Opinion
No. 16–P–708.
12-30-2016
COMMONWEALTH v. Chakeem DURANT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the imposition of drug-related probation conditions upon pleading guilty to charges of unlawfully possessing a firearm and unlawfully possessing ammunition. He argues the random drug-related conditions are not reasonably related to his crimes or criminal history. We agree.
Motion to expand the record. The Commonwealth has moved to expand the appellate record pursuant to Mass.R.A.P. 8(e), as amended, 378 Mass. 932 (1979), to include an order allowing a motion to suppress in a previous criminal matter involving the defendant. That order was issued by the same judge who presided over the defendant's plea and sentencing in this case. The Commonwealth argues that this order is relevant because the sentencing judge specifically referenced the defendant's involvement in the prior suppression hearing at the change of plea hearing in this case, and his knowledge of the defendant's criminal history. The defendant does not oppose the motion but disputes the relevance of information. We allow the Commonwealth's motion and consider the expanded record in our discussion below.
Discussion. Random drug testing implicates constitutional rights guaranteed by the United States and Massachusetts Constitutions. Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 617–618 (1989) ; Commonwealth v. Gomes, 73 Mass.App.Ct. 857, 859 (2009). "Although a probationary condition is not necessarily invalid simply because it affects constitutional rights, the condition must be reasonably related to legitimate probationary goals in order to withstand constitutional scrutiny." Ibid., citing Commonwealth v. Power, 420 Mass. 410, 416–417 (1995), cert. denied, 516 U.S. 1042 (1996). Such goals include "punishment, deterrence, retribution, protection of the public, or rehabilitation ." Gomes, supra. "The propriety of any given probation condition depends heavily on the facts of the case before the court." Commonwealth v. Lapointe, 435 Mass. 455, 459–460 (2001), quoting from State v. King, 692 A.2d 1384, 1385 (Me.1997). Where constitutional rights are involved, "the goals of probation ‘are best served if the conditions of probation are tailored to address the particular characteristics of the defendant and the crime.’ " Commonwealth v. Lapointe, supra at 459, quoting from Commonwealth v. Pike, 428 Mass. 393, 403 (1998).
Such tailoring is absent here. The defendant pleaded guilty to illegally possessing a firearm and ammunition. Nothing indicates that these crimes or the defendant's past convictions involve drugs, that the defendant uses drugs, or that the defendant has demonstrated "volatile and impulsive conduct" apt to be worsened by drugs. Contrast Commonwealth v. Williams, 60 Mass.App.Ct. 331, 332 (2004).
The Commonwealth argues that the drug-related conditions were appropriate given the sentencing judge's knowledge of the defendant's criminal history and of the circumstances surrounding a suppression order the judge issued in a previous criminal case. That case also did not involve drug-related charges. The suppression order contains a footnote indicating that the police arrested the defendant in a room which also contained "baggies and a scale, but they observed no drugs or any green leafy substance." The order gives no indication of the defendant's relationship to the apartment in which he was arrested or whether drugs were in fact present. The drug-related conditions of probation were not reasonably related to legitimate probationary goals.
In the previous case, the defendant was charged with unlawful possession of a firearm. The judge allowed the defendant's motion to suppress the firearm, which was discovered in a shoe box in the bedroom in which the defendant was arrested.
The judge also noted that the arresting officer "could not recall whether he smelled any marijuana" and "did not know if there were illegal drugs in the apartment."
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Conclusion. We vacate so much of the judgments as imposed random drug testing of the defendant as a condition of probation. In all other respects the judgments are affirmed.
So ordered.