Commonwealth v. Eddie Robles.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-83

COMMONWEALTH

vs.

EDDIE ROBLES.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in September 2014, Eddie Robles, the

defendant, was found guilty of trafficking in heroin in

violation of G. L. c. 94C, § 32E, and of committing that crime

within one hundred feet of a park in violation of G. L. c. 94C,

§ 32J; possession of cocaine with the intent to distribute in

violation of G. L. c. 94C, § 32A; and possession of trazodone in

violation of G. L. c. 94C, § 34. 1 On appeal, the defendant

argues that the court erred in denying a motion to suppress

evidence, that his arrest violated the Fourth Amendment to the

1 With respect to the indictment charging possession of cocaine
with the intent to distribute, the trial judge allowed the
defendant's motion for a required finding of not guilty on the
count charging distribution of cocaine within one hundred feet
of a park in violation of G. L. c. 94C, § 32J. The trial judge
also dismissed the subsequent offense portion of the indictment,
because the Commonwealth was not ready to prove that count.
United States Constitution and art. 14 of the Massachusetts

Declaration of Rights, and that there was insufficient evidence

to prove an intent to distribute, and a violation of G. L.

c. 94C, § 32J. We affirm.

Discussion. 1. Motion to suppress. a. Background. "We

summarize the facts as found by the motion judge . . . ,

supplemented by evidence in the record that is uncontroverted

and that was implicitly credited by the judge" (quotation and

citation omitted). Commonwealth v. Jones, 100 Mass. App. Ct.

600, 601-602 (2022). On April 10, 2012, supported by an

affidavit alleging three controlled buys of either heroin or

cocaine on April 6, 9, and 10, a search warrant was issued to

search the defendant's residence in an apartment complex in

Brockton, as well as "the person or in the possession of: [the

defendant]." The next day, while preparing to execute the

warrant, police observed a white Toyota Corolla enter the

parking lot of the defendant's apartment complex. The

defendant, who had gotten out of the driver's side of the car,

and two other people left the car and entered the defendant's

apartment building. Later that evening, officers conducting

surveillance observed the defendant drive the Corolla away with

two passengers.

Detective Brian Donahue of the Brockton police department,

who knew of the defendant's suspended license and had been shown

2
a picture of the defendant, followed the Corolla onto Oak

Street. The defendant pulled his car over to the side of the

road about 100 to 150 feet away from the apartment building; the

police had not signaled for him to stop his vehicle. Donahue

pulled up behind the defendant, activated his emergency lights,

and approached the vehicle. The driver identified himself as

the defendant and stated that he had stopped because an alarm

was going off in his house. Donahue arrested the defendant for

operating with a suspended license and, along with other members

of the Brockton police department, searched him, finding heroin,

cocaine, and cash. After the arrest, the police executed the

search warrant for the defendant's home, where additional

narcotics were found.

Prior to trial, the defendant moved to suppress all items

seized during the search of the defendant's person. 2 After an

evidentiary hearing, the motion judge denied the defendant's

motion to suppress on three separate grounds: (1) the search

warrant authorized a search of the defendant as well as his

apartment; (2) the officers had probable cause to make a

2 The defendant argues on appeal that his motion to suppress
evidence seized from the Corolla should have been granted.
Because no evidence was seized from the car itself, we treat the
argument as addressing seizure of evidence from the defendant's
person when he got out of the Corolla. The defendant also moved
to suppress evidence found during the search of his apartment.
He did not press this motion on appeal.

3
warrantless felony arrest of the defendant based on three

controlled buys and search him incident to arrest; and (3) the

officers properly arrested the defendant for operating a motor

vehicle with a suspended license.

b. Probable cause to arrest. The defendant conceded, as

he should have, at oral argument that the affidavit established

probable cause to arrest the defendant. The affidavit in

support of the application for the search warrant indicated that

two reliable confidential informants purchased cocaine or heroin

from the defendant in controlled buys on three occasions between

one to five days prior to the search. See Commonwealth v.

Charros, 443 Mass. 752, 764-765, cert. denied, 546 U.S. 870

(2005) (buy made by reliable confidential informant within past

fifteen days provided basis to stop defendant's motor vehicle

and arrest him, independent of recently issued search warrant).

See also Commonwealth v. Velez, 77 Mass. App. Ct. 270, 274

(2010), abrogated on other grounds as recognized by Commonwealth

v. Lobo, 82 Mass. App. Ct. 803, 807 (2012) (where at time car

was stopped, troopers were aware of three controlled buys within

month of stop with last buy within seventy-two hours, troopers

4
had probable cause to believe defendant had committed felony,

and initial stop and subsequent warrantless search were valid). 3

The fact that the stated basis for the arrest was for

driving with a suspended license, and not for the underlying

drug offenses, is not dispositive because an officer's

subjective intent does not bind the Commonwealth. See

Commonwealth v. Lawton, 348 Mass. 129, 132 (1964) (search

incident to arrest was valid where supported by probable cause

that defendant violated breaking and entering law even if stated

reason for defendant's arrest was not valid); Commonwealth v.

