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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. Johnson, 413
Supreme Judicial Court of Massachusetts,
Argued
Decided
[413
Roger L. Michel, Jr., Asst. Dist. Atty., for Com.
Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY,
JJ.
LYNCH, Justice.
The
defendant was found guilty by a jury of trafficking in cocaine, possession of
marihuana, (FN1) and carrying a firearm without a license. On appeal he argues that the trial judge, who
was also the motion judge, erred in: (1)
denying his pretrial motion to suppress evidence seized from his person and
automobile without a warrant; (2)
admitting police testimony at trial concerning the packaging and purity of
cocaine; and (3) refusing to give an
instruction that the defendant's transfer of drugs to other joint possessors
strictly for personal use does not constitute distribution for purposes of the
trafficking charge. A stay of execution
of sentences was granted by a single justice of the
1. Motion to suppress. We summarize the facts found by the
judge. At approximately
[413 Mass. 600] As Officers Flynn, Martin, and McGill ran up to the automobile,
Officer Flynn saw the defendant "placing something inside his waistband of
his pants." Officer Flynn yelled
that the defendant was putting something inside his pants, drew his weapon and
told the defendant to "freeze."
Officers Martin and McGill pulled the defendant from his
automobile. (FN2) Officer McGill frisked the defendant and
withdrew a plastic bag containing a lump of white powder and six small paper
folds from the defendant's pants. The
officers also found three bullets in a pouch strapped around the defendant's
waist under his shirt. The defendant was
arrested, handcuffed, and placed in the cruiser.
Officer
McGill then searched the defendant's automobile and found a handgun under the
driver's seat.
[1] a. Stop and frisk. The defendant does not dispute the motion
judge's ruling, citing Terry v. Ohio,
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968);
Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), that, "[w]here the
Alfa‑Romeo had failed to stop until it was forced to do so, and where the
defendant was seen reaching for the waist area of his pants, the police were
justified in removing him from the car and conducting a limited pat/frisk of
his person." The defendant
contends however that the scope of the search exceeded permissible grounds
because the Commonwealth has failed to show that Officer McGill believed the
concealed package he felt while frisking the defendant was a weapon.
If the stop was justified, the officers could take reasonable
precautions for their own protection. Commonwealth v. Robbins, 407 Mass. 147,
151, 552 N.E.2d 77 (1990). We conclude
that the motion judge properly admitted the evidence.
The issue
is whether all the circumstances faced by the officer, taken together,
"are enough to warrant belief by a 'reasonably prudent man ... that his safety
or that of others was in danger.' " Commonwealth v. Fraser, 410 Mass. [413 Mass. 601] 541, 546, 573 N.E.2d 979 (1991), quoting Terry v. Ohio, supra, 392 U.S. at 27, 88 S.Ct.
at 1883. We believe the circumstances
justified the officer's actions. Commonwealth v. Sumerlin,
393 Mass. 127, 129, 469 N.E.2d 826 (1984), cert. denied, 469 U.S. 1193, 105 S.Ct. 972, 83 L.Ed.2d 975 (1985). The officers were faced with an individual
who, while driving at a high rate of speed, almost hit their unmarked vehicle. He then attempted to evade the police and was
only stopped after a police cruiser forced him to the curb. As the officers ran toward the defendant's
vehicle, they saw the defendant reaching into his pants. In these circumstances it was not necessary
for the judge to have specifically found that the officer believed that the
bulge inside the defendant's pants was a weapon. "[I]t was necessary for the protection
of [the officer] and others to take swift measures to discover the true facts
and neutralize the threat of harm if it materialized." Terry v. Ohio, supra, 392
U.S. at 30, 88 S.Ct. at 1884.
Furthermore,
we note that "[t]o all of these facts the officer [was] entitled to apply
[his] police experience." Commonwealth v. Sumerlin,
supra, 393 Mass. at 130, 469 N.E.2d 826, quoting Commonwealth v. Silva, 366 Mass. 402, 407, 318 N.E.2d 895
(1974). Indeed, Officer McGill "had
no more than a few seconds in which to assess the extent, if any, of the
danger, and to ascertain the most effective and least intrusive means of
protecting himself." (FN3)
Commonwealth v. Sumerlin, supra, 393 Mass.
at 129‑130, 469 N.E.2d 826.
Moreover, the officer did not conduct a general exploratory search for
whatever evidence of criminal activity he might find. Terry v. Ohio, supra, 392
U.S. at 30, 88 S.Ct. at 1884. Rather, the search was " 'strictly tied
to and justified by' the circumstances which rendered its initiation
permissible." Commonwealth v. Silva, supra, 366 Mass.
at 407, 318 N.E.2d 895, quoting Terry v.
