author: WENTWORTH, Judge

text:
    GARRETT LLC, Petitioner, v. NOBLE COUNTY ASSESSOR, Respondent.
    Cause No. 49T10-1712-TA-00022
    Tax Court of Indiana.
    FILED September 24, 2018
    ATTORNEYS FOR PETITIONER: PATRICK L. JESSUP, MICHAEL M. YODER, YODER & KRAUS P.C., Kendallville, IN
    ATTORNEYS FOR RESPONDENT: CURTIS T. HILL, JR., ATTORNEY GENERAL OF INDIANA, MATTHEW R. ELLIOTT, REBECCA MCCLAIN, WINSTON LIN, DEPUTY ATTORNEYS GENERAL, Indianapolis, IN
   WENTWORTH, Judge

Garrett LLC challenges the final determination of the Indiana Board of Tax Review that established the assessed value of its real property for the 2016 tax year. Upon review, the Court affirms the Indiana Board's final determination.

FACTS AND PROCEDURAL HISTORY

Garrett is in the business of acquiring, remediating, and reselling contaminated properties. (Cert. Admin. R. at 162.) In June 2014, Garrett purchased for $1.00 the former Dalton Foundry, a property located in Kendallville, Indiana that was owned by the Dalton Corporation and had been vacant since 2009. (Cert. Admin. R. at 55, 59-60.)

After purchasing the property, Garrett hired contractors to do both a Phase I and Phase II evaluation of the property's environmental contamination, which disclosed that its soil and ground water contained chlorinated solvents and metal contamination. (See Cert. Admin. R. at 164-65, 182.) In addition, the evaluations revealed that the property was covered with foundry sand, requiring two feet of clay surface and a foot of topsoil in order to build on it. (Cert. Admin. R. at 183-84.)

Garrett entered a Voluntary Remediation Program with the State of Indiana that exchanged a covenant not to sue for the remediation of the property. (See Cert. Admin. R. at 185-86.) Garrett sold a ten-acre portion of the property, referred to as The Mound, at a discount to East Noble School Corporation for building a new middle school. (Cert. Admin. R. at 165-67, 177-78.) The sale proceeds helped Garrett fund both the demolition of the old Dalton factory and the environmental cleanup costs. (Cert. Admin. R. at 178.)

For the assessment date of March 1, 2015, the Noble County Assessor valued the property at $200,000: $72,600 for 25.03 acres of land and $127,400 for the improvements. (Cert. Admin. R. at 87-88, 154-55.) Garrett protested the assessment to the Noble County Property Tax Assessment Board of Appeals (PTABOA). After an informal meeting, the Assessor did not lower the $200,000 assessed value, but did agree to reallocate the property's assessed value by reducing the land value to $68,900 and increasing the value of the improvements to $131,100. (See Cert. Admin. R. at 56-58, 87.) The parties signed a Form 134 - Joint Report by Taxpayer / Assessor to the County Board of Appeals of a Preliminary Informal Meeting (Form 134) to that effect on March 16, 2015. (Cert. Admin. R. at 56-58.)

On May 20, 2015, Garrett transferred 4.75 acres of the property to Garrett Well, LLC. (Cert. Admin. R. at 67-68, 168.) Thereafter, Garrett demolished all the buildings on the portion of the property it retained. (See Cert. Admin. R. at 169-71, 177-78.)

For the assessment date of January 1, 2016, the Assessor valued the property at $131,700: $121,700 for 20.28 acres of land and $10,000 for improvements. (Cert. Admin. R. at 89-90.) Garrett protested the 2016 assessment to the PTABOA and the PTABOA reduced the total assessed value to $105,400: $95,400 for the land and $10,000 for the improvements. (See Cert. Admin. R. at 5 - 9, 89.) Still dissatisfied, Garrett pursued an appeal with the Indiana Board. (Cert. Admin. R. at 1 - 2.)

On August 3, 2017, the Indiana Board conducted a hearing on Garrett's appeal. During the hearing, Garrett claimed that its land had zero value, but indicated it would be willing to accept the previously agreed upon land value of $68,900 because the property had not been changed since then. (Cert. Admin. R. at 160-61, 193.) In support, Garrett presented: (1) evidence that it purchased the contaminated property for $1.00 from Dalton Corporation in 2014, (2) a list of properties it considered "comparable" with their property tax records, and (3) the Form 134 from its 2015 PTABOA appeal. (See Cert. Admin. R. at 55-66, 84, 181-89.)

