(concurring in part and dissenting in part, with whom Marshall, C.J., joins). I concur in the court’s holding that factually inconsistent verdicts rendered by a judge in a jury-waived trial are insufficient alone to create an inference of irregularity requiring reversal or a new trial. I also agree that a judge rendering such verdicts should support them with findings explaining the apparent inconsistency; and that while the judge did not follow that course of action in this case, reversal is not required on that ground.
Reversal is required, however, because the evidence as to each of these three defendants (Nelson Gonzalez, Jonathan S. Maldonado, and Mariano L. Gomez) is insufficient to prove that they constructively possessed the heroin found in the apartment in which they were arrested. In concluding otherwise, the court stretches our precedent to the breaking point (shedding itself of precedent to the contrary); devalues the protections afforded by our law of constructive possession; and undermines the principle that “[mjere presence in the vicinity of a controlled substance, even if one knows that the substance is there, does not amount to possession.” Commonwealth v. Booker, 31 Mass. App. Ct. 435, 437 (1991). See Commonwealth v. Boria, 440 Mass. 416, 418-419 (2003) (“Living in a place where drugs are in plain view and being sold, or associating with someone who controls the contraband is not enough to prove constructive possession”). I respectfully dissent.
The evidence is not complicated. The police received information that drugs were being sold from apartment 4L, and began an investigation. The building was placed under surveillance for a ten to fifteen day period, and a police informant made several purchases of cocaine at the apartment from an individual identified as Geraldo Ruiz. Ruiz is not one of the defendants in this case. There is no evidence that any of the defendants were present in the apartment when the sales were made, nor is there evidence that any were observed at or near that location while it was under surveillance. The police obtained a warrant to search apartment 4L, naming as its targets Ruiz; Jorge Davila, a tenant of the apartment subsequently charged with trafficking and possession along with the defendants1; and an unidentified “slender” *157Hispanic man who was present in the apartment with Ruiz at the time the sales were made to the informant. The Hispanic man is not one of the defendants. Several hours before executing the warrant, the informant was sent back to the apartment to make an additional purchase, which he did. The defendants were again not present nor observed when that purchase was made.
The only evidence connecting the defendants to the apartment was their presence there when the police broke down the door at 6:30 p.m. on August 11, 2004. They were, at that time, in the living room watching television with five other men. One of the five, Emilio Garcia, had a key to the apartment in his possession. A second, Erik Montalban, had a key to a locked closet in the hallway outside the apartment in which drugs and packaging tools and materials were discovered in the course of the search. A third, Davila, was a tenant of the apartment.
The defendants did not have any drugs on their persons when searched. The heroin, which the defendants are charged with possessing with intent to distribute, was found concealed in two places in the living room. A covered bucket contained seventy-one glossine packets of heroin; it was located on the floor between the end of one of two couches in the room and the comer of the room.2 A separate tin box contained ten packets of heroin; it was found behind a couch, directly behind the place where Garcia (the person with the apartment key) was sitting when the police burst into the apartment. There was no evidence that the defendants were sitting (or standing) anywhere near the two covered containers in which the packets of heroin were eventually found. The only link between the defendants and the heroin is the same evidence linking them to the apartment: their presence there at the time of the warrant’s execution.
The Commonwealth argues, and the court agrees, that the cash that the defendants had in their possession links them to the heroin. Neither this court nor the Appeals Court has ever concluded that presence and cash are, without more, sufficient to establish constmctive possession of an illegal substance, that is, knowledge of the presence of drugs with the ability and *158intention to exercise dominion and control over the property. See, e.g., Commonwealth v. Navarro, 39 Mass. App. Ct. 161 (1995) (evidence of constructive possession of drugs found in apartment of another, where defendant was staying, insufficient even though she had small quantity of similarly packaged and labeled drugs and $460 in cash in her pocketbook located in same room where large quantity of drugs found); Commonwealth v. Caterino, 31 Mass. App. Ct. 685 (1991) (evidence that defendant had $735 in his possession, was present, and had knowledge of drugs stored in apartment insufficient to establish constructive possession).
