorrect.
3. Required Finding of Not Guilty.
[9] Even
if the cocaine and heroin found in the mailbox had been suppressed, the judge
would still have been amply warranted in denying the defendant's motion (made
at the close of the Commonwealth's case) for a required finding of not guilty
on the distribution charge. If brought
home to the defendant, the evidence that he had just been seen with Rodriguez
by experienced drug enforcement officers inside a building known by them as a
haven for drug sellers; the observations
of one officer who witnessed Rodriguez give money to the defendant and then
walk out as he was placing a small packet into his front pocket; and the search of Rodriguez which revealed
cocaine and the paraphernalia associated with its use, satisfied the standard
under Commonwealth v. Latimore,
378 Mass. 671, 676‑677, 393 N.E.2d 370 (1979). The judge also heard the testimony of the
officers who searched the defendant and discovered on his person a substantial
amount of hard cash. Cf. Commonwealth v. Crespo,
3 Mass.App.Ct. 497, 501, 334 N.E.2d 641 (1975). Nor is this a situation where it was equally
plausible, as the defendant contends, that he had just purchased drugs because
none were found on his person. [34 Mass.App.Ct.
396] Contrast Commonwealth v. Reid, 29 Mass.App.Ct.
537, 538‑539, 562 N.E.2d 1362 (1990).
There was no error.
Conclusion. Had the defendant's motion to suppress the
evidence seized from the mailbox been successful, the twin charges of unlawful
possession of cocaine and heroin with intent to distribute would lack
evidentiary support. Therefore, we are
required to reverse both convictions, as well as those which alleged that the
underlying offenses occurred within 1,000 feet of school property. The judgments on those four counts are
reversed and the findings are set aside;
judgments are to enter for the defendant. The judgment founded on the judge's finding
of guilty of unlawful distribution of cocaine is affirmed.
So ordered.
(FN1.) Two of the convictions were filed, but
as the record does not reflect that the defendant consented to the filing, we
review those convictions as well. Commonwealth v. Paniaqua,
413 Mass. 796, 797 n. 1, 604 N.E.2d 1278 (1992). See
Commonwealth v. Cogswell, 31 Mass.App.Ct.
691, 695, 583 N.E.2d 266 (1991).
(FN2.)
The Supreme Judicial Court has repeatedly said that it is both
"prudent" and "desirable" for a judge to make findings at
the conclusion of the suppression hearing. Commonwealth v. Forrester, 365 Mass. 37,
45, 309 N.E.2d 190 (1974), citing
Commonwealth v. Cook, 351 Mass. 231, 234, 218 N.E.2d 393 (1966).
(FN3.)
The defendant was also charged with a separate count of unlawful distribution
of heroin, a Class A substance, under G.L. c. 94C, §
32A, which resulted in a required finding of not guilty. Additionally, the defendant was charged with
conspiracy to violate the controlled substances laws, G.L.
c. 94C, § 40, but the District Court lacked jurisdiction over this offense and
the judge dismissed that count prior to the trial, see G.L.
c. 218, § 26.
(FN4.)
In Amendola,
the police searched two automobiles, finding narcotics in one and a scale in
the other. The defendant disclaimed any
interest in the drugs, the scale, or the automobiles, and the judge denied his
motion to suppress. The Supreme Judicial
Court held that the defendant had automatic standing to challenge the search of
a vehicle driven by him in which the drugs were found, but that he had to show
a legitimate expectation of privacy in the automobile in which the scale was
found because the possession of the scale was not an essential element of proof
for any of the offenses charged.
(FN5.) Frazier held that the defendant had
standing to contest the search where he was convicted of trafficking based upon
cocaine seized from the handbag of a woman with whom he was acting in concert,
although he was not present at the place where the search was conducted. In Santaliz, the defendant was granted standing to
challenge the search of his companion as he was charged with possession of
heroin with intent to distribute on the basis that he had joint possession of
the heroin found on his companion. He
and his companion had just completed a transaction with a passenger in a taxi.
(FN6.)
The defendant does not argue that he had a supportable basis to contest the
search of the passenger in connection with his conviction of possession with intent
to distribute a Class B substance.
(FN7.) For a discussion of factors to examine
when determining if the defendant has an expectation of privacy in the area
searched see Commonwealth v. Pina, 406 Mass. 540, 545, 549 N.E.2d 106, cert. denied,
498 U.S. 832, 111 S.Ct. 96, 112 L.Ed.2d 67 (1990),
and cases cited therein.
(FN8.) "[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. Santaliz, 413 Mass. 238,
241, 596 N.E.2d 337 (1992). Probable
cause can be based upon the collective knowledge of the police officers engaged
in a joint effort. Commonwealth v. Gullick,
386 Mass. 278, 283, 435 N.E.2d 348 (1982).
(FN9.) There was no evidence that the police
department was short‑handed or that the officers were called away to
another location.