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24-P-1225 Appeals Court
COMMONWEALTH vs. JESUS R. CARABALLO-NIEVES.
No. 24-P-1225.
Suffolk. October 15, 2025. – February 13, 2026.
Present: Henry, Hand, & Brennan, JJ.
Controlled Substances. Narcotic Drugs. Evidence, Failure to prosecute. Practice, Criminal, Continuance, Motion to suppress, Dismissal.
Complaint received and sworn to in the Central Division of the Boston Municipal Court Department on November 3, 2022.
A motion to dismiss was heard by Mark H. Summerville, J.
Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth. Morjieta K. Derisier for the defendant.
BRENNAN, J. In this appeal, the Commonwealth challenges a
Boston Municipal Court judgment dismissing for lack of
prosecution a criminal complaint charging the defendant, Jesus
R. Caraballo-Nieves, with possession of heroin with intent to
distribute and possession of omeprazole. At issue is whether the 2
judge abused his discretion by (1) refusing to permit the
Commonwealth to proceed on a motion to suppress evidence without
presenting the drugs, some of which contained fentanyl, as
evidence, and (2) denying the Commonwealth's motion for a brief
continuance after the judge ordered the prosecutor to bring the
drugs into the court room. Because we conclude that the judge
overstepped, we vacate the judgment dismissing the charges and
remand the case for further proceedings.
Background. The defendant's motion to suppress was
scheduled for a hearing on September 13, 2024. At the first
call of the case, the judge asked the prosecutor whether the
drugs at issue were present in the court room. When the
prosecutor responded that he would check, the judge said, sua
sponte, that the prosecution would "have to have the . . . drugs
here." The matter was held for a second call.
At the second call, the prosecutor raised concerns about
the conflict between the judge's order to bring the drugs to the
court house and the Trial Court policy banning the presence of
fentanyl in court houses (policy). " Given the danger that even
a small amount of [fentanyl] poses," the policy -- issued by the
Executive Office of the Trial Court on January 3, 2018 -- bans
substances containing any amount of fentanyl from entry into a
court house in all but a limited number of circumstances. The
policy explicitly includes substances that otherwise would be 3
entered in evidence at a motion or trial. It requires a judge
who determines that fentanyl must be brought into a court house
as evidence to do so in advance of the hearing or trial and to
notify court security. The policy also states that fentanyl may
be brought into a court house and presented as evidence only if
packaged and handled by a specially trained person, in a manner
approved by the United States Drug Enforcement Administration
(DEA).1 When the prosecutor pointed to the policy's requirement
1 The Trial Court safety advisory and protocols for fentanyl and carfentanil is available online at https://www.mass.gov/advisory/trial-court-safety-advisory-and- protocols-for-fentanyl-and-carfentanil [https://perma.cc/86SL- F2K2]. In relevant part, the policy states:
"Fentanyl and carfentanil are extremely potent and toxic synthetic opioids that are being used as adulterants in heroin and other controlled substances or passed off as pure heroin. . . . Given the danger that even a small amount of these substances poses, . . . [s]ubstances containing any amount of fentanyl or carfentanil are banned from entry into the courthouse, except as provided [herein]. This includes substances that have been collected as evidence and which would otherwise be entered in evidence at a hearing or trial. Parties who seek to present the appearance of a substance containing fentanyl or carfentanil to a fact finder must do so through means other than introduction of the actual substance, such as a stipulation, photographs, video, or witness testimony. . . . Deviation from the general ban . . . may occur when a judge determines that admission of the substance as evidence is necessary for the Commonwealth to prove its case or to protect a defendant's constitutional right to a fair trial. If a judge determines it necessary that a party be permitted to bring such substances into a courtroom, the substances shall be packaged and handled in the manner approved by the Drug Enforcement Administration (DEA); shall be handled while in the courthouse -- including presentation of the substances in a courtroom -- 4
that fentanyl be brought into court only if packaged and handled
in a manner approved by the DEA, the judge said, "If you don't
bring it in . . . I am dismissing the case." The prosecutor
responded that the Commonwealth had not been put on notice of
the need to bring the drugs into the court house for the hearing
and, based on conversations with the police officers who had
come to testify for the hearing, he was unable at that time to
comply with the policy's fentanyl packaging and handling
requirements. The judge replied, incorrectly, that there was an
order in the case from a prior date for the Commonwealth to have
the physical evidence at the suppression hearing. The record is
clear, and the parties agree, that no order to bring the drugs
to court was issued until the September 13 first call of the
case.
