Commonwealt v. Hill, P-1388
| Decision Date | 09 November 2000 |
| Docket Number | P-1388 |
| Citation | 51 Mass. App. Ct. 598,747 N.E.2d 1241 |
| Parties | (Mass.App.Ct. 2001) COMMONWEALTH vs. TWANESHA HILL. 99- |
| Court | Appeals Court of Massachusetts |
County: Hampden.
Present: Laurence, Smith, & Gillerman, JJ.
Controlled Substances. Constitutional Law, Search and seizure, Probable cause, Arrest. Search and Seizure, Warrant, Automobile, Probable cause, Arrest. Probable Cause.
Indictments found and returned in the Superior Court Department on September 28, 1994.
Pretrial motions to dismiss and to suppress evidence were heard by C. Brian McDonald, J.
Applications for interlocutory appeal were allowed by Ruth I. Abrams. J., in the Supreme Judicial Court for the county of Suffolk and the appeal was reported by her to the Appeals Court.
Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.
William R. Hill, Jr., Committee for Public Counsel Services, for Twanesha Hill.
Twanesha Hill was indicted, along with another individual, Corey Hightower, for possession of cocaine with intent to distribute (in violation of G. L. c. 94C, § 32A), such possession and intent within a school zone (in violation of G. L. c. 94, § 32J), and possession of "a firearm or ammunition" without an identification card (in violation of G. L. c. 269, § 10[h]). Hill filed pretrial motions to dismiss the indictments against her; to suppress items discovered by the police during a warrantless search of her person and of an automobile in which she was riding; and to suppress other items subsequently seized from her apartment in execution of a search warrant.
Following a combined evidentiary hearing on the several motions, a Superior Court judge allowed Hill's motion to dismiss the indictments and her motion to suppress the fruits of the warrantless search, but denied her motion to suppress the evidence obtained from the search of her apartment. A single justice of the Supreme Judicial Court allowed the Commonwealth's applications for interlocutory appeal of those rulings and reported the appeal to this court for determination. See Mass.R.Crim.P. 15(a)(1) & (2), as appearing in 422 Mass. 1501-1502 (1996).1 We reverse the allowance of Hill's motion to dismiss the indictments for possession of cocaine with intent to distribute and such possession and intent to within a school zone, but affirm the allowance dismissing the indictment for possession of a firearm or ammunition. We affirm the allowance of Hill's motion as to the warrantless search of the automobile and reverse the denial of her motion as to the search of her apartment.
The motion judge made the following findings, after the combined hearing (the evidence at which consisted of the testimony of Springfield police officers Jackson, Santaniello, and Trites, along with the search warrant and supporting affidavit and the grand jury transcript). The Springfield police department had, at some unspecified time, received reports from several different, unnamed sources that one side of a two-story duplex house at 16 Gold Street was a distribution point for crack cocaine. Hill and Hightower were allegedly dealing cocaine from that apartment by using a "beeper system" to communicate with customers and delivering cocaine to customers in a red Plymouth Neon automobile. In addition, some customers were allowed to enter the apartment to purchase cocaine. One of the anonymous sources claimed to have been, at an indeterminate time or times, inside the apartment and to have witnessed an undisclosed number of drug sales involving Hill and Hightower and the placement of orders for cocaine (inferentially by the beeper system). One of the sources was said to be a "confidential informant" who on prior occasions had supplied officer Jackson with information, which Jackson had "corroborated." Jackson did not, however, describe the dates or the nature of that information, nor the manner in which it had been corroborated. The confidential informant was not identified as the source who had allegedly witnessed drug transactions inside the apartment.
After receiving this information, Jackson and fellow-officer Santaniello began conducting surveillance of the suspect address. The officers were aware that Hill had been convicted four years earlier for possession of cocaine with intent to distribute and trafficking in cocaine and that Hightower had been previously arrested for possession of some sort of handgun without a permit. Over about a two-week period prior to June 10, 1994, they confirmed that Hill and Hightower were in residence and watched them come and go in the red Neon. They also observed ten instances where unknown individuals entered the apartment, remained a short time, then departed. Short visits of that type were consistent with transactions involving the sale of narcotics. The ten instances did not, however, involve ten different individuals, and none of the individuals seen entering the apartment was known to the officers as having been involved in drug activity. The officers did not ascertain whether either Hill or Hightower was present during those ten visits.