On November 1, 2017, the Indiana Board issued its final determination, concluding that Garrett had provided undisputed probative evidence for reducing the 2016 assessment of improvements by demonstrating that no buildings remained on the property on the January 1, 2016, assessment date. (Cert. Admin. R. at 111-12 ¶¶ 17(n), (o), (p), 18.) The Indiana Board further concluded, however, that Garrett's evidence was not probative of the property's 2016 market value-in-use. (Cert. Admin. R. at 111 ¶ 17(m).) Accordingly, the Indiana Board left the land valuation of $95,400 unchanged. (See Cert. Admin. R. at 112 ¶ 18.)

On December 13, 2017, Garrett initiated this original tax appeal. Additional facts will be supplied as necessary.

STANDARD OF REVIEW

The party seeking to overturn an Indiana Board final determination bears the burden of demonstrating its invalidity. Osolo Twp. Assessor v. Elkhart Maple Lane Assocs., 789 N.E.2d 109, 111 (Ind. Tax Ct. 2003). Thus, to prevail Garrett must demonstrate to the Court that the Indiana Board's final determination is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege or immunity; in excess of or short of statutory jurisdiction, authority, or limitations; without observance of the procedure required by law; or unsupported by substantial or reliable evidence. See IND. CODE § 33-26-6-6(e)(1)-(5) (2018).

ANALYSIS

On appeal, Garrett claims the Indiana Board's final determination is an abuse of discretion, arbitrary and capricious, and unsupported by substantial evidence because it failed to find Garrett's evidence of 1) the property's 2014 sales price, 2) the comparable properties, and 3) the agreed land value for the 2015 assessment date probative of the subject property's 2016 market value-in-use. (See Pet'r Br. at 3, 6-10.)

1. 2014 Sales price

To support a reduction in its property's assessed value, Garrett had the burden to provide market-based evidence (e.g., sales data, appraisals, construction costs, etc.) showing that the assessment did not accurately reflect the property's market value-in-use. See 2011 REAL PROPERTY ASSESSMENT MANUAL ("Manual") (incorporated by reference at 50 IND. ADMIN. CODE 2.4-1-2 (2011) ) at 3. The Indiana Board determined, however, that the property's June 2014 sales price was not probative evidence of the property's 2016 market value-in-use because Garrett did not present evidence a) that the price was the result of a market value sale, b) that it was valueless because it was contaminated land, and c) how the June 2014 sales price related to the January 1, 2016 assessment date. (Cert. Admin. R. at 109-10 ¶¶ 17(d)-(h).)

a) Market Value Sale

During the period at issue, Indiana defined "market value" as

The most probable price, as of a specified date ... for which the specified property rights should sell after reasonable exposure in a competitive market under all conditions requisite to a fair sale, with the buyer and seller each acting prudently, knowledgably, and for self-interest, and assuming neither is under undue duress.

Manual at 5-6 (emphasis added). The Indiana Board stated that Garrett "failed to establish the property was exposed to the market for a reasonable time." (See Cert. Admin. R. at 110 ¶ 17(g), 163-64 (stating Garrett learned about the property through a personal meeting with the mayor and not from a sale listing).) The Indiana Board further stated that the 2014 sale appeared to be the result of undue duress because the property was vacant and up for tax sale. (See Cert. Admin. R. at 110 ¶ 17(g) (stating that the Indiana Board assumed the Dalton Corporation abandoned the property).)

Even though the transaction was not a market value sale, the Indiana Board noted that it was possible that this transaction could still qualify as a reliable indicator of the property's 2016 market value-in-use. Garrett failed, however, to rebut "the preponderance of the evidence [ ] that the sale was not reliable "by providing some evidence the sale is reliable." (Cert. Admin. R. at 110 ¶ 17(h).) Accordingly, after weighing the evidence, the Indiana Board concluded that the 2014 sales price, by itself, was not probative of the property's 2016 market value-in-use. (See Cert. Admin. R. at 110 ¶ 17(h).)

The administrative record contains no evidence that the property was exposed to the market. (See generally Cert. Admin. R.; see also Pet'r Br. at 8-9 n.1.) Garrett argues, nonetheless, that in this case "[s]tandard exposure to the market would have been a useless act" because the property's contamination and need for environmental remediation made the property "effectively unmarketable." (See Pet'r Br. at 5, 8 (reasoning that "common sense explains [the property] is not marketable").) In addition, Garrett claims that the Dalton Corporation, a publicly held corporation, did not sell the property under undue duress, but fulfilled its fiduciary duty to its shareholders by selling the property, ostensibly a net liability, for a $1.00 net gain. (See Pet'r Br. at 8 (postulating that because "the property was a net liability does not [ ] mean that the seller was under undue duress[, i]t merely means that the property had no value in its current condition").) Garrett's arguments are unpersuasive, however, because they are conclusory statements masking the absence of evidence in the record that the 2014 sales price was reliable and thus probative of the 2016 market value-in-use.

b) Value of Contaminated Property

Next, Garrett claimed that the June 2014 sales price reflected the property's market-value-in-use on the 2016 assessment date because contaminated property is valueless. (See Pet'r Br. at 8-9.) Indeed, the Indiana Board acknowledged that contamination can have an impact on a property's value. (See Cert. Admin. R. at 109 ¶ (d) (explaining that "the existence of contamination could greatly lower a property's value").)