Cases in which cash has been considered a factor in establishing constructive possession have involved additional evidence of dominion and control not present here.3 See Pena v. Commonwealth, 426 Mass. 1015 (1998) (evidence sufficient where petitioner was only person present in apartment he shared with brother, large quantity of cash, drugs, and drug sale records were concealed in bedroom where he was found lying down, and there was $1,600 of cash in his wallet); Commonwealth v. Brzezinski, 405 Mass. 401, 410 (1989) (evidence of constructive possession sufficient where defendant rented apartment, was present when drugs found both in plain view and concealed there, ran to closet where most of cocaine and cocaine paraphernalia were hidden when police entered apartment to execute search warrant, and had $450 hidden inside his underwear “between his buttocks”); Commonwealth v. Frias, 47 Mass. App. Ct. 293 (1999) (evidence sufficient where police executed *159“no knock” warrant at 10 p.m. at very small apartment, finding three men, none of whom “lived” there, on bed just inside door, sorting and dividing up cash, in sight of apparatus used to cut and bag cocaine for distribution, and within reach of large quantity of cocaine [$30,000 to $40,000 worth], where expert testimony established that setup of apartment was that of midlevel cocaine distribution network, or “cocaine mill”).4
The Commonwealth points to evidence that the apartment was “sparsely” furnished, a point relied on by the court. However, there was evidence that one bedroom contained a bed5; the kitchen, a table and chairs; and the living room, at least two couches and a television set. While perhaps more utilitarian than luxurious, no weight can appropriately be given to it in the circumstances of this case, at least with respect to these three defendants. In Commonwealth v. Arias, 29 Mass. App. Ct. 613, 619 (1990), S.C., 410 Mass. 1005 (1991) {Arias), presence and knowledge were established, and the court went on to conclude that “[t]here could hardly be more potent evidence of an intention by the defendants to exercise dominion and control of the premises and its contents [drugs] than their presence at an early morning hour [5:45 a.m.] in a heavily barricaded apartment, sparsely furnished and in the absence of either the owner or the tenant.”6 In this case, the hour is 6:30 p.m. (when friends often socialize), the door was not barricaded, a tenant and at least one other person with keys to the apartment were present, and the living room was sufficiently furnished to permit eight people to watch television. In Arias, supra at 620, the court noted that the *160evidence “cut heavily against” any inference that the defendants were merely casual visitors to the apartment. That is decidedly not the case here.
The Commonwealth also relies on evidence that the police heard “scurrying” in the seconds between announcing their presence and breaking down the door. Here too the court accepts that the evidence supports a conclusion of constructive possession. While the sounds may have given the officers a reason to break down the door, there is no evidence that these defendants caused the scurrying sound. There were, after all, five other individuals in the room, several of whom (not these defendants) had drugs, packaging material, and keys in their physical possession, which, one could reasonably infer, they were attempting to dispose of when the police entered the room. The Commonwealth also contends that the judge could infer from the evidence of scurrying sounds that the two containers (in which the heroin was concealed) were likely open and their contents in plain sight of all the occupants before the police entered the apartment. This inference is mere speculation. In any event, it is principally relevant to the knowledge prong of constructive possession, rather than to whether the defendants were able to and intended to exercise dominion and control over the contents.
The Commonwealth points to the heavy metal chains wrapped in electrical tape that could have been used to fortify the door, if attached, which they were not. This is, of course, probative on the question whether the apartment may have been used for illegal purposes, which it plainly was by someone. It is not evidence that these defendants, in contrast to those who were observed selling drugs there, those who lived there, and those who had keys to the apartment, controlled the drugs found concealed there.7 Cases in which the existence of barricades has been considered probative on the question whether those in the apartment controlled drugs found there have all involved barricades that were in place when the police arrived. See Commonwealth v. Velasquez, 48 Mass. App. Ct. 147 (1999) (after barricade broken down, defendant blocked police from entering bathroom where he was flushing *161toilet); Arias, supra at 614-615 (after barricaded door broken down at 5:45 a.m., police found five men, none of whom lived there or was employed, in midst of drugs and mixing materials). See also Commonwealth v. Brown, 34 Mass. App. Ct. 222 (1993) (sufficient evidence of constructive possession with respect to one guest of tenant in barricaded apartment from which drug sales had been made, whom police found disposing of drugs in toilet and bathtub; however, evidence of intention and ability to control drugs was not sufficient as to another guest who was staying there, was present when police broke down barricade, was aware of drug sales and presence of cocaine, but was not otherwise linked to drugs found in apartment).
