Opinion
14-P-248
04-01-2015
COMMONWEALTH v. ELVIN GONZALEZ.
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
The defendant, Elvin Gonzalez, was convicted of possession of heroin after a traffic stop in 2012. In this appeal, he argues that the trial judge erroneously instructed the jury and that his motion to suppress should have been granted. We affirm.
Background. On December 14, 2012, State police Trooper Harrington pulled over a vehicle, containing four occupants, after an apparent traffic violation in Northampton. As the trooper approached, the defendant was in the driver's seat and briefly bent down out of sight. The trooper saw ammunition in the vehicle. He called for backup and removed the occupants.
Trooper Harrington first removed and checked the front passenger, and then the right rear passenger. He then heard a vehicle door closing, but saw no vehicles other than his cruiser and the stopped car. He then removed the left rear passenger. Finally, he removed the defendant. No weapons were found on anyone.
The trooper then was about to check inside the vehicle for weapons, but he noticed a blue plastic container, about the size of a vegetable jar, on the ground near the front driver-side tire. After he picked up the container and opened it, he observed that it was filled at least halfway with small white bags that appeared to be heroin packages. Backup arrived, and police arrested the four occupants. At the State police barracks, the defendant said to an intake officer, "If you guys let everybody else go, I'll take the blame for the heroin."
On January 15, 2013, the defendant was indicted for possession of heroin with intent to distribute. On April 30, 2013, his motion to suppress the heroin and his statement was denied. On August 28, 2013, a jury found him guilty of the lesser included offense of possession of heroin. He was sentenced, and this appeal followed.
Jury instructions. The defendant argues that the judge misstated the law when he responded to the jury's question, during deliberations, that asked for the definition of "dominion." We disagree because the judge's answer was correct.
To support a conviction of possession of heroin, the Commonwealth must prove that a defendant had actual or constructive possession of the drugs. Commonwealth v. Mojica, 59 Mass. App. Ct. 925, 925-926 (2003). "Proof of constructive possession requires the Commonwealth to show 'knowledge coupled with the ability and intention to exercise dominion and control.'" Commonwealth v. Escalera, 462 Mass. 636, 649 (2012), quoting from Commonwealth v. Boria, 440 Mass. 416, 418 (2003). The phrase "dominion and control" is sometimes consolidated as merely "control," which indicates that the two words are interchangeable. See, e.g., Commonwealth v. Crapps, 84 Mass. App. Ct. 442, 444 (2013) ("To establish constructive possession, the Commonwealth must prove a defendant's [a] knowledge of the contraband; [b] ability to control it; and [c] intention to exercise control over it").
The Massachusetts Superior Court Criminal Practice Jury Instructions § 4.19.1 (2d ed. 2013), also equates dominion with control: "A person who, although not in actual possession, knowingly has both the power and the intention at any given time to exercise dominion, power or control over an object either directly or through another person or persons, is in constructive possession of the object" (emphasis supplied).
Here, the judge received a request for the definition of "dominion" from the jury. After repeating relevant language from the model jury instructions, he stated: "I instruct you that dominion simply means control in the context of the dominion and control standard for constructive possession of drugs as I have previously instructed you. In this context, dominion and control is a legal redundancy." The judge's explanation was correct. Although the phrase "dominion and control" sometimes appears in the case law, see Commonwealth v. Escalera, 462 Mass. at 649, the legal concept properly may be consolidated into a single word such as "control." See Commonwealth v. Crapps, 84 Mass. App. Ct. at 444; Massachusetts Superior Court Criminal Practice Jury Instructions § 4.19.1 (2d ed. 2013).
When the judge discussed how to define "dominion" in response to the jury's question, defense counsel, though he later argued otherwise, initially admitted that dominion equals control: "I would ask the Court to define dominion as the immediate control or the exercise of control over an object or subject." Regardless, the inculpatory statement of the defendant indicates that he had control over the drugs.
Motion to suppress. The defendant argues that his motion to suppress the drugs was improperly denied because he had a subjective expectation of privacy in the plastic container outside his car that society accepts as reasonable. This argument is meritless because no expectation of privacy existed.
To prove that a search occurred, a defendant must show a subjective expectation of privacy in the item searched, and society must recognize this expectation as reasonable. Commonwealth v. Carnes, 81 Mass. App. Ct. 713, 716 (2012). "[A]bandonment is a question of intent, which may be inferred from words, behavior, and other objective facts." Ibid. No reasonable expectation of privacy exists in items abandoned on or near the street. See Commonwealth v. Pratt, 407 Mass. 647, 659-661 (1990) (trash bag abandoned at curbside); Commonwealth v. Wedderburn, 36 Mass. App. Ct. 558, 564 (1994) (bags of cocaine dropped and abandoned prior to arrest).
Here, Trooper Harrington testified that all four occupants of the vehicle denied any knowledge of the small container of drugs. This testimony showed that the defendant did not maintain a subjective expectation of privacy in the container. In addition, no reasonable expectation of privacy existed because the container was abandoned on the ground next to the front left tire by the driver's side door. See Commonwealth v. Pratt, 407 Mass. at 660. The motion to suppress was properly denied because no search occurred in a constitutional sense. See Commonwealth v. Carnes, 81 Mass. App. Ct. at 716.
For these reasons, and for substantially those in the brief of the Commonwealth, we affirm.
Judgment affirmed.
By the Court (Kantrowitz, Trainor & Fecteau, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 1, 2015.