Evidence that a property suffers from contamination, however does not by itself necessitate a finding that a property is valueless. See e.g., Lake Cty. Assessor v. U.S. Steel Corp., 901 N.E.2d 85, 93-95 (Ind. Tax Ct. 2009) (explaining that evidence must be presented to quantify the impact of the contamination on the land's value), review denied. Accordingly, Garrett was required to provide evidence quantifying its conclusion that its contaminated property was valueless. See Fisher v. Carroll Cty. Assessor, 74 N.E.3d 582, 590 (Ind. Tax Ct. 2017) (explaining that although a property's condition actually may render it valueless, "an objective, factual basis is necessary to sustain such a finding").

The record is devoid of any objective factual basis that would support Garrett's claim that its property has no value simply because it is contaminated. There is evidence in the record, however, that is contrary to Garrett's claim. (See, e.g., Cert. Admin. R. at 171-75 (indicating that a buyer initiated the purchase of another foundry that Garrett owned while it was still in a contaminated state), 165-68, 177-78 (indicating that Garrett sold a portion of the subject property to East Noble School Corporation and used the proceeds of that sale to help fund the demolition and cleanup costs for the subject property).) Thus, Garrett's arguments again are unpersuasive, lacking evidence relating the contamination to the property's claimed market-value-in-use.

c) Relating the Sales Price to the Relevant Valuation Date

Finally, the Indiana Board reasoned that the June 2014 sales price was not probative because Garrett failed to relate the sales price to the valuation date that was approximately 18 months later - January 1, 2016. (Cert. Admin. R. at 110 ¶ 17(e).) See also IND. CODE § 6-1.1-2-1.5 (2016) ("the annual assessment date for tangible property is ... January 1 in a year beginning after December 31, 2015"); Manual at 3 ("any evidence relevant to the true tax value of the property as of the assessment date may be presented to rebut the presumption of correctness of the assessment") (emphasis added).

The Court has recognized that in assessment challenges, taxpayers can present property values from a period different from the assessment date "as long as they attempt to relate that evidence to the appropriate valuation and assessment dates." See Marion Cty. Assessor v. Simon DeBartolo Group, LP, 52 N.E.3d 65, 70 (Ind. Tax Ct. 2016). Here, the record reveals that Garrett made no such attempt. (See generally Cert. Admin. R.)

Instead of pointing to evidence in the record that related the 2014 sale price to the appropriate valuation date, Garrett implies that showing the relationship is unnecessary because "[e]ighteen months is not a significant period for a property that sat vacant and unusable for a half a decade." (Pet'r Br. at 7.) Without citing an authority or any evidentiary basis for its assertion, however, Garret's bald assertion will not carry the day. See U.S. Steel, 901 N.E.2d at 94 ("a mere opinion or conclusion does not constitute probative evidence") (citation omitted).

2. Comparable Properties

Next, Garrett challenges the Indiana Board's determination that its evidence of comparable properties was not probative of its property's 2016 market-value-in-use. (See Pet'r Br. at 7-9.) At the administrative hearing, Garrett presented a one-page summary of three properties as follows:

COMPARABLES
1. 703 GOODWIN STREET- Abandoned Foundry transferred to Garrett, LLC by Commissioner's Tax Deed. Prior to this it failed to sell at tax sale. Garrett, LLC paid no money to the County for the Deed. [Kendallville Foundry]
2. 420 LISBON ROAD- An eyesore for years that was transferred by Commissioners Tax Deed. [Kendallville Iron & Metal]
3. 205 WEST WAYNE STREET- Commonly known as the McCray building. It is an abandoned Commercial building that has been an eyesore for years. It has been offered at tax sale for years and never sold. Current delinquent taxes are $476,719.03. [McCray Building]

(See Cert. Admin. R. at 84.) In addition, Garrett submitted the property tax records for two of the properties: Kendallville Iron & Metal and the McCray Building properties. (See Cert. Admin. R. at 72-74, 78-83.) Moreover, there was testimony in the record, although scanty, regarding the Kendallville Foundry and the McCray Building. (See Cert. Admin. R. at 55, ¶¶ 4-5 (within the Kendallville Mayor's affidavit), 171-76 (regarding the Kendallville Foundry), 176 (regarding the McCray Building).) This evidence reveals that all three industrial/commercial properties were transferred either by Commissioner's Tax Deed, sold at a tax sale, or as yet unsold at tax sales. (See Cert. Admin. R. at 84.)

