Commonwealth v. Ilya I.

470 Mass. 625

24 N.E.3d 1048

COMMONWEALTH

v.ILYA I., a juvenile.

SJC–11637.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 6, 2014.

Decided Feb. 13, 2015.

Gail S. Strassfeld for the juvenile.

Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

HINES, J.

After a street encounter in the Dorchester section of Boston, a police officer arrested the juvenile and charged him with possession of a class D substance with the intent to distribute in violation of G.L. c. 94C, § 32C (a ). A clerk-magistrate issued a delinquency complaint formally charging the juvenile with the offense. A judge in the Juvenile Court allowed the juvenile's motion to dismiss the complaint for lack of probable cause. The Commonwealth sought review in the Appeals Court, which reversed

the dismissal in an unpublished decision. See Commonwealth v. Ilya I., 84 Mass.App.Ct. 1128, 2014 WL 101576 (2014). We granted the juvenile's petition for further appellate review and now affirm the dismissal of the complaint.

Background. Our review of the judge's order of dismissal is confined to the four corners of the application for complaint, which in this case is essentially the police incident report detailing the facts underlying the juvenile's arrest.¹ Following is a summary of the police incident report.²

On June 1, 2012, members of the youth violence strike force, a unit within the Boston police department, were conducting surveillance in Codman Square in Dorchester. The police officers were familiar with that area as being one where drug and gang activity took place. Shortly before 5 p.m ., the officers observed four black teenagers in the vicinity of Washington Street and Talbot Avenue. A male and a female approached the teenagers and engaged them in a “brief conversation.” Two of the teenagers walked up Washington Street toward Southern Avenue with the couple. The other two teenagers remained in the location where the first encounter with the couple occurred and appeared to look up and down Washington Street. When the two teenagers and the couple reached Southern Avenue, they had a “brief interaction,” after which the teenagers walked back in the direction from which they had come. Based on these observations, the police officers believed that “a drug transaction may have occurred.” They relayed this information to other police officers in the vicinity.

As the police officers approached a restaurant located at the corner of Washington Street and Talbot Avenue, the four teenagers walked away “in a hurried manner.” The juvenile, who was part of the group of black teenagers under surveillance, looked back at the police officers several times as he crossed Washington Street. The juvenile and the other teenagers entered a vehicle parked on Washington Street across from the restaurant. Two of the teenagers got out of the vehicle and walked up Washington

Street in the same direction as before. The vehicle followed and stopped after about one block, where the two teenagers who had gotten out reentered the vehicle. The vehicle left the area, turning onto Aspinwall Road and then onto Whitfield Street before stopping at the corner of Dunlap Road and Whitfield Street.

At that location, the police officers approached the vehicle on both sides.³ A police officer asked the passenger to roll down his window. The passenger opened the door instead of rolling down the window, and the police officer smelled the odor of unburnt marijuana. The police officers requested identification from the driver and the passenger; the passenger did not produce identification, and the driver did not have a valid license to operate the vehicle. The occupants were then ordered to get out of the vehicle. As the juvenile got out, the police officer noticed that the juvenile twice looked down at his groin area which, along with the smell of unburnt marijuana, prompted a patfrisk and the subsequent discovery of thirteen individually wrapped bags of marijuana inside a clear plastic sandwich bag.

Discussion. Where an arrest occurs without a warrant, a judicial officer must review the complaint application for probable cause to believe that the person arrested committed the offense charged before issuing the complaint. See Commonwealth v. Lester L., 445 Mass. 250, 255, 835 N.E.2d 244 (2005) ; Commonwealth v. DiBennadetto, 436 Mass. 310, 313, 764 N.E.2d 338 (2002) ; Mass. R.Crim. P. 3(g)(2), as appearing in 442 Mass. 1502 (2004). The complaint application must allege facts sufficient to establish probable cause as to each element of the offense charged. See Commonwealth v. Moran, 453 Mass. 880, 884, 906 N.E.2d 343 (2009). After the issuance of a complaint, the defendant (or juvenile) may challenge the probable cause finding by a motion to dismiss. DiBennadetto, supra. The probable cause standard on a motion to dismiss a complaint is identical to that applied in the analysis of a motion to dismiss an indictment for lack of probable cause. See Lester L., 445 Mass. at 255–256, 835 N.E.2d 244, citing Commonwealth v. O'Dell, 392 Mass. 445, 450, 466 N.E.2d 828 (1984). As the issue of probable cause presents a question of law, we review the motion judge's determination de novo. Commonwealth v. Humberto H., 466 Mass. 562, 566, 998 N.E.2d 1003 (2013).