Ohio, supra, 392 U.S. at 19, 88 S.Ct. at
1878. The officer sought only to
ascertain what the object was that he had seen the defendant hiding inside his
pants. The officer "confined his
search strictly to what was minimally necessary to learn whether the[413 Mass. 602] [defendant was]
armed." Terry v. Ohio, supra at 30, 88 S.Ct. at 1884. See Commonwealth v. Robbins, supra, 407
Mass. at 151, 552 N.E.2d 77.
Given the
circumstances faced by the officers in this case, they were warranted for their
own protection in finding out what the defendant had concealed inside his
pants. Police officers are "not
required to gamble with their personal safety." Commonwealth v. Robbins, supra
at 152, 552 N.E.2d 77.
[2] b. Search incident to arrest. Although the judge found that the defendant
was arrested after the search, the circumstances disclose that the seizure of
the concealed bag of cocaine was also justified as a search incident to lawful
arrest under G.L. c. 276, § 1 (1990 ed.). The officers had probable cause to arrest the
defendant for operating to endanger.
When the defendant was observed placing something inside his pants,
Officer Martin opened the driver's door of the vehicle and pulled the defendant
from the automobile. From this point
forward the defendant was effectively under arrest. The fact that the search preceded the formal
arrest is not important, "as long as probable cause [to arrest] existed
independent of the results of the search." Commonwealth v. Santiago,
410
Mass. 737, 742, 575 N.E.2d
350 (1991), quoting Commonwealth v. Brillante, 399 Mass. 152, 154‑155 n. 5, 503
N.E.2d 459 (1987). Since the purpose of
the subsequent search was to identify the object the defendant attempted to
conceal inside his pants, the cocaine was discovered in the course of a search
conducted for the purpose of removing any weapon that might be used to resist
arrest or to effect escape. (FN4) Thus, the subsequent seizure of the cocaine
was proper as an incident to the lawful arrest of the defendant. (FN5)
[413 Mass. 603] [3] Once the officers discovered the cocaine, they had probable
cause to arrest the defendant on a controlled substance charge and conduct a
further search incident to arrest for "other evidence of the crime for
which the arrest has been made." G.L. c. 276, § 1.
The search of the pouch strapped around defendant's waist for drugs and
the subsequent seizure of the bullets were therefore proper. (FN6)
The defendant contends that, because the initial search was illegal, the
subsequent seizure of the weapon and the bullets was also improper. Since we conclude that the initial pat frisk
was proper, we need not address the issue.
[4] 2. The police officer's testimony. The defendant argues that it was error to
permit a police detective to testify that, in his opinion, the manner in which
the cocaine possessed by the defendant was packaged was consistent with an
intent to distribute. There was no
error.
The
detective had been a police officer for ten years and assigned as a detective
to the drug control unit for two years.
He had participated in hundreds of drug investigations and had received
specialized training. The judge allowed
the prosecutor to qualify the officer and permitted him to testify as an
expert. (FN7) See
Commonwealth v. Salcedo, 405 Mass. 346, 350, 540
N.E.2d 1304 (1989) ("It is evident from the transcript that the [413 Mass. 604] judge believed the ... officer was qualified, and his allowing
the testimony implies he made that finding").
[5] The
use of narcotics investigators to testify in this manner as experts in drug
cases has been consistently upheld. Commonwealth v. Montanez, 410 Mass. 290,
305, 571 N.E.2d 1372 (1991). Commonwealth v. Johnson, 410 Mass. 199,
202, 571 N.E.2d 623 (1991). The
admission of such evidence is largely within the discretion of the judge, whose
ruling will be reversed only where the admission constitutes an abuse of
discretion or error of law. Commonwealth v. Johnson, supra, citing Commonwealth v. Pikul,
400 Mass. 550, 553, 511 N.E.2d 336 (1987).
[6] 3. The challenged instruction. The defendant claims the judge improperly
instructed the jury on the meaning of the word "distribute" as
contained in the trafficking statute, G.L. c. 94C, §
32E (b ) (1990 ed.). The judge instructed the jury: "The word distribute includes all forms
of physical transfer. It is unlawful for
a person to even make a gift of a controlled substance." He also instructed them, "Where two or
more persons simultaneously and jointly acquire possession of a drug for their
own use intending only to share it together, their only crime is simple joint
possession. But that [is] only limited
to the situation when the persons acquire the drug simultaneously at the
outset, when the persons are there at the acquisition together and
simultaneously acquire."
The
defendant requested that the judge instruct the jury to the effect that where
two or more persons contribute money to acquire drugs but only one person
carries out the purchase, they are guilty of mere possession since they are coowners of the drugs from the outset and intend only to
share the drugs and not to distribute them.
(FN8) We conclude that the
judge's instructions were proper.
[413 Mass. 605] In order to convict a defendant of possession with intent to
"distribute" the Commonwealth must prove that the defendant delivered
or intended to deliver the substance "other than by administering or
dispensing a controlled substance."
G.L. c. 94C, § 1 (1990 ed.). The term "[d]eliver"
is defined as "to transfer, whether by actual or constructive transfer, a
controlled substance from one person to another, whether or not there is an
agency relationship." Id.
