Commonwealth v. Caraballo-Nieves

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24-P-1225 Appeals Court

COMMONWEALTH vs. JESUS R. CARABALLO-NIEVES.

No. 24-P-1225.

Suffolk. October 15, 2025. – February 13, 2026.

Present: Henry, Hand, & Brennan, JJ.

Controlled Substances. Narcotic Drugs. Evidence, Failure to
prosecute. Practice, Criminal, Continuance, Motion to
suppress, Dismissal.

Complaint received and sworn to in the Central Division of
the Boston Municipal Court Department on November 3, 2022.

A motion to dismiss was heard by Mark H. Summerville, J.

Kenneth E. Steinfield, Assistant District Attorney, for the
Commonwealth.
Morjieta K. Derisier for the defendant.

BRENNAN, J. In this appeal, the Commonwealth challenges a

Boston Municipal Court judgment dismissing for lack of

prosecution a criminal complaint charging the defendant, Jesus

R. Caraballo-Nieves, with possession of heroin with intent to

distribute and possession of omeprazole. At issue is whether the
2

judge abused his discretion by (1) refusing to permit the

Commonwealth to proceed on a motion to suppress evidence without

presenting the drugs, some of which contained fentanyl, as

evidence, and (2) denying the Commonwealth's motion for a brief

continuance after the judge ordered the prosecutor to bring the

drugs into the court room. Because we conclude that the judge

overstepped, we vacate the judgment dismissing the charges and

remand the case for further proceedings.

Background. The defendant's motion to suppress was

scheduled for a hearing on September 13, 2024. At the first

call of the case, the judge asked the prosecutor whether the

drugs at issue were present in the court room. When the

prosecutor responded that he would check, the judge said, sua

sponte, that the prosecution would "have to have the . . . drugs

here." The matter was held for a second call.

At the second call, the prosecutor raised concerns about

the conflict between the judge's order to bring the drugs to the

court house and the Trial Court policy banning the presence of

fentanyl in court houses (policy). " Given the danger that even

a small amount of [fentanyl] poses," the policy -- issued by the

Executive Office of the Trial Court on January 3, 2018 -- bans

substances containing any amount of fentanyl from entry into a

court house in all but a limited number of circumstances. The

policy explicitly includes substances that otherwise would be
3

entered in evidence at a motion or trial. It requires a judge

who determines that fentanyl must be brought into a court house

as evidence to do so in advance of the hearing or trial and to

notify court security. The policy also states that fentanyl may

be brought into a court house and presented as evidence only if

packaged and handled by a specially trained person, in a manner

approved by the United States Drug Enforcement Administration

(DEA).1 When the prosecutor pointed to the policy's requirement

1 The Trial Court safety advisory and protocols for fentanyl
and carfentanil is available online at
https://www.mass.gov/advisory/trial-court-safety-advisory-and-
protocols-for-fentanyl-and-carfentanil [https://perma.cc/86SL-
F2K2]. In relevant part, the policy states:

"Fentanyl and carfentanil are extremely potent and toxic
synthetic opioids that are being used as adulterants in
heroin and other controlled substances or passed off as
pure heroin. . . . Given the danger that even a small
amount of these substances poses, . . . [s]ubstances
containing any amount of fentanyl or carfentanil are banned
from entry into the courthouse, except as provided
[herein]. This includes substances that have been
collected as evidence and which would otherwise be entered
in evidence at a hearing or trial. Parties who seek to
present the appearance of a substance containing fentanyl
or carfentanil to a fact finder must do so through means
other than introduction of the actual substance, such as a
stipulation, photographs, video, or witness testimony.
. . . Deviation from the general ban . . . may occur when
a judge determines that admission of the substance as
evidence is necessary for the Commonwealth to prove its
case or to protect a defendant's constitutional right to a
fair trial. If a judge determines it necessary that a
party be permitted to bring such substances into a
courtroom, the substances shall be packaged and handled in
the manner approved by the Drug Enforcement Administration
(DEA); shall be handled while in the courthouse --
including presentation of the substances in a courtroom --
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that fentanyl be brought into court only if packaged and handled

in a manner approved by the DEA, the judge said, "If you don't

bring it in . . . I am dismissing the case." The prosecutor

responded that the Commonwealth had not been put on notice of

the need to bring the drugs into the court house for the hearing

and, based on conversations with the police officers who had

come to testify for the hearing, he was unable at that time to

comply with the policy's fentanyl packaging and handling

requirements. The judge replied, incorrectly, that there was an

order in the case from a prior date for the Commonwealth to have

the physical evidence at the suppression hearing. The record is

clear, and the parties agree, that no order to bring the drugs

to court was issued until the September 13 first call of the

case.

