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Appeals Court Affirms Denial of Motion to Suppress in Possession with Intent to Distribute Heroin

police-car-1515955-300x225In Commonwealth v. Bones (, the Appeals Court affirmed the defendant’s conviction of possession of a class A controlled substance with intent to distribute, ruling that the judge properly denied the defendant’s motion to suppress.

The basic facts were as follows. Chelsea police sergeant Dunn “responded to a call from a party reporting possible drug activity…. On Division Street, … Dunn observed a black male matching the caller’s description. From prior encounters, … Dunn recognized the man as the defendant….  Dunn observed the defendant ‘drinking out of a nip type bottle of alcohol’ while he was walking down the sidewalk…. Dunn stopped his cruiser and got out to speak with the defendant.” Upon seeing Dunn approaching him, “the defendant said, ‘I’m sorry, I didn’t see you. I’ll dump it out,’ and began dumping [the] contents of the bottle of alcohol onto the sidewalk…. Dunn did not order the defendant to stop drinking the alcohol or make any other show of authority.” As Dunn later “testified without objection[,] … ‘drinking alcohol in public is an arrestable offense in the [c]ity of Chelsea.’ He … detained the defendant to see whether he had any active warrants. After determining that the defendant did have an active warrant for his arrest, … Dunn and other officers who had arrived on scene arrested the defendant on the warrant and transported him to Chelsea police headquarters.” There, “the officers conducted an inventory of the defendant’s personal property.” Upon removing the defendant’s shoes, “[t]he officers noticed a bulge protruding from the defendant’s sock…. In [the] sock, [they] found a large plastic bag filled with fifteen individually wrapped smaller bags of heroin.” Upon the return of indictments against the defendant, he filed a motion to suppress the drugs on the ground that “Dunn was not justified in detaining him to check for warrants because drinking in public is not a crime under either the General Laws of the Commonwealth or the ordinances of the city of Chelsea.” The judge denied the motion and the defendant was convicted of possession of a class A controlled substance with intent to distribute. On appeal, he challenged the judge’s rejection of his argument for suppression of the drugs.

In its decision, the Appeals Court stated that “[t]he defendant’s argument fails for several reasons. First and foremost, the defendant overlooks the testimony by Sergeant Dunn, credited by the judge, that drinking an alcoholic beverage on the street or a sidewalk in the city of Chelsea is a criminal offense. In Massachusetts, the contents of a municipal bylaw or ordinance may be proved by oral testimony…. Here, … Dunn testified without objection that in the city of Chelsea, drinking alcohol in public is an arrestable offense. See G.L. c.272, §59 [] (providing that person who, in public, willfully violates ordinance ‘the substance of which is the drinking or possession of alcoholic beverage,’ is subject to arrest)…. The detention of the defendant for purposes of conducting a check for active warrants therefore was valid, because … Dunn had probable cause to arrest the defendant for violating the ordinance prior to his detention…. Accordingly, … Dunn’s subsequent arrest of the defendant based on an outstanding warrant was valid.”

Possession with intent to distribute a class A substance is a serious charge. If you or a loved one is similarly charged, you will need an experienced attorney to evaluate the evidence, research the relevant law, and persuasively argue the motion to suppress to the court.  Attorney Daniel Cappetta is well versed in search and seizure law and has successfully litigated numerous motions to suppress.  Call him for a free consultation today.

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