The Indiana Board, assuming Garrett intended the evidence regarding these properties to apply a sales-comparison approach, found this evidence was not probative because Garrett did not provide evidence, explanation, or analysis comparing these properties to the subject property and did not explain how any differences may affect determining the subject property's market value-in-use. (See Cert. Admin. R. at 110-11 ¶¶ 17(i)-(j).) See also Manual at 9-10 (stating that under the sales comparison approach, an "appraiser considers and compares all possible differences between the comparable properties and the subject property that could affect value").

Notably, Garrett did not compare the type or extent of any contamination on its property with any contamination, or lack thereof, on the three properties it presented as comparable even though it argues that contamination is the basis for reducing its assessment. (See generally Cert. Admin. R.) Indeed, Garrett provided so little information about these three properties that the Indiana Board had to infer the reason it was presented. (See Cert. Admin. R. at 110 ¶ 17(i) ("[w]hile [Garrett] did not discuss them, a list of purportedly comparable properties was introduced as evidence[; the Indiana] Board infers that [Garrett] intended to use the sales-comparison approach to prove the property's value").)

Whether Garrett offered this evidence as a sales comparison approach or as other evidence to rebut the presumption of the assessment's correctness, it failed to make it clear to the Indiana Board how the evidence substantiates its claims of a lower value. (See Cert. Admin. R. at 110-11 ¶¶ 17(i)-(j).) The Court has repeatedly reminded parties that they must walk the Indiana Board, and this Court, through every element of their analyses. See, e.g., Clark v. Dep't of Local Gov't Fin., 779 N.E.2d 1277, 1282-83 n. 4 (Ind. Tax Ct. 2002) ; Long v. Wayne Twp. Assessor, 821 N.E.2d 466, 471 (Ind. Tax Ct. 2005)review denied. This did not happen here. As a result, the Court will not reverse the Indiana Board's finding that the evidence of comparable properties carried no probative value.

3. 2015 Assessed Value

Finally, the Indiana Board determined that the subject property's value for 2015 was not probative of its 2016 market value-in-use. (Cert. Admin. R. at 111 ¶¶ 17(k)-(l ).) The Indiana Board explained that the 2015 value resulted from an agreement between Garrett and the Assessor, not from "evidence of the correct valuation of the property." (Cert. Admin. R. at 111 ¶ 17(k).) Moreover, the Indiana Board noted that the subject property was a different property on the 2016 assessment date than it was on the 2015 assessment date because Garrett had transferred acreage, demolished improvements, and started the remediation process in the interim. (Cert. Admin. R. at 111 ¶ 17(l ).)

Garrett argues, however, that its land could not logically be worth more in 2016 than its 2015 assessed value of $68,900 for two reasons: the land was contaminated on the 2016 assessment date just like it was on the 2015 assessment date and it had 4.75 fewer acres to assess on the 2016 assessment date than it had in 2015. (See Pet'r Br. at 9-10.) Furthermore, Garrett claims that the Legislature intended prior year assessments to be probative evidence of its subsequent year's value by making both valuations central to shifting the burden of proof under Indiana Code § 6-1.1-15-17.2. (See Pet'r Br. at 9-10.) See also IND. CODE § 6-1.1-15-17.2 (2018).

While Garrett's claims appear logical at first glance, they ultimately fail to persuade. Garrett advocates that the assessed value should be the same for 2016 as it was for 2015 because the land was contaminated on both assessment dates. (See Pet'r Br. at 6, 9-10.) Cherry-picking one fact as the sole indicator of value, however, ignores the broader factual considerations required to determine a property's market value-in-use. (See generally Manual.) Moreover, the Court will not follow Garrett down the rabbit hole and hold that just because fewer acres were assessed in 2016 than 2015, the 2016 assessed value can be no greater than that in 2015. Instead, the Court will follow its long-held precedent that each tax year stands alone for property tax assessment administrative and judicial appeals. See Barth, Inc. v. State Bd. of Tax Comm'rs, 699 N.E.2d 800, 805 n. 14 (Ind. Tax Ct. 1998) ("[w]here a taxpayer challenges an assessment, the resolution of that challenge does not depend on how the property was previously assessed").

