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SJC-11637

             COMMONWEALTH    vs.   ILYA I., a juvenile.



       Suffolk.       October 6, 2014. - February 13, 2015.

 Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                            Hines, JJ.


Controlled Substances. Probable Cause. Juvenile Court,
     Delinquent child. Practice, Criminal, Juvenile delinquency
     proceeding, Complaint, Dismissal.



     Complaint received and sworn to in the Suffolk County
Division of the Juvenile Court Department on June 4, 2012.

    A motion to dismiss was heard by Leslie E. Harris, J.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     Gail S. Strassfeld for the juvenile.
     Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.


    HINES, J.     After a street encounter in the Dorchester

section of Boston, a police officer arrested the juvenile and

charged him with possession of a class D substance with the

intent to distribute in violation of G. L. c. 94C, § 32C (a).   A
                                                                      2


clerk-magistrate issued a delinquency complaint formally

charging the juvenile with the offense.     A judge in the Juvenile

Court allowed the juvenile's motion to dismiss the complaint for

lack of probable cause.     The Commonwealth sought review in the

Appeals Court, which reversed the dismissal in an unpublished

decision.     See Commonwealth v. Ilya I., 84 Mass. App. Ct. 1128

(2014).     We granted the juvenile's petition for further

appellate review and now affirm the dismissal of the complaint.

     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 is essentially the police incident

report detailing the facts underlying the juvenile's arrest.1

Following is a summary of the police incident report.2

     On June 1, 2012, members of the youth violence strike

force, a unit within the Boston police department, were

conducting surveillance in Codman Square in Dorchester.      The

police officers were familiar with that area as being one where

drug and gang activity took place.     Shortly before 5 P.M., the

     1
       A motion to dismiss a complaint for lack of probable cause
"is decided from the four corners of the complaint application,
without evidentiary hearing." Commonwealth v. Humberto H., 466
Mass. 562, 565 (2013), quoting Commonwealth v. Huggins, 84 Mass.
App. Ct. 107, 111 (2013).
     2
       The narrative contained in the police incident report
lacks clarity in its description of the sequence of events as
well as the conduct of the juvenile, who was the only person
arrested.
                                                                    3


officers observed four black teenagers in the vicinity of

Washington Street and Talbot Avenue.   A male and a female

approached the teenagers and engaged them in a "brief

conversation."   Two of the teenagers walked up Washington Street

toward Southern Avenue with the couple.   The other two teenagers

remained in the location where the first encounter with the

couple occurred and appeared to look up and down Washington

Street.   When the two teenagers and the couple reached Southern

Avenue, they had a "brief interaction," after which the

teenagers walked back in the direction from which they had come.

Based on these observations, the police officers believed that

"a drug transaction may have occurred."   They relayed this

information to other police officers in the vicinity.

    As the police officers approached a restaurant located at

the corner of Washington Street and Talbot Avenue, the four

teenagers walked away "in a hurried manner."   The juvenile, who

was part of the group of black teenagers under surveillance,

looked back at the police officers several times as he crossed

Washington Street.   The juvenile and the other teenagers entered

a vehicle parked on Washington Street across from the

restaurant.   Two of the teenagers got out of the vehicle and

walked up Washington Street in the same direction as before.

The vehicle followed and stopped after about one block, where

the two teenagers who had gotten out reentered the vehicle.     The
                                                                     4


vehicle left the area, turning onto Aspinwall Road and then onto

Whitfield Street before stopping at the corner of Dunlap Road

and Whitfield Street.

     At that location, the police officers approached the

vehicle on both sides.3    A police officer asked the passenger to

roll down his window.     The passenger opened the door instead of

rolling down the window, and the police officer smelled the odor

of unburnt marijuana.     The police officers requested

identification from the driver and the passenger; the passenger

did not produce identification, and the driver did not have a

valid license to operate the vehicle.     The occupants were then

ordered to get out of the vehicle.     As the juvenile got out, the

police officer noticed that the juvenile twice looked down at

his groin area which, along with the smell of unburnt marijuana,

prompted a patfrisk and the subsequent discovery of thirteen

individually wrapped bags of marijuana inside a clear plastic

sandwich bag.

