COMMONWEALTH v. POOLE

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Docket Number

No. 90-P-9.

Attorney(S)

Mary F. Costello for the defendant. James F. Lang, Assistant District Attorney, for the Commonwealth.

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Smart Summary

Factual and Procedural Background

The defendant, Robert L. Poole, was informed that police had a search warrant and accompanied officers to a storage shed on his property where 135 pounds of marihuana were found, some compressed in bricks and some in small bags. He was convicted of trafficking in marihuana under G.L.c. 94C, § 32E(a)(2) and possession of marihuana under G.L.c. 94C, § 34. The defendant moved to suppress evidence on the grounds that the affidavit supporting the search warrant contained material falsehoods and challenged the sufficiency of the evidence for trafficking, asserting he was merely a bailee. The possession indictment was placed on file with the defendant's consent, as possession was a lesser included offense of trafficking.

Legal Issues Presented

Whether the affidavit supporting the search warrant contained material falsehoods sufficient to warrant suppression of evidence under Franks v. Delaware.
Whether the evidence was sufficient to sustain a conviction for trafficking given the defendant's claim that he was only a bailee of the marihuana.

Arguments of the Parties

Defendant's Arguments

The affidavit in support of the search warrant contained material falsehoods, particularly regarding the source and nature of the information about the marihuana's presence.
The evidence was insufficient to prove trafficking because the defendant was merely holding the marihuana as a bailee for a third party and lacked intent to distribute.

Commonwealth's Arguments

The affidavit was truthful and supported by credible statements, justifying the issuance of the search warrant.
Possession of a large quantity of marihuana, distinctively packaged, raises an inference of intent to distribute, supporting the trafficking conviction.
The defendant’s bailee argument does not negate trafficking because transfer back to the owner constitutes "delivery" under the statute.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Franks v. Delaware, 438 U.S. 154 (1978)	Standard for suppression of evidence when affidavit contains knowingly false statements or reckless disregard for truth.	The court held that the defendant failed to prove any falsehood in the affidavit made knowingly or recklessly, so suppression was unwarranted.
Commonwealth v. Shipps, 399 Mass. 820, 826-827 (1987)	Credibility determinations are for the fact finder.	The judge found the informant’s denial not credible, supporting the affidavit’s truthfulness.
Commonwealth v. Brzezinski, 405 Mass. 401, 407 (1989)	Reaffirmation of the Franks standard regarding falsehoods in affidavits.	The court applied this standard to uphold the affidavit’s validity.
Commonwealth v. Sendele, 18 Mass. App. Ct. 755, 758 (1984)	Possession of a large quantity of narcotics raises an inference of intent to distribute.	The court relied on this inference to reject the defendant’s claim of insufficient evidence for trafficking.
Commonwealth v. Bongarzone, 390 Mass. 326, 349-350 (1983)	Supporting precedent on intent to distribute from possession of narcotics.	Further supported the inference of trafficking from possession of large quantities.
Commonwealth v. Chappee, 397 Mass. 508, 523 (1986)	Possession is a lesser included offense of trafficking.	Supported dismissal of the possession indictment as a lesser included offense.

Court's Reasoning and Analysis

The court conducted a Franks hearing to determine whether the affidavit supporting the search warrant contained material falsehoods. Detective Diauto testified that an informant, Susan Hinckley, reported personal observation of marihuana on the defendant’s property. Hinckley denied making such statements but admitted knowledge of the marihuana from the defendant himself. The judge found Hinckley’s denial not credible and concluded the affidavit contained no falsehoods made knowingly or recklessly. Thus, suppression was unwarranted.

Regarding trafficking, the court noted that possession of a large quantity of marihuana, especially when packaged distinctively, raises an inference of intent to distribute. The defendant’s claim that he was only a bailee for a third party did not negate this inference. Even if accepted, the bailee’s possession with intent to transfer back to the owner constituted "delivery" under the statute, fulfilling the elements of trafficking. Therefore, the evidence was sufficient to support the trafficking conviction.

The possession indictment was dismissed as it was a lesser included offense of trafficking, and the defendant consented to this disposition.

