text:
    COMMONWEALTH v. Jose R. MONTALVO
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Alfredo PINEDA-MENDOZA
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. YUSUF IBN QADIR
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Matthew W. RIVERS
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Todd M. TRAINOR
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


author: MEADE, J.

text:
    COMMONWEALTH v. Donne K. AGOGO.
    No. 17-P-199
    Appeals Court of Massachusetts, Suffolk..
    Argued January 10, 2018 Decided June 29, 2018
    Amanda Teo, Assistant District Attorney, for the Commonwealth.
    Michael A. Frates, New Bedford, for the defendant.
    Present: Trainor, Meade, Hanlon, Sullivan, & Henry, JJ.

      This case was initially heard by a panel comprised of Justices Meade, Sullivan, and Henry. After circulation of a majority and a dissenting opinion to the other justices of the Appeals Court, the panel was expanded to include Justices Trainor and Hanlon. See Sciaba Constr. Corp. v. Boston, 35 Mass. App. Ct. 181, 181 n.2, 617 N.E.2d 1023 (1993).

   MEADE, J.

The defendant was charged by complaint in the Chelsea Division of the District Court Department with distribution of a class B controlled substance, conspiracy to violate the drug laws, and possession of cocaine with the intent to distribute. He filed a motion to suppress evidence and statements, and challenged the validity of a strip search. After an evidentiary hearing, the judge issued written findings and an order that allowed, in part, the defendant's motion as it related to evidence seized pursuant to the strip search, concluding that it was not supported by probable cause and conducted in violation of a written strip search policy. The Commonwealth filed a timely notice of appeal. A single justice of the Supreme Judicial Court allowed the Commonwealth's application for leave to pursue an interlocutory appeal and reported the matter to this court. See G. L. c. 278, § 28E ; Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). We conclude that the strip search was proper and therefore reverse the order allowing, in part, the motion to suppress.

1. Background. The entirety of the Commonwealth's evidence at the suppression hearing was provided by Chelsea police Detective Jose Torres, Jr. Based on the evidence the judge found credible, he made the following findings of fact:

a. The surveillance. At the relevant time, Detective Torres had been a member of the Chelsea police department for approximately eight and one-half years. For approximately the last one and one-half years, Torres had worked as a detective assigned to the drug unit.

Torres was familiar with the Bellingham Square area of Chelsea. The Bellingham Square area is considered to be a high crime area. On March 25, 2016, Torres was working with Lieutenant Betz of the Chelsea police department conducting surveillance from an unmarked cruiser while in plain clothes. At approximately 9:00 P.M. , Torres and Betz were parked on Fourth Street between the intersection of Broadway and Division Street, an area adjacent to Bellingham Square. This location, which is both residential and commercial, was chosen for surveillance after the police received citizen complaints of street level drug dealing and drug use in this area.

Torres and Betz focused their attention on a multifamily residential building located at 9-11 Fourth Street (the building). The building was approximately eighty feet from the police surveillance position and on the same side of the street. From their vantage point, the officers had a largely unobstructed, well-lit view of the front area of the building.

b. The defendant arrives. After approximately twenty minutes of surveillance, Torres observed a person, later identified as the defendant, arrive at the front of the building. The defendant was accompanied by a woman. The defendant was not previously known to Torres and Betz. The defendant and the woman stood on the sidewalk in front of the building. On several occasions, Torres observed the defendant enter the building, remain inside the building and out of view for approximately thirty seconds, and then return to the sidewalk in front of the building. On at least one of these occasions, the woman accompanied the defendant into the building. Based upon his experience and training, Torres knew that it is common practice for persons engaged in street level drug distribution not to have drugs on their person. Instead, some drug purveyors keep drugs nearby in a "stash" location and periodically retrieve small quantities of drugs from it to sell, and then return to the stash location to retrieve another small quantity of drugs for the next sale.

Torres watched people walk in front of the building, passing by the defendant as he stood in front of the building. He saw the defendant attempt to initiate conversations with some of the pedestrians as they passed him. On one occasion, Torres saw the defendant walk with one of the pedestrians around the corner of Fourth Street onto Division Street, where they were out of view for five to ten minutes, and then return to the front of the building.

Based upon his training and experience, Torres knew that it was common practice for drug dealers to consummate a drug transaction on a side street out of view in order to avoid detection. Fourth Street is a main street in Chelsea, while Division Street is a side street.

c. The hand-to-hand sale. After conducting surveillance for approximately twenty to twenty-five minutes, Torres saw a man, later identified as James Foster, walk by the front of the building, stop, and appear to speak with the defendant. Foster was unknown to the police. From his vantage point, Torres could see Foster "manipulating something in his hands" as he spoke with the defendant. Torres believed that Foster's hand movements were consistent with someone counting currency. The defendant and Foster then walked together on Fourth Street toward the surveillance position and turned right onto Division Street out of police view. Torres believed that a drug transaction was about to take place.

The police officers drove their cruiser on Fourth Street toward the building, turned left onto Division Street, and activated their emergency lights. As they turned onto Division Street, Torres saw the defendant and Foster standing face-to-face. It appeared that the defendant was handing an item to Foster, but Torres could not see the item. Foster was wearing a hooded sweatshirt with a pouch-like pocket in front that was accessible from the right or left side. After the interaction between the defendant and Foster, Torres watched Foster put his hands into the sweatshirt pocket. Based upon his experience and training, Torres believed that he had witnessed a hand-to-hand drug transaction. Having seen this, the officers drove up to where the defendant and Foster were standing and got out of the cruiser. Torres approached Foster. Betz approached the defendant. Both officers had their police badges displayed and they identified themselves as police officers.

d. The defendant's arrest. Torres told Foster that he was being stopped because the officers believed Foster was involved in a drug transaction. Torres told Foster to take his hands out of his sweatshirt pocket. Foster hesitated to comply with the order. Foster told Torres that he had a knife in his sweatshirt pocket; Torres was concerned for his safety. Torres removed the knife from the sweatshirt pocket. The knife was a folding knife. Upon removing the knife, Torres observed in the pocket a clear plastic knotted bag containing a white powdered substance. Based upon his experience and training, Torres believed that the substance was cocaine packaged for street-level distribution. Foster was placed under arrest.

During the time that Torres spoke with Foster, Betz and the defendant stood about ten feet away. After arresting Foster, Torres approached Betz and the defendant. The defendant was not being compliant with Betz's orders. The defendant appeared to be upset and had taken a "bladed" stance toward Betz, i.e., a fighting stance. The defendant was "pulling away" from the police, apparently attempting to prevent Betz from conducting a search of his person. The defendant was "animated" in his speech and gestures; the officers were concerned for their safety. The defendant was pat frisked, which revealed nothing of significance. During a search of the defendant, the officers seized a twenty dollar bill. The defendant was arrested.

e. Booking and strip search. The defendant was transported to the station house and brought to the booking area. The officers commenced a routine booking procedure with the defendant. At some point, the booking procedure was suspended.

The officers believed that the defendant, who had conducted a drug transaction, may have drugs concealed on his person because they had not found any drugs during the search incident to his arrest at the scene. Based upon his experience and training, Torres knew that persons engaged in street-level drug transactions commonly hid drugs in their crotch. The officers decided that a more thorough search of the defendant was necessary, and Betz decided to conduct a strip search of the defendant. The Chelsea police department has a written "Strip and Body Cavity Search Policy." Pursuant to that policy, Betz advised the defendant that he was going to be subjected to a strip search. The defendant responded in an "animated" manner, telling the police that they were "not going to do that."

Torres and Betz escorted the defendant to a cell near the booking area for the purpose of conducting a strip search. The cell was a private area. Only Torres, Betz, and the defendant were present during the search. Betz explained the strip search process to the defendant. The defendant was directed to remove his shirt, pants, underwear, shoes, and socks. He complied. Torres observed a red bandana in the defendant's crotch area, which was seized. Wrapped inside the bandana were seven small bags that contained a white powdered substance believed to be cocaine. The defendant's clothes were returned to him, and the booking procedure was completed.

Based on this evidence, in a thoughtful memorandum of law, the motion judge determined that the stop, patfrisk, and seizure of money from the defendant, along with his arrest, were lawful. However, the motion judge concluded that the strip search was not supported by probable cause and was not conducted in accordance with the Chelsea police department's written strip search policy. Specifically, the motion judge concluded that "[t]he mere fact that the police did not find drug contraband on the defendant in their initial search incident to arrest cannot serve, absent other supporting facts not present here, to justify a strip search." However, because there are other facts here that support a finding of probable cause, this was error.

2. Discussion. a. Probable cause. The defendant claims, and the motion judge concluded, that the police lacked probable cause to justify the strip search of the defendant. We disagree for the following reasons.

There is no dispute that the police had probable cause to arrest the defendant for possession of cocaine with the intent to distribute, and to search him incident to that arrest, as they had witnessed him sell cocaine to Foster. Indeed, "[o]nce a custodial arrest occurs, as did here, no additional justification is required for a search of the person for weapons that otherwise might be used to resist arrest or to escape, or to discover evidence of the crime for which the arrest was made." Commonwealth v. Prophete, 443 Mass. 548, 552, 823 N.E.2d 343 (2005). See G. L. c. 276, § 1. To lawfully extend an initial search into a strip search, the strip search must be "justified by probable cause to believe that the defendant had concealed [cocaine] on his person or his clothing that would not otherwise be discovered by the usual search incident to arrest." Commonwealth v. Prophete, supra at 554, 823 N.E.2d 343. See Commonwealth v. Thomas, 429 Mass. 403, 408, 708 N.E.2d 669 (1999). See also Cypher, Criminal Practice and Procedure § 5:133, at 450-542 (4th ed. 2014).

