author: TRAINOR, J.

text:
    COMMONWEALTH v. Elisabeth TELCINORD.
    No. 17-P-1050.
    Appeals Court of Massachusetts, Norfolk..
    Argued February 7, 2018 Decided October 17, 2018
    Meredith Shih for the defendant.
    Marguerite T. Grant, Assistant District Attorney (Sean P. Riley, Assistant District Attorney, also present) for the Commonwealth.
    Present: Trainor, Blake, & Lemire, JJ.
   TRAINOR, J.

After a jury trial in the Quincy Division of the District Court Department, the defendant, Elisabeth Telcinord, was convicted on a criminal complaint charging her with one count of violating an abuse prevention order pursuant to G. L. c. 209A, § 7. On appeal, the defendant argues that (1) there was insufficient evidence that she violated the stay-away provision of the order; (2) the judge's instruction to the jury to use their common understanding of the phrase "stay away from the plaintiff's residence" when the jury asked for a legal definition was error; and (3) testimony about the defendant's arrest created a substantial risk of a miscarriage of justice. We affirm the judgment.

On August 3, 2016, the Brockton Division of the District Court Department issued a G. L. c. 209A abuse prevention order directing the defendant to stay at least fifty yards away from the victim, not contact him, stay away from his workplace, and stay away from his residence located at 13 Hall Street in Randolph.

At 8:15 P . M . on August 4, 2016, a Brockton police officer served the defendant with a copy of the c. 209A order in hand. At about 3 A . M . on August 5, 2016, a Randolph police officer was dispatched to Hall Street. The officer drove on North Main Street, turned onto Hall Street, and parked his marked cruiser at 15 Hall Street.

The officer observed two vehicles drive onto Hall Street from North Main Street. The first vehicle was driven by a man, later identified as the victim and the subject of the abuse prevention order. The second vehicle was operated by the defendant and was traveling about three car lengths behind the victim's vehicle. As the vehicles approached the cruiser, the defendant pulled her vehicle over to the right side of the street and stopped. The victim stopped his vehicle in front of the cruiser and got out to speak to the officer, who described the victim as "upset." The officer thereafter drove his cruiser back to the defendant's vehicle to speak with her.

The defendant told the officer that "she thought that she was in compliance with the order by the distance she was away from the [victim's] house." She also said that she was married to the victim, and admitted that she was following him; she was trying to deal with a family issue involving the victim having contacted her father. The officer described the defendant as "upset." The officer spoke again with the victim, who was still upset, and then returned to the defendant's vehicle and arrested her. She identified herself by name, birthdate, and address at the booking.

Discussion. 1. Statutory framework. The Legislature enacted G. L. c. 209A in 1978. The original version of G. L. c. 209A, § 7, criminalized only a defendant's violation of an order to "refrain from abus[e]" or "vacate the household." See St. 1983, c. 678, § 5. In 1990, the Supreme Judicial Court considered the question whether a trial court judge's order requiring the defendant to "leave and remain away from the [marital household]" was authorized under the statute, because the statute, at that time, only contained the provision to "vacate forthwith the household." Commonwealth v. Gordon, 407 Mass. 340, 344-345, 553 N.E.2d 915 (1990). The defendant argued that the order could only be violated by failing to vacate the household, and not by his returning to visit it. Id. at 345-346, 553 N.E.2d 915. The court concluded that the defendant had misconstrued the purpose and scope of the term "vacate" as used in G. L. c. 209A. , Id. at 346-348, 553 N.E.2d 915.

The court proceeded to elaborate on the harm that the Legislature was attempting to prevent, and why it was essential that the defendant be required to stay away from the residence and workplace of the victim.

"An order to 'vacate the household' ... creates a haven for the abused party in which no further abuse need be feared and provides a temporary, partial separation of the abused and abusive party, thereby leaving fewer opportunities for abusive contact.
"Were we to adopt the defendant's definition of 'vacate,' an abusive party, having surrendered occupancy of the household, would be free to return to the house at will. The abused party would have no ability to lessen the abusive party's prerogative to initiate contact and could expect no refuge from the possibility of further abuse. That the Legislature intended the word 'vacate' to include the concept of 'remain away' is demonstrated by the authority of a judge to issue a 'vacate' order for a period of one year. G. L. c. 209A, § 3 (b )."

Id. at 347, 553 N.E.2d 915.

The Gordon court read into the statutory language the requirement that the defendant not only vacate the residence but also remain away from it. The Legislature responded by amending the statute and making the court's interpretation explicit in the statutory language. See note 5, supra. The purpose of this interpretation, significantly, is the recognition of the core purpose of an abuse prevention order, that is, the creation and maintenance of a safe haven from the threat of continued abuse.

To establish a violation of G. L. c. 209A, § 7, the Commonwealth must prove that (1) a valid G. L. c. 209A order was issued by a judge, (2) the order was in effect on the date of the alleged violation, (3) the defendant had knowledge of the order, and (4) the defendant violated the order. See Commonwealth v. Collier, 427 Mass. 385, 388, 693 N.E.2d 673 (1998) ; Commonwealth v. Delaney, 425 Mass. 587, 595-597, 682 N.E.2d 611 (1997), cert. denied, 522 U.S. 1058, 118 S.Ct. 714, 139 L.Ed.2d 655 (1998). Only the fourth requirement is in dispute here, i.e., whether the defendant violated the order.

2. Stay away. The defendant argues that the phrase "stay away" is so vague that without the judge defining specific geographic boundaries for the meaning of "stay away," the jury were allowed to speculate in reaching their decision on an essential element of the crime.

Our courts have not required this kind of mathematical specificity in order to find a statute enforceable and a defendant's due process rights protected. In Commonwealth v. Bohmer, 374 Mass. 368, 369, 372 N.E.2d 1381 (1978), the Supreme Judicial Court addressed a similar issue where the defendants challenged their convictions of wilfully interrupting or disturbing a school in violation of G. L. c. 272, § 40. The defendants contended that the statute was unconstitutionally vague and therefore void, and that their convictions under the statute were denials of their right to due process under the Fourteenth Amendment to the United States Constitution. Id. at 371, 372 N.E.2d 1381. The court answered their contentions while upholding the constitutionality of the statute.

"Due process requires that a criminal statute be sufficiently clear to give notice of the conduct that it prohibits. A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. Due process requirements also mandate that no statute have such a standardless sweep that arbitrary and discriminatory enforcement by the police and the courts is permitted. It would certainly be dangerous if the [L]egislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.
"However, since words are the elements that constitute a statute, mathematical precision in the definition of legislative enactments is not required. A statute is satisfactory so long as it clearly indicates what it prohibits as a whole.... Uncertainty as to whether marginal offenses are included within the coverage of a statute does not render it unconstitutional if its scope is substantially clear." (Citations and quotations omitted.)

Id. at 371-372, 372 N.E.2d 1381.

In Commonwealth v. Orlando, 371 Mass. 732, 733-736, 359 N.E.2d 310 (1977), the court previously addressed this principle when upholding the constitutionality of G. L. c. 272, § 53, which provides punishment for disturbers of the peace.