only by individuals who have been trained to handle
fentanyl and carfentanil . . . . Determination that
fentanyl, carfentanil, or its derivatives will be permitted
to enter a courthouse shall be made in advance of the
hearing or trial at which the substance will be presented.
Court security shall be notified in advance of the date on
which the substance will be entering the courthouse, the
name of the case for which it is being brought into the
courthouse, how the substance will be transported and who
will be transporting it [into] the courtroom in which the
substance will be presented, and when the substance[] has
been taken out of the building."
5

After some discussion with the prosecutor about the

packaging of the drugs,2 the judge stated, "I want [the fentanyl]

in. I need to see it." The prosecutor stated that the

Commonwealth was ready to proceed without the drugs, reiterated

that he could not bring the drugs that day, and requested, in

the alternative, a further date to permit the Commonwealth to

take photographs of the fentanyl or to arrange for a person

qualified to handle the fentanyl to be present in court during

the suppression hearing. The judge declared that the prosecutor

"should have known that this Court requires the evidence to be

brought into court on motions to suppress evidence." He stated

that the prosecutor's "refusing to bring the alleged drugs in"

was "unacceptable" because the prosecutor had "given [the judge]

no valid reason not to bring these alleged drugs in for purposes

of a critical stage of the prosecution." The judge further

excoriated the prosecutor for "delay[ing] this all morning . . .

[after] I gave your office time to have [the officers] go get

these alleged drugs to bring it in for this critical stage of

the prosecution."3

2The judge suggested that the fentanyl could "stay in the
box" so it "won't be touched by anyone in this courtroom."

3The case was first called at 9:08 A.M. and the final call
of the case took place at 11:26 A.M.
6

The judge then asked to hear from the defendant's counsel,

who moved to dismiss the case. The prosecutor maintained that

the Commonwealth was ready to go forward on the motion and

proffered a drug certificate showing the substance was fentanyl.

The judge rejected the proffer, and after again noting that the

motion hearing was a "critical stage of the prosecution,"

reiterated that he would not hear a motion to suppress without

the drugs being brought into court. He also denied the

Commonwealth's renewed requests to take photographs of the

fentanyl or for "a brief further date" to secure the presence of

a person approved to handle fentanyl, as required by the policy.

After further discussion with the prosecutor, the judge stated

that the Commonwealth was required to have the drugs present at

the hearing because it "is necessary for me to listen to the

testimony and compare the items to the testimony that I've

heard. Also, it goes to credibility. It goes to many things

that a fact-finder has to . . . determine. I don't do motions

to suppress without the evidence." When the judge once again

denied the Commonwealth's request for a "short date" to bring in

a witness who could handle the fentanyl in the manner required

by the policy, the prosecutor stated, "[t]he Commonwealth is

answering ready for a motion to suppress without the evidence."

The judge admonished the prosecutor, "No, you're not. You're

not ready without the alleged drugs. . . . You should never,
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ever, ever go forward with a motion to suppress evidence without

the evidence. That's the way it's done." He then dismissed the

case "for want of prosecution."

Discussion. Trial judges have inherent authority to

dismiss criminal charges "[i]f the Commonwealth fails to

prosecute [its] case." Commonwealth v. Rosa, 491 Mass. 369, 373

(2023), citing Commonwealth v. Graham, 480 Mass. 516, 536

(2018). When a judge dismisses a case for failure to prosecute,

the dismissal ordinarily is without prejudice, thus allowing the

prosecutor to refile the charges and to proceed with the

prosecution. See Graham, supra at 537. Because a dismissal

without prejudice does not preclude further prosecution of a

defendant, it is "upheld in the absence of an abuse of

discretion." Id. at 536, quoting Commonwealth v. Connelly, 418

Mass. 37, 38 (1994). "[A] judge's discretionary decision

constitutes an abuse of discretion where we conclude the judge

made a clear error of judgment in weighing the factors relevant

to the decision, such that the decision falls outside the range

of reasonable alternatives" (quotation and citation omitted).

