Opinion
21-P-1066
01-23-2023
COMMONWEALTH v. JAYMES WILLIAMS
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant was indicted in the Superior Court for crimes including, as relevant here, possession with intent to distribute marijuana. After entering a conditional guilty plea, see Commonwealth v. Gomez, 480 Mass. 240 (2018), he appeals from the denial of his motion to suppress evidence of contraband, including the drugs, found after a traffic stop. We affirm.
The defendant was also indicted for unlawful possession of a firearm, third offense, and unlawful possession of a large-capacity firearm.
Facts.
We summarize the facts relevant to this appeal as the judge found them, supplementing with additional facts the judge implicitly credited. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 437 (2015). Just before 8 P.M- on February 9, 2018, Massachusetts State Troopers Robert Twitchell and Ryan Toolin were on duty in Fall River when they noticed a 2018 Dodge Charger driving without its rear lights illuminated. There were two people in the car, the driver and the defendant, who was seated in the front passenger's seat. Twitchell, who was driving, activated the blue lights on the troopers' cruiser and the car pulled over; the defendant was seated in the car's front passenger's seat. Both troopers got out of their cruiser and approached the car. At some point before reaching the car, the troopers each smelled the odor of unburned marijuana emanating from it. Twitchell went to the driver's side of the car and asked the driver for his license and registration. He also explained the reason for the stop. He noticed at that point that the driver was not wearing a seat belt. The driver apologized, explained that the car was a rental and that he was unfamiliar with it, and then turned on the rear lights. Toolin went to the passenger's side of the car; he asked the defendant for his identification and the defendant provided it.
The defendant moved to suppress both evidence and statements that he made to the police. The judge allowed so much of the defendant's motion as was directed to his statements and so much of that order is not before us; the defendant instead challenges only so much of the order as declined to suppress the tangible evidence seized. Accordingly, we omit certain facts that are significant only to the defendant's statements. Additionally, we note that in making his findings, the judge explicitly credited the testimony of each of the Commonwealth's witnesses.
While waiting for the operator to produce the requested documents, the troopers commented on the smell of marijuana and asked the driver about it. In response, the driver leaned back and reached into his pocket to pull out a small bag of marijuana. As he did so, Toolin, who was on the passenger side of the car, saw another bag in the driver's sweatshirt pocket; the troopers also noticed a third small bag on the car's console, by the cigarette lighter. Toolin shined his flashlight into the car and saw "a large bag of marijuana" that he described as "vacuum sealed" on the floor of the passenger compartment directly behind the defendant's seat and "[w]ithin arm's reach" of the defendant. The bag contained approximately sixteen ounces of marijuana. Some two minutes elapsed between the troopers' arrival at the side of the stopped car and their observation of the large bag of marijuana. Toolin saw the large bag of marijuana and alerted Twitchell to its presence before the driver provided Twitchell with his license and registration.
Toolin testified that he could see "a green vegetative substance that looked like marijuana," and confirmed that it was not "hidden in any way."
The troopers arrested both the driver and the defendant. Pat frisking the defendant, the troopers found a loaded firearm on his ankle.
Discussion.
1. Standard of review.
In reviewing the denial of a motion to suppress, we "accept[] the judge's subsidiary findings of fact absent clear error, give[] substantial deference to the judge's ultimate findings and conclusions of law, but independently review[] the correctness of the judge's application of constitutional principles to the facts found." Commonwealth v. Luj an, 93 Mass.App.Ct. 95, 100 (2018), quoting Commonwealth v. Magee, 423 Mass. 381, 384 (1996) .
2. Judge's findings.
To the extent that the defendant challenges as erroneous the judge's findings that the troopers smelled unburned marijuana after stopping the car but before reaching it, observed the large bag of marijuana, concluded that the bag was "vacuum sealed," and believed the substance in that bag to be marijuana, we are not persuaded. The same is true for the defendant's challenge to the judge's resolution of the troopers' testimony about which of them made the decision to arrest the driver and the defendant. The evidence, as the judge credited it, supported those findings. See Commonwealth v. Santos, 465 Mass. 689, 698 (2013), quoting Commonwealth v. Watson, 455 Mass. 246, 250 (2009) ("Questions of credibility are the province of the motion judge who had the opportunity to observe the witnesses").
As to the decision to arrest, although each trooper claimed that he made the decision to arrest, the judge was not bound to accept either of their memories as accurate. Further, Toolin testified that he "[didn't] recall who made the decision."
