Com. v. Spano

• Decision Date: 15 January 1993
• Parties: , 79 Ed. Law Rep. 988 COMMONWEALTH v. Robert F. SPANO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1241

605 N.E.2d 1241

414 Mass. 178, 79 Ed. Law Rep. 988

COMMONWEALTH v. Robert F. SPANO.

Supreme Judicial Court of Massachusetts Plymouth.

Argued Oct. 8, 1992.

Decided Jan. 15, 1993.

Nona E. Walker, Committee for Public Counsel Services, for defendant.

Paul C. Dawley, Asst. Dist. Atty., for Com.

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

LYNCH, Justice.

The defendant, Robert F. Spano, was convicted after a jury-waived trial of trafficking in cocaine, G.L. c. 94C, § 32E(b ) (1990 ed.), possession of cocaine with intent to distribute while within 1,000 feet of a school, G.L. c. 94C, § 32J (1990 ed.), and possession of cocaine with intent to distribute, G.L. c. 94C, § 32A (c ) (1990 ed.). The defendant appeals from these convictions, arguing that the judge erred in denying his motion for a required finding of not guilty, based on a claim that G.L. c. 94C, § 32J, which mandates a prison term for drug offenses committed within 1,000 feet of school premises, violates his constitutional rights under both the United States Constitution and the Declaration of Rights of the Massachusetts Constitution. Specifically, he maintains that the statute is unconstitutionally vague because it does not provide an ascertainable standard for measuring the distance from the school to the site of the alleged offense, violates his due process rights because it does not require an intent to possess and to sell drugs to and around schoolchildren inside the zone, and allows consecutive and duplicative sentences to be imposed. The defendant further asserts that the judge erred in denying his motion to suppress evidence seized and statements made during and subsequent to the execution of a search warrant, arguing that the search warrant was not supported by probable cause. We granted his application for direct appellate review. We find no error and affirm the convictions.

After a bench trial, the judge found the following facts. On October 3, 1989, at approximately 1 P.M., local, State, and Federal law enforcement officials executed a no-knock search warrant at 25 Chandler Drive in Marshfield, where the defendant resided. The search yielded drug paraphernalia, 43.47 grams of eighty-nine per cent pure cocaine, $960 in cash rolled and stuffed into a can, a small plastic bag containing pills, and a bottle containing Inositol powder, a dilutant.

We have recently decided three cases which involved challenges to G.L. c. 94C, § 32J. Commonwealth v. Roucoulet, 413 Mass. 647, 601 N.E.2d 470 (1992). Commonwealth v. Taylor, 413 Mass. 243, 596 N.E.2d 333 (1992). Commonwealth v. Alvarez, 413 Mass. 224, 596 N.E.2d 325 (1992). These decisions effectively dispose of all the defendant's contentions, except those based on the method of measuring the drug-free zone established by the statute and the lack of probable cause for the issuance of the search warrant. We turn directly to those arguments.

1. Measurement. At trial, the prosecution introduced evidence demonstrating that the defendant's house is located within 1,000 feet of the Daniel Webster Elementary School. Police officers testified that, utilizing a roller tape measurement, they measured the distance. They measured from the school to a point on the defendant's property line, a distance of 470 feet, with an additional thirty to forty feet to his residence. Robert Berche, an investigator for the Committee for Public Counsel Services, testified that the most direct automobile route on the public roads from the school driveway to the defendant's house travels a distance of 4,224 feet or 0.8 miles. Berche also conducted his own straight-line measurement and found the distance to be 512 feet. When questioned by the judge, he agreed that by line of sight the distance is under 1,000 feet.

The defendant argues that G.L. c. 94C, § 32J, is unconstitutionally vague because the statute does not specify ascertainable standards for measuring the requisite distance of 1,000 feet. The defendant suggests, therefore, that the statute fails to put a person of ordinary intelligence on notice as to how to conform his conduct to the statute.

The void for vagueness doctrine requires that criminal statutes be defined in terms that are sufficiently clear to permit a person of average intelligence to comprehend what conduct is prohibited. Commonwealth v. Taylor, supra, 413 Mass. at 248, 596 N.E.2d 333, quoting Commonwealth v. Gallant, 373 Mass. 577, 580, 369 N.E.2d 707 (1977). Due process requires not only fair notice of proscribed conduct but also that penal statutes be administered in a manner that prevents arbitrary and discriminatory enforcement. See Commonwealth v. Freiberg, 405 Mass. 282, 289, 540 N.E.2d 1289 (1989); Commonwealth v. Williams, 395 Mass. 302, 304, 479 N.E.2d 687 (1985). The use of general terms in a statute will not make it constitutionally inadequate. Opinions of the Justices, 378 Mass. 822, 827, 393 N.E.2d 313 (1979).