Garrett is correct that a prior year's assessed value must be considered when determining who bears the burden of proof in assessment appeals. (See Pet'r Br. at 10 (discussing I.C. § 6-1.1-15-17.2 ).) Nonetheless, a prior year's assessed value is not necessarily probative evidence of a subsequent year's assessed value in other contexts. "Probative evidence is evidence sufficient to establish a given fact that, if not contradicted, will remain sufficient." Meadowbrook N. Apartments v. Conner, 854 N.E.2d 950, 953 (Ind. Tax Ct. 2005). For example, a prior year's assessed value is merely one factor to be considered in determining the assessed value in a subsequent year under the trending rules. Cf. 50 IND. ADMIN. CODE 27-5-1 (2016) (discussing the annual adjustment process). Here, Garrett provided no analysis to relate the earlier value to the later assessment date.

In addition, the Indiana Board noted that the property's 2015 value was the product of an agreement between the Assessor and Garrett, memorialized on the Form 134, in which they stipulated to a land value of $68,900 for the March 1, 2015 assessment date. (See Cert. Admin. R. at 56-58, 111 ¶ 17(k).) "[T]he parties' intent [with respect to the stipulation] is to be determined from the 'four corners' of the stipulation itself." U.S. Steel, 901 N.E.2d at 91 (stating that "[b]ecause a stipulation is akin to a contract, the intent of the parties in drafting the stipulation controls") (citation omitted). The Form 134 did not indicate that the agreed 2015 value was intended to extend to the 2016 assessment. (See Cert. Admin. R. at 56-58.) To the contrary, the Form 134 indicates that the Assessor intended the stipulated value to apply exclusively to the 2015 assessment. (See Cert. Admin. R. at 56-58.)

CONCLUSION

Garrett's appeal relies generally on legal conclusions that are unsupported by the record evidence. Although Garrett claims reversible error because the Indiana Board's final determination was an abuse of discretion and arbitrary and capricious, the basis of Garrett's appeal is actually a thinly veiled request that the Court reweigh the evidence presented to the Indiana Board.

The final determination reveals that the Indiana Board considered the complete evidentiary presentations and provided clear, reasonable, and logical rationale as to why some of the evidence had no probative value. While some of Garrett's naked assertions may raise an eyebrow, Garrett failed to back them up by taking the necessary steps to prove its case to the Indiana Board. The Court cannot and will not reweigh the evidence - to do so, would improperly give Garrett a second bite at the apple. See Stinson v. Trimas Fasteners, Inc., 923 N.E.2d 496, 498-99 (Ind. Tax Ct. 2010) (explaining that the Court cannot reweigh evidence on appeal absent a showing that the Indiana Board abused its discretion). The right place to get such nourishment is before the Indiana Board. The Indiana Board's final determination is AFFIRMED.

      The Indiana Board's final determination reduced the 2016 assessment of improvements to reflect that no buildings were present on the assessment date. (See Cert. Admin. R. at 111-12 ¶¶ 17-(n), (o), (p), 18.) Asphalt paving listed on the 2016 property record card was also assessed as improvements. (See Cert. Admin. R. at 89-90, 111-12 ¶ 17(p) n. 3.)

      In its brief, Garrett corrected the Indiana Board's conclusion by noting that the property had not been up for tax sale, but it had been vacant since 2009. (See Pet'r Br. at 8-9 n.1; Cert. Admin. R. at 55.)

      The sales comparison approach, one of the three generally accepted appraisal methods expressly authorized under Indiana's property tax assessment system, is "based on the assumption that potential buyers will pay no more for the subject property than it would cost them to purchase an equally desirable substitute improved property already existing in the market place." See 2011 Real Property Assessment Manual ("Manual") (incorporated by reference at 50 Ind. Admin. Code 2.4-1-2 (2011) ) at 9.

      Indiana Code § 6-1.1-15-17.2, commonly referred to as "the burden-shifting rule," provides that if the assessment of the same property increases by more than 5% from one year to the next, the assessor bears the burden of proving that the assessment is correct. See Ind. Code § 6-1.1-15-17.2 (2018) ; Orange Cty. Assessor v. Stout, 996 N.E.2d 871, 873 (Ind. Tax Ct. 2013).