"A law is unconstitutionally vague if it is not sufficiently explicit to give clear warning as to proscribed activities. Commonwealth v. A Juvenile, 368 Mass. 580, 586-587 [334 N.E.2d 617] (1975). Connally v. General Constr. Co., 269 U.S. 385, 391 [46 S.Ct. 126, 70 L.Ed. 322] (1926). A law is not vague, however, if it requires a person to conform his conduct to an imprecise but comprehensible normative standard so that men of common intelligence will know its meaning. Broadrick v. Oklahoma, 413 U.S. 601, 608 [93 S.Ct. 2908, 37 L.Ed.2d 830] (1973). Coates v. Cincinnati, 402 U.S. 611, 614 [91 S.Ct. 1686, 29 L.Ed.2d 214] (1971). Moreover, even when the outer boundaries of a law are imprecise, such imprecision does not permit a facial attack on the entire law by one whose conduct 'falls squarely within the "hard core" of the [statute's] proscriptions,' [Broadrick, supra ], particularly if greater specificity in the law is impractical." (Emphases added.)

Id. at 734, 359 N.E.2d 310.

Approximately fifty per cent of our country's State Legislatures have adopted the general "stay away" from a specified location provision in their domestic violence prevention statutes. Various States use different phraseology for their general stay-away provisions but all result in the same prohibition. Arizona, for example, prohibits "coming near" the residence (or place of employment or school), Ariz. Rev. Stat. Ann. § 13-3602 (2018); Texas prohibits "going to or near the residence or place of employment," Tex. Fam. Code Ann. § 85.022(b)(3) (2017); Louisiana prohibits "going near the residence or place of employment," La. Rev. Stat. Ann. § 46:2135(A)(1) (2018); and Maine prohibits "[b]eing at or in the vicinity of" the plaintiff's residence, place of employment, or school. Me. Rev. Stat. Ann. tit. 19-A, § 4007(1)(C)(2) (2017).

States have interpreted the meaning of, and the parameters of, "stay away" from a fixed location. In State v. Williams, 226 N.C. App. 393, 408, 741 S.E.2d 9 (2013), the court distinguished between a domestic violence protective order prohibiting the defendant from visiting the protected person's workplace and a more general domestic violence protective order requiring the defendant to stay away from the protected person's workplace.

"[W]here a court orders a defendant to 'stay away' from a particular location, it does so to prevent the defendant from threatening, abusing, following, interfering with, or harassing the protected party. It is possible that a defendant may not actually set foot upon the workplace premises but could harass or interfere with a victim by lurking so near as to impede the victim's ability to travel from place to place -- indeed, defendant herein did just that several times ... -- but the area to 'stay away' from is not without boundaries. ... The indictment alleges defendant was 'outside' [the protected person's] workplace, and although technically the area 'outside of [the protected person's] workplace could include any place in the world outside the walls of the salon, obviously such an interpretation is absurd. Certainly the order must mean that defendant could not be so close to [the protected person's] workplace that he would be able to observe her, speak to her, or intimidate her in any way, but we cannot define the exact parameters of the term 'stay away.' "

Id. at 409-410, 741 S.E.2d 9. ,

Our case law is replete with examples of upholding statutory language that is not precise but nevertheless "requires a person to conform his conduct to an imprecise but comprehensible normative standard so that men of common intelligence will know its meaning." Orlando, 371 Mass. at 734, 359 N.E.2d 310. For example, in Orlando, we applied a two-pronged test to define what is disruptive conduct pursuant to G. L. c. 272, § 53. See id. at 734-735, 359 N.E.2d 310. General Laws c. 272, § 53, prohibits conduct, "which, first, most people would find to be unreasonably disruptive, and second, [which] did in fact infringe on someone's right to be undisturbed. The first prong is normative and protects potential defendants from prosecutions based on unreasonable individual sensitivities. The second prong requires that the crime have a victim, and thus subjects potential defendants to criminal prosecution only when their activities have detrimental impact." Id. at 735, 359 N.E.2d 310.

"A more specific standard is impractical because the conduct proscribed by this law necessarily varies according to its location and timing.... A disturbing the peace standard which attempted to define more precisely the levels of noise and types of conduct permitted in various places at varying times would be both underinclusive and overbroad. The void for vagueness doctrine does not require this result. Rather, for offenses such as this, it permits the use of a normative standard which informs a potential defendant that his common sense in most cases will define proscribed conduct"
(emphasis added).

Id.

There certainly will be circumstances involving location and timing, within which a specific distance to stay away from a fixed location will be adequate to maintain a safe haven for the protected party. However, there are certainly also locations within which a general stay-away order is more appropriate to provide a safe haven for the protected party. The person ordered to stay away is required to conduct themselves so as not to contact or abuse the protected party.

We do not think that the preferred practice should be to require the trial judge to determine a specific distance that the abuser must stay away from the protected person's residence or workplace. Rather, the decision whether to impose a specific distance, if any, should be left to the sound discretion of the trial judge, who is in the best position to determine what the circumstances require to create a safe haven for the protected party.

Here, the defendant argues that the stay-away order could only be violated by her intruding onto the property of the victim's residence. We reject this contention. When the defendant drove her vehicle onto Hall Street and parked near and in clear sight of the victim's residence at 3 A . M ., it seems clear that she intended to confront the victim. Her presence on the victim's street near the victim's residence was not an accident, mistake, or otherwise the result of innocent conduct. This conduct violated the c. 209A order's directive to stay away from the victim's residence.

Next, the defendant argues that the judge committed reversible error when he provided the supplemental instruction in response to the jury's question regarding the "legal definition of stay away from the plaintiff's residence." Where, as here, the defendant failed to object to the instruction at trial, we review the instruction to determine whether any error in the instruction created "a substantial risk of a miscarriage of justice." Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967).

"The proper response to a jury question must remain within the discretion of the trial judge, who has observed the evidence and the jury firsthand and can tailor supplemental instructions accordingly." Commonwealth v. Monteagudo, 427 Mass. 484, 488, 693 N.E.2d 1381 (1998), quoting Commonwealth v. Waite, 422 Mass. 792, 807 n.11, 665 N.E.2d 982 (1996). Here, even if the instruction was error, it did not create a substantial risk of miscarriage of justice.

In the future, however, it would be better practice for the judge to explain to the jury what the stay-away order is intended to accomplish. Such instruction would assist the jury in applying their common experience, in determining whether the defendant has violated the purpose of the order. The distance will vary under different circumstances and can only be determined, as will a violation of the order, by what is necessary to prevent the defendant from contacting or abusing the protected party. The stay-away order is violated not only when a defendant actually commits an act of contacting or abusing the protected party, but also when the defendant is positioned within sufficient proximity to the property so that he would be able to contact or abuse the protected party if that party were on the property or entering or leaving it. See Commonwealth v. Goldman, 94 Mass. App. Ct. 222, 113 N.E.3d 392 (2018) ; Commonwealth v. Watson, 94 Mass. App. Ct. 244, 113 N.E.3d 374 (2018). The protected party need not be present for a violation of the order to occur.

