Commonwealth v. PolancoCommonwealth v. Polanco
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
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 defendant, matching the description of “Johnny,” turned and fled. The detective gave chase through the garage and into the back yard. The detective believed the defendant to be “Johnny” and feared that he was likely to escape or destroy evidence.
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.
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 rule 36(b) and his constitutional right to a speedy trial,2 and also moved to suppress evidence. Both motions were denied, and the defendant was ultimately convicted of both charges by a jury.
2. Rule 36(b) motion to dismiss. Under rule 36(b)(1)(C), a defendant is entitled to dismissal if he is not brought to trial “within twelve months after the return day in the court in which the case is awaiting trial.” See Commonwealth v. Denehy, 466 Mass. 723, 729 (2014); Commonwealth v. Pereira, 82 Mass. App. Ct. 344, 346 (2012). The arraignment date is the return date,
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 rule 36(b) is “primarily a management tool, designed to assist the trial courts in administering their dockets.” Reporter‘s
“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 rule 36 states that the clock begins on “the return day in the court in which the case is awaiting trial” (emphasis supplied).
As a practical matter, including prior District Court proceedings in rule 36(b) calculations would impose a great burden on the trial courts. Before setting a tracking order, a Superior Court judge would need to calculate the time expired on prior District Court proceedings on every charge, itself a time-consuming and complex exercise, and adjust scheduling to accommodate the timing of District Court proceedings. Rule 36 “is primarily designed to assist in the administration of trial court dockets,” Lauria, 411 Mass. at 68, but this reading of the rule would have the opposite effect. Instead, dockets would have to be coordinated between courts, undermining judges’ responsibility to “control their own dockets . . . within the time periods specified by rule 36” (emphasis supplied). Commonwealth v. Bourdon, 71 Mass. App. Ct. 420, 428 (2008), quoting from Lauria, supra at 70.
Excluding the District Court time comports with Supreme Judicial Court calculations in rule 36 cases as well, even post-Denehy. In Taylor, 469 Mass. at 520 & n.7, for example, the defendant was arrested and thus arraigned in District Court well before he was indicted. Nonetheless, the Supreme Judicial Court calculated the time under rule 36(b) from the Superior Court arraignment, excluding the District Court time. See id. at 522.
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, cert. denied, 552 U.S. 1079 (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 warrantless entry. See Ramos, supra at 746-747.
The defendant contends, however, that the police deliberately created the exigent circumstances themselves and therefore cannot avail themselves of this exception to the
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
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 evidence showed no risk of flight, destruction of evidence, or harm -- until the police knocked on his door, making it easily foreseeable that the suspect would refuse them entrance while concealing or destroying drug-related evidence. Id. at 474-475. Again, the warrantless entry was not justified. Id. at 477.
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
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
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
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
Direct proof that the defendant threw the heroin bags during his escape is unnecessary. Given the evidence, the inference that the defendant knew of and previously possessed the drugs was reasonable. See Gonzalez, 42 Mass. App. Ct. at 239 (“[The] type of inculpatory evidence, rather than the precise location of the drugs, . . . is most significant to a sufficiency analysis in a constructive possession case“); Mojica, 59 Mass. App. Ct. at 926 (reasonable inference that defendant dropped heroin sufficient to establish possession). Accordingly, the evidence was sufficient.
Judgments affirmed.