Commonwealth v. Polanco

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16-P-1217 Appeals Court
COMMONWEALTH vs. JORGE POLANCO.
No. 16-P-1217.
Middlesex. October 11, 2017. - February 20, 2018.
Present: Milkey, Massing, & Ditkoff, JJ.
Controlled Substances. Practice, Criminal, Speedy trial,
Dismissal, Motion to suppress, Required finding. District
Court, Arraignment. Constitutional Law, Search and
seizure. Search and Seizure, Exigent circumstances.
Indictments found and returned in the Superior Court
Department on August 7, 2014.
A motion to dismiss was heard by Kathe M. Tuttman, J.; a
pretrial motion to suppress evidence was heard by her; and the
cases were tried before her.
Murat Erkan for the defendant.
Sandra Weisberger, Assistant District Attorney, for the
Commonwealth.
DITKOFF, J. The defendant, Jorge Polanco, appeals from his
Superior Court convictions of trafficking in heroin, G. L.
c. 94C, § 32E(c), and a school zone violation, G. L. c. 94C,
§ 32J. We must decide whether to consider time spent in
2
District Court when calculating the time to be included for
purposes of a speedy trial under Mass.R.Crim.P. 36(b), 378 Mass.
909 (1979), in Superior Court. Consistent with the plain
language of the rule, we conclude that the time the charges were
pending in District Court should not be included in the
calculation. Accordingly, the motion judge properly denied the
defendant's motion to dismiss. Rejecting the defendant's
challenges to the denial of his motion to suppress and the
sufficiency of the evidence, we affirm.
1. Background. In April and May of 2013, law enforcement
including the Billerica police department were conducting an
investigation of a suspected heroin trafficker known as
"Johnny," later identified as the defendant. As part of that
investigation, Billerica police conducted controlled narcotics
purchases using an informant. When the police approached the
sellers in those controlled purchases, the sellers admitted to
being "runners" for "Johnny," whom they identified as the source
of the narcotics. One of the runners agreed to cooperate with
the investigation.
Shortly thereafter, the cooperating runner received a
telephone call from "Johnny," directing him to customers at a
house located at 48 Rogers Street.1 Prior to that day, that
1
A detective testified that 48 Rogers Street is 281 feet
from S.G. Hajjar Elementary School.
3
residence had not been a target of the investigation, and the
police had not yet identified "Johnny" as the defendant.
The police followed the runner to the residence. A motor
vehicle pulled up outside the residence, and two men exited the
vehicle and spoke to a woman in the house's driveway. The
runner then approached the three persons and engaged in a hand-
to-hand transaction with one of the men. At this point, the
police converged on the driveway with other law enforcement
agents. The police had not yet confirmed "Johnny's" whereabouts
and were not anticipating his immediate arrest.
As the police entered the driveway area, a detective
observed the defendant standing several feet inside the open
garage. The defendant, matching the description of "Johnny,"
turned and fled. The detective gave chase through the garage
and into the back yard. The detective believed the defendant to
be "Johnny" and feared that he was likely to escape or destroy
evidence.
Once in the back yard, the detective apprehended the
defendant near the rear fence, facing a shed located in the
neighboring yard. The informant and the runner positively
identified the defendant as "Johnny." Although no contraband
was found on the defendant's person, police retrieved two bags
containing 19.06 grams of heroin next to the neighbor's shed.
4
They also found a cellular telephone and over $1,100 in cash in
the defendant's possession.
On May 8, 2013, the Lowell District Court issued a
complaint charging the defendant with several drug-related
offenses and arraigned him that same day. After two months, a
District Court judge dismissed the charges for failure to
prosecute. Over one year later, on August 7, 2014, a Middlesex
grand jury returned indictments arising from the same incident,
charging the defendant with trafficking in heroin and a school
zone violation. The defendant was arraigned in Superior Court
on August 13, 2014.
On October 30, 2014, the defendant moved to dismiss the
charges, alleging a violation of rule 36(b) and his
constitutional right to a speedy trial,2 and also moved to
suppress evidence. Both motions were denied, and the defendant
was ultimately convicted of both charges by a jury.