In sum, the cases principally relied on by the court, Pena v. Commonwealth, 426 Mass. 1015 (1998); Commonwealth v. Velasquez, supra; Commonwealth v. Frias, 47 Mass. App. Ct. 293 (1999); Commonwealth v. Antonio, 45 Mass. App. Ct. 937 (1998)8; and Arias, supra, all presented circumstances notably distinguishable from the present cases, and evidence more probative on the question of constructive possession.9 The assessment of the adequacy of the evidence of constructive possession depends greatly on the reasonable inferences that can be drawn from the particular facts and circumstances in each case. Here, however, the evidence presented falls far short of what Massachusetts courts have previously considered adequate to support a conviction on that ground. I respectfully dissent.
At the hearing on a motion to suppress, one of the building’s owners testified that Jorge Davila was a tenant of apartment 4L.
There was testimony from a number of police officers about the configuration of the room. Although not always consistent, there appeared to be a consensus that there were at least two couches in the living room, one of which is occasionally referred to as a “love seat.”
The court disavows the holdings in several Appeals Court cases. Ante at 149-150. See Commonwealth v. Navarro, 39 Mass. App. Ct. 161 (1995); Commonwealth v. Caterino, 31 Mass. App. Ct. 685 (1991). See also Commonwealth v. Amparo, 43 Mass. App. Ct. 922, 923 (1997), quoting Commonwealth v. Caterino, supra at 689 (evidence insufficient where defendant in possession of pager arrested along with two others fleeing from apartment where drugs found concealed; and no evidence that defendant “rented, occupied, spent a great deal of time at or exercised control over the apartment or its contents”). The Amparo court repeated that “[b]ehavior tending to show that the defendant knew of the presence of drugs in the apartment or that he was guilty of some offense is not sufficient, by itself, to prove that he had the ability and intent to control the drugs.” Commonwealth v. Amparo, supra at 924, quoting Commonwealth v. Cruz, 34 Mass. App. Ct. 619, 623 (1993). I would not disavow these cases. In any event, the evidence of constructive possession in each of them is stronger than the evidence against the defendants here.
In Commonwealth v. Arias, 29 Mass. App. Ct. 613, 614-615 (1990), S.C., 410 Mass. 1005 (1991) (Arias), the defendants were in possession of cash, among other evidence, when police broke down their barricaded door at 5:45 a.m. As the court noted, the Commonwealth produced evidence that the defendants were “unemployed” at the time. Id. at 615 n.4. The Commonwealth introduced no evidence as to the employment status of the defendants in the present case. Mariano Gomez testified that he was a mechanic and owned and operated a garage, which also engaged in towing and used automobile sales.
There was a second bedroom about which the Commonwealth offered no evidence.
In Arias, supra at 614-615, the apartment’s bathroom was set up with an apparatus to facilitate the quick disposal of drugs, and persons in the apartment were seen throwing drugs out the window as the police forced their way into the apartment.
Common sense would suggest that if the eight men in the apartment were dividing up the proceeds from drug sales or packaging the drugs when the police arrived, the chains would have been attached. Cf. Arias, supra.
In Commonwealth v. Antonio, 45 Mass. App. Ct. 937 (1998), the court found that the evidence of constructive possession was sufficient where the defendant was present in a sparsely furnished, highly fortified apartment containing his personal belongings and papers in close proximity to packaged cocaine and cash, and where he attempted to shut the front door to keep police out, and to escape out the back when they successfully gained entry.
The court also cites Commonwealth v. DeJesus, 48 Mass. App. Ct. 911 (1999), which is not a constructive possession case. In that case, the defendant was tried on the theory that he was a joint venturer in a drug selling operation. The evidence supported a finding that the defendant acted as the lookout for drug sales made from an apartment where he was found with three other occupants, along with heroin packets, packaging material, and money.