Lead Opinion
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 before dismissing 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.
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
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 (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. DiBenna
To establish probable cause, the complaint application must set forth “reasonably trustworthy information sufficient to warrant a reasonable or pmdent person in believing that the defendant has committed the offense.” Commonwealth v. Roman, 414 Mass. 642, 643 (1993). See Commonwealth v. Hanright, 466 Mass. 303, 311-312 (2013), quoting Commonwealth v. Stevens, 362 Mass. 24, 26 (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. See Commonwealth v. O’Dell, 392 Mass. 445, 451 (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, quoting Commonwealth v. Hason, 387 Mass. 169, 174 (1982).
The complaint application must include information to sup
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 (1999), viewed in the totality of the circumstances. See Commonwealth v. Hernandez, 448 Mass. 711, 715 (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 (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
The application in support of the complaint noted that the administrative search of the juvenile’s person revealed five plastic bags of what appeared to be marijuana, but made no mention of smoking paraphernalia. Because one would expect a police officer to have mentioned such paraphernalia if it were found, we infer that the absence of any reference to such paraphernalia in the application suggests that none was found on the juvenile’s person during the search. But, applying that same inference, we conclude that the search also did not uncover a scale, a cellular telephone or pager, or empty plastic bags, each of which would be consistent with dealing drugs. Nor, applying that inference, was any cash found in his possession, which suggests both that he had not sold any marijuana on his way to school and that he was not concerned with the need to make change if he did make a sale. The absence of drug paraphernalia may be consistent with an intent to distribute marijuana, see Commonwealth v. Wilson, 441 Mass. 390, 401 (2004), but considering the totality of what was not found on his person, no reasonable inference can be made that the juvenile intended to distribute the marijuana in his possession, especially where the
If there is probable cause to believe that the juvenile intended to distribute the marijuana in his possession, it must rest almost entirely on the juvenile’s possession of five plastic bags of what appeared to be (and for the purpose of determining probable cause, we assume to be) marijuana. Possession of a substantial quantity of marijuana would be sufficient alone to support a finding of probable cause of an intent to distribute. See Commonwealth v. Acosta, 81 Mass. App. Ct. 836, 841 (2012) (amount of drugs “alone may raise an inference of intent to distribute”). But there is no information in the complaint application that suggests that the quantity of marijuana found on the juvenile’s person was large enough to permit any inference of an intent to distribute. The application does not estimate the weight of the marijuana or otherwise describe the amount seized. We know from the application only that the amount was small enough that it fit in one pocket of a pair of shorts that the juvenile wore under his pants. The “value” of the marijuana stated in the complaint application was “$0.00,” which suggests that the quantity was so small that it had little to no street value. In Commonwealth v. Roman, 414 Mass. at 645, 647-648, where there was no evidence of intent to distribute apart from the amount of the drugs seized, we concluded that there was probable cause to believe that “the defendant, who possessed 25.6 grams of cocaine in a motor vehicle on a State highway, did so with the intent to distribute,” but we noted that “the question is a close one.” Based on quantity alone, the question here is not close.
The Commonwealth argues that the division of the marijuana into five plastic bags suggests an intent to distribute, but the weight of any suggestion is considerably diminished by the assertion in the application that the marijuana had no street value. In Commonwealth v. Wilson, 441 Mass. at 393, 400-402, we noted that the manner in which one-half ounce of marijuana
We conclude that the evidence in the application for the complaint, viewed in its totality, does not support a finding of probable cause that the juvenile intended to distribute the marijuana in his possession. The judge therefore did not err in dismissing the complaint. At best, the application supports mere suspicion of such an intent. We note that the dismissal is without prejudice and that nothing bars the Commonwealth, should it uncover evidence that the juvenile intended to distribute the marijuana in his possession, from filing a new delinquency complaint supported by probable cause. Cf. A Juvenile v. Commonwealth, 375 Mass. 104, 107 (1978) (where delinquency charge is dismissed for lack of probable cause at transfer hearing, there is “no reason not to allow a second transfer hearing when additional evidence concerning probable cause is available”); Burke v. Commonwealth, 373 Mass. 157, 161 (1977) (where no probable cause is found after probable cause hearing, “[n]othing . . . precludes a prosecutor from seeking other probable cause hearings based on additional evidence”).
2. Judicial authority to decide a motion to dismiss before arraignment. The juvenile contends that the judge erred in concluding that he lacked the discretion to rule on the motion to dismiss before arraignment. The Commonwealth argues that we should not reach this issue and lack jurisdiction to do so, because the juvenile did not file a notice of appeal challenging the judge’s ruling that he could not dismiss the case before arraignment. The juvenile concedes that no cross appeal was filed but argues that the question of the judge’s authority to dismiss the case before arraignment falls “under the umbrella of the government’s appeal.” Commonwealth v. LeBlanc, 407 Mass. 70, 73 n.5 (1990), quoting Commonwealth v. Mottola, 10 Mass. App. Ct. 775, 782 (1980).
