COMMONWEALTH vs. ISMAEL M. ROSA (and a companion case [Note 1]). [Note Star]

HALE, C.J. The defendants were convicted after separate jury trials of violating the heroin trafficking statute, G. L. c. 94C, Section 32E(c), inserted by St. 1980, c. 436, Section 4. Each received a sentence of from five to seven years at M.C.I., Walpole.

1. The defendants' motions to suppress the introduction of sixty-five glassine bags containing a heroin mixture were properly denied. The defendants argue suppression was required because the search warrant was issued on less than probable cause, [Note 2] and put this argument in terms of the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 112-116 (1964), and Spinelli v. United States, 393 U.S. 410, 415-416 (1969). See Commonwealth v. Vynorius, 369 Mass. 17, 20 (1975). However, the United States Supreme Court in Illinois

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v. Gates, 462 U.S. 213 (1983), recently adopted a "totality of the circumstances" approach in which the informant's veracity and basis of knowledge are still important but are not elements indispensible to a finding of probable cause where the tip is adequately corroborated. Commonwealth v. Upton, 390 Mass. 562, 568-574 (1983). Commonwealth v. Nowells, 390 Mass. 621, 626 (1983).

Regardless of which of these tests is applied in this case, the affidavit here was more than adequate to support a finding of probable cause. Understandably, neither defendant contests the credibility of the informant (contrast Upton, supra at 569-570) for, as the affidavit avers, the informant had given reliable information in the past which had led to one conviction and to an arrest for violations of drug laws. The first-hand character of the informant's knowledge is evident from the face of the affidavit. ("The informant further stated that Rojas told him he would be back late tonight or early in the morning . . . and that the informant would be able to purchase heroin at that time. When he last saw Rojas he [Rojas] was operating a 1974 Chevrolet Malibu station wagon green in color." [Emphasis added.]) Contrast Commonwealth v. Flaherty, 6 Mass. App. Ct. 876, 877 (1978) (nothing in tip itself showing basis of knowledge). We may fault the affidavit for failing to specify the precise time and place of the offer, but that is not dispositive (see Commonwealth v. Anderson, 362 Mass. 74, 76 [1972]), for the information, particularly as to the departure of the vehicle, was exceptionally detailed (departure time of 1:45 P.M. on July 17th, description of vehicle, exact registration number). Contrary to the defendants' assertions, the existence of a controlled delivery is not essential to justify the issuance of an anticipatory warrant. See, e.g., Illinois v. Gates, 462 U.S. at 217. Nor need an affidavit always be corroborated by police investigation. See Commonwealth v. Montanague, 5 Mass. App. Ct. 889 (1977). At bottom, the facts alleged in the affidavit -- which was in large part comprised of Rojas' own statements to a reliable informant giving some detailed matter -- created a substantial probability

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that the seizable property would be in the vehicle when searched. See Commonwealth v. Soares, 384 Mass. 145, 155 (1981); Commonwealth v. Weeks, 13 Mass. App. Ct. 194, 197-199 (1982).

Moreover, the search could be justified on the alternative basis (see Commonwealth v. White, 374 Mass. 132, 140 [1977], aff'd by an equally divided Court, 439 U.S. 280 [1978]), that probable cause and exigent circumstances existed justifying a warrantless search of the vehicle. See Commonwealth v. King, 389 Mass. 233, 246 (1983). The reliable informant information was corroborated the next morning when police officers, who were conducting a surveillance for Rojas, sighted a green Chevrolet Malibu station wagon at a time, and headed in a direction, predicted by the informant. Even if there had previously been a question as to probable cause, it disappeared at the time Lieutenant Blouin, the affiant, recognized Rojas in the vehicle. See Draper v. United States, 358 U.S. 307 (1959). The ensuing search fell within the scope of a permissible automobile search. See United States v. Ross, 456 U.S. 798, 823-825 (1982). King, supra at 247.