1. The probable cause standard. “[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. Stewart, 469 Mass. 257, 262, 13 N.E.3d 981 (2014), quoting Commonwealth v. Santaliz, 413 Mass. 238, 241, 596 N.E.2d 337 (1992). The test is objective. The validity of the police officer's conduct is determined by focusing on whether a “reasonable” person would concur in the action taken. Commonwealth v. Daniel, 464 Mass. 746, 751, 985 N.E.2d 843 (2013), citing Commonwealth v. Hason, 387 Mass. 169, 175, 439 N.E.2d 251 (1982). Therefore, we require only that “[t]he officers must have entertained rationally ‘more than a suspicion of criminal involvement, something definite and substantial, but not a prima facie case of the commission of a crime, let alone a case beyond a reasonable doubt.’ ” Santaliz, supra at 241, 596 N.E.2d 337, quoting Commonwealth v. Rivera, 27 Mass.App.Ct. 41, 45, 534 N.E.2d 24 (1989). Put succinctly, probable cause “requires more than mere suspicion but something less than evidence sufficient to warrant a conviction.” Commonwealth v. Roman, 414 Mass. 642, 643, 609 N.E.2d 1217 (1993), quoting Hason, supra at 174, 439 N.E.2d 251.

2. Analysis of the complaint application. Because the juvenile concedes possession of the marijuana found on his person, we focus our analysis on whether the complaint application contained sufficient facts to establish probable cause to believe the juvenile intended to distribute the marijuana. The Commonwealth argues that the confluence of events described in the police incident report establishes probable cause to arrest the juvenile for possession with intent to distribute the thirteen bags of marijuana found on his person, as opposed to simple possession of the drugs. In particular, the Commonwealth relies on the following: (1) the quantity and packaging of the marijuana secreted in the juvenile's groin area; (2) the juvenile's association with a group of individuals engaged in conduct consistent with a drug transaction; (3) the juvenile's nervous demeanor during the encounter with the police; (4) the odor of unburnt marijuana; (5) the traffic pattern of the vehicle in which the juvenile was a passenger; and (6) the lack of drug paraphernalia on the juvenile's person. We recognize that probable cause is determined from the totality of the circumstances, rather than each factor separately. Where no single factor is determinative, however, we assess separately the value of each factor in establishing the juvenile's intent to distribute, rather than simply possess, the marijuana found on his person. See Humberto H., 466 Mass. at 566, 998 N.E.2d 1003. (“We consider each of these factors, recognizing that probable cause must be determined based on the totality of the evidence”).

a. The quantity and packaging of the drugs. The Commonwealth does not argue that possession of thirteen individually wrapped bags of an unknown quantity of marijuana, standing alone, is sufficient to raise an inference of intent to distribute. Instead, the claim is that possession of that quantity of marijuana in combination with other factors establishes probable cause to believe the juvenile intended to distribute the marijuana found on his person. This quantity, whatever the precise amount,⁴ and the packaging in separate bags add little to the corpus of facts needed to establish probable cause.

As noted, the police incident report does not claim that the juvenile was the person who interacted with the couple when the assumed drug transaction took place. However, for the sake of argument we infer that he did so and consider the quantity and packaging in that context. A small undetermined amount of marijuana is entirely consistent with personal use. Cases involving comparable amounts illustrate the point. See Commonwealth v. Sepheus, 468 Mass. 160, 165, 9 N.E.3d 800 (2014) (“a few individually packaged rocks of crack cocaine do not suffice” to show intent to distribute); Humberto H., 466 Mass. at 568, 998 N.E.2d 1003 (possession of unknown quantity of five bags of marijuana “small enough that it fit in one pocket of a pair of shorts that the juvenile wore under his pants” insufficient to show intent to distribute); Commonwealth v. Acosta, 81 Mass.App.Ct. 836, 841–842, 969 N.E.2d 720 (2012) (possession of 3.16 grams of cocaine in five individual bags insufficient to indicate intent to distribute); Commonwealth v. Andrews, 49 Mass.App.Ct....