"Probable cause exists where 'the facts and circumstances within ... [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Commonwealth v. Hason, 387 Mass. 169, 174, 439 N.E.2d 251 (1982), quoting from Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). See Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925). "The 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.' " Commonwealth v. Keefner, 461 Mass. 507, 517, 961 N.E.2d 1083 (2012), quoting from Commonwealth v. Santaliz, 413 Mass. 238, 241, 596 N.E.2d 337 (1992). See Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (probable cause "does not demand any showing that" a reasonable belief that contraband may be concealed is "correct or more likely true than false"); Commonwealth v. Garcia, 34 Mass. App. Ct. 645, 650, 614 N.E.2d 1031 (1993) (same). Indeed, in cases involving the seizure of contraband, "probable cause is a flexible, common-sense standard." Carroll v. United States, supra. In the end, "[i]n 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." Brinegar v. United States, supra at 175, 69 S.Ct. 1302. See Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 8-1 (2017).

Probable cause must be determined based on the totality of the circumstances known to the police. See Commonwealth v. Prophete, supra at 554-555, 823 N.E.2d 343 ; Commonwealth v. Hernandez, 448 Mass. 711, 715, 863 N.E.2d 930 (2007). The facts and circumstances are to be viewed collectively, not in isolation. See Commonwealth v. Santaliz, supra at 241, 596 N.E.2d 337 ; Commonwealth v. Lawrence L., 439 Mass. 817, 823, 792 N.E.2d 109 (2003).

Several factors and circumstances in this case establish probable cause to believe that the defendant was secreting contraband on his person; as a result, the strip search was justified. What occurred can be distilled into six salient facts and circumstances: (1) the police were conducting surveillance in an area known for illegal drug dealing; (2) the defendant's conduct was consistent with someone engaged in street-level drug dealing; (3) the police witnessed the defendant sell cocaine to Foster; (4) the defendant attempted to evade, in an animated manner, a search of his person at the scene; (5) based on Torres's experience and training, he knew that the crotch area is commonly used by drug dealers to conceal narcotics; and (6) at the police station, when the police told the defendant they were going to conduct a strip search, the defendant again protested in an animated fashion.

Based on the salient facts outlined in (1) though (5), there was sufficient reasonably trustworthy information to warrant a person of reasonable caution to believe that the defendant still had drugs on his person. See Commonwealth v. Prophete, 443 Mass. at 554-555, 823 N.E.2d 343. While this defendant did not use his hands to protect the area of his groin, as occurred in Prophete, he did attempt to evade, in an animated manner, a search of his person at the scene, although no drugs were then discovered. This behavior, coupled with the fact that the defendant was selling drugs in a high crime area known for drug dealing, coupled with Torres's experience and training regarding dealers secreting drugs in their crotch area, are factual and practical circumstances that could leave a reasonable and prudent person with the belief that the defendant was still concealing drugs on his person. See Brinegar v. United States, supra at 175, 69 S.Ct. 1302.

This conclusion becomes even more apparent if the salient fact in (6) is added to the probable cause calculus, i.e., when told that he was going to be strip searched, the defendant staged an animated protest in the booking area. While it is, of course, understandable that a person would not relish the indignity of a strip search, the probable cause inquiry does not require the government to exclude other possible explanations for behavior or circumstances that do not equate to probable cause. See Commonwealth v. Hason, 387 Mass. at 175, 439 N.E.2d 251 ("Probable cause does not require a showing that the police resolved all their doubts"). Indeed, even when proving guilt beyond a reasonable doubt, the government is not charged with excluding hypotheses of innocence. See Commonwealth v. Merola, 405 Mass. 529, 533-534, 542 N.E.2d 249 (1989) (Commonwealth "need not exclude every reasonable hypothesis of innocence [to prove its case], provided the record as a whole supports a conclusion of guilt beyond a reasonable doubt" [quotation omitted] ). Put another way, and viewing all the facts and circumstances before the motion judge together, the mere possibility that the defendant may have been innocently motivated in avoiding the strip search does not necessarily mean the police, who are equipped with specialized training and experience, were not justified in believing he was concealing drugs. See Commonwealth v. Freeman, 87 Mass. App. Ct. 448, 454, 42 N.E.3d 617 (2015) ("While there could have been an innocent explanation for the events observed by [the detective], he was entitled to view them through the lens of his specialized training and experience and conclude that more than mere coincidence was involved"). In fact, even if the factors justifying probable cause do not rise to the level of prima facie evidence, see Commonwealth v. Santaliz, 413 Mass. at 241, 596 N.E.2d 337, or even if they turn out to be incorrect, probable cause is not negated. See Commonwealth v. Skea, 18 Mass. App. Ct. 685, 701, 470 N.E.2d 385 (1984) ; Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 8-1.

At bottom, the defendant's animated protest to the strip search may properly be considered in gauging whether it was supported by probable cause. See Commonwealth v. Battle, 365 Mass. 472, 476, 313 N.E.2d 554 (1974). See also United States v. McGhee, 627 F.3d 454, 458-459 (1st Cir. 2010) (where officers told defendant they were going to complete search of him, and he protested, "saying that they could not 'stick a finger up [his] ass,' " this "pattern of behavior was a reasonable signal that drugs were likely concealed within"). On this matter, the dissent endeavors to be the legal technicians the probable cause formulation long ago warned against. See Brinegar v. United States, supra at 175, 69 S.Ct. 1302. In fact, the dissent's choice to isolate the possibility that there may be reasons other than guilt to explain the defendant's opposition to the strip search fails to appreciate the flexible, lenient, and common sense approach of the probable cause inquiry. See Texas v. Brown, 460 U.S. at 735, 103 S.Ct. 1535.

There is similarly no merit to the dissent's assertion that because the police lacked probable cause "at the time" they told the defendant they were going to conduct the strip search, see post at 513-514, 104 N.E.3d at 681, the defendant's protest cannot be used in the probable cause analysis. Even if this were true (and as outlined above, it is not), the fundamental flaw of this assertion is that probable cause to support a strip search must objectively exist "at time the search was made," Commonwealth v. Amado, 474 Mass. 147, 154, 48 N.E.3d 414 (2016), not when the police officers subjectively determined they would conduct one and so informed the defendant. See 2 LaFave, Search & Seizure § 3.2(d), at 58 and n.104 (5th ed. 2012) (mistake to assert that probable cause must exist "at the moment the decision is made," but rather probable cause is properly determined, based on "totality of facts" available to police, "at the time of the arrest or search" [quotation omitted] ). See also Commonwealth v. Alvarado, 420 Mass. 542, 551, 651 N.E.2d 824 (1995) (unnecessary to determine "at precisely what point the probable cause arose; it is sufficient that it existed at the time that [the officer] conducted his search of [defendant's] person"). Cf. Commonwealth v. Murdough, 428 Mass. 760, 765, 704 N.E.2d 1184 (1999) (" Whren v. United States, 517 U.S. 806[, 812, 116 S.Ct. 1769, 135 L.Ed.2d 89] (1996), teaches that, if the objective circumstances justify the action taken, that is enough").

The totality of the circumstances, when viewed collectively, provided sufficient factual and practical considerations, from which a reasonable and prudent person could conclude that the defendant was concealing drugs on his person.

b. Strip search policy. The motion judge also concluded that the strip search of the defendant failed to comply with the Chelsea police department's written strip search policy (the policy) because the search was not authorized by the "officer in charge." This was not a ground raised in the defendant's motion to suppress or in his affidavit in support thereof. See Mass.R.Crim.P. 13(a)(2), as appearing in 442 Mass. 1516 (2004) ("Grounds not stated which reasonably could have been known at the time a motion is filed shall be deemed to have been waived"). Although the policy was made an exhibit at the hearing, the defendant did not make the "officer in charge" claim until after the evidence was closed, and after the Commonwealth could have cured any ambiguity. Despite this, the judge relied on it in his decision, and we will assume the claim is not waived. See Commonwealth v. Vargas, 475 Mass. 338, 343 n.6, 57 N.E.3d 920 (2016).

The policy does not define the phrase "officer in charge." The evidence at the suppression hearing was that Detective Torres and Lieutenant Betz did not together make the decision to conduct a strip search, because the decision was for Betz alone to make. Later, Torres clarified that because Betz was Torres's "commanding officer," Betz made "the final decision to authorize the strip search." Although the judge concluded that the strip search was not authorized by the "officer in charge," he did not do so by finding that a "commanding officer" does not qualify as an "officer in charge." Rather, he mistakenly stated that there was no testimony supporting the conclusion that Betz was the commanding officer, which is clearly erroneous. See Commonwealth v. Castillo, 89 Mass. App. Ct. 779, 781, 54 N.E.3d 1135 (2016). Thus, the procedure Torres followed prior to the strip search conformed to the policy's requirement for an arresting officer to receive prior approval from a commanding officer.

However, even if Betz's prior approval as the commanding officer did not satisfy the policy's dictates, neither the Supreme Judicial Court nor this court has required adherence to such a policy to find a strip search justifiable. Commonwealth v. Vick, 90 Mass. App. Ct. at 631 n.15, 62 N.E.3d 105. Indeed, not adhering to such a policy is not determinative of the reasonableness of a search; it is only one factor in the analysis. See Commonwealth v. Morales, 462 Mass. 334, 343 n.9, 968 N.E.2d 403 (2012) ; Commonwealth v. Vick, supra at 631, 62 N.E.3d 105.

