DocketNumber: SJC 11637
Citation Numbers: 470 Mass. 625
Judges: Gants, Spina, Cordy, Botsford, Duffly, Lenk, Hines
Filed Date: 2/13/2015
Status: Precedential
Modified Date: 10/19/2024
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 re
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.
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
At that location, the police officers approached the vehicle on both sides.
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 (2005); Commonwealth v. DiBennadetto, 436 Mass. 310, 313 (2002); Mass. R. Crim. R 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 (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, citing Commonwealth v. O’Dell, 392 Mass. 445, 450 (1984). As the issue of probable cause presents a question of law, we review the motion judge’s determination de nova. Commonwealth v. Humberto H., 466 Mass. 562, 566 (2013).
1. The probable cause standard. “[Pjrobable cause exists where, at the moment of arrest, the facts and circumstances
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 (“We consider each of these factors, recognizing that probable cause must be determined based on the totality of the evidence”).
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 (2014) (“a few individually packaged rocks of crack cocaine do not suffice” to show intent to distribute); Humberto H., 466 Mass, at 568 (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 (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. 201, 204 (2000) (“possession of 2.73 grams of cocaine, even packaged in eleven envelopes, does not, without more, clearly tend towards showing an intent to distribute”). In sum, possession of this quantity does not rationally create more than a suspicion that the juvenile, at the time of the arrest, possessed the marijuana with the intent to distribute the substance.
Nor does the packaging add heft to an inference that the juvenile possessed the marijuana with intent to distribute.
Even if the interaction with the couple during the walk toward Southern Avenue properly may be deemed consistent with a drug transaction, the narrative lacks any specificity as to whether the juvenile was a participant. Therefore, as the Commonwealth concedes, we know only that the juvenile was present in the vicinity where a drug transaction may have occurred. The Commonwealth “cannot rely on evidence that merely places the [juvenile] at the scene of the crime and shows him to be in association with the principals.” Sepheus, 468 Mass. at 167, quoting Commonwealth v. Saez, 21 Mass. App. Ct. 408, 411 (1986). See Commonwealth v. Montalvo, 76 Mass. App. Ct. 319, 330 (2010) (“evidence that a defendant associated with persons who committed the crime does not lead to an inference that he also participated in the crime”). Without some narrative fact
c. The juvenile’s demeanor. The Commonwealth claims that the juvenile “looked nervously” at the police officer as the juvenile crossed Washington Street and entered the vehicle. This characterization vastly overstates the juvenile’s apparent reaction to becoming aware of the police presence in the area. The narrative states only that the juvenile “walk[ed] away in a hurried manner looking back at the officers several times.” Even if the juvenile’s behavior properly could be characterized as nervous, it lacks value in the probable cause assessment. If, as the narrative asserts, the juvenile hurriedly walked away from the area as he looked back at the police officers, he no doubt was aware that the police were conducting surveillance of his movements. While nervousness in an encounter with a police officer may be factor in the probable cause analysis, see Commonwealth v. Sinforoso, 434 Mass. 320, 324 (2001), it lacks force in the circumstances of this case where a sixteen year old boy is under scrutiny by the police. Even after the passage of G. L. c. 94C, § 32L, which decriminalized the possession of one ounce or less of marijuana, we have accorded little weight to a juvenile’s demeanor alone. We recognize that a juvenile who possesses marijuana may nonetheless face serious personal consequences in his or her education and career choices. See Humberto H. 466 Mass. at 566-567 (juvenile’s “defensive and agitated” demeanor explained by possible consequences of possession of marijuana); Commonwealth v. Cruz, 459 Mass. 459, 468 (2011) (“It is common, and not necessarily indicative of criminality, to appear nervous during even a mundane encounter with police . . .”).