“As a general rule, an appellate court considers only questions of law raised by a party who has appealed; it does not address issues argued by a non-appealing party seeking to have the lower court’s decision revised.” H.J. Alperin, Summary of Basic Law § 4.29, at 574 (4th ed. 2006) (Alperin). However, “[wjhile the general rule states that an appellee . . . may not secure modification of a judgment unless she has filed a cross appeal, this is a rule of practice, and is not jurisdictional.” Hartford Ins. Co. v. Hertz Corp., 410 Mass. 279, 287-88 (1991). See O’Connor v. City Manager of Medford, 7 Mass. App. Ct. 615, 617-618 (1979); McLaughlin v. Amirsaleh, 65 Mass. App. Ct. 873, 885 n.18 (2006). We have the discretion to consider issues raised by a party who fails to cross-appeal and, where “circumstances compel it,” to take appropriate action. Id. See O’Connor, supra at 618 (“this case presents the compelling circumstances in which an appellate court can and should correct an erroneous judgment in the absence of a cross appeal”).
We exercise our discretion to consider whether a Juvenile Court judge may rule on a motion to dismiss before arraignment for three reasons. First, the issue is of substantial public concern. As the parties and the motion judge recognized, in Juvenile Court a juvenile’s name and charge is first placed in the court activity record information (CARI) database at arraignment.
Second, if we do not decide the issue here, trial judges may view the issue as already decided based on dictum in other appellate decisions. The judge here appeared to rely on dictum in the single justice’s decision in concluding that he was obligated to arraign the juvenile before mling on the motion to dismiss. Subsequently, the Appeals Court, also in dictum, declared that a defendant’s remedy for the issuance of a complaint without probable cause is “a postarraignment motion to dismiss.” Huggins, 84 Mass. App. Ct. at 111. Here, the parties were given notice that this court might reach this issue by the solicitation of amicus briefs,
Third, for all practical purposes, the issue is moot, because
Having decided to reach the issue, we now address it. When a juvenile is arrested without a warrant, the police complainant must apply to a clerk-magistrate or judge for a delinquency complaint, based on information that is either reduced to writing or recorded. Mass. R. Crim. P. 3 (g) (1), as appearing in 442 Mass. 1502 (2004). Reporters’ Notes to Rule 3 (g) (1) (2004), Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1343-1344 (LexisNexis 2012-2013). Where a judicial officer issues a complaint, the juvenile may not appeal its issuance but may move to dismiss the complaint. DiBennadetto, 436 Mass. at 313. There is nothing in our rules that prohibits a motion to dismiss from being filed or ruled upon before arraignment. Rule 13 (d) (2) of the Massachusetts Rules of Criminal Procedure, as appearing in 442 Mass. 1516 (2004), which governs the filing of nondiscovery pretrial motions, including motions to dismiss, states only that a “pretrial motion which does not seek discovery shall be filed before the assignment of a trial date pursuant to Rule 11 (b) or (c) or within 21 days thereafter, unless the court permits later filing for good cause shown.”
At the time of the arraignment in this case, Mass. R. Crim. P. 7 (a) (1), as appearing in 442 Mass. 1506 (2004), provided that after a juvenile’s arrest, the juvenile shall be brought before the court for an initial appearance, where counsel may be assigned and conditions of release determined, and “[t]he judge or special magistrate shall then arraign the defendant or shall set a time
Where, as here, a juvenile files a motion to dismiss a complaint before arraignment based on the absence of probable cause, and where a judge, after reviewing the “four corners” of the complaint application, concludes that there is a substantial likelihood that the motion is meritorious, a judge does not abuse his discretion in deciding to hear and rule on that motion before arraignment to protect the child from the potential adverse consequences of a CARI record.
Having declared that the judge here had the discretion to rule on the motion to dismiss before arraignment, we decline to provide the unusual remedial relief sought by the juvenile of expunging the juvenile’s CARI record. As we have noted, we
Judgment affirmed.
Then we refer to a Juvenile Court judge in this opinion, we intend to include any judge who sits in a Juvenile Court or a juvenile session of a District Court.
We acknowledge the amicus brief submitted by the American Civil Liberties Union of Massachusetts, Children’s Law Center of Massachusetts, Citizens for Juvenile Justice, and the Criminal Justice Institute at Harvard Law School.