Instead, the reasonableness of a strip search is assessed by a variety of factors, such as privacy in the place where the search is conducted, minimizing the number of persons present during the search, and having a person of the same gender as the defendant conduct the search; each case is to be judged on its own facts. See Commonwealth v. Morales, supra at 342-343, 968 N.E.2d 403 and cases cited. Here, it is important to note that the defendant has not claimed that the manner or place in which the strip search was conducted was unreasonable, and the judge did not so find. Rather, the judge found that the strip search was conducted by Torres and Betz (two male officers) in a private cell near the booking area. Betz explained the process to the defendant, who was directed to remove his clothing, and he complied. When the red bandana concealing the seven bags of cocaine was revealed, it was seized, whereupon the defendant's clothes were returned to him.

In view of the above factors, this strip search was conducted in a reasonable and respectful manner, which outweighed the lack of prior approval by the officer in charge, to the extent that that occurred at all. See Commonwealth v. Vick, supra at 632, 62 N.E.3d 105. In this posture, there is no occasion to apply the exclusionary rule. See Commonwealth v. Wilkerson, 436 Mass. 137, 142, 763 N.E.2d 508 (2002) (because police officers "did nothing wrong, there is no unlawful conduct for exclusion of the evidence to deter").

3. Conclusion. As the strip search was supported by probable cause and conducted reasonably, it was error to suppress the fruits of that search. We reverse so much of the order as allowed the motion to suppress the evidence obtained as a result of the strip search.

So ordered.

SULLIVAN, J. (dissenting, with whom Henry, J., joins).

Today's decision blurs the distinction between probable cause to search (which was present here) and probable cause to conduct a strip search (which was not), and dispenses with the need for the type of specific, particularized probable cause to conduct a strip search required since Commonwealth v. Thomas, 429 Mass. 403, 408-409 & n.5, 708 N.E.2d 669 (1999). For this reason, I respectfully dissent.

The Supreme Judicial Court has held that "the search of the defendant lawfully could progressively extend into a strip (or a visual body cavity) search only if such a search was justified by probable cause to believe that the defendant had concealed [drugs] on his person or his clothing that would not otherwise be discovered by the usual search incident to arrest." Commonwealth v. Prophete, 443 Mass. 548, 554, 823 N.E.2d 343 (2005). In so holding, the court departed from Federal cases, and instead required that a strip search be based on probable cause to believe that drugs, weapons, or contraband were hidden in such a way that a more intrusive search was justified. See id. at 553-554, 823 N.E.2d 343, citing Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

On the facts found by the motion judge, the evidence here was insufficient to establish probable cause to believe that the defendant had secreted drugs in such a way as to necessitate a strip search. Because the police lacked probable cause to believe that they would find contraband in the private areas of his body, they lacked a lawful basis to conduct a strip search, that is a search which requires "the arrested person to discard all of his or her clothing," Commonwealth v. Prophete, supra at 556, 823 N.E.2d 343, or in which the "last layer of clothing is moved ... in such a manner whereby an intimate area of the detainee is viewed, exposed, or displayed." Commonwealth v. Morales, 462 Mass. 334, 342, 968 N.E.2d 403 (2012).

These are the relevant facts as found by the motion judge, supplemented by undisputed facts that he implicitly credited, and that are consistent with his ruling. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431, 35 N.E.3d 357 (2015) ; Commonwealth v. Depiero, 473 Mass 450, 452 n.3, 42 N.E.3d 1123 (2016). We repeat them here because fealty to the supported findings is central to the case.

On March 25, 2016, at approximately 9:00 P.M. , Officer Jose Torres, Jr. and Lieutenant Betz of the Chelsea police department drug unit were conducting surveillance near the Bellingham Square area of Chelsea. The officers had received citizen complaints of illegal drug activity and prostitution in the general area of their surveillance position. The officers focused on a multifamily residential building located at 9-11 Fourth Street (building).

After twenty minutes, Torres saw the defendant, whom he did not know, arrive at the front of the building with a woman. On three to five occasions, Torres saw the defendant go into the building, remain inside the building and out of view for thirty seconds, and then "take a short walk" of five or ten minutes duration. He then returned and went into the building again. Torres testified that it is "common practice for street-level dealers to retrieve the item that they're looking to sell, the narcotics, and make that [sale] and then return back to the stash location ... and re-up."

The judge credited this testimony explicitly, stating that Torres was "aware that it is common practice for persons engaged in street level drug distribution to not have a drug stash on their person, but to retrieve a small quantity of drugs from a stash location, sell the drugs, and then return to the stash location to retrieve another small quantity of drugs to sell." Consistent with Commonwealth v. Jones-Pannell, supra, we treat this as the judge's finding on this issue.

After twenty-five minutes of surveillance, Torres saw a pedestrian, later identified as James Foster, speaking with the defendant in front of the building. As set forth in the majority opinion, the police observed what they believed to be a hand-to-hand drug transaction, leading to Foster's arrest and the discovery of drugs in the pocket of Foster's sweatshirt.

After placing Foster under arrest, Torres approached Betz and the defendant. The defendant was upset, animated in his speech and gestures, and did not comply with Betz's orders. He took a "bladed" stance, which the judge found to be a "fighting" stance. The defendant pulled away from the officers in an "apparent[ ] attempt[ ]" to prevent Betz from searching him. The officers eventually conducted a search of the defendant and found no weapons or drugs, but did discover a twenty dollar bill, a dollar value consistent with the amount of cocaine discovered on Foster. The defendant was placed under arrest and transported to the police station.

During booking, the officers decided that a more thorough search of the defendant was necessary to determine if he had concealed drugs on his person. This decision was based on the fact that they had not found drugs during the search, and Torres's belief that the groin area was a common place for dealers to hide their contraband to avoid detection from law enforcement.

Betz informed the defendant that he was going to be strip searched. In response, the defendant became animated and stated that the officers were "not going to do that." Torres and Betz brought the defendant to a private cell and explained the strip search process. The defendant complied with the command to remove his shirt, pants, underwear, socks, and shoes. The officers saw a red bandana in the defendant's crotch area. Upon inspection of the red bandana, the officers discovered seven small bags containing a white powdered substance believed to be cocaine.

The motion judge concluded that the fact that the police did not find drugs on the defendant during the initial search was not, "absent other supporting facts not present here," sufficient to justify the strip search.

Discussion. In reviewing a decision on a motion to suppress, we must accept the motion judge's "subsidiary findings absent clear error but conduct an independent review of the ultimate findings and conclusions of law." Commonwealth v. Jones-Pannell, 472 Mass. at 431, 35 N.E.3d 357 (quotation omitted). Inferences to be drawn from the testimony, the weight of the evidence, and questions of credibility are for the motion judge, not an appellate court. See id. at 431-432 & n.3, 35 N.E.3d 357 ; Commonwealth v. Tremblay, 92 Mass. App. Ct. 295, 297 n.3, 84 N.E.3d 932 (2017).

"[S]trip or bodily cavity searches, by their very nature, are humiliating, demeaning, and terrifying experiences that, without question, constitute a substantial intrusion on one's personal privacy rights." Commonwealth v. Prophete, 443 Mass. at 553, 823 N.E.2d 343, citing Commonwealth v. Thomas, 429 Mass. at 408-409 & n.5, 708 N.E.2d 669. For this reason, to conduct a strip search in the Commonwealth, the "police must have probable cause to believe that 'they will find a weapon, contraband, or the fruits or instrumentalities of criminal activity that they could not reasonably expect to discover' " without removing all clothing or exposing intimate areas of the defendant's body. Commonwealth v. Vick, 90 Mass. App. Ct. 622, 628, 62 N.E.3d 105 (2016), quoting from Commonwealth v. Prophete, 443 Mass. at 556, 823 N.E.2d 343. See Commonwealth v. Morales, 462 Mass. at 342, 968 N.E.2d 403.

This means that the officers had to have probable cause to believe that the defendant was hiding drugs in the intimate areas of his body, and that moving or removing all his clothes would be necessary to find them. However, such probable cause is lacking here. The police did not report feeling any object near the defendant's groin or buttocks. Contrast Commonwealth v. Clermy, 421 Mass. 325, 327, 656 N.E.2d 1253 (1995) (officer felt hard object in genital area during patfrisk and retrieved object); Commonwealth v. Amado, 474 Mass. 147, 158, 48 N.E.3d 414 (2016) (Gants, C.J., dissenting) (officer "felt a hard object behind the defendant's testicles" that "was not 'part of the male anatomy' "). The motion judge made no finding that the defendant was reaching toward, reaching into, shielding, or attempting to shield his groin area or buttocks, although the Commonwealth argued for such a finding. Contrast Commonwealth v. Prophete, supra at 554-555, 823 N.E.2d 343 ("defendant, twice, used his hands to protect the area around his groin during the officers' initial pat-down search"); Commonwealth v. Vick, supra at 624, 62 N.E.3d 105 (defendant attempted to reach his cuffed hands toward his buttocks and thereafter, officer, while performing search incident to arrest, felt hard object in cleft of defendant's buttocks).

The prosecutor expressly urged the motion judge to make a finding that the defendant was shielding his groin area. The Commonwealth relied on Torres's testimony that he thought the defendant's "crotch area" warranted further attention because the defendant distanced himself and took a bladed stance before the patfrisk was conducted. However, when asked by the prosecutor what distancing meant, Torres answered that the defendant was distancing his whole body, not any particular area of the body. The motion judge's decision not to make a factual finding that the defendant was shielding his groin area was supported by the record, and was not the product of inadvertence or oversight. It is not for us to supplement that determination with a contrary finding. Commonwealth v. Jones-Pannell, 472 Mass. at 432, 35 N.E.3d 357 ("The Commonwealth essentially asks us to do what our case law proscribes: to rely on testimony that was neither explicitly nor implicitly credited by the motion judge, otherwise put, that we in essence make additional findings, and reach a different result, based on our own view of the evidence").

