COMMONWEALTH v. MORGAN (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This case arises out of police surveillance conducted on a Springfield home for suspicions of drug activity. The defendant, Jammie Morgan, was charged with distribution of a class B controlled substance, to wit, cocaine, subsequent offense, in violation of G. L. c. 94C, § 32 A (c) and (d); possession of a class B controlled substance with intent to distribute, to wit, cocaine, subsequent offense, in violation of G. L. c. 94C, § 32 A (c) and (d); and resisting arrest in violation of G. L. c. 268, § 32 B. The defendant filed a motion to dismiss all charges, and the motion judge allowed the motion as to the first charge (distribution, subsequent offense), reasoning that the Commonwealth had failed to establish the requisite probable cause to arrest him. The Commonwealth appeals from that order.² We affirm.

Background. We summarize the evidence presented to the grand jury.³ On June 16, 2016, members from the narcotics unit of the Springfield Police Department were conducting surveillance on 19 Montrose Street (house) on the basis of information that a heavyset, black male with long dreadlocks was selling drugs from that address. One of the officers, Detective Kalish, was parked in an undercover cruiser with a clear sightline of the house and he observed a Chevrolet Suburban (truck) stop in front of the house. The defendant, a heavyset black male with long dreadlocks, exited the house and got into the truck via the driver's side passenger seat. The defendant exited the truck “after a short time” and returned to the house whilst counting paper currency in his hands.

The truck drove away and was stopped soon thereafter by another group of police officers. Three individuals were in the truck, including Keith Duda, the rear passenger. When police instructed Duda to exit the truck, he looked “nervously” in the direction of the pocket on the back of the front passenger seat in front of him. As a result, an officer searched the pocket and found a plastic bag containing a hard, white, granulated substance that he believed to be crack cocaine. Duda was arrested. After he was transported to the police station, police searched the back compartment of the cruiser that he was transported in, and discovered a clear wrapper containing an off-white, hard, rock-like substance.⁴

Meanwhile, Detective Kalish continued to surveil 19 Montrose Street. He saw the defendant leave the house again and cross the street.⁵ An unmarked cruiser then pulled onto Montrose Street, and when the defendant noticed the vehicle, he placed a plastic bag containing a white substance into his mouth and ran in the other direction. The defendant was chased by an officer who ordered him to stop; he did not. After being tackled to the ground, police found six hundred and seventy-nine dollars in the defendant's pants pocket. The defendant was arrested and charged with distribution of a class B controlled substance, subsequent offense, in violation of G. L. c. 94C, § 32A (c) and (d); possession of a class B controlled substance with intent to distribute it, subsequent offense, in violation of G. L. c. 94C, § 32A (c) and (d); and resisting arrest in violation of G. L. c. 268, § 32B.

After the defendant filed a motion to dismiss all three of the offenses, a nonevidentiary hearing was held on September 27, 2017. The Commonwealth entered a nolle prosequi on the charge of possession with intent to distribute at that time. The judge allowed the motion as to the distribution charge, finding that “there was no other evidence presented that would lead the police to believe a crime had been committed. [The detective] did not describe any movements between the defendant and any occupants of the car that could lead them to believe a drug transaction had just occurred. The defendant was not seen stretching his arm towards any of the passengers or taking anything out of his pockets, movements typically described during a drug transaction.”⁶ The Commonwealth timely appeals.

Discussion. “Probable cause requires sufficient facts to warrant a person of reasonable caution in believing that an offense has been committed.” Commonwealth v. Levesque, 436 Mass. 443, 447 (2002). We review the motion judge's decision de novo. See Commonwealth v. Humberto H., 466 Mass. 562, 566 (2013). “Although we do not require ‘that an officer must actually see an object exchanged,’ the suspect's movements, as observed by the officer, must provide factual support for the inferences that the parties exchanged an object.” Commonwealth v. Stewart, 469 Mass. 257, 263 (2014), quoting Commonwealth v. Kennedy, 426 Mass. 703, 710 (1998).