3. Arrest testimony. Finally, we conclude that there is no merit in the defendant's contention that testimony about her arrest created a substantial risk of a miscarriage of justice. The police officer testified that he arrested the defendant, and that at the defendant's booking she gave her name, birthdate, and address. The officer identified the defendant by comparing her appearance to her registry of motor vehicles photograph. See Commonwealth v. Crayton, 470 Mass. 228, 242, 21 N.E.3d 157 (2014) (identification testimony of arresting officer admissible to prove defendant "is the person who was arrested for the charged crime"). The defendant also attacked the adequacy of the police investigation, thereby placing her arrest at issue. See Commonwealth v. Mitchell, 89 Mass. App. Ct. 13, 27, 45 N.E.3d 111 (2016) ; Commonwealth v. Philyaw, 55 Mass. App. Ct. 730, 733, 774 N.E.2d 659 (2002) ("officer should not be put in the false position of seeming just to have happened upon the scene," but should be allowed to explain conduct [quotation omitted] ). Finally, the judge's instructions would have countered any possible prejudice that could have flowed from evidence of the defendant's arrest. The judge instructed the jury on the presumption of innocence on three separate occasions. He specifically instructed that "[a] complaint against the defendant's [sic ] only an accusation. It's not evidence." There was no substantial risk of a miscarriage of justice here.

Judgment affirmed.

      The defendant was sentenced to one year of probation with the condition that she complete a batterer's program.

      The Commonwealth did not proceed against the defendant for a violation of the no-contact portion of the order.

      Hall Street is a residential street of mostly single-family homes. The street is not a "cut-through," and has minimal traffic -- "mostly people who live on the street."

      Based on the testimony and exhibits submitted at trial, we infer that the distance to the defendant's vehicle was very short. The officer presumably wanted to keep his cruiser close to him.

      The Legislature acted quickly and, in agreement with the court, enacted St. 1990, c. 403, § 2, which amended G. L. c. 209A, § 1, to define "vacate order" as a "court order to leave and remain away from the premises ..." (emphasis added). General Laws c. 209A, § 3 (c ), as amended by St. 1990, c. 403, § 3, allows the court to "[order] the defendant to vacate forthwith and remain away from the household, multiple family dwelling, and workplace" (emphasis added).

      "In determining the range of activity the Legislature intended to prohibit by authorizing courts to issue orders requiring defendants to 'vacate' the marital home, this court must look to the words of the statute 'construed by the ordinary and approved usage of the language, considered in connection with the cause of [the statute's] enactment, the mischief or imperfection to be remedied and the main object to be accomplished.' ... Chapter 209A, while allowing an order to 'vacate,' provides no particular definition for the term. Webster's New Int'l Dictionary 2810 (2d ed. 1957) defines 'vacate' as '3. [t]o make vacant, as an office, post, house, etc.; to deprive of an incumbent or occupant.' While this definition makes clear the fact that the Legislature intended an abusive defendant to depart from the house, it provides no guidance in either a negative or affirmative direction whether the Legislature intended to require such a defendant to stay away from the house subsequent to the initial departure. The Legislature's intention, however, becomes clear when we consider the 'mischief or imperfection' with which c. 209A is concerned and 'the main object' which c. 209A seeks to accomplish." Gordon, 407 Mass. at 346, 553 N.E.2d 915.

      The defendant's reliance on Commonwealth v. O'Shea, 41 Mass. App. Ct. 115, 118, 668 N.E.2d 861 (1996), overruled on other grounds, Delaney, 425 Mass. at 597 n.9, 682 N.E.2d 611, is misplaced, as we do not agree that it established the outer boundary of the meaning of "stay away."

      General Laws c. 272, § 40, was rewritten by St. 2018, c. 69, § 159, to prohibit the interrupting and disturbing of "an assembly of people meeting for a lawful purpose." This amendment, however, does not affect the holding in the Bohmer opinion.

      The statute "proscribes conduct which tends to annoy all good citizens and does in fact annoy anyone present not favoring it." Orlando, 371 Mass. at 734, 359 N.E.2d 310.

      Those States requiring a specified distance have either specified a distance in the statute, left it entirely to the discretion of the judge, or both. Idaho and Montana, for example, specify that a defendant must stay 1,500 feet away from the plaintiff's residence or other specified location, or any other appropriate distance. See Idaho Code § 39-6306(1)(i) (2018) ; Mont. Code Ann. § 40-15-201(2)(d) (2017). Washington has upheld a one-mile stay-away order, see State v. Chapman, 140 Wash. 2d 436, 451, 998 P.2d 282, cert. denied, 531 U.S. 984, 121 S.Ct. 438, 148 L.Ed.2d 444 (2000) ; Wash. Rev. Code § 26.50.060(1)(c) (2018), while Kentucky has required that a stay-away order not exceed 500 feet. Ky. Rev. Stat. Ann. § 403.740(1)(a)(3) (2018).

      Notably, the defendant's conviction in Williams was reversed for a number of reasons, including that there was insufficient evidence to show that the defendant had violated the stay-away order or any of the order's purposes as discussed by the court. Williams, 226 N.C. App. at 411-412, 741 S.E.2d 9.

      In Residences at the Jewel, LLC v. Tiedeman, Minn. Ct. App., No. C5-03-45, 2003 WL 21790466 (Aug. 5, 2003) (unpublished decision), the court considered the question whether a defendant could be ordered to stay away from a location directly across the road from where he lived. The defendant argued that the stay-away order was "vague and overbroad." He argued that because he lived directly across the road from the plaintiffs, it was "not feasible" for him to stay away, and claimed that he was "running the risk of contempt by simply staying in his home or, more seriously, every time he ventures out from his property onto [the road]." The court's answer to this alleged problem is an illustration of how a general stay-away order can be appropriately flexible when a specific distance would be inappropriate and unworkable.
      "As [the plaintiffs] assert, 'common sense dictates that the "stay away" language ... does not apply to one who is in his own house, or to one who is simply using a public road to get to and from his own house.' [The defendant's] reading of the language is an unreasonable interpretation, in light of the fact that there is a county road between the [plaintiffs'] property and [the defendant's] home and those of his neighbors. [The defendant] continues to drive the road regularly and has encountered [the plaintiffs] in a civil manner since the order was issued. He has never been found in contempt. We conclude that the language 'stay away' is not overly broad or vague in this context."

