Massachusetts Criminal Drug Offense Cocaine Warrant Lawyers Attorneys
COMMONWEALTH vs
COMMONWEALTH vs. MARIO M. PEREZ.
APPEALS COURT OF MASSACHUSETTS
November 6, 2009, Argued
March 5, 2010, Decided
On February 23, 2001, Brockton and State police executed a search warrant for the first-floor apartment of a two-family dwelling that had been under surveillance for a few weeks. In anticipation of executing the warrant, several police officers parked across the street from the house; they saw the defendant and a woman park in front of the house and then walk in the front entrance.
About ten minutes later, the defendant came through a door on the driveway side of the house, went down the stairs, moved to one side, and bent over. A fence precluded the police from further view of the defendant. Shortly thereafter, the defendant saw the police and fled into the house, throwing something. The order to execute the warrant was given, and the police entered the house. They found the defendant in a bedroom
stuffing objects in his mouth, attempting to swallow them. Turning their attention to the outside area where the defendant had been seen, police discovered a Marlboro cigarette box about a dozen feet from the house which appeared to be the object that had been thrown. It contained nine packets of what appeared to be cocaine. Noticing freshly disturbed earth and a dirt-covered spoon in a snow-covered area next to the house, the officers began digging in the soft earth, uncovering foil-covered plastic bags thought to be cocaine.
Issue:
Whether the motion judge erroneously concluded that the police properly seized the packages of suspected cocaine they found after digging in the area of freshly disturbed earth near the side entrance to the house because that search exceeded the scope of the search warrant?
Whether the defendant's Sixth Amendment rights were violated by the introduction of
drug analysis certificates without the testimony of the analysts, or an opportunity to cross-examine them?
Observation and Holding:
There was ample evidence of constructive possession through the defendant's knowledge of the drugs' presence and his ability and intention to exercise control of the drugs. The defendant's connection with the house had been observed through surveillance, and on the day of the search, he was seen entering the house, then emerging from the side door, and upon seeing the police, he threw a cigarette box containing nine bags of suspected cocaine, and fled into the house. A large number of packets of suspected cocaine later were found buried outside only a few feet from the steps to the side door. When police encountered the defendant in the house, he was observed stuffing packets of suspected cocaine in his mouth, attempting to swallow them. The large quantity of bags of suspected cocaine, packaged in sizes commonly sold on the street, together with items known to be "traditional accoutrements of the illegal drug trade," were sufficient evidence of intent to distribute.
The Commonwealth bears the burden of proving beyond a reasonable doubt every element of the charged crime of distribution of cocaine, particularly whether the substances were cocaine and their weight. No independent evidence that the substance was cocaine or as to the weight of the
substance was offered. The jury was instructed that the certificates were prima facie evidence, but was not instructed that the certificates did not have to be accepted. In the circumstances of this case, the evidence independent of the certificates was inadequate to avoid a conclusion that there was a substantial risk of a miscarriage of justice.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content.
Massachusetts Criminal Drug Offense Cocaine Warrant Lawyers Attorneys
By: Atchuthan Sriskandarajah
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