Under Mass. R. Crim. P. 3 (g), as appearing in 442 Mass. 1502 (2004), the applicant for the complaint, under oath, “shall convey to the court the facts constituting the basis for the complaint,” and “the complainant’s account shall be either reduced to writing or recorded.”
General Laws c. 94C, § 32L, states, in pertinent part:
“Notwithstanding any general or special law to the contrary, possession of one ounce or less of marihuana shall only be a civil offense, subjecting an offender who is eighteen years of age or older to a civil penalty of one hundred dollars and forfeiture of the marihuana, but not to any other form of criminal or civil punishment or disqualification. An offender under the age of eighteen shall be subject to the same forfeiture and civil penalty provisions, provided he or she completes a drug awareness program . . . . If an offender under the age of eighteen fails within one year of the offense to complete both a drug awareness program and the required community service, the civil penalty may be increased ... to one thousand dollars and the offender and his or her parents shall be jointly and severally liable to pay that amount.”
We also note the absence of other evidence in the application suggestive of an intent to distribute: there was no evidence that the juvenile had approached another student in a suspicious manner or that the juvenile had any history of drug dealing.
We need not consider in this case whether there are exceptions to the general rule that “failure to take a cross appeal precludes a party from obtaining a judgment more favorable to it than the judgment entered below” (emphasis in original). Hartford Ins. Co. v. Hertz Co., 410 Mass. 279, 288 (1991), quoting Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37, 43 n.5 (1977). Our decision does not result in a judgment more favorable to the juvenile than the judgment entered below. See infra.
Court activity record information (CARI) records are compiled by the Department of Probation and include an individual’s criminal offender record information (CORI) and all court appearances related to juvenile delinquency and civil protective order proceedings. See Commonwealth v. Boe, 456 Mass. 337, 341 n.8 (2010); Standing Order 1-11 of the Probate and Family Court, Mass. Ann. Laws Court Rules, at 1450 (LexisNexis 2012-2013).
We note that the juvenile in this case had no prior juvenile record.
The announcement soliciting amicus briefs in this case declared in relevant part:
“The Justices are soliciting amicus briefs. The issue is whether a juvenile court judge has discretion prior to an arraignment under the authority of Commonwealth v. DiBennadetto, 436 Mass. 310, 313 (2002), to allow a motion to dismiss a juvenile complaint for possession of marijuana with intent to distribute; in the circumstances, the judge dismissed the complaint upon motion for lack of probable cause immediately after arraignment.”
Because the purpose of such an exercise of discretion would be to protect a juvenile from the adverse consequences of a CARI record where the complaint was issued without probable cause, our holding is limited to juvenile adjudications. We do not address whether it would be an abuse of discretion for a judge to rule on a motion to dismiss filed by an adult defendant before arraignment.
We also note that Mass. R. Crim. P. 7 (a) was amended in 2012 to eliminate the separate event of an initial appearance and include within the arraignment the appointment of counsel and the setting of conditions of release. Mass. R. Crim. P. 7 (a), as appearing in 461 Mass. 1501 (2012). The reason for the amendment was that “[t]he widespread availability of counsel to represent defendants at arraignment made this separate event [the initial appearance] unnecessary.” Reporters’ Notes to Rule 7 (a) (1) (2012), Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1392 (LexisNexis 2012-2013). We do not address whether or how the merger of the initial appearance with
Dissenting Opinion
(dissenting, with whom Cordy, J., joins in part). I do not agree that a judge may rule on a motion to dismiss before arraignment. Rule 11 (a) of the Massachusetts Rules of Criminal Procedure, as appearing in 442 Mass. 1509 (2004), states that “[a]t arraignment ... the court shall order the prosecuting attorney and defense counsel to attend a pretrial conference on a date certain to consider such matters as will promote a fair and expeditious disposition of the case” (emphasis added). Rule 11 (a) (1) outlines the agenda for the pretrial conference, and rule 11 (a) (1) (A) identifies the following items among those to be discussed at the pretrial conference:
“Discovery and all other matters which, absent agreement of the parties, must be raised by pretrial motions. All motions which cannot be agreed upon shall be filed pursuant to [Mass. R. Crim. P. 13 (d), as appearing in 442 Mass. 1516 (2004)]” (emphasis added).
Rule 11 (b) of the Massachusetts Rules of Criminal Procedure, as appearing in 442 Mass. 1509 (2004), states that, “[a]t arraignment,” in addition to scheduling a pretrial conference, the judge “shall order the prosecuting attorney and defense counsel to appear before the court on a date certain for a pretrial hearing” (emphasis added). Rule 11 (b) (2) (ii) provides that at the pretrial hearing,
“the court shall hear all discovery motions pending at the time of the pretrial hearing. Other pending pretrial motions may be heard at the pretrial hearing, continued to a specific date for a hearing, or transmitted for hearing by the trial session” (emphasis added).
