Commonwealth v. Brennan

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SJC-12518
COMMONWEALTH vs. FRANCIS T. BRENNAN.
Plymouth. October 4, 2018. - December 21, 2018.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.
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 G. L. c. 265, § 43A. The charges
2
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
1 Although the complaint is silent regarding any
relationship between the defendant and the couple, the defendant
contends in his brief, at the motion hearing, and at oral
argument before this court that he had never met J.D. or J.H.
before. He claims that their first interaction was at a hearing
for a harassment prevention order.
2 We acknowledge the amicus brief submitted by the Licensed
Private Detective Association of Massachusetts in support of the
Commonwealth.
3
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
4
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
3 The defendant's interest in J.D.'s fidelity is not
apparent from the record in this appeal.
5
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.
4 An iPhone, which is manufactured by Apple Inc., is a type
of "smart" cellular telephone that, in addition to making
telephone calls, can transmit text messages, perform the
functions of both a camera and a video recorder, enable the
operation of various applications, and connect to the Internet.
See Commonwealth v. Dorelas, 473 Mass. 496, 497 n.1 (2016).
5 A search of the defendant's laptop computer provided a
negative result because the computer did not have a hard drive.
6 The reports had information about the speed and distance
the devices traveled, and the devices' coordinates, matched with
dates and times.
6
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 (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
7
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 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
8
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 (2012), quoting Commonwealth v. Kulesa, 455 Mass.
447, 452 (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.
9
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. See McDonald,
462 Mass. at 245. In addition to concealing the GPS devices,
the defendant commented to the police that J.D. was "stepping
out" on his wife and that the defendant was "guarding the hen
house." Making matters worse, the defendant admits that he had
never had any interaction with either J.D. or J.H. before.
Viewing the evidence in this context and in the light most
favorable to the Commonwealth, we conclude that the act of
concealing a GPS device on an individual's vehicle qualifies as
an "act" within § 43A.
The defendant maintains, however, that even if placing the
GPS devices does qualify as an "act" within § 43A, it is only
one act against J.D., placing the GPS on his car, and one act
against J.H., placing the GPS on her car. The defendant
correctly points out that G. L. c. 265, § 43A (a), "requires
that the Commonwealth prove three or more predicate acts of
harassment that were 'directed at a specific person.'"
Commonwealth v. Johnson, 470 Mass. 300, 312 (2014), quoting
McDonald, 462 Mass. at 240. He claims that the complaint does
10
not provide evidence that his attention was directed
specifically at J.D. or J.H. We disagree.
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
11
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 suggest he was monitoring J.D. to protect J.H.
from J.D.'s alleged infidelity, the defendant placed GPS devices
on both J.D. and J.H.'s vehicles. The complaint provides no
indication that the defendant knew which vehicle J.D. or J.H.
drove. It is a reasonable inference that the defendant targeted
both individuals when he attached a device to both vehicles,
rather than just one, to ensure that all of J.D.'s potential
movements were tracked. In determining whether acts of
harassment are directed at a person, we look not only to
statements and conduct of the defendant but to the nature of the
act and the natural consequence of the act. See Johnson, 470
Mass. at 312. Here, a reasonable person in the defendant's
position would have known that placing the GPS devices on both
12
vehicles would alarm both individuals if and when they learned
of it. Because the complaint provides reasonably trustworthy
information sufficient to warrant a reasonable person in
believing that the defendant targeted both J.D. and J.H., we
conclude that the concealment of the two devices on the couple's
vehicles constitutes two acts of harassment against J.D. and two
acts of harassment against J.H.
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
13
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 § 43A would frustrate the
purpose of the law. "The criminal harassment law was passed in
response to a perceived loophole in the stalking statute. The
stalking statute expressly included within its reach
'threatening' conduct or acts, but left without remedy those
victims plagued by harassment that, although potentially
dangerous, did not include an overt 'threat' and thus was not
actionable under existing law" (citation omitted). McDonald,
462 Mass. at 241. With advancements in technology it is becoming
easier for people to do exactly what the defendant did here.
Once J.D. discovered the GPS devices, it is logical that the
defendant's tactics used to monitor the couple's movements would
qualify as acts to satisfy the criminal harassment statute.
Therefore, the couple did not have to know in real time that
they were being tracked for the defendant's conduct of mapping
their locations to constitute at least one act.
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
14
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 § 43A. We determine, however, that it
is unnecessary in this case to conduct a temporal analysis of
each time the defendant checked the GPS devices to deconstruct
each individual act because we already have identified the three
acts to satisfy the statute.7
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,
7 We do not hold that the entire course of conduct of
repeatedly tracking the device is one continuous act. Although
our cases have not established a specific amount of time that
must elapse between harassing acts for them to be sufficiently
discrete, acts committed during a single afternoon have been
deemed sufficiently distinct to warrant a conviction of criminal
harassment. See Commonwealth v. Julien, 59 Mass. App. Ct. 679,
685 (2003) (three incidents, two occurring on same day,
sufficient to satisfy stalking statute). Cf. Commonwealth v.
Kulesa, 455 Mass. 447, 451 (2009) (defendant's two telephone
calls to victim's sister on one afternoon were sufficient for
two of three required acts).
15
however, that a reasonable person in their position would not
suffer substantial emotional distress.
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 G. L. c. 265, § 43A.
"Wilful conduct is that which is 'intentional rather than
accidental'; it requires no evil intent, ill will, or
malevolence." McDonald, 462 Mass. at 242, quoting Commonwealth
v. Luna, 418 Mass. 749, 753 (1994). Malicious conduct is an
"intentional, wrongful act done willfully or intentionally
16
against another without legal justification or excuse."
McDonald, supra, quoting Commonwealth v. Paton, 63 Mass. App.
Ct. 215, 219 (2005).
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
17
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
8 Other States have done so. See, e.g., Cal. Penal Code
§ 637.7 (prohibits person or entity from using electronic
tracking device to determine location or movement of person);
Fla. Stat. § 934.425 (person may not knowingly install tracking
device on another person's property without consent); 720 Ill.
Comp. Stat. 5/21-2.5 (no person shall use tracking device to
determine location or movement of another person); La. Rev.
Stat. Ann. § 14:323 (no person shall use tracking device to
determine location or movement of another person without consent
of that person); Mich. Comp. Laws § 750.539l (prohibits placing
18
circumstances, the defendant's behavior satisfied the three acts
necessary for the criminal harassment statute, but there may be
occasions where the facts might not be sufficient for the
statute to encompass a defendant's conduct.9
Order allowing motion to
dismiss reversed.
tracking device on motor vehicle without consent of owner of
vehicle); Minn. Stat. § 626A.35 (no person may install or use
tracking device without first obtaining court order or consent
of owner of object to which device is attached); N.C. Gen. Stat.
§ 14-196.3 (no person shall use tracking device to determine
location or movement of another person without that person's
consent); R.I. Gen. Laws § 11-69-1 (person may not knowingly
install tracking device in or on motor vehicle without consent
of all owners and occupants of vehicle for purpose of monitoring
or following occupant); Tenn. Code Ann. § 39-13-606 (person may
not knowingly install tracking device in or on motor vehicle
without consent of all owners for purpose of monitoring or
following occupant of vehicle).
9 For example, we can envision a circumstance in which a
defendant uses a GPS device, but the Commonwealth cannot show
that there was a specific target of the tracking, or that there
were three acts of criminal harassment.