2. Rule 36(b) motion to dismiss. Under rule 36(b)(1)(C),
a defendant is entitled to dismissal if he is not brought to
trial "within twelve months after the return day in the court in
which the case is awaiting trial." See Commonwealth v. Denehy,
466 Mass. 723, 729 (2014); Commonwealth v. Pereira, 82 Mass.
2On appeal, the defendant raises no challenge to the
judge's conclusion that his constitutional right to a speedy
trial was not violated.
5
App. Ct. 344, 346 (2012). The arraignment date is the return
date, Mass.R.Crim.P. 2(b)(15), 378 Mass. 844 (1979);
Commonwealth v. Fling, 67 Mass. App. Ct. 232, 235 (2006), and
"[t]he filing of a motion to dismiss [on rule 36 grounds] tolls
the relevant time period." Commonwealth v. Taylor, 469 Mass.
516, 524 n.15 (2014). Here, the defendant was arraigned in
Superior Court on August 13, 2014, and filed his motion to
dismiss on October 30, 2014 -- well within twelve months. If,
however, the return day is the date of the District Court
arraignment, May 8, 2013, the speedy trial clock expired. This
is because the judicial dismissal in the District Court would
not toll the time. Denehy, 466 Mass. at 733-735.
If we were applying the constitutional right to a speedy
trial, we would consider the time the charges were pending in
District Court. See Commonwealth v. Butler, 464 Mass. 706(2013). The Supreme Judicial Court in Butler determined that
the issuance of a criminal complaint in the District Court is
the appropriate start date for purposes of the defendant's
constitutional right to a speedy trial, even where the case is
later moved to Superior Court. Id. at 713-714. The
constitutional right to a speedy trial, however, is primarily
concerned with protecting the rights of a defendant, whereas
rule 36(b) is "primarily a management tool, designed to assist
the trial courts in administering their dockets." Reporter's
6
Notes to Rule 36, Massachusetts Rules of Court, Rules of
Criminal Procedure, at 209 (Thomson Reuters 2017). Accordingly,
the contours of the constitutional right are not controlling;
"the speedy trial calculus under rule 36 differs from the
analysis applied to constitutional claims." Denehy, 466 Mass.
at 735 n.18, citing Commonwealth v. Lauria, 411 Mass. 63, 67
(1991). Indeed, the issue arose in Butler precisely because the
defendant's rule 36 claim lacked merit. 464 Mass. at 707 & n.3.3
"In interpreting a rule of criminal procedure, we turn
first to the rule's plain language." Denehy, 466 Mass. at 733.
The plain language of rule 36 states that the clock begins on
"the return day in the court in which the case is awaiting
trial" (emphasis supplied). Mass.R.Crim.P. 36(b)(1)(C).
Because the case was awaiting trial in the Superior Court when
the defendant moved to dismiss, the return date must be
calculated from his August 13, 2014, arraignment in that court.
The Reporter's Notes to Rule 36(b)(1), supra at 210, are
consistent with this conclusion, stating that, "if a defendant
is bound over to the Superior Court after a probable cause
3
Under the constitutional right to a speedy trial, time
during which charges are dismissed does not count, regardless of
whether a judge or a prosecutor dismissed the charges. See
United States v. MacDonald, 456 U.S. 1, 7 n.7 (1972); Butler,
464 Mass. at 713. Under rule 36(b), time during which charges
are dismissed counts if a judge dismissed the charges, but does
not count if a prosecutor dismissed the charges. Denehy, 466
Mass. at 733-735.
7
hearing . . . or the Commonwealth elects to proceed by direct
indictment in a case commenced by complaint which is within the
District Court's jurisdiction . . . the time limits of this rule
begin anew upon the return day in the Superior Court."4
As a practical matter, including prior District Court
proceedings in rule 36(b) calculations would impose a great
burden on the trial courts. Before setting a tracking order, a
Superior Court judge would need to calculate the time expired on
prior District Court proceedings on every charge, itself a time-
consuming and complex exercise, and adjust scheduling to
accommodate the timing of District Court proceedings. Rule 36
"is primarily designed to assist in the administration of trial
court dockets," Lauria, 411 Mass. at 68, but this reading of the
rule would have the opposite effect. Instead, dockets would
have to be coordinated between courts, undermining judges'
responsibility to "control their own dockets . . . within the
time periods specified by rule 36" (emphasis supplied).
