Opinion
Nos. 99-0584, 99-0436
December 16, 1999
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION TO DISMISS
On December 16, 1999, a Grand Jury returned ten indictments charging the defendant with three counts of possession of heroin with intent to distribute within a school zone, two counts of possession of cocaine with intent to distribute within a school zone, trafficking cocaine (100-200 grams), trafficking heroin (28-100 grams), two counts of possession of heroin with intent to distribute, and possession of cocaine with intent to distribute. The parties are now before the court on the defendant's motion to dismiss pursuant to Mass.R.Crim.P. 13(c) and Commonwealth v.McCarthy, 385 Mass. 160 (1982). For the reasons set forth below, the defendant's motion is allowed .
After a close reading of the defendant's motion and supporting legal memorandum, it is unclear exactly which of the ten numbered indictments the defendant seeks to dismiss, and further, which of the ten indictments relate to the search of 15 Dorchester Street. Suffice it to say that it appears that he seeks dismissal only of those indictments which stem from the search of 15 Dorchester Street, Worcester. See "Background" and notes 5 and 6 infra.
BACKGROUND
The Grand Jury was presented with, and could reasonably have found, the following facts. On June 18, 1998, while preparing to execute a search warrant for the first floor apartment (the "apartment") of 17 Dorchester Street, Worcester, the Massachusetts State Police Detective Unit's Narcotics Section initiated surveillance of 17 Dorchester Street. Trooper Leahy observed the defendant walk towards, and then continue down the side of the apartment to the rear where he disappeared from sight. Shortly thereafter, Trooper Leahy observed the lights go on in the apartment.
Seventeen Dorchester Street consisted of several apartments. The first floor, however, consisted of only one apartment that contained one bedroom and a kitchen. Across from the entrance door of the apartment, there was an unlocked storage closet to which the defendant had access.
The apartment was accessible through a back door.
Before the officers executed the search warrant, the defendant left the apartment and entered a vehicle that had pulled up in front of 17 Dorchester Street. Officers in a Worcester police cruiser stopped the vehicle a short distance away and returned the defendant to the apartment where they proceeded to execute the search warrant and search the apartment. Recovered in the search of the apartment were one hundred individually wrapped blue glassine packets containing heroin, various mail addressed to the defendant at 17 Dorchester Street, a small plastic box containing glassine baggies, a pair of scissors with white powder residue, a razor blade with white powder residue, and a box of Glad sandwich bags.
The officers also searched a storage closet, located in the hallway outside the apartment, to which the defendant had access. The officers recovered from the closet one plastic baggie containing a white powder substance, later determined to be 2.08 grams of 53% cocaine, and one baggie of a white rock substance, later determined to be .45 grams of 49% heroin. The officers also recovered from the defendant a black pager and a key to the apartment.
The Grand Jury minutes reveal that, prior to entering the apartment, Sgt. Thomas Zona retraced the defendant's steps down the side of 17 Dorchester Street. In so doing, Sgt. Zona observed an open door of a vacant apartment located in the back of 15 Dorchester Street, an entirely separate building. The open door led to the basement. Although Trooper Leahy had never observed the defendant approach or enter the open door, the officers searched the basement of 15 Dorchester Street.
There were occupants on other floors of 15 Dorchester Street who had access to the basement where the contraband was found. Both 15 and 17 Dorchester Street were located within a "school zone."
Recovered in the search of 15 Dorchester Street were one plastic baggie containing $1,497 in U.S. currency, and a baggie containing 29.25 grams of off white powder, later determined to be 42% heroin. The officers also found two plastic baggies containing a white powder substance found behind the electrical fuse box in the basement. Analysis revealed that one baggie contained 34.92 grams of 28% cocaine, and the other baggie contained 65.36 grams of 37% cocaine in freebase form, commonly referred to as crack. Although the officers attempted to lift fingerprints from the bags and basement area, their efforts were unsuccessful.
The defendant now moves to dismiss all charges stemming from the search of 15 Dorchester Street.
The defendant's motion to dismiss does not attack the indictments related to the search of 17 Dorchester Street.
DISCUSSION
I. Standard of Review
Generally, a court will not inquire into the competency or sufficiency of the evidence before the Grand Jury upon which an indictment is based. Commonwealth v. Coonan, 428 Mass. 823, 825 (1999). The court will, however, examine the evidence heard by the Grand Jury where, as here, there is a claim that an indictment was unsupported by any evidence of criminal activity by the defendant. McCarthy, 385 Mass. at 161. At the very least, a Grand Jury must hear sufficient evidence to establish both the identity of the accused and probable cause to arrest him. Coonan, supra at 825; McCarthy, 385 Mass. at 163. Probable cause requires more than mere suspicion but something less than evidence necessary for a conviction.
Commonwealth v. Roman, 414 Mass. 642, 643 (1993). In short, the evidence before the Grand Jury must contain reasonably trustworthy information sufficient to warrant a prudent man in believing that the defendant had committed or was committing the offense charged.Id.; McCarthy, 385 Mass. at 163.
II. Merits of Defendant's Motion to Dismiss
As aforesaid, the defendant argues that the Commonwealth failed to present any evidence linking him to the drugs seized from 15 Dorchester Street. Accordingly, he contends, all charges stemming from items recovered during the search of 15 Dorchester Street, including the trafficking and possession indictments, should be dismissed. This court concurs.
