Com. v. Garcia

• Decision Date: 27 April 1993
• Docket Number: No. 92-P-501,92-P-501
• Citation: 612 N.E.2d 674,34 Mass.App.Ct. 386
• Parties: COMMONWEALTH v. Nelson GARCIA.
• Court: Appeals Court of Massachusetts

Page 674

612 N.E.2d 674

34 Mass.App.Ct. 386

COMMONWEALTH v. Nelson GARCIA.

No. 92-P-501.

Appeals Court of Massachusetts,

Hampden.

Argued Dec. 17, 1992.

Decided April 27, 1993.

Kim C. Rosen, Northampton, for defendant.

Marcia B. Julian, Asst. Dist. Atty., for the Com.

Before KASS, JACOBS and GREENBERG, JJ.

GREENBERG, Justice.

The defendant was convicted of five counts ¹ of various drug-related offenses after a jury-waived trial in a District Court, at which the Commonwealth relied upon evidence garnered as a result of two discrete warrantless searches: the first involved Hector Rodriguez, to whom the defendant allegedly sold cocaine; the second, of the defendant himself, led to his arrest. At the trial, the Commonwealth offered evidence in some respects different from what had been presented to the same judge at the hearing on the defendant's motion to suppress evidence obtained in the search of his person.

Our task has been made more difficult because the judge did not make any findings after he ruled against the defendant on the motion to suppress evidence obtained in searches of his person and of a nearby mailbox. ² This failure, which is not, in and of itself, reversible error, requires us carefully to examine "the record to see if the findings implicit in the judge's ruling are supported." Commonwealth v. Gaulden, 383 Mass. 543, 547 (1981). Another part of the defendant's consolidated appeal, which is addressed to the judge's denial of his motion for a new trial, is premised on the theory that defense counsel mistakenly assumed the defendant lacked standing to challenge the search of Rodriguez. Represented by new counsel on appeal, he argues that the failure to file a motion to suppress evidence seized from Rodriguez amounted to ineffective assistance of counsel.

The trial. Following the denial of his suppression motion, the defendant was convicted: (1) of the knowing possession of a Class A substance, heroin, and a Class B substance, cocaine, with intent to distribute both (G.L. c. 94C, § 32); (2) of separate counts alleging that those offenses occurred within 1,000 feet of school property (G.L. c. 94C, § 32J); and (3) of a single count of unlawful distribution of a Class B substance, cocaine (G.L. c. 94C, § 32A). ³

The Commonwealth's case against the defendant ran as follows. On October 15, 1990, at about 1:00 P.M., a seven-person team of police officers was assigned to the surveillance of a block of apartments on Ferguson Place in Holyoke, an area known by the police to be favored by drug dealers to hawk their wares. From his vantage in an unmarked cruiser, Officer Guzman peered through his binoculars and spied the defendant, about 200 feet away, talking to several persons on the sidewalk near the apartment building. He observed a motor vehicle driven by a woman pull into a vacant lot in front of No. 3 Ferguson Place. A male occupant, later identified as Hector Rodriguez, got out of the automobile, engaged the defendant in conversation, and handed him money. This was followed by their entrance into No. 3 Ferguson Place. A moment later Rodriguez--now alone--left the building, put a small package into his left front pants pocket and departed in the same vehicle. Believing this to be a drug transaction, Guzman radioed his observations to the other officers patrolling the area in unmarked cruisers.

Officers Gelinas and Marouka, who received Guzman's radio transmissions, stopped the vehicle described in the message. Rodriguez was asked to step out and was patted down. Officer Marouka, knowing that Rodriguez had placed something in his pocket, removed needles and syringes from his left front pocket and Gelinas removed four bags of cocaine (about 6 grams) from his right front pocket.

While this was going on, two other officers, Egan and Fletcher, approached the defendant, who remained on the sidewalk outside No. 3 Ferguson Place which, as it turned out, was not the defendant's residence. When questioned, he denied any knowledge of meeting Rodriguez there and denied selling drugs on October 15. Meanwhile, Egan nosed around the mailboxes located in the front hallway. He discovered that inside the only locked mailbox was a magnetic key case which he could see through the slits. According to Egan's testimony, it had become a modus operandi of the drug trade to conceal narcotics inside magnetic key cases. Egan instructed Fletcher to search the defendant for any item that would unlock the mailbox. Found in the defendant's pockets were a set of keys and $110 in cash. Comparing the markings on the mailbox with those of each of the keys, Egan was able to match one of them, and managed to open the mailbox, which bore no identification. Within the magnetic key case were three "bags" of heroin and two "bags" of cocaine. The trial closed on that note.

