Com. v. Sanchez, No. 95-P-216

CourtAppeals Court of Massachusetts
Writing for the CourtPretrial motions to suppress evidence were heard by Regina L. Quinlan, J., and the case was tried before James P. Donohue; KAPLAN
Citation40 Mass.App.Ct. 411,664 N.E.2d 868
Docket NumberNo. 95-P-216
Decision Date25 July 1996

Page 868

664 N.E.2d 868
40 Mass.App.Ct. 411

No. 95-P-216.
Appeals Court of Massachusetts,
Argued Jan. 23, 1996.
Decided May 8, 1996.
Further Appellate Review Denied July 25, 1996.

Page 869

INDICTMENT found and returned in the Superior Court Department on February 16, 1994.

Pretrial motions to suppress evidence were heard by Regina L. Quinlan, J., and the case was tried before James P. Donohue, J.

Peter M. Onek, Boston, Committee for Public Counsel Services, for defendant.

Kennera M. McSherry, Assistant District Attorney, for Commonwealth.


KAPLAN, Justice.

In summary: Following the stop of a car on the highway, the car was impounded, and inventory searches disclosed some 14.6 grams of cocaine in a jacket hung over the driver's seat and a larger quantity in a suitcase in the trunk. The defendant, one of the passengers, was indicted for [40 Mass.App.Ct. 412] trafficking in the larger amount. 1 On motion to suppress, the defendant argued that the impoundment was unjustified, thereby invalidating the inventory searches. The motion was denied. At trial, the defendant, on his motion for a required finding of not guilty, contended that there was insufficient evidence that he was guilty of the offense by reason of his constructive possession of the cocaine with intent to distribute, or, alternatively, as a joint venturer with the driver in such possession. The motion was denied, the jury brought in a guilty verdict, and the defendant appeals from the judgment. We hold that the car was impounded lawfully. The Commonwealth established the constructive possession, but failed on the alternative joint venture theory. As the jury may have convicted solely on the latter basis, the judgment will be reversed for a new trial.

In detail: At 9:30 P.M., October 19, 1993, State trooper Timothy G. Babbin, on routine patrol with a partner in a marked cruiser, was traveling eastward on Interstate 84 in Sturbridge near the Connecticut border, a wooded area. He observed ahead of him a Nissan automobile (two door; 1987 make) with a New York license plate. As the car showed no rear lights--a violation of law, cf. Commonwealth v. Valentine, 18 Mass.App.Ct. 965, 966, 470 N.E.2d 384 (1984)--Babbin decided to stop it and check. The car pulled over in response to the cruiser's activation of blue lights. Approaching, Babbin asked the driver, Hector Cruz, 2 for his driver's license and the car registration. Cruz showed a Massachusetts registry identification card and New York registration and insurance identification cards, the latter two with the name "Roland Davie" and an address at 636 West 136th Street, New York City. 3 Cruz did not produce a driver's license. A quick computer search revealed that warrants were outstanding against Cruz for operating a motor vehicle after license suspension and for

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assault and battery and disturbing the peace. Babbin arrested Cruz and placed him in the cruiser.

[40 Mass.App.Ct. 413] Elizabeth Mendez was in the front passenger seat; in the back seat behind the driver sat the defendant Jose Sanchez; Rafael Mateo sat at his side. Mendez produced a valid Massachusetts driver's license; she indicated that she was an accommodation passenger being driven to Lynn. Sanchez and Mateo had no identification. Responding to Babbin's question, who owned the car, Cruz, Mendez, and Mateo said it was "a friend from New York," but they did not supply a name. As Sanchez did not speak English, Babbin did not question him. Babbin checked with his dispatcher and was told that there were no warrants outstanding for any of the passengers, nor had the car been reported as stolen.

Returning to the car, Babbin asked the passengers to step outside and said he intended to have the car towed. Babbin had already observed that the car's trunk lock was missing, leaving a hole, and the latches on the car's rear windows were broken, so the windows could not be secured. The two doors, including windows proper, were undamaged. A key was in the ignition.

With the car impounded, awaiting the tow, and a third officer arrived on the scene, Babbin commenced an inventory search according to the written procedure of the State police (cited below). In the right hand pocket of a jacket draped over the driver's seat, Babbin felt a heavy weight. This turned out to consist of a bottle of perfume and a sock wrapped around a glassine bag which contained white rock and powder later testing as 14.6 grams of 80% pure cocaine. Cruz acknowledged that he owned the jacket, but he and the others denied owning the cocaine. Babbin placed Sanchez and Mateo under arrest. 4

The inventory search continued after the towed car reached a police barracks in Sturbridge; Babbin searched the trunk, his partner, trooper Donna Lasarda, the interior. Opening the trunk, Babbin found a large suitcase and two small travel bags. The suitcase held articles of clothing (see below) and a bag with 242.8 grams of white rock and powder 46% pure cocaine. 5 Under the travel bags, also containing clothes, were two papers, one of these a birth certificate of Sanchez.

The glove compartment yielded a bill, addressed to Sanchez [40 Mass.App.Ct. 414] at 510 West 144th Street, New York City, for a beeper with a number (212) 389-9254. A beeper was on Sanchez's person when he was searched. An address book belonging to Cruz was lodged between the driver's seat and a side of the console separating the front seats. Among the business cards in the address book was one with the number mentioned. A rear car window bore a "For Sale" sign with the same number. When Babbin dialed it, Sanchez's beeper responded.

The foregoing was the substance of the evidence presented on the motion to suppress, which was denied (and denied also when formally repeated at trial). It was likewise the nub although not the precise substance of the evidence presented at trial, whose sufficiency to support a conviction for trafficking was attacked by motion for a required finding of not guilty, which also was denied.

1. If the impoundment was illegal, then so were the consequent searches, and the prosecution would fail. See Commonwealth v. Garcia, 409 Mass. 675, 678, 569 N.E.2d 385 (1991); Commonwealth v. Dunn, 34 Mass.App.Ct. 702, 703, 615 N.E.2d 597 (1993). The Commonwealth suggests that the condition of the car--missing rear lights, lockless trunk, broken latches--provided a basis for an inference that the car was stolen. So, too, the Commonwealth relies on the fact that the three who were questioned did not provide the name or a clue to the name of the owner of the car now hapless on the highway. The natural and understandable expedient, says the Commonwealth, was to impound the car.

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The defendant points out that the car had not been reported stolen, and the faults in the car did not translate into significant proof of a theft, 6 for some familiar telltale signs of car theft did not appear, and a key was in the ignition. True, the name of the owner was not forthcoming, but why was not the defendant Sanchez questioned on the subject, using Mateo, perhaps, as translator? The Commonwealth could agree that the officer might have been more thorough, but the defendant's ostensible relation to the car as a go-between in its possible sale, which might make his answer to the ownership question particularly interesting, was not evident until the later inventory search. One can only speculate what the defendant's answer might have been, and the problem of the custody of [40 Mass.App.Ct. 415] the vehicle would need a prompt answer even if the defendant offered a name. The defendant contends that the officer was under a duty to try to arrange to have the car cared for short of impoundment, and suggests that Mendez, with her license, might have been deputed to drive the car off (destination perhaps Lynn). The defendant claims to find such a duty of improvisation in General Order TRF-10 (1992) of the State police governing "Motor Vehicle Inventory," but we do not agree. 7 At all events, the proposed means of circumventing impoundment seems quite implausible: approval by the...

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