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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Sweezey, 50 Mass.App.Ct. 48 (2000)
Appeals Court of Massachusetts,
No. 95‑P‑173.
Argued
Decided
Francis T. O'Brien, Jr.,
Present:
JACOBS, GILLERMAN, & BECK, JJ.
JACOBS, J.
Following
the denial of his motion to suppress, the defendant was convicted by a Superior
Court jury of trafficking in over 200 grams of cocaine. (FN1)
We affirm his conviction, addressing the four issues raised.
[50 Mass.App.Ct. 49] 1. Denial of motion to
suppress. The defendant argues that
the police were without probable cause to arrest him or to search for the
cocaine, and that the judge erroneously denied his motion to suppress
the cocaine and certain statements he made at the time of his arrest.
We
summarize the facts from the judge's supported findings, (FN2) which we
supplement with uncontested testimony.
The two
cars stopped after traveling a short distance.
The officers saw the defendant leave his car, walk to the
The judge
decided alternatively (1) that no seizure occurred prior to the defendant's
attempt to get away because the officers "merely approached his car while
it was already stopped," and (2) in any event, that an investigative stop
of the vehicle would have been valid because the officers had a reasonably
articulable suspicion of criminality
based on their observations of the defendant made before they attempted to
approach him. The judge further
concluded that the officers had probable cause to arrest for assault and
battery when the defendant hit one of them with the Cadillac and that the
search of the Cadillac was valid as a search incident to a lawful arrest.
The
defendant argues that the judge erred in concluding that the search for drugs
was incident to the arrest for assault and battery on the officer. (FN6)
He correctly claims that G.L. c. 276, § 1, (FN7) which governs a search
incident to an arrest, does not [50
Mass.App.Ct. 51] support the seizure
of the cocaine as incident to his arrest for assault and battery because the
cocaine was not an instrumentality of that crime and the entry into his
vehicle, in the circumstances, cannot be justified as a search for weapons. See
Commonwealth v. Madera, 402 Mass. 156, 159, 521 N.E.2d 738 (1988)
("Section 1 [of G.L. c. 276] requires the exclusion of evidence [not
otherwise admissible] of an unrelated crime found during a search incident to a
lawful arrest unless the search was conducted to gather evidence of the first
crime or to look for weapons"). He
also argues the police impermissibly stopped and arrested him.
There was
no error, however, because probable cause to arrest and search the defendant
for illegal drug possession existed independently of the probable cause to
arrest him for assault and battery.
(FN8) See Commonwealth v. Sanchez, 403 Mass. 640, 646 n. 4, 531 N.E.2d 1256
(1988) (although the defendant was arrested for assault and battery, police
testimony, if credited, would have supported findings to the effect that there
was probable cause to arrest for possession of illegal drugs).
[1][2] The
scenario observed by the officers, filtered through the lens of their
experience, amply supports the judge's alternate conclusion that the officers' partial
encirclement of the Cadillac was a proper investigative stop and not an
unlawful arrest as argued by the defendant.
See Terry v. Ohio, 392 U.S. 1,
21‑22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Riggins,
366 Mass. 81, 86, 315 N.E.2d 525 (1974) (Terry
principles are applicable to automobile stops).
"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. Moses, 408 Mass. 136, 140, 557 N.E.2d 14 (1990),
quoting from Commonwealth v. Wren,
391 Mass. 705, 707, 463 N.E.2d 344 (1984).
Although the conclusory testimony of the officers to the effect that
they [50 Mass.App.Ct. 52] had witnessed a drug transaction, see
note 4, supra, may not have revealed
their inferential processes sufficiently to establish probable cause to arrest,
compare Commonwealth v. Kennedy, 426
Mass. 703, 705‑706, 690 N.E.2d 436 (1998), the actions they observed‑‑the
apparent signal to the defendant in an area known for high drug activity,
combined with the defendant following the Monte Carlo, interacting with its
occupants, and then returning to his car carrying a paper bag‑‑viewed
in the light of common sense and the officers' experience, constitute specific,
articulable facts supporting a reasonable suspicion of ongoing
criminality. While this activity may
have been consistent with innocent activity, the conclusion drawn by the
officers was substantially more than a hunch. Id. at 705 n. 2, 690 N.E.2d
436.
[3][4][5]
The defendant's abrupt attempt to evade the officers while they were
approaching and after they identified themselves as police, properly may be
viewed as elevating the officers' reasonable suspicion of drug activity to the
level of probable cause justifying an arrest for possession of illegal
drugs. (FN9) See
Commonwealth v. Va Meng Joe, 425 Mass. 99, 106, 682 N.E.2d 586 (1997)
("Since there is no doubt that the initial stop was justified, events subsequent
to the lawful stop, coupled with the factors that supplied the police officers
with ample reasonable suspicion to make the investigatory stop, provided the
police officers with probable cause to arrest and search the defendant"); 2 LaFave, Search and Seizure § 3.6(e), at 324
(3d ed. 1996) ("[I]f there already
exists a significant degree of suspicion concerning a particular person, the
flight of that individual upon the approach of the police may be taken into
account and may well elevate the pre‑existing suspicion up to the
requisite Fourth Amendment level of probable cause"). See also
Commonwealth v. Ortiz, 376 Mass. 349, 354 & n. 3, 380 N.E.2d 669
(1978). (FN10)
[6] The
existence of probable cause to arrest the defendant for possession of drugs
entitled the officers to conduct a search for [50 Mass.App.Ct. 53]
drugs notwithstanding that the stated ground for arrest was assault and
battery. See Commonwealth v. Lawton, 348 Mass. 129, 133, 202 N.E.2d 824 (1964)
("If the facts known to the officer reasonably permitted a conclusion that
probable cause existed for a [drug charge], the arrest should be treated as
legal even though he at first assigned another ground"). See also
Commonwealth v. Peters, 48 Mass.App.Ct. 15, 21‑22, 717 N.E.2d 266
(1999). In these circumstances, G.L. c.
