Com. v. Sabetti

• Decision Date: 04 February 1992
• Citation: 585 N.E.2d 1385,411 Mass. 770
• Parties: COMMONWEALTH v. Matthew SABETTI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1385

585 N.E.2d 1385

411 Mass. 770

COMMONWEALTH v. Matthew SABETTI.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Dec. 2, 1991.

Decided Feb. 4, 1992.

Carol A. Donovan, Committee for Public Counsel Services (Millie Whatley, Committee for Public Counsel Services, with her), for defendant.

Kevin J. Mahoney, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and GREANEY, JJ.

NOLAN, Justice.

On April 29, 1987, a Middlesex County grand jury indicted the defendant, Matthew Sabetti, on charges of trafficking in cocaine, possession of cocaine, possession of marihuana, unlawful possession of controlled substances (three indictments charging four counts), and assault and battery on a police officer. ¹ On April 5, 1988, a jury found the defendant guilty of trafficking in cocaine and possession of marihuana and returned not guilty verdicts on the remaining indictments.

The judge allowed the defendant's posttrial motion for a required finding of not guilty on the trafficking charge and, pursuant to Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979), ordered the entry of a guilty verdict of the lesser included offense of possession of cocaine with intent to distribute. The conviction of possession of marihuana was placed on file. A single justice of the Appeals Court stayed the execution of the sentence pending this appeal.

The defendant appeals from his conviction, arguing that the motion judge improperly denied his motion to suppress the controlled substances and contraband seized by the State police from his person and from the vehicle which he occupied, since the police did not have probable cause to arrest or to search him. The defendant further contends that the trial judge should have directed a finding of not guilty on the trafficking in cocaine and possession of cocaine with intent to distribute charges, because the Commonwealth failed to introduce sufficient evidence that he had knowledge or possession of the cocaine seized from the vehicle. The Commonwealth cross appeals from the trial judge's decision to reduce the verdict of cocaine trafficking to possession of cocaine with intent to distribute, asserting that the judge committed an error of law in exercising his discretion under Mass.R.Crim.P. 25(b)(2). We granted the defendant's application for direct appellate review. For the reasons set forth below, we hold that the defendant's claims of error are without merit. Further, we conclude that the trial judge erred in reducing the trafficking conviction.

We state the facts relevant to this appeal. On January 7, 1987, at approximately 6:30 P.M., Trooper David Otte of the State police drove into the Burger King restaurant parking lot located alongside the Massachusetts Turnpike in Natick. At that time, Trooper Otte observed a vehicle parked in an isolated section of the lot. He noticed trash being thrown from the driver's side of the vehicle onto the ground. Consequently, the trooper drove toward the vehicle and positioned the front of the police cruiser perpendicular to the front passenger door of the vehicle so that the headlights shone at the vehicle.

As he approached the vehicle, Otte saw trash strewn about the ground outside both the driver and front passenger doors. He approached the defendant, who then was sitting in the driver's seat, and asked him about the improperly disposed trash. Sabetti denied having thrown the trash to the ground. Trooper Otte then walked around the vehicle to the passenger side where he observed and spoke to John Graticcia.

Through the passenger window, aided by a flashlight, the trooper viewed Graticcia and the front interior of the vehicle. Otte observed several items in Graticcia's open, right breast pocket, including a brown plastic medicine vial bearing the name "Janet" on the label, a folded piece of glossy paper, a section of a plastic straw, a small metal aspirin tin and a small amber vial which appeared to contain a white powdery substance. Based on his experience and training, Otte recognized these objects as implements used to consume and to distribute cocaine. The trooper also observed several bottles like the type that contain prescription medicines scattered about the floor of the vehicle. Some of the bottles appeared to contain pills. Additionally, Otte noticed the following items on the floor of the vehicle: a brown medicine bottle containing a fluid, cotton balls, and several empty soft drink bottles covered on their tops with perforated tinfoil. The trooper understood these materials to be the type of instruments commonly used to smoke or "freebase" cocaine. The interior of the vehicle, according to Otte, was a "mess," filled with trash, clothing, and other personal items.