Holding and Implications

The court affirmed the conviction for trafficking under G.L.c. 94C, § 32E(a)(2) and dismissed the possession indictment under G.L.c. 94C, § 34. The decision directly affects the parties by upholding the trafficking conviction and removing the possession charge. No new legal precedent was established beyond the application of existing standards for affidavit credibility and statutory definitions of distribution and delivery.

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COMMONWEALTH vs. ROBERT L. POOLE

Search and Seizure, Affidavit. Controlled Substances. Words, "Distribute," "Deliver."

Informed that the police had a search warrant, the defendant accompanied two police officers to a storage shed in his back yard where bales and packages of marihuana — 135 pounds in all — were stored. Some of the marihuana was compressed in bricks and some was in small bags. Convicted of trafficking (G.L.c. 94C, § 32E[ a][2]) and possession of marihuana (G.L.c. 94C, § 34), the defendant argues that the motion judge should have allowed his motion to suppress because the affidavit in support of the warrant contained material falsehoods. He also claims there was insufficient evidence to find him guilty of trafficking because he was only a bailee. We affirm the conviction of trafficking and dismiss the conviction of possession.

The possession indictment was placed on file with the defendant's consent. Since, in this case, possession is a lesser included offense of trafficking, the indictment should be dismissed. Commonwealth v. Chappee, 397 Mass. 508, 523 (1986).

1. The judge conducted a Franks ( Franks v. Delaware, 438 U.S. 154) hearing. Police detective Diauto testified that a Middleboro police officer came to the Randolph police station and told him that her sister, Susan Hinckley, who lived with the defendant, had told her that the defendant was storing fifty pounds of marihuana in a trailer in the back of his house. Diauto telephoned Hinckley, who informed him that the defendant "had fifty pounds of marihuana in a white truck body sitting on a concrete block in the back yard." Diauto testified that she said that "[s]he had seen it. It was there."

Hinckley denied that she had ever informed Detective Diauto or anyone else that she personally had observed the marihuana, but acknowledged that she had told her sister that the defendant had fifty pounds of marihuana in a shed in his yard and that the defendant was "holding" the marihuana for someone. She knew about the marihuana because the defendant had told her about it, and the defendant had periodically gone to the shed and brought some of the marihuana back to the house so she could smoke it.

The judge found that the affidavit contained no falsehood and that Hinckley's statement that she had not personally observed the marihuana was not credible. "Credibility is for the fact finder." Commonwealth v. Shipps, 399 Mass. 820, 826-827 (1987). We see no error in the judge's conclusion that the Franks principles are here inapplicable. The defendant did not establish the falsity of Diauto's statement or that it was made "knowingly and intentionally, or with reckless disregard for the truth." Commonwealth v. Brzezinski, 405 Mass. 401, 407 (1989), quoting from Franks v. Delaware, 438 U.S. 154, 155 (1978).

2. While the defendant concedes that he possessed the marihuana, he claims there was insufficient evidence of an intent to distribute and that his motion for a required finding of not guilty should have been granted. Our cases indicate otherwise. "Possession of a large quantity of an illicit narcotic raises an inference of intent to distribute," particularly where, as here, the drugs were distinctively packaged. Commonwealth v. Sendele, 18 Mass. App. Ct. 755, 758 (1984). See also Commonwealth v. Bongarzone, 390 Mass. 326, 349-350 (1983).

The defendant's argument that his assertion that he was merely holding the marihuana as a "bailee" for a third party precludes his conviction of trafficking is without merit. Not only could the jury have disbelieved the defendant's statements to the police that he was merely storing the marihuana for a third party, but even if the defendant's bailee theory were credited, the defendant's possession of the marihuana with the intention to transfer it back to its owner would constitute distribution within the meaning of G.L.c. 94C, § 1, as inserted by St. 1971, c. 1071, § 1. That statute defines "distribute" (as used in G.L.c. 94C) to mean "to deliver other than by administering or dispensing a controlled substance," and defines "deliver" to mean "to transfer, whether by actual or constructive transfer, a controlled substance from one person to another, whether or not there is an agency relationship" (emphasis supplied).

Accordingly, the judgment on indictment number 86199 (G.L.c. 94C, § 32E[ a][(2]) is affirmed and indictment number 86201 (G.L.c. 94C, § 34) is to be taken from the file and dismissed.

So ordered.