Commonwealth v. Brennan

• Decision Date: 21 December 2018
• Docket Number: SJC-12518
• Citation: 112 N.E.3d 1180,481 Mass. 146
• Parties: COMMONWEALTH v. Francis T. BRENNAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

481 Mass. 146

112 N.E.3d 1180

COMMONWEALTH

v.Francis T. BRENNAN.

SJC-12518

Supreme Judicial Court of Massachusetts, Plymouth..

Argued October 4, 2018

Decided December 21, 2018

David Cutshall, Assistant District Attorney (Gail M. McKenna, Assistant District Attorney, also present) for the Commonwealth.

Sabrina E. Bonanno (Richard J. Sweeney also present), Quincy, for the defendant.

Kevin M. Davis, for Licensed Private Detective Association of Massachusetts, amicus curiae, submitted a brief.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.

CYPHER, J.

A complaint issued against the defendant, Francis T. Brennan, charging him with two counts of criminal harassment in violation of G. L. c. 265, § 43A. The charges stem from allegations that he was using two global positioning system (GPS) devices to track the movements of a married couple he had never met before, to whom we shall refer as J.D. and J.H.¹ After holding two nonevidentiary hearings, a District Court judge allowed the defendant's motion to dismiss. The judge ruled that the complaint did "not allege three qualifying acts to support a charge of criminal harassment as to either named victim." The Commonwealth appealed, and we transferred the case to this court on our own motion. On appeal, the Commonwealth contends that the complaint supplied probable cause to charge the defendant with two counts of criminal harassment. We conclude that the series of acts outlined in the complaint that are attributed to the defendant satisfy the elements of criminal harassment against J.D. and J.H. The order dismissing the complaint is reversed.²

1. Background. "Our review of the judge's order of dismissal is confined to the four corners of the application for complaint, which in this case" consists of the police reports detailing the facts underlying the defendant's arrest. Commonwealth v. Ilya I., 470 Mass. 625, 626, 24 N.E.3d 1048 (2015). We summarize the police reports that were attached to the complaint. In May, 2016, J.D. discovered a GPS device attached to the undercarriage of his wife's vehicle and reported the discovery to the Hingham police department. J.D. was concerned because he could not think of anyone who would be monitoring his or his wife's location. The police took the GPS device and advised J.D. to check his own vehicle for a similar device. Upon returning home, J.D. discovered a second GPS device on his vehicle where the spare tire would be located.

The following day, police interviewed J.D. and J.H. at length, together and separately. Police questioned the couple about their finances, careers, and potential infidelity. No information, however, was gathered as to who attached the GPS devices to their vehicles.

The police contacted the manufacturer of the GPS device, Brickhouse Security (Brickhouse), but were unable to obtain the corresponding customer information. Because J.D. was a member of the United States Coast Guard, he reported the event to Special Agent Jeremy Baldwin of the United States Coast Guard's investigative service. Baldwin obtained a subpoena to gather information from Brickhouse. Brickhouse informed him that the defendant was the owner of the GPS devices and that the GPS devices were shipped to the defendant in December 2015.

Baldwin and the police then interviewed the defendant. At first, he denied any knowledge of who placed the GPS devices on J.D. and J.H.'s vehicles. He stated, "[L]et's just say things got a little out of hand due to some prior circumstances, it[']s moral, it's not anything other than that, his wife might want to start checking his phone." The defendant made statements suggesting that J.D. was having an affair and that the defendant was concerned about it.³ The defendant stated: "[I am] guarding the hen house"; "my only stake in all this is to make sure somebody was not in the place that I'm in all the time"; that he believed J.D. was "stepping out" of his marriage; and that he wanted to make sure his "backyard was clear." The defendant refused to provide the name of the person he alleged was having sexual relations with J.D.

Eventually, the defendant admitted that he had an account with Brickhouse and that he was monitoring the movements of the couple's vehicles using the GPS devices, which he accessed with his Apple iPhone⁴ and laptop computer.⁵ Police searched the defendant's iPhone pursuant to a warrant and created a forensic extraction report. The defendant's Internet history included visits to Brickhouse's online log-in page, J.D.'s Twitter social media page, and fifty-three Internet mapping program searches of various latitude and longitude coordinates gathered from the GPS devices. Baldwin subpoenaed the Brickhouse account information and received a full history report for each device. The history reports provided detailed location information about each device.⁶ Baldwin also discovered that the defendant purchased a third GPS device in April, approximately one month before J.D. discovered the two GPS devices. Using the forensic data from the defendant's iPhone, the police confirmed seventeen separate instances in which the defendant researched the locations of the vehicles over the course of ten days in May 2016.

