Opinion
11-P-570
02-23-2012
COMMONWEALTH v. RUTH E. RIVERA.
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
In assessing the propriety under the State and Federal Constitutions of the exit order and the search of the vehicle in this case, we examine the objective facts without regard to the subjective intent of the officers who made the exit order and undertook the search. See Commonwealth v. Santana, 420 Mass. 205, 208 (1995), quoting from Commonwealth v. Ceria, 13 Mass. App. Ct. 230, 235 (1982) ('[P]olice conduct is to be judged 'under a standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved.' Scott v. United States, 436 U.S. 128, 138 [1978]'). The exit order was lawful based upon the presence of probable cause to arrest the defendant for her participation in prior drug sales. See ibid. The authority of the police to place the defendant under arrest, of course, included a subsidiary power first to remove her from the parked vehicle in which she was sitting.
As the defendant recognizes, the lawfulness of the exit order substantially weakens the rest of her case. On all the facts and circumstances here, including the prior drug sales and the fact that a known heroin user was at the driver's window of the vehicle shortly before the exit order was issued, when the glassine bag fell from the defendant's lap upon her exit from the vehicle the police had probable cause to arrest her for possession of a controlled substance with intent to distribute while seated in the vehicle. G. L. c. 94C, § 32(a). The search of the vehicle, including the closed Tylenol container in the vehicle, was therefore appropriate under both Arizona v. Gant, 556 U.S. 332 (2009), and the Massachusetts statute, G. L. c. 276, § 1, as a search for further evidence of that latter crime incident to a lawful arrest. Consequently, there was no error in the judge's denial of the motion to suppress.
The admission of the hearsay testimony of Detective Piazza was not prejudicial error. See Commonwealth v. Dargon, 457 Mass. 387, 399 (2010) (under the prejudicial error standard the Commonwealth must show that any error 'did not influence the jury, or had but very slight effect'). The testimony was both cumulative of other properly admitted evidence and was only tangentially relevant to the question of the defendant's guilt or innocence. See Commonwealth v. Ramirez, 55 Mass. App. Ct. 224, 228 (2002).
Finally, even if the way in which the officer at trial phrased his conclusion about the packaging of the drugs was error, the defendant's objection was not preserved and any error did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 293- 295 (2002).
Judgments affirmed.
By the Court (Graham, Rubin & Milkey, JJ.),