COMMONWEALTH VS. JORGE POLANCO.
No. 16-P-1217.
Appeals Court of Massachusetts
February 20, 2018
Middlesex. October 11, 2017. Present: Milkey, Massing, & Ditkoff, JJ.
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us
Controlled Substances. Practice, Criminal, Speedy trial, Dismissal, Motion to suppress, Required finding. District Court, Arraignment. Constitutional Law, Search and seizure. Search and Seizure, Exigent circumstances.
Indictments found and returned in the Superior Court Department on August 7, 2014.
A motion to dismiss was heard by Kathe M. Tuttman, J.; a pretrial motion to suppress evidence was heard by her; and the cases were tried before her.
Sandra Weisberger, Assistant District Attorney, for the Commonwealth.
DITKOFF, J. The defendant, Jorge Polanco, appeals from his Superior Court convictions of trafficking in heroin,
1. Background. In April and May of 2013, law enforcement including the Billerica police department were conducting an investigation of a suspected heroin trafficker known as “Johnny,” later identified as the defendant. As part of that investigation, Billerica police conducted controlled narcotics purchases using an informant. When the police approached the sellers in those controlled purchases, the sellers admitted to being “runners” for “Johnny,” whom they identified as the source of the narcotics. One of the runners agreed to cooperate with the investigation.
Shortly thereafter, the cooperating runner received a telephone call from “Johnny,” directing him to customers at a house located at 48 Rogers Street.1 Prior to that day, that residence had not been a target of the investigation, and the police had not yet identified “Johnny” as the defendant.
The police followed the runner to the residence. A motor vehicle pulled up outside the residence, and two men exited the vehicle and spoke to a woman in the house‘s driveway. The runner then approached the three persons and engaged in a hand-to-hand transaction with one of the men. At this point, the police converged on the driveway with other law enforcement agents. The police had not yet confirmed “Johnny‘s” whereabouts and were not anticipating his immediate arrest.
As the police entered the driveway area, a detective observed the defendant standing several feet inside the open garage. The
Once in the back yard, the detective apprehended the defendant near the rear fence, facing a shed located in the neighboring yard. The informant and the runner positively identified the defendant as “Johnny.” Although no contraband was found on the defendant‘s person, police retrieved two bags containing 19.06 grams of heroin next to the neighbor‘s shed. They also found a cellular telephone and over $1,100 in cash in the defendant‘s possession.
On May 8, 2013, the Lowell District Court issued a complaint charging the defendant with several drug-related offenses and arraigned him that same day. After two months, a District Court judge dismissed the charges for failure to prosecute. Over one year later, on August 7, 2014, a Middlesex grand jury returned indictments arising from the same incident, charging the defendant with trafficking in heroin and a school zone violation. The defendant was arraigned in Superior Court on August 13, 2014.
On October 30, 2014, the defendant moved to dismiss the charges, alleging a violation of
2. Rule 36(b) motion to dismiss. Under
If we were applying the constitutional right to a speedy trial, we would consider the time the charges were pending in District Court. See Commonwealth v. Butler, 464 Mass. 706 (2013). The Supreme Judicial Court in Butler determined that the issuance of a criminal complaint in the District Court is the appropriate start date for purposes of the defendant‘s constitutional right to a speedy trial, even where the case is later moved to Superior Court. Id. at 713-714. The constitutional right to a speedy trial, however, is primarily concerned with protecting the rights of a defendant, whereas
“In interpreting a rule of criminal procedure, we turn first to the rule‘s plain language.” Denehy, 466 Mass. at 733. The plain language of
As a practical matter, including prior District Court proceedings in
Of course, in an appropriate case, a defendant has protection against unreasonable delays in Superior Court indictment by means other than
Excluding the District Court time comports with Supreme Judicial Court calculations in
Here, accordingly, the defendant‘s motion to dismiss was properly denied.
3. Motion to suppress. On appeal, we review a ruling on a motion to suppress by accepting “the judge‘s subsidiary findings of fact absent clear error but conduct an independent review of [the] ultimate findings and conclusions of law.” Commonwealth v. Ramos, 470 Mass. 740, 742 (2015), quoting from Commonwealth v. Colon, 449 Mass. 207, 214 (2007). We discern no error in the motion judge‘s determination that exigent circumstances justified the detective‘s warrantless entry into the garage and the resulting search and seizure.
The
Exigent circumstances to justify a warrantless entry may exist if the entry is reasonably believed necessary to prevent the loss or destruction of evidence, Ramos, 470 Mass. at 745, particularly if supported by “[f]actors such as ‘a showing . . . that the suspect was armed, a clear demonstration of probable cause, strong reason to believe the suspect was in the dwelling, and a likelihood that the suspect would escape if not apprehended.‘” Molina, 439 Mass. at 209, quoting from Commonwealth v. Forde, 367 Mass. 798, 807 (1975). In this case, the police had probable cause and reason to believe that the defendant would remove evidence and escape apprehension if not pursued through the garage. Accordingly, there were exigent circumstances sufficient to justify the
The defendant contends, however, that the police deliberately created the exigent circumstances themselves and therefore cannot avail themselves of this exception to the warrant requirement. See Molina, 439 Mass. at 210.7 Under Molina, “police officers cannot deliberately create the exigency that leads to the warrantless arrest.” Ibid. Or, to put it another way, “where the exigency is reasonably foreseeable and the police offer no justifiable excuse for their prior delay in obtaining a warrant, the exigency exception to the warrant requirement is not open to them.” Forde, 367 Mass. at 803.
