COMMONWEALTH VS. FRANCIS T. BRENNAN.
SJC-12518
Supreme Judicial Court of Massachusetts
December 21, 2018
Plymouth. October 4, 2018. - December 21, 2018.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us
Criminal Harassment. Global Positioning System Device.
Complaint received and sworn to in the Hingham Division of the District Court Department on August 26, 2016.
A motion to dismiss was heard by Julieann Hernon, J.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
David Cutshall, Assistant District Attorney (Gail M. McKenna, Assistant District Attorney, also present) for the Commonwealth.
Sabrina E. Bonanno (Richard J. Sweeney also present) for the defendant.
Kevin M. Davis, for Licensed Private Detective Association of Massachusetts, amicus curiae, submitted a brief.
CYPHER, J. A complaint issued against the defendant, Francis T. Brennan, charging him with two counts of criminal harassment in violation of
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 (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,
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 with4 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
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 (2013), quoting Commonwealth v. McCarthy, 385 Mass. 160, 163 (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 (1984), citing Myers v. Commonwealth, 363 Mass. 843, 848-849 (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 (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, quoting O‘Dell, supra at 450. 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, quoting Commonwealth v. Long, 454 Mass. 542, 555 (2009), S.C., 476 Mass. 526 (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 (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
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
The information in the complaint is enough to warrant a reasonable person to conclude that the defendant‘s harassing conduct was targeted at J.D. and J.H. See generally Johnson, 470 Mass. at 312-313 (acts of harassment can be directed simultaneously at more than one person). Contrast Commonwealth v. Welch, 444 Mass. 80, 92 (2005), abrogated on another ground, O‘Brien v. Borowski, 461 Mass. 415 (2012) (Commonwealth did not establish that defendant‘s use of homophobic slurs once when talking in normal tones outside apartment building where she and alleged victims lived and again when yelling inside her own apartment was intended to be heard by victims or that she should have known that slurs would be heard by them); Demayo v. Quinn, 87 Mass. App. Ct. 115, 116, 118 (2015) (evidence was insufficient to show that defendant‘s conduct -- entering plaintiff‘s horse barn, removing or rearranging items, and throwing items into horse‘s stall -- was aimed at plaintiff). In response to the police‘s questioning, it was evident that the defendant harbored an animus toward J.D. Cf. Demayo, supra at 118. The defendant made a number of statements aimed at the couple regarding J.D.‘s fidelity to J.H. The defendant stated that he believed J.D. was “stepping out” of J.D.‘s marriage and that he wanted to make sure his “backyard was clear.” He suggested that J.H. “might want to start checking [J.D.‘s] phone.” The defendant stated that he was “guarding the hen house” and that his “only stake in all this [was] to make sure somebody was not in the place that [he was] in all the time.” When he eventually admitted that he had an account with Brickhouse, he confessed that he was monitoring the movements of J.D. and J.H. Moreover, the forensic extraction data from the defendant‘s phone showed that he was visiting J.D.‘s Twitter social media page. The defendant‘s peculiar behavior is exacerbated by the fact that he had never met the couple.
Although the defendant‘s statements during the investigation
The Commonwealth argues that the defendant committed at least one act against J.D. and J.H. when he tracked the GPS devices seventeen times over the course of ten days. The defendant argues that his act of gathering the GPS information and mapping the devices’ coordinates online does not qualify as an “act” because neither J.D. nor J.H. was aware that they were being tracked.
Neither J.D. nor J.H. had to be aware that they were being tracked for the defendant‘s conduct to qualify as at least one act of harassment against each of them. The complaint must show that there is probable cause that the “cumulative effect of the defendant‘s pattern of conduct ‘seriously alarm[ed]’ [them] -- not that each individual incident was alarming.” Commonwealth v. Walters, 472 Mass. 680, 699 (2015), S.C., 479 Mass. 277 (2018), quoting Johnson, 470 Mass. at 314. See Johnson, supra (criminal harassment “statute‘s wording ties the requirement to the over-all pattern of conduct“). J.D. and J.H. may not have been aware that they were being tracked, but, as the defendant concedes, once they discovered the devices they were seriously alarmed.