      Similar statutes have withstood challenges for vagueness. See Commonwealth v. Sullivan, 469 Mass. 621, 630, 15 N.E.3d 690 (2014), quoting Commonwealth v. Reyes, 464 Mass. 245, 249, 982 N.E.2d 504 (2013) (addressing accosting or annoying person of opposite sex in violation of G. L. c. 272, § 53 ; "legislative language need not be afforded 'mathematical precision' in order to pass constitutional muster' "); Commonwealth v. Daly, 90 Mass. App. Ct. 48, 51, 56 N.E.3d 841 (2016), quoting Orlando, 371 Mass. at 734, 359 N.E.2d 310 (animal cruelty statute, G. L. c. 272, § 77, "sets forth a perhaps 'imprecise but comprehensible normative standard' " which is sufficiently exacting when viewed in context and in conjunction with case law); Commonwealth v. Nee, 83 Mass. App. Ct. 441, 449-450, 985 N.E.2d 118 (2013) (addressing common-law crime of affray; "person of common intelligence would have little difficulty understanding" conduct that law proscribes). Similar analysis and results have occurred regarding the interpretation of reckless endangerment of a child under G. L. c. 265, § 13L, see Commonwealth v. Figueroa, 83 Mass. App. Ct. 251, 265-266, 982 N.E.2d 1202 (2013) ; open and gross lewdness and lascivious behavior under G. L. c. 272, § 16, see Commonwealth v. Coppinger, 86 Mass. App. Ct. 234, 235-239, 15 N.E.3d 259 (2014) ; and indecent assault and battery on a child under the age of fourteen under G. L. c. 265, § 13B, see Commonwealth v. Rosa, 62 Mass. App. Ct. 622, 626-627, 818 N.E.2d 621 (2004).

      A defendant in Pennsylvania challenged, for vagueness, the statute punishing the failure of a disorderly person to disperse upon official order. See Commonwealth v. DeFrancesco, 75 Pa. D. & C. 2d 502, 508 (1975). The defendant argued that he could not know "when he ha[d] satisfactorily dispersed." Id. The court held that adequate dispersal occurs "when he is no longer a threat to cause substantial harm, serious inconvenience, annoyance or alarm. The time and distance may vary under the particular circumstances surrounding the incident, but we believe that it is clear to any person of reasonable intelligence that he has not dispersed if he remains in a position that poses the threat and danger the statute seeks to prevent." Id.

      We consider, here, a judicial order requiring the defendant to "stay away from the plaintiff's residence." The statute, G. L. c. 209A, § 3 (c ), allows the court to order the defendant "to vacate forthwith and remain away from the household." For the purpose of our construction of the legislative purpose of c. 209A, we perceive no difference between the terms "stay away from" and "remain away from." Both terms promote the core purpose of the abuse prevention order and the statute, to create and maintain a safe haven from the threat of continued abuse. See Gordon, 407 Mass. at 346-347, 553 N.E.2d 915.

      The defendant seems to be arguing that the stay-away order could only be violated by means of a criminal trespass. Such an argument fails simply because the Legislature has enacted two separate and distinct statutes, i.e., criminal trespass (G. L. c. 266, § 120 ) and abuse prevention (G. L. c. 209A, § 3 ), which serve to effectuate different purposes. See generally State v. Gilley, 135 N.C. App. 519, 527-530, 522 S.E.2d 111 (1999) (distinguishing between North Carolina's domestic criminal trespass statute and domestic violence protective order statute while analyzing double jeopardy clause).

      "While intent is an element of criminal contempt proceedings," G. L. c. 209A, § 7, has no such requirement. Delaney, 425 Mass. at 596, 682 N.E.2d 611. A conviction of violating an order issued pursuant to c. 209A requires proof "beyond a reasonable doubt that the defendant knew of the order.... Th[e] statute ... requires no more knowledge than that the defendant knew of the order. We decline to read any additional mens rea requirements into the statute." Id. at 596-597, 682 N.E.2d 611. However, "[a] long-standing common law principle requires that, in the absence of specific words saying so, it is not supposed that the [L]egislature intended to make accidents and mistakes crimes" (quotation omitted). Collier, 427 Mass. at 388, 693 N.E.2d 673. "The policies that are advanced by means of the remedies available under c. 209A do not require that restrained parties be convicted for what would generally be considered innocent activities. To hold otherwise would incorporate into the statute a concept of strict liability, and there is no basis for believing that this was the Legislature's purpose." Commonwealth v. Raymond, 54 Mass. App. Ct. 488, 493, 766 N.E.2d 113 (2002).

      Each of these prohibitions can be accomplished, under the circumstances, by the potential for physical, visual, or vocal contact.


source: Caselaw Access Project

author: SACKS, J.

license: Public Domain

text:
    COMMONWEALTH v. Saul B. GOLDMAN.
    No. 16-P-1741
    Appeals Court of Massachusetts, Middlesex..
    Argued December 11, 2017 Decided October 17, 2018
    Christopher DeMayo for the defendant.
    Asher Kim, Assistant District Attorney, for the Commonwealth.
    Present: Agnes, Sacks, & Lemire, JJ.
   SACKS, J.

The defendant was convicted of violating the provisions of two G. L. c. 258E harassment prevention orders that required him to "remain away from [the protected persons'] residence." On appeal, the defendant argues that the remain-away provision was misinterpreted, both by a motion judge in refusing to dismiss the complaint for lack of probable cause, and by the trial judge in responding to a jury question about the provision.

We conclude that ordinarily, the remain-away provision of a c. 258E order prohibits a defendant from (1) crossing the residence's property line, (2) engaging in conduct that intrudes directly into the residence, and (3) coming within sufficient proximity to the property line that he would be able to abuse, contact, or harass a protected person if that person were on the property or entering or leaving it. A protected person need not actually be present for such a violation of the order to occur.

Applying these standards here, we conclude that there was probable cause to issue the complaint, but that it was an abuse of discretion for the trial judge to instruct the jury, in response to their request to explain the remain-away provision, that they should give the phrase its "plain meaning," using their common sense and life experiences. The defendant is therefore entitled to a new trial.

Background. The defendant had been a member of the Montefiore Society Synagogue, a small congregation located in Lowell, since at least 2007. After the defendant's conduct at the synagogue led to disputes between him and John and Mary Smith (pseudonyms) -- a husband and wife who held leadership positions in the congregation -- the Smiths obtained essentially identical c. 258E orders against the defendant in 2011. The orders, issued on the Trial Court's preprinted forms, originally required the defendant not to abuse or harass the Smiths, not to contact them, to stay at least one hundred yards away from them, and to "remain away from [their] residence located at" a specified address in Lowell. The defendant also lived in a house in Lowell, and he owned a rental property in Lowell, not far from the Smiths' residence.

The orders were extended in 2012 and 2013; they were extended again in 2014, with the modification that the defendant was no longer required to remain one hundred yards away from the Smiths or to refrain from contacting them. The orders were extended yet again in 2015, with the further modification that the defendant could "attend services at the synagogue ... respectfully and not abuse" the Smiths.

Shortly thereafter, a large snowstorm having been forecast for Saturday, February 21, 2015, the Smiths invited members of the synagogue to spend the night of February 20 at the Smith residence, so that services could be conducted at the residence the following day without members having to travel outdoors. About fourteen members accepted. The defendant was not invited.

There was conflicting evidence about what occurred during services the next morning. The Commonwealth's case included evidence that John Smith looked out his living room window and noticed the defendant walking along the street within thirty to forty feet of the Smiths' property. He asked his wife to call the police. She then looked out another window, saw the defendant walking up their driveway, and called 911. A police officer arrived a few minutes later and observed the defendant standing in front of the Smiths' house. The officer spoke to the Smiths and then arrested the defendant for violating the c. 258E orders.

