Summary
In Commonwealth v. Duncan D., 82 Mass.App.Ct. 1111, 2012 WL 3627501 (2012), the Appeals Court also affirmed the dismissal of a delinquency complaint, which was based on a juvenile's possession of one ounce or less of marijuana packaged in six bags.
Summary of this case from Commonwealth v. Ilya I.Opinion
No. 11–P–1293.
2012-08-24
COMMONWEALTH v. DUNCAN D., a juvenile.
By the Court (GRAHAM, VUONO & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from the dismissal of a complaint charging the juvenile with delinquency by reason of possession of marijuana with intent to distribute. The issue before us is whether there was probable cause to issue the complaint where, upon being confronted by police in connection with an unrelated matter, the juvenile took six individually wrapped plastic bags containing a total of one ounce or less of marijuana from his pocket and discarded them.
While we agree that, in appropriate circumstances, the possession of one ounce or less of marijuana packaged in a number of individual bags can provide probable cause to believe that the marijuana is possessed for distribution, in the circumstances presented here, probable cause did not exist. Accordingly, we affirm the dismissal of the complaint.
There is no information in the record as to whether chemical analysis of the substance seized confirmed that it was marijuana. For purposes of our analysis we assume that it is marijuana. We also assume, based on the Commonwealth's representation at oral argument, that the weight of the marijuana is one ounce or less.
Background. No evidence was presented at the hearing and the judge made no findings of fact. We take the facts from the police report upon which the complaint was issued. On the evening of July 17, 2010, several Boston police officers were dispatched to 23 Romsey Street in Dorchester to investigate a report of a fight involving approximately thirty people. The juvenile and two other individuals, one of whom had blood on his face and hands, were stopped as they were leaving the area. One of the officers, Officer Lett, observed the juvenile reach into his pocket and drop something. Officer Lett retrieved the item which turned out to be six bags containing a green leafy substance. During a patfrisk of the juvenile, Officer Lett found twenty-three dollars and a “Bic” lighter. The police report, which was prepared by the arresting officers, stated: “Based on Officer Lett's training and experience he knows the individually wrapped items to be Class D, [m]arijuana.” Under the section of the report entitled “property,” the marijuana was described as having been “turned in as evidence” and given a value of one dollar.
Two days later, on July 19, 2010, an assistant clerk of the Suffolk division of the Juvenile Court Department issued a delinquency complaint against the juvenile for possession with intent to distribute marijuana.
The juvenile filed a motion to dismiss the complaint, claiming that G.L. c. 94C, § 32L, precluded a prosecution for possession with intent to distribute marijuana if the weight of the marijuana was one ounce or less.
A second delinquency complaint also issued against the juvenile, for assault and battery by means of a dangerous weapon, but that complaint is not before us.
At the motion hearing the defendant also argued that the complaint was not supported by probable cause. The motion judge addressed only the second argument. Concluding that possession of six bags of marijuana was equally consistent with possession for personal use as with possession with intent to distribute,
At oral argument before us, the defendant conceded that the Commonwealth was not precluded by the statute from charging the juvenile with possession of marijuana with intent to distribute. See Commonwealth v. Keefner, 461 Mass. 507, 509–515 (2012).
the judge dismissed the complaint.
The judge stated: “Simple possession of individually wrapped packages of marijuana does not, in and of itself, create distribution without some other, something. Money, observations, something. You buy marijuana the same way you sell marijuana. So you have, there's no basis here to say he did not buy six individually wrapped packages of marijuana. Or that he intended to sell. I don't even know how the complaint issued.”
The docket states that the complaint was dismissed with prejudice. The juvenile did not request that the complaint be dismissed with prejudice, and we discern no basis for concluding that dismissal with prejudice was warranted. See Commonwealth v. Borders, 73 Mass.App.Ct. 911, 912–913 (2009). Accordingly, should the Commonwealth develop additional information that would warrant a prudent person to believe that the juvenile possessed the marijuana with an intent to distribute, it is not precluded from seeking a successive complaint.
Discussion. “To sustain a complaint, the Commonwealth need only demonstrate probable cause to believe that the defendant committed the crime with which he is charged.... Probable cause is that amount of information that would warrant a prudent person in believing that the defendant committed the crime.” Commonwealth v. Stoico, 45 Mass.App.Ct. 559, 565 (1998).
When we apply these principles to the facts here, probable cause did not exist. Possession of six bags containing one ounce or less of marijuana worth one dollar without any information as to the manner in which the marijuana was packaged or the amount of marijuana each bag contained, coupled with the presence of smoking paraphernalia, is not sufficient to establish probable cause that the marijuana was possessed with an intent to distribute. We are not persuaded, as the Commonwealth suggests, that the act of discarding the bags of marijuana amounts to suspicious activity indicative of an intent to distribute. Nor are we persuaded that there was probable cause to believe the juvenile intended to distribute the marijuana at the party. The police report simply does not contain sufficient information to support such an inference.
In conclusion, we note that while we agree with the motion judge that probable cause did not exist, we do not agree with one aspect of his reasoning. A determination whether the amount of marijuana possessed is equally consistent with personal use as with the intent to distribute, is not the dispositive inquiry. It is clear that the crime of unlawful distribution or possession with intent to distribute marijuana can be committed even though the amount of drugs possessed is one ounce or less, see Commonwealth v. Keefner, 461 Mass. 507, 509–515 (2012). Thus, while the facts supporting a finding of probable cause must rise above the level of mere suspicion, see Commonwealth v. Roman, 414 Mass. 642, 648 (1993), probable cause to believe marijuana is possessed with an intent to distribute can exist even though the amount of drugs is such that it could have been purchased for personal use.
The order dismissing the delinquency complaint shall be modified to reflect that the dismissal is without prejudice. As so modified, the order is affirmed.
So ordered.