The Commonwealth has not cited, and we have not found, a Massachusetts case validating a strip search in the absence of some evidence that the contraband was hidden in a private area of the defendant's body. As just discussed, the police did not feel any object near, and did not see the defendant reach toward, his groin area. Nor was there any evidence that the defendant stayed on the street after making sales, thus permitting an inference that he had concealed drugs on his body. Contrast Commonwealth v. Thomas, 429 Mass. at 408, 708 N.E.2d 669 ("It was ... reasonable for the police to believe that ... because he remained on the street with the woman, ... he had more hidden drugs"). Even Federal cases that apply a far more lenient "particularized suspicion" standard, have found strip searches unlawful absent some particularized showing that the drugs were actually hidden on the defendant's body. See, e.g., United States v. Barnes, 506 F.3d 58, 62 (1st Cir. 2007).

In this case, a finding of probable cause must rest, then, on an assessment of four remaining factors: (1) the defendant took a fighting stance and was pulling away as if to avoid the patfrisk; (2) the defendant had previously gone inside the building to "re-up"; (3) Torres's testimony that drug dealers frequently hide drugs in the groin area; and (4) the defendant's resistance to being strip searched at the police station.

We recognize that "probable cause ... deal[s] 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." Commonwealth v. Prophete, 443 Mass. at 555, 823 N.E.2d 343, quoting from Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). The first three factors were sufficient to demonstrate probable cause to conduct the patfrisk and search. However, none of the first three factors, either alone or in combination, suffice to establish probable cause to conduct a strip search of this defendant. The Commonwealth's argument in this respect ignores the fact that the judge credited Torres's testimony that the defendant consistently returned to the building for thirty seconds at a time, in order "to not have a drug stash on [his] person." Nor did the cash found on the defendant indicate anything more than a single sale of the amount of drugs found on Foster.

Torres's general knowledge that some drug dealers "jock" drugs is insufficient to establish a particularized suspicion, much less probable cause, to believe that this defendant was doing so. See Commonwealth v. Amado, 474 Mass. at 149, 48 N.E.3d 414 (" 'Jocking' refers to a suspect's attempt to hide narcotics in the buttocks area"). "The evidence ... that [the defendant] was a suspected drug dealer in possession of narcotics and that some drug dealers conceal drugs between their buttocks-did not endow [the officer] with an individualized suspicion that [the defendant] was 'cheeking' drugs." United States v. Barnes, 506 F.3d at 62 (invalidating body cavity search). If a generalized suspicion that a drug dealer may be carrying drugs in his groin or buttocks is enough to justify a strip search, then a strip search would be justified in virtually all drug arrests, and "our long-standing jurisprudence" requiring particularized probable cause "will be seriously undermined." Commonwealth v. Warren, 475 Mass. 530, 539, 58 N.E.3d 333 (2016).

The majority attempts to bridge this evidentiary gap in three ways. First, it relies on the evidence that a drug deal took place. That evidence is relevant to the propriety of the search incident to arrest, but says nothing about whether there were drugs on the defendant's person requiring the removal of the defendant's clothing.

Second, the majority also states that the judge's findings about the defendant returning to the building are unsupported, speculating instead that "it is also just as likely that the defendant held more drugs on his person for each sale." Ante at 504 n.7, 104 N.E.3d at 674 n.7. The evidence in the record on this point was to the contrary. Unlike the defendant in Commonwealth v. Thomas, 429 Mass. at 408, 708 N.E.2d 669, this defendant "re-up[ped]" after each "walk." The motion judge credited Torres's testimony explicitly and found that the defendant was going in the building to re-up for the express purpose of ensuring that there were no drugs on his person in the event of arrest. Although the motion judge did not explicitly say "and I so find" following his summary of Torres's testimony, he was not required to do so once he stated that he credited Torres's testimony. See Commonwealth v. Jones-Pannell, 472 Mass. at 431-432, 35 N.E.3d 357. Indeed, once the motion judge credited this testimony, and the reasonable inferences drawn therefrom, there is no other way to interpret his ruling. Torres did testify that some drug dealers jock drugs, but the motion judge specifically credited the testimony that this dealer did not, and, in fact, returned to the building to re-up. Whether there was probable cause to believe that the defendant was hiding drugs on his body "depends on specific facts found by the judge that underlie such a determination." Commonwealth v. Jones-Pannell, supra at 434, 35 N.E.3d 357. It was for the motion judge to weigh the evidence and make findings. The motion judge's findings bind us.

Third, the majority relies on the defendant's protest of the strip search, asserting that this protest, together with all the other facts and circumstances, provides a substantial basis for a finding of probable cause as a matter of law. The defendant's statement that the officers "were not going to do that" was offered to show consciousness of guilt. This evidence may not be relied upon to tip the scales in favor of probable cause, however. At the time that the officers told the defendant that they would strip search him, they lacked probable cause to do so. The defendant's protest of a search without probable cause cannot create probable cause for a search. "Were the rule otherwise, the police could turn a hunch into [probable cause] by inducing the conduct justifying the [search]." Commonwealth v. Thibeau, 384 Mass. 762, 764, 429 N.E.2d 1009 (1981). See Commonwealth v. Stoute, 422 Mass. 782, 789, 665 N.E.2d 93 (1996). This is not a "legal technician's" sleight of hand. It is bedrock constitutional law. Where, as here, the police lacked a lawful basis to demand the strip search, the defendant's protest should not be treated as consciousness of guilt in assessing the probable cause calculus. See Commonwealth v.Thibeau, supra.

A generalized suspicion that drug dealers may jock drugs, coupled with the protest of an unlawful demand for an unconstitutional search, do not probable cause make. Accordingly, I respectfully dissent.

      While in the drug unit, Torres participated in approximately fifty drug investigations. Prior to being assigned to the drug unit, Torres participated in over 100 drug related arrests. At the outset of his police career, Torres completed a training course at the Lowell police academy in basic police practices and procedures. During his career as a police officer, Torres received regular training, including instruction in drug recognition, common methods of packaging for street level drug distribution, quantities of drugs commonly bought and sold on the street, and street terms often used in the drug trade. During his time as a member of the Chelsea police department, Torres witnessed in excess of seventy street-level hand-to-hand drug transactions.

      The woman had left at some point during the period of surveillance prior to Foster's arrival.

      Here, there is also no dispute that the defendant was strip searched. See Commonwealth v. Vick, 90 Mass. App. Ct. 622, 628, 62 N.E.3d 105 (2016).

      The Commonwealth seeks to add an additional "key fact" that it claims the motion judge "ignored," which is Torres's testimony that the defendant was "distancing" his "crotch area" from the police. While the evidentiary support for this was thin at best, and the judge was not required to credit that testimony, we need not resolve the issue because probable cause existed even in the absence of such evidence.

      Contrary to the dissent's suggestion, see post at 512 n.9, 104 N.E.3d at 681 n.9, the judge found that "Betz advised the defendant that he was going to be subjected to a strip search. The defendant responded in an animated manner telling the police that they were 'not going to do that.' " Characterizing this as an animated protest against a strip search or as consciousness of guilt neither changes the judge's finding of fact nor contravenes Commonwealth v. Jones-Pannell, 472 Mass. 429, 431-432, 35 N.E.3d 357 (2015).

      Contrary to the dissent's view, see post at 512, 104 N.E.3d at 680-81, the motion judge did not find that the defendant consistently returned to the building to "re-up" in order "to not have a drug stash on [his] person." The judge made no such finding, and if he had, it would not have been properly supported by the record. Although the police saw the defendant going in and out of the nearby building, and Torres was aware that it is "common practice" for street-level drug dealers to use "a stash location" rather than storing drugs on their person, there was no evidence that this defendant did so. In fact, it is just as likely that the defendant held more drugs on his person for each sale because he was without knowledge as to how much each buyer intended to purchase. In the end, practical considerations of everyday life would lead a prudent person, with knowledge of methods of concealing narcotics on a dealer's person, to reasonably conclude that the defendant's animated opposition to a further search of his person indicated that he was either not employing a stash at the building, or that he was, but nevertheless also possessed drugs from that stash on his person. See Commonwealth v. Thomas, 429 Mass. at 408-409, 708 N.E.2d 669. See also Commonwealth v. Battle, 365 Mass. at 476, 313 N.E.2d 554 (considering totality of circumstances, consciousness of guilt can be important factor when determining whether probable cause exists).

      The dissent relies on Commonwealth v. Warren, 475 Mass. 530, 539, 58 N.E.3d 333 (2016), in support of its claim that if the facts, circumstances, and police knowledge in this case were enough evidence to justify a strip search, then " 'our long-standing jurisprudence' requiring particularized probable cause 'will be seriously undermined.' " See post at 512, 104 N.E.3d at 680. However, the dissent's reliance is misplaced. The defendant in Warren ran away from the police, who merely had a hunch that he was involved in a breaking and entering. Commonwealth v. Warren, supra at 532, 58 N.E.3d 333. The court held that "evasive conduct in the absence of any other information tending toward an individualized suspicion that the defendant was involved in the crime is insufficient to support reasonable suspicion." Id. at 538, 58 N.E.3d 333. Here, as cataloged above, the defendant's animated protest against the search (behavior not in the nature of flight) occurred in the police station, after the police watched him sell cocaine to Foster, and after he was under arrest for that crime. Not only was the police interaction with the defendant not based on merely a hunch, but the fact that his arrest was supported by probable cause is not even challenged. Also unlike Warren, the defendant's behavior did not occur as a means to avoid a "consensual" encounter with the police. Here, the defendant's freedom to avoid the police had long since ended. Contrast Commonwealth v. Thibeau, 384 Mass. 762, 764, 429 N.E.2d 1009 (1981) (quick maneuver to avoid contact with police insufficient to establish reasonable suspicion).