The defendant told a different story. He testified that he had walked to the synagogue that morning but, finding no one there, walked in the direction of his rental property to speak to his tenants. Because the Smiths lived nearby, he also walked toward their residence, to see "if they did their service there so that I wouldn't be able to come." The defendant testified that he wanted to see whether there were cars at the Smiths' residence, and that he came no closer than an intersection that, according to a map admitted in evidence, was one and one-half blocks from the Smiths' residence. He denied that he went to the Smiths' house or onto their driveway.

After the defense rested, the judge informed the Commonwealth and defense counsel that, as to the meaning of "staying away from the residence ... I can anticipate that the jury could have a question about that," and that he intended his instruction to "leave it as [']remain away from the residence['] and it will be up to the jurors to decide what that means." This was the central issue in the case. Both closing arguments focused solely on whether the defendant had violated the "remain away from the ... residence" provisions of the orders. The judge's final charge stated the pertinent element of the offenses as whether the defendant had violated the orders "by failing to stay away from a particular address."

As the judge had predicted, during their deliberations, the jury sent a note asking, "Is there further definition/ specification available for what it means to 'remain away from the plaintiff's residence' ...? Does it mean to stay off property ... or a certain distance away ... or nowhere in vicinity, etc.?" The prosecutor proposed that the judge answer by instructing that the phrase had "no strict definition" and that the jury should consider "the plain meaning of what it is to 'stay away' from a given location, using [their] common sense and life experiences." Defense counsel objected, arguing that the phrase was ambiguous and vague, that the ambiguity was required to be resolved in the defendant's favor, and accordingly that "residence means residence. Was he in the residence [or] was he not in the residence is really the question."

The judge chose to give the Commonwealth's proposed answer, and thus he instructed the jury:

"[T]he term stay away has no strict definition for you to consider; instead, you are to assess the term by the plain meaning by what it is to stay away from a given location using your common sense and life experiences. You may consider the credible facts and the credible evidence and circumstances of this case as you find them to determine whether or not the defendant's actions complied with the stay-away order."

The jury then returned guilty verdicts on both charges.

Discussion. Because the meaning of the remain-away provision is examined most productively in the context of the judge's response to the jury question, we begin with that issue. We then return to the question whether there was probable cause to issue the complaint.

1. Response to jury question. "The proper response to a jury question must remain within the discretion of the trial judge, who has observed the evidence and the jury firsthand and can tailor supplemental instructions accordingly." Commonwealth v. Waite, 422 Mass. 792, 807 n.11, 665 N.E.2d 982 (1996). But that discretion is not unlimited. "The alertness of the jury in this situation was impressive, and, unless for some particular reason it would be unfair to do so, the judge was obligated to respond with an accurate statement of the law." Commonwealth v. Thomas, 21 Mass. App. Ct. 183, 186, 486 N.E.2d 66 (1985). "When a jury makes explicit its difficulties, a trial judge should clear them away with concrete accuracy." Id., quoting Bollenbach v. United States, 326 U.S. 607, 612-613, 66 S.Ct. 402, 90 L.Ed. 350 (1946). See Commonwealth v. Leahy, 445 Mass. 481, 501, 838 N.E.2d 1220 (2005).

Here, although there is little appellate authority on the meaning of a remain-away provision, there was a clear answer to that part of the jury's question asking whether the phrase meant "nowhere in [the] vicinity." We have held, in the context of a stay-away provision of a G. L. c. 209A abuse prevention order, that:

"The word 'vicinity,' according to Black's Law Dictionary (6th ed. 1990), means, 'Quality or state of being near, or not remote; nearness; propinquity; proximity; a region about, near or adjacent ....' The word is so imprecise that if we hold that the 'stay away' order means stay away from the 'vicinity' of the workplace, the order would fail to meet the requirement that it must be clear."

Commonwealth v. O'Shea, 41 Mass. App. Ct. 115, 118, 668 N.E.2d 861 (1996), overruled on other grounds, Commonwealth v. Delaney, 425 Mass. 587, 597 n.9, 682 N.E.2d 611 (1997), cert. denied, 522 U.S. 1058, 118 S.Ct. 714, 139 L.Ed.2d 655 (1998). The jury here thus should have been instructed that they could not convict the defendant based solely on a finding that he was in the vicinity of the protected residence.

O'Shea also provides guidance on another possible meaning of "remain away" identified by the jury: "to stay off [the] property." Although decided in the context of a stay-away order listing a workplace rather than a residence, O'Shea makes clear that such an order is not limited to the building the address of which is listed on the order, but extends at least to the property line. O'Shea, 41 Mass. App. Ct. at 116, 118, 668 N.E.2d 861. "[T]he 'stay away' order is not limited to preventing the defendant from merely entering the town hall itself ( [the protected person's] workplace). Rather, such an order ... extends to all of the property on which the workplace is located[,] including the adjacent parking lot." Id. at 118, 668 N.E.2d 861. This interpretation "create[s] a safe haven for [the protected person] at her workplace, a place 'in which no further abuse need be feared ...." Id., quoting Commonwealth v. Gordon, 407 Mass. 340, 347, 553 N.E.2d 915 (1990).

Nor does O'Shea establish the outer limit of the meaning of "stay away" or "remain away." We subsequently held that a defendant violated a c. 209A stay-away order by stopping his truck twenty to forty feet away from the protected person's workplace, honking his horn, shouting obscenities, and making a threatening gesture. Commonwealth v. Habenstreit, 57 Mass. App. Ct. 785, 786 & n.2, 787, 786 N.E.2d 425 (2003). Such conduct "intrud[ed] directly into [the] workplace in violation of the stay-away order," notwithstanding that the protected person was not present at the time. Id. at 787, 786 N.E.2d 425. To interpret a stay-away order as permitting such intrusive conduct as long as it was committed outside (or even some distance from) the property line would contravene the prophylactic purpose of a stay-away order: "to create a safe haven ... , leaving fewer opportunities for abusive contact." Id. Further illustrating this prophylactic purpose, a stay-away order applies even when the protected person is not present, so as to avoid "encourag[ing] a defendant to keep himself or herself informed about a protected person's schedule." Id.

In the context of a c. 258E order, we think this protective purpose is best served by interpreting the remain-away provision so as to reduce the opportunities for conduct that violates the other provisions of the order. The typical c. 258E order issued on the preprinted form requires the defendant, among other things, not to "abuse," "harass," or "contact" the protected person, and each of those terms typically is further defined in the body of the order itself. We therefore conclude that, if no distance is specified, the remain-away provision of a typical c. 258E order prohibits the defendant from (1) crossing the residence's property line, (2) engaging in conduct that intrudes directly into the residence, and (3) coming within sufficient proximity to the property line that he would be able to abuse, contact, or harass a protected person if that person were on the property or entering or leaving it. A protected person need not actually be present for such a violation of the order to occur.

