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16-P-1217                                                Appeals Court

                   COMMONWEALTH   vs.   JORGE POLANCO.


                            No. 16-P-1217.

      Middlesex.        October 11, 2017. - February 20, 2018.

             Present:   Milkey, Massing, & Ditkoff, JJ.


Controlled Substances. Practice, Criminal, Speedy trial,
     Dismissal, Motion to suppress, Required finding. District
     Court, Arraignment. Constitutional Law, Search and
     seizure. Search and Seizure, Exigent circumstances.



     Indictments found and returned in the Superior Court
Department on August 7, 2014.

     A motion to dismiss was heard by Kathe M. Tuttman, J.; a
pretrial motion to suppress evidence was heard by her; and the
cases were tried before her.


     Murat Erkan for the defendant.
     Sandra Weisberger, Assistant District Attorney, for the
Commonwealth.


    DITKOFF, J.     The defendant, Jorge Polanco, appeals from his

Superior Court convictions of trafficking in heroin, G. L.

c. 94C, § 32E(c), and a school zone violation, G. L. c. 94C,

§ 32J.   We must decide whether to consider time spent in
                                                                    2


District Court when calculating the time to be included for

purposes of a speedy trial under Mass.R.Crim.P. 36(b), 378 Mass.

909 (1979), in Superior Court.    Consistent with the plain

language of the rule, we conclude that the time the charges were

pending in District Court should not be included in the

calculation.   Accordingly, the motion judge properly denied the

defendant's motion to dismiss.   Rejecting the defendant's

challenges to the denial of his motion to suppress and the

sufficiency of the evidence, we affirm.

     1.   Background.   In April and May of 2013, law enforcement

including the Billerica police department were conducting an

investigation of a suspected heroin trafficker known as

"Johnny," later identified as the defendant.    As part of that

investigation, Billerica police conducted controlled narcotics

purchases using an informant.    When the police approached the

sellers in those controlled purchases, the sellers admitted to

being "runners" for "Johnny," whom they identified as the source

of the narcotics.    One of the runners agreed to cooperate with

the investigation.

     Shortly thereafter, the cooperating runner received a

telephone call from "Johnny," directing him to customers at a

house located at 48 Rogers Street.1   Prior to that day, that


     1
       A detective testified that 48 Rogers Street is 281 feet
from S.G. Hajjar Elementary School.
                                                                      3


residence had not been a target of the investigation, and the

police had not yet identified "Johnny" as the defendant.

    The police followed the runner to the residence.      A motor

vehicle pulled up outside the residence, and two men exited the

vehicle and spoke to a woman in the house's driveway.    The

runner then approached the three persons and engaged in a hand-

to-hand transaction with one of the men.    At this point, the

police converged on the driveway with other law enforcement

agents.     The police had not yet confirmed "Johnny's" whereabouts

and were not anticipating his immediate arrest.

     As the police entered the driveway area, a detective

observed the defendant standing several feet inside the open

garage.     The defendant, matching the description of "Johnny,"

turned and fled.    The detective gave chase through the garage

and into the back yard.    The detective believed the defendant to

be "Johnny" and feared that he was likely to escape or destroy

evidence.

    Once in the back yard, the detective apprehended the

defendant near the rear fence, facing a shed located in the

neighboring yard.     The informant and the runner positively

identified the defendant as "Johnny."     Although no contraband

was found on the defendant's person, police retrieved two bags

containing 19.06 grams of heroin next to the neighbor's shed.
                                                                    4


They also found a cellular telephone and over $1,100 in cash in

the defendant's possession.

     On May 8, 2013, the Lowell District Court issued a

complaint charging the defendant with several drug-related

offenses and arraigned him that same day.    After two months, a

District Court judge dismissed the charges for failure to

prosecute.   Over one year later, on August 7, 2014, a Middlesex

grand jury returned indictments arising from the same incident,

charging the defendant with trafficking in heroin and a school

zone violation.   The defendant was arraigned in Superior Court

on August 13, 2014.

     On October 30, 2014, the defendant moved to dismiss the

charges, alleging a violation of rule 36(b) and his

constitutional right to a speedy trial,2 and also moved to

suppress evidence.    Both motions were denied, and the defendant

was ultimately convicted of both charges by a jury.

     2.   Rule 36(b) motion to dismiss.   Under rule 36(b)(1)(C),

a defendant is entitled to dismissal if he is not brought to

trial "within twelve months after the return day in the court in

which the case is awaiting trial."    See Commonwealth v. Denehy,

466 Mass. 723, 729 (2014); Commonwealth v. Pereira, 82 Mass.


     2
       On appeal, the defendant raises no challenge to the
judge's conclusion that his constitutional right to a speedy
trial was not violated.
                                                                     5


App. Ct. 344, 346 (2012).    The arraignment date is the return

date, Mass.R.Crim.P. 2(b)(15), 378 Mass. 844 (1979);

Commonwealth v. Fling, 67 Mass. App. Ct. 232, 235 (2006), and

"[t]he filing of a motion to dismiss [on rule 36 grounds] tolls

the relevant time period."   Commonwealth v. Taylor, 469 Mass.

516, 524 n.15 (2014).   Here, the defendant was arraigned in

Superior Court on August 13, 2014, and filed his motion to

dismiss on October 30, 2014 -- well within twelve months.     If,

however, the return day is the date of the District Court

arraignment, May 8, 2013, the speedy trial clock expired.     This

is because the judicial dismissal in the District Court would

not toll the time.   Denehy, 466 Mass. at 733-735.

    If we were applying the constitutional right to a speedy

trial, we would consider the time the charges were pending in

District Court.   See Commonwealth v. Butler, 464 Mass. 706

(2013).   The Supreme Judicial Court in Butler determined that

the issuance of a criminal complaint in the District Court is

the appropriate start date for purposes of the defendant's

constitutional right to a speedy trial, even where the case is

later moved to Superior Court.   Id. at 713-714.    The

constitutional right to a speedy trial, however, is primarily

concerned with protecting the rights of a defendant, whereas

rule 36(b) is "primarily a management tool, designed to assist

the trial courts in administering their dockets."     Reporter's
                                                                    6


Notes to Rule 36, Massachusetts Rules of Court, Rules of

Criminal Procedure, at 209 (Thomson Reuters 2017).   Accordingly,

the contours of the constitutional right are not controlling;

"the speedy trial calculus under rule 36 differs from the

analysis applied to constitutional claims."   Denehy, 466 Mass.

at 735 n.18, citing Commonwealth v. Lauria, 411 Mass. 63, 67

(1991).   Indeed, the issue arose in Butler precisely because the

defendant's rule 36 claim lacked merit.   464 Mass. at 707 & n.3.3

    "In interpreting a rule of criminal procedure, we turn

first to the rule's plain language."   Denehy, 466 Mass. at 733.

The plain language of rule 36 states that the clock begins on

"the return day in the court in which the case is awaiting

trial" (emphasis supplied).   Mass.R.Crim.P. 36(b)(1)(C).

Because the case was awaiting trial in the Superior Court when

the defendant moved to dismiss, the return date must be

calculated from his August 13, 2014, arraignment in that court.

The Reporter's Notes to Rule 36(b)(1), supra at 210, are

consistent with this conclusion, stating that, "if a defendant

is bound over to the Superior Court after a probable cause

    3
       Under the constitutional right to a speedy trial, time
during which charges are dismissed does not count, regardless of
whether a judge or a prosecutor dismissed the charges. See
United States v. MacDonald, 456 U.S. 1, 7 n.7 (1972); Butler,
464 Mass. at 713. Under rule 36(b), time during which charges
are dismissed counts if a judge dismissed the charges, but does
not count if a prosecutor dismissed the charges. Denehy, 466
Mass. at 733-735.
                                                                    7


hearing . . . or the Commonwealth elects to proceed by direct

indictment in a case commenced by complaint which is within the

District Court's jurisdiction . . . the time limits of this rule

begin anew upon the return day in the Superior Court."4

     As a practical matter, including prior District Court

proceedings in rule 36(b) calculations would impose a great

burden on the trial courts.   Before setting a tracking order, a

Superior Court judge would need to calculate the time expired on

prior District Court proceedings on every charge, itself a time-

consuming and complex exercise, and adjust scheduling to

accommodate the timing of District Court proceedings.     Rule 36

"is primarily designed to assist in the administration of trial

court dockets," Lauria, 411 Mass. at 68, but this reading of the

rule would have the opposite effect.   Instead, dockets would

have to be coordinated between courts, undermining judges'

responsibility to "control their own dockets . . . within the

time periods specified by rule 36" (emphasis supplied).

Commonwealth v. Bourdon, 71 Mass. App. Ct. 420, 428 (2008),

quoting from Lauria, supra at 70.


     4
       Bind-over hearings are a "relic of the past," Commonwealth
v. Perkins, 464 Mass. 92, 108 (2013) (Gants, J., concurring),
replaced by direct indictment in cases both inside and outside
the District Court's final jurisdiction. We place no weight on
the Reporter's not foreseeing current direct indictment
practice, as the point made is that the clock resets at Superior
Court arraignment.
                                                                    8


     Of course, in an appropriate case, a defendant has

protection against unreasonable delays in Superior Court

indictment by means other than rule 36(b).   A defendant may move

to dismiss, as was done here and in Butler, under the

constitutional right to a speedy trial.   A defendant may move to

dismiss under Mass.R.Crim.P. 36(c), 378 Mass. 909 (1979).5

Commonwealth v. Sigman, 41 Mass. App. Ct. 574, 580 (1996).      A

defendant may move to dismiss on the ground of prejudicial

preindictment delay.   See Commonwealth v. Dame, 473 Mass. 524,

530-531 (2016).   All of these avenues serve to protect a

defendant against unreasonable delays in an appropriate case.

     Excluding the District Court time comports with Supreme

Judicial Court calculations in rule 36 cases as well, even post-

Denehy.   In Taylor, 469 Mass. at 520 & n.7, for example, the

defendant was arrested and thus arraigned in District Court well

before he was indicted.   Nonetheless, the Supreme Judicial Court

calculated the time under rule 36(b) from the Superior Court

arraignment, excluding the District Court time.   See id. at 522.




     5
       Rule 36(c) provides that "a defendant shall upon motion be
entitled to a dismissal where the judge after an examination and
consideration of all attendant circumstances determines that:
(1) the conduct of the prosecuting attorney in bringing the
defendant to trial has been unreasonably lacking in diligence
and (2) this conduct on the part of the prosecuting attorney has
resulted in prejudice to the defendant."
                                                                     9


Here, accordingly, the defendant's motion to dismiss was

properly denied.

    3.    Motion to suppress.   On appeal, we review a ruling on a

motion to suppress by accepting "the judge's subsidiary findings

of fact absent clear error but conduct an independent review of

[the] ultimate findings and conclusions of law."    Commonwealth

v. Ramos, 470 Mass. 740, 742 (2015), quoting from Commonwealth

v. Colon, 449 Mass. 207, 214, cert. denied, 552 U.S. 1079

(2007).   We discern no error in the motion judge's determination

that exigent circumstances justified the detective's warrantless

entry into the garage and the resulting search and seizure.

    The Fourth Amendment to the United States Constitution and

art. 14 of the Massachusetts Declaration of Rights require that

all searches and seizures must be reasonable, and that all

warrantless searches and seizures of a home are presumptively

unreasonable.   Ramos, 470 Mass. at 744-745.   See Commonwealth v.

Gentle, 80 Mass. App. Ct. 243, 250 (2011), quoting from

Commonwealth v. Molina, 439 Mass. 206, 211 (2003) (the Fourth

Amendment and art. 14 "scrupulously guard against the intrusion

of the government into a citizen's home without a warrant").

Even in the absence of a warrant, however, a nonconsensual entry

may be valid if the Commonwealth proves both probable cause and
                                                                    10


exigent circumstances.     Ramos, supra at 744, citing Commonwealth

v. DeJesus, 439 Mass. 616, 619 (2003).6

     Exigent circumstances to justify a warrantless entry may

exist if the entry is reasonably believed necessary to prevent

the loss or destruction of evidence, Ramos, 470 Mass. at 745,

particularly if supported by "[f]actors such as 'a showing . . .

that the suspect was armed, a clear demonstration of probable

cause, strong reason to believe the suspect was in the dwelling,

and a likelihood that the suspect would escape if not

apprehended.'"   Molina, 439 Mass. at 209, quoting from

Commonwealth v. Forde, 367 Mass. 798, 807 (1975).     In this case,

the police had probable cause and reason to believe that the

defendant would remove evidence and escape apprehension if not

pursued through the garage.    Accordingly, there were exigent

circumstances sufficient to justify the warrantless entry.       See

Ramos, supra at 746-747.

