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18-P-253 Appeals Court

COMMONWEALTH vs. RAFAEL SANTANA.

No. 18-P-253.

Middlesex. January 2, 2019. - May 8, 2019.

Present: Green, C.J., Shin, & Englander, JJ.

Controlled Substances. Motor Vehicle. Evidence, Constructive 

possession. Practice, Criminal, Required finding.

Complaint received and sworn to in the Lowell Division of 

the District Court Department on September 19, 2016. 

The case was tried before J. Elizabeth Cremens, J. 

Philip Weber for the defendant.

Gregory J. Galizio, Assistant District Attorney, for the 

Commonwealth.

ENGLANDER, J. The defendant was convicted by a jury of 

possession of cocaine based on a theory of constructive 

possession, and the issue before us is the sufficiency of the 

proof. The cocaine was found in the glove compartment of a car 

in which the defendant was the driver and sole occupant, after 

the defendant was pulled over for a traffic violation. The car 
2

was not registered to the defendant, and the cocaine was viewed 

by the police officer only because, after he asked the defendant 

for his license and the vehicle registration, the defendant 

opened the glove compartment to look for the registration. The 

totality of the evidence was not sufficient to find that the 

defendant had previous knowledge of the cocaine beyond a 

reasonable doubt, and we accordingly reverse.

Background. Based on the evidence at trial, the jury could 

have reasonably found the following. In the early morning of 

September 18, 2016, the defendant was driving a Honda automobile 

on a street in Lowell. The Honda strayed into the opposite 

travel lane, almost striking a police vehicle being driven by 

Officer Jerome Moore. Officer Moore thereafter stopped the 

Honda and approached the defendant. Officer Moore testified as 

follows:

Q.: "Now, when you encountered the [d]efendant, did you 

ask him about the driving?"

A.: "I did."

Q.: "And what did he say?"

A.: "He said he didn't know what I was talking about, and 

that he had just replaced the axles in his car."

Q.: "And did you ask him for his license or registration?"

A.: "I did."

Q.: "And what did he do when you asked him that?"
3

A.: "He opened up the glove box, to grab the 

registration."

Q.: "And while he was opening up the glove box, did you 

see anything in the glove box?"

A.: "Yes."

Q.: "And what was that?"

A.: "It was a bag, a fairly small bag of white powdery 

substance, sitting on the top of all the paperwork."

Q.: "And at that point, what did it appear to be?" . . .

A.: "It appeared to be cocaine."

Q.: "And after you saw that bag, did you ask the 

[d]efendant about it?"

A.: "I -- I did."

Q.: "And what did he say?"

A.: "He didn't say anything. He started putting papers 

over it, so I couldn't see it."

Q.: "And at this point, what did you do?"

A.: "I -- I ordered him out of the vehicle."

Subsequent searches of the Honda also revealed a digital 

scale and an unfired nine millimeter round in the glove 

compartment, and a nine millimeter pistol located under the 

passenger seat.1 Thirteen rounds of ammunition were found inside 

a backpack in the trunk. In the rear seat of the Honda there 

 

1 The Commonwealth does not suggest that the pistol was in 

plain view. It was discovered during the inventory search of 

the car.
4

were two car seats. There was also a "pink child sized guitar"

in the passenger compartment, and clothing on the floor.

On cross-examination Officer Moore testified that the 

defendant pulled over without incident, that the defendant 

complied with his instructions, and that the defendant did not 

appear agitated or "to be concealing anything." The officer 

also confirmed that he did not ask the defendant to open the 

glove compartment, but rather the defendant did so "in response 

to [the officer's] question to produce the registration."

The car was not registered to the defendant, but to one 

Francesca Rosario, who resided on "Pine Street," presumably in 

Lowell. The defendant had a different address, on Cork Street.

The prosecution introduced no additional evidence that linked 

the defendant to any of the items in the car.

The defendant was arrested and charged with carrying a 

firearm without a license, possession of ammunition without a

firearm identification card, and possession of a class B drug 

with intent to distribute.2 At trial, the judge denied the 

defendant's motion for required findings, which argued among 

other things that the Commonwealth had not adduced sufficient

evidence to establish constructive possession. The jury found 

 

2 The Commonwealth points out that, after the officer 

advised the defendant that he would be charged with drug 

trafficking, the defendant swore at the officer. We do not 

consider this evidence probative of the possession charge.
5

the defendant not guilty of possession with intent to 

distribute, but guilty of the lesser included offense of 

possession of cocaine. The jury also returned not guilty 

verdicts on the gun and ammunition charges.