This standard both furthers the purpose of c. 258E and addresses the defendant's due process concerns by providing meaningful guidance to defendants and to law enforcement authorities. As in the context of c. 209A orders, "[d]ue process requires clarity of expression with the purpose of giving a person of ordinary intelligence a reasonable opportunity to know what the order prohibit[s], so that he might act accordingly; and with the further purpose of enabling a putative enforcer of the order to apply it without discrimination." Commonwealth v. Butler, 40 Mass. App. Ct. 906, 907, 661 N.E.2d 666 (1996). See Delaney, 425 Mass. at 592, 682 N.E.2d 611.

But we reject the defendant's argument that vagueness concerns require a bright-line rule under which the protection of the remain-away provision stops at the property line. A provision is not impermissibly vague "if it requires a person to conform his conduct to an imprecise but comprehensible normative standard." Commonwealth v. McGhee, 472 Mass. 405, 414, 35 N.E.3d 329 (2015), quoting Commonwealth v. Orlando, 371 Mass. 732, 734, 359 N.E.2d 310 (1977). "A sufficiently definite warning may be achieved by judicial construction ...." Commonwealth v. Gallant, 373 Mass. 577, 581, 369 N.E.2d 707 (1977).

Two caveats are in order. First, not all parts of the standard we have identified will necessarily apply in every case, because, as this case illustrates, not every c. 258E order prohibits the same conduct. The orders here prohibited the defendant from abusing or harassing the protected persons, but not from contacting them. Thus it might have confused the jury to mention "contact" in explaining the circumstances under which the defendant's proximity to the property line would violate the remain-away provision. Conversely, other c. 258E orders may include prohibitions in addition to those against abuse, contact, or harassment. Depending on the nature of such an additional prohibition, it may be that a defendant violates the remain-away provision if his proximity to the property line would enable him to violate that prohibition if the protected person were on the property or entering or leaving it. We leave such issues for another day.

Second, as we have previously recognized, "some of the difficulties in determining [violations of remain-away orders] can be avoided by ordering the person to stay a specific distance from the workplace or residence." Habenstreit, 57 Mass. App. Ct. at 787 n.3, 786 N.E.2d 425. A judge issuing a c. 258E order need not leave it to the parties in the first instance to apply the new standard we identify here to determine the meaning of "remain away." Instead, the judge may specify in the text of the order a particular distance that the defendant must remain away from the property line or from any specified portion of the property. Such a specified distance may be added or altered (or, for that matter, deleted) based on the facts and in light of experience in a particular case. The judge's goal should be to make an order that shields the protected party from the risk of future harassment, abuse, or contact, as the case may be. The greater the precision with which the remain-away area can be identified, the greater the likelihood that a defendant, and law enforcement authorities, will know what is and what is not a violation.

Returning to the case before us, we conclude that the judge's answer to the jury's question -- that they should give the remain-away provision its "plain meaning," using their common sense and life experiences -- did not adequately inform the jury about the meaning of that provision. Cf. Commonwealth v. Raymond, 54 Mass. App. Ct. 488, 494, 766 N.E.2d 113 (2002) (instruction inadequate where it "left the jury without guidance as to what constituted a violation" of c. 209A no-contact order). To accept the judge's answer would leave each defendant to guess at the interpretation of the remain-away provision -- a term of a court order -- and make that interpretation a subjective judgment call for the jury.

The jury asked, among other things, whether presence anywhere in the "vicinity" of the Smiths' residence would constitute a violation; the correct answer -- no -- was not given. See O'Shea, 41 Mass. App. Ct. at 118, 668 N.E.2d 861. There was testimony that the defendant had gone onto the Smiths' property, but there was also the defendant's testimony that he had come no closer than a point one and one-half blocks from the Smiths' house. We cannot know which testimony the jury believed. If the jury believed the defendant, they could still have convicted him based on the instructions they received. We cannot know whether, if properly instructed, they would have found that from such a location the defendant would have been able to harass or abuse either of the Smiths had they been on, entering, or leaving their property. Accordingly, the defendant is entitled to a new trial.

2. Denial of motion to dismiss complaint. We must also determine whether the motion judge properly denied the defendant's motion to dismiss the complaint for lack of probable cause. See generally Commonwealth v. DiBennadetto, 436 Mass. 310, 313, 764 N.E.2d 338 (2002). "[A] motion to dismiss a complaint is decided from the four corners of the complaint application, without evidentiary hearing" (quotation omitted). Commonwealth v. Humberto H., 466 Mass. 562, 565, 998 N.E.2d 1003 (2013). Probable cause requires "reasonably trustworthy information ... sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offense." Commonwealth v. McCarthy, 385 Mass. 160, 163, 430 N.E.2d 1195 (1982), quoting Commonwealth v. Stevens, 362 Mass. 24, 26, 283 N.E.2d 673 (1972) (probable cause standard for indictment). See DiBennadetto, supra.

Here, the defendant's motion argued that the remain-away provision could be violated only by his actually going onto the Smiths' property. We have concluded, however, that a defendant may also violate a remain-away provision by, among other things, coming within sufficient proximity to the property line that he would be able to abuse or harass a protected person if that person were on the property or entering or leaving it. The arresting officer here, in reports attached to the complaint application, stated in pertinent part that he had observed the defendant "walking away from" the Smiths' address, and that the defendant was "two houses down (well within 100 [yards] of)" that address "when [the defendant] violated the orders." This was sufficient to establish probable cause.

Conclusion. The judgments are reversed, the verdicts are set aside, and the case is remanded for further proceedings.

So ordered.

      In two other cases decided today, we reach a similar interpretation of the stay-away provision in a typical G. L. c. 209A abuse prevention order. See Commonwealth v. Telcinord, 94 Mass. App. Ct. 232, 113 N.E.3d 382 (2018) ; Commonwealth v. Watson, 94 Mass. App. Ct. 244, 113 N.E.3d 374 (2018).

      The remain-away provision appears next to a checkbox numbered "3" on the preprinted form.

      We reject the defendant's third argument: that the complaint should have been dismissed based on a 2007 rabbinical court ruling in a dispute between himself and John Smith. That ruling recited the parties' agreement to submit to the rabbinical court's jurisdiction and be bound by its decision. It then stated that the defendant could return to the synagogue for all prayers (a privilege that could be revoked for uncivil behavior) and that all future claims of trespassing would be addressed to that court. Whatever the effect of that ruling on matters involving conduct at the synagogue, it did not deprive the courts of the Commonwealth of jurisdiction to issue and enforce G. L. c. 258E orders requiring the defendant to remain away from the Smiths' residence.

      "[F]or the most part, both the Supreme Judicial Court and this court have applied the case law relating to c. 209A to cases arising under c. 258E." A.P. v. M.T., 92 Mass. App. Ct. 156, 161, 84 N.E.3d 35 (2017).