Thus, to purchase the substance, even with friends' money, intending to
transfer it to them, constitutes distribution within the meaning of the
trafficking statute. See Commonwealth v. Poole, 29 Mass.App.Ct. 1003, 1004, 563 N.E.2d 253 (1990) (defendant's
storing marihuana with intention "to transfer" it back to owner
constituted distribution). The
defendant's reliance on United States v. Swiderski, 548 F.2d 445 (2d Cir.1977), is
misplaced. See note 8, supra.
A review of the Federal decisions construing United States v. Swiderski, reveals that
its holding has been "limited to the passing of a drug between joint
possessors who simultaneously acquire possession at the outset for their own
use." United States v. Rush, 738 F.2d 497, 514
(1st Cir.1984) quoting Swiderski, supra at 450‑451. See
United States v. Wright, 593 F.2d 105, 108 (9th Cir.1979) (Swiderski not
applicable where drug not "simultaneously and jointly"
acquired). The denial of the requested
instruction was therefore proper.
In sum, we
uphold the denial of the motion to suppress and conclude that the judge
properly admitted the police officer's [413
Mass. 606] testimony and instructed
the jury. Accordingly, we affirm.
So ordered.
(FN1.) The indictment charging possession of
marihuana was placed on file with the defendant's consent and is not part of
the appeal.
(FN2.)
In his findings the judge referred to Martin as the officer who pulled the
defendant from his automobile and frisked him.
However, the evidence presented at the hearing indicates that Officer
McGill, along with Martin, removed the defendant from the vehicle, and that
McGill frisked the defendant.
(FN3.)
"The officer could reasonably have taken into account the 'inordinate risk
confronting an officer as he approaches a person seated in an automobile.'
"
Commonwealth v. Sumerlin, 393 Mass. 127,
130, 469 N.E.2d 826 (1984), quoting Pennsylvania v. Mimms,
434 U.S. 106, 110, 98 S.Ct. 330, 333, 54 L.Ed.2d 331
(1977).
(FN4.)
General Laws c. 276, § 1 (1990 ed.), states in pertinent part: "A search conducted incident to arrest
may be made only for the purposes of seizing fruits, instrumentalities ... and
removing any weapons that the arrestee might use to resist arrest or effect his
escape."
(FN5.)
General Laws c. 276, § 1, does not make inadmissible any evidence seized in a
search incident to an arrest that is not evidence related to the crime which
justified the arrest. See Commonwealth v. Puleio,
6 Mass.App.Ct. 909, 378 N.E.2d 999 (1978) (handgun,
discovered on defendant's person during a "pat down" which was
conducted for concealed weapons, admissible even though the defendant had been
arrested for attempting to steal a wheel from a parked motor vehicle).
This case
must be distinguished from searches, incident to a defendant's arrest, of
closed containers, luggage, and the like, that are not on the defendant's
person and that cannot contain weapons that might be used to escape. See Commonwealth v. Rostad,
410 Mass. 618, 574 N.E.2d 381 (1991); Commonwealth v. Ferguson, 410 Mass. 611,
574 N.E.2d 990 (1991).
(FN6.)
Mere references in the defendant's brief and at oral argument to art. 14 of the
Massachusetts Declaration of Rights do not rise to the level of appellate
argument. See Mass.R.A.P.
16(a)(4), as amended, 367 Mass. 921 (1975).
Neither was the issue of an art. 14 violation effectively argued
below. Accordingly, this argument is
deemed to be waived. Commonwealth v. Lydon,
413 Mass. 309, 318, 597 N.E.2d 36 (1992). Haran v. Board of
Registration in Medicine, 398 Mass. 571, 581 n. 7, 500 N.E.2d 268 (1986).
(FN7.) The judge overruled defense counsel's
objection to the qualification of the officer as an expert. The judge then overruled defense counsel's
objection to the officer's testifying that the purity of the cocaine was
consistent with distribution. The judge
next overruled counsel's objection to the officer's testifying that the
packaging of the cocaine was not consistent with personal use.
(FN8.) The defendant requested that the judge
instruct the jury in part as follows:
"Trafficking
in a controlled substance is possession of the controlled substance over a statutory
amount for commercial or business like distribution and is differentiated from
mere possession of the illegal substance for personal use. United States v. Swiderski, 548 F.2d 445 (2d Cir.1977).
"To
find that the defendant has violated the trafficking statute you must find that
the defendant had a financial interest in the transaction or that he was
employed or engaged in the enterprise or commercial aspect of distributing the
controlled substance for personal or financial gain apart from mere possession
and personal use of the controlled substance. Commonwealth v. Harvard,
356 Mass. 452, 253 N.E.2d 346 (1969)....
"....
"If
the parties involved acquire possession from the outset and none intends to
distribute the narcotic substance to any other person, they do not serve as a
link in the chain of drug distribution."