The statute in question prohibits possession of illegal drugs with the intent to distribute in, on, or within 1,000 feet of school premises regardless of whether the defendant has actual knowledge of school boundaries. G.L. c. 94C, § 32J. Commonwealth v. Alvarez, supra, 413 Mass. at 225-226 & n. 1, 596 N.E.2d 325. The elements of the statute are stated in terms that will not delude the public as to its meaning or application, thereby ensuring even enforcement by the police. Commonwealth v. Taylor, supra, 413 Mass. at 248-249, 596 N.E.2d 333.

Absent express provisions in the statute specifying the method of determining the extent of the school safety zone, there is no reason why the measurement should not be in a straight line from the school's boundary line to the site of the illegal drug activity. See Cleary v. Cardullo's, Inc., 347 Mass. 337, 344, 198 N.E.2d 281 (1964) (courts have duty of statutory interpretation in deciding what method to utilize in determining 500-foot distance between church or school and site of premises licensed to sell intoxicating beverages); Annot., 4 A.L.R.3d 1250, 1252 (1965) (discussing measurement between protected institution and premises licensed for the sale of intoxicating beverages). Accord United States v. Campbell, 935 F.2d 39, 45 (4th Cir.1991) (testimony of land-survey analyst of police officer's utilizing aerial photograph that placed defendant's activity within 1,000 feet of a school sufficient to find violation of school-zone statute); United States v. Ofarril, 779 F.2d 791, 792 (2d Cir.1985), cert. denied, 475 U.S. 1029, 106 S.Ct. 1231, 89 L.Ed.2d 340 (1986) (suggestion that distance should be calculated by pedestrian route between site of drug activity and school violates plain meaning of statute); State v. Burch, 545 So.2d 279, 281 (Fla.Dist.Ct.App.1989) (school-zone statute prohibiting drug activity within 1,000 feet of school; distance should be measured in straight line to school boundary); Studio Art Theatre of Evansville, Inc. v. State, 530 N.E.2d 750, 754 (Ind.Ct.App.1988) (straight-line measurement used to determine whether sexually explicit materials are being sold within 500 feet of church or school); Taylor Drug Stores, Inc. v. Indiana Alcoholic Beverage Comm'n, 497 N.E.2d 932, 936 (Ind.Ct.App.1986) (absent express provisions, shortest straight line connecting church and proposed premises, regardless of intervening obstacles, should be used to determine proscribed 200-foot distance); Calvary Baptist Church v. Coonrad, 163 Neb. 25, 32, 77 N.W.2d 821 (1956) (statute's requisite safety zone determined by straight-line measurement from nearest walls of the two buildings). Four of the five methods used to measure the distance introduced at trial indicated that the school was less than 500 feet away from the defendant's house. There was no error in the judge's finding that the distance between the defendant's house and the elementary school was less than the proscribed distance of 1,000 feet.

2. Execution of the search warrant. The defendant claims that the judge erred in denying his motion to suppress evidence under the search warrant, claiming that the affidavit supporting the warrant was not based on probable cause. The defendant alleges that the information in the affidavit was stale, insufficiently detailed, and inadequately corroborated to support a finding of probable cause.

The affidavit by Lieutenant A.L. Knight on which the warrant was based set forth the following facts. During the early part of April, 1989, he received information from a confidential informant, CRI-50, reporting that the defendant was selling cocaine and marihuana at 25 Chandler Drive. CRI-50 told the lieutenant that the defendant was a supplier for smaller dealers in the Marshfield area, and that the defendant had sold drugs in CRI-50's presence to persons at 25 Chandler Drive on more than twenty-five occasions over a three-month period. CRI-50 has used cocaine and marihuana in the past and is familiar with the manner in which it is used, packaged, and sold.

During the early spring of 1989, Lieutenant Knight received information from another informant, CRI-91, who informed him that the defendant was selling cocaine and marihuana from his house at 25 Chandler Drive where he resided with his wife and children. CRI-91 stated that he had purchased cocaine from "Bob" at this address on more than fifty occasions within three months up to, and including, within five days of the application for the search warrant. CRI-91 stated that he had observed others purchasing drugs at 25 Chandler Drive. Additionally, CRI-91 stated that he had observed the defendant weighing and packaging large amounts of cocaine on more than a dozen occasions over the previous four months and as recently as five days prior to the application. According to CRI-91, the defendant packaged cocaine for sale in magazine "cut outs" and sold it at 25 Chandler Drive in varying quantities, including "eight-balls" (one-eighth of an ounce), one-half...