Commonwealth v. Humberto H.

• Decision Date: 26 November 2013
• Docket Number: SJC–11297.
• Parties: COMMONWEALTH v. HUMBERTO H., a juvenile.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

466 Mass. 562

998 N.E.2d 1003

COMMONWEALTH

v.HUMBERTO H., a juvenile.

SJC–11297.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Sept. 9, 2013.

Decided Nov. 26, 2013.

Donna Jalbert Patalano, Assistant District Attorney, for the Commonwealth.

Emily A. Cardy, Committee for Public Counsel Services, for the juvenile.

Robert E. McDonnell, Deana K. El–Mallawany, & Nathaniel P. Bruhn, Boston, for American Civil Liberties Union of Massachusetts & others, amici curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, GANTS, DUFFLY, & LENK, JJ.

GANTS, J.

A Juvenile Court judge allowed the juvenile's motion to dismiss a delinquency complaint charging one count of possession of a class D substance (marijuana) with intent to distribute after concluding that the complaint was not supported by probable cause that the juvenile intended to distribute the marijuana in his possession. The judge declared that, where a complaint is to be dismissed, he believed it “offensive to arraign a child ... just to put it on the child's record,” but concluded that he was obliged to arraign the juvenile beforedismissing the complaint. The Commonwealth appealed the dismissal of the complaint. We affirm the judge's dismissal of the delinquency complaint, concluding that the information in the complaint application fell short of probable cause to believe that the juvenile intended to distribute the marijuana in his possession. We also declare that a Juvenile Court judge, in his or her discretion, may allow a motion to dismiss before the arraignment of a juvenile where the judge concludes that prearraignment dismissal is in both the best interests of the child and the interests of justice.^1,2

Background. We describe the facts as set forth in the police incident report filed in support of the application for the complaint. On January 24, 2011, a Boston school police officer and the dean of discipline (dean) of a Boston high school were posted at the back door of the high school's cafeteria, monitoring students who were arriving late to school. When the juvenile, a fifteen year old student at the high school, entered the school building at approximately 9:35 a.m., the dean noticed a strong odor of marijuana coming from the juvenile. When the dean spoke to the juvenile, the juvenile became “very defensive and agitated.” An administrative search of the juvenile's person was conducted in the school nurse's office, which resulted in the recovery of “[five] plastic bags of ... what appeared to be marijuana” that was located inside the right pocket of “a second pair of shorts under his pants.” The juvenile was then arrested for possession of a Class D substance (marijuana) with intent to distribute, in violation of G.L. c. 94C, § 32C. Later that day, a delinquency complaint issued.

At the initial appearance, the juvenile was released to the custody of his mother with special conditions of pretrial probation, and counsel was appointed to represent him. The judge continued the scheduled arraignment until February 23, 2011, according to the Commonwealth, “in order to determine whether the complaint was issued based on probable cause.” The Commonwealth filed a petition under G.L. c. 211, § 3, asking a single justice of this court to vacate the order of continuance. On February 9, the juvenile filed a motion to dismiss the complaint for lack of probable cause, and asked that the complaint be dismissed before the arraignment. On February 17, the single justice denied the petition, concluding that “the mere continuance of an arraignment from one date to a later one, by itself, certainly does not present an occasion to grant extraordinary relief.” The single justice, however, declared in dictum that the Commonwealth “is correct” that, because the complaint had issued, “the judge is without power to decline to arraign him on the charge.” Citing Commonwealth v. McCarthy, 385 Mass. 160, 161, 430 N.E.2d 1195 (1982), the single justice added that, once arraigned, the juvenile could move to dismiss the complaint for lack of probable cause. At the subsequent hearing on the juvenile's motion to dismiss, the judge stated his understanding that judges “take control of the case after arraignment,” and that if the Commonwealth chose to proceed with the arraignment, he would be required to arraign the juvenile. When the prosecutor declared her intent to go forward with the arraignment, the judge ordered that the juvenile be arraigned but declared that he would dismiss the case “as soon as it's arraigned.” After arraignment, he heard argument on the motion to dismiss and allowed the motion, finding that there was probable cause that the juvenile possessed marijuana but not probable cause to establish that he possessed it with intent to distribute. The Commonwealth appealed, and we granted direct appellate review.