Commonwealth v. Bourdon, 71 Mass. App. Ct. 420, 428 (2008),
quoting from Lauria, supra at 70.
4
Bind-over hearings are a "relic of the past," Commonwealth
v. Perkins, 464 Mass. 92, 108 (2013) (Gants, J., concurring),
replaced by direct indictment in cases both inside and outside
the District Court's final jurisdiction. We place no weight on
the Reporter's not foreseeing current direct indictment
practice, as the point made is that the clock resets at Superior
Court arraignment.
8
Of course, in an appropriate case, a defendant has
protection against unreasonable delays in Superior Court
indictment by means other than rule 36(b). A defendant may move
to dismiss, as was done here and in Butler, under the
constitutional right to a speedy trial. A defendant may move to
dismiss under Mass.R.Crim.P. 36(c), 378 Mass. 909 (1979).5
Commonwealth v. Sigman, 41 Mass. App. Ct. 574, 580 (1996). A
defendant may move to dismiss on the ground of prejudicial
preindictment delay. See Commonwealth v. Dame, 473 Mass. 524,
530-531 (2016). All of these avenues serve to protect a
defendant against unreasonable delays in an appropriate case.
Excluding the District Court time comports with Supreme
Judicial Court calculations in rule 36 cases as well, even post-
Denehy. In Taylor, 469 Mass. at 520 & n.7, for example, the
defendant was arrested and thus arraigned in District Court well
before he was indicted. Nonetheless, the Supreme Judicial Court
calculated the time under rule 36(b) from the Superior Court
arraignment, excluding the District Court time. See id. at 522.
5
Rule 36(c) provides that "a defendant shall upon motion be
entitled to a dismissal where the judge after an examination and
consideration of all attendant circumstances determines that:
(1) the conduct of the prosecuting attorney in bringing the
defendant to trial has been unreasonably lacking in diligence
and (2) this conduct on the part of the prosecuting attorney has
resulted in prejudice to the defendant."
9
Here, accordingly, the defendant's motion to dismiss was
properly denied.
3. Motion to suppress. On appeal, we review a ruling on a
motion to suppress by accepting "the judge's subsidiary findings
of fact absent clear error but conduct an independent review of
[the] ultimate findings and conclusions of law." Commonwealth
v. Ramos, 470 Mass. 740, 742 (2015), quoting from Commonwealth
v. Colon, 449 Mass. 207, 214, cert. denied, 552 U.S. 1079(2007). We discern no error in the motion judge's determination
that exigent circumstances justified the detective's warrantless
entry into the garage and the resulting search and seizure.
The Fourth Amendment to the United States Constitution and
art. 14 of the Massachusetts Declaration of Rights require that
all searches and seizures must be reasonable, and that all
warrantless searches and seizures of a home are presumptively
unreasonable. Ramos, 470 Mass. at 744-745. See Commonwealth v.
Gentle, 80 Mass. App. Ct. 243, 250 (2011), quoting from
Commonwealth v. Molina, 439 Mass. 206, 211 (2003) (the Fourth
Amendment and art. 14 "scrupulously guard against the intrusion
of the government into a citizen's home without a warrant").
Even in the absence of a warrant, however, a nonconsensual entry
may be valid if the Commonwealth proves both probable cause and
10
exigent circumstances. Ramos, supra at 744, citing Commonwealth
v. DeJesus, 439 Mass. 616, 619 (2003).6
Exigent circumstances to justify a warrantless entry may
exist if the entry is reasonably believed necessary to prevent
the loss or destruction of evidence, Ramos, 470 Mass. at 745,
particularly if supported by "[f]actors such as 'a showing . . .
that the suspect was armed, a clear demonstration of probable
cause, strong reason to believe the suspect was in the dwelling,
and a likelihood that the suspect would escape if not
apprehended.'" Molina, 439 Mass. at 209, quoting from
Commonwealth v. Forde, 367 Mass. 798, 807 (1975). In this case,
the police had probable cause and reason to believe that the
defendant would remove evidence and escape apprehension if not
pursued through the garage. Accordingly, there were exigent
circumstances sufficient to justify the warrantless entry. See
Ramos, supra at 746-747.