     The defendant contends, however, that the police

deliberately created the exigent circumstances themselves and

therefore cannot avail themselves of this exception to the


     6
       The defendant concedes, and based on our independent
review we agree, that the police had probable cause at the
moment of entry. The Commonwealth does not contest the
defendant's sworn statement that he was a frequent overnight
guest at 48 Rogers Street and, thus, had standing to contest the
warrantless entry. See Commonwealth v. Morrison, 429 Mass. 511,
513 (1999).
                                                                    11


warrant requirement.   See Molina, 439 Mass. at 210.7    Under

Molina, "police officers cannot deliberately create the exigency

that leads to the warrantless arrest."   Ibid.   Or, to put it

another way, "where the exigency is reasonably foreseeable and

the police offer no justifiable excuse for their prior delay in

obtaining a warrant, the exigency exception to the warrant

requirement is not open to them."   Forde, 367 Mass. at 803.

    In Molina, the police received the name and address of a

suspect, reported and discussed the allegations back at the

station, then proceeded to the suspect's residence to effectuate

the arrest without a warrant.   439 Mass. at 207, 210.    Because

(1) it was foreseeable the police would have to enter the

apartment to make the arrest; (2) the police offered no

justification for the failure to obtain a warrant; and (3) no

evidence of risk of flight or harm was produced, the exigent

    7
       After Molina was decided, the United States Supreme Court
decided that the Fourth Amendment invalidates a warrantless
entry with probable cause under exigent circumstances only where
the police create the exigency by "engaging or threatening to
engage in conduct that violates the Fourth Amendment." Kentucky
v. King, 563 U.S. 452, 462 (2011). See Gentle, 80 Mass. App.
Ct. at 249. This standard is different from that applied in
Molina, 439 Mass. at 209-211, which was based on pre-King
Federal law relied upon in Forde, 367 Mass. at 806-807. Neither
this court nor the Supreme Judicial Court has decided whether
art. 14 retains the broader protections against warrantless
entry described in Molina, see Gentle, supra at 251-252, and we
need not reach the question. Instead, we assume arguendo the
continued vitality of the doctrine of manufactured exigency
under art. 14, as set forth in Molina, and, as discussed infra,
conclude that the facts here do not meet that standard.
                                                                    12


circumstances resulted solely from the officers' decision to

make the warrantless arrest.    Id. at 210-211.   The warrantless

entry accordingly was unlawful.    Id. at 211.    See Forde, 367

Mass. at 802 (failure "to offer any explanation for why no

effort was made to obtain a warrant" prior to exigency was fatal

to Commonwealth's claim).

     Similarly, in Commonwealth v. McAfee, 63 Mass. App. Ct. 467

(2005), the police made a warrantless entry at the known

residence of a suspected drug dealer, where they had at least

four days to obtain a search warrant but failed to do so without

justification.   Id. at 477.   Although the identity of the

suspect was unknown, his presence at the residence was

confirmed, and the evidence showed no risk of flight,

destruction of evidence, or harm -- until the police knocked on

his door, making it easily foreseeable that the suspect would

refuse them entrance while concealing or destroying drug-related

evidence.    Id. at 474-475.   Again, the warrantless entry was not

justified.   Id. at 477.

     The present case shares none of these characteristics.

Here, with no reason to believe that the defendant would be just

inside the garage, the police were moving to confront the three

persons standing outside in the driveway.8    No exigency requiring


     8
       Although there was some evidence that the runner informed
the police of "Johnny's" presence earlier that day, the runner
                                                                  13


entrance into the garage occurred until the moment the police

observed the defendant -- fitting the description of "Johnny."

The defendant fled immediately despite orders to stop.    At this

point, the police had probable cause to believe that the fleeing

suspect possessed drugs and would likely try to destroy or

conceal them.