     Discussion.   Where an arrest occurs without a warrant, a

judicial officer must review the complaint application for

probable cause to believe that the person arrested committed the

offense charged before issuing the complaint.     See Commonwealth

v. Lester L., 445 Mass. 250, 255 (2005); Commonwealth v.

     3
       The police incident report is unclear as to the number of
persons in the vehicle at the time of the stop.
                                                                      5


DiBennadetto, 436 Mass. 310, 313 (2002); Mass. R. Crim. P.

3 (g) (2), as appearing in 442 Mass. 1502 (2004).     The complaint

application must allege facts sufficient to establish probable

cause as to each element of the offense charged.     See

Commonwealth v. Moran, 453 Mass. 880, 884 (2009).     After the

issuance of a complaint, the defendant (or juvenile) may

challenge the probable cause finding by a motion to dismiss.

DiBennadetto, supra.     The probable cause standard on a motion to

dismiss a complaint is identical to that applied in the analysis

of a motion to dismiss an indictment for lack of probable cause.

See Lester L., 445 Mass. at 255-256, citing Commonwealth v.

O'Dell, 392 Mass. 445, 450 (1984).    As the issue of probable

cause presents a question of law, we review the motion judge's

determination de novo.    Commonwealth v. Humberto H., 466 Mass.

562, 566 (2013).

    1.   The probable cause standard.     "[P]robable cause exists

where, at the moment of arrest, the facts and circumstances

within the knowledge of the police are enough to warrant a

prudent person in believing that the individual arrested has

committed or was committing an offense."     Commonwealth v.

Stewart, 469 Mass. 257, 262 (2014), quoting Commonwealth v.

Santaliz, 413 Mass. 238, 241 (1992).     The test is objective.

The validity of the police officer's conduct is determined by

focusing on whether a "reasonable" person would concur in the
                                                                      6


action taken.   Commonwealth v. Daniel, 464 Mass. 746, 751

(2013), citing Commonwealth v. Hason, 387 Mass. 169, 175 (1982).

Therefore, we require only that "[t]he officers must have

entertained rationally 'more than a suspicion of criminal

involvement, something definite and substantial, but not a prima

facie case of the commission of a crime, let alone a case beyond

a reasonable doubt.'"    Santaliz, supra at 241, quoting

Commonwealth v. Rivera, 27 Mass. App. Ct. 41, 45 (1989).        Put

succinctly, probable cause "requires more than mere suspicion

but something less than evidence sufficient to warrant a

conviction."    Commonwealth v. Roman, 414 Mass. 642, 643 (1993),

quoting Hason, supra at 174.

    2.   Analysis of the complaint application.    Because the

juvenile concedes possession of the marijuana found on his

person, we focus our analysis on whether the complaint

application contained sufficient facts to establish probable

cause to believe the juvenile intended to distribute the

marijuana.   The Commonwealth argues that the confluence of

events described in the police incident report establishes

probable cause to arrest the juvenile for possession with intent

to distribute the thirteen bags of marijuana found on his

person, as opposed to simple possession of the drugs.      In

particular, the Commonwealth relies on the following:      (1) the

quantity and packaging of the marijuana secreted in the
                                                                   7


juvenile's groin area; (2) the juvenile's association with a

group of individuals engaged in conduct consistent with a drug

transaction; (3) the juvenile's nervous demeanor during the

encounter with the police; (4) the odor of unburnt marijuana;

(5) the traffic pattern of the vehicle in which the juvenile was

a passenger; and (6) the lack of drug paraphernalia on the

juvenile's person.   We recognize that probable cause is

determined from the totality of the circumstances, rather than

each factor separately.   Where no single factor is

determinative, however, we assess separately the value of each

factor in establishing the juvenile's intent to distribute,

rather than simply possess, the marijuana found on his person.

