Commonwealth v. Ilya I., a juvenile , 470 Mass. 625 ( 2015 )

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SJC-11637
COMMONWEALTH vs. ILYA I., a juvenile.
Suffolk. October 6, 2014. - February 13, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Controlled Substances. Probable Cause. Juvenile Court,
Delinquent child. Practice, Criminal, Juvenile delinquency
proceeding, Complaint, Dismissal.
Complaint received and sworn to in the Suffolk County
Division of the Juvenile Court Department on June 4, 2012.
A motion to dismiss was heard by Leslie E. Harris, J.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Gail S. Strassfeld for the juvenile.
Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
HINES, J. 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
2
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Appeals Court, which reversed the dismissal in an unpublished
decision. See Commonwealth v. Ilya I., 84 Mass. App. Ct. 1128
(2014). We granted the juvenile's petition for further
appellate review and now affirm the dismissal of the complaint.
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.1
Following is a summary of the police incident report.2
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
1
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).
2
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.
3
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 Street in the same direction as before.
The vehicle followed and stopped after about one block, where
the two teenagers who had gotten out reentered the vehicle. The
4
vehicle left the area, turning onto Aspinwall Road and then onto
Whitfield Street before stopping at the corner of Dunlap Road
and Whitfield Street.
At that location, the police officers approached the
vehicle on both sides.3 A police officer asked the passenger to
roll down his window. The passenger opened the door instead of
rolling down the window, and the police officer smelled the odor
of unburnt marijuana. The police officers requested
identification from the driver and the passenger; the passenger
did not produce identification, and the driver did not have a
valid license to operate the vehicle. The occupants were then
ordered to get out of the vehicle. As the juvenile got out, the
police officer noticed that the juvenile twice looked down at
his groin area which, along with the smell of unburnt marijuana,
prompted a patfrisk and the subsequent discovery of thirteen
individually wrapped bags of marijuana inside a clear plastic
sandwich bag.
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.
3
The police incident report is unclear as to the number of
persons in the vehicle at the time of the stop.
5
DiBennadetto, 436 Mass. 310, 313 (2002); Mass. R. Crim. P.
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 novo. Commonwealth v. Humberto H., 466 Mass.
562, 566 (2013).
1. The probable cause standard. "[P]robable cause exists
where, at the moment of arrest, the facts and circumstances
within the knowledge of the police are enough to warrant a
prudent person in believing that the individual arrested has
committed or was committing an offense." Commonwealth v.
Stewart, 469 Mass. 257, 262 (2014), quoting Commonwealth v.
Santaliz, 413 Mass. 238, 241 (1992). The test is objective.
The validity of the police officer's conduct is determined by
focusing on whether a "reasonable" person would concur in the
6
action taken. Commonwealth v. Daniel, 464 Mass. 746, 751
(2013), citing Commonwealth v. Hason, 387 Mass. 169, 175 (1982).
Therefore, we require only that "[t]he officers must have
entertained rationally 'more than a suspicion of criminal
involvement, something definite and substantial, but not a prima
facie case of the commission of a crime, let alone a case beyond
a reasonable doubt.'" Santaliz, supra at 241, quoting
Commonwealth v. Rivera, 27 Mass. App. Ct. 41, 45 (1989). Put
succinctly, probable cause "requires more than mere suspicion
but something less than evidence sufficient to warrant a
conviction." Commonwealth v. Roman, 414 Mass. 642, 643 (1993),
quoting Hason, supra at 174.
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
7
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").
a. The quantity and packaging of the drugs. The
Commonwealth does not argue that possession of thirteen
individually wrapped bags of an unknown quantity of marijuana,
standing alone, is sufficient to raise an inference of intent to
distribute. Instead, the claim is that possession of that
quantity of marijuana in combination with other factors
establishes probable cause to believe the juvenile intended to
distribute the marijuana found on his person. This quantity,
8
whatever the precise amount,4 and the packaging in separate bags
add little to the corpus of facts needed to establish probable
cause.
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
4
The complaint application does not state the quantity of
marijuana, only that "13 small bags" were seized.
