Commonwealth v. Antobenedetto

Hennessey, J.

(dissenting in part, with whom Kaplan, J., joins). I agree with the majority conclusions that probable cause was not shown here, and that the burden of showing probable cause rested on the Commonwealth in this case involving a warrantless search. I think it is important to emphasize that this case is unusual in that the crime reported over the police radio was not the offence on which the defendant was convicted. This has two aspects. For one thing, the majority ruling here places no substantial new burden of proof on the Commonwealth; corroboration of the radio message in most cases is easily and routinely shown by some of the same evidence which is used *72 to prove guilt. Secondly, since the crime which was proved here is not the one which was broadcast, it is especially important that the report should be corroborated for the reasons discussed in Commonwealth v. Stevens, 362 Mass. 24,27-28 (1972).

Nevertheless I do not agree with the majority’s decision to remand this case for a new trial. In my view it should be ordered that judgments of not guilty be entered. Therefore I respectfully dissent.

The defendant has been convicted of illegal possession of marihuana. I would hold that knowledge (or scienter) is an essential element of that crime. Further, I would hold that the evidence here does not warrant an inference of the requisite knowledge on the defendant’s part.

The majority have declined to rule on this issue because the defendant’s rights were not saved at this jury waived trial by appropriate requests for rulings. In most cases the administration of justice is best served by such careful adherence to rules of procedure. See Commonwealth v. Underwood, 358 Mass. 506, 511-512 (1970). In other cases justice is best served by our examining the issues despite a procedural defect. Commonwealth v. Freeman, 352 Mass. 556 (1967). This is just such a case. To decline to rule here is to emphasize form over substance. If my view of the controlling substantive law is correct, we are unnecessarily remanding the case for another trial. Further, this is not a case where the defendant is raising an appellate issue by way of afterthought. The bill of exceptions shows that defence counsel unequivocally argued, after the evidence was completed, that the government had failed to prove the essential element of knowledge. It follows that the majority’s decision not to reach the issue is based on the mere failure of the attorney to reduce to writing the precise words of his argument. Nor is the evidence on that issue likely to be different, or more fully tried, at a new trial; it is police testimony on which the knowledge issue turns in this case.

Although we have not previously ruled on the issue, I have no doubt that we should require proof of knowledge as a requisite element of a charge of unlawful possession of drugs or narcotics. We have required proof of knowledge as *73 to charges of being present where such substances were kept (Commonwealth v. Buckley, 354 Mass. 508 [1968]), and we have required such proof in other similar cases. Commonwealth v. Murphy, 342 Mass. 393 (1961). Commonwealth v. Clarke, 350 Mass. 721 (1966). Commonwealth v. Palladino, 358 Mass. 28 (1970). Indeed, G. L. c. 94C, § 34, inserted by St. 1971, c. 1071, § 1, the successor statute to the now repealed statute under which the defendant was convicted, requires knowledge as an element.

Where the drugs are found on the defendant’s person, knowledge may be easily inferred, at least in most cases. However, knowledge is proved in this case, if proved at all, by evidence of constructive possession. The substance was seized from the closed glove compartment of the automobile driven by the defendant. Police testimony showed that the vehicle belonged to another person, not present at the time of the arrest and search, and that the defendant had borrowed the automobile approximately one hour earlier.

In my view knowledge cannot rightly be inferred from such facts. The Commonwealth has not made out a case and I would order that judgments of not guilty be entered on the complaints. Many cases in other jurisdictions which have been concerned with constructive possession support this conclusion; in some of these cases it was held that knowledge could not be inferred from evidence substantially stronger than we have in this case. See Davis v. United States, 382 F. 2d 221 (9th Cir. 1967); United States v. Holland, 445 F. 2d 701 (D. C. Cir. 1971); United States v. Bonham, 477 F. 2d 1137 (3d Cir. 1973); United States v. Davis, 346 F. Supp. 405 (W. D. Pa. 1972); Thompson v. United States, 293 Atl. 2d 275 (D. C. C. A. 1972); Franklin v. Commonwealth, 490 S. W. 2d 148 (Ky. 1973); Crisman v. Commonwealth, 197 Va. 17 (1955). Cf. Am. Law Inst., Model Penal Code, § 2.01 (4) (Proposed Official Draft, May 4,1962).