Opinion
19-P-12
07-28-2020
COMMONWEALTH v. JOSHUA JEFFERSON.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant was convicted of drug and firearm charges arising out of what began as a routine traffic stop for speeding. The defendant was not driving, but was the sole passenger in the vehicle. The defendant's principal argument on appeal is that the drugs and the firearm should have been suppressed as the fruits of an unlawful search, because they were seized only after the State trooper involved unreasonably decided to pat frisk the defendant, without a proper basis. We hold that whether or not the trooper had a lawful basis for the attempted patfrisk, the motion to suppress was properly denied where the defendant, after exiting the vehicle, committed a new crime by attempting to draw a gun from his waistband. Seeing that the contraband was properly admitted at trial, and perceiving no other error, we affirm.
Background. Just after midnight on September 17, 2016, State Trooper Daniel Purtell was driving on Route 133 in Tewksbury with his K-9 partner, when he observed a sedan speeding. Purtell clocked the vehicle at fifty-seven miles per hour in a thirty-five miles per hour zone. He activated his lights and the vehicle pulled over, without incident, where Route 133 goes under Route 495 eastbound.
We recite the facts as found by the motion judge, and from uncontested testimony given at the hearing on the motion, supplemented by uncontested facts from the trial. We reserve for later discussion additional trial facts relevant to the defendant's other claims of error.
Purtell approached the vehicle from the passenger side and observed the defendant, reclined in the passenger seat, without a seatbelt. Purtell also observed that the passenger side door was badly damaged -- so much so that it was being held to the door post by a wrapped electrical extension cord. The driver of the vehicle, a woman, did not have a license or any identification (ID). She provided a name and an address in New Hampshire. The defendant provided his Massachusetts ID. The car was a rental car, and the defendant also provided the rental agreement from the glove compartment. The rental was in the name of a third party, who was the only authorized driver.
Purtell determined that the passenger door was unsafe and that the car would have to be towed. He asked the driver to exit the vehicle first, walked her to the back of the car, pat frisked her, and then asked her to sit down on the curb. He then asked the defendant to exit, through the driver's side door. Purtell directed the defendant to put his hands on his head, then placed his hand on the defendant's arms and guided the defendant toward the back of the car. Purtell advised the defendant that he was going to pat frisk him. The defendant instead reached for his waistband, and brought up a black revolver.
Purtell punched the defendant and was able to dislodge the gun, which fell to the ground. After a physical struggle, during which Purtell threatened to release the dog, Purtell was able to subdue the defendant and to handcuff him.
Another officer arrived shortly thereafter, and located the gun on the ground, a few feet from Purtell and the defendant. Subsequent searches of the defendant and the car revealed several different groupings of suspected drugs. There were four bags found in the defendant's pants pocket -- one contained a white substance, and three contained brown powder. Additionally, a small bag of white powder was found underneath the passenger seat in the car, where the defendant had been sitting. Subsequent chemical testing showed that two of the bags contained cocaine, and the other three contained either fentanyl or a mixture of fentanyl and other drugs.
The motion judge denied the defendant's motion to suppress the drugs and the gun. The judge reasoned that the traffic stop and the exit order were lawful, and that the decision to pat frisk the defendant was justified by concerns for officer safety.
The defendant was thereafter convicted of possession of fentanyl with intent to distribute, possession of cocaine, carrying a firearm without a license, carrying a loaded firearm without a license, carrying a firearm while committing a felony, and resisting arrest. On appeal the defendant challenges not only the denial of the motion to suppress, but also, separately, his conviction for possession of fentanyl with intent to distribute. As to the latter he claims, among other things, that there was insufficient evidence of an intent to distribute.
The jury failed to reach a verdict on a charge of assault by means of a dangerous weapon.
Discussion. 1. Motion to suppress. Citing the Supreme Judicial Court's recent decision in Commonwealth v. Torres-Pagan, 484 Mass. 34 (2020), the defendant argues that Trooper Purtell did not have a valid basis to pat frisk him, and that the contraband must be suppressed because it was discovered only as a result of the unlawful search. Notably, the defendant does not contest that the stop for speeding was lawful, nor does he contest the lawfulness of the exit order. Rather, the defendant argues that under Torres-Pagan, even if the exit order was lawful, Purtell could not pat frisk him unless Purtell had an objectively reasonable basis to believe, at the time of the patfrisk, that the defendant was "armed and dangerous." The defendant claims that the facts of this traffic stop did not supply such a basis.
The motion judge did not have the benefit of Torres-Pagan.
The case could be viewed as presenting a knotty fact pattern under which to apply Torres-Pagan. We need not decide how Torres-Pagan applies under the circumstances, however, because the decision denying the motion can be affirmed on another ground. The Supreme Judicial Court has long held that the exclusionary rule does not apply to aid a person who, "after being unlawfully seized, commits acts against the arresting officers that provide independent and sufficient grounds to arrest him." Commonwealth v. Martin, 457 Mass. 14, 22-23 n.9 (2010). Thus, in Commonwealth v. King, 389 Mass. 233, 238 (1983), officers confronted two individuals in a vehicle parked at a rest stop on Route 95. After some initial questioning, an officer asked the defendant to exit the vehicle and began a search. At that point the other occupant exited the car, ducked behind it, and fired a weapon at the officers before fleeing. The officers thereafter searched the defendant and the vehicle, finding a bulletproof vest in the vehicle and a revolver in the defendant's waistband.