See Humberto H., 466 Mass. at 566. ("We consider each of these

factors, recognizing that probable cause must be determined

based on the totality of the evidence").

    a.   The quantity and packaging of the drugs.     The

Commonwealth does not argue that possession of thirteen

individually wrapped bags of an unknown quantity of marijuana,

standing alone, is sufficient to raise an inference of intent to

distribute.   Instead, the claim is that possession of that

quantity of marijuana in combination with other factors

establishes probable cause to believe the juvenile intended to

distribute the marijuana found on his person.   This quantity,
                                                                   8


whatever the precise amount,4 and the packaging in separate bags

add little to the corpus of facts needed to establish probable

cause.

     As noted, the police incident report does not claim that

the juvenile was the person who interacted with the couple when

the assumed drug transaction took place.   However, for the sake

of argument we infer that he did so and consider the quantity

and packaging in that context.   A small undetermined amount of

marijuana is entirely consistent with personal use.    Cases

involving comparable amounts illustrate the point.    See

Commonwealth v. Sepheus, 468 Mass. 160, 165 (2014) ("a few

individually packaged rocks of crack cocaine do not suffice" to

show intent to distribute); Humberto H., 466 Mass. at 568

(possession of unknown quantity of five bags of marijuana "small

enough that it fit in one pocket of a pair of shorts that the

juvenile wore under his pants" insufficient to show intent to

distribute); Commonwealth v. Acosta, 81 Mass. App. Ct. 836, 841-

842 (2012) (possession of 3.16 grams of cocaine in five

individual bags insufficient to indicate intent to distribute);

Commonwealth v. Andrews, 49 Mass. App. Ct. 201, 204 (2000)

("possession of 2.73 grams of cocaine, even packaged in eleven

envelopes, does not, without more, clearly tend towards showing

     4
       The complaint application does not state the quantity of
marijuana, only that "13 small bags" were seized.
                                                                   9


an intent to distribute").   In sum, possession of this quantity

does not rationally create more than a suspicion that the

juvenile, at the time of the arrest, possessed the marijuana

with the intent to distribute the substance.

     Nor does the packaging add heft to an inference that the

juvenile possessed the marijuana with intent to distribute.5

According to the police incident report, the packaging was not

distinctive in any way or otherwise similar to packaging

typically associated with intent to distribute.   See Sepheus,


     5
       The Commonwealth cites no authority to advance its
argument that the particular packaging evidences probable cause
of intent to distribute. We are directed instead to the
following unpublished Appeals Court decisions, which have been
overruled or which support the dismissal of the complaint
against the juvenile. In Commonwealth v. Pete P., 82 Mass. App.
Ct. 1120 (2012), the Appeals Court reversed a Juvenile Court
order dismissing a complaint against a juvenile who possessed
eleven similarly packaged bags of an indeterminate amount of
marijuana. This court denied the juvenile's request for further
appellate review but remanded to the Appeals Court for
reconsideration in light of Commonwealth v. Humberto H., 466
Mass. 562 (2013). Commonwealth v. Pete P., 466 Mass. 1112
(2013). On reconsideration, the Appeals Court affirmed the
dismissal of the delinquency complaint in an unpublished order.
In Commonwealth v. Duncan D., 82 Mass. App. Ct. 1111 (2012), the
Appeals Court also affirmed the dismissal of a delinquency
complaint, which was based on a juvenile's possession of one
ounce or less of marijuana packaged in six bags. The
Commonwealth also cites Commonwealth v. Balthazar B., 81 Mass.
App. Ct. 1140 (2012). Although the court in that case
determined there was probable cause to issue a juvenile
complaint based on possession of individual bags of a "green
leafy substance," the case was decided and the defendant's
application for further appellate review was denied before
Humberto H., after which the Appeals Court reversed its
conclusion in Pete P. on similar grounds.
                                                                    10


468 Mass. at 165-166 (packaging of cocaine insufficient to

create inference of distribution where "[t]here was no evidence

that the three baggies in this case had been bundled or packaged

in a manner that suggests they were the remains of a larger

inventory").   Cf., e.g., Commonwealth v. Montanez, 410 Mass.

290, 305 (1991) (packaging of cocaine in paper folds indicative

of intent to distribute); Commonwealth v. Pratt, 407 Mass. 647,

650 & n.3, 651, 653 (1990) (numerous bags of heroin, each marked

with brand name popular in area and bundled into groups of ten

wrapped together in packages of fifty, indicative of intent to

distribute); Commonwealth v. Gonzales, 33 Mass. App. Ct. 728,

731 (1992) (bundling of ten packets with elastic band indicative

of intent to distribute); Commonwealth v. Sendele, 18 Mass. App.