only by individuals who have been trained to handle fentanyl and carfentanil . . . . Determination that fentanyl, carfentanil, or its derivatives will be permitted to enter a courthouse shall be made in advance of the hearing or trial at which the substance will be presented. Court security shall be notified in advance of the date on which the substance will be entering the courthouse, the name of the case for which it is being brought into the courthouse, how the substance will be transported and who will be transporting it [into] the courtroom in which the substance will be presented, and when the substance[] has been taken out of the building." 5
After some discussion with the prosecutor about the
packaging of the drugs,2 the judge stated, "I want [the fentanyl]
in. I need to see it." The prosecutor stated that the
Commonwealth was ready to proceed without the drugs, reiterated
that he could not bring the drugs that day, and requested, in
the alternative, a further date to permit the Commonwealth to
take photographs of the fentanyl or to arrange for a person
qualified to handle the fentanyl to be present in court during
the suppression hearing. The judge declared that the prosecutor
"should have known that this Court requires the evidence to be
brought into court on motions to suppress evidence." He stated
that the prosecutor's "refusing to bring the alleged drugs in"
was "unacceptable" because the prosecutor had "given [the judge]
no valid reason not to bring these alleged drugs in for purposes
of a critical stage of the prosecution." The judge further
excoriated the prosecutor for "delay[ing] this all morning . . .
[after] I gave your office time to have [the officers] go get
these alleged drugs to bring it in for this critical stage of
the prosecution."3
2The judge suggested that the fentanyl could "stay in the box" so it "won't be touched by anyone in this courtroom."
3The case was first called at 9:08 A.M. and the final call of the case took place at 11:26 A.M. 6
The judge then asked to hear from the defendant's counsel,
who moved to dismiss the case. The prosecutor maintained that
the Commonwealth was ready to go forward on the motion and
proffered a drug certificate showing the substance was fentanyl.
The judge rejected the proffer, and after again noting that the
motion hearing was a "critical stage of the prosecution,"
reiterated that he would not hear a motion to suppress without
the drugs being brought into court. He also denied the
Commonwealth's renewed requests to take photographs of the
fentanyl or for "a brief further date" to secure the presence of
a person approved to handle fentanyl, as required by the policy.
After further discussion with the prosecutor, the judge stated
that the Commonwealth was required to have the drugs present at
the hearing because it "is necessary for me to listen to the
testimony and compare the items to the testimony that I've
heard. Also, it goes to credibility. It goes to many things
that a fact-finder has to . . . determine. I don't do motions
to suppress without the evidence." When the judge once again
denied the Commonwealth's request for a "short date" to bring in
a witness who could handle the fentanyl in the manner required
by the policy, the prosecutor stated, "[t]he Commonwealth is
answering ready for a motion to suppress without the evidence."
The judge admonished the prosecutor, "No, you're not. You're
not ready without the alleged drugs. . . . You should never, 7
ever, ever go forward with a motion to suppress evidence without
the evidence. That's the way it's done." He then dismissed the
case "for want of prosecution."
Discussion. Trial judges have inherent authority to
dismiss criminal charges "[i]f the Commonwealth fails to
prosecute [its] case." Commonwealth v. Rosa, 491 Mass. 369, 373
(2023), citing Commonwealth v. Graham, 480 Mass. 516, 536
(2018). When a judge dismisses a case for failure to prosecute,
the dismissal ordinarily is without prejudice, thus allowing the
prosecutor to refile the charges and to proceed with the
prosecution. See Graham, supra at 537. Because a dismissal
without prejudice does not preclude further prosecution of a
defendant, it is "upheld in the absence of an abuse of
discretion." Id. at 536, quoting Commonwealth v. Connelly, 418
Mass. 37, 38 (1994). "[A] judge's discretionary decision
constitutes an abuse of discretion where we conclude the judge
made a clear error of judgment in weighing the factors relevant
to the decision, such that the decision falls outside the range
of reasonable alternatives" (quotation and citation omitted).
