COMMONWEALTH v. GONZALEZ LOPEZ (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a bench trial, the defendant was convicted of possession of a class B substance with intent to distribute. On appeal, he raises two issues.

1. Motion to suppress. First, the defendant argues that a motion to suppress evidence found in the car the defendant was driving at the time of the police stop that led to his arrest was improperly denied.

At the outset, the defendant asserts that several of the motion judge's factual findings lack support in the motion record and therefore are clearly erroneous. We will assume without deciding that the defendant is correct, and therefore recite only the facts found by the judge upon which the parties agree. We leave one fact, whether the presence of multiple air fresheners in the car might have been indicative of the transportation of illegal drugs in the car, for further discussion below.

Background. On June 4, 2018, Trooper David Strong observed a car driven by the defendant in the southbound travel lane of Interstate 495 in Andover. He observed it veer into the right-hand travel lane twice without signaling.

Trooper Strong followed the car and conducted a query of its registration on the computer, which revealed that the registered owner was not licensed. Trooper Strong therefore stopped the car, a stop that is not challenged by the defendant.

The trooper approached the driver's side door. The defendant was driving the car and there was a female passenger in the car as well. The defendant appeared nervous, his hands were shaking, and he was breathing heavily. The defendant provided his driver's license and the passenger provided the registration of the car.

Trooper Strong observed six or seven air fresheners in the car, which he described as “unusual.” He testified that he could not recall whether he was able to smell the air fresheners. Trooper Strong realized that the defendant was not the registered owner of the car so he asked the defendant about the owner. The defendant indicated that he did not know who the owner was or where he lived. The occupants indicated that they were traveling from Lawrence to Lowell.² Returning to his cruiser, Trooper Strong made a query on the defendant's driver's license. It revealed an active arrest warrant for distribution of cocaine.

The trooper returned to the car and ordered the defendant to get out and placed him under arrest on the active warrant. The trooper handcuffed the defendant, pat frisked him, and placed him in the back of his cruiser. The defendant does not challenge any of these actions.

During the patfrisk, the trooper located $1,000 dollars in twenty-dollar bills in the defendant's “pockets.” The trooper testified that “[p]eople that are involved in the sale of narcotics often receive sums of $20 in small denominations.” The trooper learned the female passenger was not licensed and decided to tow the car. Before it was towed, however, the trooper searched the car. For reasons that are not apparent on the record, the Commonwealth did not and does not defend the search as a valid inventory search. See Commonwealth v. Alvarado, 420 Mass. 542, 553 (1995) (“Inventory searches are intended to be noninvestigatory and are for the purpose of protecting property which may be within the vehicle”).

The trooper opened a plastic side panel underneath the steering wheel that housed the car's fuses. Behind the panel, the trooper discovered multiple bags containing what he believed to be cocaine. The bags were not visible from inside the car before the panel was pried open.

Discussion. The defendant argues that this evidence is inadequate to provide probable cause to believe that illegal drugs were being transported in the car. See Commonwealth v. Cruz, 459 Mass. 459, 473 (2011) (“a warrantless search of an automobile is permitted when police have probable cause to believe that a motor vehicle on a public way contains contraband or evidence of a crime” [quotation and citation omitted]). The defendant's argument proceeds, first, from the premise that the judge erroneously found that the trooper “knew that drug dealers frequently used air fresheners in their cars to mask the odor of the narcotics being carried.” We address that contention first.

In many cases, where the Commonwealth has utilized the presence of multiple air fresheners in a car as one suspicious fact supporting the finding of probable cause, it has elicited testimony from a police officer with adequate training and experience that, in light of that training and experience, he or she knew that such air fresheners were sometimes utilized by those transporting illegal drugs in order to mask their odor. See, e.g., Commonwealth v. Locke, 89 Mass. App. Ct. 497, 499 (2016) (“Trooper Driscoll knew from his training and experience that air fresheners are often used to mask the odor of narcotics in a vehicle”); Commonwealth v. Lawson, 79 Mass. App. Ct. 322, 325 (2011), overruled on other grounds by Commonwealth v. Campbell, 475 Mass. 611 (2016) (“Describing his experience with past arrests of individuals who use or distribute narcotics, Officer Morgan stated they usually use air fresheners to try to disguise the smell of controlled substances”). In this case, the Commonwealth failed to elicit any such testimony. If such testimony is available, it is by far the best practice to introduce it in evidence; that is a clear way to provide an evidentiary link between such air freshener evidence and the probability that a vehicle is transporting or has transported unlawful drugs.