Trooper Otte ordered Graticcia out of the vehicle and then searched him. After confiscating the contraband he had observed in Graticcia's pocket, Otte arrested Graticcia, handcuffed him, and placed him in the cruiser. Otte returned to Sabetti, who then was standing outside the vehicle, and searched him. Placing his hand inside Sabetti's pants pocket, Otte discovered and seized a plastic bag which appeared to contain marihuana. When the trooper informed Sabetti that he was under arrest, Sabetti became physically abusive and attempted to elude Otte's grasp. A few moments later, Otte apprehended Sabetti, handcuffed him, and placed him in the cruiser.

While the defendant and Graticcia sat in the cruiser, Trooper Otte viewed the rear interior of the vehicle. He observed more bottles and a white canvas gym bag on the seat. Protruding from the outside compartment of the bag were several plastic bags, seemingly dusted with white crystalline powder.

Shortly thereafter, four State troopers arrived in the parking lot, responding to a call from a bystander and a radio request for back-up from Trooper Otte. Pursuant to State police regulations, the troopers arranged for the vehicle to be towed to police barracks in Weston in order to conduct an inventory search. ² The troopers concluded that the inventory procedure could best be conducted at the barracks, given the large quantity of items in the car and the relatively poor lighting conditions in the parking lot.

In the course of conducting the inventory of the vehicle's contents, the police seized several items, including: a canvas bag which held two plastic bags (subsequently determined by analysis to contain 38.02 grams of eighty-one per cent pure cocaine), a plastic measuring spoon, a grinder (subsequently determined to contain cocaine residue), a funnel, a strainer, Inositol powder, ³ a gram scale, several pieces of glossy paper, a test tube (subsequently determined to contain cocaine residue), numerous prescription tablets, a small smoking pipe, a switchblade knife, more than five grams of marihuana, an ankle brace, a message "beeper," papers referring to transactions, a syringe (subsequently determined to hold liquid cocaine), a gun, a holster, and a large number of empty prescription bottles.

Graticcia and Sabetti were booked, photographed, and fingerprinted at the State police barracks in Weston. The booking officer confiscated $1,090 from Graticcia, who then appeared to be under the influence of narcotics. Graticcia had an extremely swollen and discolored ankle at that time. During the booking, the defendant falsely identified himself as "Justin" Sabetti. The defendant's speech at that point sounded sluggish and his coordination seemed impaired, although he did not exhibit signs of alcohol intoxication. The police determined that Graticcia owned the vehicle.

1. Denial of the motion to suppress. The defendant challenges the determination of the motion judge that Trooper Otte had probable cause to search and arrest Sabetti in the Burger King parking lot. Specifically, the defendant contends that Otte did not have probable cause to believe that he had committed or then was attempting to commit a crime and, therefore, the fruits of the search should have been suppressed. Absent a showing of clear error, we accept the motion judge's findings of fact and grant substantial deference to his rulings of law. Commonwealth v. Cast, 407 Mass. 891, 897, 556 N.E.2d 69 (1990), and cases cited.

The motion judge found that Trooper Otte was entitled to approach the vehicle in the parking lot and question its occupants, having witnessed trash being thrown therefrom. ⁴ The judge concluded that the initiation of the investigation by Trooper Otte was permissible in the circumstances. Commonwealth v. Helme, 399 Mass. 298, 300, 503 N.E.2d 1287 (1987), and cases cited. There is no error in this ruling.

The motion judge next considered whether the scope of the search conducted was justified in the circumstances. Helme, supra.. Otte testified that, while legitimately investigating the littering violation, he inadvertently discovered plainly visible narcotics contraband on the person of Graticcia and inside the vehicle. The motion judge found Otte's testimony to be credible. We shall not disturb this finding on appeal. Commonwealth v. Bottari, 395 Mass. 777, 780, 482 N.E.2d 321 (1985), citing Commonwealth v. Meehan, 377 Mass. 552, 557, 387 N.E.2d 527 (1979). These facts, the motion judge reasoned, supported the conclusion that Trooper Otte's search of Graticcia and the vehicle, as well as the seizure of the evidence located therein, was justified under the "plain view doctrine." Commonwealth v. Cefalo, 381 Mass. 319, 331-332 & n. 9, 409 N.E.2d 719 (1980). The motion judge's findings and rulings are amply supported by the record.

The motion judge further concluded that, based on Graticcia's apparent possession of narcotics and related contraband, the presence of several prescription medicine vials in the vehicle, and other paraphernalia known to the trooper as instruments used to consume and to distribute narcotics, Trooper Otte had probable cause to arrest the defendant. In support of this holding, the...