Graham, supra.

Here, the judge dismissed the case for lack of prosecution

because the Commonwealth "refused a court order to bring the

alleged drugs in" for the motion to suppress hearing. This

finding did not accurately reflect what occurred, and the judge
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abused his discretion both by deeming the Commonwealth's conduct

a failure to prosecute and by refusing the prosecutor's request

for a continuance of the hearing.

1. Commonwealth's "failure to prosecute." The

Commonwealth argues that it was error for the judge to base

dismissal on a "lack of prosecution" where the prosecutor was

willing and able to move the case forward with reasonable

dispatch. We agree.

The judge's finding that the Commonwealth's failure to

bring in physical evidence constituted lack of prosecution

rested on misapprehensions of the Commonwealth's burden and of

the judge's role. At a suppression hearing, the Commonwealth

bears the burden of showing "that the actions of the police

officers were within constitutional limits."4 Commonwealth v.

Meneus, 476 Mass. 231, 234 (2017). The defendant cites no

authority, nor are we aware of any, to support the judge's

position that the law requires the physical items the defendant

seeks to suppress be present in court for a suppression hearing.5

4 The motion to suppress in this case arose from police
observation of an alleged hand-to-hand drug deal in an alley off
Boylston Street in Boston, in which the defendant purportedly
exchanged "an unknown item" for money; and their subsequent
warrantless seizure of drugs from the defendant's person and
bag.

5 The judge also misapprehended the significance of a
suppression hearing as a "critical stage" in the proceedings.
Classification of a portion of a criminal proceeding as
9

Indeed, where it is well established, in the trial of a case

involving a drug offense, that proof a substance is a particular

drug "may be made by circumstantial evidence," Commonwealth v.

MacDonald, 459 Mass. 148, 153 (2011), it follows that no more

stringent requirements would apply to a motion to suppress

evidence of alleged drugs. See Commonwealth v. Hallinan, 491

Mass. 730, 749 (2023) (convictions of possession or distribution

of drugs may be proved by drug certification or by testimony and

observation of experienced user of drug); MacDonald, supra

(circumstantial evidence such as testimony of experienced police

officer sufficient to prove substance was particular drug). Put

simply, although the law sets out the requisite quantum of

proof, it does not mandate the type of evidence the Commonwealth

must produce to meet its burden in a motion to suppress.

Nor was it within the judge's discretion to impose his own

practice, procedure, or personal preference on the type of

evidence presented by the Commonwealth. Although viewing the

physical evidence may have informed the judge's assessment of

"critical" denotes an event at which the defendant has a right
to be present and assisted by effective counsel; it has nothing
to do with the type of evidence that must be produced by the
Commonwealth. See Vazquez Diaz v. Commonwealth, 487 Mass. 336,
340-341 (2021) (suppression hearing constitutes critical stage
at which defendant has right to be present); Commonwealth v.
Neary-French, 475 Mass. 167, 170 (2016) (Sixth Amendment to
United States Constitution and art. 12 of Massachusetts
Declaration of Rights provide criminal defendants right to
counsel at all critical stages of prosecution).
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witness credibility or weighing of the evidence, it was

incumbent on the judge to take the admissible evidence presented

during the hearing and render a decision based on that evidence.

See Commonwealth v. Tremblay, 480 Mass. 645, 658 (2018). A

party's failure to present evidence that a judge deems relevant

or significant certainly may have an impact on a judge's

decision; however, partiality for a particular type of evidence

does not entitle a judge to refuse to hear a motion or to

predetermine its outcome if the evidence is not presented in the

"preferred" form. Here, where the Commonwealth stated that it

was ready to move forward on the motion to suppress, the judge

abused his discretion by refusing to proceed with the hearing

without the physical evidence seized from the defendant. It was

error for the judge, before hearing any evidence, to tell the

prosecutor that failure to bring the fentanyl to court would

result in dismissal. See Commonwealth v. Gordon, 410 Mass. 498,

501 (1991), S.C., 422 Mass. 816 (1996) (judge's preemption of

Commonwealth's presentation of its case usurped decision-making

authority constitutionally allocated to executive branch). The

judge thus abused his discretion by dismissing the complaint for

lack of prosecution based on the prosecutor's decision to

proceed without bringing the fentanyl into court. See

Commonwealth v. Kardas, 93 Mass. App. Ct. 620, 624-625 (2018)
11

(judge's dismissal of criminal complaint without valid legal

basis exceeded constitutional authority).