9
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.5
According to the police incident report, the packaging was not
distinctive in any way or otherwise similar to packaging
typically associated with intent to distribute. See Sepheus,
5
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 Appeals Court reversed a Juvenile Court
order dismissing a complaint against a juvenile who possessed
eleven similarly packaged bags of an indeterminate amount of
marijuana. This court denied the juvenile's request for further
appellate review but remanded to the Appeals Court for
reconsideration in light of Commonwealth v. Humberto H., 466
Mass. 562 (2013). Commonwealth v. Pete P., 466 Mass. 1112
(2013). On reconsideration, the Appeals Court affirmed the
dismissal of the delinquency complaint in an unpublished order.
In Commonwealth v. Duncan D., 82 Mass. App. Ct. 1111 (2012), the
Appeals Court also affirmed the dismissal of a delinquency
complaint, which was based on a juvenile's possession of one
ounce or less of marijuana packaged in six bags. The
Commonwealth also cites Commonwealth v. Balthazar B., 81 Mass.
App. Ct. 1140 (2012). Although the court in that case
determined there was probable cause to issue a juvenile
complaint based on possession of individual bags of a "green
leafy substance," the case was decided and the defendant's
application for further appellate review was denied before
Humberto H., after which the Appeals Court reversed its
conclusion in Pete P. on similar grounds.
10
468 Mass. at 165-166 (packaging of cocaine insufficient to
create inference of distribution where "[t]here was no evidence
that the three baggies in this case had been bundled or packaged
in a manner that suggests they were the remains of a larger
inventory"). Cf., e.g., Commonwealth v. Montanez, 410 Mass.
290, 305 (1991) (packaging of cocaine in paper folds indicative
of intent to distribute); Commonwealth v. Pratt, 407 Mass. 647,
650 & n.3, 651, 653 (1990) (numerous bags of heroin, each marked
with brand name popular in area and bundled into groups of ten
wrapped together in packages of fifty, indicative of intent to
distribute); Commonwealth v. Gonzales, 33 Mass. App. Ct. 728,
731 (1992) (bundling of ten packets with elastic band indicative
of intent to distribute); Commonwealth v. Sendele, 18 Mass. App.
Ct. 755, 758 (1984) ("distinct packaging" of drugs supported
inference of distribution). Further, the police incident report
lacks specificity as to whether the individually wrapped bags
contained amounts generally offered for sale. Cf. Commonwealth
v. Stephens, 451 Mass. 370, 388 (2008) (cocaine packaged in two
"eight balls" and one "forty" bag), citing Commonwealth v.
Wilson, 441 Mass. 390, 400-402 (2004) (marijuana packaged in
"dime" bag units); Commonwealth v. Ellis, 356 Mass. 574, 578
(1970) (heroin packaged in ten dollar bags); Commonwealth v.
James, 30 Mass. App. Ct. 490, 491-492 (1991) (cocaine packaged
in "jumbo" bags, each worth fifty dollars). On these facts, the
11
packaging does not raise a reasonable inference that the
juvenile intended to distribute the marijuana.
b. The juvenile's association with suspicious persons.
The juvenile's interaction with the other individuals just prior
to the arrest amounts to mere association untinged with any
evidence of criminality. While cast as conduct consistent with
a drug transaction, the group's interaction with the couple does
not fit within that description. The group, which was under
surveillance at all times, had a "brief conversation" with the
couple, after which two members of the group and the couple
walked a short distance toward Southern Avenue where they had a
"brief interaction." The narrative does not suggest an exchange
of any kind between the couple and the group, either during the
"brief conversation" or the "brief interaction."6 "Although we
do not require 'that an officer must actually see an object
exchanged,' the suspect's movements, as observed by the officer,
must provide factual support for the inference that the parties
6
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.
12
exchanged an object." Stewart, 469 Mass. at 263, quoting
Commonwealth v. Kennedy, 426 Mass. 703, 710 (1998). Thus, other
than the normal social intercourse that occurs with some
frequency on the streets of Boston's neighborhoods, nothing in
the police incident report supports the claim of conduct
consistent with a drug transaction.
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
suggesting the juvenile's involvement in the criminal activity,
probable cause is not supported by his mere association with the
group.
13
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
14
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 unburnt marijuana. Our cases considering
the odor of unburnt 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
unburnt 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 unburnt marijuana] reliably predicts the presence of a
criminal amount of the substance . . . [that] would be necessary
to constitute probable cause." Id. at 21. That principle
obviously applies here. See Commonwealth v. Fontaine, 84 Mass.