We likewise reject the defendant's argument that the judge's reference to his own courtroom experience with the pervasive nature of the smell of unburned marijuana was improper. Where the judge explicitly credited both troopers' accounts of having smelled the odor of fresh marijuana from outside the car at issue here, the judge did not "substitute evidence from another case" into the findings here, engage in an improper "demonstration," or take judicial notice of any fact.Cf. Commonwealth v. Caruso, 476 Mass. 275, 289 (2017) ("Jurors may rely on their own common sense and life experience in their role as fact finders").
There was no error in the judge's reference to Toolin's leaving his window down as something "a good police officer would [do]."
The judge's finding that the large bag of marijuana was "in the back seat" was, in our view, simply a shorthand method of summarizing the more detailed testimony the troopers gave about the precise location of the bag -- on the floorboards in the rear passenger area, behind the front passenger's seat -- and was not error. There is likewise no merit to the defendant's argument that the judge erred in finding that the large bag of marijuana was "within arm's length" of the defendant as he sat in the front passenger's seat. The large bag of marijuana was on the floor directly behind the seat in which the defendant was sitting; that it might have been awkward to access it without making some adjustment to his position in the seat does not require a different result. See Commonwealth v. Indrisano, 87 Mass.App.Ct. 709, 710 (2015) (defendant "reach[ed] his arm behind the 'split bucket' passenger seat") .
The fact that defense counsel used the same shorthand in arguing his motion before the judge supports this conclusion.
3. Exclusionary rule.
While we agree that Toolin lacked a proper basis to order the defendant to provide his identification when he did, see Commonwealth v. Torres, 424 Mass. 153, 157-158 (1997), we do not agree that the marijuana found in the car must be suppressed as a result. This is because "[t]he exclusionary rule bars [only] the use of evidence derived from an unconstitutional search or seizure." Commonwealth v. Pearson, 486 Mass. 809, 812 (2021), quoting Commonwealth v. Fredericq, 482 Mass. 70, 78 (2019). Here, there is nothing to suggest that Toolin's taking the defendant's identification itself led to the observation of the large bag of marijuana, nor does the evidence show that Toolin's action unnecessarily prolonged the stop. Contrast Torres, supra at 155. We explain.
As Twitchell testified, and the judge credited, immediately upon seeing the driver of the car Twitchell had grounds to cite him for two civil infractions -- based on the failure to illuminate the rear lights on the car and the seatbelt violation -- and ultimately did so. See Commonwealth v. Washington, 459 Mass. 32, 40 (2011) (seatbelt violation); Commonwealth v. Feyenord, 62 Mass.App.Ct. 200, 205 (2004), S.C., 445 Mass. 72 (2005), cert, denied, 546 U.S. 1187 (2006) (lights violation). At the time Toolin took the defendant's license, however, Twitchell had not yet completed the "tasks tied to the traffic infraction" by checking the driver's license and registration. Commonwealth v. Cordero, 477 Mass. 237, 242 (2017), quoting Rodriguez v. United States, 575 U.S. 348, 354 (2015). Toolin's conduct, while improper, did not prolong that process, or contribute in any other way to the discovery of the contraband at issue here. Contrast Commonwealth v. Goncalves-Mendez, 484 Mass. 80, 85 (2020) ("evidence is to be excluded if it is found to be the 'fruit' of a police officer's unlawful actions" [quotation omitted]).
4. Probable cause.
The defendant argues that the Commonwealth's evidence failed to demonstrate probable cause to believe that the defendant constructively possessed the marijuana found behind his seat. "In making a probable cause determination, 'as the very name implies, we deal with probabilities[,] . . . the factual and practical considerations of everyday life on which reasonable and prudent [individuals], not legal technicians, act.'" Commonwealth v. Agogo, 481 Mass. 633, 637 (2019), quoting Commonwealth v. Cast, 407 Mass. 891, 895 (1990). "Probable cause is a 'considerably less exacting' standard than that required to support a conviction at trial." Commonwealth v. Reyes, 98 Mass.App.Ct. 797, 801 (2020), quoting Commonwealth v. Stirlacci, 483 Mass. 775, 780 (2020). Indeed, "[t]he probable cause standard does not require a showing that evidence more likely than not will be found; in other words, it is not equivalent to a preponderance of the evidence standard." Commonwealth v. Murphy, 95 Mass.App.Ct. 504, 509 (2019). A finding of probable cause requires no more than "sufficient facts to warrant a person of reasonable caution in believing that an offense has been committed." Reyes, supra, quoting Stirlacci, supra. Our review is de novo. Reyes, supra.