As set forth in note 5, supra, the defendant does not, by the instant motion, seek to dismiss the indictments stemming from the search of 17 Dorchester Street.
A. Trafficking
Trafficking is statutorily defined as "knowingly or intentionally manufacturing, distributing or dispensing or possessing with intent to manufacture, distribute or dispense or . . . bringing into the commonwealth a net weight of fourteen grams or more of . . . any mixture containing a controlled substance" such as cocaine or heroin. G.L.c. 94C, § 32E(b) (emphasis added). See Commonwealth v. Chappee, 397 Mass. 508, 521-22 (1986). The Roman decision teaches that, "[t]he statute is disjunctive, setting forth three categories of trafficking: (1) manufacturing, distributing, or dispensing fourteen grams or more of cocaine; (2) possessing with intent to manufacture, distribute, or dispense fourteen grams or more; and (3) bringing into the Commonwealth fourteen grams or more." Roman, 414 Mass. at 644, citing Commonwealth v. Silva, 21 Mass. App. Ct. 536, 540-41 (1986).
Here, there was no evidence that the defendant was manufacturing, distributing, or dispensing cocaine or heroin or that the defendant brought cocaine or heroin into Massachusetts, and the Commonwealth does not argue those points. Rather, the Commonwealth's case rests upon the theory that the defendant "possessed" the drugs found in the basement of 15 Dorchester Street.
B. Possession
Although the Commonwealth need not show that the defendant physically possessed the drugs found at 15 Dorchester Street, to support indictments for trafficking cocaine and heroin, the Commonwealth must at the very least establish the defendant had constructive possession of the drugs. See Commonwealth v.Gonzalez, 42 Mass. App. Ct. 235, 237 (1997); Commonwealth v.Antonio, 45 Mass. App. Ct. 937 (1998); Commonwealth v. Cruz, 34 Mass. App. Ct. 619, 621 (1993). "Constructive possession of a controlled substance requires proof that the defendant had knowledge of the location of the illegal drugs plus the ability and intent to exert dominion and control [over them.]" Gonzalez, 42 Mass. App. Ct. at 237. This proof "may be established by circumstantial evidence, and the inferences that can be drawn therefrom." Id.; Commonwealth v. Antonio, supra at 937-38;Commonwealth v. Handy, 30 Mass. App. Ct. 776, 780 (1991) (internal quotation marks omitted). Here, because there was no evidence that the defendant ever had actual possession of the cocaine or heroin found at 15 Dorchester Street, the Commonwealth was required to present evidence to the Grand Jury that the defendant "knew" of the presence of the cocaine and heroin and had the ability and intention to exercise dominion and control over them. See Handy, 30 Mass. App. Ct. at 780.
The Commonwealth attempts to surmount the initial "knowledge" hurdle by arguing that the drugs found at 17 Dorchester Street, the apartment in which the defendant had recently been present, "mirrored" those recovered from 15 Dorchester Street, thereby supporting an inference of knowledge by the defendant with respect to the 15 Dorchester Street drugs. While the Commonwealth presented evidence that the defendant may have had the ability to exert dominion and control over the contraband found at 15 Dorchester Street by virtue of its open back door (a point that barely passes the "purple test"), the Grand Jury minutes are utterly devoid of any evidence of "mirroring" between the drugs recovered from 15 Dorchester Street and those located at 17 Dorchester Street. Furthermore, in light of the investigating officers' inability to identify any fingerprints from the basement of 15 Dorchester Street, the fact that other tenants had access to the basement, and the ubiquitous nature of the plastic baggies recovered, this court finds there was insufficient evidence to establish a nexus between the defendant and the seized cocaine and heroin at 15 Dorchester Street that would provide probable cause to arrest the defendant or "tip the scale" in favor of a finding that he probably had knowledge or possession thereof. SeeGonzalez, 42 Mass. App. Ct. at 239. Compare Antonio, 45 Mass. App. Ct. at 938 (affirming trafficking conviction based on recovery of defendant's personal belongings in apartment) withCommonwealth v. Amparo, 43 Mass. App. Ct. 922 (1997) (reversing trafficking conviction based on absence of personal belongings of defendant found in apartment).
CONCLUSION
In these circumstances, this court concludes that the Grand Jury did not hear sufficient evidence, circumstantial or otherwise, to warrant a finding of probable cause to arrest the defendant on charges of trafficking cocaine or trafficking heroin insofar as those charges are based on the items seized at 15 Dorchester Street. See Handy, supra (reversing conviction for trafficking cocaine and finding defendant's presence on first floor of two-story house did not support inference of possession of cocaine on second floor, absent evidence of defendant's ownership or residential status or other inculpatory evidence);Commonwealth v. Amparo, supra (finding defendant's presence on second floor of three family residence insufficient to support finding of constructive possession absent evidence of defendant's residential status). Furthermore, knowing possession is clearly an integral element of the charges of possession of cocaine with intent to distribute and possession of cocaine with intent to distribute within a school zone. Accordingly, any "possession" indictments, based on the drugs recovered from 15 Dorchester Street, must also fail.
ORDER
This court hereby ORDERS that the defendant's Motion to Dismiss be ALLOWED with respect to indictments grounded on items recovered from 15 Dorchester Street. Otherwise, the motion is DENIED .
Daniel F. Toomey Justice of the Superior Court
DATED: