Commonwealth v. Negron (Lawyers Weekly No. 11-020-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑817 Appeals Court COMMONWEALTH vs. ANTHONY NEGRON. No. 12‑P‑817. March 3, 2014. Controlled Substances. Constitutional Law, Standing, Search and seizure. Search and Seizure, Standing to object. Practice, Criminal, Standing, Motion to suppress. A judge in the District Court reported to us two questions of law pursuant to Mass.R.Crim.P. 34, as amended, 442 Mass. 1501 (2004): “(1) Whether a defendant who is charged with distribution of a controlled substance, has standing to challenge the warrantless search of the alleged buyer who was seized after an alleged hand to hand sale between the defendant (the alleged seller) and the alleged buyer?” and “(2) If the answer to question #1 is yes, may a defendant succeed in suppressing such evidence, regardless of whether he has a subjective or objectively reasonable expectation of privacy where the drugs were found, i.e., on the purported buyer’s person, pursuant to Commonwealth v. Mubdi, 456 Mass. 385 (2010)?” Concluding that this case is controlled in material respects by the reasoning of Commonwealth v. Garcia, 34 Mass. App. Ct. 386, 389-391 (1993), we answer the first reported question, “No,” and therefore need not answer the second reported question. Background. After observing what appeared to be a hand-to-hand drug transaction, a police officer searched and seized from the alleged buyer four bags of crack cocaine. The buyer was placed under arrest for possession with intent to distribute. Subsequently, based on the drugs found on the alleged buyer, the defendant was arrested and charged with distribution. Relying on Commonwealth v. Amendola, 406 Mass. 592, 601 (1990), the defendant moved to suppress the drugs found on the alleged buyer, asserting that he has automatic standing to challenge the warrantless search of the alleged buyer. Discussion. 1. Automatic standing. General Laws c. 94C, § 32A(a), provides: “Any person who knowingly or intentionally manufactures, distributes, [or] dispenses [hereinafter, ‘first theory’], or possesses with intent to manufacture, distribute or dispense [hereinafter, ‘second theory’] a controlled substance . . . shall be punished.” The defendant was charged under § 32A(a), first theory. We focus on the question whether “distribut[ion],” under G. L. c. 94C, § 32A(a), contains “possession” as an essential element, such that a defendant charged with distribution under the first theory of § 32A(a) has automatic standing to contest the search of a third party. It […]