DocketNumber: 17–P–1051
Citation Numbers: 103 N.E.3d 1238, 93 Mass. App. Ct. 1109
Filed Date: 5/9/2018
Status: Precedential
Modified Date: 7/24/2022
Following a jury-waived trial before the Superior Court, the defendant, Ruben Uribe, was found guilty of trafficking in heroin, eighteen grams or more but less than thirty-six grams, and trafficking in cocaine, eighteen grams or more but less than thirty-six grams. See G. L. c. 94C, §§ 32E(b ) & (c ). On count one (heroin), he was sentenced to a term of not less than three and one-half nor more than four years in State prison, and on count two he was sentenced to a concurrent term of not less than two nor more than three years in State prison. The theory of the Commonwealth's case was that the defendant was in constructive possession of drugs found in an apartment. The defendant, who was arrested outside of the apartment as he parked his car, had a key to the apartment on his person. There was testimony indicating that the police had observed the defendant enter the apartment on prior occasions, but that testimony did not include any statement concerning the temporal proximity between the defendant's prior visits to the apartment and the subsequent execution of a search warrant and discovery of drugs within the apartment. For the reasons that follow, we conclude that the evidence, while sufficient to support a finding that the defendant had the ability to exercise control over the apartment and its contents, was not sufficient to support an inference that the defendant had knowledge of the drugs located within the apartment. Accordingly, we reverse.
Background. On October 2, 2014, Detective James Connolly and other members of the Fitchburg police department arrived at 58-60 Intervale Road to execute a search warrant.
Detective Connolly had previously surveilled 58-60 Intervale Road and observed the defendant entering unit 10 on "different times and dates, using a key." Detective Connolly did not specify on what dates he observed the defendant enter the apartment. The apartment was not under police surveillance on the night of October 1, or before noon on October 2, the date the search warrant was executed.
The defendant parked his car in a parking spot adjacent to the 58-60 Intervale Road apartment building just after 2:00 P.M . and was immediately detained by the police. The defendant was found with seventy-one dollars in cash and a cellular telephone on his person at the time of his arrest. The defendant also possessed a key to unit 10, but he did not live in the apartment.
The officers gained access to unit 10 after breaching the door. No one was inside the apartment at the time the warrant was executed. The apartment contained a kitchen area, a bathroom, and what can be considered either a living room or a bedroom containing some chairs and a television located on a television stand. The apartment was sparsely furnished and contained minimal food, clothing, and personal items. During their search of the apartment, the officers found 19.78 grams of packaged cocaine resting on the television stand and 22.22 grams of heroin contained in a black plastic bag located in the refrigerator.
At trial, the Commonwealth's expert proffered testimony describing the term "stash house" as "a location used by either an individual or an organization to store or use as a location to store narcotics, [United States] currency, or to oftentimes package narcotics for distribution." He continued by stating that stash houses have few personal items and few furnishings. He then opined that a trusted member of a criminal organization would have access to a stash house. He further stated that the quantity of drugs found in the apartment, in addition to the discovery of scales and baggies in the apartment, were consistent with drug distribution, as opposed to personal use.
The defendant was subsequently arrested and charged with trafficking in heroin, eighteen grams or more but less than thirty-six grams, and trafficking in cocaine, eighteen grams or more but less than thirty-six grams.
Discussion. The defendant argues that insufficient evidence was presented to convict him beyond a reasonable doubt of both drug trafficking offenses. We agree.
In reviewing the sufficiency of the evidence, the "question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore,
In order to establish that a defendant constructively possessed contraband, the Commonwealth must present evidence sufficient to show that the defendant had knowledge of the contraband, in addition to the ability and intention to exercise dominion and control over it. Commonwealth v. Brzezinski,
Here, the fact that the defendant had a key to the apartment and was seen entering the apartment at unspecified dates and times certainly demonstrates that the defendant had the ability to access the apartment, but it is nevertheless insufficient to prove that the defendant had knowledge of the contraband that he was charged with constructively possessing. See
Furthermore, the testimony of the Commonwealth's expert witness, in which he described sparsely furnished apartments as "stash houses" used by trusted members of criminal organizations, does not serve to "tip the scale in favor of sufficiency." Brzezinski,
The Commonwealth has brought no case to our attention in which the defendant's knowledge of contraband was established for the purposes of proving constructive possession based on a fact pattern similar to that presented in the case before us. Based on the foregoing, we conclude that insufficient evidence was presented to prove that the defendant had knowledge of the contraband located in the apartment for the purposes of proving constructive possession.
Judgments reversed.
Findings set aside.
Judgments shall enter for the defendant.
The warrant and supporting affidavit are not in the record before us.
No explanation was given at trial as to why the officers waited for the defendant to arrive prior to executing the search warrant.
No evidence was presented indicating who paid rent or utility bills for the apartment. While being booked at the Fitchburg police station, the defendant indicated that he lived in Methuen.
We note that there had been no observation of the apartment since, at a minimum, the night before the execution of the search warrant.
While the precise location of the cocaine placed behind the television is unclear from the record, it was not in plain view and was only found after a drug-sniffing dog alerted in front of the television stand. As previously discussed, the heroin was found in a black plastic bag located inside the refrigerator.
The defendant also challenges the evidence presented to the grand jury as insufficient to establish probable cause pursuant to Commonwealth v. McCarthy,