      The Court must mention that the Certified Administrative Record in this case contained a disturbing amount of missing testimony labeled as "(inaudible)" during the administrative hearing. (See, e.g., Cert. Admin. R. at 147-203.) Missing testimony is problematic and impedes review of the administrative proceedings. The Court cautions the Indiana Board to ensure that its administrative records are properly developed and preserved by taking the necessary steps to improve the transcription of its hearings.


source: Caselaw Access Project

license: Public Domain

text:
    Ricardo BARBOSA v. COMMONWEALTH (NO. 1).
    SJC-12162
    Supreme Judicial Court of Massachusetts.
    December 14, 2018
    Ricardo Barbosa, pro se.
    Michael McGee, Assistant District Attorney, for the Commonwealth.
    The petitioner, Ricardo Barbosa, appeals from a judgment of a single justice of this court dismissing his petition pursuant to G. L. c. 211, § 3. We affirm.
    At the time Barbosa filed his petition, he stood indicted on charges of rape and of being a habitual offender. He argued that at an April 2016 hearing in the Superior Court, he had been "disallowed" to change his plea. According to Barbosa, the Commonwealth had offered him a "four year sentence," but then "reneged" and raised the offer to a sentence of from five to seven years. Barbosa ultimately did not change his previously entered plea of not guilty. He filed his G. L. c. 211, § 3, petition in April 2016 asking this court to "allow" him to plead guilty in exchange for a four-year sentence. Meanwhile, while his petition was pending before the single justice, Barbosa was also pursuing an appeal to the full court from an earlier G. L. c. 211, § 3, petition, filed in September 2014, which had also been denied by a single justice. In the course of that appeal, both in papers filed with the court and at oral argument, Barbosa had raised the same issue that he raised in his April 2016 petition. On that basis, the single justice dismissed the April 2016 petition.
    Barbosa filed a timely notice of appeal from that dismissal and, with leave of court, received an extension of time to file his brief. By the time he filed his brief, however, he had already been tried and convicted on the rape charge, and shortly thereafter he was tried and convicted on the charge of being a habitual criminal. Because of the intervening trials and convictions, the G. L. c. 211, § 3, petition is now moot. Barbosa may of course present the issue raised in the petition -- the Commonwealth's alleged failure to honor a plea deal -- in his direct appeal from his convictions. That appeal is pending, awaiting assembly of the record. For reasons explained in Barbosa v. Commonwealth (No. 2), 481 Mass. (2018), also decided today, we have directed that that appeal be entered directly in this court once the record is assembled.
    Judgment affirmed.


text:
    Ricardo BARBOSA v. COMMONWEALTH (No. 2).
    SJC-12334
    Supreme Judicial Court of Massachusetts.
    December 14, 2018
    Ricardo Barbosa, pro se.
    Michael McGee, Assistant District Attorney, for the Commonwealth.
    RESCRIPT
    The petitioner, Ricardo Barbosa, was convicted by a Superior Court jury of rape, pursuant to G. L. c. 265, § 22 (b ), and, in a separate proceeding, of being a habitual offender pursuant to G. L. c. 279, § 25 (b ). Shortly after he was convicted, he filed, in the county court, both a petition pursuant to G. L. c. 211, § 3, and an application for "direct appellate review" purportedly under G. L. c. 278, § 33E. In both the petition and the application, Barbosa raised issues related to the habitual offender conviction. He argues, for example and among other things, that he has not been "convicted [two] times previously" of any of the crimes enumerated in the statute and that, more generally, the statute imposes unfair and unconstitutional sentencing requirements. A single justice denied both the petition and the application without a hearing, and Barbosa appeals.
    Neither the petition nor the application is the proper means for Barbosa to get the review that he seeks of his conviction. As to the G. L. c. 211, § 3, petition, the issues raised are ones for which Barbosa has an adequate alternative remedy -- he can raise them in a direct appeal. "Relief under G. L. c. 211, § 3, is properly denied where there are adequate and effective routes other than c. 211, § 3, by which the petitioning party may seek relief." Greco v. Plymouth Sav. Bank, 423 Mass. 1019, 1019, 672 N.E.2d 535 (1996).
    As to the G. L. c. 278, § 33E, application, as best we can discern from his materials it appears that Barbosa filed the application in the county court because he interprets that statute, as amended in 2012, see St. 2012, c. 192, §§ 43, 44, to require appeals from habitual offender convictions pursuant to G. L. c. 279, § 25 (b ), to be entered directly in this court and heard by this court in the first instance. Even if that were correct -- and we express no view on whether it is, as further explained below -- the process for the direct appeal is not through an application with the single justice, but rather through the eventual entry of the appeal directly in the full court once the record has been assembled in the trial court. The single justice, therefore, did not err in denying both the petition and the application.
    Having said this, we recognize that there is an open question whether a direct appeal from a conviction pursuant to G. L. c. 279, § 25 (b ), should be entered in the Appeals Court or in the Supreme Judicial Court in the first instance. That particular question is not before us in this case, but rather is a question to be decided in Barbosa's direct appeal. As to that appeal, the trial court docket indicates that he has already filed timely notices of appeal in the trial court, and the record for that appeal is in the process of being assembled by the trial court clerk. In order to avoid any further confusion, and without prejudging the answer to the question, we direct the clerk of this court to inform the trial court clerk that, once the record in Barbosa's direct appeal is assembled, notice of the assembly, the docket entries, and the transcript are to be transmitted directly to this court, and the case shall be entered directly here. We will therein consider -- in addition to the substantive legal issues raised by Barbosa as to his convictions -- the procedural question whether, in future cases, direct appeals from habitual offender convictions pursuant to G. L. c. 279, § 25 (b ), must be entered directly in this court or whether, instead, such appeals shall be entered in the Appeals Court in the first instance. See G. L. c. 211A, § 10 (giving Appeals Court concurrent jurisdiction over all criminal appeals except appeals from convictions of murder in the first degree).