Graham, supra.
Here, the judge dismissed the case for lack of prosecution
because the Commonwealth "refused a court order to bring the
alleged drugs in" for the motion to suppress hearing. This
finding did not accurately reflect what occurred, and the judge 8
abused his discretion both by deeming the Commonwealth's conduct
a failure to prosecute and by refusing the prosecutor's request
for a continuance of the hearing.
1. Commonwealth's "failure to prosecute." The
Commonwealth argues that it was error for the judge to base
dismissal on a "lack of prosecution" where the prosecutor was
willing and able to move the case forward with reasonable
dispatch. We agree.
The judge's finding that the Commonwealth's failure to
bring in physical evidence constituted lack of prosecution
rested on misapprehensions of the Commonwealth's burden and of
the judge's role. At a suppression hearing, the Commonwealth
bears the burden of showing "that the actions of the police
officers were within constitutional limits."4 Commonwealth v.
Meneus, 476 Mass. 231, 234 (2017). The defendant cites no
authority, nor are we aware of any, to support the judge's
position that the law requires the physical items the defendant
seeks to suppress be present in court for a suppression hearing.5
4 The motion to suppress in this case arose from police observation of an alleged hand-to-hand drug deal in an alley off Boylston Street in Boston, in which the defendant purportedly exchanged "an unknown item" for money; and their subsequent warrantless seizure of drugs from the defendant's person and bag.
5 The judge also misapprehended the significance of a suppression hearing as a "critical stage" in the proceedings. Classification of a portion of a criminal proceeding as 9
Indeed, where it is well established, in the trial of a case
involving a drug offense, that proof a substance is a particular
drug "may be made by circumstantial evidence," Commonwealth v.
MacDonald, 459 Mass. 148, 153 (2011), it follows that no more
stringent requirements would apply to a motion to suppress
evidence of alleged drugs. See Commonwealth v. Hallinan, 491
Mass. 730, 749 (2023) (convictions of possession or distribution
of drugs may be proved by drug certification or by testimony and
observation of experienced user of drug); MacDonald, supra
(circumstantial evidence such as testimony of experienced police
officer sufficient to prove substance was particular drug). Put
simply, although the law sets out the requisite quantum of
proof, it does not mandate the type of evidence the Commonwealth
must produce to meet its burden in a motion to suppress.
Nor was it within the judge's discretion to impose his own
practice, procedure, or personal preference on the type of
evidence presented by the Commonwealth. Although viewing the
physical evidence may have informed the judge's assessment of
"critical" denotes an event at which the defendant has a right to be present and assisted by effective counsel; it has nothing to do with the type of evidence that must be produced by the Commonwealth. See Vazquez Diaz v. Commonwealth, 487 Mass. 336, 340-341 (2021) (suppression hearing constitutes critical stage at which defendant has right to be present); Commonwealth v. Neary-French, 475 Mass. 167, 170 (2016) (Sixth Amendment to United States Constitution and art. 12 of Massachusetts Declaration of Rights provide criminal defendants right to counsel at all critical stages of prosecution). 10
witness credibility or weighing of the evidence, it was
incumbent on the judge to take the admissible evidence presented
during the hearing and render a decision based on that evidence.
See Commonwealth v. Tremblay, 480 Mass. 645, 658 (2018). A
party's failure to present evidence that a judge deems relevant
or significant certainly may have an impact on a judge's
decision; however, partiality for a particular type of evidence
does not entitle a judge to refuse to hear a motion or to
predetermine its outcome if the evidence is not presented in the
"preferred" form. Here, where the Commonwealth stated that it
was ready to move forward on the motion to suppress, the judge
abused his discretion by refusing to proceed with the hearing
without the physical evidence seized from the defendant. It was
error for the judge, before hearing any evidence, to tell the
prosecutor that failure to bring the fentanyl to court would
result in dismissal. See Commonwealth v. Gordon, 410 Mass. 498,
501 (1991), S.C., 422 Mass. 816 (1996) (judge's preemption of
Commonwealth's presentation of its case usurped decision-making
authority constitutionally allocated to executive branch). The
judge thus abused his discretion by dismissing the complaint for
lack of prosecution based on the prosecutor's decision to
proceed without bringing the fentanyl into court. See
Commonwealth v. Kardas, 93 Mass. App. Ct. 620, 624-625 (2018) 11
(judge's dismissal of criminal complaint without valid legal
basis exceeded constitutional authority).