      This interpretation also gives meaning to the statutory language authorizing the court to order the defendant to remain "away from" a protected person's residence or workplace (emphasis added), see G. L. c. 209A, § 3 (c ) ; G. L. c. 258E, § 3 (a ) (iii), and the corresponding language in c. 209A and c. 258E orders. Such language does more than require a defendant merely to remain "out of" the building that constitutes the residence or workplace. "Away from" has a broader meaning.

      Tailoring an instruction to avoid jury confusion may have little or no effect on the practical scope of the protection offered by a remain-away provision. A defendant close enough to contact a protected person (were she present on, entering, or leaving the property) might, in practice, also be close enough to engage in abuse or harassment, which may be accomplished by verbal acts alone, and such proximity would violate the remain-away provision.

      It appears undisputed that the Smiths were on the property at the relevant time, and nothing we say is intended to restrict trial judges' usual discretion to tailor their instructions in such situations, e.g., to refer where helpful to a protected party's actual, rather than hypothetical, location. Of course, the remain-away standard also focuses on whether a defendant was sufficiently close that he would have been able to harass or abuse a protected party entering or leaving the property, regardless of whether or how the protected party was actually doing so at the time. We also note that our discussion above does not focus on whether the defendant's conduct "intrud[ed] directly into" the Smiths' residence within the meaning of Habenstreit, 57 Mass. App. Ct. at 787, 786 N.E.2d 425. The Commonwealth did not pursue any such theory at trial, and we do not decide whether an instruction on this aspect of a remain-away violation would have been warranted.

      In Commonwealth v. Huggins, 84 Mass. App. Ct. 107, 993 N.E.2d 734 (2013), we said: "Because the defendant went to trial and was found guilty, there is no basis for a claim of prejudice resulting from a pretrial determination of probable cause." Id. at 109-110, 993 N.E.2d 734, citing Commonwealth v. Greenwood, 78 Mass. App. Ct. 611, 622, 941 N.E.2d 667, cert. denied, 565 U.S. 913, 132 S.Ct. 327, 181 L.Ed.2d 203 (2011). The claim in Huggins was that the police lacked probable cause to arrest the defendant because they improperly relied on certain evidence in concluding that he was intoxicated. Huggins, 84 Mass. App. Ct. at 109, 993 N.E.2d 734. Huggins does not hold that a conviction precludes review of the denial of a motion to dismiss a complaint for lack of probable cause where the defendant asserts that the denial was premised on an incorrect legal standard for determining whether certain conduct was (or was probably) criminal.

      The complaint application did not mention the Smiths' statements about where they had seen the defendant, or the arresting officer's statement that he saw the defendant standing in front of the house. That evidence emerged only at trial.


author: GREEN, C.J.

text:
    COMMONWEALTH v. Jillian M. SILVA.
    No. 17-P-1538
    Appeals Court of Massachusetts, Bristol..
    Argued September 7, 2018 Decided October 22, 2018
    Stephen C. Nadeau, Assistant District Attorney, for the Commonwealth.
    Kevin P. DeMello for the defendant.
    Present: Green, C.J., Milkey, & Singh, JJ.
   GREEN, C.J.

Following an investigation of suspected drug sales by Bryan Simpson, police obtained and executed a warrant to search the apartment in which they believed Simpson and the defendant, Jillian M. Silva, lived. The defendant was subsequently charged with possessing both class A and class B drugs with the intent to distribute and with conspiracy to violate the drug law. The defendant made a motion to suppress the evidence obtained in the search, and a judge of the District Court allowed the motion based on his conclusion that the information submitted in support of the search warrant application was inadequate to establish probable cause. After obtaining leave from a single justice of the Supreme Judicial Court, see Mass. R. Crim. P. 15 (a) (2), as appearing in 474 Mass. 1501 (2016), the Commonwealth appealed. We reverse.

Background. Our review of the sufficiency of an application for a search warrant "begins and ends with the 'four corners of the affidavit' " supporting it. Commonwealth v. O'Day, 440 Mass. 296, 297, 798 N.E.2d 275 (2003), quoting Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428, 657 N.E.2d 237 (1995). We summarize the facts recited in the May 23, 2014, affidavit executed by Detective Daniel Amaral, an experienced New Bedford police detective assigned to a unit specializing in narcotics investigations.

During the week of May 4, 2014, Amaral was told by a confidential informant (CI) that an individual the CI knew as "Bryan" was engaged in a "crack" cocaine delivery service. The CI had been purchasing crack cocaine for over a month, and gave a physical description of Bryan. As described by the CI, the CI would call a telephone number to speak to Bryan, after which Bryan would designate a time and location to meet the CI to complete the purchase. The CI said that Bryan sometimes arrived at the purchase location in a gold-colored vehicle with a strap holding down the trunk, which was driven by a woman.

After consulting with other members of the narcotics investigation unit, Detective Amaral learned that another detective in that unit (Detective Sergeant Marc Blouin) had begun an investigation of an individual named Bryan Simpson residing at 175 Harwich Street, New Bedford, and had received five anonymous telephone calls on the narcotics anonymous tips line within the previous six months. The anonymous tipster described Simpson's use of a gold-colored vehicle with a strap holding down the trunk. Blouin informed Amaral that he had traveled to 175 Harwich Street and observed Simpson and a woman leave the building at that address and get into a gold-colored vehicle with a strap holding down the trunk. After checking the license plate of the vehicle, Blouin learned that it was registered to the defendant's mother. After searching police department records, Amaral discovered an incident report concerning a domestic disturbance at 175 Harwich Street between Simpson and the defendant on July 7, 2013, in which the defendant reported that she had had a verbal argument with Simpson, whom she described as her boy friend of four years.

Amaral then arranged, on three separate occasions between May 4 and May 23, 2014, to have the CI participate in controlled purchases of crack cocaine from Simpson. On two occasions, shortly after the CI placed a call to Bryan, detectives watched Simpson and a woman leave by the front door of 175 Harwich Street, enter a vehicle parked on the street, and drive directly to the designated location. There, the CI briefly interacted with Simpson before the two separated. After both encounters, the CI provided police with a substance that was later confirmed to be crack cocaine. After the second meeting, Simpson and the woman returned immediately to 175 Harwich Street and entered through the front door. On the occasion of the third controlled purchase, Simpson was observed leaving 175 Harwich Road alone, entering a vehicle in the rear of the building, and driving to the designated location, where he sold crack cocaine to the CI and then drove in a direction away from Harwich Road. On at least two other occasions during this period, police observed Simpson leave his residence and engage briefly with individuals other than the CI at various locations in what appeared to be drug transactions.

Detectives also observed Simpson and a woman check the mailbox for an apartment on the east side of 175 Harwich Street before using keys to enter through the front door of the building.

Amaral next determined that the utilities for the third-floor apartment on the east side of 175 Harwich Street had been established in the name of Michelle Silva on September 17, 2012, listing a particular telephone number for the customer. Amaral called the telephone number and, when a woman answered, asked to speak to "Jillian Silva." The woman on the telephone said "speaking," whereupon Amaral terminated the call.

In his application, Amaral requested a "no-knock" warrant, based (among other things) on concern that entrance through the locked front door of the apartment building before proceeding to the third-floor apartment unit would present heightened risk that evidence could be disposed of or destroyed before police reached the apartment unit itself.