Discussion. 1. Dismissal of the complaint. After a delinquency complaint issues, a juvenile may move to dismiss the complaint for lack of probable cause. See Commonwealth v. DiBennadetto, 436 Mass. 310, 313, 764 N.E.2d 338 (2002). Just as a motion to dismiss an indictment for lack of probable cause is decided based on the grand jury minutes, see Commonwealth v. McCarthy, 385 Mass. at 163, 430 N.E.2d 1195, a motion to dismiss a complaint “is decided from the four corners of the complaint application, without evidentiary hearing.” ³Commonwealth v. Huggins, 84 Mass.App.Ct. 107, 111, 993 N.E.2d 734 (2013), quoting Commonwealth v. Bell, 83 Mass.App.Ct. 61, 62, 981 N.E.2d 200 (2013). The judicial determination is essentially the same for both types of motions. See DiBennadetto, supra, citing McCarthy, supra. 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.” McCarthy, supra, quoting Connor v. Commonwealth, 363 Mass. 572, 574, 296 N.E.2d 172 (1973), and Lataille v. District Court of E. Hampden, 366 Mass. 525, 531, 320 N.E.2d 877 (1974).

To establish probable cause, the complaint application must set forth “reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense.” Commonwealth v. Roman, 414 Mass. 642, 643, 609 N.E.2d 1217 (1993). See Commonwealth v. Hanright, 466 Mass. 303, 311–312, 994 N.E.2d 363 (2013), quoting Commonwealth v. Stevens, 362 Mass. 24, 26, 283 N.E.2d 673 (1972). Probable cause is considerably less than proof beyond a reasonable doubt, so evidence that is insufficient to support a guilty verdict might be more than sufficient to establish probable cause. Roman, supra at 647, 609 N.E.2d 1217. See Commonwealth v. O'Dell, 392 Mass. 445, 451, 466 N.E.2d 828 (1984), quoting K.B. Smith, Criminal Practice and Procedure § 104 (1983) ( “Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction”). But probable cause is “more than mere suspicion.” Roman, supra at 643, 609 N.E.2d 1217, quoting Commonwealth v. Hason, 387 Mass. 169, 174, 439 N.E.2d 251 (1982).

The complaint application must include information to support probable cause as to each essential element of the offense. See Commonwealth v. Hanright, 466 Mass. at 312, 994 N.E.2d 363, citing Commonwealth v. Moran, 453 Mass. 880, 884, 906 N.E.2d 343 (2009). Here, there is no dispute that the information in the complaint application is more than sufficient to establish probable cause that the juvenile possessed marijuana; the issue is whether it is sufficient to establish probable cause that the juvenile intended to distribute the marijuana in his possession. Because it is a question of law, “we review the motion judge's probable cause determination de novo.” Commonwealth v. Long, 454 Mass. 542, 555, 911 N.E.2d 174 (2009).

Probable cause that a juvenile intended to distribute a controlled substance may be demonstrated through circumstantial evidence, Commonwealth v. Martin, 48 Mass.App.Ct. 391, 392–393, 721 N.E.2d 395 (1999), viewed in the totality of the circumstances. See Commonwealth v. Hernandez, 448 Mass. 711, 715, 863 N.E.2d 930 (2007). “In dealing with probable cause ... we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

The Commonwealth argues that the juvenile's possession of five plastic bags of what appeared to be marijuana, the absence of smoking paraphernalia, and the juvenile's “defensive and agitated” demeanor when he was questioned by the dean establish probable cause of his intent to distribute. We consider each of these factors, recognizing that probable cause must be determined based on the totality of the evidence.

No reasonable inference may be made from the juvenile's demeanor when confronted by the dean in the presence of the school police officer that the juvenile intended to distribute the marijuana in his possession. The prospect of being caught with marijuana alone was more than sufficient to make a fifteen year old high school student “defensive and agitated.” Even with the enactment of St. 2008, c. 387, § 2, which decriminalized the simple possession of one ounce or less of marijuana, a juvenile found in possession of a small quantity of marijuana is subject to a civil penalty of one hundred dollars and forfeiture of the marijuana, and must complete a drug awareness program and community service. G.L. c. 94C, § 32L. In addition, if a juvenile were to fail to complete both a drug awareness program and the required community service, the civil penalty may be increased to $1,000, and both the juvenile and his parents would be jointly and severally liable to pay that amount.⁴ Perhaps more important, a juvenile...