Ct. 755, 758 (1984) ("distinct packaging" of drugs supported

inference of distribution).   Further, the police incident report

lacks specificity as to whether the individually wrapped bags

contained amounts generally offered for sale.    Cf. Commonwealth

v. Stephens, 451 Mass. 370, 388 (2008) (cocaine packaged in two

"eight balls" and one "forty" bag), citing Commonwealth v.

Wilson, 441 Mass. 390, 400-402 (2004) (marijuana packaged in

"dime" bag units); Commonwealth v. Ellis, 356 Mass. 574, 578

(1970) (heroin packaged in ten dollar bags); Commonwealth v.

James, 30 Mass. App. Ct. 490, 491-492 (1991) (cocaine packaged

in "jumbo" bags, each worth fifty dollars).     On these facts, the
                                                                   11


packaging does not raise a reasonable inference that the

juvenile intended to distribute the marijuana.

     b.   The juvenile's association with suspicious persons.

The juvenile's interaction with the other individuals just prior

to the arrest amounts to mere association untinged with any

evidence of criminality.   While cast as conduct consistent with

a drug transaction, the group's interaction with the couple does

not fit within that description.   The group, which was under

surveillance at all times, had a "brief conversation" with the

couple, after which two members of the group and the couple

walked a short distance toward Southern Avenue where they had a

"brief interaction."   The narrative does not suggest an exchange

of any kind between the couple and the group, either during the

"brief conversation" or the "brief interaction."6   "Although we

do not require 'that an officer must actually see an object

exchanged,' the suspect's movements, as observed by the officer,

must provide factual support for the inference that the parties


     6
       The Commonwealth, relying on Commonwealth v. Santaliz, 413
Mass. 238 (1992), argues that it is not important that the
officers were unable to see what was exchanged between the
couple and the group. This puts the cart way ahead of the horse
in that it does not appear that any exchange at all occurred
between the group and the couple. That illogical leap is
repeated in the Commonwealth's argument that it is irrelevant
whether the juvenile participated in the transaction or acted as
a lookout. The police incident report provides no information
from which an inference that the juvenile was a lookout
reasonably might be drawn.
                                                                    12


exchanged an object."   Stewart, 469 Mass. at 263, quoting

Commonwealth v. Kennedy, 426 Mass. 703, 710 (1998).     Thus, other

than the normal social intercourse that occurs with some

frequency on the streets of Boston's neighborhoods, nothing in

the police incident report supports the claim of conduct

consistent with a drug transaction.

    Even if the interaction with the couple during the walk

toward Southern Avenue properly may be deemed consistent with a

drug transaction, the narrative lacks any specificity as to

whether the juvenile was a participant.     Therefore, as the

Commonwealth concedes, we know only that the juvenile was

present in the vicinity where a drug transaction may have

occurred.   The Commonwealth "cannot rely on evidence that merely

places the [juvenile] at the scene of the crime and shows him to

be in association with the principals."     Sepheus, 468 Mass. at

167, quoting Commonwealth v. Saez, 21 Mass. App. Ct. 408, 411

(1986).   See Commonwealth v. Montalvo, 76 Mass. App. Ct. 319,

330 (2010) ("evidence that a defendant associated with persons

who committed the crime does not lead to an inference that he

also participated in the crime").     Without some narrative fact

suggesting the juvenile's involvement in the criminal activity,

probable cause is not supported by his mere association with the

group.
                                                                   13


    c.   The juvenile's demeanor.   The Commonwealth claims that

the juvenile "looked nervously" at the police officer as the

juvenile crossed Washington Street and entered the vehicle.

This characterization vastly overstates the juvenile's apparent

reaction to becoming aware of the police presence in the area.

The narrative states only that the juvenile "walk[ed] away in a

hurried manner looking back at the officers several times."

Even if the juvenile's behavior properly could be characterized

as nervous, it lacks value in the probable cause assessment.

If, as the narrative asserts, the juvenile hurriedly walked away

from the area as he looked back at the police officers, he no

doubt was aware that the police were conducting surveillance of

his movements.   While nervousness in an encounter with a police

officer may be factor in the probable cause analysis, see

Commonwealth v. Sinforoso, 434 Mass. 320, 324 (2001), it lacks

force in the circumstances of this case where a sixteen year old

boy is under scrutiny by the police.   Even after the passage of

G. L. c. 94C, § 32L, which decriminalized the possession of one

ounce or less of marijuana, we have accorded little weight to a

juvenile's demeanor alone.   We recognize that a juvenile who

possesses marijuana may nonetheless face serious personal

consequences in his or her education and career choices.    See

Humberto H. 466 Mass. at 566-567 (juvenile's "defensive and

agitated" demeanor explained by possible consequences of
                                                                    14


possession of marijuana); Commonwealth v. Cruz, 459 Mass. 459,

468 (2011) ("It is common, and not necessarily indicative of

criminality, to appear nervous during even a mundane encounter

with police . . . ").

    d.    The odor of unburnt marijuana.   Our cases considering

the odor of unburnt marijuana as a factor in the "reasonable

suspicion" necessary for an exit order in a motor vehicle stop

offer helpful guidance in the probable cause analysis in this

case.   These cases have not accorded significance to the odor of

unburnt marijuana in circumstances comparable to those at issue

here.    In Commonwealth v. Overmyer, 469 Mass. 16 (2014), we held

that the odor of unburnt marijuana alone was insufficient to

justify the warrantless search of a vehicle.     Taking note of the

2008 ballot initiative decriminalizing one ounce or less of

marijuana, we stated that "it does not follow that such an odor

[of unburnt marijuana] reliably predicts the presence of a

criminal amount of the substance . . . [that] would be necessary

to constitute probable cause."   Id. at 21.    That principle

obviously applies here.    See Commonwealth v. Fontaine, 84 Mass.

App. Ct. 699, 706 (2014) ("odor of unburnt marijuana . . .

standing alone, does not provide . . . probable cause to conduct

a search").

    e.    The traffic pattern of the suspect vehicle.    The

traffic pattern of the vehicle, in which the juvenile was a
                                                                     15


passenger rather than the driver, does not suggest anything more

than the mere possession of marijuana.    The police incident

report sheds no light on how the vehicle, populated with

teenaged passengers, and moving from one block to another, was

remarkable or otherwise typical of drug activity.     Probable

cause to believe that a crime has occurred requires something

more than innocent behavior.    See Roman, 414 Mass. at 643.

    f.    The lack of smoking paraphernalia.   The Commonwealth

argues that the lack of smoking paraphernalia weighs against

mere possession, citing Wilson, 441 Mass. at 401.      Our cases

have considered the lack of drug paraphernalia associated with

personal use as a factor probative of an intent to distribute.

See Commonwealth v. Little, 453 Mass. 766, 770 (2009).      However,

the lack of smoking paraphernalia in Wilson, supra, suggested

intent to distribute only in conjunction with other factors

noted by the court:    a relatively large amount of cash, a pager,

a cellular telephone, and the distinctive packaging in "dime"

bags.    None of those factors exists in this case.   In addition,

where the contraband is a small amount of marijuana, the lack of

drug paraphernalia does not detract from the inference of simple

possession.   See Humberto H., 466 Mass. at 567-568.     A person

who intends only to smoke marijuana would fit precisely the

profile of the juvenile in this case.    For simple possession, he
                                                                   16


had no need of cash, scales, or evenly measured packages in

amounts consistent with a quick sale.

