Commonwealth v. Perez

87 Mass.App.Ct. 278

28 N.E.3d 504

COMMONWEALTH

v.Carlos Manuel PEREZ.

No. 12–P–1378.

Appeals Court of Massachusetts, Middlesex.

Argued Dec. 8, 2014.

Decided April 15, 2015.

Jeffrey G. Harris, Boston, for the defendant.

Matthew Bailey for the Commonwealth.

Present: KAFKER, GRAINGER, & AGNES, JJ.

Opinion

GRAINGER, J.

The defendant was charged with possession of cocaine with intent to distribute.

He was convicted by a jury in the District Court of the lesser included offense of possession of a class B substance, G.L. c. 94C, § 34. He appeals, asserting insufficiency of the evidence, error in the jury instructions, and error in the denial of his motion to suppress evidence and his motion for a new trial or a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). His claims of reversible error are primarily dependent on the issuance and execution of a so-called “no-knock” warrant that produced the evidence resulting in his conviction. We address ancillary claims before considering the issuance of the warrant, referring to the undisputed facts as they are pertinent to the issues.

Sufficiency. The defendant argues that the Commonwealth failed to demonstrate the requisite knowledge coupled with intent to exercise control that would support a conviction of constructive possession of the cocaine found in his bedroom. We disagree. The jury received evidence that the defendant was the only person in his bedroom when the police executed the search warrant. The police found cocaine in a glassine bag in the pocket of a man's shirt hanging in the defendant's bedroom closet. In the defendant's bedroom the police found a bottle of boric acid, sandwich bags, a digital scale, $422 in cash, a Massachusetts identification card bearing the defendant's name and picture, a Venezuelan passport bearing the defendant's name and a picture closely resembling the defendant, and a billing receipt addressed to the defendant at that apartment.

The defendant's argument that the absence of paraphernalia for personal use renders the conviction reversible ignores the fact that he was charged with intent to distribute. The absence of paraphernalia supports the distribution charge, and thereby also supports his conviction of a lesser included offense under these

circumstances.¹ In any event, the absence of paraphernalia is irrelevant to the offense of simple possession. See Commonwealth v. Montalvo, 76 Mass.App.Ct. 319, 325–326, 922 N.E.2d 155 (2010) (evidence that goes to intent “does not defeat a determination of constructive possession”).

Jury instructions. The defendant asserts error in the trial judge's failure to track the model jury instruction's language providing that “[n]either is possession proved simply because the defendant was associated with ... the property where [the cocaine] was found.” Instruction 3.220 of the Criminal Model Jury Instructions for Use in the District Court (2009). The judge's charge included the admonition that “merely being present in the vicinity of crack cocaine, even if one knows that it is there, does not amount to possession.” He instructed the jury that possession is to be determined “from all the facts and any reasonable inferences that you can draw from those facts.” And he correctly defined “possession without physical custody” as requiring “knowledge of the object, the ability to exercise control over that object either directly or through another person, and the intent to exercise control over the object.” We conclude from our review of the instructions, considered in their entirety, that the jury were properly instructed on the elements of constructive possession. See Commonwealth v. Torres, 420 Mass. 479, 484–485, 651 N.E.2d 360 (1995).² There was no error.

Motion to suppress evidence. The defendant asserts that the evidence used to convict him was seized pursuant to a search warrant that failed to meet the veracity test derived from the requirements set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). See Commonwealth v. Upton, 394 Mass. 363, 369, 476 N.E.2d 548 (1985).³ He argues that the veracity test was not met because the search warrant application was submitted by an officer who did not have firsthand knowledge of the identity and whereabouts of the confidential informant

on whose information the warrant application was based. The defendant relies on Commonwealth v. Alfonso A., 438 Mass. 372, 376 & n. 4, 780 N.E.2d 1244 (2003), where the Supreme Judicial Court determined that the motion to suppress physical evidence was properly denied by the motion judge notwithstanding the fact that “the affidavit did not spell out precisely how the detective knew the informant's ‘identity’ and ‘whereabouts.’ ” The court ruled in that case that the lack of specificity on these factors “does not detract from the unmistakable import of the detective's sworn statement, i.e., that the detective felt confident that he could indeed identify and locate the informant.” Ibid. In this case, the detective indicated that the informant's particulars were known to other members of the Lowell police department. Accordingly, as in Alfonso A., he could clearly “identify and locate the informant” should the need arise.

