Commonwealth v. Polanco
Commonwealth v. Polanco
Opinion
*765
The defendant, Jorge Polanco, appeals from his Superior Court convictions of trafficking in heroin, G. L. c. 94C, § 32E(
c
), and a school zone violation, G. L. c. 94C, § 32J. We must decide whether to consider time spent in District Court when calculating the time to be included for purposes of a speedy trial under Mass.R.Crim.P. 36(b),
1. Background . In April and May of 2013, law enforcement including the Billerica police department were conducting an investigation of a suspected heroin trafficker known as "Johnny," later identified as the defendant. As part of that investigation, Billerica police conducted controlled narcotics purchases using an informant. When the police approached the sellers in those controlled purchases, the sellers admitted to being "runners" for "Johnny," whom they identified as the source of the narcotics. One of the runners agreed to cooperate with the investigation.
Shortly thereafter, the cooperating runner received a telephone call from "Johnny," directing him to customers at a house located at 48 Rogers Street. 1 Prior to that day, that residence had not been a target of the investigation, and the police had not yet identified "Johnny" as the defendant.
The police followed the runner to the residence. A motor vehicle pulled up outside the residence, and two men exited the vehicle and spoke to a woman in the *872 house's driveway. The runner then approached the three persons and engaged in a hand-to-hand transaction with one of the men. At this point, the police converged on the driveway with other law enforcement agents. The police had not yet confirmed "Johnny's" whereabouts and were not anticipating his immediate arrest.
As the police entered the driveway area, a detective observed the defendant standing several feet inside the open garage. The *766 defendant, matching the description of "Johnny," turned and fled. The detective gave chase through the garage and into the back yard. The detective believed the defendant to be "Johnny" and feared that he was likely to escape or destroy evidence.
Once in the back yard, the detective apprehended the defendant near the rear fence, facing a shed located in the neighboring yard. The informant and the runner positively identified the defendant as "Johnny." Although no contraband was found on the defendant's person, police retrieved two bags containing 19.06 grams of heroin next to the neighbor's shed. They also found a cellular telephone and over $1,100 in cash in the defendant's possession.
On May 8, 2013, the Lowell District Court issued a complaint charging the defendant with several drug-related offenses and arraigned him that same day. After two months, a District Court judge dismissed the charges for failure to prosecute. Over one year later, on August 7, 2014, a Middlesex grand jury returned indictments arising from the same incident, charging the defendant with trafficking in heroin and a school zone violation. The defendant was arraigned in Superior Court on August 13, 2014.
On October 30, 2014, the defendant moved to dismiss the charges, alleging a violation of rule 36(b) and his constitutional right to a speedy trial, 2 and also moved to suppress evidence. Both motions were denied, and the defendant was ultimately convicted of both charges by a jury.
2.
Rule 36(b) motion to dismiss
. Under rule 36(b)(1)(C), a defendant is entitled to dismissal if he is not brought to trial "within twelve months after the return day in the court in which the case is awaiting trial." See
Commonwealth
v.
Denehy
,
If we were applying the constitutional right to a speedy trial, we would consider the time the charges were pending in District Court. See
Commonwealth
v.
Butler
,
"In interpreting a rule of criminal procedure, we turn first to the rule's plain language."
Denehy
,
As a practical matter, including prior District Court proceedings in rule 36(b) calculations would impose a great burden on the trial courts. Before setting a tracking order, a Superior Court judge would need to calculate the time expired on prior District Court proceedings on every charge, itself a time-consuming and complex exercise, and adjust scheduling to accommodate the timing of District Court proceedings. Rule 36 "is primarily designed to assist in the administration of trial court dockets,"
Lauria
,
Of course, in an appropriate case, a defendant has protection against unreasonable
*874
delays in Superior Court indictment by means other than rule 36(b). A defendant may move to dismiss, as was done here and in
Butler
, under the constitutional right to a speedy trial. A defendant may move to dismiss under Mass.R.Crim.P. 36(c),
Excluding the District Court time comports with Supreme Judicial Court calculations in rule 36 cases as well, even post-
Denehy
. In
Taylor
,
3.
Motion to suppress
. On appeal, we review a ruling on a motion to suppress by accepting "the judge's subsidiary findings of fact absent clear error but conduct an independent review of [the] ultimate findings and conclusions of law."
