Com. v. Amaral

• Decision Date: 23 June 1983
• Citation: 16 Mass.App.Ct. 230,450 N.E.2d 656
• Parties: COMMONWEALTH v. John P. AMARAL.
• Court: Appeals Court of Massachusetts

Page 656

450 N.E.2d 656

16 Mass.App.Ct. 230

COMMONWEALTH v. John P. AMARAL.

Appeals Court of Massachusetts,

Suffolk.

Argued May 6, 1983.

Decided June 23, 1983.

Robert J. Wheeler, Jr., Cambridge, for defendant.

Michael J. Traft, Asst. Dist. Atty., for the Commonwealth.

Before GRANT, CUTTER and SMITH, JJ.

SMITH, Justice.

A Superior Court judge, sitting without a jury, convicted the defendant on four indictments that charged conspiracy and possession of controlled substances with intent to distribute. On appeal the defendant contends that his motions to dismiss the indictments and to suppress certain evidence were improperly denied. We find no error.

1. Motion to dismiss indictments. The Superior Court judge was not required to dismiss the indictments merely because a District Court judge had dismissed complaints for the identical offenses. Commonwealth v. Bailey, 13 Mass.App. 1019, 433 N.E.2d 494 (1982). The complaints had been dismissed in the District Court on January 31, 1979, over the objection of the Commonwealth, for lack of prosecution. The Superior Court judge made findings supported by the evidence that: (a) the sole reason for the dismissals in the District Court on January 31 was that the Commonwealth was unable to proceed because its key witness had not arrived at the time the cases were called; and (b) the defendant never raised the issue of speedy trial before the District Court as a ground for his dismissal motion. Contrast Commonwealth v. Ludwig, 370 Mass. 31, 345 N.E.2d 386 (1976); Commonwealth v. Balliro, 385 Mass. 618, 623, 433 N.E.2d 434 (1982). There is no evidence in this record to suggest that the prosecution was unreasonably lacking in diligence in bringing the defendant to trial. Commonwealth v. Pomerleau, 13 Mass.App. 530, 536, 434 N.E.2d 1288 (1982). The judge's finding that the defendant was not prejudiced by the delay, see Mass.R.Crim.P 36(c), 378 Mass. 912 (1979), is borne out by the record.

2. Motion to suppress evidence. The judge denied the motion to suppress the evidence that had been seized in a warrantless search of the defendant's apartment. The judge ruled that it was necessary for the police to enter the defendant's apartment without first obtaining a search warrant in order to prevent the destruction or removal of narcotics. We summarize his detailed findings.

An undercover agent (purchaser) entered into negotiations with a seller of drugs for the purchase of four ounces of cocaine. Because the seller was extremely secretive about the location and source of the drugs, he informed the purchaser that he would sell the cocaine only in a series of one ounce transactions, and would not take him to his supplier. The seller specified that the sale take place at a busy intersection in Revere, which he stated was within walking distance of the supplier's abode. The purchaser then notified the police of the proposed site of the sale. A police officer remembered that, five days before, the seller had been followed to an apartment house on Ellerton Street, a short distance from the intersection. A surveillance team was dispatched to that location because it was considered a potential source of supply of narcotics to the seller, given its proximity to the intersection.

After arriving at the intersection with the purchaser, the seller left the purchaser and walked to the apartment house, which the police had under surveillance. The police observed the defendant come out of the apartment house, talk to the seller, return to the apartment house, enter a first floor apartment on the right (the defendant's apartment), and reemerge carrying a plastic bag containing a white powder. The defendant was accompanied by a young woman who, after the seller and defendant talked, returned to the defendant's apartment. The seller and defendant proceeded by truck to the place designated for the sale. On arrival, the seller got into the purchaser's automobile and informed him that he had the first ounce of cocaine, which he produced. The purchaser asked about the truck which had pulled in front of his automobile. The seller responded that it was the supplier waiting for his money and that the supplier had the rest of the cocaine. At this point, the seller and the defendant were placed under arrest, during the course of which the seller was shot. A search of the seller, the defendant and the truck did not disclose any cocaine. The arrests took place at about 9:00 p.m.

The intersection was well lighted, with public telephones nearby. As a result of the gunshot and the arrests, a large crowd gathered at the scene. After an ambulance arrived with its siren sounding, more people gathered, and a traffic jam ensued. Concerned about the other three ounces of cocaine which the seller had agreed to sell and being aware of the crowd and the increasing notoriety of the arrests, the police at the scene notified the surveillance team, by radio, to secure the defendant's apartment.

After the departure of the seller and the defendant in the truck to the proposed location of the sale, the police had continued surveillance of the defendant's apartment. A short time later, they heard sirens from the direction of the intersection. Shortly after, they received word to secure the defendant's apartment. They gained entrance to the hall outside the defendant's apartment, and as they approached the apartment door, a telephone inside rang. The officers then knocked, announced themselves as Revere police, and waited for about five seconds. They heard noise and movement within, but there was no response at the door. They kicked the door open, entered the apartment, and found three men and a woman. Narcotics were found in plain view in several rooms of the apartment.

We start our discussion by restating the well known rule that warrantless entries are per se unreasonable unless they fall within one of the few narrowly drawn exceptions to the Fourth Amendment warrant requirements. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). Arkansas v. Sanders, 442 U.S. 753, 759, 99 S.Ct. 2586, 2590, 61 L.Ed.2d 235 (1979). Commonwealth v. Forde, 367 Mass. 798, 800, 329 N.E.2d 717 (...