COMMONWEALTH v. AMARO (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a hearing, a judge denied the defendant Antonio Amaro's motion to suppress drug evidence seized from four individuals shortly after the defendant had sold the drugs to them; none of the challenged evidence was seized from the defendant. The defendant now appeals from his convictions, arguing that the seizures were improper; he also contends that the motion judge erred in concluding that he did not have standing to challenge the stops of the buyers and the seizure of evidence from them. We affirm.

Background. Four indictments were returned against the defendant for distribution of a class B substance, as a second offender, in violation of G. L. c. 94C, § 32A (d). Indictments 1 and 2 alleged sales on April 5, 2017; indictments 3 and 4 alleged sales on April 13, 2017.² Police officers conducting surveillance of the defendant observed him engage four times in what they believed were drug transactions. Shortly after each exchange, cocaine was seized from each of the four buyers; the police then sought a criminal complaint against the defendant.

The defendant filed a motion to suppress all of the evidence. He argued that the police improperly had seized the cocaine from the buyers, and that his charges were “possessory offenses,” entitling him to automatic standing to challenge the seizures from the alleged buyers.

Following an evidentiary hearing, the motion judge denied the motion, concluding that the crime of distribution of a class B substance, which does not have “possession” as an essential element, does not confer automatic standing on an alleged drug seller. For support, she relied upon Commonwealth v. Negron, 85 Mass. App. Ct. 904, 905 (2014), which is precisely on point:

“ ‘Distribute’ is defined statutorily as ‘to deliver other than by administering or dispensing a controlled substance.’ Commonwealth v. Jackson, 464 Mass. 758, 763 (2013). Likewise, to ‘deliver’ means ‘to transfer, whether by actual or constructive transfer, a controlled substance from one person to another, whether or not there is an agency relationship.’ Ibid. G. L. c. 94C, § 1. By contrast, ‘[p]ossession implies ‘control and power,’ ․ exclusive or joint ․, or, in the case of ‘constructive possession,’ knowledge coupled with the ability and intention to exercise dominion and control.’ Commonwealth v. Frazier, 410 Mass. 235, 243 (1991), quoting from Commonwealth v. Pratt, 407 Mass. 647, 651 (1990).”

Although the defendant had not argued the issue, the motion judge also noted in a footnote that this is not a case where the doctrine of “target standing” could apply because the facts do not show any “distinctly egregious conduct” by the police. For support, she cited Commonwealth v. Santiago, 470 Mass. 574, 577-578 (2015), where the court explicitly rejected the argument that the concept of “target standing” should be expanded.

Discussion. Waiver. As an initial matter, the Commonwealth argues that the defendant waived his claim by failing to raise the issue of target standing in his motion to suppress. We agree that the defendant did not argue the point; however, a motion judge may exercise her authority and address the claim, thereby granting relief from the waiver. See Commonwealth v. Vargas, 475 Mass. 338, 343 n.7 (2016), citing Mass. R. Crim. P. 13 (a) (2), as appearing in 442 Mass. 1516 (2004) (“the claim ․ was addressed by the motion judge, and a suppression challenge on that ground is therefore not waived”).

Motion to suppress. “In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law” (quotation omitted). Commonwealth v. Scott, 440 Mass. 642, 646 (2004). We then “make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found.” Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).

The defendant first points to what he contends was a clear error in the motion judge's findings of fact regarding the first transaction. The judge found that, on April 5, 2017, Officer William Catellier witnessed the first transaction (count 1) between the defendant and one Hayden Chase. In fact, the officer testified at the hearing that he witnessed a brief meeting between Chase and the defendant, but he did not see whether anything passed between them; he agreed on cross-examination that he “didn't really see any transaction.”³ The defendant argues that the judge's error implicates Chase's constitutional rights and therefore implies egregious police conduct; this, in the defendant's view, makes his an appropriate case to confer target standing. We disagree.

Target standing, while never explicitly adopted in Massachusetts, also has not been ruled out. See Commonwealth v. Vacher, 469 Mass. 425, 435 (2014), quoting Commonwealth v. Manning, 406 Mass. 425, 429 (1990) (target standing may be reserved for intentionally unconstitutional searches of “small fish” for purpose of prosecuting “big fish”). More recently, in Santiago, the court reversed a motion judge's decision to confer target standing, concluding instead that the police conduct at issue was not “distinctly egregious,” despite the fact that the rights of a third party were violated. In so doing, the court also reaffirmed the view stated in Commonwealth v. Scardamaglia, 410 Mass. 375, 380 (1991), which preserved the possibility of target standing “in a case where the police engage in ‘distinctly egregious’ conduct that constitutes a significant violation of a third party's art. 14 rights in an effort to obtain evidence against a defendant.” Santiago, 470 Mass. at 578, quoting Scardamaglia, supra.

Here, the defendant fails to establish that police violated Chase's constitutional rights. While Catellier's specific observations may have fallen short of probable cause to seize the evidence from Chase at the time, Catellier then notified other officers of his observations; the other officers eventually seized a “rock” of cocaine and a bag of heroin from Chase. See Santiago, 470 Mass. at 579; Commonwealth v. Stewart, 469 Mass. 257, 259-264 (2014). Nothing in the record before the motion judge indicates that those officers exceeded the scope of their authority during their interaction with Chase -- or discusses the circumstance of that seizure at all.

Second, even if we found, and we do not, that the police unconstitutionally seized evidence from Chase, the defendant nonetheless would have to prove that the police conduct that violated Chase's rights was egregious. Here, the defendant offers nothing more than speculation that Chase's arrest and seizure violated his rights. For that reason, we cannot conclude that the police conduct there constituted an egregious violation of Chase's rights. Compare Santiago, 470 Mass. at 580 (despite fact that third party's rights violated by police officer, court rejected conclusion that “limited search of [third party's] shirt pocket constituted an ‘egregious’ violation of his rights”).

For the foregoing reasons, we are satisfied that the defendant's motion to suppress was properly denied.

Judgments affirmed.

FOOTNOTES

2.   A jury convicted the defendant on indictments 2, 3, and 4.

3.   We note that the jury acquitted the defendant on this indictment.