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Commonwealth v. Cabrera-Colon

Superior Court of Massachusetts, Worcester

March 5, 2019


          File Date: March 6, 2019


          WILLIAM F. SULLIVAN, Justice of the Superior Court

          In the 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 .


          The Grand Jury heard the following facts.

          A 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.

          The package was delivered to the business address. One of the defendant’s 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.

          This business address had been under surveillance by the police for some time. No hand-to-hand drug transactions were observed.

          The 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 defendant’s phone that was tracking the package.


         Generally, "a court will not review the competency or sufficiency of the evidence before a grand jury." Commonwealth v. O’Dell, 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 O’Dell, 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 O’Dell, 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).

          An indictment for the crime at issue in this case, trafficking in cocaine, requires evidence of knowing possession. See G.L.c. 94C, § 32E(b). "Possession may be actual or constructive." Commonwealth v. Hernandez, 439 Mass. 688, 691 (2003). "Possession implies ‘control and power, ’ ... exclusive or joint ..., or, in the case of ‘constructive possession, ’ 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 ‘alone 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.’" 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).

         "In 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 Court’s rationale in those cases is instructive in the present case.

          In 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 defendant’s 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 ...

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