    In the analysis of the totality of the circumstances, the

inquiry shifts away from the relative significance of each

individual factor to their collective effect in the probable

cause calculus.   Even in combination, however, these factors are

insufficient to establish probable cause to believe that the

juvenile intended to distribute the marijuana found on his

person.   Although the question is close, our analysis accords

greater significance to the nature and amount of the substance,

and that it was possessed by a juvenile.    Here, the substance

was marijuana, and it was a small, undetermined amount.   As in

Commonwealth v. Jackson, 464 Mass. 758, 765 (2013), we are

mindful of the "clear policy goals" served by the passage in

2008 of "An Act establishing a sensible State marihuana policy,"

which decriminalized the possession of one ounce or less of

marijuana, reducing it to a civil infraction.   G. L. c. 94C,

§ 32L, inserted by St. 2008, c. 387, § 2.    In deference to those

policy goals, we exercise a measure of vigilance in our analysis

of questions related to the issue of probable cause to believe

that a crime has been committed.   Accommodation of those policy

goals means that where a defendant or juvenile possesses a small

quantity of marijuana, less than that required to trigger a

criminal prosecution, the other factors must be weighed more
                                                                       17


heavily in the probable cause analysis.    Here, none of those

factors tips the scale in favor of probable cause to believe

that the juvenile intended to distribute the substance.        As in

Humberto H., 466 Mass. at 566-567, the juvenile's age detracts

from the probative value that otherwise might be accorded to his

nervous demeanor and his association with other young black

males on a street corner.    While possession with the intent to

distribute any amount of marijuana is a criminal offense, we

reiterate that "where judicial officers evaluate probable cause

[in cases involving small, presumptively decriminalized amounts

of marijuana], they must be mindful of the risk that police

officers or prosecutors might allege an intent to distribute

based on the mere suspicion of such an intent for the purpose of

charging the offender as a criminal or delinquent rather than as

a civil violator."    Humberto H., supra at 570-571.   The caution

to be exercised by judicial officers does not undermine a

prosecutor's authority to enforce our laws prohibiting

possession with the intent to distribute marijuana.

    Conclusion.      For the reasons set forth, the Juvenile

Court's order of dismissal is affirmed.

                                     So ordered.
    SPINA, J. (dissenting, with whom Cordy and Botsford, JJ.,

join).   The court has unduly parsed the various observations

made by police and determined that each factor standing alone

fails to establish probable cause to arrest, without adequate

consideration that the factors, in combination, provide probable

cause.   "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."    Phillips v. Chase, 201 Mass. 444,

448 (1909).    See 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").

The old adage that the whole may be greater than the sum of its

parts received no consideration from the court, an unfortunate

decision.

    Most of the cases relied upon by the court concerning the

quantity and packaging of contraband involved additional factors

presented at trial to establish proof beyond a reasonable doubt,

and virtually all those cases resulted in affirmances of the

convictions.   Our case law provides numerous instances where a

quantity of small baggies of marijuana, similar to the quantity

here, were enclosed in a larger bag, also as here.   In each of

these cases, the quantity and packaging, together with other
                                                                    2


factors, including expert testimony, provided sufficient

evidence to convict a defendant of possession with the intent to

distribute.   See, e.g., Commonwealth v. Little, 453 Mass. 766,

768, 771-772 (2009) (fifteen baggies, $254, cellular telephone,

and no smoking paraphernalia); Commonwealth v. Wilson, 441 Mass.

390, 393, 400-402 (2004) (twenty baggies in bundle having

combined weight of one-half ounce, $476, cellular telephone,

pager, and no smoking paraphernalia); Commonwealth v.

Dessources, 74 Mass. App. Ct. 232, 238 (2009) (sixteen baggies

in different places on defendant's person, defendant arrested in

park frequented by drug dealers, no smoking paraphernalia, three

others near defendant observed passing marijuana pipe, and

expert opinion that baggies had street value of $320 -- but

value would be considerably less if marijuana combined in single

unit); Commonwealth v. Pena, 40 Mass. App. Ct. 905 (1996) (six

baggies, sixty dollars, beeper, bag containing baggies hidden in

defendant's pants, and defendant fled when he saw police).    The

marijuana seized from the defendant here, thirteen small baggies

of marijuana placed in a larger bag, in conjunction with other

factors, is consistent with amounts and packaging in cases where

a defendant was convicted of possession of marijuana with the

intent to distribute.   In one case, Wilson, supra at 400, the

combined weight of marijuana in twenty baggies, fifty per cent
                                                                   3


more than here, was one-half ounce, which is below the current

threshold for criminal possession.