    Moreover, the situation developed rapidly; the police had

no time to obtain a warrant before the defendant could have

escaped and removed contraband.   See Ramos, 470 Mass. at 746

("rapidly unfolding events" gave objectively reasonable belief

that warrantless entry was necessary to prevent destruction of

evidence).   Prior to this moment, the police were unaware of

"Johnny's" true identity, actual residence, and presence at 48

Rogers Street.   Thus, the police offered a justifiable excuse

for failing to obtain a warrant, and they neither knew nor

intended the events as transpired.    For these reasons, the

exigent circumstances were not foreseeable and were not

deliberately created by the police.    See Commonwealth v. Owens,

92 Mass. App. Ct. 193, 201-202 (2017) (no manufactured exigency




had not actually confirmed "Johnny's" whereabouts at the time of
the entry, and police officers specifically testified that they
were unaware of "Johnny's" presence at that time. Accordingly,
the motion judge was entitled to find that it was not reasonably
foreseeable that "Johnny" would be at the residence prior to the
arrest.
                                                                  14


where the police "had legitimate reasons to proceed with the

sting operation . . . before proceeding any further").

    4.    Sufficiency of the evidence.   When reviewing the denial

of a motion for a required finding of not guilty, "we consider

the evidence introduced at trial in the light most favorable to

the Commonwealth, and determine whether a rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt."   Commonwealth v. Oberle, 476 Mass. 539, 547

(2017).   "The inferences that support a conviction 'need only be

reasonable and possible; [they] need not be necessary or

inescapable.'"   Commonwealth v. Waller, 90 Mass. App. Ct. 295,

303 (2016), quoting from Commonwealth v. Woods, 466 Mass. 707,

713 (2014).

    Here, the Commonwealth was required to prove the defendant

actually or constructively possessed trafficking-weight heroin.

See Commonwealth v. Mojica, 59 Mass. App. Ct. 925, 925-926

(2003).   "Constructive possession requires a showing of

'knowledge coupled with the ability and intention to exercise

dominion and control,'" Commonwealth v. Caraballo, 81 Mass. App.

Ct. 536, 541 (2012), quoting from Commonwealth v. Gonzalez, 452

Mass. 142, 146 (2008), which "may be established by

circumstantial evidence, and the inferences that can be drawn

therefrom."   Mojica, supra at 926, quoting from Commonwealth v.

Gonzalez, 42 Mass. App. Ct. 235, 237 (1997).    "While a
                                                                    15


defendant's presence in an area where contraband is found is not

enough, . . . 'presence, supplemented by other incriminating

evidence, will serve to tip the scale in favor of sufficiency.'"

Caraballo, supra at 541-542, quoting from Commonwealth v.

Clarke, 44 Mass. App. Ct. 502, 505 (1998).     Where the contraband

is narcotics, evidence of drug dealing may be sufficiently

incriminating.   See Caraballo, supra at 538, 541-542 (drug

ledger, paraphernalia used to cut and package drugs, and small

portion of heroin found on defendant was sufficient evidence of

constructive possession of large drug stash located in the same

apartment).

    Here, the heroin was found near where the defendant was

arrested and there was abundant evidence that the defendant was

involved in drug-dealing activities.    Specifically, the evidence

supported the conclusion that the defendant was a large-scale

heroin distributor, with "runners" and former customers

providing information against him.     The incident occurred at a

"stash house," where the defendant was reported to have had

heroin that same day, and where drug sales had been observed.

He was also found with over $1,100 in cash.

    Moreover, the defendant's immediate flight from the police,

in the direction of where the heroin was later found, is further

incriminating evidence.   See Commonwealth v. Whitlock, 39 Mass.

App. Ct. 514, 519 (1995) ("Evidence, such as flight from the
                                                                  16


scene, possession of large amounts of cash, or attempts to

conceal or dispose of contraband . . . permit an inference of

unlawful possession").   See also Commonwealth v. Brzezinski, 405

Mass. 401, 410 (1989) ("The defendant's retreat into the closet

containing cocaine and cocaine paraphernalia allowed an

inference of consciousness of guilt").

    Direct proof that the defendant threw the heroin bags

during his escape is unnecessary.   Given the evidence, the

inference that the defendant knew of and previously possessed

the drugs was reasonable.   See Gonzalez, 42 Mass. App. Ct. at

239 ("[The] type of inculpatory evidence, rather than the

precise location of the drugs, . . . is most significant to a

sufficiency analysis in a constructive possession case");

Mojica, 59 Mass. App. Ct. at 926 (reasonable inference that

defendant dropped heroin sufficient to establish possession).

Accordingly, the evidence was sufficient.

                                    Judgments affirmed.