App. Ct. 699, 706 (2014) ("odor of unburnt marijuana . . .
standing alone, does not provide . . . probable cause to conduct
a search").
e. The traffic pattern of the suspect vehicle. The
traffic pattern of the vehicle, in which the juvenile was a
15
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
16
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. 758, 765 (2013), we are
mindful of the "clear policy goals" served by the passage in
2008 of "An Act establishing a sensible State marihuana policy,"
which decriminalized the possession of one ounce or less of
marijuana, reducing it to a civil infraction. G. L. c. 94C,
§ 32L, inserted by St. 2008, c. 387, § 2. In deference to those
policy goals, we exercise a measure of vigilance in our analysis
of questions related to the issue of probable cause to believe
that a crime has been committed. Accommodation of those policy
goals means that where a defendant or juvenile possesses a small
quantity of marijuana, less than that required to trigger a
criminal prosecution, the other factors must be weighed more
17
heavily in the probable cause analysis. Here, none of those
factors tips the scale in favor of probable cause to believe
that the juvenile intended to distribute the substance. As in
Humberto H., 466 Mass. at 566-567, the juvenile's age detracts
from the probative value that otherwise might be accorded to his
nervous demeanor and his association with other young black
males on a street corner. While possession with the intent to
distribute any amount of marijuana is a criminal offense, we
reiterate that "where judicial officers evaluate probable cause
[in cases involving small, presumptively decriminalized amounts
of marijuana], they must be mindful of the risk that police
officers or prosecutors might allege an intent to distribute
based on the mere suspicion of such an intent for the purpose of
charging the offender as a criminal or delinquent rather than as
a civil violator." Humberto H., supra at 570-571. The caution
to be exercised by judicial officers does not undermine a
prosecutor's authority to enforce our laws prohibiting
possession with the intent to distribute marijuana.
Conclusion. For the reasons set forth, the Juvenile
Court's order of dismissal is affirmed.
So ordered.
SPINA, J. (dissenting, with whom Cordy and Botsford, JJ.,
join). The court has unduly parsed the various observations
made by police and determined that each factor standing alone
fails to establish probable cause to arrest, without adequate
consideration that the factors, in combination, provide probable
cause. "When circumstantial evidence is largely relied upon to
establish an issue, it is inevitable that many matters should be
introduced which by themselves alone would be immaterial,
although in connection with other evidence they may be helpful
in discovering the truth." Phillips v. Chase, 201 Mass. 444,
448 (1909). See Commonwealth v. Ahart, 63 Mass. App. Ct. 413,
416 (2005) ("The defendant's attempt to isolate each piece of
the Commonwealth's evidence as insufficient is unavailing").
The old adage that the whole may be greater than the sum of its
parts received no consideration from the court, an unfortunate
decision.
Most of the cases relied upon by the court concerning the
quantity and packaging of contraband involved additional factors
presented at trial to establish proof beyond a reasonable doubt,
and virtually all those cases resulted in affirmances of the
convictions. Our case law provides numerous instances where a
quantity of small baggies of marijuana, similar to the quantity
here, were enclosed in a larger bag, also as here. In each of
these cases, the quantity and packaging, together with other
2
factors, including expert testimony, provided sufficient
evidence to convict a defendant of possession with the intent to
distribute. See, e.g., Commonwealth v. Little, 453 Mass. 766,
768, 771-772 (2009) (fifteen baggies, $254, cellular telephone,
and no smoking paraphernalia); Commonwealth v. Wilson, 441 Mass.
390, 393, 400-402 (2004) (twenty baggies in bundle having
combined weight of one-half ounce, $476, cellular telephone,
pager, and no smoking paraphernalia); Commonwealth v.
Dessources, 74 Mass. App. Ct. 232, 238 (2009) (sixteen baggies
in different places on defendant's person, defendant arrested in
park frequented by drug dealers, no smoking paraphernalia, three
others near defendant observed passing marijuana pipe, and
expert opinion that baggies had street value of $320 -- but
value would be considerably less if marijuana combined in single
unit); Commonwealth v. Pena, 40 Mass. App. Ct. 905 (1996) (six
baggies, sixty dollars, beeper, bag containing baggies hidden in
defendant's pants, and defendant fled when he saw police). The
marijuana seized from the defendant here, thirteen small baggies
of marijuana placed in a larger bag, in conjunction with other
factors, is consistent with amounts and packaging in cases where
a defendant was convicted of possession of marijuana with the
intent to distribute. In one case, Wilson, supra at 400, the
combined weight of marijuana in twenty baggies, fifty per cent
3
more than here, was one-half ounce, which is below the current
threshold for criminal possession.