Constructive possession requires "knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Tiscione, 482 Mass. 485, 494 (2019), quoting Commonwealth v. Dagraca-Teixeira, 471 Mass. 1002, 1004 (2015). "[M]ere presence in the area where contraband is found is insufficient to show 'the requisite knowledge, power, or intention to exercise control over the [contraband], but presence, supplemented by other incriminating evidence will serve to tip the scale in favor of sufficiency.'" Commonwealth v. Woods, 94 Mass.App.Ct. 761, 765-766 (2019), quoting Commonwealth v. Schmieder, 58 Mass.App.Ct. 300, 303 (2003).
The troopers' description of the strong odor of unburned marijuana emanating from the car, particularly when coupled with the large bag of marijuana in plain view on the floor immediately behind the defendant's seat, established probable cause for the defendant's knowledge of the marijuana. As to the defendant's intent to control the large bag of marijuana found in the car, we consider the following constellation of facts. First, the defendant was seated within inches of the large, unconcealed bag of marijuana, which was within his reach. See Woods, 94 Mass.App.Ct. at 765-766 (presence a factor in constructive possession analysis). Second, the car he was in was a rental that, based on the operator's unfamiliarity with its lights, the driver had only recently begun to drive. Together with the other facts and circumstances presented, a reasonable person could infer that where the operator had only recently rented the car and was using it both to transport the defendant and to transport a large bag of marijuana, their occupation of the car and their use of it to move the marijuana were related. See Commonwealth v. Cotto, 69 Mass.App.Ct. 589, 592 (2007), quoting Commonwealth v. Merola, 405 Mass. 529, 533 (1989) ("An inference drawn from circumstantial evidence 'need only be reasonable and possible; it need not be necessary or inescapable'"). Third, the evidence of three smaller baggies of marijuana in the front seat of the car, all consistent in size and appearance, but divided between the driver's pockets and the console of the car (which was in plain view immediately beside the defendant), suggested that both the driver and the defendant either used or sold marijuana in the smaller amounts. In that context, a reasonable person would suspect that the large bag of marijuana in the back seat of the car was a likely source of continuing supply, and that both the operator and the defendant intended to use it as such, regardless of whether their ultimate plan was to sell the marijuana or use it themselves. See Commonwealth v. Arias, 29 Mass.App.Ct. 613, 618 (1990), S_.C., 410 Mass. 1005 (1991) ("Whether an inference is warranted or is impermissibly remote must be determined, not by hard and fast rules of law, but by experience and common sense" [quotation omitted]). Ultimately, while we consider it a close question, we conclude that the evidence here was sufficient to meet the relatively low standard of probable cause.
We are not persuaded that the troopers' use of a flashlight to look inside the car while standing beside it was a search, for constitutional purposes. See Commonwealth v. Ling, 370 Mass. 238, 241 (1976). We likewise defer to the judge's finding that the troopers were able to see into the bag and, given their training and experience, to form the opinion that the substance inside the large package was marijuana.
This case is readily distinguishable from Commonwealth v. Romero, 464 Mass. 648 (2013), on which the defendant relies. First, in Romero the court considered a postconviction challenge to the sufficiency of the trial evidence that he constructively possessed a firearm. See Id. at 652-659. The evidence was therefore subject to review under the Latimore standard, and not the probable cause standard. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Second, the evidence of the defendant's constructive possession of the firearm in that case was more limited than the evidence on which we rely here. In Romero, the firearm at issue was being held by a passenger in the defendant's car; that fact, and the defendant's presence in the car, were the only links between the defendant and the gun. See Romero, supra at 656. As we have explained, the connections here between the defendant and the large bag of marijuana are more extensive than mere presence in the car in which the marijuana was found.
5. Response to single justice order.
The defendant contends, and the Commonwealth agrees, that in tendering his conditional plea to the charges in this case the defendant substantially adhered to the requirements of Mass. R. Crim. P. 12 (b) (6), as appearing in 482 Mass. 1501 (2019). The parties also agree that even if the defendant had not done so, any error in his original motion was cured by the Superior Court judge's superseding order, dated back to the plea. We agree.
We need not and do not reach the Commonwealth's alternative ground for our conclusion that the defendant's right to appeal so much of the order as denied his motion to suppress evidence was adequately preserved in this case.
Conclusion.
So much of the order entered June 28, 2018, as denied the defendant's motion to suppress evidence of contraband found after the motor vehicle stop is affirmed.
So ordered.
The panelists are listed in order of seniority.