Opinion
12-P-1930
12-12-2014
COMMONWEALTH v. RAMON MONTERO.
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
Ramon Montero appeals from his conviction of trafficking in 100 to 200 grams of cocaine. He contends that (1) the motion judge erred in denying his motion to suppress items seized after a traffic stop, as well as statements made later to law enforcement, and (2) the trial judge erred in denying his motion for a required finding of not guilty. We affirm.
Discussion. 1. Motion to suppress. "In reviewing a ruling on a motion to suppress, [w]e accept the judge's subsidiary findings absent clear error but conduct an independent review of his ultimate findings and conclusions of law." Commonwealth v. Gray, 465 Mass. 330, 342 (quotation and citation omitted), cert. denied, 134 S. Ct. 628 (2013).
a. Consent to search. The defendant contends that the trooper's continued inquiry after the stop of his motor vehicle in 2008 exceeded permissible limits, and that his consent to a search of the vehicle was improperly obtained. "It is well settled that a police inquiry in a routine traffic stop must end on the production of a valid license and registration unless the police have grounds for inferring that . . . the operator . . . [was] involved in the commission of a crime . . . or engaged in other suspicious conduct (citations omitted)." Commonwealth v. Robie, 51 Mass. App. Ct. 494, 497 (2001), quoting from Commonwealth v. Torres, 424 Mass. 153, 158 (1997).
The defendant does not contest the propriety of the initial stop for a civil infraction.
The motion judge found that (1) the trooper was concerned for his safety because the defendant did not pull over immediately and leaned forward and to his left before stopping the vehicle, cf. Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 315 (1992); (2) the trooper detected a strong smell of air freshener emanating from the car, thus raising a concern whether the air fresheners were being used to mask the odor of other substances, cf. Commonwealth v. Wright, 85 Mass. App. Ct. 380, 384 (2014); and (3) the defendant provided inadequate and inconsistent information about the ownership of the car, where he had been, and where he was going, see Commonwealth v. Feyenord, 445 Mass. 72, 74 (2005); cf. Commonwealth v. Robie, supra at 498. These "basic questions about [his] identit[y] and destination" represented a limited extension of the initial inquiry. Commonwealth v. Feyenord, supra. The trooper, who had been joined by other troopers, then asked the defendant if there were weapons in the car, and if the troopers could search the car. The defendant said "sure" and got out of the car. The judge found that the defendant consented to the search.
The stop occurred on April 29, 2008, prior to the effective date of G. L. c. 94C, §§ 32L-32N. See Commonwealth v. Cruz, 459 Mass. 459, 464, 472 (2011) (odor of burnt marijuana alone no longer provides reasonable suspicion of criminal activity); Commonwealth v. Overmyer, 469 Mass. 16, 17 (2014) (odor of unburnt marijuana alone does not provide probable cause to search motor vehicle).
"When the Commonwealth relies on consent as the basis for a warrantless search, it must demonstrate consent unfettered by coercion, express or implied." Commonwealth v. Cantalupo, 380 Mass. 173, 177 (1980) (quotation and citation omitted). "Voluntariness of consent is a question of fact to be determined in the circumstances of each case." Ibid. (quotation and citation omitted). The judge's finding that the defendant voluntarily consented to the search is supported by the evidence and was not clearly erroneous. The motion judge found that the three troopers on the scene did not threaten or coerce the defendant, who was not in custody, and that the questioning had been "fairly innocuous" prior to the request. "The fact that the [troopers] did not explain the right of the defendant to refuse to consent to a search is a factor to be considered in assessing the voluntariness of the consent, but it is not conclusive." Commonwealth v. Cantalupo, supra at 178.
The police used force to open the compartment in which the drugs were found. The defendant did not raise this issue during the course of the motion to suppress or on appeal. See Commonwealth v. Rivera, 429 Mass. 620, 623 (1999).
b. Voluntariness of statements. The defendant contends that the Commonwealth failed to meet its burden of demonstrating the voluntariness of the statements made after he was taken into custody. Weighing the credibility of both the defendant and troopers, the motion judge found that the statements made by the defendant at the State police barracks were made voluntarily and freely. The judge explicitly discredited the defendant's testimony that he was threatened with the loss of his children. The defendant claims that he was highly distressed, but "distress, even profound distress" does not compel the finding that a statement is involuntary. Commonwealth v. Stroyny, 435 Mass. 635, 646 (2002).
The defendant also submits that his statements should be considered involuntary as matter of law because they were not recorded, and that the trial judge failed to give this factor sufficient weight. See Commonwealth v. DiGiambattista, 442 Mass. 423, 446-449 (2004). The failure to record the interview, while disapproved of, does not necessitate a finding of coercion. See Commonwealth v. Lopes, 455 Mass. 147, 168 n.18 (2009). The judge's determination that the statements were made voluntarily was not clearly erroneous or contrary to law.
2. Sufficiency of the evidence. The defendant contends that the Commonwealth failed to demonstrate possession of the drugs beyond a reasonable doubt. At trial, the Commonwealth proceeded on a theory of constructive possession, a theory which requires the demonstration of knowledge coupled with the ability and intention to exercise dominion and control. See Commonwealth v. Crapps, 84 Mass. App. Ct. 442, 444-445 (2013).
Although mere presence in the car is insufficient to establish constructive possession, ibid., there was more here. The contraband was found in a hidden compartment of the vehicle near the defendant's foot. Cf. Commonwealth v. Barbosa, 49 Mass. App. Ct. 344, 347 (2000). The trooper testified that the defendant stated that he was driving the vehicle for someone else, that he was going to meet him, that he knew this individual was a drug dealer, and that he had made three previous trips for the dealer. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the defendant's presence in the vehicle together with the additional incriminating statements was sufficient to permit the fact finder to conclude beyond a reasonable doubt that the defendant knew of and exercised dominion and control over the drugs. See Commonwealth v. Garcia, 409 Mass. 675, 687 (1991).
The defendant also contends that the Commonwealth failed to prove that the cocaine weighed 100 grams or more because only a portion of the cocaine was weighed and analyzed. This argument is foreclosed by Commonwealth v. Johnson, 410 Mass. 199, 201 (1991).
Judgment affirmed.
By the Court (Graham, Brown & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 12, 2014.