The defendant contends, however, that the police
deliberately created the exigent circumstances themselves and
therefore cannot avail themselves of this exception to the
6
The defendant concedes, and based on our independent
review we agree, that the police had probable cause at the
moment of entry. The Commonwealth does not contest the
defendant's sworn statement that he was a frequent overnight
guest at 48 Rogers Street and, thus, had standing to contest the
warrantless entry. See Commonwealth v. Morrison, 429 Mass. 511,
513 (1999).
11
warrant requirement. See Molina, 439 Mass. at 210.7 Under
Molina, "police officers cannot deliberately create the exigency
that leads to the warrantless arrest." Ibid. Or, to put it
another way, "where the exigency is reasonably foreseeable and
the police offer no justifiable excuse for their prior delay in
obtaining a warrant, the exigency exception to the warrant
requirement is not open to them." Forde, 367 Mass. at 803.
In Molina, the police received the name and address of a
suspect, reported and discussed the allegations back at the
station, then proceeded to the suspect's residence to effectuate
the arrest without a warrant. 439 Mass. at 207, 210. Because
(1) it was foreseeable the police would have to enter the
apartment to make the arrest; (2) the police offered no
justification for the failure to obtain a warrant; and (3) no
evidence of risk of flight or harm was produced, the exigent
7
After Molina was decided, the United States Supreme Court
decided that the Fourth Amendment invalidates a warrantless
entry with probable cause under exigent circumstances only where
the police create the exigency by "engaging or threatening to
engage in conduct that violates the Fourth Amendment." Kentucky
v. King, 563 U.S. 452, 462 (2011). See Gentle, 80 Mass. App.
Ct. at 249. This standard is different from that applied in
Molina, 439 Mass. at 209-211, which was based on pre-King
Federal law relied upon in Forde, 367 Mass. at 806-807. Neither
this court nor the Supreme Judicial Court has decided whether
art. 14 retains the broader protections against warrantless
entry described in Molina, see Gentle, supra at 251-252, and we
need not reach the question. Instead, we assume arguendo the
continued vitality of the doctrine of manufactured exigency
under art. 14, as set forth in Molina, and, as discussed infra,
conclude that the facts here do not meet that standard.
12
circumstances resulted solely from the officers' decision to
make the warrantless arrest. Id. at 210-211. The warrantless
entry accordingly was unlawful. Id. at 211. See Forde, 367
Mass. at 802 (failure "to offer any explanation for why no
effort was made to obtain a warrant" prior to exigency was fatal
to Commonwealth's claim).
Similarly, in Commonwealth v. McAfee, 63 Mass. App. Ct. 467(2005), the police made a warrantless entry at the known
residence of a suspected drug dealer, where they had at least
four days to obtain a search warrant but failed to do so without
justification. Id. at 477. Although the identity of the
suspect was unknown, his presence at the residence was
confirmed, and the evidence showed no risk of flight,
destruction of evidence, or harm -- until the police knocked on
his door, making it easily foreseeable that the suspect would
refuse them entrance while concealing or destroying drug-related
evidence. Id. at 474-475. Again, the warrantless entry was not
justified. Id. at 477.
The present case shares none of these characteristics.
Here, with no reason to believe that the defendant would be just
inside the garage, the police were moving to confront the three
persons standing outside in the driveway.8 No exigency requiring
8
Although there was some evidence that the runner informed
the police of "Johnny's" presence earlier that day, the runner
13
entrance into the garage occurred until the moment the police
observed the defendant -- fitting the description of "Johnny."
The defendant fled immediately despite orders to stop. At this
point, the police had probable cause to believe that the fleeing
suspect possessed drugs and would likely try to destroy or
conceal them.