Discussion. The test for sufficiency of the evidence is

"whether, after viewing the evidence in the light most favorable 

to the prosecution, any rational trier of fact could have found 

the essential elements of the crime beyond a reasonable doubt." 

Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), quoting 

Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

A person who is not in actual possession of contraband can 

nonetheless be found in constructive possession, and therefore 

guilty of a possession crime. Commonwealth v. Ortega, 441 Mass. 

170, 174 (2004). To show constructive possession, the 

Commonwealth must show that the defendant knew of the existence

of the item, and had the ability and intent to exercise dominion 

and control over it. Commonwealth v. Brzezinski, 405 Mass. 401, 

409 (1989). These elements can be shown by circumstantial

evidence, and the reasonable inferences from such evidence.

Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 426 (1985). 

However, mere presence in proximity to the contraband is not 

sufficient to establish constructive possession. Commonwealth

v. Romero, 464 Mass. 648, 653 (2013), citing Commonwealth v.

Albano, 373 Mass. 132, 134 (1977). Rather, our cases emphasize 
6

the need for "other incriminating evidence" -- a so-called "plus 

factor" -- in addition to evidence of proximity (quotation and 

citation omitted). Ortega, supra. This additional evidence 

must support an inference, among others, that the defendant had

knowledge of the contraband. The requirement that the 

Commonwealth demonstrate a plus factor holds true even where the 

contraband is found in a car and the defendant is the car's sole 

occupant. See Commonwealth v. Almeida, 381 Mass. 420, 423 

(1980) (evidence of constructive possession insufficient where 

it demonstrated only that defendant was lone occupant of vehicle 

containing contraband). See also Alicea v. Commonwealth, 410 

Mass. 384, 387-388 (1991).

As the cases recognize, a sufficiency of the evidence 

evaluation for constructive possession is necessarily factspecific, and turns on the totality of the evidence. Albano, 

373 Mass. at 134. But while the inquiry is fact-specific, that 

does not mean that the evaluation is without guiding principles. 

There is a body of case law on the subject, and that case law 

illuminates the importance and the adequacy of various plus 

factors. Here the critical question is whether there was 

sufficient evidence of knowledge -- that the defendant knew of 

the presence of the cocaine. The factors that may have 

relevance to that inquiry include, among others, who owned or 

had control over the car, whether anyone else was present in the 
7

car, whether the contraband was in plain view or hidden, the 

demeanor of the defendant, including whether he took any evasive 

actions, and any additional facts that tend to show that the 

defendant knew of, or had control of, the contents of the car. 

See Commonwealth v. Sinforoso, 434 Mass. 320, 328-329 (2001) 

(defendant's behavior and demeanor provided additional 

incriminating evidence); Commonwealth v. Bienvenu, 63 Mass. App. 

Ct. 632, 638-639 (2005) (defendant owned vehicle and contraband 

was in plain view).

In this case the Commonwealth cites three particular

aspects of the evidence: first, the defendant was the driver 

and sole occupant of the car; second, the defendant stated that 

he had just replaced the axles in "his" car; and third, after 

the officer asked about the bag of "white powdery substance" in

the glove compartment, the defendant acted evasively by trying 

to cover the bag with papers.

Under the case law, this evidence does not suffice to 

establish constructive possession. First, the fact that the 

defendant was the driver and sole occupant of a car in which 

contraband was found, where the contraband was not in plain 

view, is not by itself sufficient. Almeida, 381 Mass. at 423. 

In Almeida, the police found the defendant alone in a parked car 

with the engine running. Id. at 421-422. When the defendant

could not produce the car's registration he was ordered out of 
8

the car, and the police located a gun in the covered center 

console of the car, not in plain view. Id. at 422. The 

evidence showed that the car was owned by someone other than the 

defendant. Id. The Supreme Judicial Court ruled on these facts 

that there was insufficient evidence that the defendant had 

knowledge of the gun. Id. at 423.

The Commonwealth suggests that in this case the calculus is 

different, because unlike in Almeida, here the defendant 

indicated that he was the "owner" and "caretaker" of the car. 