2. Rojas' motion for a required finding of not guilty challenged the Commonwealth's evidence on two elements of an offense under G. L. c. 94C, Section 32E(c): knowledge and possession. "Possession implies `control and power,' . . . exclusive or joint, . . . or, in the case of `constructive possession,' knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Deagle, 10 Mass. App. Ct. 563, 567 (1980) (citations omitted). While constructive possession may be proven by circumstantial evidence, "to warrant a finding of possession of contraband, `it is not enough to place the defendant and the contraband in the same car'." Id. at 566-567, and cases cited.

Here, there was evidence of the following at both trials: (1) at the time the vehicle was stopped by New Bedford police, four individuals sat in the vehicle -- Rosa (driver), his girlfriend (front passenger's seat), Rojas (back seat behind driver) and his girlfriend ("luggage area in back of

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seat"); (2) a manila package containing ninety-two grams of a heroin mixture was found in the panel of the driver's door; (3) the panel had been disassembled during the officer's search with the use of a Phillips head screwdriver found in the "rear tire well"; and (4) Rojas had rented the vehicle the previous day from a New Bedford rental agency. In addition, evidence of inculpatory statements that could have been found to have been made by Rojas were admitted at his trial. At that trial, a New Bedford officer testified that when he approached Rojas to conduct a "skin search," Rojas said "we had all the drugs -- we had all the drugs that were in the car."

The jury were warranted in finding from Rojas' single statement that Rojas knew of the existence and contents of the manila envelope. Furthermore, that Rojas had rented the car the day earlier, was present in the car when the contraband was found, and later made a statement from which knowledge could be inferred, warranted the jury in concluding that Rojas possessed the contraband. See Commonwealth v. Albano, 373 Mass. 132, 134-135 (1977); Commonwealth v. Gray, 5 Mass. App. Ct. 296, 299 (1977). Contrast Commonwealth v. Williams, 3 Mass. App. Ct. 370 (1975); Commonwealth v. Duffy, 4 Mass. App. Ct. 655 (1976). After viewing the evidence in the light most favorable to the prosecution, a rational jury could have found the essential elements of knowledge and possession beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).

3. Rosa contends that use of the term "mixture" to define the offense proscribed by G. L. c. 94C, Section 32E(c), is unconstitutionally vague because "a grain of heroin on a stretch of beach could make the entire area subject to controlled substance legislation" and because the "statute does not suggest whether components of the mixture must combine in a new form or may retain their separate properties." However, in this case there was evidence suggesting that the quantitative percentage of the mixture was 2.2% heroin and that the mixture was useable as heroin in this potency. Thus, "[a]t

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least as applied to these defendants, we see no unconstitutional ambiguity in the word `mixture' in the statute." Commonwealth v. Beverly, 389 Mass. 866, 869 (1983). See Lavelle v. State, 250 Ga. 224, 226 (1982).

4. Rojas' equal protection argument was disposed of adversely to him in Beverly, supra at 869.

5. Among other contentions in these appeals, the defendants argue that the penalty provision of clause 1 of Section 32E(c), as inserted by St. 1980, c. 436, Section 4, under which each defendant was sentenced, violates due process. See now St. 1982, c. 650, Section 11. Applying the reasoning of Commonwealth v. Marrone, 387 Mass. 702, 704-707 (1982), which invalidated clause 3 of the same section, we agree that "it would be sheer conjecture on our part to conclude that the Legislature meant the [five-year] term to be either the maximum term or the minimum term." Id. at 704. See Commonwealth v. Bongarzone, 390 Mass. 326, 335 (1983); Commonwealth v. Varney, 391 Mass. 34, 45-47 (1984). Compare Commonwealth v. Burgos, 390 Mass. 763, 764-765 (1984). The same rationale which dissuaded the Marrone court from reading only the word "maximum" into clause 3 applies with equal force to reading only the word "minimum" into clause 1. Also, the Commonwealth's prescription to cure the ambiguity in clause 1 (that clause 1 "can only be construed as a mandatory minimum sentence") carries the side effect of rendering clause 1 superfluous to the main paragraph. The defendants succeed on this issue, but not on any other. Accordingly, the verdicts are to stand but we vacate the sentences and remand both cases for resentencing under the general provisions of G. L. c. 94C, Section 32E(c), inserted by St. 1980, c. 436, Section 4. See Commonwealth v. Beverly, 389 Mass. at 873.

So ordered.