      In September 2016, during the course of the trial court proceedings but before the trial itself, Barbosa attempted to file in the county court another petition pursuant to G. L. c. 211, § 3, in which he asked the court to dismiss the indictments against him on the basis of pretrial delay. Because Barbosa failed to tender the filing fee or an affidavit of indigency, that petition was returned to him without being entered (i.e., the petition was not docketed and no case was opened). Although it is not entirely clear from the record before us, it appears that when Barbosa filed the G. L. c. 211, § 3, petition, and the G. L. c. 278, § 33E, application that are currently before us, he also included the petition that he had previously attempted to file in September 2016. To the extent that the issues raised in that petition were meant to be a part of the current petition, those issues, which relate to a delay in the trial court proceedings, are now moot, Barbosa having been tried and convicted.

      In addition to filing a timely notice of appeal from the convictions, Barbosa also filed a motion for a new trial, which was denied, and a timely notice of appeal from that denial.

   The judgment of the single justice denying Barbosa's G. L. c. 211, § 3, petition, and his G. L. c. 278, § 33E, application is affirmed.

So ordered.


author: CYPHER, J.

text:
    COMMONWEALTH v. Francis T. BRENNAN.
    SJC-12518
    Supreme Judicial Court of Massachusetts, Plymouth..
    Argued October 4, 2018 Decided December 21, 2018
    David Cutshall, Assistant District Attorney (Gail M. McKenna, Assistant District Attorney, also present) for the Commonwealth.
    Sabrina E. Bonanno (Richard J. Sweeney also present), Quincy, for the defendant.
    Kevin M. Davis, for Licensed Private Detective Association of Massachusetts, amicus curiae, submitted a brief.
    Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.
   CYPHER, J.

A complaint issued against the defendant, Francis T. Brennan, charging him with two counts of criminal harassment in violation of G. L. c. 265, § 43A. The charges stem from allegations that he was using two global positioning system (GPS) devices to track the movements of a married couple he had never met before, to whom we shall refer as J.D. and J.H. After holding two nonevidentiary hearings, a District Court judge allowed the defendant's motion to dismiss. The judge ruled that the complaint did "not allege three qualifying acts to support a charge of criminal harassment as to either named victim." The Commonwealth appealed, and we transferred the case to this court on our own motion. On appeal, the Commonwealth contends that the complaint supplied probable cause to charge the defendant with two counts of criminal harassment. We conclude that the series of acts outlined in the complaint that are attributed to the defendant satisfy the elements of criminal harassment against J.D. and J.H. The order dismissing the complaint is reversed.

1. Background. "Our review of the judge's order of dismissal is confined to the four corners of the application for complaint, which in this case" consists of the police reports detailing the facts underlying the defendant's arrest. Commonwealth v. Ilya I., 470 Mass. 625, 626, 24 N.E.3d 1048 (2015). We summarize the police reports that were attached to the complaint. In May, 2016, J.D. discovered a GPS device attached to the undercarriage of his wife's vehicle and reported the discovery to the Hingham police department. J.D. was concerned because he could not think of anyone who would be monitoring his or his wife's location. The police took the GPS device and advised J.D. to check his own vehicle for a similar device. Upon returning home, J.D. discovered a second GPS device on his vehicle where the spare tire would be located.

The following day, police interviewed J.D. and J.H. at length, together and separately. Police questioned the couple about their finances, careers, and potential infidelity. No information, however, was gathered as to who attached the GPS devices to their vehicles.

The police contacted the manufacturer of the GPS device, Brickhouse Security (Brickhouse), but were unable to obtain the corresponding customer information. Because J.D. was a member of the United States Coast Guard, he reported the event to Special Agent Jeremy Baldwin of the United States Coast Guard's investigative service. Baldwin obtained a subpoena to gather information from Brickhouse. Brickhouse informed him that the defendant was the owner of the GPS devices and that the GPS devices were shipped to the defendant in December 2015.