On June 10, 1994, at a time when the red Neon was parked nearby, the two officers observed an automobile containing a female passenger known to Jackson as Mari Werner arrive at 16 Gold Street. Werner entered the apartment for a "short time," returned to the vehicle, and drove away. Jackson knew that Werner had been arrested the previous week, found in possession of cocaine, and charged with possession with intent to distribute cocaine. Jackson and Santaniello followed Werner's vehicle, stopped it at a nearby intersection, and ordered the occupants out. Asked if she had any cocaine in her possession, Werner admitted that she did and surrendered four plastic bags containing what appeared to be cocaine. Werner did not, however, admit or state that she had obtained the cocaine at 16 Gold Street. She was then arrested and transported to police headquarters.
The circumstances of Werner's arrest were communicated to additional police officers, including Sergeant Trites, who took up surveillance at 16 Gold Street. The surveilling officers observed Hill and Hightower leave the apartment "shortly after" Werner was arrested and drive away in the red Neon. Trites and the other officers followed the red Neon into the parking lot of the Glenwood Elementary School (which, testimony revealed, was attended by Hill's son). Trites positioned his vehicle behind the Neon, while another police vehicle "box[ed it] in" from the front. Trites did not speculate that the Neon contained cocaine; rather, aware that a warrant application to search the suspects' apartment was in progress, he intended to detain and question them until the warrant issued.
The officers left their vehicle and approached the Neon in plain clothes. They displayed their badges, but did not draw their weapons. Hightower, the driver, looked shocked and "made a quick motion towards the console" area of the automobile. (This movement did not, however, provoke safety fears on the part of the officers.) Trites, looking through the driver's door window, saw, "in plain view," the corner of a plastic bag in the area between the driver's seat and the console. He knew that such a plastic bag was a common container for narcotics. Hill and Hightower were ordered out of the Neon. Trites retrieved the plastic bag, which contained three additional plastic bags, each containing a substance that appeared to be cocaine. The officers then searched Hill and Hightower; each had about $400 in cash, and Hill had a "pager". Both were arrested.
Upon receiving this information and an affidavit from Santaniello, a clerk magistrate issued a warrant for the search of the 16 Gold Street apartment for cocaine and related paraphernalia. During the search of the apartment, police recovered personal papers belonging to Hill and Hightower, bank books, identification cards, pictures, and $6,000 in cash inside a pair of men's sneakers in a bedroom. "In the cellar of 16 . . . Gold Street," officers found "128 rounds of ammunition, one clip and clip feeder, and one empty gun container."2
Relying on Commonwealth v. McCarthy, 385 Mass. 160 (1982), the judge dismissed Hill's indictments after concluding that the Commonwealth had failed to present to the grand jury sufficient evidence to suggest that Hill was at any time in actual or constructive possession of the drugs or ammunition at issue. Accordingly, he ruled that the grand jury lacked probable cause to believe that Hill had committed a crime.
Under the applicable principles,3 we are satisfied that the testimony and other evidence presented to the grand jury were sufficient to establish probable cause on the indictments charging Hill with cocaine possession with intent to distribute and cocaine possession with intent to distribute in a school zone. The grand jury heard evidence that Hill -- a convicted drug dealer identified as continuing in the cocaine distribution business by a police informant claiming personal knowledge -- was at least inferentially present when a known drug user and suspected dealer visited her building; that following that visitor's arrest immediately after leaving 16 Gold Street, the police found cocaine in the visitor's possession; that Hill and Hightower left the apartment shortly after the user's arrest and proceeded in a car to a schoolyard; that at the schoolyard during a search, police found in that car a substantial amount of cocaine packaged for resale, found in Hill's possession a common accoutrement of the drug trade (a pager), as predicted by the informant, and a significant amount of cash, and also found in Hightower's possession a significant amount of cash; and that in her apartment the police discovered a very large stash of cash.
The totality of that evidence warranted a person of reasonable caution to conclude that Hill had probably committed...
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