Heard: September 14, 2017.
Indictments found and returned in the Superior Court
Department on June 19, 2012. A pretrial motion to suppress
evidence was heard by Janet L. Sanders, J.; the cases were
tried before her; and a motion for a new trial was considered
P. Bennion for the defendant.
A. Jordan, Assistant District Attorney (Patrick R. Mulligan,
Assistant District Attorney, also present) for the
Present: Wolohojian, Agnes, & Wendlandt, JJ.
an appeal by the defendant, Leonides Bones, from his
conviction, after a trial by jury, of possession of a class A
controlled substance with intent to distribute, see G. L. c.
94C, § 34, and, following a subsequent jury-waived trial
conducted in accordance with G. L. c. 278, § 11A, of
being a second or subsequent offender. The defendant
argues that his motion to suppress was improperly denied
because the police were not justified in stopping him on a
public sidewalk for drinking an alcoholic beverage as that
conduct is not a criminal violation under State or local law.
The defendant further argues that even if the motion to
suppress was properly denied, there was insufficient evidence
presented at trial to permit the jury to infer that he
intended to distribute the heroin found on his person.
Finally, the defendant also appeals the order denying his
motion for a new trial arguing that his motion was improperly
denied. For the reasons set forth below, we affirm.
relevant facts are set forth in connection with each of the
defendant's several arguments.
Motion to suppress.
defendant does not take issue with the facts found by the
motion judge, which are supported by the evidence.
April 4, 2012, Sergeant Brian Dunn, then a patrolman with the
Chelsea police department, was in uniform and operating a
marked cruiser when he responded to a call from a party
reporting possible drug activity. The caller reported that
the offender was a black male wearing a white T-shirt,
shorts, and a hat. On Division Street, in the vicinity of
Bellingham Square, Sergeant Dunn observed a black male
matching the caller's description. From prior encounters,
Sergeant Dunn recognized the man as the defendant. Sergeant
Dunn observed the defendant "drinking out of a nip type
bottle of alcohol" while he was walking down the
sidewalk. Sergeant Dunn stopped his cruiser and got out to
speak with the defendant. After seeing Sergeant Dunn
approach, the defendant said, "I'm sorry, I
didn't see you. I'll dump it out," and began
dumping contents of the bottle of alcohol onto the sidewalk.
Sergeant Dunn did not order the defendant to stop drinking
the alcohol or make any other show of authority. Sergeant
Dunn testified without objection that "drinking alcohol
in public is an arrestable offense in the [c]ity of
Chelsea." He then detained the defendant to see whether
he had any active warrants. After determining that the
defendant did have an active warrant for his arrest, Sergeant
Dunn and other officers who had arrived on scene arrested the
defendant on the warrant and transported him to Chelsea
police station, the officers conducted an inventory of the
defendant's personal property. The defendant had $209 on
his person. The currency was separated into bundles of small
denominations "like a stack of [fifteen dollars], a
stack of [twenty dollars], a stack of [fifteen dollars], like
that in each pocket." Sergeant Dunn testified that he
had seen United States currency bundled like that in the past
"and it's usually that way when it's involved in
drug activity." In accordance with departmental policy,
the officers removed the defendant's shoes and took his
belt before he was placed in a cell. The officers noticed a
bulge protruding from the defendant's sock; when asked
what it was, the defendant removed his sock and threw it to
the floor. In his sock, the police found a large plastic bag
filled with fifteen individually wrapped smaller bags of
defendant's argument on appeal is that Sergeant Dunn was
not justified in detaining him to check for warrants because
drinking in public is not a crime under either the General
Laws of the Commonwealth or the ordinances of the city of
Chelsea. The defendant relies for support on a document that
appears in an addendum to his brief on appeal, which he
describes as the pertinent city of Chelsea ordinance. The
same material appears in the Commonwealth's brief on
appeal. A copy of the city of Chelsea ordinance was not
offered in evidence during the hearing on the motion to
defendant's argument fails for several reasons. First and
foremost, the defendant overlooks the testimony by Sergeant
Dunn, credited by the judge, that drinking an alcoholic
beverage on the street or a sidewalk in the city of Chelsea
is a criminal offense. In Massachusetts, the contents of a
municipal bylaw or ordinance may be proved by oral testimony.
See Commonwealth v. Rushin, 56
Mass.App.Ct. 515, 518 & n.6 (2002) (officer's
testimony that defendant's drinking can of beer while
sitting in car violated city ordinance was sufficient to
prove contents of municipal law). Contrast
Commonwealth v. Perretti, 20
Mass.App.Ct. 36, 40 (1985) (criminal conviction for violating
municipal ordinance proscribing "peeping and
spying" was invalid because there was no evidence of
contents of ordinance either in oral or documentary form).
Here, Sergeant Dunn testified without objection that in the
city of Chelsea, drinking alcohol in public is an arrestable
offense. See G. L. c. 272, § 59, as appearing in St.
1981, c. 629 (providing that person who, in public, willfully
violates ordinance "the substance of which is the
drinking or possession of alcoholic beverage," is
subject to arrest). See also Commonwealth
v. Jones, 83 Mass.App.Ct. 296, 296 n.1
(21013). The detention of the defendant for purposes of
conducting a check for active warrants therefore was valid,
because Sergeant Dunn had probable cause to arrest the
defendant for violating the ordinance prior to his detention.
See Commonwealth v. Charros, 443
Mass. 752, 765 (2005). Accordingly, Sergeant Dunn's
subsequent arrest of the defendant based on an outstanding
warrant was valid. For these reasons, the defendant's
motion to suppress properly was denied.
what has been said is sufficient to dispose of the
defendant's argument that he was unlawfully detained
before the police discovered there was an outstanding warrant
for his arrest, we add this additional observation about
municipal ordinances and bylaws. Courts are required to take
judicial notice of the General Laws of the Commonwealth,
statutes, and other public acts of the Legislature, the
common law, rules of court, the Code of Massachusetts
Regulations, and Federal statutes. Furthermore, courts will
take judicial notice of the contents of Federal regulations,
the laws of foreign jurisdictions, legislative history, and
municipal charters and charter amendments when this material
is called to their attention. See Mass. G. Evid. §
202(a)(1) & (2) (2018). However, the general rule here in
Massachusetts is that in the absence of statutory