276, § 1, permits the search for contraband to extend to the area of the
driver's seat, (FN11) i.e., the area in the car under the defendant's immediate
control. See Commonwealth v. Brillante, 399 Mass. 152, 155 & n. 6, 503
N.E.2d 459 (1987) (in similar circumstances, a search of a tote bag under the
driver's seat was not prohibited by G.L. c. 276, § 1, because it was for
"the purpose of seizing contraband which the [police] had probable cause
to believe might be in the tote bag"); Commonwealth v. Mantinez, 44 Mass.App.Ct.
513, 517‑518, 692 N.E.2d 92 (1998) ("Probable cause for an arrest,
even if not acted upon by a formal arrest, brings with it the 'search incident
to arrest' exception to the warrant requirement for a search").
[7][8]
Because the propriety of the search in issue is dependent upon whether there
was probable cause to arrest the defendant for possession of drugs immediately after he attempted to evade the
officers, there is no need to focus upon whether or when a seizure occurred
beyond noting that the approach toward the defendant's vehicle by the officers did
not constitute an arrest. The test is
whether "[t]he degree of intrusiveness on a citizen's personal security,
including considerations of time, space, and force, [is] proportional to the
degree of suspicion that prompted the intrusion." Commonwealth v. Borges, 395
Mass. 788, 794, 482 N.E.2d 314 (1985).
"The pertinent inquiry is whether the degree of intrusion is
reasonable in the circumstances." Commonwealth v. Moses, 408 Mass. at 141,
557 N.E.2d 14. Here, the stop of the
defendant's vehicle occurred without police intervention and the officers, in
plain clothes, merely approached the stopped vehicle and, without displaying
weapons, yelled "police."
This moderate investigative initiative was reasonable and proportional
in light of the officers' articulable suspicion that the defendant had
committed or was committing a crime.
Compare id. at 141 n. 4, 557
N.E.2d 14. [50 Mass.App.Ct. 54] Contrast Commonwealth v.
Stawarz, 32 Mass.App.Ct. 211, 214, 587 N.E.2d 797 (1992).
[9] 2. Claim of reversible error in calling
defendant to sidebar. Following the
testimony of a witness called by the defendant and while the jurors were in the
courtroom, the judge conducted a sidebar colloquy directly with the defendant,
and determined that he chose not to testify.
(FN12) After the colloquy, the
judge asked in open court if there were any further witnesses. Defense counsel answered in the negative and
informed the judge that the defendant rested.
The prosecutor then informed the judge that the Commonwealth had no
rebuttal witnesses. The defendant argues
that his motion for a mistrial, filed the next morning, should have been
allowed. He claims the jury, having seen
him at sidebar at that late juncture of the trial, necessarily inferred he was
invoking his right not to testify, resulting in prejudice to him equivalent to
that which would have occurred if he had invoked that right in open court.
As requested
by the defendant, the judge agreed to give a particular instruction to the jury
concerning the right not to testify, and did so. He also instructed that no inference was to
be drawn from sidebar discussions. The
defendant points to nothing else at trial that would adversely reflect on his
decision not to testify. Although the
clearly preferred practice is to conduct such a colloquy out of the presence of
the jury, in the circumstances where there is no indication the colloquy was
heard by the jurors, and it is entirely speculative that the defendant suffered
any prejudice from what they observed, we conclude the judge did not abuse his
discretion in denying the motion for a mistrial. See
Commonwealth v. Kilburn, 426 Mass. 31, 37‑38, 686 N.E.2d 961 (1997).
[10] 3. Claimed instructional error. The defendant claims it was
"inconsistent and unfair" to instruct the jury that they could infer
intent to distribute on the basis of weight and purity of the cocaine, but that
the Commonwealth was not required to prove the defendant knew its weight. He claims that where the proof [50 Mass.App.Ct. 55] of intent to distribute is entirely
circumstantial, proof of knowing and intentional possession of cocaine is
required. There is no merit in this
argument nor has any authority for it been brought to our attention. In a trafficking prosecution, "the
Commonwealth need not prove that the defendant had actual knowledge of the
quantity [of cocaine]." Commonwealth v. Rodriguez, 415 Mass. 447,
453, 614 N.E.2d 649 (1993). It follows
that "[t]he judge was not required to instruct the jury that the defendant
had to have actual knowledge [of] the quantity of cocaine...."