    The location of a controlled substance on the defendant's

person, his groin area, in conjunction with other factors, has

been considered a factor probative of the question of intent to

distribute.   See Commonwealth v. DeJesus, 468 Mass. 174, 176

(2014) (guilty plea vacated because of ineffective assistance of

counsel on another ground); Commonwealth v. Clermy, 421 Mass.

325, 330-331 (1995); Commonwealth v. Lobo, 82 Mass. App. Ct.

803, 806 (2012); Commonwealth v. Benitez, 37 Mass. App. Ct. 722,

724 (1994); Commonwealth v. Rivera, 27 Mass. App. Ct. 41, 42

(1989).

    The absence of smoking paraphernalia, in conjunction with

other factors, also has been recognized as probative of an

intent to distribute.    See Little, supra; Wilson, supra;

Dessources, supra.

    The unusual and complex manner in which the four males,

including the defendant, acted and interacted after the

suspected sale reasonably could be viewed as evasive measures to

avoid detection, including flushing out the possibility of

police surveillance.    Such evidence, in conjunction with other

factors, is probative of an involvement with drugs that is

deeper than mere possession of marijuana.    See Commonwealth v.

Gonzalez, 452 Mass. 142, 144 (2008) ("scurrying" sounds within
                                                                    4


apartment); Commonwealth v. Watson, 430 Mass. 725, 728 & n.10

(2000) ("Drug couriers use erratic driving to find out whether

they are being followed"); Commonwealth v. Cabrera, 76 Mass.

App. Ct. 341, 347 (2010) (automobile maneuvers); Commonwealth v.

Dise, 31 Mass. App. Ct. 701, 704-705 (1991) (same).

    The fact that no actual exchange was observed by police may

weaken the Commonwealth's probable cause showing, but other

factors may be sufficient to overcome the absence of such

evidence.   See Commonwealth v. Kennedy, 426 Mass. 703, 711

(1998).   There is no per se rule that precludes arrest unless an

actual exchange is observed.   Commonwealth v. Levy, 459 Mass.

1010, 1011 (2011).   As we said in Commonwealth v. Rivera, 425

Mass. 633, 646 n.13 (1997), "[u]nfortunately drug sales are so

common in present society that almost any witness could draw the

inference that drug sales were occurring when observing the

activities described by [the officer, even without being able to

see what was exchanged]."

    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

men, not legal technicians, act."   Brinegar v. United States,

338 U.S. 160, 175 (1949).   The Commonwealth has made the

requisite showing.   Evidence that the defendant had thirteen
                                                                    5


small baggies of marijuana collected in a larger bag concealed

in his groin area, that he had no paraphernalia by which to

smoke marijuana, and that he in consort with three other people

took complex evasive maneuvers provided sufficient basis on

which a clerk-magistrate properly issued a complaint against him

for possession of marijuana with the intent to distribute.

There was no need to provide a chemical or weight analysis of

the marijuana, or an expert opinion as to intent, for purposes

of establishing probable cause.   Such additional evidence more

practically would be obtained and provided as discovery in

anticipation of a trial.1

     Today's decision likely will leave police departments in a

quandary as to the extent of an investigation that is necessary

to provide a police report that will survive probable cause

analysis and be available prior to arraignment on the question

of pretrial release, which in many cases is well within twenty-

four hours of arrest.   This could require calling in officers to

work overtime, or require arresting officers to work overtime to

enhance their reports, or essentially encourage officers not to


     1
       The court notes the policy goals of the 2008 ballot
initiative and St. 2008, c. 387, "An Act establishing a sensible
State marihuana policy." I appreciate those goals but the 2008
enactment did not decriminalize possession with the intent to
distribute marijuana, and I do not read this enactment as
intending to reject, alter, or affect this court's established
jurisprudence concerning a determination of probable cause.
                                                                   6


arrest because of insufficient time to prepare a report.   This

simply may not be feasible, nor should it be.   The probable

cause to arrest standard is a low threshold that anticipates far

more work and preparation intended to meet the standard

applicable at trial -- proof beyond a reasonable doubt.    The

probable cause standard is only the beginning of a far more

complex process.   For these reasons I respectfully dissent.