In this case, although the absence of any such testimony complicates our analysis, in the end, we think that, despite that absence, the evidence in the record before the motion judge supports a finding that the air fresheners were suspicious for this reason. Indeed, it is clear that the entire premise of the discussion of the air fresheners, in both direct and cross-examination, was that they are evidence of transportation of illegal drugs in the car. To be sure, the trooper testified only that he found them “unusual.” However, in cross-examination, defense counsel asked whether there were “any things that would indicate or be indicative of drug dealing in the vehicle when you're looking inside other than the air freshener,” and the trooper responded “[n]o.” Given all the evidence, we conclude that that question and answer suffice to put before the judge sufficient evidence to support a finding that the air fresheners were indeed a possible signifier of the transportation of drugs in the car.

That leaves us then with the following relevant facts: the defendant, who had an open arrest warrant for possession of cocaine with intent to distribute, was driving a car of which he claimed not to know the owner. When approached by police, he was nervous, and a patfrisk revealed that he had $1,000 in twenty-dollar bills, the total amount retrieved from more than one pocket. There were approximately six or seven air fresheners in the car, which provided some evidence of transportation of illegal drugs in the car, although the trooper testified that he could not recall if they were emanating an odor.

Were we writing on a blank slate, we might not conclude that this was adequate to support probable cause to believe there were unlawfully possessed drugs in the car. However, we are not. This case is controlled in all material respects by the decision of this court in Lawson, 79 Mass. App. Ct. at 327-328. Although that was a case in which the police utilized a drug-sniffing dog before entering the vehicle, we stated that where the defendant “demonstrated nervous behavior, possessed a large bundle of cash, had multiple air fresheners in the vehicle, and had a record of prior arrests for drug distribution, there was probable cause to search the vehicle, with or without a drug-sniffing dog.” Id.

We note that here, the trooper's testimony about what money is found on drug dealers does not really help the Commonwealth. He seemed to suggest that a drug dealer would be expected to have discrete twenty-dollar bundles of cash made up of small denomination bills, which the defendant did not possess. Here the defendant had fifty twenty-dollar bills, albeit contained in more than one pocket. Twenty-dollar bills are not rare, and indeed, one withdrawing $1,000 from an automatic teller machine might well find himself in possession of only a stack of fifty twenty-dollar bills. Nonetheless, at the time of the search in Lawson, the police had seen only “a large amount of cash (approximately one inch thick) ‘wrapped up with credit cards and I.D.'s sitting on the center console.’ ” 79 Mass. App. Ct. at 324. Since the precise denominations appear not to have mattered there, we do not think the difference in the appearance of the money serves to distinguish this case. Consequently, under Lawson, we are constrained to affirm the denial of the motion to suppress.

2. Sufficiency. The defendant's second argument is that the evidence was insufficient to demonstrate that he possessed the drugs found in the car, and therefore, to support his conviction.

To prove constructive possession of the drugs, which was the theory of the case, the Commonwealth was required to prove that the defendant had knowledge of the existence of the item and both the ability and the intent to exercise dominion and control over it. Commonwealth v. Santana, 95 Mass. App. Ct. 265, 268 (2019). Mere presence in the same location of the contraband is not sufficient to establish either knowledge or ability or intent to control. Id. However, proximity to contraband coupled with other incriminating evidence, often referred to as “plus factors,” may be sufficient to show constructive possession. Commonwealth v. Ortega, 441 Mass. 170, 174 (2004).

Although the inference is not inescapable that the drugs were constructively possessed by the defendant, viewing the evidence in the light most favorable to the Commonwealth, there was sufficient evidence to support a finding by the trial judge on this point beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). The defendant was in close proximity to the contraband: drugs were found hidden in a compartment in the car under the driver's side of the dashboard, near where the defendant was sitting. There were also incriminating “plus factors” sufficient to show constructive possession: the trooper testified that the defendant appeared nervous, had a significant amount of cash on his person, and was driving a car containing an unusually large number of air fresheners. See Commonwealth v. Sinforoso, 434 Mass. 320, 328-329 (2001) (defendant's nervous appearance and possession of pagers, which is item associated with sale of drugs, supported inference of constructive possession); Pena v. Commonwealth, 426 Mass. 1015, 1018 (1998) (large amount of cash on defendant's person was incriminating evidence of constructive possession of drugs). Moreover, the trooper testified that the defendant attempted to disassociate himself from the car, saying that he did not know who the owner was, and that he had been driving the car for about a week. See Sinforoso, 434 Mass. at 329 (defendant “told the police that the car belonged to a ‘friend,’ but he did not know the name of the ‘friend’ who had lent him the car. The jury could certainly infer that no one would lend a car containing in excess of $100,000 in contraband and cash to someone with whom the acquaintance was so slight as not even to know the lender's name”). On all the facts and circumstances, the trial judge was entitled to conclude that the defendant had constructive possession of the drugs found near him in the car that he had been driving for a week.

Consequently, the judgment is affirmed.

So ordered.

Affirmed.

FOOTNOTES

2.   Although Trooper Strong testified that he believed the city of Lawrence to be a “high drug area,” we are concerned about the implication that there is something suspicious about every person driving on Route 495 between Lawrence and Lowell. Consequently, we do not rely on that evidence in our analysis.