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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.
