Commonwealth v. Anthony Hernandez, July 16, 2010
77 Mass. App. Ct. 259
Witness Confrontation, Search and Seizure, Drug Certificate, Required Finding, Motion to Suppress, Protective Frisk, Reasonable Suspicion
The defendant appealed from convictions of unlawful possession of cocaine with intent to distribute, G.L. c. 94C, § 32A(a), and violation of the school zone law, G.L. c. 94C, §32J. On appeal, the defendant argued that his motion to suppress evidence was wrongly denied, and that the trial judge erred in denying his motion for a required finding of not guilty and in allowing into evidence a certificate of chemical analysis without affording the defendant his confrontation rights under the 6th Amendment to the US Constitution. The Appeals Court found reversible error occurred with the admission of the drug certificate; the Appeals Court affirmed the denial of the defendant's motion to suppress and motion for a required finding of not guilty. The Appeals Court reversed the convictions and remanded for a new trial.
Facts
On November 24, 2006, Detectives Panacoupoulos and Guillermo, two experienced narcotics officers, observed a van parked on the side of the road with its headlights on and the engine running. The passenger door was open, one person was in the driver's seat and the defendant was bent over behind a nearby dumpster. The defendant then stood up, put his hands in his pockets, and entered the van. The detectives did not see any drugs but were suspicious of a possible “drug drop.”
The detectives followed the van and observed the van running a red light. The van was stopped. Panacoupoulos went to the driver and requested license and registration. Guillermo went to the passenger side. The defendant was seated in the front passenger seat sitting with his left hand hidden beneath his left thigh and his right hand shaking. The defendant failed to respond to Guillermo's first question of whether he had any weapons and turned away from the detective while hiding his left hand. Guillermo became concerned for the officers' safety, and asked the defendant to get out of the car. A pat frisk produced a cell phone, $56 cash, and a clear plastic bag filled with white powder (13.98 grams of cocaine) in the pocket of a pair of shorts underneath his pants.
On cross-examination, Detective Panacoupoulos stated without objection that the quantity of cocaine found in the defendant's pocket, the cell phone, and the money found during the patfrisk were consistent with possession with intent to distribute. He also acknowledged that the defendant's actions at the dumpster would suggest that the defendant was a buyer.
Drug certificate
The US Supreme Court held in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009) that the admission of the certificate of analysis without an opportunity for cross-examination of the forensic chemist is error. The error is reviewed under the harmless error standard. Here, the Commonwealth failed to submit other evidence of the nature of the white substance. The officers testified to their belief of the substance being cocaine, but failed to support their statements with any field tests. The admission of the certificate was not harmless beyond a reasonable doubt and reversal is required.
Sufficiency of evidence – Motion for a required finding of not guilty
The defendant argued that the trial judge improperly denied the motion for a required finding because the evidence in the case was insufficient to permit a guilty verdict. The Appeals Court disagreed. The evidence may support the equally probable, but inconsistent propositions that the defendant was either a buyer or a seller. However, the 13.98 grams of cocaine admitted into evidence is not so small an amount that only an inference of personal use is compelled. The quantity of cocaine seized from the defendant properly formed the basis for opinion testimony that it was more consistent with distribution. The Appeals Court held that the motion for a required finding was properly denied.
Motion to suppress
The defendant argued that the hearing judge should have allowed his motion to suppress because the stop and patfrisk violated his rights under the 4th Amendment to the US Constitution and art. 14 of the MA Declaration of Rights. The Appeals Court disagreed.
a. The exit order
Where the police are justified in stopping an automobile for a routine traffic violation, they may order the driver or the passengers to leave the automobile if the officers “have a reasonable belief that [their] safety, or the safety of others, is in danger.” Commonwealth v. Gonsalves, 429 Mass. 658, 663 (1999). Here, the defendant's nervous behavior, failure to produce identification, lack of response to the question about weapons, and his hidden hand justified the officer's safety concerns. This, in turn, justified the exit order.
b. Patfrisk
“The standard for a patfrisk is the same as the standard required to justify an order to the occupants of a vehicle stopped for traffic violations to leave the vehicle.” Commonwealth v. Torres, 433 Mass. 669, 676 (2001). The same evidence that justified the exit order also supported the patfrisk of the defendant. The patfrisk and the subsequent seizure of narcotics were lawful, and the judge's denial of the motion to suppress was proper.
Judgments reversed, verdicts set aside, and case remanded for retrial because of the drug certificate admission error.
- Prepared by AYK