In Molina, the police received the name and address of a suspect, reported and discussed the allegations back at the station, then proceeded to the suspect‘s residence to effectuate the arrest without a warrant. 439 Mass. at 207, 210. Because (1) it was foreseeable the police would have to enter the apartment to make the arrest; (2) the police offered no justification for the failure to obtain a warrant; and (3) no evidence of risk of flight or harm was produced, the exigent circumstances resulted solely from the officers’ decision to make the warrantless arrest. Id. at 210-211. The warrantless entry accordingly was unlawful. Id. at 211. See Forde, 367 Mass. at 802 (failure “to offer any explanation for why no effort was made to obtain a warrant” prior to exigency was fatal to Commonwealth‘s claim).
Similarly, in Commonwealth v. McAfee, 63 Mass. App. Ct. 467 (2005), the police made a warrantless entry at the known residence of a suspected drug dealer, where they had at least four days to obtain a search warrant but failed to do so without justification. Id. at 477. Although the identity of the suspect was unknown, his presence at the residence was confirmed, and the
The present case shares none of these characteristics. Here, with no reason to believe that the defendant would be just inside the garage, the police were moving to confront the three persons standing outside in the driveway.8 No exigency requiring entrance into the garage occurred until the moment the police observed the defendant — fitting the description of “Johnny.” The defendant fled immediately despite orders to stop. At this point, the police had probable cause to believe that the fleeing suspect possessed drugs and would likely try to destroy or conceal them.
Moreover, the situation developed rapidly; the police had no time to obtain a warrant before the defendant could have escaped and removed contraband. See Ramos, 470 Mass. at 746 (“rapidly unfolding events” gave objectively reasonable belief that warrantless entry was necessary to prevent destruction of evidence). Prior to this moment, the police were unaware of “Johnny‘s” true identity, actual residence, and presence at 48 Rogers Street. Thus, the police offered a justifiable excuse for failing to obtain a warrant, and they neither knew nor intended the events as transpired. For these reasons, the exigent circumstances were not foreseeable and were not deliberately created by the police. See Commonwealth v. Owens, 92 Mass. App. Ct. 193, 201-202 (2017) (no manufactured exigency where the police “had legitimate reasons to proceed with the sting operation . . . before proceeding any further“).
4. Sufficiency of the evidence. When reviewing the denial of a motion for a required finding of not guilty, “we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). “The inferences that support a conviction ‘need only be reasonable and possible; [they] need not be necessary or inescapable.‘” Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting from Commonwealth v. Woods, 466 Mass. 707, 713 (2014).
Here, the Commonwealth was required to prove the defendant actually or constructively possessed trafficking-weight heroin. See Commonwealth v. Mojica, 59 Mass. App. Ct. 925, 925-926 (2003). “Constructive possession requires a showing of ‘knowledge coupled with the ability and intention to exercise dominion and control,‘” Commonwealth v. Caraballo, 81 Mass. App. Ct. 536, 541 (2012), quoting from Commonwealth v. Gonzalez, 452 Mass. 142, 146 (2008), which “may be established by circumstantial evidence, and the inferences that can be drawn therefrom.” Mojica, supra at 926, quoting from Commonwealth v. Gonzalez, 42 Mass. App. Ct. 235, 237 (1997). “While a defendant‘s presence in an area where contraband is found is not enough, . . . ‘presence, supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency.‘” Caraballo, supra at 541-542, quoting from Commonwealth v. Clarke, 44 Mass. App. Ct. 502, 505 (1998). Where the contraband is narcotics, evidence of drug dealing may be sufficiently incriminating. See Caraballo, supra at 538, 541-542 (drug ledger, paraphernalia used to cut and package drugs, and small portion of heroin found on defendant was sufficient evidence of constructive possession of large drug stash located in the same apartment).
Here, the heroin was found near where the defendant was arrested and there was abundant evidence that the defendant was involved in drug-dealing activities. Specifically, the evidence supported the conclusion that the defendant was a large-scale heroin distributor, with “runners” and former customers providing information against him. The incident occurred at a “stash house,” where the defendant was reported to have had heroin that same day, and where drug sales had been observed. He was also found with over $1,100 in cash.
Moreover, the defendant‘s immediate flight from the police, in the direction of where the heroin was later found, is further incriminating evidence. See Commonwealth v. Whitlock, 39 Mass. App. Ct. 514, 519 (1995) (“Evidence, such as flight from the scene, possession of large amounts of cash, or attempts to conceal or dispose of contraband . . . permit an inference of unlawful possession“). See also Commonwealth v. Brzezinski, 405 Mass. 401, 410 (1989) (“The defendant‘s retreat into the closet containing cocaine and cocaine paraphernalia allowed an inference of consciousness of guilt“).
Judgments affirmed.