      The judge did not have the benefit of the transcript at the time.

      The motion judge's findings were prefaced with the statement: "Based upon the credible evidence presented at the hearing on the defendant's motion to suppress on August 19, 2016, the court finds as follows."

      The judge described Torres, the only witness to testify at the suppression hearing, as a highly experienced officer who had received "in service training" in drug recognition and distribution, and who had participated in fifty drug investigations while a member of the drug unit, had made over 100 drug arrests before joining the drug unit, and had witnessed over seventy street-level hand-to-hand drug transactions.

      Torres testified that the defendant "was being animated, passive, not willing to comply."

      In addition, "to pass constitutional muster, the strip searches must have been reasonably conducted under the circumstances." Commonwealth v. Amado, 474 Mass. 147, 157-158, 48 N.E.3d 414 (2016) (Gants, C.J., dissenting). The motion judge did not find that the search was executed in an unreasonable manner, and no argument of that sort is made on appeal.

      Q.: "Based on your interaction with [the defendant] on the street, was there a particular area of his body that you thought warranted further attention?"
      A.: "Yes."
      Q.: "What was that?"
      A.: "The crotch area."
      Q.: "And why did you think that?"
      A.: "That was where he was distancing himself from us during the encounter on the street, during the search, the pat-frisk."

      Q.: "Okay. When you said he was trying to create distance between the two of you, was it any specific part of his body that he was pulling away any more than-"
      A.: "Well, just more so his body."

      Barnes involved a visual bodily cavity search. Under the Fourth Amendment to the United States Constitution, a strip search may be justified upon arrest for drug distribution, but a visual body cavity search requires a more particularized suspicion that contraband is being concealed. United States v. Barnes, 506 F.3d at 62.

      In stating his ultimate conclusions, the motion judge also specifically stated that "other ... facts" supporting probable cause were "not present here."

      As a general matter, there are many reasons why a defendant might protest a strip search, not the least of which is, as the Supreme Judicial Court has pointed out, that strip searches are a substantial and highly charged intrusion on personal privacy rights. Commonwealth v. Thomas, 429 Mass. at 409 n.5, 708 N.E.2d 669. While Commonwealth v. Warren, 475 Mass. at 538-539, 58 N.E.3d 333, would suggest that it is up to the judge to determine the weight of the evidence of consciousness of guilt, the judge here did not make explicit findings on that issue. Commonwealth v. Jones-Pannell, supra at 436-438, 35 N.E.3d 357, would require that we review any implicit finding regarding consciousness of guilt in a manner consistent with, not contrary to, the motion judge's stated ruling. However, even if we were to accede to the majority's conclusion that the motion judge was required, as a matter of law, to make a factual finding that this evidence showed consciousness of guilt, a proposition we do not accept, the evidence could not be considered for the reasons stated above.


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    COMMONWEALTH v. Zachariah J. LAROSE.
    17-P-668
    Appeals Court of Massachusetts.
    Entered: June 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   This case arises out of a traffic stop for a civil motor vehicle infraction, specifically, a marked lanes violation. The stop led to the defendant's arrest for operating a motor vehicle while under the influence of intoxicating liquor. The defendant, arguing that there was no probable cause for the stop, moved to suppress the evidence obtained thereafter. The judge allowed the motion and the Commonwealth appeals. We reverse.

Officer Michael Jablonski, of the Belchertown police department, testified that, on June 18, 2016, in the early morning hours, he was traveling on Route 202. He observed that "the vehicle in front of [him] was having a hard time maintaining its lanes." Specifically, Jablonski testified: "The operator of the vehicle, he would be swerving back over the white fog line. The passenger tires crossed over the fog line, approximately two feet over for I would say at least three to five seconds at a time, and then he would, you know get back in the lane and go over and rub on the yellow lines and cross over the yellow lines, and then head back towards the white fog line again too. Just kind of drifting in and out of the lanes." A video recording taken from the officer's dashboard camera was admitted at the hearing and, although the judge found a "stark contrast" between the officer's testimony and the recording, the judge determined that the defendant's car did, in fact, "cross over the fog line one time for two to three seconds."

According to G. L. c. 89, § 4A, inserted by St. 1952, c. 461, § 1, "[w]hen any way has been divided into lanes, the driver of a vehicle shall so drive that the vehicle shall be entirely within a single lane, and he shall not move from the lane in which he is driving until he has first ascertained if such movement can be made with safety." The judge concluded that this statute did not apply to the defendant's operation because, in his view, "crossing a fog line one time for a few seconds does not constitute a marked lanes violation" under the statute. "Second," the judge wrote, "even if the fog line is a marked lane for the purposes of the statute, there is no indication in the facts that the defendant's crossing the fog line was unsafe."

We disagree. The statute requires that "the driver of a vehicle ... drive [so] that the vehicle shall be entirely within a single lane, and he shall not move from the lane in which he is driving until he has first ascertained if such movement can be made with safety" (emphasis supplied). The judge's conclusion-and the defendant's argument-that the fog line does not define the lane simply defies common sense. A driver, such as the defendant, who veers into the breakdown lane on the other side of a right-side fog line creates a public safety risk-for bicyclists, for pedestrians, and for cars stopped in that lane because of an emergency. Cf. Commonwealth v. Jewett, 471 Mass. 624, 625 (2015) (Supreme Judicial Court, albeit in dictum, described crossing fog line as "marked lanes violation").

"In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact unless they are clearly erroneous but independently review the judge's ultimate findings and conclusions of law." Commonwealth v. Depiero, 473 Mass. 450, 453 (2016), quoting from Commonwealth v. Anderson, 461 Mass. 616, 619 (2012). "In order for a police investigatory stop to be justified under art. 14 [of the Massachusetts Declaration of Rights], the police must have 'reasonable suspicion' to conduct the stop." Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Cheek, 413 Mass. 492, 494 (1992). In particular, "[w]here the police have observed a traffic violation, they are warranted in stopping a vehicle." Commonwealth v. Cordero, 477 Mass. 237, 242 (2017), quoting from Commonwealth v. Amado, 474 Mass. 147, 151 (2016).

As a result, in this case, because the judge found that the defendant drove out of the marked travel lane when crossing over the fog line, the observing police officer had reason to stop the defendant for a marked lanes violation. The motion to suppress should have been denied.

Order allowing motion to suppress reversed.

      The defendant also was charged with the civil motor vehicle infraction of a marked lanes violation.

      Although the judge found an inconsistency between the officer's testimony and what was depicted on the video recording, he did "not find that [the officer] was being willfully dishonest about what transpired on the evening of the car stop. However, based on the cruiser video, the [judge] conclude[d] that either [the officer] d[id] not have a clear recollection of the events or is confusing this incident with another incident."

      The defendant does not argue that, when he traveled over the fog line, he was changing lanes-or even that the road contained two lanes in the direction he was headed.


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    COMMONWEALTH v. Michael S. GILL.
    17-P-611
    Appeals Court of Massachusetts.
    Entered: June 4, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Michael Gill, appeals from his convictions of armed assault with intent to kill and assault and battery. We affirm, addressing the defendant's various claims of error in turn.

1. Self-defense. The trial judge solely instructed the jurors on the use of deadly force in self-defense and deadly force in defense of another. On appeal, the defendant contends that the judge erred in failing to instruct the jury on the use of nondeadly force in self-defense and in defense of another. Because the defendant did not object to the omission of a nondeadly force instruction, our review is limited to whether the absence of such an instruction was an error that "created a substantial risk of a miscarriage of justice." Commonwealth v. Shea, 467 Mass. 788, 796 (2014).

The standards for self-defense using deadly force and nondeadly force are "mutually exclusive." Commonwealth v. Walker, 443 Mass. 213, 217 (2005). To justify the use of deadly force in self-defense, the defendant must reasonably and actually believe that he is "in imminent danger of death or serious bodily harm." Commonwealth v. Carrion, 407 Mass. 263, 268 (1990), quoting from Commonwealth v. Harrington, 379 Mass. 446, 450 (1980). In contrast, the use of nondeadly force arises when the defendant has "a reasonable concern over his personal safety." Commonwealth v. Baseler, 419 Mass. 500, 502-503 (1995).

In assessing whether an instruction on self-defense was warranted, we consider the evidence in the light most favorable to the defendant. See Commonwealth v. Little, 431 Mass. 782, 790 (2000). The following summary of the evidence adopts that perspective.

The defendant and the victim were standing in their front yards across the street from each other when they were involved in a shouting match. After hearing the commotion, the defendant's brother joined the defendant outside. The victim then yelled, "I got something for you Mikey," and went back into his house. He emerged a few seconds later with a machete and proceeded to walk towards the defendant. The defendant's brother ran to his vehicle and retrieved a folding knife. The victim first chased the defendant's brother with the machete before turning his attention to the defendant after the defendant had picked up a pavestone.

At some point, the defendant threw the pavestone at the victim, but did not hit him. According to the defendant, because a pavestone thrown in the direction of the victim could be construed as nondeadly rather than deadly force, the jury should have been instructed on the justified use of nondeadly force in self-defense.