Here, there was legally insufficient evidence to support probable cause that the defendant “knowingly or intentionally” distributed cocaine. G. L. c. 94C, § 32 A (c). Fatal to the Commonwealth's case is the gap in evidence between when the defendant entered and exited the truck.⁷ We have no evidence regarding the actions of the defendant and the vehicle's other occupants within that timeframe. This gap is important, because without it, we cannot infer that the defendant distributed any drugs. The drugs found in the truck's seat pocket and in the cruiser indicate merely that there were drugs in the truck at the time the defendant was in the backseat. The drugs could have belonged to any one of the truck's four occupants.⁸ The defendant was seen counting money while walking back to the house, but “the passing of money for an undescribed item, without more, would not amount to ․ probable cause.” Commonwealth v. Clark, 65 Mass. App. Ct. 39, 41 n.3 (2005). Because we have no insight into what occurred while the defendant was in the truck, the link between the money and any supposed drug transaction is tenuous. Compare Commonwealth v. Tanner, 66 Mass. App. Ct. 432, 434 (2006).

Moreover, in other cases like this one, where the evidence of a drug transaction has been entirely circumstantial, there has been some indicia that an exchange occurred. See Commonwealth v. Alvarado, 93 Mass. App. Ct. 469, 471-472 (2018) (defendant enters car with out-of-state plates, near highway exit in location known to be location for drug sales and driver is found holding two bags of drugs in hand moments after defendant left vehicle); Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 176-177 (2009) (buyer, who had been pacing and looking up and down street prior to defendant's arrival, was then witnessed in defendant's vehicle leaning and turning toward him to have brief conversation moments before buyer was found with crack cocaine); Tanner, 66 Mass. App. Ct. at 433 (defendant was observed on street corner with hand out, palm up, as if displaying something to another man); Commonwealth v. Soto, 45 Mass. App. Ct. 109, 110 (1998) (defendant reached into parked car with arm and left within fifteen seconds). We also note that at trial the Commonwealth had the opportunity to present expert testimony on street-level drug deals, which this court has valued in similar cases, but declined to do so in this case. Compare Alvarado, 93 Mass. App. Ct. at 470 (officer testified about “the most common scenario” of street-level drug transactions).  ⁹ On the whole, the record is inadequate to substantiate the Commonwealth's burden to prove that the defendant was distributing or had recently distributed a class B substance. Therefore, the order allowing the defendant's motion to dismiss the charge of distributing a class B substance, subsequent offense, pursuant to G. L. c. 94C, § 32 A (c) & (d), is affirmed.

So ordered.

FOOTNOTES

2.   A single justice of the Supreme Judicial Court granted the Commonwealth's application for leave to pursue an interlocutory appeal of that ruling, and directed the appeal to this court.

3.   The evidence consisted of testimony by Detective Edward Kalish of the Springfield Police Department, who read from a police report authored by Officer David Robillard. The defendant's certified docket sheets were also entered as an exhibit.

4.   We note that the packaging differed from that of the substance found in the seat pocket of the truck.

5.   The record does not specify how much time elapsed between Detective Kalish's sightings of the defendant.

6.   The motion judge did not dismiss the resisting arrest charge, indicating: “Whether [c]ount 3 of this indictment, alleging resisting arrest will survive a [r]ule 25 motion for a required finding of not guilty will be left to the trial judge.”

7.   Indeed, the determination of probable cause in cases similar to this one has been characterized as “whether the ‘silent movie’ observed by an experienced narcotics investigator reveals a sequence of activity consistent with a drug sale.” Commonwealth v. Freeman, 87 Mass. App. Ct. 448, 452 (2015). Here, the investigator missed the climax of the film.

8.   Indeed, given the evidence that Duda apparently shed a bag of drugs in the police cruiser, and also seemingly knew about the existence of another bag of drugs in the seat pocket directly in front of him, it would be fair to deduce that the drugs were his.

9.   We acknowledge that Alvarado had not been published at the time of the nonevidentiary hearing in this case.