After interviewing the defendant, the police and Coast Guard interviewed J.D. again and informed him of the defendant's accusations that he was having an affair. J.D. denied the accusations and consented to a search of his cellular telephone by Coast Guard investigators.

Throughout the police investigation, J.D. and J.H. expressed concern for their safety because the defendant's intentions were unknown. J.H. had difficulty sleeping, and J.D. had to change his work schedule to be home with her during the nighttime hours. The couple feared retaliation from the defendant for contacting the police. They also installed security cameras at their residence and sought an emergency harassment prevention order against the defendant.

2. Standard of review. "In reviewing a motion to dismiss a complaint, the judge must decide whether the complaint application contains ‘sufficient evidence to establish the identity of the accused ... and probable cause to arrest him.’ " Commonwealth v. Humberto H., 466 Mass. 562, 565, 998 N.E.2d 1003 (2013), quoting Commonwealth v. McCarthy, 385 Mass. 160, 163, 430 N.E.2d 1195 (1982). This standard is "considerably less exacting than a requirement of sufficient evidence to warrant a guilty finding." Commonwealth v. O'Dell, 392 Mass. 445, 451, 466 N.E.2d 828 (1984), citing Myers v. Commonwealth, 363 Mass. 843, 848-849, 298 N.E.2d 819 (1973). "A judge considering a motion to dismiss should not confuse the question of probable cause to arrest with questions more properly resolved by the fact finder at trial." Commonwealth v. Bell, 83 Mass.App.Ct. 61, 64, 981 N.E.2d 200 (2013). The complaint application must establish probable cause by providing reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense. Id. at 63, 981 N.E.2d 200, quoting O'Dell, supra at 450, 466 N.E.2d 828. Whether the complaint application establishes probable cause is a question of law; thus, "we review the motion judge's ... determination de novo." Humberto H., supra at 566, 998 N.E.2d 1003, quoting Commonwealth v. Long, 454 Mass. 542, 555, 911 N.E.2d 174 (2009), S.C., 476 Mass. 526, 69 N.E.3d 981 (2017). We are in as good a position as a motion judge to assess the evidence submitted in support of the application for a criminal complaint, and we consider the evidence in the light most favorable to the Commonwealth without deference to the motion judge's factual findings or legal conclusions. Commonwealth v. Silva, 455 Mass. 503, 526, 918 N.E.2d 65 (2009).

3. Discussion. To support the complaint for criminal harassment, the Commonwealth must show that there is probable cause that "(1) the defendant engaged in a knowing pattern of conduct or speech, or series of acts, on at least three separate occasions; (2) the defendant intended to target the victim with the harassing conduct ... on each occasion; (3) the conduct ... [was] of such a nature that [it] seriously alarmed the victim; (4) the conduct ... [was] of such a nature that [it] would cause a reasonable person to suffer substantial emotional distress; and (5) the defendant committed the conduct ... ‘willfully and maliciously.’ " Commonwealth v. McDonald, 462 Mass. 236, 240, 967 N.E.2d 1101 (2012), quoting Commonwealth v. Kulesa, 455 Mass. 447, 452, 917 N.E.2d 762 (2009). See G. L. c. 265, § 43A. The Commonwealth argues that the complaint overcomes the low threshold required to show that there was probable cause that the defendant committed two counts of criminal harassment. The defendant maintains that there is no probable cause to support four of the five elements of criminal harassment: (1) the complaint does not allege three qualifying acts; (2) he did not intend to target J.D. or J.H. with harassing conduct; (3) the conduct would not cause a reasonable person to suffer substantial emotional distress; and (4) the conduct was not committed willfully and maliciously.

a. Three acts targeted at J.D. and J.H. According to the defendant, the complaint does not establish three qualifying acts of criminal harassment against either J.D. or J.H. We conclude that there was probable cause that the defendant committed at least three separate acts targeted at J.D. and J.H. when he concealed the GPS device on J.D.'s vehicle, concealed the GPS device on J.H.'s vehicle, and then tracked the movements of the GPS devices from his iPhone.

The defendant contends that placing GPS tracking devices on the couple's vehicles does not qualify as an "act" under § 43A because there is no law that criminalizes such conduct by a private person. The defendant's argument is unavailing. A defendant's otherwise legal conduct may qualify as an act of harassment when considered with other evidence. Se...