We do not find the distinction persuasive here. The car was not 

registered to the defendant, but to a woman with a different 

address than his, and as to whom there was no evidence of any 

connection. As a factual matter, the Commonwealth rests its

ownership or caretaker contention entirely on Officer Moore's 

testimony that when first pulled over, the defendant stated that 

he had just replaced the axles in "his" car. But while the 

defendant's replacement of the axles on the car may show that 

his connection to the car was more than transient, it falls

short of showing the sort of exclusive or primary control that 

would warrant a conclusion that he necessarily had knowledge of 

the contents of the glove compartment. This is especially so 

given the presence of car seats and a child's toy, and the 
9

absence of evidence that the defendant had children.3 And in any 

event, in Romero, the Supreme Judicial Court warned against 

concluding that presence in and ownership of a car in which 

contraband was found is sufficient, without more, to establish 

constructive possession: "[o]ur extended discussion of the 

defendant's ownership and operation of the vehicle stems from a 

concern that naked reliance on these factors comes 'perilously 

close to endorsing guilt by presence at the scene of contraband, 

a concept we have disavowed.'" Romero, 464 Mass. at 658, 

quoting Commonwealth v. Sespedes, 442 Mass. 95, 102 (2004).

The only additional fact the Commonwealth can rely on is 

the defendant's effort to conceal the bag of cocaine under some 

papers, after the defendant opened the glove compartment and 

after Officer Moore asked him about the bag. The Commonwealth 

urges that this is "evasive behavior" of the type relied on in 

the cases as a sufficient plus factor, but we do not agree. 

Here the defendant's actions did not provide sufficient evidence

of knowledge of the cocaine in advance of when the cocaine was 

revealed by opening the glove compartment. To the contrary, 

 

3 As we have observed, the evidence indicated that the 

defendant did not own the car, as it was registered to someone 

else. Moreover, even if the defendant had used a possessive 

pronoun to describe the car (e.g., "my car"), such a statement 

still would have been ambiguous, in context, as to whether the 

defendant was stating that he owned the car, or merely that he 

was driving it.
10

there was no evidence of any action by the defendant that showed 

knowledge in advance -- no agitation, no furtiveness, and no 

effort to conceal. Notably, it was the defendant himself who 

exposed the cocaine by choosing to look in the glove compartment 

-- he was not directed to do so. In these circumstances we do 

not think the defendant's action in attempting to cover the 

cocaine with paper, after the officer pointed it out, suffices 

to tip the scales. The defendant reacted to seeing the cocaine 

at the same time the officer did; the defendant's actions in 

these circumstances do not give rise to a reasonable inference, 

sufficient to support guilt beyond a reasonable doubt, that the 

defendant had knowledge of the cocaine beforehand.

Our conclusion in this regard is bolstered by the court's 

reasoning in Alicea. There the defendant also was the sole 

occupant of a car that did not belong to him, and he was stopped 

for a traffic violation. Alicea, 410 Mass. at 385. After 

consenting to a search of the car, the defendant's demeanor 

changed "remarkably" when the State police trooper began looking 

inside the driver's side door frame. Id. at 386. After the 

trooper removed a package wrapped in duct tape and began walking 

toward the defendant, the defendant began to cry and said, "It's 

not mine, it's not mine." Id.

On these facts the Alicea court first noted that the 

defendant's behavior after the trooper found the package and 
11

showed it to him, although "relevant," would not have been 

sufficient evidence to establish constructive possession: "[w]e 

find little support for a finding that the defendant knew of the 

concealed heroin from . . . his reaction when the first trooper 

showed the package to him." Alicea, at 387. Instead, although 

the court went on to find sufficient evidence to support 

constructive possession, it did so only because, before the 

drugs had been located, the defendant showed "obvious agitation" 

as the trooper's search moved closer to their hiding place. Id. 

The court ruled that this behavior "tended to show that [the 

defendant] knew that there was cause for alarm." Id. at 388.

This case is not Alicea, as it lacks any evidence of 

"agitation" or "change in demeanor" before the drugs were 

located. Id. at 387-388. Instead, this case presents only the 

facts that Alicea said were not sufficient.4 

The conviction of possession of cocaine must be reversed. 

We are not unmindful that the jury reached a contrary 

conclusion, but it is inherent in a sufficiency of the evidence 

review that, on rare occasions, a jury verdict will be set 

 

4 We do not mean to imply that any and all actions by the 

defendant after contraband is identified would be insufficient 

to establish constructive possession. Each set of facts must be 

reviewed in totality. Certainly some post-discovery conduct --

such as flight or false statements -- could be highly relevant 

evidence of guilt. Commonwealth v. Sabetti, 411 Mass. 770, 778 

(1992).
12

aside. Jackson, 443 U.S. at 317 ("a properly instructed jury 

may occasionally convict even when it can be said that no 

rational trier of fact could find guilt beyond a reasonable 

doubt"). While a close case, here the evidence of possession 

that the Commonwealth brought forward at trial was not 

sufficient.

Accordingly, the judgment is reversed, the verdict is set 

aside, and judgment shall enter for the defendant.

So ordered.