Peters, 48 Mass. App. Ct. 15, 21 (1999) (at time of defendant's

arrest for suspended license, police had probable cause to

arrest defendant for possession of drugs). 4

2. Sufficiency of the evidence. a. Background. We

summarize the facts the jury could have found, reserving certain

details for our discussion of the issues. In April 2012, the

defendant, who was driving a vehicle which he had pulled over to

the side of the road of his own volition a short distance from

his apartment building and approximately twenty-five feet from a

3 The Charros and Velez cases also established that a search
warrant, even one that authorizes a search of a person, does not
authorize police to detain that person after the person has
traveled from the home. Charros, 443 Mass. at 764; Velez, 77
Mass. App. Ct. at 274.
4 Because there was probable cause to arrest the defendant

independent of the license suspension, we need not reach the
other grounds for suppression raised by the defendant.

5
park, was arrested for driving with a suspended license.

Members of the Brockton police department searched the defendant

incident to the arrest and found a bag of heroin (later weighed

to be 19.62 grams) in his front left interior jacket pocket,

$200 in cash in the defendant's front left pants pocket, $500 in

cash in the defendant's wallet in his rear pocket, a second

small bag of heroin in his front right coat pocket, a cigarette

pack in his front pants pocket in which there were two bags of

cocaine, a black digital scale in the defendant's pants pocket,

and another 1.1 grams of cocaine in defendant's pocket.

The defendant was then taken to his residence where the

police executed a search warrant. When asked if there were

drugs in the apartment, the defendant directed the police to a

dresser in the defendant's bedroom, where the police found

cocaine. In the kitchen, the police found two scales, sandwich

bags, a hand sifter, latex gloves, a plate containing an off-

white, off-brown residue, and two bags full of cutoff baggies.

In a bedroom closet, the police found a duffel bag with twenty-

nine trazodone pills, and three alprazolam pills. In the dining

room, the police found a white bowl inside of which was white

powder residue that field tested positive for cocaine. In

total, the defendant possessed 24.88 grams of heroin, 12.77

grams of cocaine, twenty-nine tablets of trazodone, and three

tablets of alprazolam.

6
b. Standard of review. The trial judge denied the

defendant's motions for required findings of not guilty. 5 "We

review the denial to determine whether the evidence offered by

the Commonwealth was sufficient to permit the jury to infer that

the Commonwealth has met its burden of proving the essential

elements of the crimes charged beyond a reasonable doubt."

Commonwealth v. Rodriguez, 456 Mass. 578, 582 (2010), citing

Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). "[The]

question is whether after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt." Latimore, supra at 677, quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979). "Our analysis asks not

whether the evidence requires a finding of guilty, but whether

it permits such a finding beyond a reasonable doubt."

5 The defendant moved for a required finding of not guilty at the
close of the Commonwealth's case and at the close of all of the
evidence.

"Because the defendant moved for required findings at the
close of the Commonwealth's case and again at the close of
all the evidence, [w]e consider the state of the evidence
at the close of the Commonwealth's case to determine
whether the defendant's motion should have been granted at
that time. We also consider the state of the evidence at
the close of all the evidence, to determine whether the
Commonwealth's position as to proof deteriorated after it
closed its case" (quotation omitted).

Commonwealth v. West, 487 Mass. 794, 799-800 (2021), quoting
Commonwealth v. O'Laughlin, 446 Mass. 188, 198 (2006).

7
Rodriguez, supra, quoting Commonwealth v. Nolin, 448 Mass. 207,

215 (2007).

c. Intent to distribute. The defendant argues that there

was insufficient evidence to show that he possessed the

narcotics with an intent to distribute. 6 We conclude that,

viewing the evidence in the light most favorable to the

Commonwealth, as we must, the Commonwealth's evidence was

sufficient for a rational jury to find that the defendant

harbored the requisite intent to distribute heroin and cocaine. 7

Here, a State police trooper, who testified as an expert in

how the drug trade operates, testified that the amount of heroin

and cocaine found was more than is typical for personal

consumption. See Commonwealth v. Sendele, 18 Mass. App. Ct.

755, 758 (1984), and cases cited ("Possession of a large

quantity of an illicit narcotic raises an inference of intent to

distribute"). See also Commonwealth v. Pratt, 407 Mass. 647,

653 (1990) (same). Additionally, no paraphernalia for drug

consumption was found on the defendant or in his apartment. See

Commonwealth v. Richardson, 479 Mass. 344, 360 (2018)

("Traditionally, drug possession in the absence of drug

6 The defendant does not specify whether he means heroin or
cocaine or both. We address both.
7 The evidence of the controlled buys in the affidavit in support

of the search warrant were not presented as evidence during the
trial.

