Appeals Court, March 3, 2014

A defendant who is charged with distribution of a controlled substance under General Laws c. 94C, § 32A(a), does not have standing to challenge the warrantless search of the buyer after a hand to hand sale between the two.

After observing a drug transaction, a police officer searched the buyer and found four bags of drugs on his person.  The buyer was placed under arrest for possession with intent to distribute.  Based on the drugs discovered on the buyer, the defendant (the seller) was arrested and charged with distribution. The defendant moved to suppress the drugs found on the buyer, claiming that he has automatic standing to challenge the warrantless search of the alleged buyer relying on Commonwealth v. Amendola, 406 Mass. 592, 601 (1990).

Based on the defendant’s motion to suppress, a District Court judge reported two questions to the Appeals Court:

"(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)?"

The Court answered “no” to the first question concluding that  Commonwealth v. Garcia, 34 Mass. App. Ct. 386, 389-391 (1993) applies and because possession is not an essential element of the crime of distribution, the defendant did not have a possessory interest in the drugs that were found on the buyer’s person.

Because the answer to the first reported question was “no,” the Court did not answer the second reported question.