Moreover, the situation developed rapidly; the police had
no time to obtain a warrant before the defendant could have
escaped and removed contraband. See Ramos, 470 Mass. at 746
("rapidly unfolding events" gave objectively reasonable belief
that warrantless entry was necessary to prevent destruction of
evidence). Prior to this moment, the police were unaware of
"Johnny's" true identity, actual residence, and presence at 48
Rogers Street. Thus, the police offered a justifiable excuse
for failing to obtain a warrant, and they neither knew nor
intended the events as transpired. For these reasons, the
exigent circumstances were not foreseeable and were not
deliberately created by the police. See Commonwealth v. Owens,
92 Mass. App. Ct. 193, 201-202 (2017) (no manufactured exigency
had not actually confirmed "Johnny's" whereabouts at the time of
the entry, and police officers specifically testified that they
were unaware of "Johnny's" presence at that time. Accordingly,
the motion judge was entitled to find that it was not reasonably
foreseeable that "Johnny" would be at the residence prior to the
arrest.
14
where the police "had legitimate reasons to proceed with the
sting operation . . . before proceeding any further").
4. Sufficiency of the evidence. When reviewing the denial
of a motion for a required finding of not guilty, "we consider
the evidence introduced at trial in the light most favorable to
the Commonwealth, and determine whether a rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547
(2017). "The inferences that support a conviction 'need only be
reasonable and possible; [they] need not be necessary or
inescapable.'" Commonwealth v. Waller, 90 Mass. App. Ct. 295,
303 (2016), quoting from Commonwealth v. Woods, 466 Mass. 707,
713 (2014).
Here, the Commonwealth was required to prove the defendant
actually or constructively possessed trafficking-weight heroin.
See Commonwealth v. Mojica, 59 Mass. App. Ct. 925, 925-926
(2003). "Constructive possession requires a showing of
'knowledge coupled with the ability and intention to exercise
dominion and control,'" Commonwealth v. Caraballo, 81 Mass. App.
Ct. 536, 541 (2012), quoting from Commonwealth v. Gonzalez, 452
Mass. 142, 146 (2008), which "may be established by
circumstantial evidence, and the inferences that can be drawn
therefrom." Mojica, supra at 926, quoting from Commonwealth v.
Gonzalez, 42 Mass. App. Ct. 235, 237 (1997). "While a
15
defendant's presence in an area where contraband is found is not
enough, . . . 'presence, supplemented by other incriminating
evidence, will serve to tip the scale in favor of sufficiency.'"
Caraballo, supra at 541-542, quoting from Commonwealth v.
Clarke, 44 Mass. App. Ct. 502, 505 (1998). Where the contraband
is narcotics, evidence of drug dealing may be sufficiently
incriminating. See Caraballo, supra at 538, 541-542 (drug
ledger, paraphernalia used to cut and package drugs, and small
portion of heroin found on defendant was sufficient evidence of
constructive possession of large drug stash located in the same
apartment).
Here, the heroin was found near where the defendant was
arrested and there was abundant evidence that the defendant was
involved in drug-dealing activities. Specifically, the evidence
supported the conclusion that the defendant was a large-scale
heroin distributor, with "runners" and former customers
providing information against him. The incident occurred at a
"stash house," where the defendant was reported to have had
heroin that same day, and where drug sales had been observed.
He was also found with over $1,100 in cash.
Moreover, the defendant's immediate flight from the police,
in the direction of where the heroin was later found, is further
incriminating evidence. See Commonwealth v. Whitlock, 39 Mass.
App. Ct. 514, 519 (1995) ("Evidence, such as flight from the
16
scene, possession of large amounts of cash, or attempts to
conceal or dispose of contraband . . . permit an inference of
unlawful possession"). See also Commonwealth v. Brzezinski, 405
Mass. 401, 410 (1989) ("The defendant's retreat into the closet
containing cocaine and cocaine paraphernalia allowed an
inference of consciousness of guilt").
Direct proof that the defendant threw the heroin bags
during his escape is unnecessary. Given the evidence, the
inference that the defendant knew of and previously possessed
the drugs was reasonable. See Gonzalez, 42 Mass. App. Ct. at
239 ("[The] type of inculpatory evidence, rather than the
precise location of the drugs, . . . is most significant to a
sufficiency analysis in a constructive possession case");
Mojica, 59 Mass. App. Ct. at 926 (reasonable inference that
defendant dropped heroin sufficient to establish possession).
Accordingly, the evidence was sufficient.
Judgments affirmed.