The Supreme Judicial Court acknowledged that the exit order and initial seizure of the defendant violated the Fourth Amendment to the United States Constitution, but it nevertheless refused to suppress the evidence seized -- relying upon, as the court put it, "the driver's independent and intervening action of attacking the troopers. These acts broke the chain of causation and dissipated the taint of the prior illegality." Id. at 245. The court held that "[t]he attack by the driver rendered the troopers' subsequent actions appropriate." Id.
The facts here are very similar to the facts in King. Even if we assume a violation of the Fourth Amendment or art. 12 of the Massachusetts Declaration of Rights, as in King, on the theory that Purtell did not have a sufficient basis to pat frisk the defendant, any illegality dissipated when the defendant attempted to pull a weapon on the officer, forcing what may have been a life or death struggle. The defendant's assault of the officer was an "independent and intervening action" that broke the chain from the "poisonous tree." Commonwealth v. Damiano, 444 Mass. 444, 453 (2005). We will not extend the protections of the exclusionary rule to such actions. As we said in Commonwealth v. Mock, 54 Mass. App. Ct. 276, 284 (2002):
"[E]xtending the fruits doctrine to immunize a defendant from arrest for new crimes gives a defendant an intolerable carte blanche to commit further criminal acts so long as they are sufficiently connected to the chain of causation started by the police misconduct. This result is too far reaching and too high a price for society to pay in order to deter police misconduct" (citation omitted).The motion to suppress was properly denied.
We recognize that a suspect who is unlawfully arrested or searched may respond in a range of inappropriate ways, and that not every such response will rise to the level of an independent and intervening action sufficient to break the chain of causation and deny application of the exclusionary rule. For example, disposal of drug evidence, and flight, has been held not to be sufficient to dissipate an unlawful seizure. Commonwealth v. Borges, 395 Mass. 788, 796 (1985). However, while the line between actions that break the chain, and those that do not, will not always be easy to draw, here the defendant's actions, which are similar to the actions in King, clearly are sufficient.
2. Evidence regarding "finger" of fentanyl. The defendant also raises two arguments directed at his conviction of possession with intent to distribute fentanyl. He first argues that the Commonwealth improperly adduced evidence that some of the fentanyl seized from the defendant was in a "finger," as well as evidence going to the weight of a "finger."
This argument is without merit. It is based upon the testimony of Detective Robert Hall, whom the Commonwealth called as an expert in narcotics and narcotics distribution. Detective Hall testified, among other things, to the packaging of fentanyl in "fingers." He then testified generally to the behavior of drug distributors: "[W]hat we find is people will buy the product, whether it's cocaine or fentanyl, heroin, whatever, it is, and they'll add in Inositol, which is a food supplement, or some baking powder and they'll increase their volume. So if you paid $600 for a finger and you add a supplement, you went from 10 grams to 12 or 14 grams, you -- you're going to make more of a profit that way" (emphasis added).
The defendant urges that this testimony improperly introduced hearsay evidence as to the weight of the "finger" of fentanyl that was seized from the defendant, noting that Officer Hall had no personal knowledge of the weight. We do not agree. The above testimony does not refer to the fentanyl seized from the defendant, but instead is general testimony regarding the practices of narcotics distributors. The testimony does not purport to relate the results of actual tests. Moreover, it is at most a stray phrase, and one to which the defendant did not specifically object. The phrase is not a basis for disturbing the conviction, particularly where the weight of the fentanyl seized was not an element of the charge of possession with intent to distribute.
3. Sufficiency of the evidence. Finally, the defendant challenges the sufficiency of the evidence of possession with intent to distribute fentanyl. We are not persuaded.
First, the jury could reasonably have inferred that the defendant possessed a "finger" of fentanyl, which is packaging commonly associated with drug distribution. Trooper Purtell testified that one of the baggies of brown powder found on the defendant's person was a "finger." Detective Hall testified that a "finger of fentanyl" appears as a "round cylinder" containing brown powder. And a supervising chemist at the State police crime lab testified that three of the five baggies of suspected drugs in the defendant's possession contained either fentanyl or mixtures of fentanyl and other drugs.
In addition, the Commonwealth's evidence showed (1) that the defendant possessed multiple controlled substances, (2) that the defendant had over $700 in cash, (3) that the defendant was traveling in a rental car that neither he nor the driver were authorized to drive, and (4) that, as noted, the defendant had a gun.
Taken in toto, this evidence was sufficient to show the defendant's intent to distribute. Detective Hall's testimony established that each of the above pieces of evidence matched frequently observed characteristics of drug distributors. Furthermore, our case law demonstrates that the above observed facts are relevant evidence of drug distribution. See Commonwealth v. Wilson, 441 Mass. 390, 400-401 (2004) (possession of cash); Commonwealth v. Myers, 82 Mass. App. Ct. 172, 178 (2012) (drugs' "variety" and "packaging," and absence of utensils for individual consumption); Commonwealth v. Martin, 48 Mass. App. Ct. 391, 392-393 (1999) (packaging and "vigor of [defendant's] attempt to avoid apprehension"). See also Commonwealth v. Hines, 449 Mass. 183, 188 (2007) (jury could find defendant possessed gun to defend drug cache); Commonwealth v. Stegemann, 68 Mass. App. Ct. 292, 300 (2007) (police affidavit stated rental cars one "usual implement[]" of drug trade). The defendant emphasizes that he was not found with "many small packets of drugs," or "scales, pagers, ledgers, or plastic bags," which the courts have considered as indicia of intent to distribute. This is an argument for the jury, however; such evidence is not necessary to affirm the conviction here.
Judgments affirmed.
By the Court (Sacks, Ditkoff & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 28, 2020.