Opinion
10-P-1835
12-16-2011
COMMONWEALTH v RAFELIN MARTINEZ.
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
Following a jury trial in the District Court, the defendant was found guilty of possession of cocaine with intent to distribute, G. L. c. 94C, § 32A. The defendant appeals from the denial of his pretrial motion to suppress evidence (cocaine and money), claiming that the motion judge erred in concluding that he voluntarily consented to the search of his home. We disagree and, therefore, affirm the judgment.
'In reviewing a decision on a motion to suppress, 'we accept the judge's subsidiary findings of fact absent clear error 'but conduct an independent review of his ultimate findings and conclusions of law."" Commonwealth v. Powell, 459 Mass. 572, 574 (2011) (citations omitted). Following an evidentiary hearing, the judge found that in the course of executing an arrest warrant, the police lawfully entered the defendant's apartment where they observed cocaine and small plastic bags on the kitchen table. They advised the defendant of his Miranda rights and requested permission to search the apartment. At this point, approximately six officers were surrounding the defendant, who was seated at the kitchen table. Speaking with the assistance of a Spanish interpreter, the defendant told the police that they did not have permission to conduct a search. Shortly thereafter, however, as the defendant was being escorted from the kitchen, the police informed him that they intended to 'freeze' the apartment and obtain a search warrant. Upon hearing that the police would get a warrant, the defendant changed his position and gave them permission to search. At the same time, he informed the officers that they would find more drugs in the bedroom beneath the bed. The officers located these drugs, as well as approximately $4,400 in cash in the top drawer of the defendant's nightstand, $732 in cash in a plastic water jug, and four bottles of inositol (a common cutting agent for cocaine) in the medicine cabinet.
The defendant is correct that when, as here, the police rely on consent to conduct a search, the burden of proving that the consent was freely and voluntarily given is on the Commonwealth. See Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 92-93 (2010). That burden was met here. The evidence adduced at the motion hearing amply supported the judge's findings that the defendant's consent to the search of his apartment was given freely, voluntarily, and without coercion. There is no merit to the defendant's claim that the presence of numerous police officers rendered his consent involuntary. It suffices to note that the defendant, just moments earlier and surrounded by the same number of officers, did not give his consent. Nor did the fact that the police informed the defendant of their intent to obtain a search warrant undermine the validity of the defendant's consent. See id. at 93.
The judge did not err in denying the motion to suppress and, as a result, the drugs properly were admitted in evidence. We also conclude that the judge properly denied the defendant's motion for a required finding of not guilty.
Judgment affirmed.
By the Court (Cypher, Vuono, & Rubin, JJ.),