Commonwealth v. Damelio

979 N.E.2d 792, 83 Mass. App. Ct. 32, 2012 Mass. App. LEXIS 291
CourtMassachusetts Appeals Court
DecidedDecember 14, 2012
DocketNo. 11-P-39
StatusPublished
Cited by2 cases

This text of 979 N.E.2d 792 (Commonwealth v. Damelio) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Damelio, 979 N.E.2d 792, 83 Mass. App. Ct. 32, 2012 Mass. App. LEXIS 291 (Mass. Ct. App. 2012).

Opinion

Graham, J.

After a bench trial in the South Boston Division of the Boston Municipal Court Department, the defendant, Peter Damelio, was acquitted of possession with intent to distribute a class D substance and a school zone violation, but convicted of the lesser included offense of possession of more than one ounce of marijuana, a class D substance. He filed a timely appeal of the conviction arguing that (1) the motion judge erred in denying his motion to suppress evidence and statements because his detention and subsequent statements were unlawful and in violation of his Federal and State constitutional rights, and (2) the testimony of the Commonwealth’s expert, who was not a chemist, was inadmissible on the issue of the identity and the weight of the substance in question and, even if admissible, was insufficient to prove the identity and the weight of the substance. We affirm.

Motion to suppress. The defendant moved to suppress physical evidence and statements made by him. After an evidentiary hearing, the motion was denied. We summarize the motion judge’s findings of fact, with minor supplementation from uncontested testimony, noting that all of her findings are supported by the evidence she found credible and, therefore, we accept them. See Commonwealth v. Sparks, 433 Mass. 654, 656 (2001), and cases cited. We accord deference to the motion judge’s findings of fact, “but independently review[] the correctness of the judge’s application of constitutional principles to the facts found.”2 Commonwealth v. Magee, 423 Mass. 381, 384 (1996), quoting from Commonwealth v. Mello, 420 Mass. 375, 381 n.8 (1995).

At approximately 5:45 p.m.3 on July 10, 2009, Boston police Officer Kevin Jones and his partner, Officer Robert England, both assigned to the drug control unit, were on routine patrol in [34]*34an unmarked vehicle and dressed in plain clothes, on Old Colony Avenue, an area where they had made drug arrests in the past. Their attention was drawn to the defendant, who was standing on the sidewalk. Seconds later, the defendant entered the rear passenger area of a motor vehicle that then drove into a gasoline station, made a U-tum, came back out on Old Colony Avenue, and pulled to the curb. The defendant exited the vehicle clutching a white plastic bag and then walked down C Street.

After the officers observed the defendant take what they considered “a meaningless ride” and then exit the vehicle with a plastic bag, the officers concluded that the defendant had engaged in a drug transaction. They followed the defendant as he walked down C Street, and then they exited their unmarked vehicle, approached the defendant with their badges displayed, and identified themselves as police officers.4 5The defendant dropped the plastic bag, backed up with his hands in the air, and said, “It’s only weed.” Jones picked up the white plastic bag, looked inside, and observed a clear plastic Ziploc bag containing green vegetable matter. He noted, further, “a strong smell of what [he] believed to be unburnt marijuana” coming from the bag. When Jones opened the bag, the defendant stated, “It’s a QP,” meaning one-quarter pound of marijuana. The officer arrested the defendant, placed him in handcuffs, and transported him to the station for booking.

The defendant argues that, when the officers took out their badges and approached him, they did not have specific and articulable facts sufficient to conduct a Terry stop.5 Thus, we begin our analysis by determining whether the interaction in question constitutes a stop (a seizure) for purposes of the Fourth Amendment and art. 14.

“[N]ot every encounter between a law enforcement official and a member of the public constitutes an intrusion of constitutional dimensions.” Commonwealth v. Stoute, 422 Mass. 782, 789 (1996). An investigatory stop, i.e., a brief detention and inquiry, is justified under art. 14 of the Massachusetts Declaration of Rights if the police have “ ‘reasonable suspicion’ [35]*35to conduct the stop.” Commonwealth v. Cheek, 413 Mass. 492, 494 (1992), citing Commonwealth v. Lyons, 409 Mass. 16, 18 (1990). Under this standard, the officer’s suspicion must be “based on specific, articulable facts and reasonable inferences . . . that the defendant had committed, was committing, or was about to commit a crime.” Commonwealth v. Willis, 415 Mass. 814, 817 (1993). See Terry v. Ohio, 392 U.S. 1, 21 (1968). We view the facts and circumstances in their entirety in assessing the reasonableness of the officers’ conduct. Commonwealth v. Williams, 422 Mass. 111, 116 (1996). The Commonwealth bears “the burden of demonstrating that the police officers acted lawfully in pursuing and seizing the defendant.” Id. at 115-116.

A police officer does not seize an individual on a street merely by approaching him and questioning him. Commonwealth v. Fraser, 410 Mass. 541, 543-544 (1991). “Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Commonwealth v. Sykes, 449 Mass. 308, 311 (2007), quoting from Terry v. Ohio, supra at 19 n.16. “Police have seized a person in the constitutional sense ‘only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” Commonwealth v. Barros, 435 Mass. 171, 173-174 (2001), quoting from United States v. Mendenhall, 446 U.S. 544, 554 (1980).6

As the defendant has noted, Jones testified at the motion hearing that the defendant was not free to leave once the officers identified themselves to him.7 However, whether the defendant was free to leave is based on a reasonable person standard, and not on the subjective state of mind of the officers. See Whren v. United States, 517 U.S. 806, 812-813 (1996); Commonwealth v. Smigliano, 427 Mass. 490, 493 (1998). The subjec[36]*36tive intention of the officers to detain the defendant, had he attempted to leave, is irrelevant except insofar as it may have been conveyed to the defendant.8 See Commonwealth v. Barros, supra.

Here, the officers did no more than they were authorized to do by Terry. The approach of the defendant, on a public street, by officers who wore no uniforms and therefore identified themselves by displaying their badges, and who neither displayed any weapons nor engaged in hostile or aggressive actions towards the defendant, did not impinge upon any constitutionally protected interest of the defendant. See Commonwealth v. Sanchez, 403 Mass. 640, 644-645 (1988) (defendant not seized when police officer approached him in airport, displayed his badge, and asked if defendant would speak with him); Commonwealth v. Grandison, 433 Mass. 135, 138 (2001) (defendant not seized by police who followed him into alley without blocking his path or controlling his speed of movement).

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Bluebook (online)
979 N.E.2d 792, 83 Mass. App. Ct. 32, 2012 Mass. App. LEXIS 291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-damelio-massappct-2012.