Summary
In Commonwealth v. Pete P., 82 Mass.App.Ct. 1120, 2012 WL 5457529 (2012), the Appeals Court reversed a Juvenile Court order dismissing a complaint against a juvenile who possessed eleven similarly packaged bags of an indeterminate amount of marijuana.
Summary of this case from Commonwealth v. Ilya I.Opinion
No. 11–P–1138.
2012-11-9
COMMONWEALTH v. PETE P., a juvenile.
By the Court (WOLOHOJIAN, BROWN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The juvenile was charged with delinquency by reason of (1) possession of a Class D substance (marijuana) with the intent to distribute, in violation of G.L. c. 94C, § 32C, and (2) a school zone violation, G.L. c. 94C, § 32J. A Juvenile Court judge allowed the juvenile's motion to dismiss, ruling that the Commonwealth had failed to demonstrate that there was probable cause to believe that the juvenile intended to distribute the marijuana. We reverse.
The police report, upon which the complaint issued, showed the following. Two Boston police officers on a late-morning patrol encountered the juvenile and another man. When the young men observed the police, they both looked quickly back and then at each other. The juvenile's companion grabbed his waist area with his right hand and kept his right arm clinched against his right side. Seeing this, the officers believed the juvenile's companion was armed. Although this belief turned out to be incorrect, after obtaining identifying information from the young men, the policed discovered that both had active warrants. They were accordingly arrested. In response to an officer's question, the juvenile stated that he had “some weed.” Indeed, one small plastic bag of a green leafy substance was found in the left front pocket of his pants, and one large plastic bag containing ten smaller plastic bags of a green leafy substance was in the right front pocket. At issue is whether the judge erred in concluding that the facts set out above did not establish probable cause to believe that the juvenile intended to distribute marijuana. A criminal complaint must be supported by “probable cause to believe that a crime was committed ... by the defendant.” Commonwealth v. Valchuis, 40 Mass.App.Ct. 556, 560 (1996). “[P]robable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense.” Commonwealth v. Storey, 378 Mass. 312, 321 (1979), cert. denied, 446 U.S. 955 (1980). The question is not whether the Commonwealth could prove its case beyond a reasonable doubt, but only whether the evidence was sufficient to establish probable cause. See Commonwealth v. Hason, 387 Mass. 169, 174 (1982) (“Probable cause requires more than mere suspicion but something less than evidence sufficient to warrant a conviction”).
Here, the juvenile had one small plastic bag of marijuana in one pocket, and a large plastic bag containing ten smaller plastic bags of marijuana in the other. Although the case is close, we conclude that a fact finder could reasonably infer that the juvenile would not carry marijuana packaged in such a manner unless he intended to distribute it.
Cf. Commonwealth v. Gonzales, 33 Mass.App.Ct. 728, 731 (1992) (ten glassine packets of heroin held together by elastic band was evidence of intent to distribute).
The juvenile argues that the manner of packaging was equally consistent with personal use and, therefore, that there was no probable cause to believe he intended to distribute the drugs. The probable cause standard is not so stringent as to require the Commonwealth to exclude all other possible explanations for the way in which the juvenile was carrying drugs packaged in this manner. See Commonwealth v. Escalera, 462 Mass. 636, 646 (2012) (test is probable cause, not certainty).
The order dismissing the complaint is reversed.
So ordered.