Discussion. "The Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights 'require a magistrate to determine that probable cause exists before issuing a search warrant.' " Commonwealth v. Escalera, 462 Mass. 636, 641-642, 970 N.E.2d 319 (2012), quoting Commonwealth v. Byfield, 413 Mass. 426, 428, 597 N.E.2d 421 (1992). "To establish probable cause, the facts contained in the warrant affidavit, and the reasonable inferences drawn from them, must be sufficient for the issuing judge to conclude that the police seek items related to criminal activity and that the items described 'reasonably may be expected to be located in the place to be searched at the time the warrant issues' (citation omitted). Commonwealth v. Walker, 438 Mass. 246, 249, 780 N.E.2d 26 (2002). The question whether there was probable cause to issue the search warrant is a question of law that we review de novo, see Commonwealth v. Tapia, 463 Mass. 721, 725, 978 N.E.2d 534 (2012), in a commonsense and realistic manner." Commonwealth v. Perkins, 478 Mass. 97, 102, 82 N.E.3d 1024 (2017). In conducting our review, we read the warrant affidavit as a whole, without overly parsing or severing it, or subjecting it to "hypercritical analysis" (citation omitted). Commonwealth v. Donahue, 430 Mass. 710, 712, 723 N.E.2d 25 (2000). See Commonwealth v. Anthony, 451 Mass. 59, 68, 883 N.E.2d 918 (2008)

("In dealing with probable cause ... we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act" [citation omitted] ).

In the present case, the information set forth in Detective Amaral's affidavit furnished probable cause to believe that drugs and other implements of the drug trade would be found in the third-floor apartment on the east side of 175 Harwich Street. Specifically, police observations of Simpson's departure from the building at that address and travel directly to the location of three controlled purchases established a nexus between the building and the drug-distribution operation in which Simpson was engaged. See Escalera, 462 Mass. at 645-646, 970 N.E.2d 319 ; Commonwealth v. Luthy, 69 Mass. App. Ct. 102, 106-109, 866 N.E.2d 930 (2007).

The defendant's contention that the affidavit failed to provide an adequate connection to the particular apartment unit within the building is unavailing. Several factors in the affidavit furnished probable ties between the third-floor apartment on the east side of the building and Simpson. To begin with, a woman who identified herself as Jillian Silva answered the telephone when Amaral called the number registered to the account for utilities for that apartment. Silva in turn was connected to Simpson through a long-term relationship as recently as ten months before the warrant application was executed, and Simpson, accompanied by a woman, was observed checking a mailbox for an apartment on the east side of the building before entering the building by use of a key to the building's front door. The vehicle in which Simpson sometimes traveled to the location of drug sales, including on the occasion of two controlled purchases, was registered to the defendant's mother.

To be sure, it is possible that Simpson and the defendant terminated their long-term relationship during the ten months following the verbal argument described in the police incident report of July, 2013, that a woman other than the defendant used the defendant's mother's vehicle to drive Simpson to and from the drug sales, and that someone other than the defendant falsely identified herself as the defendant after answering the telephone associated with the utilities supplied to the apartment unit. However, the magistrate is permitted to draw reasonable inferences in evaluating the facts submitted in an affidavit in support of a search warrant, and "[a]n inference drawn from circumstantial evidence 'need only be reasonable and possible; it need not be necessary or inescapable.' " Luthy, 69 Mass. App. Ct. at 106, 866 N.E.2d 930, quoting Commonwealth v. Gilbert, 423 Mass. 863, 868, 673 N.E.2d 46 (1996).

We likewise conclude that the magistrate was justified in authorizing a no-knock entry by police when executing the warrant. "The requirement that police knock and announce their presence is based on common law principles aimed at protecting privacy, decreasing the potential for violence and preventing unnecessary damage."

Commonwealth v. Perez, 87 Mass. App. Ct. 278, 281-282, 28 N.E.3d 504 (2015). However, "competing interests will justify abrogating the requirement in individual instances. These are, principally, avoiding the destruction of evidence and increasing officer safety." Id. at 282, 28 N.E.3d 504. In the present case, the affidavit explained in some detail the basis for the detective's concern that the occupants of the apartment would destroy evidence unless the officers executing the warrant were allowed to dispense with the knock-and-announce requirement. In particular, the location of the apartment on the third floor, with a locked entrance door to the building at the ground floor, furnished heightened concern for the possible destruction of evidence. See Commonwealth v. Ortega, 441 Mass. 170, 177-178, 804 N.E.2d 345 (2004) ; Commonwealth v. Jimenez, 438 Mass. 213, 221, 780 N.E.2d 2 (2002). ,

Conclusion. The order allowing the defendant's motion to suppress evidence is reversed.

So ordered.

      Amaral's review of board of probation records also disclosed that Simpson had been convicted of possession of class B narcotics and possession of class B narcotics with intent to distribute, and had been arraigned on such charges as assault and battery, armed robbery by means of a knife, and assault with intent to rob.

      Amaral also cited Simpson's "propensity for violence" as a rationale for the no-knock designation, see note 1, supra, and cited the proximity of Harwich Street to Acushnet Avenue, a well-traveled street, to suggest that a "stealth approach" would be difficult.

      We note that, in his memorandum of decision allowing the defendant's motion to suppress, the motion judge relied in part on a conclusion that the affidavit did not supply sufficient indicia of the CI's reliability to satisfy the Aguilar-Spinelli test. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Our assessment of probable cause established by the facts set forth in the warrant affidavit does not rest to any material extent on the reliability of any assertion by the CI; instead the facts supporting probable cause rest on information resulting from police investigation or observations following the initial tip the police received from the CI.

      We note that "the mere fact that drugs are involved is insufficient to justify a no-knock warrant." Ortega, 441 Mass. at 176, 804 N.E.2d 345. See Commonwealth v. Scalise, 387 Mass. 413, 421, 439 N.E.2d 818 (1982) (declining to adopt "blanket rule" excusing requirement to knock and announce "whenever the objects named in the search warrant are by their nature amenable to ready disposal or destruction").

      We also note that, because the defendant did not place at issue any claim that the circumstances police encountered when they executed the warrant compelled a reappraisal of the need to enter without announcing their presence, and the motion judge accordingly did not conduct an evidentiary hearing on the question, there is no evidence to suggest that the circumstances justifying the no-knock warrant had changed. See Scalise, 387 Mass. at 421 n.7, 439 N.E.2d 818. In any event, the requirement to conduct a reappraisal of the circumstances "is not a formalistic exercise mandated in all circumstances -- it is a recognition that the provisions of a warrant are conditioned on the continued existence of the sworn facts justifying the abrogation of constitutional rights until the warrant is executed." Commonwealth v. Chamberlin, 86 Mass. App. Ct. 705, 710, 20 N.E.3d 954 (2014). Here, the basis for abrogation of the knock-and-announce requirement was principally the physical location of the third-floor apartment, and the locked ground-level entry door to the building -- both factors that are unlikely to change.