Opinion
13-P-392
01-13-2014
COMMONWEALTH v. ILYA I., a juvenile.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from the allowance of a motion to dismiss a delinquency complaint. We reverse.
Background. As set forth in the police report attached to the application for the complaint, officers observed the juvenile standing with three other males on Washington Street on June 1, 2012. A couple approached the group and engaged in a brief conversation. Two of the males walked with the couple to Southern Avenue, just off of Washington Street, while the other two remained and surveilled the street. Very shortly after, the couple walked away and the four males regrouped near a McDonald's restaurant. As officers approached the McDonald's, the male group hurriedly walked away and entered a car across the street. After a short period, two males exited the car and headed down Washington Street on foot. The car also proceeded down Washington Street for about one block before stopping to pick up the two pedestrian males. The car made two turns before parking, at which time officers initiated a vehicle stop for drug investigation. The officers smelled unburnt marijuana, saw that the occupants were not wearing seatbelts, and found that the driver did not have a valid license. When the juvenile exited the car, he looked down at his groin area twice. An officer pat-frisked the juvenile and felt a soft object near his groin. The officers then handcuffed the juvenile and found thirteen small bags of marijuana in the juvenile's groin area. On June 4, 2012, the juvenile was charged with delinquency by reason of possession of marijuana with intent to distribute and a school zone violation. Subsequently he filed a motion to dismiss, arguing that the application for the complaint contained insufficient evidence to show probable cause as to intent to distribute. After hearing from counsel, and engaging in a brief colloquy with the juvenile, the judge dismissed the complaint.
It is clear from the transcript of the hearing on the motion to dismiss that the judge had read the police report.
The judge's comments at the hearing suggest that he was concerned that the search that resulted in discovery of the thirteen bags of marijuana was not supported by probable cause, and therefore was unjustified. The legality of a search, however, is not at issue on a motion to dismiss the complaint. For purposes of assessing probable cause to arrest, the judge was obliged to consider the evidence discovered in the search. The legality of the search will be placed at issue only if and when the juvenile brings a motion to suppress the evidence.
Discussion. We review de novo whether the complaint application contained sufficient evidence to establish probable cause as to distribution. See Commonwealth v. Humberto H., 466 Mass. 562, 564-566 (2013). The issuance of a complaint must be supported by probable cause. Commonwealth v. DiBennadetto, 436 Mass. 310, 314 (2002). The standard of proof required to issue a complaint is the same as that required to establish probable cause to arrest. See Commonwealth v. Lester L., 445 Mass. 250, 254-256 (2005). 'Probable cause to arrest exists where the facts and circumstances in the arresting officer's knowledge and of which he has reasonably trustworthy information are sufficient to warrant a person of reasonable caution in believing that an offense has been or is being committed.' Smith, Criminal Practice & Procedure § 3.51, at 122 (3d ed. 2007). 'The test is an objective one,' ibid., requiring 'less than evidence which would justify . . . conviction but more than bare suspicion,' id. at 123. We have reviewed the police report in this case and are satisfied that the observations described therein establish that the complaint was supported by probable cause. Thus it was error to dismiss the complaint.
We distinguish Humberto H., in which the Supreme Judicial Court affirmed the dismissal of a juvenile complaint for possession of marijuana with intent to distribute. Commonwealth v. Humberto H., 466 Mass. at 563. In Humberto H., the court held that there was insufficient evidence to support probable cause as to intent to distribute, where the evidence was the juvenile's agitated demeanor when confronted by the school dean, the lack of paraphernalia on the juvenile's person, and the recovery of five baggies containing a quantity of marijuana that 'had no street value.' Id. at 566- 568. We conclude the evidence in the case at bar exceeds that in Humberto H. and is sufficient, viewed in its totality, to show probable cause as to intent to distribute.
Order dismissing complaint reversed.
By the Court (Green, Carhart & Maldonado, JJ.),