It is the victim's conduct that determines whether justified and proportional defensive force was used. "The proper standard for determining whether a defendant's particular actions were justifiably undertaken in self-defense depends on the level of force he used on his victim and the circumstances that prompted those actions." Commonwealth v. Pike, 428 Mass. 393, 395 (1998). There is no dispute that the victim was wielding a machete during the altercation with the defendant and his brother. There is no question that the victim's threatened use of the machete as a weapon against the defendant (or his brother) would have posed an imminent threat of death or serious bodily harm. Accordingly, we discern no substantial risk that the defendant was deprived of a more generous verdict based on a conclusion that the defendant was justified in using nondeadly (but not deadly) force in self-defense. See Commonwealth v. Galvin, 56 Mass. App. Ct. 698, 702 (2002).

2. Sufficiency of the evidence of armed assault with intent to kill. To be convicted on the theory of joint venture when there is a weapon as one of its elements, the defendant's "knowledge of the weapon is an element of the Commonwealth's proof." Commonwealth v. Gorman, 84 Mass. App. Ct. 482, 489 (2013), quoting from Commonwealth v. Britt, 465 Mass. 87, 99 (2013). The defendant claims that the Commonwealth did not prove beyond a reasonable doubt that he knew his brother, the codefendant, was armed with a knife.

Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-679 (1979), a rational jury could have found as follows. The defendant and his brother drove up in a vehicle together and parked in front of their residence. The defendant exited the car and started yelling at the victim. The defendant continued to yell as he started walking towards the victim's yard. Upon hearing the yelling, the defendant's brother exited from the doorway of his residence as the defendant was entering the victim's front yard. As the defendant's brother was advancing towards the victim's yard, a small black folding knife was visible in his hand. The defendant and his brother pursued the victim together and the defendant was present when the victim was ultimately stabbed by his brother. Based on that evidence, together with the reasonable inferences therefrom, a rational juror could find beyond a reasonable doubt that the defendant knew his brother was armed.

3. Exclusion of prior conviction. The exclusion of a certified docket reflecting the victim's prior conviction of breaking and entering furnishes no cause to disturb the judgments; in light of the victim's acknowledgement of several felony convictions that were admitted in evidence, the admission of the breaking and entering conviction would have provided little additional value to the defendant's effort to impeach the victim's credibility.

4. Adjutant evidence. Finally, there was no error in the exclusion of evidence of the victim's prior violent conduct, pursuant to Commonwealth v. Adjutant, 443 Mass. 649 (2005). Such evidence may be admitted "for the limited purpose of supporting the defendant's self-defense claim that the victim was the first aggressor." Id. at 660. Admissibility depends on whether the probative value of the evidence proffered outweighs its prejudicial effect in the context of the facts and issues presented. See id. at 663 Passing the question whether the issue of the first aggressor was in dispute, the judge did not abuse his discretion to exclude the evidence offered by the defendant. The victim's prior threat in a single incident arising from an employment dispute was different in nature from the incident underlying the offense, an armed street fight. See id. at 663-664. Moreover, the jury already had far more potent evidence of the victim's violent tendencies, having heard undisputed testimony that the victim wielded a machete and admitted to having prior felony convictions. In view of the way in which the case was submitted to the jury, we discern no material prejudice to the defendant from the exclusion of the Adjutant evidence.

Judgments affirmed.

      The defendant was indicted on charges of armed assault with intent to murder and assault and battery by means of a dangerous weapon. He was acquitted of those charges but convicted of the lesser included offenses in each case.

      The details of that act were described by conflicting testimony. While the victim testified that the defendant threw the pavestone at his head, the defendant's brother testified that the defendant threw the pavestone at the victim's feet. Two other witnesses offered similar testimony that the pavestone either hit the victim in the leg or did not hit the victim at all. For purposes of our analysis of the defendant's claim of self-defense, we adopt the view most favorable to the defendant.

      To the extent the defendant suggests that the evidence did not clearly establish that the victim threatened to use the machete as a weapon against him or his brother, the point is unavailing; under that view of the evidence the victim did not pose a threat justifying use of force in self-defense.

      There is some question whether the defendant was entitled to an instruction on self-defense at all. "A self-defense instruction is not required unless there is some evidence that the defendant availed himself of all means, proper and reasonable under the circumstances, of retreating from the conflict before resorting to the use of deadly [or nondeadly] force." Commonwealth v. Toon, 55 Mass. App. Ct. 642, 653 (2002). Though the evidence suggests that the defendant did not avail himself of opportunities to retreat, our view of the case avoids any need to resolve the question.

      The testimony from the victim and his fiancée was inconsistent with respect to where the defendant came from prior to approaching them. The victim testified that the defendant exited a black vehicle that had just parked in front of the defendant's residence. The victim's fiancée testified that the defendant exited from the residence. The difference is immaterial to the issues raised on appeal.

      The victim admitted to being convicted of drug trafficking, conspiracy to violate the Controlled Substances Act, knowingly receiving stolen property, and threats to commit a crime.


text:
    In the MATTER OF N.F.
    17-P-979
    Appeals Court of Massachusetts.
    Entered: June 4, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a hearing, N.F. was involuntarily committed to the Massachusetts Alcohol and Substance Abuse Center pursuant to G. L. c. 123, § 35. N.F. filed a motion to vacate the commitment order and the Appellate Division of the District Court Department affirmed the commitment. N.F. appeals. We affirm.

Background. On Monday, April 24, 2017, N.F.'s mother, J.F., petitioned in District Court to have N.F. involuntarily committed. Dr. Ruth Saemann and J.F. testified at a hearing on the petition. Dr. Saemann recommended that N.F. be committed based on Dr. Saemann's interview of J.F. and screen shots of text messages that J.F. reported to her. , J.F. testified that the messages were sent between N.F. and his friend, Nolan, and that the images were sent to J.F.'s other son, then to J.F.'s nephew, and then to J.F. J.F. provided copies of the messages to the hearing judge, which included statements that the sender was seeking heroin and was vomiting from substance use, and that the sender wanted to "skip to [his] own funeral" because he could not obtain heroin and was "threw [sic ] with it soon I'll kill myself."

J.F. received the messages on the weekend preceding the hearing, which prompted her to seek N.F.'s commitment through G. L. c. 123, § 12. N.F. was released that weekend. Then J.F. sought his commitment under § 35.

Discussion. N.F. argues that the judge impermissibly relied on the images of the messages, and that these images were not properly authenticated and were not reliable hearsay.

The rules of evidence do not strictly apply in commitment proceedings, and hearsay evidence is admissible if the evidence is "substantially reliable." Matter of G.P., 473 Mass. 112, 121-122 (2015). Electronic communications are authenticated when "sufficient evidence exists 'for a [fact finder] to find by a preponderance of the evidence that the defendant authored' the communication." Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 366 (2014), quoting from Commonwealth v. Purdy, 459 Mass. 442, 447 (2011). A judge may consider "confirming circumstances" to corroborate the authenticity of the messages. Oppenheim, supra at 368.

As discussed in the well-reasoned Appellate Division decision, the messages were adequately authenticated. J.F. testified that the messages were sent to her through her nephew, and she identified messages in the screen shot that were sent by N.F. There were also confirming circumstances within the messages to further identify N.F. as the sender. The sender referenced a previous hospital visit and his use of "DXM." Dr. Saemann testified to her familiarity that N.F. previously used DXM for which he was previously committed. These circumstances were sufficient to authenticate the messages and to identify N.F.

Additionally, the contents of the messages were not impermissible hearsay, nor were they double hearsay, as N.F. contends. The messages were not a "chain of statements" that were then relayed to the judge, Commonwealth v. McDonough, 400 Mass. 639, 643 n.8 (1987), but rather were akin to a letter that passed through the possession of others before being given to J.F. and presented to the judge as evidence. N.F.'s arguments on this point concern authenticity, not admissibility based on a hearsay objection. Nevertheless, the contents of the messages were permissibly considered where the sender was identified as N.F., a party opponent, and further where the contents of the messages indicated their reliability based on their detail and elements that were corroborated. See Matter of G.P., supra at 121-122, citing Commonwealth v. Patton, 458 Mass. 119, 132-133 (2010).

Considering these messages and J.F.'s testimony, there was clear and convincing evidence to warrant N.F.'s commitment. See Matter of G.P., supra at 118. The messages indicated that N.F. used heroin but was unable to obtain it, causing him to express imminent suicidal thoughts, and that he was vomiting because of his substance use. Although each message was not clearly dated, within the conversation there was a telephone call from N.F. on "Fri at 10:29 P.M." The messages further show, and J.F. testified, that she received the messages during the weekend preceding the petition made on Monday. It was reasonable for the hearing judge to infer, based on the messages and J.F.'s testimony, that family members alerted J.F. of a present risk rather than sent her outdated information to cause alarm. This was sufficient to conclude that N.F. presented a substantial, imminent risk of harm to himself.

Decision and order of Appellate Division affirmed.

      General Laws c. 123, § 35, provides that a person may be involuntarily committed if that person has a substance use disorder and presents "a likelihood of serious harm, ... established by a showing of (1) a substantial risk of serious physical harm to the respondent; (2) a substantial risk of serious physical harm to other persons; or (3) a very substantial risk of physical 'impairment or injury' to the respondent resulting from an inability to protect himself or herself in the community. G. L. c. 123, § 1." Matter of G.P., 473 Mass. 112, 117 (2015).

      N.F. declined to meet with Dr. Saemann for an evaluation prior to the hearing, on advice from counsel. Dr. Saemann had committed N.F. previously.

      J.F. initially provided Dr. Saemann with handwritten copies of the messages. The judge allowed J.F. to bring her cellular telephone into the court room during the hearing. The record suggests that the judge also viewed the messages.

      As to whether J.F. received the messages on Friday or Saturday, she wavered, but finally testified that the messages were sent on Friday. The copies of the messages in the record indicate that she received the messages on Saturday morning.