Rule 13 (c) of the Massachusetts Rules of Criminal Procedure, as appearing in 442 Mass. 1516 (2004), is concerned with pretrial motions, including motions to dismiss. Rule 13 (d),
Allowing a motion to dismiss to be heard prior to arraignment runs contrary to three other principles. First, we have said that there is no authorization under G. L. c. 218, § 35A, for a rehearing of a clerk-magistrate’s finding of probable cause, except by way of a motion to dismiss. See Commonwealth v. DiBennadetto, 436 Mass. 310, 312-314 (2002). By authorizing the use of a motion to dismiss before arraignment, the court has manufactured a means to avoid both the effect of the statute and our decision.
Second, the court has interjected a dispositional theory, namely, the best interests of the child, into the manner in which the rules of criminal procedure are applied. We have been careful to reserve “best interests” analysis for the disposition stage of a case, separate and apart from principles related to adjudication and procedural aspects of a case. See Commonwealth v. Magnus M., 461 Mass. 459, 466-467 (2012); Police Comm’r of Boston v. Municipal Court of the Dorchester Dist., 374 Mass. 640, 666-667 (1978). See also In re Winship, 397 U.S. 358, 366 (1970); In re Gault, 387 U.S. 1, 30-31 (1967). Modern jurisprudence has viewed the wisdom of mixing the two as questionable.
Third, in Commonwealth v. Gavin G., 437 Mass. 470 (2002), we traced the legislative history of the court activity record information (CARI) database and said:
“When addressing the precise predicament of a wrongfully accused adult unfairly acquiring a criminal record, the Legislature still opted for sealing, not destruction of expungement of records. As to both juveniles and adults, the Legislature is apparently satisfied with provisions for*579 confidentiality and sealing of records to address the precise problem posed by such wrongful or mistaken accusations of criminal conduct.” (Footnote omitted.)
Id. at 482-483. The Legislature, presumed to know of our decision in Gavin G., see Commonwealth v. Vega, 449 Mass. 227, 231-232 (2007), and fully aware of the concept of “best interests of the child,” nevertheless apparently remains satisfied with its enactments in this area. It has not amended the statute to produce the result that the court today has reached to avoid the creation of a CARI record. The intent of the Legislature should be controlling. For these reasons I would hold that a motion to dismiss may not be decided before arraignment.
I also do not agree that the complaint did not issue upon probable cause. I believe that the court has stated the law correctly with regard to review of a determination of probable cause. In particular, I agree that the element of intent to distribute a controlled substance may be satisfied by circumstantial evidence, Commonwealth v. Martin, 48 Mass. App. Ct. 391, 392-393 (1999); that probable cause must be determined from the totality of the circumstances, Commonwealth v. Hernandez, 448 Mass. 711, 715 (2007); and that probable cause is a concept that is guided by “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 (1949). However, I believe the court abandoned the totality of the circumstances analysis when it embarked on a consideration of the evidentiary factors individually. As a result, the synergistic effect of the parts on each other was lost, and the whole was deprived of being more than the sum of its parts. See Phillips v. Chase, 201 Mass. 444, 448 (1909) (“When circumstantial evidence is largely relied upon to establish an issue, it is inevitable that many matters should be introduced which by themselves alone would be immaterial, although in connection with other evidence they may be helpful in discovering the truth”); Commonwealth v. Ahart, 63 Mass. App. Ct. 413, 416 (2005) (“The defendant’s attempt to isolate each piece of the Commonwealth’s evidence as insufficient is unavailing”).
Although it may well be a matter of scientific fact that the juvenile brain is undeveloped in a way that makes it more prone to poor judgment and therefore less culpable than an adult’s, experience tells us that the juvenile brain is not short on creativity for mischief. See Miller v. Alabama, 132 S. Ct. 2455, 2464-2465 (2012); Graham v. Florida, 560 U.S. 48, 68 (2010). I am concerned that the court has given juveniles willing to distribute marijuana in school a blueprint for minimizing accountability: keep it at one ounce or less, and keep the number
I respectfully dissent.
Concurrence Opinion
(concurring in part and dissenting in part). I join Justice Spina’s dissent on the question whether our rules of criminal procedure permit a judge to act on a motion to dismiss a delinquency complaint before arraignment, where a clerk-magistrate has issued the complaint based on the clerk-magistrate’s assessment that probable cause has been shown.
I concur with the court in its conclusion that the judge did not err in dismissing the complaint, after arraignment, on the ground that the application fell short of probable cause.