Opinion
21-P-716
10-07-2022
COMMONWEALTH v. RAY D. CROWELL.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On January 26, 2017, police executed a search warrant of the home of the defendant, Ray Crowell (Crowell), and found $4,186, a money counter, a money box, two cell phones, a box of manila envelopes, and a large amount of marijuana and tetrahydrocannabinol-containing (THC) products. A criminal complaint was filed charging Crowell with, among other things, two counts of distribution of marijuana and two counts of possession with intent to distribute marijuana, all as a subsequent offense, in violation of G. L. c. 94C, § 32C (b). Nearly four years later, on April 6, 2021, all charges were dismissed by agreement of the parties.
The property inventory made shortly after the search listed the following marijuana and THC products seized (all amounts listed as approximate): 933 seven-gram canisters of marijuana; 210 fourteen-gram canisters of marijuana; 108 3.5-gram canisters of marijuana; 281 THC-laced cookies; sixty THC-laced brownies; 531 THC lollipops; 241 THC-laced rice crispy treats; 331 one-gram THC oil concentrate wax "Dabs"; three 235 gram jars of THC oil; 381 marijuana king joints; fifty-two one-half-gram THC oil concentrate wax "Dabs"; eight pounds of raw marijuana; sixty carbon dioxide oil nectar injectors; sixty-six THC-laced chocolate bars; and seventy-six cannabis tea packets.
As part of the agreement, Crowell agreed not to contest the civil forfeiture of the $4,186 in cash seized.
After his criminal case was resolved, Crowell filed a motion in the District Court to have the marijuana and THC products returned to him. When the motion judge asked Crowell to address concerns that returning these marijuana and THC products, which were at that point several years old, presented a public health risk, Crowell stated that the items could be turned over to MCR Laboratories to "see the degradation and the efficacy." The motion judge denied Crowell's motion for return of property and this appeal followed.
MCR Laboratories is a private laboratory located in Framingham, Massachusetts.
Discussion.
Crowell argues that the motion judge abused his discretion in denying his motion to return the property, that the marijuana and THC products should be returned to him, and that he should be compensated, as the property's former owner, for any degradation of the marijuana and THC products that might have occurred. Crowell also argues that the Commonwealth must, based upon contractual principles and fundamental fairness, abide by the terms of the dismissal agreement, which did not include any discussion of the marijuana or THC products. We will address each issue in turn.
Crowell argued in his brief that the marijuana and THC products should be returned to him. Confusingly, Crowell orally argued that he should be compensated by a private laboratory for the value of the marijuana and THC products even though Crowell conceded he cannot legally possess this quantity of marijuana. Because we find the brief and oral argument in direct conflict and because we can find no logic in requiring a private laboratory with no affiliation to the government to compensate Crowell for marijuana and THC products that Crowell cannot legally possess, we address the arguments as they were raised in Crowell's brief. Compare Commonwealth v. Fleury, 489 Mass. 421, 422 (2022) (defendant, no longer authorized to possess firearms, requested that seized firearms be returned "to a person designated to sell them on his behalf"). Nothing herein turns on the difference.
Crowell's final argument, that the motion judge abused his discretion by denying Crowell's motion for return of property without considering any evidence, was not adequately raised below and we consider it waived. Barry v. Planning Bd. of Belchertown, 96 Mass.App.Ct. 314, 324 (2019) ("we need not consider arguments raised for the first time on appeal").
1. Order denying return of property.
We review an order denying a motion to return property for an abuse of discretion. Commonwealth v. Dragotta, 96 Mass.App.Ct. 154, 156 (2019). Property seized pursuant to a search warrant is held under the direction of the court and any property that is not stolen "shall be disposed of as the court or justice orders." Commonwealth v. Rufo, 429 Mass. 380, 382 (1999), quoting G. L. c. 276, § 3. "[P]roperty that was not stolen, embezzled, or obtained by false pretenses may be forfeited and either sold or destroyed, as the public interest requires." Beldotti v. Commonwealth, 41 Mass.App.Ct. 185, 188 (1996).
Here, given the carefully constructed legislative framework concerning legal possession of marijuana, it was not an abuse of discretion to conclude that it is against the public interest to return it to Crowell, who does not possess the appropriate licenses to possess this large a quantity of marijuana and THC products. G. L. c. 94G, §§ 7, 9. The motion judge properly exercised his discretion when declining to return marijuana and THC products that Crowell cannot legally possess. Commonwealth v. Fleury, 489 Mass. 421, 429 (2022) ("judges may exercise their discretion regarding the disposal of the seized property"). Given that Crowell may not legally possess the marijuana and THC products, we also hold that Crowell is not entitled to compensation as the former owner for any degradation that has occurred to the marijuana or THC products.
2. The terms of the dismissal agreement.
Crowell states in his brief that the marijuana and THC products were "the defendant's property that was not subject to the forfeiture proceedings and thus [were] not part of the agreed upon disposition of the defendant's criminal case." We agree that neither the civil forfeiture proceedings nor the disposition of Crowell's criminal case discussed or referred to the marijuana or THC products. Accordingly, we do not find that the disposition agreement or the forfeiture proceedings prevented the Commonwealth from making arguments in response to Crowell's motion for the return of property. Additionally, we find Crowell's fundamental fairness argument unpersuasive because it was not reasonable for Crowell to assume that a lack of language discussing the marijuana and THC products meant that Crowell was entitled to them. Commonwealth v. Francis, 477 Mass. 582, 586 (2017) (when considering whether "fundamental fairness requires us to find an enforceable promise ... we [first] ask whether the defendant had reasonable grounds for assuming his interpretation of the bargain") (quotation omitted). Simply put, Crowell's position that he is entitled to be reimbursed for the value of contraband is not supported by the law or commonsense.
For all the above reasons, we affirm.
Order entered June 1, 2021, denying motion for return of property, affirmed.
By the Court
The panelists are listed in order of seniority.