Ibid. In any event, the jury
reasonably could conclude from the circumstances in which the defendant
obtained the brown paper bag and from his handling it that he knew it contained
a large quantity of a controlled substance.
4. Claim of error in applying credits to
sentence. The defendant argues he
did not receive proper credit against his sentence for the time he was in
custody prior to his conviction. He
points out that this issue was raised before the trial judge. The record indicates the judge instructed the
defendant to file a motion, and that a motion to "revise and revoke"
was filed with affidavits. It does not
appear the judge ruled on the motion.
Accordingly, our decision in this case is without prejudice to the
merits of the defendant's claim for credit for time served, the disposition of
which, including any relevant findings, we leave to the Superior Court, acting
upon the motion to "revise and revoke."
Judgment affirmed.
(FN1.) The incident for which the defendant
was indicted occurred in October, 1991.
He filed a motion to suppress which was denied by a Superior Court
judge, after a hearing. The defendant
entered guilty pleas and was sentenced on the trafficking charge; an assault and battery charge was filed with
his assent. He successfully sought a new
trial in 1993. Prior to the new trial
and following an evidentiary hearing, the defendant's motion to suppress
evidence was denied by a different judge who also presided at the trial.
(FN2.)
The defendant asserts that the findings of fact are taken verbatim from the
previous decision of the judge who denied his motion to suppress and later
heard his guilty pleas. See note 1, supra.
He does not, however, challenge the present decision on the basis of
that similarity.
(FN3.)
The defendant mistakenly asserts that the finding that the parking lot was
known to the officers as an area where drug transactions frequently took place
is clearly erroneous. The finding is
supported by uncontroverted testimony which the judge could credit.
(FN4.)
There was uncontested testimony that the police officers regarded the
defendant's conduct as that of a buyer in a drug transaction. This testimony was introduced without
thorough disclosure of the officers' inferential process as recommended in Commonwealth v. Kennedy, 426 Mass. 703,
706, 690 N.E.2d 436 (1998).
Nevertheless, the defendant's complaint of "lack of significant
prior personal experience" of the officer who principally testified is
without merit. There was sufficient
evidence of relevant experience to support the judge's reliance on his
testimony, and to cause us to defer to the judge's conclusions grounded thereon
to the extent that he determined there was a basis for an investigatory stop.
Ibid.
(FN5.)
The defendant makes no argument concerning the manner in which his statements
were obtained. His attempt to suppress
the statements is entirely derivative of his attack on his arrest and the
search of his vehicle.
(FN6.)
The defendant was found not guilty of a charge of assault and battery by means
of a dangerous weapon, a result that has no bearing on our probable cause analysis. See
Commonwealth v. Sanchez, 403 Mass. 640, 647, 531 N.E.2d 1256 (1988).
(FN7.)
In pertinent part, G.L. c. 276, § 1, as inserted by St.1974, c. 508,
states: "A search conducted
incident to an arrest may be made only for the purposes of seizing fruits,
instrumentalities, contraband and other evidence of the crime for which the
arrest has been made, in order to prevent its destruction or concealment; and removing any weapons that the arrestee
might use to resist arrest or effect his escape. Property seized as a result of a search in
violation of the provisions of this paragraph shall not be admissible in
evidence in criminal proceedings."
(FN8.)
See Commonwealth v. Va Meng Joe, 425
Mass. 99, 102, 682 N.E.2d 586 (1997) ("An appellate court is free to
affirm a ruling on grounds different from those relied on by the motion judge
if the correct or preferred basis for affirmance is supported by the record and
the findings").
(FN9.)
"Probable cause to arrest exists where the facts and circumstances in the
arresting officer's knowledge ... are sufficient to warrant a person of
reasonable caution in believing that an offense has been or is being
committed." Commonwealth v. Williams, 422 Mass. 111,
119 n. 11, 661 N.E.2d 617 (1996).
(FN10.) Had the officers acted on the basis of
a mere hunch in approaching the Cadillac and identifying themselves, the
defendant's reactive flight properly could not be factored into an analysis of
the objective criteria for his arrest.
See Commonwealth v. Thibeau,
384 Mass. 762, 764, 429 N.E.2d 1009 (1981); Commonwealth v. Stoute, 422 Mass. 782, 789, 665 N.E.2d 93 (1996). Conversely, once the circumstances establish
suspicion sufficient to justify a stop, the subsequent flight of a defendant
may contribute to the objective indicia of criminality. See id.
at 791, 665 N.E.2d 93.
(FN11.)
The bag containing the cocaine was found partially wedged into the middle of
the front bench seat of the vehicle.
(FN12.) At the conclusion of the testimony of
the witness, the judge asked defense counsel to come to the sidebar. There, in answer to questions, defense
counsel informed the judge that there were no additional witnesses and that the
defendant would not testify. The judge
then requested the court officers to "ask" the defendant to come to
the bench. The defendant participated in
a short colloquy at the sidebar and returned to his seat. Responding to defense counsel's complaints,
the judge at sidebar stated the defendant's rights would be preserved.