Opinion
14-P-1627
01-27-2016
COMMONWEALTH v. SAMUEL ENGLISH, JR.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
After a jury-waived trial, the defendant was convicted of possession of cocaine with intent to distribute, possession of oxycodone with intent to distribute, possession of marijuana with intent to distribute, and possession of oxymethanol with intent to distribute. On appeal, he claims the motion judge erred by denying his motion to suppress and for not holding a Franks hearing, and that there was insufficient evidence of his possession and of his intent to distribute the narcotics. We affirm.
A steroid that is a class E controlled substance.
The defendant was acquitted of several firearm-related offenses and of two additional drug offenses.
Franks v. Delaware, 438 U.S. 154 (1978).
1. Motion to suppress. The defendant makes a variety of claims related to the validity of the search warrant. First, he claims the search was not supported by probable cause because the confidential informant's (CI's) veracity was not established under the Aguilar-Spinelli test. We disagree.
See Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969).
The defendant does not challenge the CI's basis of knowledge.
According to the affidavit in support of the search warrant, the CI had provided information in the past that led to an arrest and the seizure of a stolen firearm. See Commonwealth v. Perez-Baez, 410 Mass. 43, 46 (1991) (CI's veracity established by arrest and seizure of contraband). The CI's prior controlled buys and the police corroboration of several aspects of the CI's information further corroborated the CI's information. The motion judge properly rejected the claim.
We reject the defendant's claims, made without supporting authority, that the CI's veracity was not established here because his past information did not result in a seizure of narcotics. Our law states no such requirement. See, e.g., Commonwealth v. Vynorius, 369 Mass. 17, 21 (1975) (seizure of stolen battery).
The police corroborated the defendant's physical description, his address, and that the electric bill for that address was listed in the defendant's name. See Commonwealth v. Watson, 36 Mass. App. Ct. 252, 255 (1994).
The defendant argues for the first time on appeal that there was insufficient evidence before the magistrate that the growing operation was illegal. We disagree. In Commonwealth v. Canning, 471 Mass. 341, 352 (2015), the Supreme Judicial Court first held that the affidavit in support of a search warrant must offer information sufficient to provide probable cause to believe the individual is not properly registered under the medical marijuana act to possess or cultivate the suspected substance. However, even if Canning were retroactive to this search, the court also held that "[f]acts indicating that a confidential informant recently purchased marijuana from the owner of the property where the cultivation operation is suspected to be taking place would likely supply the requisite probable cause to search that property for evidence of unlawful cultivation." Id. at 352 n.15. This describes the defendant's case, and was sufficient to establish probable cause that his growing operation was illegal.
Second, the defendant claims that the affidavit was defective because it was not signed by both of its authors. We disagree. The affiant was Detective Gregg Bigda. Although the affidavit included statements from Special Agent James Clifford, written in the first person, the affidavit did not require two signatures. See Commonwealth v. Gullick, 386 Mass. 278, 283 (1982) (when police are working in cooperative effort, probable cause is evaluated based on collective knowledge of all officers involved). That the affidavit was less than a marquee of perfection does not require its rejection. We refuse to subject the affidavits to "hypertechnical scrutiny . . . as if they were professionally drawn legal documents, but rather are to be assessed in a common sense and realistic fashion." Commonwealth v. McRae, 31 Mass. App. Ct. 559, 559 (1991).
Third, the defendant claims the no-knock provision of the search warrant was not supported by probable cause. We disagree. A magistrate may issue a warrant with a no-knock provision upon a showing of probable cause to believe that a suspect might otherwise destroy evidence or threaten the safety of the officers. See Commonwealth v. Jimenez, 438 Mass. 213, 216-217 (2002); Commonwealth v. Santiago, 452 Mass. 573, 578 (2008). Although the affidavit recited that an assault rifle had been seen at the address, and the defendant was in possession of a stolen firearm, nothing established probable cause under Aguilar-Spinelli to support these assertions. Nonetheless, the CI, with an established basis of knowledge and veracity, told the police that the residence was barricaded to make entry difficult. See Commonwealth v. Munera, 31 Mass. App. Ct. 380, 384 (1991) (security precautions enhanced likelihood that drugs on premises would be destroyed). In addition, the police had previously determined that the defendant had an extensive criminal history, including three drug convictions. See Commonwealth v. Spano, 414 Mass. 178, 185 (1993) (noting criminal history of drug dealing when upholding no-knock warrant). These factors justified the magistrate's issuance of the search warrant with a no-knock provision.