8
paraphernalia also is probative of intent"). The paraphernalia

that was found permitted an inference of an intent to

distribute. See id. at 360-361. The same officer testified

that scales, sifters, latex gloves, and paper plates and bowls

with residue on them are typically used for drug distribution,

and that packaging drugs into the corners of cutoff baggies is a

common method for heroin and cocaine distribution. 8 The police

found three scales, including one on the defendant's person. In

addition to items that might be found in any kitchen or

household, such as the sifter or latex gloves, the police found

two bags full of cutoff baggies, a paper plate with an off-

brown, off-white residue on it, and a bowl with white powder

residue which field tested positive for cocaine. While some of

the items may be typical kitchen objects, the evidence taken as

a whole permits a reasonable juror to have concluded that the

defendant had an intent to distribute.

Considering the case again at the close of the evidence

does not lead to a different conclusion. At trial, the

defendant admitted that he possessed the drugs, but argued he

had no intention to distribute the drugs as they were for

personal use. The defendant contends that many of the items

found in the apartment are regular household items, such as the

8 The officer also testified that the amount of cash found on the
defendant was not typical for someone who is addicted to drugs.

9
scales, plastic bags, sifter, plate, and latex gloves. He

claims that the amount of cash found was insignificant in light

of the fact that there was no evidence of pagers, ledgers, or

burner phones. The Commonwealth's case did not deteriorate

after the defendant testified, as the jury were entitled to

discredit his testimony. See Commonwealth v. Nhut Huynh, 452

Mass. 481, 485-486 (2008).

d. Park zone. General Laws c. 94C, § 32J, provides in

relevant part: "Any person who violates the provisions of

[G. L. c. 94C, §§ 32, 32A, 32B, 32C, 32D, 32E, 32F, or 32I,]

. . . within [one hundred] feet of a public park or playground

. . . shall be punished by a term of imprisonment . . . ."

Commonwealth v. Boger, 486 Mass. 358, 359-360 (2020), quoting

G. L. c. 94C, § 32J. "[I]ntent to commit the underlying drug

crime is sufficient to violate § 32J, without additional proof

of scienter of park boundaries." Commonwealth v. Matta, 483

Mass. 357, 358 (2019).

The defendant argues that the Commonwealth failed to

introduce sufficient evidence to prove that the defendant

trafficked heroin within one hundred feet of a park and that the

distance between the stop and the park was speculative. In

addition, the defendant cites Commonwealth v. Peterson, 476

Mass. 163 (2017), arguing that § 32J is not intended to apply to

10
someone who was in a car and merely traveling on a roadway

adjacent to a park.

"After the elements of [the predicate] offense have been

established, one need only take out the tape measure to see if

[the park zone provision of § 32J] has been violated" (citation

omitted). Commonwealth v. Roucoulet, 413 Mass. 647, 650-651

(1992). Here, a detective testified that he measured the

distance between the traffic stop and the fence along the park

wall with a surveyor's wheel, which he calibrated prior to

using. The distance measured twenty-five feet. In addition to

the measuring wheel, the Brockton superintendent of parks

testified that Oak Street "runs just about through the middle of

the park." We are satisfied that the Commonwealth's means of

measuring the distance between the park and where the defendant

stopped his vehicle permitted a finding that the car was stopped

within one hundred feet of the park.

Next, the defendant relies on Peterson, 476 Mass. 163, to

argue that the statute cannot apply here, where he fortuitously

stopped his own vehicle near a park. In Peterson, the Supreme

Judicial Court held that it would be "overreaching" to apply

§ 32J "to a defendant who is located momentarily within one

hundred feet of a public park solely because he is a passenger

in a motor vehicle that is driven on a public roadway past the

park and, fortuitously, stops at a red light." Id. at 163-164.

11
The Peterson case is distinguishable. Here, the defendant was

the driver, not a passenger, and the defendant, not the police,

selected the location for his stop. 9 Moreover, the court in

Peterson limited its holding to the "specific facts presented"

and did not alter other decisions, including Roucoulet, 413

Mass. 647, and Commonwealth v. Labitue, 49 Mass. App. Ct. 913

(2000). Peterson, supra at 169. In Roucoulet, the court

rejected the argument that a defendant's possession of drugs

within a school zone, intended for distribution outside the

zone, is not proscribed by statute. Roucoulet, supra at 650.

In Labitue, we upheld a § 32J violation where police stopped the

defendant's automobile in a school zone but a drug transaction

had taken place more than the statutory distance from that

school. Labitue, supra at 914-915. Accordingly, we reject the

defendant's argument.

Judgments affirmed.

By the Court (Wolohojian,
Henry & Hershfang, JJ. 10),

Clerk

Entered: August 14, 2023.

9 The defendant testified that he pulled the car over because the
alarm company from his apartment was calling his telephone.
Nothing in the record indicates that the police caused the
defendant's alarm to sound.
10 The panelists are listed in order of seniority.

12