Opinion
15-P-285
04-12-2016
COMMONWEALTH v. CHARLES R. SMITH.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant appeals from his convictions, after bifurcated bench trials, of possession with intent to distribute heroin as a subsequent offense, G. L. c. 94C, § 32(a) & (b), and possession with intent to distribute cocaine as a subsequent offense, G. L. c. 94C, § 32A(c) & (d). He raises two arguments on appeal: first, he contends that the police did not have reasonable suspicion that he was armed and dangerous and, even if a patfrisk was justified, it exceeded the permissible scope, and, therefore, his motion to suppress the fruits of the patfrisk should have been allowed; second, he argues that the evidence was insufficient to prove the offenses beyond a reasonable doubt. We affirm.
Suppression. "When reviewing the denial of a suppression motion, we accept the judge's subsidiary findings of fact absent clear error, but conduct an independent review of the judge's ultimate findings and conclusions of law." Commonwealth v. Gomes, 453 Mass. 506, 508-509 (2009) (quotation omitted). "[O]ur duty is to make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Id. at 509 (quotation and citation omitted). "We defer to the motion judge regarding the weight and credibility of the testimony presented at the suppression hearing." Ibid.
"In 'stop and frisk' cases our inquiry is two-fold: first, whether the initiation of the investigation by the police was permissible in the circumstances, and, second, whether the scope of the search was justified by the circumstances." Commonwealth v. Wilson, 441 Mass. 390, 393-394 (2004) (quotation omitted). "In both aspects, the inquiry is whether the police conduct was reasonable under the Fourth Amendment." Id. at 394. "[A] police officer may make an investigatory stop where suspicious conduct gives the officer reasonable ground to suspect that a person is committing, has committed, or is about to commit a crime." Ibid. The actions of the officer "must be based on specific and articulable facts and reasonable inferences therefrom, in light of the officer's experience." Ibid. "We view the facts and inferences underlying the officer's suspicion . . . as a whole when assessing the reasonableness of his acts." Gomes, supra at 511 (quotation and citation omitted). "Seemingly innocent activities taken together can give rise to reasonable suspicion justifying a threshold inquiry." Ibid. (quotation and citation omitted). "However, reasonable suspicion may not be based merely on good faith or a hunch." Ibid.
The officer had reasonable grounds to suspect the defendant had committed a crime. A 911 caller had reported two men fighting in the street in a dense residential neighborhood at 11:20 P.M. The men had acted unpredictably by parking their car in the middle travel lane, blocking traffic. The conflict was sufficiently heated and noisy that it had caused a disturbance, and several neighbors had gathered to watch the men argue, drawn outside by the commotion. These facts and the reasonable inferences to be drawn from them permitted the officer to reasonably suspect that the defendant had disturbed the peace, in violation of G. L. c. 272, § 53. See Commonwealth v. Hokanson, 74 Mass. App. Ct. 403, 405 (2009) ("As used in G. L. c. 272, § 53, as amended by St. 1943, c. 377, the phrase 'disturbers of the peace' is construed in accordance with the common-law definition of the offense, making it a crime to disturb the peace of the public, or some segment of the public, by actions, conduct or utterances, the combination of which constitute[s] a common nuisance" [quotation and citation omitted]). See also Commonwealth v. Sholley, 432 Mass. 721, 728, 730 (2000), cert. denied, 532 U.S. 980 (2001) (G. L. c. 272, § 53, proscribes tumultuous behavior engaged in with "the intent to cause public inconvenience, annoyance or alarm," and also finding that "[n]oisy behavior that attracts a crowd of onlookers is a common feature of cases involving 'tumultuous' conduct"); Commonwealth v. Marcavage, 76 Mass. App. Ct. 34, 38 (2009) ("'[T]umultuous behavior,' for the purposes of § 53, includes the refusal to obey a police order").
The next step is to determine "whether the scope of the search was justified by the circumstances." Gomes, supra at 512. "[A] Terry-type patfrisk incident to the investigatory stop is permissible where the police officer reasonably believes that the individual is armed and dangerous." Ibid. (quotation omitted). "While the officer need not be absolutely certain that the individual is armed, the basis for his acts must lie in a reasonable belief that his safety or that of others is at stake." Ibid. (quotation omitted). "As with the initial stop, the officer's action must be based on specific and articulable facts and reasonable inferences therefrom, in light of the officer's experience." Ibid. (quotation and citation omitted).
When the officer arrived on the scene, he observed much yelling and commotion. He recognized the defendant from prior dealings. As the officer spoke to the defendant, the latter continued to engage with his brother, taking a few steps towards him. Although the officer instructed him to stay put, the defendant again tried to approach his brother. The brother remained agitated and upset. Neither the brothers nor the situation were under control, and several neighbors continued to watch the confrontation. Twice during the patfrisk, the defendant removed his hands from the cruiser roof where he had been instructed to place them, and reached towards his pocket. Thus, in these circumstances, although the officer did not know with a certainty whether the defendant was armed, "the basis for his acts [lay] in a reasonable belief that his safety or that of others [was] at stake." Ibid. That justification did not end with the discovery of the marijuana grinder.
Deciding as we do, we need not reach the Commonwealth's argument that the inevitable discovery doctrine applies.
Sufficiency. When assessing the sufficiency of the evidence, we review the evidence in the light most favorable to the Commonwealth to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). "The elements for the crime[s] here are (1) knowingly or intentionally possessing the illegal substance . . . and (2) doing so with the specific intent to distribute. Intent may be inferred from the surrounding facts proved at the trial provided any such inference is reasonable." Commonwealth v. Acosta, 81 Mass. App. Ct. 836, 839 (2012).
The defendant contends that there was insufficient evidence to prove his intent to distribute. We disagree. The defendant possessed eight individually wrapped corner-cut baggies of drugs, five of which contained heroin, three cocaine. He also possessed $1,600 in cash and a cellular telephone with messages indicative of drug trading. The defendant was not carrying the paraphernalia one would expect if the drugs were for personal use. The Commonwealth's expert in narcotics distribution testified that, in his opinion, the circumstances were more consistent with drug distribution than with personal use.
For the reasons set out above, the defendant's convictions are affirmed.
Judgments affirmed.
By the Court (Wolohojian, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 12, 2016.