2 Mass. App. Ct. 910

January 7, 1975

The defendant was tried on an indictment charging possession of a controlled substance (heroin) with intent to distribute it. A judge, at a jury-waived trial, found the defendant guilty and sentenced him. The case comes to us on a bill of exceptions presenting, among other things, the defendant's exception to the denial of his motion for a directed verdict, which we treat as a motion for a finding of not guilty. The bill discloses that pursuant to a warrant the police searched an apartment in Boston which was occupied by two women and five or six children of one of them. The police seized 106 bags of heroin from the pocket of a man's suit coat hanging in the bedroom closet. In that coat were personal papers belonging to the defendant. Other papers were seized from a bureau, some of which bore the defendant's name. None of the papers bore the address of the apartment, and the most recent of them bore a date almost five months before the date of its seizure. The defendant had not been observed at the apartment for about two months prior to the search. Contrast Commonwealth v. Fields, ante, 679 (1974); Commonwealth v. Lee, ante, 700 (1974). A briefcase found in the bedroom contained heroin, paraphernalia for its processing, and a checkbook belonging to one of the women. When arrested eight days after the search, the defendant admitted that his girlfriend lived at the apartment and that he had left some of his clothing there. He denied any knowledge of the items seized. We assume that the suit coat belonged to the defendant. Nevertheless, in our opinion, the meager evidence appearing in this record is insufficient to warrant a finding that the heroin was in the possession of the defendant. Commonwealth v. Curry, 341 Mass. 50, 55 (1960). Commonwealth v. Flaherty, 358 Mass. 817, 818 (1971). Williams v. United States, 418 F. 2d 159, 163 (9th Cir. 1969), affd. 401 U.S. 646 (1971). Compare Commonwealth v. Boone, 356 Mass. 85, 87 (1969). Contrast Commonwealth v. Guerro, 357 Mass. 741, 752 (1970); Commonwealth v. Dinnall, 366 Mass. 165, 168-169 (1974); Commonwealth v. Mott,

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ante, 47, 53-54 (1974); Commonwealth v. Xiarhos, ante, 225, 231-232 (1974); Commonwealth v. Gill, ante, 653, 656-657 (1974).

Exceptions sustained.

Judgment for the defendant.