      General Laws c. 123, § 12(a ), as appearing in St. 2010, c. 278, § 1, permits emergency hospitalization where there is "reason to believe that failure to hospitalize such person would create a likelihood of serious harm by reason of mental illness." A person may be held for three days.

      As an initial matter, we note that N.F. is no longer committed pursuant to the statute. N.F.'s challenge to the commitment order is therefore moot. However, because "these issues are likely to evade review on account of the relatively short duration of a commitment under § 35," we consider N.F.'s arguments. Matter of G.P., 473 Mass. 112, 113 (2015). See Matter of N.L., 476 Mass. 632, 635 (2017) (reviewing moot civil commitment order to mental health facility pursuant to G. L. c. 123, §§ 7 and 8 ).

      At the hearing, J.F. read certain selections of the messages and identified that "[t]his is [N.F.'s] friend in blue.... And my son is in gray." In the copies of the messages in the appellate record, the messages on the right side of the conversation are blue and the messages on the left side are gray. There is also a photograph of a person alongside the gray messages. The mother did not explicitly identify the person in the photograph as N.F. The judge reviewed the messages from the telephone prior to making copies of the messages and could have inferred that the mother recognized the photograph to be her son, N.F.


text:
    COMMONWEALTH v. Michael J. WHITE.
    17-P-492
    Appeals Court of Massachusetts.
    Entered: June 1, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Michael J. White, was charged in the Boston Municipal Court with violation of a restraining order. A judge dismissed the complaint finding that it was not supported by probable cause. We affirm.

Background. On September 8, 2015, A.F. filed a complaint for protection from abuse pursuant to G. L. c. 209A. An ex parte order issued on September 9, 2015, with an expiration date of September 22, 2015. On September 11, 2015, A.F. received five telephone calls from the defendant between 7:15 P.M. and 7:24 P.M. A.F. answered the first call, as she did not recognize the incoming telephone number, and hung up when she heard the defendant's voice. Thereafter, the defendant called A.F. from a telephone number that she recognized; she did not answer the call and the defendant left a voicemail message. In the message, the defendant stated, "[W]hat is this court shit?" and "[Y]ou['re] ruining my life more than you already have." The defendant was served in hand with the order on September 12, 2015, at 9:51 P.M.

Detective Carmen Rodriguez of the Boston police department domestic violence unit filed an application for a criminal complaint alleging one count of violation of a restraining order. A hearing was held before a clerk magistrate on October 29, 2015. The magistrate found probable cause to issue the complaint and made certain notations.

The defendant filed a motion to dismiss the complaint for lack of probable cause, which was allowed after a nonevidentiary hearing. In a margin endorsement, the judge found that it was more probable than not that the defendant knew of the order, but not its provisions, including that he was not to contact A.F.

Discussion. We review a motion judge's determination on the issue of probable cause de novo. See Commonwealth v. Ilya I., 470 Mass. 625, 627 (2015). "[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 from Commonwealth v. Huggins, 84 Mass. App. Ct. 107, 111 (2013). "To establish probable cause, the complaint application must set forth 'reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense.' " Humberto H., supra, quoting from Commonwealth v. Roman, 414 Mass. 642, 643 (1993). "The complaint application must include information to support probable cause as to each essential element of the offense." Humberto H., supra at 565-566. Probable cause requires "more than mere suspicion," but "considerably less than proof beyond a reasonable doubt, so evidence that is insufficient to support a guilty verdict might be more than sufficient to establish probable cause." Id. at 565 (quotation omitted). In this context, we view the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Rodriguez, 75 Mass. App. Ct. 235, 238 (2009).

The Supreme Judicial Court has made it abundantly clear that where a prosecutor exercises his prosecutorial discretion, and in the absence of statutory authority, a judge is precluded from dismissing a valid complaint. See Commonwealth v. Newton N., 478 Mass. 747, 755-756 (2018) ; Commonwealth v. Orbin O., 478 Mass. 759, 764-765 (2018). Here, the judge acted within his authority in dismissing the complaint, as probable cause on the third element of the offense-the defendant's knowledge of the order-is lacking. While personal service of the order is not required, here, at best, the complaint application established that the defendant knew of the order, but not its terms. The Commonwealth's reliance on Commonwealth v. Melton, 77 Mass. App. Ct. 552 (2010), is misplaced. In Melton, the victim specifically asked the defendant why he was calling, as "there's a restraining order." Id. at 556. Here, the only inference to be drawn from the defendant's voicemail message is that he knew of the order. It does not follow from his message, in the light most favorable to the Commonwealth, that the defendant knew he was precluded from calling A.F. Contrast Commonwealth v. Olivo, 369 Mass. 62, 69-70 (1975) (Spanish speaking defendants on inquiry notice when served with notices written in English).

Order dismissing complaint affirmed.

      The magistrate made the following entries on the "Finding of Magistrate After Hearing Under C218/53A": "Det C. Rodriguez-BPD," "D present," "D attorney present," "victim present," "testimony," "review of R.O.," "P.C. found (D atty stips to P.C.)," "process to issue," "service checked on R.O. (served)." It does not appear that live testimony before the clerk magistrate was preserved.

      "[P]robable cause exists where ... the facts and circumstances within the knowledge of the [magistrate] are enough to warrant a prudent person in believing that the individual ... has committed ... an offense .... Probable cause is a relatively low threshold, requiring only sufficiently trustworthy information to instill in a reasonable person the requisite belief of criminality." Paquette v. Commonwealth, 440 Mass. 121, 132 (2003) (citation and quotations omitted). This is the same probable cause standard that the police must apply in making an arrest, and it "is lower than that for submitting a criminal case to a jury (facts warranting a finding of guilt beyond a reasonable doubt)" at trial. Commonwealth v. Lent, 420 Mass. 764, 765 n.2 (1995). This standard is also lower than the probable cause standard that is applied by a judge in a bind-over hearing. See Myers v. Commonwealth, 363 Mass. 843, 850 (1973) ; Commonwealth v. McCarthy, 385 Mass. 160, 162 n.5 (1982) ; Paquette, supra.

      To establish a violation of G. L. c. 209A, the Commonwealth must prove that (1) a valid 209A order was entered by a judge and was in effect on the date of the alleged violation; (2) the defendant violated the order; and (3) the defendant had knowledge of the order. See Commonwealth v. Silva, 431 Mass. 401, 403 (2000).

      The fact that the defendant's attorney stipulated to "probable cause" at the clerk magistrate's hearing is of no moment. There are many tactical reasons why an attorney may choose this course of action at the initiation of a criminal proceeding and a different course of action thereafter.


text:
    MIDWEST CONSTRUCTION SERVICES, INC. v. AVALONBAY COMMUNITIES, INC. & another.
    17-P-435
    Appeals Court of Massachusetts.
    Entered: June 8, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Doing business as Trillium Construction Services.

      Avalon Canton, Inc.

   The plaintiff, Midwest Construction Services, Inc., doing business as Trillium Construction Services (Trillium), appeals from a judgment entered in the Superior Court dismissing its claims against AvalonBay Communities, Inc. (AvalonBay), and Avalon Canton, Inc. (Avalon Canton), to recover monies for work performed pursuant to a subcontract with a codefendant, Superior Mechanical Plumbing and Heating, Inc. (Superior). For the reasons stated below, we affirm the judgment.

Background. We summarize the undisputed facts from the summary judgment record material to the plaintiff's claims. On or about April 23, 2013, Trillium entered into an agreement with Superior to supply labor to various construction projects located in Massachusetts. One of those projects involved plumbing work for the construction of a residential apartment complex in Canton (project) owned by Avalon Canton. Avalon Canton is a wholly-owned subsidiary of AvalonBay. AvalonBay oversaw the development and managed the project for Avalon Canton.

On June 6, 2013, AvalonBay entered into a trade contract with Superior for the plumbing work at the project (trade contract). Trillium supplied the labor to Superior for the project. The terms of the trade contract provided that AvalonBay would make monthly payments to Superior upon AvalonBay's inspection of Superior's work, approval of its requisitions, and receipt of lien waivers and releases from Superior and its subcontractors and suppliers.

In connection with the trade contract, AvalonBay, Superior, and Trillium also entered into a joint check agreement (JCA), under which AvalonBay agreed that, upon receipt of Trillium's invoices, AvalonBay would issue payments to Superior in the form of joint checks payable to Superior and Trillium. The JCA provided that payments were to be made "in accordance [with the] terms and conditions of the Trade Contract between Owner [AvalonBay] and Contractor [Superior]."

From July 15, 2013, to sometime in April or May of 2014, Superior worked on the project with labor supplied by Trillium. Superior submitted six applications for payment to AvalonBay for work performed from July 15, 2013, to March 31, 2014. Each payment application, except for the first, contained a partial lien release certifying that all suppliers and subcontractors had provided Superior with a corresponding lien release and that Superior had paid or would pay the subcontractors with money received from AvalonBay. Trillium also provided AvalonBay with lien waivers and releases certifying that between September 13, 2013, and March 27, 2014, Superior had fully paid Trillium for all work it had performed. Those lien waivers and releases waived any and all claims against AvalonBay through March 27, 2014. Following receipt of the lien releases, AvalonBay issued electronic disbursements and joint checks payable to Superior and Trillium between August 21, 2013, and April 21, 2014.