The location of a controlled substance on the defendant's
person, his groin area, in conjunction with other factors, has
been considered a factor probative of the question of intent to
distribute. See Commonwealth v. DeJesus, 468 Mass. 174, 176
(2014) (guilty plea vacated because of ineffective assistance of
counsel on another ground); Commonwealth v. Clermy, 421 Mass.
325, 330-331 (1995); Commonwealth v. Lobo, 82 Mass. App. Ct.
803, 806 (2012); Commonwealth v. Benitez, 37 Mass. App. Ct. 722,
724 (1994); Commonwealth v. Rivera, 27 Mass. App. Ct. 41, 42
(1989).
The absence of smoking paraphernalia, in conjunction with
other factors, also has been recognized as probative of an
intent to distribute. See Little, supra; Wilson, supra;
Dessources, supra.
The unusual and complex manner in which the four males,
including the defendant, acted and interacted after the
suspected sale reasonably could be viewed as evasive measures to
avoid detection, including flushing out the possibility of
police surveillance. Such evidence, in conjunction with other
factors, is probative of an involvement with drugs that is
deeper than mere possession of marijuana. See Commonwealth v.
Gonzalez, 452 Mass. 142, 144 (2008) ("scurrying" sounds within
4
apartment); Commonwealth v. Watson, 430 Mass. 725, 728 & n.10
(2000) ("Drug couriers use erratic driving to find out whether
they are being followed"); Commonwealth v. Cabrera, 76 Mass.
App. Ct. 341, 347 (2010) (automobile maneuvers); Commonwealth v.
Dise, 31 Mass. App. Ct. 701, 704-705 (1991) (same).
The fact that no actual exchange was observed by police may
weaken the Commonwealth's probable cause showing, but other
factors may be sufficient to overcome the absence of such
evidence. See Commonwealth v. Kennedy, 426 Mass. 703, 711
(1998). There is no per se rule that precludes arrest unless an
actual exchange is observed. Commonwealth v. Levy, 459 Mass.
1010, 1011 (2011). As we said in Commonwealth v. Rivera, 425
Mass. 633, 646 n.13 (1997), "[u]nfortunately drug sales are so
common in present society that almost any witness could draw the
inference that drug sales were occurring when observing the
activities described by [the officer, even without being able to
see what was exchanged]."
Probable cause must be determined from the totality of the
circumstances. Commonwealth v. Hernandez, 448 Mass. 711, 715
(2007). It is a concept guided by "factual and practical
considerations of everyday life on which reasonable and prudent
men, not legal technicians, act." Brinegar v. United States,
338 U.S. 160, 175 (1949). The Commonwealth has made the
requisite showing. Evidence that the defendant had thirteen
5
small baggies of marijuana collected in a larger bag concealed
in his groin area, that he had no paraphernalia by which to
smoke marijuana, and that he in consort with three other people
took complex evasive maneuvers provided sufficient basis on
which a clerk-magistrate properly issued a complaint against him
for possession of marijuana with the intent to distribute.
There was no need to provide a chemical or weight analysis of
the marijuana, or an expert opinion as to intent, for purposes
of establishing probable cause. Such additional evidence more
practically would be obtained and provided as discovery in
anticipation of a trial.1
Today's decision likely will leave police departments in a
quandary as to the extent of an investigation that is necessary
to provide a police report that will survive probable cause
analysis and be available prior to arraignment on the question
of pretrial release, which in many cases is well within twenty-
four hours of arrest. This could require calling in officers to
work overtime, or require arresting officers to work overtime to
enhance their reports, or essentially encourage officers not to
1
The court notes the policy goals of the 2008 ballot
initiative and St. 2008, c. 387, "An Act establishing a sensible
State marihuana policy." I appreciate those goals but the 2008
enactment did not decriminalize possession with the intent to
distribute marijuana, and I do not read this enactment as
intending to reject, alter, or affect this court's established
jurisprudence concerning a determination of probable cause.
6
arrest because of insufficient time to prepare a report. This
simply may not be feasible, nor should it be. The probable
cause to arrest standard is a low threshold that anticipates far
more work and preparation intended to meet the standard
applicable at trial -- proof beyond a reasonable doubt. The
probable cause standard is only the beginning of a far more
complex process. For these reasons I respectfully dissent.