Opinion
16-P-416
04-21-2017
COMMONWEALTH v. Adiel LOPEZ-ROSARIO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Adiel Lopez-Rosario, appeals his conviction of possession of a class B substance. The defendant argues that: (1) his motion to suppress was wrongly denied; (2) the judge's curative instructions were prejudicial; and (3) the Commonwealth presented insufficient evidence of constructive possession. We affirm.
The defendant originally was charged with possession with intent to distribute a class B substance and operating a motor vehicle with a suspended license. The former was reduced to a charge of simple possession and the latter was dismissed at the request of the Commonwealth.
1. Motion to suppress. "After an evidentiary hearing, the motion judge, who was not the trial judge, made the following relevant findings of fact, which we supplement where necessary with evidence in the record that is uncontroverted and implicitly credited by the motion judge." Commonwealth v. Melo, 472 Mass. 278, 285-286 (2015). At about noon on January 30, 2015, Detective Rafael Rivera of the Lowell police department, a trained and experienced narcotics officer, was performing surveillance of 41 West L Street, a suspected stash house, along with several other officers. Their target was the defendant, a suspected drug runner. Eventually, they observed the defendant drive a black Saturn sport utility vehicle, and then park it in a lot at 37 Fulton Avenue, which is not open to the public. Rivera was familiar with the defendant and the Saturn, as he had arrested him on a prior occasion for operating with a suspended license, and had seen him driving the Saturn during the month prior. He also knew that the defendant did not live at 37 Fulton Avenue. After the defendant parked and exited the vehicle, he briefly stopped at the stash house. As he was walking away, the officers stopped and arrested him for operating a motor vehicle with a suspended license.
After arresting the defendant, the officers performed an inventory search of the Saturn. One of the officers, Detective Chase Suong, testified that the primary purpose of the search was for drugs, but that it was also for towing purposes pursuant to the Lowell police department impoundment policy. In the center console, Suong discovered a pill bottle containing baggies of a substance later determined to be cocaine.
"When reviewing the denial of a motion to suppress, we accept the judge's findings of fact and will not disturb them absent clear error." Commonwealth v. Watson, 455 Mass. 246, 250 (2009). However, we undertake "an independent determination as to the correctness of the judge's application of constitutional principles to the facts as found." Ibid. For an inventory search to be lawful, the impoundment must be reasonable, and the search thereafter must be conducted "in accord with standard police written procedures." Commonwealth v. Oliveira, 474 Mass. 10, 13 (2016). "Where the police's true purpose for searching the vehicle is investigative, the seizure of the vehicle may not be justified as a precursor to an inventory search, and must instead be justified as an investigative search." Id. at 14. See Commonwealth v. Ortiz, 88 Mass. App. Ct. 573, 576 (2015).
Here, the officers were left with no other reasonable option but to impound the Saturn. The Saturn was left in a private lot, to which the defendant had no known connection. He was unable to remove it due to his arrest for driving with a suspended license. No evidence was presented that anyone else was present and able to take custody of it, or that other alternatives to impoundment were available. Contrast Oliveira, supra at 15. Based on the totality of the evidence, the impoundment was reasonably necessary. See id. at 14-15, citing Commonwealth v. Ellerbe, 430 Mass. 769, 776 (2000) ("it is appropriate for the police to spare the private parking lot owner the burden of dealing with the vehicle's presence when the driver has been arrested").
The defendant nevertheless argues that the inventory search was a mere pretext to gather evidence. Given the defendant's status as the target of the narcotics surveillance operation, and Suong's testimony that his primary purpose in searching the vehicle was to find drugs, there is a strong hint of pretext. Unlike Ortiz, however, neither of the officers here testified that the arrest on the license suspension was an outright ruse intended to lead to an inventory search. Contrast Ortiz, supra at 576-577 (officer testified that, without investigative motive, he would not have stopped and arrested defendant on a minor motor vehicle infraction). In other words, the sole objective purpose of the arrest here was not to inventory the car. See Commonwealth v Rosenthal, 52 Mass. App. Ct. 707, 715 (2001). With this difference, and the fact that police permissibly may suspect to find contraband during an inventory search, we deem the inventory search here to be acceptable. See Commonwealth v. Horton, 63 Mass. App. Ct. 571, 577 (2005) ("the fact that the police might have suspected that the inventory search could turn up ... [contraband] does not make it an impermissible pretext search").
The defendant also raises the issue of the distance between the parked Saturn and the arrest. The point is irrelevant here, as the arrest was directly linked to the defendant's operation of the vehicle.
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2. Curative instruction. During his opening statement, the prosecutor stated that officers would testify that "they [had] observed the [d]efendant operating a motor vehicle; license suspended." Defense counsel objected, as that charge had been dismissed. The judge instructed the jurors to "disregard entirely" the prosecutor's reference to the defendant's suspended license. The judge further stated, regarding the search of the vehicle: "I'm instructing you now ... that the search of [the defendant's] automobile was conducted lawfully by the police." He then emphasized the point twice more. Defense counsel did not object. The defendant now argues that "the trial judge's repetition in the instructions may have inadvertently emphasized the police actions or testimony," thereby unduly prejudicing him.
No substantial risk of a miscarriage of justice occurred. See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). In giving the curative instruction, the judge did not imply that the officers' testimony was inherently credible, but rather sought to prevent the jury from speculating as to the nature of the stop. Further, the defense's theory revolved around constructive possession of the drugs, not officer credibility.
3. Sufficiency of the evidence of constructive possession. To prove constructive possession, the Commonwealth must show that the defendant had "knowledge coupled with the ability and intention to exercise dominion and control. Proof of possession of a controlled substance may be established by circumstantial evidence, and the inferences that can be drawn therefrom." Commonwealth v. Gonzalez, 452 Mass. 142, 146 (2008) (citations omitted). Mere presence in an area where the contraband is found is not enough to prove possession, but "other incriminating evidence[ ] will serve to tip the scale in favor of sufficiency." Ibid. (quotation omitted).
Here, officers observed the defendant operating the Saturn alone ten times in the preceding month. "The defendant's control over the car supports an inference that he was acquainted with its contents." Commonwealth v. Sanchez, 40 Mass. App. Ct. 411, 416 (1996). See Commonwealth v. Crapps, 84 Mass. App. Ct. 442, 444 (2013) ("Exclusive and continuous operation of the SUV both supported the inference of the defendant's knowledge of its contents and reduced the number of possible alternate possessors"). While the evidence was by no means overwhelming, a rational jury could conclude that the defendant had both knowledge of and intention to control the drugs found in the center console of a car that he frequently operated by himself. The judge did not err in denying the defendant's motion for required finding of not guilty.
Judgment affirmed.