1. The Failure of Counsel to Contest the Search of Rodriguez.

Apart from claimed emanations from the negative decision on the suppression motion defense counsel did file, the defendant argues that he was denied the effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and art. 12 of the Declaration of Rights of the Massachusetts Constitution because of trial counsel's failure to move to suppress the cocaine found on Rodriguez. The defendant contends that had the search of Rodriguez, which netted the four bags of cocaine, been successfully challenged, the evidence would have been insufficient to convict him of cocaine distribution. Further, the argument goes, all of the other evidence should have been suppressed as "fruit of the poisonous tree." The Commonwealth, on the other hand, counters that defense counsel was not ineffective because filing a motion to suppress the evidence from the search of Rodriguez would have been futile as the defendant lacked the requisite standing. On this score, we agree with the Commonwealth's position.

The defendant does not claim that he had an expectation of privacy to contest the search of Rodriguez or the automobile in which he was a passenger; rather, he invokes the automatic standing rule explicitly recognized under art. 14. See Commonwealth v. Amendola, 406 Mass. 592, 550 N.E.2d 121 (1990). ⁴ According to the defendant, the cocaine was taken from Rodriguez's person after the stop without probable cause. As the search of Rodriguez resulted in the evidence which linked the defendant to the officers' earlier observations, and formed the evidentiary basis of his conviction for unlawful distribution of cocaine, the defendant claims to have automatic standing.

His argument ignores the central premise of the automatic standing rule; namely, that the crime for which the defendant is convicted must have as an essential element of guilt, possession (either actual or constructive) at the time of the contested search. Amendola, supra at 601, 550 N.E.2d 121. Admittedly, possession is an essential element in one of the categories of activity prohibited by G.L. c. 94C, § 32A, under which the defendant was convicted. Commonwealth v. Frazier, 410 Mass. 235, 245, 571 N.E.2d 1356 (1991). However, possession by the defendant of the contraband seized from Rodriguez was not the subject of any complaint against him. Id. at 245 n. 6, 571 N.E.2d 1356. See Commonwealth v. Scardamaglia, 410 Mass. 375, 379, 573 N.E.2d 5 (1991) (no tangible evidence seized in the allegedly unlawful stop of a purchaser of drugs was introduced against the defendant who was charged with the sale); Commonwealth v. Santaliz, 413 Mass. 238, 240 n. 5, 596 N.E.2d 337 (1992) ⁵

As to the transaction with Rodriguez, the complaint alleged distribution and the evidence at trial was submitted on that theory. At no time during the trial did the Commonwealth suggest, or even hint, for purposes of proving the distribution charge, that the defendant constructively or jointly possessed the cocaine which he had supposedly sold to Rodriguez. The essence of our holding on this point is that once possession or a claim of right to possession of the contraband ends, so does standing to contest the search. At that stage of the transaction the defendant's interest is in the sale process--not the drugs. Consequently, on the record before us, any failure to challenge the search of Rodriguez was inconsequential and certainly not an instance of "serious incompetency, inefficiency, or inattention of counsel--behavior ... falling measurably below that which might be expected from an ordinary fallible lawyer." Commonwealth v. Pena, 31 Mass.App.Ct. 201, 204, 575 N.E.2d 774 (1991), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). ⁶ See Commonwealth v. Mattos, 404 Mass. 672, 680, 536 N.E.2d 1072 (1989); Commonwealth v. Wright, 411 Mass. 678, 687, 584 N.E.2d 621 (1992).

2. Search of the Defendant and the Mailbox.

The next claim of error concerns the judge's denial of the motion to suppress evidence--cocaine and heroin--seized without a warrant from the defendant's mailbox. The defendant claims that the officers' actions do not fall within any recognized exception to the warrant requirement. The Commonwealth responds that the defendant had no expectation of privacy in the mailbox and the key case found inside it. In our review of the judge's ruling on the suppression motion, we may not rely on the facts as developed at trial. Commonwealth v. Singer, 29 Mass.App.Ct. 708, 709 n. 1, 564 N.E.2d 1037 (1991), and cases cited. As we observed earlier in this opinion, the testimony presented at the suppression hearing differed in some material aspects from that received at trial.

At the suppression hearing Officer Guzman testified that during the surveillance he observed the defendant walking in and out of No. 3 Ferguson Place several times. Guzman also testified that the defendant and Rodriguez merely had a conversation after Rodriguez got out of the car. He did not testify that he saw Rodriguez hand the defendant...