There is nothing in the evidence to show whether the packaging and amount of cocaine in issue was more consistent with personal use than with an intent to distribute. See Commonwealth v. Wooden, 13 Mass. App. Ct. 417, 422-424 (1982); Commonwealth v. Tripp, 14 Mass. App. Ct. 997, 998-999 (1982). If the proof on the indictment charging possession with intent to distribute is to be held sufficient, it must be by reason of the inferences that are warranted by Nelson's testimony. The only evidence relating to the defendant's intention with respect to the cocaine found on his person is Nelson's statement that it would be cheaper to buy the same amount of cocaine as an eight-ball in one packet.
For over fifty years, Massachusetts courts consistently have applied this doctrine in a horizontal manner where appropriate. In Commonwealth v. Wooden, 13 Mass. App. Ct. 417, 418, 433 N.E.2d 1234 (1982), three police officers -- Saunders, Williams, and Callanan -- were patrolling when the defendant and another man drew their attention. Saunders saw that the other man had something in his hand that he was showing to the defendant.
In Commonwealth v. Thibeau, 384 Mass. 762, 765, S.C., 11 Mass. App. Ct. 677, 683 (1981), a required finding was called for where the defendant was carrying nine bags of "angel dust" on his person, but the court pointed out that there was no evidence of the quantity of narcotic in the bags. That the defendant in the present case might be hoist by his own statement that the rock came from a larger stash, see Commonwealth v. Wooden, 13 Mass. App. Ct. 417, 423 (1982). The form of packaging is recognized as a factor on the question of intent to distribute.
'3. The possession of a controlled substance in multiple baggies is not enough, by itself, to prove possession with intent to distribute. Commonwealth v. Wooden, 13 Mass. App. Ct. 417, 424 (1982). In the instant case, there was no other evidence found on the juvenile except for the bags containing a green, leafy substance to support the charge of possession with intent to distribute.
These include the possession of large quantities of the contraband, Commonwealth v. Pratt, 407 Mass. 647, 652-653 (1990); the absence of implements or paraphernalia for personal use, Commonwealth v. habitue, 49 Mass. App. Ct. 913, 914 (2000); and the presence of cash in combination with pagers or other accoutrements of the drug trade that are found on a defendant's person, Commonwealth v. Evans, 436 Mass. 369, 371-372 n. 4, 376-377 (2002). See Commonwealth v. Wooden, 13 Mass. App. Ct. 417, 423-424 (1982); Commonwealth v. Pena, 40 Mass. App. Ct. 905, 905-906 (1996). In this case, when the defendant was arrested, he did not have any traditional tools of the drug trade.
Consequently, the conviction cannot stand. See Commonwealth v. Latimore, 378 Mass. 671, 676 (1979); Commonwealth v. Wooden, 13 Mass. App. Ct. 417, 422-424 (1982); Commonwealth v. Tripp, 14 Mass. App. Ct. 997, 998 (1982). Compare Commonwealth v. Evans, 50 Mass. App. Ct. 846, 850 (2001).
Commonwealth v.Gullick, 386 Mass. 278, 283 (1982) (probable cause formed on the basis of collective observations of police). See Commonwealth v. Wooden, 13 Mass. App. Ct. 417, 421-422 (1982); Commonwealth v. Zirpolo, 37 Mass. App. Ct. 307, 311 (1994). A reviewing court may consider the "whole silent movie," Commonwealth v. Santaliz, 413 Mass. at 242, disclosed to the eyes of an experienced narcotics investigator rather than "scrutinize in isolation" each of the facts and circumstances known to the officers.
There can be no question that the detectives had a right to follow Paolino and the defendant as they drove away from 162 Prospect Street. "We will not scrutinize police activity based on hunch or suspicion [or confidential tips] until such time as that activity clashes with individual rights." Commonwealth v. Wooden, 13 Mass. App. Ct. 417, 419 (1982). Further, the detectives' decision to stop Paolino was justified.
He claims in particular that the evidence was not sufficient to connect him to the cocaine inside the third-floor apartment, a connection that was essential to the trafficking conviction, and, while he does not question the sufficiency of the evidence to show his possession of the thirteen bags of cocaine (eight from the hallway, five from the porch) that marked his path of flight, he contends that the aggregate amount, 5.09 grams, with a value of $650, was as consistent with personal use as with an intent to sell. See Commonwealth v. Wooden, 13 Mass. App. Ct. 417, 422-424 (1982); Commonwealth v. Sendele, 18 Mass. App. Ct. 755, 758 n. 10 (1984). This issue we need not face if the judge was correct in ruling that the evidence warranted an inference of the defendant's complicity in possessing and distributing the cocaine found inside the apartment.
Further, although the defendant knew Fraelick because of his previous drug activities, there is nothing to show that the police had harassed the defendant in the past and thereby provoked or maneuvered him into dropping the bag. See Commonwealth v. Wooden, 13 Mass. App. Ct. 417, 420 (1982). Compare State v. Belton, 441 So.2d 1195, 1200 (La. 1983) (Dixon, C.J., dissenting, who observes that the defendant's flight into a bar upon seeing police did not give rise to a reasonable suspicion of criminal conduct where police had recently warned that they would arrest him the next time they saw him at that bar). Cf. Commonwealth v. Thibeau, 384 Mass. 762, 764 (1981).