2. Commonwealth's request for a continuance. The
prosecutor, who had no notice before the hearing date of the
motion to suppress that the drugs would be required for the
hearing, asked for a "short" continuance to enable him to bring
the drugs into the court house in the manner required by the
policy.6 The judge denied that request. Typically, "[t]he
decision whether to grant a motion to continue lies within the
sound discretion of the trial judge." Commonwealth v. Super,
431 Mass. 492, 496 (2000), quoting Commonwealth v. Painten, 429
Mass. 536, 543 (1999). However, the judge's discretionary
authority is "bounded by important considerations."
Commonwealth v. Clegg, 61 Mass. App. Ct. 197, 200 (2004). Among
those considerations, the "trial judge should balance the
movant's need for additional time against the possible
inconvenience, increased costs, and prejudice which may be
incurred by the opposing party if the motion is granted."
6 Although the policy is directed to "Trial Court staff and judicial officers," we discern no reasoned basis why it would not apply to the prosecutor in the circumstances here. To the extent that it did, the judge's order presented the prosecutor with the untenable choice of bringing fentanyl into the court house under circumstances that clearly violated the policy and posed significant health risks to the parties, court personnel, and the public; or declining to do so and thereby having the case dismissed. 12
Super, supra at 496-497, quoting Commonwealth v. Gilchrest, 364
Mass. 272, 276 (1973). The judge may also consider "whether
there has been a failure . . . to use due diligence to obtain
available witnesses." Mass. R. Crim. P. 10 (a) (2) (C), 378
Mass. 861 (1979).
Here, the docket shows diligent efforts by the Commonwealth
to prosecute the case.7 See Commonwealth v. Clark, 454 Mass.
1001, 1002 (2009) (judge incorrectly attributed age of case to
Commonwealth and did not account for prosecutor's efforts to
find and secure principal witness). The Commonwealth also
secured the necessary witnesses for the suppression hearing and
had them in court ready to testify. See Commonwealth v.
Burston, 77 Mass. App. Ct. 411, 417 (2010) (denying continuance
based on unavailable witnesses was improper where Commonwealth
exercised due diligence to obtain witnesses). Given that the
prosecutor did not have advance notice that the fentanyl would
be required for the hearing, the request for additional time to
arrange for a qualified person to bring the drugs to court was
reasonable. The defendant did not assert at the time of the
hearing that a brief delay would cause him increased cost,
inconvenience, or prejudice; nor does he make that argument on
7 Any delays in the case appear to have been attributable to the defendant's failures to appear for court dates, change in attorneys, and late filing of his motion to suppress. 13
appeal. Nevertheless, the judge denied the Commonwealth's
request and dismissed the case without balancing any of the
applicable factors, for the sole reason that the Commonwealth
"refused a court order to bring the alleged drugs in." We
conclude that this denial of the prosecutor's motion to continue
fell outside the reasonable range of alternatives and thus was
an abuse of the judge's discretion. See Graham, 480 Mass. at
539 (abuse of discretion for judge to dismiss indictments for
failure to prosecute without fully considering relevant
factors); Commonwealth v. Pimentel, 99 Mass. App. Ct. 597, 599-
601 (2021) (when considering motion for continuance, judge
should balance movant's need for additional time against
possible inconvenience, increased costs, and prejudice to
opposing party). Cf. Commonwealth v. J.F., 491 Mass. 824, 844
(2023) (failure of judge to state relevant factors and weight
given to them was abuse of discretion).
Conclusion. The judgment dismissing the charges is
vacated, and the case is remanded to the Boston Municipal Court
for further proceedings consistent with this opinion.
So ordered.