Commonwealth
v.
Ramos
,
The Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights require that all searches and seizures must be reasonable, and that all warrantless searches and seizures of a home are presumptively unreasonable.
Ramos
,
Exigent circumstances to justify a warrantless entry may exist if the entry is reasonably believed necessary to prevent the loss or destruction of evidence,
Ramos
,
The defendant contends, however, that the police deliberately created the exigent circumstances themselves and therefore cannot avail themselves of this exception to the warrant requirement. See
Molina
,
In
Molina
, the police received the name and address of a suspect, reported and discussed the allegations back at the station, then proceeded to the suspect's residence to effectuate the arrest without a warrant. 439 Mass. at 207, 210,
Similarly, in
Commonwealth
v.
McAfee
,
The present case shares none of these characteristics. Here, with no reason to believe that the defendant would be just inside the garage, the police were moving to confront the three persons standing outside in the driveway. 8 No exigency requiring entrance into the garage occurred until the moment the police observed the defendant-fitting the description of "Johnny." The defendant fled immediately despite orders to stop. At this point, the police had probable cause to believe that the fleeing suspect possessed drugs and would likely try to destroy or conceal them.
Moreover, the situation developed rapidly; the police had no time to obtain a warrant before the defendant could have escaped and removed contraband. See
Ramos
,
4.
Sufficiency of the evidence
. When reviewing the denial of a motion for a required finding of not guilty, "we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."
Commonwealth
v.
Oberle
,
*772
Commonwealth
v.
Waller
,
Here, the Commonwealth was required to prove the defendant actually or constructively possessed trafficking-weight heroin. See
Commonwealth
v.
Mojica
,
Here, the heroin was found near where the defendant was arrested and there was abundant evidence that the defendant was involved in drug-dealing activities. Specifically, the evidence supported the conclusion that the defendant was a large-scale heroin distributor, with "runners" and former customers providing information against him. The incident occurred at a "stash house," where the defendant was reported to have had heroin that same day, and where drug sales had been observed. He was also found with over $1,100 in cash.
Moreover, the defendant's immediate flight from the police, in the direction of where the heroin was later found, is further incriminating evidence. See
Commonwealth
v.
Whitlock
,
*773
Direct proof that the defendant threw the heroin bags during his escape is unnecessary. Given the evidence, the inference that the defendant knew of and previously possessed the drugs was reasonable. See
Gonzalez
,
Judgments affirmed .
A detective testified that 48 Rogers Street is 281 feet from S.G. Hajjar Elementary School.
On appeal, the defendant raises no challenge to the judge's conclusion that his constitutional right to a speedy trial was not violated.
Under the constitutional right to a speedy trial, time during which charges are dismissed does not count, regardless of whether a judge or a prosecutor dismissed the charges. See
United States
v.
MacDonald
,
Bind-over hearings are a "relic of the past,"
Commonwealth
v.
Perkins
,
Rule 36(c) provides that "a defendant shall upon motion be entitled to a dismissal where the judge after an examination and consideration of all attendant circumstances determines that: (1) the conduct of the prosecuting attorney in bringing the defendant to trial has been unreasonably lacking in diligence and (2) this conduct on the part of the prosecuting attorney has resulted in prejudice to the defendant."
The defendant concedes, and based on our independent review we agree, that the police had probable cause at the moment of entry. The Commonwealth does not contest the defendant's sworn statement that he was a frequent overnight guest at 48 Rogers Street and, thus, had standing to contest the warrantless entry. See
Commonwealth
v.
Morrison
,
After
Molina
was decided, the United States Supreme Court decided that the Fourth Amendment invalidates a warrantless entry with probable cause under exigent circumstances only where the police create the exigency by "engaging or threatening to engage in conduct that violates the Fourth Amendment."
Kentucky
v.
King
,
Although there was some evidence that the runner informed the police of "Johnny's" presence earlier that day, the runner had not actually confirmed "Johnny's" whereabouts at the time of the entry, and police officers specifically testified that they were unaware of "Johnny's" presence at that time. Accordingly, the motion judge was entitled to find that it was not reasonably foreseeable that "Johnny" would be at the residence prior to the arrest.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.