On April 1, 2014, five days after submitting its last lien waiver and release, Trillium's vice president contacted AvalonBay representing that Superior had failed to pay many of Trillium's invoices from September 13, 2013, through March 27, 2014, and owed Trillium $204,669.80. On April 11, 2014, Trillium advised AvalonBay that due to the outstanding monies owed, it was pulling its labor from the project. On May 8, 2014, Trillium recorded a notice of contract and a statement of account in the Norfolk County Registry of Deeds relating to the unpaid labor it supplied to Superior for work on the project. On May 9, 2014, Trillium sent notice of those recordings to Avalon Canton by certified mail. Trillium claimed in its notices that Superior failed to pay it $210,572.23 out of a total of $304,976.10. On May 16, 2014, AvalonBay terminated the trade contract because Superior failed adequately to perform its work. AvalonBay then contracted with another plumbing contractor to complete Superior's work. On June 3, 2014, Trillium commenced this action. The defendants filed a motion for summary judgment and, after a hearing, the judge allowed the motion and dismissed Trillium's complaint. This appeal followed.

Discussion. We review the grant of summary judgment de novo. Miller v. Cotter, 448 Mass. 671, 676 (2007).

1. Mechanic's lien. Trillium asserts a mechanic's lien against the defendants pursuant to G. L. c. 254, § 4. Under the statute, a subcontractor who has entered into a written contract with a contractor for improvements to real property, or for furnishing labor or materials for such improvements, may file or record a notice of the contract with the registry of deeds, give actual notice to the owner of such recording, and upon the filing or recording shall have a lien on the property or building to secure payment for the labor or materials. Ibid. "The lien is a creature of the statute, and can be enforced only by strict compliance with the statute." Hammill-McCormick Assocs., Inc. v. New England Tel. & Tel. Co., 399 Mass. 541, 543-544 (1987). The statute "is strictly construed against the party claiming the lien." Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 644 (2002). "The primary purpose of the lien is to provide security to contractors, subcontractors, laborers, and suppliers for the value of their services and goods provided for improving the owner's real estate.... At the same time, the statute contains filing and notice requirements to protect the owner and others with an interest in the property." Tremont Tower Condominium, LLC v. George B.H. Macomber Co., 436 Mass. 677, 679 (2002), quoting from Hammill-McCormick Assocs., Inc., supra at 542-543.

General Laws c. 254, § 4, as appearing in St. 1996, c. 364, § 5, limits a mechanic's lien by providing that the lien "shall not exceed the amount due or to become due under the original contract as of the date notice of the filing of the subcontract is given by the subcontractor to the owner." See BloomSouth Flooring Corp. v. Boys' & Girls' Club of Taunton, Inc., 440 Mass. 618, 623-624 (2003). Trillium asserts that the paragraph which follows the above-quoted language, and which was newly added to the statute by the 1996 amendment, provides an exception to this limitation for a lower-tier subcontractor or supplier-i.e., one who "has no direct contractual relationship with the original contractor"-who serves a notice of identification on the general contractor. G. L. c. 254, § 4. Trillium argues that AvalonBay, in managing the project for Avalon Canton, was the general contractor, making Superior the subcontractor, and Trillium the sub-subcontractor. As a lower-tier subcontractor, Trillium claims that it was entitled to the additional protections of the language added in the 1996 amendment, and that the JCA, signed by AvalonBay, Superior, and Trillium, did provide a notice of identification to the general contractor.

We have substantial doubt whether Trillium is a lower-tier subcontractor within the meaning of that paragraph, insofar as AvalonBay appears to have operated as agent on behalf of its wholly-owned subsidiary Avalon Canton rather than as a general contractor, and whether the JCA operates as a notice of identification "in substantially the form" specified in that paragraph. However, we need not resolve either question, as we disagree with Trillium's contention that the language confers greater rights to lower-tier subcontractors than to ordinary subcontractors.

Trillium's argument misinterprets G. L. c. 254, § 4. When read in full, the language of that section provides that both first-tier and lower-tier subcontractors are subject to the general limitation that they may recover on a lien only the "amount due or to become due under the original contract" as of the date when a notice of contract is filed. The 1996 amendment to the statute added an additional limitation on lower-tier subcontractors who fail to serve a timely notice of identification on general contractors, limiting those liens to the amount that remains owed to the first-tier subcontractor by the general contractor as of the date the lower-tier subcontractor files its notice of contract. Nothing in the provision governing those with "no direct contractual relationship with the original contractor" renders the earlier limitation on subcontractors inapplicable to lower-tier subcontractors. In other words, though it is clear that the subsequent paragraph is designed to furnish a mechanism to ensure that lower-tier subcontractors are not placed at a disadvantage in terms of their ability to secure and collect payment for work performed, it does not entitle them to recover more than they could if they performed the same work as first-tier subcontractors.

The sole issue in this appeal is whether there was an amount "due or to become due" from AvalonBay to Superior under the trade contract as of the date Trillium filed its notice of contract. As noted above, on May 8, 2014, Trillium filed a notice of contract and a statement of account in the Norfolk County Registry of Deeds and the following day sent notice of these recordings to Avalon Canton by certified mail. Prior to filing the notice, Trillium submitted lien waivers and partial releases on five separate occasions as part of the payment applications that AvalonBay relied on to issue payments under the terms of the trade contract. These documents certified that Trillium had been fully paid through March 27, 2014, and waived any of Trillium's claims against AvalonBay through that date. It was over one month after Trillium submitted the last lien waiver that it filed the notice of contract, and there were no unpaid invoices free of a waiver sent to AvalonBay in the intervening period. Thus, the motion judge properly dismissed this claim based on the fact that on May 9, 2014, no payment was due or to become due under the original contract.

2. Breach of contract. We also reject Trillium's assertion that the defendants breached the JCA by failing to notify Trillium of insufficient funds remaining in Superior's account to pay Trillium's outstanding invoices within ten days of Trillium's submitting an invoice to AvalonBay. Trillium argues that the electronic mail message (e-mail) sent by its vice president to AvalonBay on April 1, 2014, claiming that Superior owed Trillium $204,669.80, triggered AvalonBay's obligation to provide notice of the insufficiency. The e-mail, however, was sent five days after Trillium sent its last lien waiver and partial release on March 27, 2014. There were no further unpaid invoices free of a waiver sent to AvalonBay that would have alerted it to the fact that there were insufficient funds in Superior's account to honor the invoice. Because this condition precedent in the JCA was not met, AvalonBay's obligation to notify Trillium about the insufficiency was not triggered.

3. Breach of the implied covenant of good faith and fair dealing. We likewise discern no error in the motion judge's dismissal of Trillium's claim that the defendants violated the implied covenant of good faith and fair dealing by failing to notify Trillium that Superior was not adequately performing its work, could not afford to pay Trillium, and that the defendants intended to terminate the trade contract. "Every contract implies good faith and fair dealing between the parties to it," Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471 (1991) (quotation omitted), meaning that "neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract." Druker v. Roland Wm. Jutras Assocs., Inc., 370 Mass. 383, 385 (1976), quoting from Uproar Co. v. National Bdcst. Co., 81 F.2d 373, 377 (1st Cir.), cert. denied, 298 U.S. 670 (1936).

Here, Trillium did not proffer any evidence to support its allegations that defendants acted in bad faith or engaged in unfair dealing. The JCA contains no provisions requiring the defendants to notify Trillium of performance-related issues with Superior or that it intended to terminate Superior's contract. As stated previously, under the JCA, the defendants were not required to notify Trillium that Superior could not afford to pay Trillium when there was no unpaid invoice sent to AvalonBay after the final lien release was sent. Accordingly, this claim was appropriately dismissed.

Judgment affirmed.

      Trillium asserted claims against Superior for a breach of contract (count I), AvalonBay for breach of contract (count II), Superior for quantum meruit (count III), Superior for unjust enrichment (count IV), AvalonBay for unjust enrichment (count V), AvalonBay for breach of the implied covenant of good faith and fair dealing (count VI), Superior for violation of G. L. c. 93A, § 11 (count VII), AvalonBay for violation of G. L. c. 93A, § 11 (count VIII), and to enforce a mechanic's lien under G. L. c. 254, § 4 (count IX). Superior was defaulted on July 30, 2014. Trillium subsequently recovered a separate default judgment against Superior in the amount of $246,564.03, and that judgment has not been appealed. Trillium did not appeal the entry of summary judgment in favor of AvalonBay on Trillium's claims alleging unjust enrichment (count V) or violation of G. L. c. 93A, § 11 (count VIII). The only claims before us in this appeal are against AvalonBay for breach of contract (count II), breach of the covenant of good faith and fair dealing (count VI), and enforcement of a mechanic's lien under G. L. c. 254, § 4 (count IX).

      The record contains conflicting evidence of the date on which work was last performed, but the conflict is not material to the issues on appeal.

      On July 1, 2014, Trillium recorded an updated statement of account in the Norfolk County Registry of Deeds claiming Superior failed to pay it $248,939.03 out of a total of $343,342.90.

      AvalonBay paid the new contractor approximately $247,559, an amount that exceeded what AvalonBay would have paid Superior by $96,357.35 had Superior fully performed its work. Section 30.3 of the trade contract expressly provides that upon termination for default, Superior is liable to AvalonBay for any amounts that AvalonBay pays in excess of the unpaid balance of the contract. On this basis, AvalonBay asserted cross claims against Superior for breach of contract and indemnification for the additional costs and expenses caused by Superior's default. The cross claims were dismissed below and are not before us on appeal.

      Trillium's argument that paragraph five of the JCA rendered the release it submitted ineffective unless Trillium had actually received full payment is without merit. Each release signed by Trillium through March 27, 2014, acknowledged receipt of a portion of monies paid to Superior as consideration and then released Trillium's claims against AvalonBay. In any event, the question arising from Trillium's argument under the JCA is not whether the prior lien releases are enforceable, but rather whether the e-mail sent by Trillium's vice president following the final invoice and release triggered some additional or independent obligation to notify Trillium about the insufficient funds. As discussed, it did not.