Fourth, the defendant claims for the first time on appeal that the police were not entitled to search the locked safe. We disagree. This claim was not stated with particularity in the motion to suppress, and is not properly before us. See Commonwealth v. Lett, 393 Mass. 141, 144 (1984). See also Mass.R.Crim.P. 13(a)(2), as appearing in 442 Mass. 1516 (2004). Even if this claim is not waived, it lacks merit.
Here, the search warrant explicitly authorized the officers to search "furniture, appliances, wall panels, food containers or other places" where monies or drug-related materials might be hidden. Although the warrant did not specify a safe, "a valid search may include any area, place, or container reasonably capable of containing the object of the search." Commonwealth v. Signorine, 404 Mass. 400, 405 (1989). A safe is a place where it was reasonable for the police to search for drug-related materials. See United States v. Wright, 704 F.2d 420, 422 (8th Cir. 1983).
2. Franks hearing. The defendant claims the motion judge erred by not holding a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), or a preliminary hearing under Commonwealth v. Amral, 407 Mass. 511 (1990). We disagree. The defendant maintains that the supporting affidavit characterized the CI as a "concerned citizen" with no pending criminal charges to bolster the CI's credibility. According to the defendant, the CI was providing information to the police only to avoid criminal charges after the police found contraband in the CI's residence. However, to warrant a Franks hearing, the defendant must make a "substantial preliminary showing that the affiant made a false statement knowingly and intentionally or with reckless disregard for the truth." Commonwealth v. Douzanis, 384 Mass. 434, 437 (1981). As the motion judge properly found, even if the representations were disingenuous, they do not rise to the level of intentional deception or reckless disregard for the truth to warrant a Franks hearing. Even if the CI had pending criminal charges and was not merely a concerned citizen, those facts were not necessary to the finding of probable cause. See Franks v. Delaware, supra at 156.
As the motion judge noted, the defendant also points to the documents related to the other searches in an effort to discredit the CI. Specifically, the defendant provided documents in an unrelated matter of a search of a Northampton apartment to claim that the CI was unreliable. However, as the motion judge found, it was the Northampton police and not the CI who was mistaken about the specific apartment targeted in the unrelated search warrant.
3. Sufficiency of the evidence. Finally, the defendant claims there was insufficient evidence of his having constructive possession of the narcotics, as well as insufficient evidence of his intent to distribute them. We disagree.
Relative to constructive possession, the defendant was present during the search, he paid the rent for the residence, police found his name on documents throughout the residence on both the main floor and in the loft bedroom, and the defendant had on his person the keys to the basement, where the marijuana growing room was located. From these facts, a rational trier of fact would be justified in concluding that the defendant knew of the drugs and had the ability and intention to exercise dominion and control over them. See Commonwealth v. Boria, 440 Mass. 416, 418 (2003).
Regarding his intent to distribute drugs, the amount of marijuana discovered, including the seventy-six growing plants, raises a reasonable inference of intent to distribute. See Commonwealth v. Roman, 414 Mass. 642, 645-646 (1993). In addition, the police officers found no smoking paraphernalia, but did find scales and packaging materials, and there was expert testimony that what was discovered was consistent with intent to distribute. See Commonwealth v. Wilson, 441 Mass. 390, 401-402 (2004).
For the first time on appeal, the defendant claims that the Commonwealth failed to prove that what was seized was not grown as medical marijuana. However, having a license to grow medical marijuana is an affirmative defense to be raised by the defendant at trial. Commonwealth v. Canning, 471 Mass. 341, 351 (2015).
There was also sufficient evidence of intent to distribute the drugs found in the safe. The police found rocks of "crack" cocaine, baggies of marijuana, one hundred oxycodone pills, and 167 steroid (oxymethanol) pills stored in a locked safe. Furthermore, police did not uncover any drug-consuming paraphernalia, but did find two scales and packaging materials in the open, along with another digital scale in the locked safe. Also, the defendant was carrying $1,600 in cash on his person and was unemployed. See Commonwealth v. Sendele, 18 Mass. App. Ct. 755, 758-759 (1984). This was all supplemented by expert testimony that supported a conclusion by the trier of fact that these were not drugs merely for personal consumption, but instead for sale. Thus, although the safe contained only four baggies of crack cocaine, a small quantity of narcotics may suffice to prove intent to distribute in the presence of other indicia of distribution, as in this case. See Commonwealth v. Gonzales, 33 Mass. App. Ct. 728, 731 (1992).
Judgments affirmed.
By the Court (Cypher, Meade & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 27, 2016.