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Commonwealth v. Sinforoso6/15/2001
Essex.
January 8, 2001.
Constitutional Law, Search and seizure. Search and Seizure, Automobile, Threshold police inquiry, Arrest. Practice, Criminal , Motion to suppress, Required finding. Arrest. Controlled Substances.
Indictments found and returned in the Superior Court Department on September 20, 1995.
A pretrial motion to suppress evidence was heard by John C. Cratsley, J., and the case was tried before Peter F. Brady, J.
After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.
The defendant was convicted of trafficking in cocaine in an amount exceeding 200 grams in violation of G. L. c. 94C, ? 32E. The Appeals Court reversed the conviction in an unpublished memorandum and order pursuant to its rule 1:28, concluding there was insufficient evidence to support the defendant's conviction. 49 Mass. App. Ct. 1103 (2000). We granted the Commonwealth's application for further appellate review. We find there was sufficient evidence to convict the defendant of trafficking in cocaine, and also rule that the judge correctly denied the defendant's motion to suppress evidence. We therefore affirm the conviction.
1. Motion to suppress.
The defendant contends that the motion judge erred in denying his motion to suppress the evidence found during the search of his car. When reviewing the denial of a motion to suppress, "we accept the motion judge's subsidiary findings of fact absent clear error." Commonwealth v. Sanna, 424 Mass. 92, 97 (1997), citing Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990). "The determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw the witnesses . . . ." Commonwealth v. Yesilciman, supra. The defendant has not shown clear error in any of the motion judge's factual findings, and we will not disturb them.
The motion judge found as follows. On August 12, 1995, Trooper Mark Blanchard of the Massachusetts State police was conducting stationary patrol on Route 129 in Lynn. The posted speed limit on that section of Route 129 was thirty-five miles an hour. At approximately 10:15 A.M., a gray Subaru automobile drove by at a speed of fifty miles an hour, and then failed to stop at a red light. Trooper Blanchard pulled his cruiser out onto Route 129, activated his blue lights, and followed the Subaru. He observed two people in the vehicle. The defendant was the driver. The passenger (later identified as Franklin Melo Pena) looked back at the cruiser several times.
When the Subaru pulled over, Trooper Blanchard approached the driver's side window and asked the defendant for his license and registration. The defendant produced a valid driver's license and registration, which indicated that the car was registered to a Santiago Baez. While the trooper was obtaining the license and registration, he noticed two large knives and a club on the floor in the front compartment. Both the defendant and Pena looked very nervous. They kept looking at each other, and both were sweating profusely. Trooper Blanchard returned to his cruiser to conduct a license and warrant check on both men. Concerned for his safety after observing the weapons, Trooper Blanchard also radioed for backup.
When another trooper arrived, Trooper Blanchard approached the car again, and ordered the defendant and Pena out of the car. They were both pat frisked for weapons. Trooper Blanchard asked the defendant and Pena where they were coming from and where they were going. They gave conflicting responses to that basic inquiry.
Trooper Blanchard then went to retrieve the
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