COMMONWEALTH v. KOLENDA (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial, the defendant was convicted of possession with intent to distribute fentanyl, “crack” cocaine, mushrooms, powder cocaine, and lysergic acid diethylamide (LSD). On appeal, he claims the motion judge erred in denying his motion to suppress, the trial judge erred by allowing the complaint to be amended, and that his convictions of possession with intent to distribute crack and powder cocaine violate the double jeopardy clause. We affirm in part and vacate in part.

1. Motion to suppress. The defendant claims that the motion judge erred by denying the motion to suppress where the police officer lacked reasonable suspicion to believe the defendant was engaged in criminal activity, and the circumstances after the initial seizure never ripened into probable cause. We disagree with both claims.

a. Reasonable suspicion. An investigatory stop, or “seizure” in the constitutional sense, is justified under art. 14 of the Massachusetts Declaration of Rights if the police have reasonable suspicion at the time of the stop. See Commonwealth v. Pinto, 476 Mass. 361, 363 (2017). “Reasonable suspicion exists when an officer, based on specific, articulable facts and reasonable inferences therefrom, in light of the officer's experience, has reasonable grounds to suspect a person is committing, has committed, or is about to commit a crime” (quotation and citation omitted). Id. at 363-364. See Commonwealth v. Franklin, 456 Mass. 818, 823 (2010). Importantly, “reasonable suspicion is a lower standard than probable cause,” Commonwealth v. Smigliano, 427 Mass. 490, 492 (1998), and it is measured objectively. See Commonwealth v. Meneus, 476 Mass. 231, 235 (2017).

When taken together and viewed through the experienced eyes of the observing officer, the articulated facts establish that there was a basis for reasonable suspicion that the defendant had been engaged in a drug transaction in the parking lot behind the restaurant. In a part of the Dorchester section of Boston known for the “high occurrence” of illegal drug sales, an experienced police officer saw a car, in which the defendant was a passenger, park in an area concealed from public view. Within a few minutes, another car, an “Audi,” pulled up next to it. The defendant got out of his car, had a brief conversation with the passenger in the Audi, returned to the passenger side of his car, and then returned to the Audi where he conducted a transaction at the passenger side window that was not visible to the police officer.

The experienced officer, in an area known for illegal drug sales, reasonably believed that he had witnessed a drug transaction, which justified the decision to stop the car carrying the defendant to make a threshold inquiry. See Commonwealth v. Santiago, 470 Mass. 574, 579 (2015). See also Commonwealth v. Kennedy, 426 Mass. 703, 710-711 (1998) (probable cause existed even though observing officer did not see items actually exchanged). Contrary to the defendant's claim, it matters not that there could exist innocent explanations for the defendant's activities. See Commonwealth v. Isaiah I., 450 Mass. 818, 823 (2008); Commonwealth v. Deramo, 436 Mass. 40, 44 (2002).

b. Probable cause. The defendant also claims that, even if the police had a reasonable suspicion to justify the stop of the car, what occurred after the stop did not give rise to probable cause to search the car, which contained the illegal narcotics. We disagree.

“Probable cause exists where ‘the facts and circumstances within ․ [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” Commonwealth v. Hason, 387 Mass. 169, 174 (1982), quoting Brinegar v. United States, 338 U.S. 160, 175-176 (1949). Indeed, in cases involving the seizure of contraband, “probable cause is a flexible, common-sense standard.” Texas v. Brown, 460 U.S. 730, 742 (1983), abrogated on other grounds by Horton v. California, 496 U.S. 128 (1990). In the end, “[i]n dealing with “probable cause ․ we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar, supra at 175.

Once the car was stopped, the defendant engaged in several actions that elevated the police's reasonable suspicion to probable cause. The police saw the defendant making furtive movements and he appeared to be “stuffing” something down beside his seat in the car as the officers approached. The defendant then told officers that he was coming from Somerville and, when told that he had been observed coming from a different direction, stated that he was actually going to Somerville.

At the beginning of the stop, the defendant was momentarily calm, but upon being asked to step out of the vehicle, he paused. He needed to be told three times to step out of the vehicle. He then appeared nervous and was physically shaking. Based on all that had transpired before the stop, the defendant's behavior at the stop, and his attempt to mislead the police, the police had probable cause to arrest the defendant and search the car. See Commonwealth v. Alvarado, 420 Mass. 542, 549 (1995). The motion judge did not err in denying the defendant's motion to suppress.

2. Amendments to the complaint. The defendant also claims the judge erred by allowing, over the defendant's objections, the Commonwealth to amend the complaint before trial. The judge amended count 1 from possession of a class A drug (heroin) with intent to distribute to possession of a class B drug (fentanyl) with intent to distribute. The judge also amended count 3 from distribution of a class C substance to possession of a class C substance with intent to distribute.

The Commonwealth properly concedes that these amendments were error. The amendments were of substance and not merely form, making them inappropriate. Commonwealth v. Bynoe, 49 Mass. App. Ct. 687, 691 (2000). See Mass. R. Crim. P. 4 (d), 378 Mass. 849 (1979). Accordingly, we must vacate these convictions.

3. Double jeopardy claim. Finally, the defendant claims that his convictions on count 2 (possession with intent to distribute a class B drug [crack cocaine] ) and count 4 (possession with intent to distribute a class B drug [cocaine] ) are duplicative, and therefore violate the double jeopardy clauses of the United States Constitution and the Massachusetts Declaration of Rights because both convictions involve forms of cocaine found during the search of the defendant's vehicle. We disagree.

“Generally, courts which have considered the issue [of multiple prosecutions under controlled substance statutes] have determined that separate convictions for possession of the same controlled substance [with an intent to distribute] will not violate the Double Jeopardy Clause if the possessions are sufficiently differentiated by time, location, or intended purpose” (citation omitted). Commonwealth v. Rabb, 431 Mass. 123, 130 (2000). This formulation is meant to be “disjunctive, with no one determinative factor.” Id.

While the powder and crack cocaine found here in the car were not differentiated by time or location, they were differentiated by intended purpose, and ultimately would have been consumed in a different manner. “[T]o obtain two convictions of a defendant under [the applicable statute], the Commonwealth is required to prove only that the amount of the specific controlled substance supporting each conviction constitutes a ‘separate item[ ].’ ” Id., citing Commonwealth v. Diaz, 383 Mass. 73, 81 (1984). There is no question that the crack and powder cocaine were separate items. Indeed, the crack cocaine and powder cocaine found here were not an “identical mass” of cocaine. Contrast Commonwealth v. Kuklis, 361 Mass. 302, 305 (1972) (“Where there is identity between two charges, the imposition of two sentences results in two punishments for the same offence”). The convictions are not duplicative, and the double jeopardy clause was not violated.

4. Conclusion. The judgments on counts 1 and 3 of the criminal complaint are vacated, and those verdicts are set aside. The remaining judgments are affirmed.

So ordered.