2. Commonwealth's request for a continuance. The

prosecutor, who had no notice before the hearing date of the

motion to suppress that the drugs would be required for the

hearing, asked for a "short" continuance to enable him to bring

the drugs into the court house in the manner required by the

policy.6 The judge denied that request. Typically, "[t]he

decision whether to grant a motion to continue lies within the

sound discretion of the trial judge." Commonwealth v. Super,

431 Mass. 492, 496 (2000), quoting Commonwealth v. Painten, 429

Mass. 536, 543 (1999). However, the judge's discretionary

authority is "bounded by important considerations."

Commonwealth v. Clegg, 61 Mass. App. Ct. 197, 200 (2004). Among

those considerations, the "trial judge should balance the

movant's need for additional time against the possible

inconvenience, increased costs, and prejudice which may be

incurred by the opposing party if the motion is granted."

6 Although the policy is directed to "Trial Court staff and
judicial officers," we discern no reasoned basis why it would
not apply to the prosecutor in the circumstances here. To the
extent that it did, the judge's order presented the prosecutor
with the untenable choice of bringing fentanyl into the court
house under circumstances that clearly violated the policy and
posed significant health risks to the parties, court personnel,
and the public; or declining to do so and thereby having the
case dismissed.
12

Super, supra at 496-497, quoting Commonwealth v. Gilchrest, 364

Mass. 272, 276 (1973). The judge may also consider "whether

there has been a failure . . . to use due diligence to obtain

available witnesses." Mass. R. Crim. P. 10 (a) (2) (C), 378

Mass. 861 (1979).

Here, the docket shows diligent efforts by the Commonwealth

to prosecute the case.7 See Commonwealth v. Clark, 454 Mass.

1001, 1002 (2009) (judge incorrectly attributed age of case to

Commonwealth and did not account for prosecutor's efforts to

find and secure principal witness). The Commonwealth also

secured the necessary witnesses for the suppression hearing and

had them in court ready to testify. See Commonwealth v.

Burston, 77 Mass. App. Ct. 411, 417 (2010) (denying continuance

based on unavailable witnesses was improper where Commonwealth

exercised due diligence to obtain witnesses). Given that the

prosecutor did not have advance notice that the fentanyl would

be required for the hearing, the request for additional time to

arrange for a qualified person to bring the drugs to court was

reasonable. The defendant did not assert at the time of the

hearing that a brief delay would cause him increased cost,

inconvenience, or prejudice; nor does he make that argument on

7 Any delays in the case appear to have been attributable to
the defendant's failures to appear for court dates, change in
attorneys, and late filing of his motion to suppress.
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appeal. Nevertheless, the judge denied the Commonwealth's

request and dismissed the case without balancing any of the

applicable factors, for the sole reason that the Commonwealth

"refused a court order to bring the alleged drugs in." We

conclude that this denial of the prosecutor's motion to continue

fell outside the reasonable range of alternatives and thus was

an abuse of the judge's discretion. See Graham, 480 Mass. at

539 (abuse of discretion for judge to dismiss indictments for

failure to prosecute without fully considering relevant

factors); Commonwealth v. Pimentel, 99 Mass. App. Ct. 597, 599-

601 (2021) (when considering motion for continuance, judge

should balance movant's need for additional time against

possible inconvenience, increased costs, and prejudice to

opposing party). Cf. Commonwealth v. J.F., 491 Mass. 824, 844

(2023) (failure of judge to state relevant factors and weight

given to them was abuse of discretion).

Conclusion. The judgment dismissing the charges is

vacated, and the case is remanded to the Boston Municipal Court

for further proceedings consistent with this opinion.

So ordered.