Adding an awareness element to
We recognize that the defendant‘s conduct of entering the GPS devices’ coordinates into an Internet mapping program seventeen times over a ten-day span may be construed as more than one act. The police report shows that the defendant mapped the GPS coordinates at different times -- sometimes closer in time than others -- on different days. We count the tracking of the devices as at least one act for purposes of reaching the requisite three acts in
b. Substantial emotional distress. After learning that they were being tracked, the couple suffered substantial emotional distress. J.D. expressed concern for his safety, changed his work schedule, installed security cameras at his house, and feared retaliation from the defendant for informing the police. J.H. also was concerned for her safety, was afraid to be home alone at night, and had difficulty sleeping. The defendant concedes that there was sufficient evidence that the couple was seriously alarmed by his conduct. He argues, however, that a reasonable person in their
Contrary to the defendant‘s argument, the evidence in the complaint was sufficient to establish probable cause that a reasonable person in J.D. and J.H.‘s positions would have suffered substantial emotional distress. J.D. found two GPS tracking devices under his and his wife‘s cars that were placed by the defendant -- someone that the couple had never met. The couple also learned that the defendant had tracked the GPS device‘s location seventeen times over the course of ten days. Moreover, the defendant made a number of distressing statements regarding J.D.‘s fidelity toward J.H. There was probable cause that J.D. and J.H. were seriously alarmed, and “any reasonable person would be greatly alarmed and experience severe emotional distress if subjected to such similar circumstances.” Commonwealth v. O‘Neil, 67 Mass. App. Ct. 284, 294 (2006).
c. Willful and malicious conduct. The defendant argues that he did not commit the requisite three acts willfully or maliciously as the statute requires. See
As discussed above, the defendant committed at least three acts against J.D. and J.H. when he placed the GPS devices on each of their vehicles and then tracked the GPS devices locations by using his iPhone. The acts were willful because he intentionally placed the GPS devices and intentionally tracked the locations. Likewise, the defendant‘s actions were malicious because he had no justification for his conduct. See O‘Neil, 67 Mass. App. Ct. at 293. It was also reasonably foreseeable that J.D. and J.H. would be alarmed when they learned that they were being tracked. See McDonald, 462 Mass. at 242, quoting Commonwealth v. Schuchardt, 408 Mass. 347, 352 (1990) (“Conduct is wilful when the actor intends both the conduct and its harmful consequences [and] may be wilful and malicious although its harmful consequences are neither substantial nor highly likely“).
4. Conclusion. Probable cause must be determined from the totality of the circumstances. Commonwealth v. Hernandez, 448 Mass. 711, 715 (2007). It is a concept guided by “factual and practical considerations of everyday life on which reasonable and prudent [people], not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175 (1949). The Commonwealth has made the requisite showing. There was probable cause that the defendant committed three separate acts of intentional harassment when he placed the GPS device on J.D.‘s car, placed the GPS device on J.H.‘s car, and then tracked the movements of the devices. The acts were done willfully and maliciously, seriously alarmed J.D. and J.H., and would cause a reasonable person to suffer substantial emotional distress.
As technology has advanced, the tools that people can use to harass victims have increased. See Fraser, Olsen, Lee, Southworth, and Tucker, The New Age of Stalking: Technological Implications for Stalking, 61 Juv. & Fam. Ct. J. 39, 40-41 (Fall 2010). The law has not fully caught up to the new technology, and given the speed with which technology evolves, it may sometimes leave victims without recourse. See id. at 48-49. The Legislature may wish to explore whether the conduct of a private person electronically monitoring the movements of another private person should be criminalized, regardless of whether it would constitute criminal harassment.8 In these circumstances, the defendant‘s behavior satisfied the three acts necessary for the criminal harassment statute, but there may be occasions where the
Order allowing motion to dismiss reversed.