Opinion
10-P-1442
11-02-2011
COMMONWEALTH v. FRANCISCO GARCIA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
We discern no error in the order of the Superior Court judge denying the defendant's motion to suppress evidence seized following a motor vehicle stop and search, and we conclude that the evidence presented by the Commonwealth at trial was sufficient to establish the defendant's guilt on the charge of trafficking between twenty-eight and one hundred grams of cocaine. We accordingly affirm the judgment of conviction, addressing the defendant's claims of error in turn.
Motion to suppress. The defendant does not challenge the propriety of the stop of the motor vehicle, and does not contend that any of the findings of fact entered by the motion judge incident to her ruling on the motion to suppress are clearly erroneous. We agree with the motion judge that the defendant's furtive movement (in dipping his body down as if either to conceal or to retrieve a weapon) at a time when the defendant likely believed Trooper Newman could not see him furnished adequate concern for the trooper's safety to justify his order for the defendant to exit the vehicle, and the ensuing patfrisk of the defendant's person. See Commonwealth v. Stampley, 437 Mass. 323, 325, 327-328 (2002). The observations by the trooper (an experienced narcotics investigator) of the condition of the center console, which included the fact that the lighter was askew and that foam was visible around the edges of the opening, furnished reasonable basis for the trooper to believe that the console might house a compartment in which a weapon could be stored. As the Commonwealth observes at pages nineteen to twenty of its brief (with citation to authorities not repeated here), the presence of a hidden compartment also furnishes probable cause to believe it may contain drugs or other contraband. The trooper continued his limited investigation by feeling the outside of the console area, and proceeded to lift the ashtray to inspect the interior of the compartment only after feeling a metal box inside the console where there should have been an empty space.
As the judge observed, the defendant's furtive motions were in the direction of the console.
Commonwealth v. Ellsworth, 41 Mass. App. Ct. 554, 556-557 (1996), on which the defendant relies, is distinguishable from the present case because the officer in the present case had not issued a citation to the defendant, and thus had not concluded the interaction with the defendant upon which the stop was based, at the time he ordered the defendant out of the vehicle and conducted the search of the console area.
Sufficiency of the evidence. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence was sufficient to establish that the defendant constructively possessed the drugs found in the hidden compartment. Though mere presence in the vicinity of contraband does not establish constructive possession, presence considered in conjunction with other incriminating evidence may suffice. See Commonwealth v. Brzezinski, 405 Mass. 401, 409-410 (1989).
The defendant does not challenge the sufficiency of the evidence regarding the other elements of the charged offense.
In the present case, the defendant's nervousness throughout his encounter with the trooper, coupled with his movements toward the hidden compartment in the console at a time when he likely believed the trooper could not see him, supported an inference that the defendant had access to the interior of the hidden compartment and knew that it contained drugs. See Alicea v. Commonwealth, 410 Mass. 384, 387-388 (1991); Commonwealth v. Pimentel, 73 Mass. App. Ct. 777, 783 (2009). In addition, the substantial sum of cash found on the defendant's person during the patfrisk, coupled with the inordinate number of air fresheners in the vehicle (which the trooper explained, based on his experience, often indicate an attempt by drug dealers to mask the smell of narcotics), supports an inference that the defendant was engaged in trafficking (and, thus, constructively possessed the stash discovered adjacent to where he had been seated). See Pena v. Commonwealth, 426 Mass. 1015, 1018 (1998). We note as well that, though the defendant was not the registered owner of the vehicle, he was the driver and only occupant of the vehicle at the time of the stop. Contrast Commonwealth v. Manzanillo, 37 Mass. App. Ct. 24 (1994).
As the Commonwealth observes, the jury could infer from the quantity of cocaine seized from the vehicle that it was unlikely that another person would lend a car containing property of substantial value to a slight acquaintance. Cf. Commonwealth v. Sinforoso, 434 Mass. 320, 329 (2001).
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Judgment affirmed.
By the Court (Green, Hanlon & Carhart, JJ.),