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Commonwealth v. Polanco

Appeals Court of Massachusetts, Middlesex

February 20, 2018

COMMONWEALTH
v.
JORGE POLANCO.

          Heard: October 11, 2017

         Indictments found and returned in the Superior Court Department on August 7, 2014.

         A motion to dismiss was heard by Kathe M. Tuttman, J.; a pretrial motion to suppress evidence was heard by her; and the cases were tried before her.

          Murat Erkan for the defendant.

          Sandra Weisberger, Assistant District Attorney, for the Commonwealth.

          Present: Milkey, Massing, & Ditkoff, JJ.

          DITKOFF, J.

         The defendant, Jorge Polanco, appeals from his Superior Court convictions of trafficking in heroin, G. L. c. 94C, § 32E(c0, 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), 378 Mass. 909 (1979), in Superior Court. Consistent with the plain language of the rule, we conclude that the time the charges were pending in District Court should not be included in the calculation. Accordingly, the motion judge properly denied the defendant's motion to dismiss. Rejecting the defendant's challenges to the denial of his motion to suppress and the sufficiency of the evidence, we affirm.

         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 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 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. ...


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