The information provided in the affidavit contained a level of specificity that indicated the informant's veracity, Commonwealth v. Atchue, 393 Mass. 343, 348–349, 471 N.E.2d 91 (1984), and included facts that were confirmed by the police prior to the application. Commonwealth v. Alfonso A., supra at 376–378, 780 N.E.2d 1244. Finally, the controlled purchases conducted by the informant further supported his veracity. Commonwealth v. Desper, 419 Mass. 163, 168–171, 643 N.E.2d 1008 (1994).

“No-knock” warrant. The defendant asserts that the no-knock warrant was improperly authorized, requiring suppression of the evidence seized after the police failed to knock and announce their presence. The affidavit supporting the warrant contained the following representations: (1) the extensive training and experience in drug investigations, controlled purchases and arrests of the officer who made the affidavits; (2) the confidential informant's report that the apartment for which a warrant was sought was “small, confined and private”; (3) the confidential informant's report that the defendant “keeps his door locked and admits only people whom he knows”; (4) the fact that the defendant sold drugs to the informant only after arrangements were made by telephone; and (5) the officer's assessment that, given the retail nature of the defendant's operation and the fragile nature of the illegal drugs involved, “it would not be difficult for [the defendant] to destroy the narcotics if given the forewarning.”

The requirement that police knock and announce their presence is based on common law principles aimed at protecting privacy, decreasing the potential for violence and preventing unnecessary

damage. Commonwealth v. Scalise, 387 Mass. 413, 417, 439 N.E.2d 818 (1982).

Our cases also recognize that competing interests will justify abrogating the requirement in individual instances. These are, principally, avoiding the destruction of evidence and increasing officer safety. See Commonwealth v. Cundriff, 382 Mass. 137, 147, 415 N.E.2d 172 (1980), cert. denied, 451 U.S. 973, 101 S.Ct. 2054, 68 L.Ed.2d 353 (1981) ; Commonwealth v. Silva, 440 Mass. 772, 783, 802 N.E.2d 535 (2004). Further, courts will look to the presence of lookouts and the ability of police to approach premises undetected in determining whether a no-knock warrant is justified. See Commonwealth v. Benlien, 27 Mass.App.Ct. 834, 836, 544 N.E.2d 865 (1989) ; Commonwealth v. West, 55 Mass.App.Ct. 467, 470, 771 N.E.2d 815 (2002).

In this case, the overriding consideration presented in the warrant application was the potential for destruction of evidence. The fragile nature of the drugs, the limited size of the premises, and the security precautions exercised by the defendant all emphasize that concern. Officer safety was not presented as an issue.

Our cases recognize that destruction of evidence is a factor to be considered, but we require more than a general concern that evidence can be easily destroyed to dispense with the requirement for police to knock and announce. Scalise, supra at 421, 439 N.E.2d 818 (declining to adopt “blanket rule” excusing requirement of knock and announce “whenever the objects named in the search warrant are by their nature amenable to ready disposal or destruction”). See Commonwealth v. Ortega, 441 Mass. 170, 176, 804 N.E.2d 345 (2004).

While the warrant application in this case contains statements that drugs in powder form are easy to destroy or discard,⁴ it fails to provide “probable cause to believe that the evidence will be destroyed, based on other factors uniquely present in the particular

circumstances.” Scalise, supra at 421, 439 N.E.2d 818. We consider the specific references to the fact that the “apartment was small, private and confined” and that the defendant keeps the door locked, admitting only individuals whom he knows, to be relevant, but ultimately insufficient. The limited size of the premises is as likely to aid the police in securing the evidence of criminality as to enable its disposal “during the short delay occasioned by the knock and announce requirement.” Commonwealth v. Macias, 429 Mass. 698, 702, 711 N.E.2d 130 (1999). As described in the application, the defendant's security measures are equally likely to be precautions against robbery, and do not provide probable cause that he would bar the door to police who announce their presence. See id. at 703, 711 N.E.2d 130 (window overlooking street, which could allow defendant to “spot the police coming,” without more, did not establish probable cause); Commonwealth v. Santiago, 452 Mass. 573, 577–578, 896 N.E.2d 622 (2008) (“mere...