Date: March 6, 2019
DECISION AND ORDER ON DEFENDANTâS MOTION TO
WILLIAM F. SULLIVAN, Justice of the Superior Court
present case, the defendant is charged with Trafficking in
Cocaine. The defendant has filed a Motion to Dismiss alleging
that the Grand Jury did not hear sufficient evidence to
support the indictment. For the reasons stated below, the
motion is ALLOWED .
Grand Jury heard the following facts.
package was sent to a business address in Lunenburg. The
address was listed as J and E Auto Repair, 381 Massachusetts
Ave, Lunenburg. The defendant and one other employee worked
for this business. The package was flagged by postal
authorities regarding its contents. A warrant was obtained
and the package was opened. The package contained 2 kg of
cocaine. A warrant was also obtained at that point to search
the business after the package was delivered. An undercover
postal inspector posing as a letter carrier delivered the
package. There were significant surveillance techniques used
to keep an eye on the package in the premises as well as the
premises themselves. A controlled delivery of the package was
conducted on April 24, 2018. The defendant was not at the
business at the time delivery was made. There were multiple
other people present at the time of delivery, including one
of his employees.
package was delivered to the business address. One of the
defendantâs employees took control of the package and put it
in the office. The police waited for approximately 5 minutes
and then entered the business. When they entered, the package
was on the desk in the office area. It had not been opened.
The police executed the search warrant and seized the package
again. No other narcotics-related items were observed at the
business. Approximately 10 to 15 minutes later, the defendant
appeared at the address. After the defendant arrived, he was
read his Miranda rights and then brought back to the
office. The defendant said that he owned the business and
that he had one employee. The defendant consented to a search
of his home and nothing of any evidentiary value was found.
business address had been under surveillance by the police
for some time. No hand-to-hand drug transactions were
package was sent from a fictitious address in Puerto Rico.
The police did not develop any connections between the
defendant and that fictitious Puerto Rican address. The
package had been tracked through a cell phone, but the cell
phone could not be traced back to any individual. The phone
was believed to have been located in Miami, Florida. It was
determined that it was not the defendantâs phone that was
tracking the package.
"a court will not review the competency or sufficiency
of the evidence before a grand jury." Commonwealth
v. OâDell, 392 Mass. 445, 450 (1984). A court may,
however, consider whether the grand jury received sufficient
evidence to establish "probable cause to arrest,"
and whether the integrity of the proceedings was impaired.
Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982).
See OâDell, 392 Mass. at 446-47. To support an indictment,
the grand jury must receive evidence sufficient to establish
the identity of the accused and probable cause to arrest him
or her. See OâDell, 392 Mass. at 450-51; McCarthy,
385 Mass. at 163. Probable cause to arrest is defined as
"more than mere suspicion but something less than
evidence sufficient to warrant a conviction."
Commonwealth v. Roman, 414 Mass. 642, 643 (1993),
quoting Commonwealth v. Hason, 387 Mass. 169, 174
(1982). To establish probable cause, the Commonwealth must
present the grand jury with evidence on each element of the
crime charged. See Commonwealth v. Moran, 453 Mass.
880, 884 (2009).
indictment for the crime at issue in this case, trafficking
in cocaine, requires evidence of knowing possession. See
G.L.c. 94C, Â§ 32E(b). "Possession may be actual or
constructive." Commonwealth v. Hernandez, 439
Mass. 688, 691 (2003). "Possession implies âcontrol and
power, â ... exclusive or joint ..., or, in the case of
âconstructive possession, â knowledge coupled with the
ability and intention to exercise dominion and control."
Commonwealth v. Brzezinski, 405 Mass. 401, 409
(1989), quoting Commonwealth v. Rosa, 17
Mass.App.Ct. 495, 498 (1984). These elements "may be
inferred from circumstantial evidence which, in terms of
practical experience of the conduct of human beings, points
to such a finding." Commonwealth v. Brown, 34
Mass.App.Ct. 222, 225 (1993). "While presence in an area
where contraband is found âalone cannot show the requisite
knowledge, power, or intention to exercise control over the
[contraband], ... presence, supplemented by other
incriminating evidence, will serve to tip the scale in favor
of sufficiency.â" Brzezinski, 405 Mass. at
409-10, quoting Commonwealth v. Albano, 373 Mass.
132, 134 (1977). See Commonwealth v. Montalvo, 76
Mass.App.Ct. 319, 323 (2010).
the absence of other evidence, possession of an unopened
package, received by mail or common carrier and containing
drugs, does not warrant an inference beyond a reasonable
doubt that the defendant possessed the drugs knowingly."
Commonwealth v. Sheline, 391 Mass. 279, 284 (1984).
See Commonwealth v. Aguiar, 370 Mass. 490, 499
(1976). "An inference of knowledge of possession of a
harmful drug may be warranted, in all the circumstances, if a
package received by mail is held for a significant period of
time, even unopened; if the package has been opened; if it
has been put away ... or if it has not been returned with
reasonable promptness to the postal authorities as having
been misdirected." Aguiar, 370 Mass, at 500.
While Sheline and Aguiar were not cases
regarding the sufficiency of evidence presented to a grand
jury, the Supreme Judicial Courtâs rationale in those cases
is instructive in the present case.
Sheline, a controlled delivery of a package known by
the police to contain cocaine was delivered to an address in
Gloucester. The package had been sent from Florida and was
addressed to someone named "Howie Tuna." The police
delivered the package to a business address where the
defendant worked. The defendantâs name was Howie Sheline, not
Howie Tuna. The defendant told the delivery man that Howie
Tuna was "on one of the boats out back" and would
stop by the office. The defendant took the package from where
it had been placed and put it behind the counter. A few
minutes later the police entered the office with a warrant to
search for the delivered narcotics. While the package that
was delivered was not addressed to ...