d. The odor of unbumt marijuana. Our cases considering the odor of unbumt marijuana as a factor in the “reasonable suspicion” necessary for an exit order in a motor vehicle stop offer helpful guidance in the probable cause analysis in this case. These cases have not accorded significance to the odor of unbumt marijuana in circumstances comparable to those at issue here. In Commonwealth v. Overmyer, 469 Mass. 16 (2014), we held that the odor of unburnt marijuana alone was insufficient to justify the warrantless search of a vehicle. Taking note of the 2008 ballot initiative decriminalizing one ounce or less of marijuana, we stated that “it does not follow that such an odor [of unbumt marijuana] reliably predicts the presence of a criminal amount of
e. The traffic pattern of the suspect vehicle. The traffic pattern of the vehicle, in which the juvenile was a passenger rather than the driver, does not suggest anything more than the mere possession of marijuana. The police incident report sheds no light on how the vehicle, populated with teenaged passengers, and moving from one block to another, was remarkable or otherwise typical of drug activity. Probable cause to believe that a crime has occurred requires something more than innocent behavior. See Roman, 414 Mass. at 643.
f. The lack of smoking paraphernalia. The Commonwealth argues that the lack of smoking paraphernalia weighs against mere possession, citing Wilson, 441 Mass. at 401. Our cases have considered the lack of drug paraphernalia associated with personal use as a factor probative of an intent to distribute. See Commonwealth v. Little, 453 Mass. 766, 770 (2009). However, the lack of smoking paraphernalia in Wilson, supra, suggested intent to distribute only in conjunction with other factors noted by the court: a relatively large amount of cash, a pager, a cellular telephone, and the distinctive packaging in “dime” bags. None of those factors exists in this case. In addition, where the contraband is a small amount of marijuana, the lack of drug paraphernalia does not detract from the inference of simple possession. See Humberto H., 466 Mass. at 567-568. A person who intends only to smoke marijuana would fit precisely the profile of the juvenile in this case. For simple possession, he had no need of cash, scales, or evenly measured packages in amounts consistent with a quick sale.
In the analysis of the totality of the circumstances, the inquiry shifts away from the relative significance of each individual factor to their collective effect in the probable cause calculus. Even in combination, however, these factors are insufficient to establish probable cause to believe that the juvenile intended to distribute the marijuana found on his person. Although the question is close, our analysis accords greater significance to the nature and amount of the substance, and that it was possessed by a juvenile. Here, the substance was marijuana, and it was a small, undetermined amount. As in Commonwealth v. Jackson, 464 Mass.
Conclusion. For the reasons set forth, the Juvenile Court’s order of dismissal is affirmed.
So ordered.
A motion to dismiss a complaint for lack of probable cause “is decided from the four corners of the complaint application, without evidentiary hearing.” Commonwealth v. Humberto H., 466 Mass. 562, 565 (2013), quoting Commonwealth v. Huggins, 84 Mass. App. Ct. 107, 111 (2013).
The narrative contained in the police incident report lacks clarity in its description of the sequence of events as well as the conduct of the juvenile, who was the only person arrested.
The police incident report is unclear as to the number of persons in the vehicle at the time of the stop.
The complaint application does not state the quantity of marijuana, only that “13 small bags” were seized.
The Commonwealth cites no authority to advance its argument that the particular packaging evidences probable cause of intent to distribute. We are directed instead to the following unpublished Appeals Court decisions, which have been overruled or which support the dismissal of the complaint against the juvenile. In Commonwealth v. Pete P., 82 Mass. App. Ct. 1120 (2012), the
The Commonwealth, relying on Commonwealth v. Santaliz, 413 Mass. 238 (1992), argues that it is not important that the officers were unable to see what was exchanged between the couple and the group. This puts the cart way ahead of the horse in that it does not appear that any exchange at all occurred between the group and the couple. That illogical leap is repeated in the Commonwealth’s argument that it is irrelevant whether the juvenile participated in the transaction or acted as a lookout. The police incident report provides no information from which an inference that the juvenile was a lookout reasonably might be drawn.