Baldwin and the police then interviewed the defendant. At first, he denied any knowledge of who placed the GPS devices on J.D. and J.H.'s vehicles. He stated, "[L]et's just say things got a little out of hand due to some prior circumstances, it[']s moral, it's not anything other than that, his wife might want to start checking his phone." The defendant made statements suggesting that J.D. was having an affair and that the defendant was concerned about it. The defendant stated: "[I am] guarding the hen house"; "my only stake in all this is to make sure somebody was not in the place that I'm in all the time"; that he believed J.D. was "stepping out" of his marriage; and that he wanted to make sure his "backyard was clear." The defendant refused to provide the name of the person he alleged was having sexual relations with J.D.

Eventually, the defendant admitted that he had an account with Brickhouse and that he was monitoring the movements of the couple's vehicles using the GPS devices, which he accessed with his Apple iPhone and laptop computer. Police searched the defendant's iPhone pursuant to a warrant and created a forensic extraction report. The defendant's Internet history included visits to Brickhouse's online log-in page, J.D.'s Twitter social media page, and fifty-three Internet mapping program searches of various latitude and longitude coordinates gathered from the GPS devices. Baldwin subpoenaed the Brickhouse account information and received a full history report for each device. The history reports provided detailed location information about each device. Baldwin also discovered that the defendant purchased a third GPS device in April, approximately one month before J.D. discovered the two GPS devices. Using the forensic data from the defendant's iPhone, the police confirmed seventeen separate instances in which the defendant researched the locations of the vehicles over the course of ten days in May 2016.

After interviewing the defendant, the police and Coast Guard interviewed J.D. again and informed him of the defendant's accusations that he was having an affair. J.D. denied the accusations and consented to a search of his cellular telephone by Coast Guard investigators.

Throughout the police investigation, J.D. and J.H. expressed concern for their safety because the defendant's intentions were unknown. J.H. had difficulty sleeping, and J.D. had to change his work schedule to be home with her during the nighttime hours. The couple feared retaliation from the defendant for contacting the police. They also installed security cameras at their residence and sought an emergency harassment prevention order against the defendant.

2. Standard of review. "In reviewing a motion to dismiss a complaint, the judge must decide whether the complaint application contains 'sufficient evidence to establish the identity of the accused ... and probable cause to arrest him.' " Commonwealth v. Humberto H., 466 Mass. 562, 565, 998 N.E.2d 1003 (2013), quoting Commonwealth v. McCarthy, 385 Mass. 160, 163, 430 N.E.2d 1195 (1982). This standard is "considerably less exacting than a requirement of sufficient evidence to warrant a guilty finding." Commonwealth v. O'Dell, 392 Mass. 445, 451, 466 N.E.2d 828 (1984), citing Myers v. Commonwealth, 363 Mass. 843, 848-849, 298 N.E.2d 819 (1973). "A judge considering a motion to dismiss should not confuse the question of probable cause to arrest with questions more properly resolved by the fact finder at trial." Commonwealth v. Bell, 83 Mass.App.Ct. 61, 64, 981 N.E.2d 200 (2013). The complaint application must establish probable cause by providing reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense. Id. at 63, 981 N.E.2d 200, quoting O'Dell, supra at 450, 466 N.E.2d 828. Whether the complaint application establishes probable cause is a question of law; thus, "we review the motion judge's ... determination de novo." Humberto H., supra at 566, 998 N.E.2d 1003, quoting Commonwealth v. Long, 454 Mass. 542, 555, 911 N.E.2d 174 (2009), S.C., 476 Mass. 526, 69 N.E.3d 981 (2017). We are in as good a position as a motion judge to assess the evidence submitted in support of the application for a criminal complaint, and we consider the evidence in the light most favorable to the Commonwealth without deference to the motion judge's factual findings or legal conclusions. Commonwealth v. Silva, 455 Mass. 503, 526, 918 N.E.2d 65 (2009).

3. Discussion. To support the complaint for criminal harassment, the Commonwealth must show that there is probable cause that "(1) the defendant engaged in a knowing pattern of conduct or speech, or series of acts, on at least three separate occasions; (2) the defendant intended to target the victim with the harassing conduct ... on each occasion; (3) the conduct ... [was] of such a nature that [it] seriously alarmed the victim; (4) the conduct ... [was] of such a nature that [it] would cause a reasonable person to suffer substantial emotional distress; and (5) the defendant committed the conduct ... 'willfully and maliciously.' " Commonwealth v. McDonald, 462 Mass. 236, 240, 967 N.E.2d 1101 (2012), quoting Commonwealth v. Kulesa, 455 Mass. 447, 452, 917 N.E.2d 762 (2009). See G. L. c. 265, § 43A. The Commonwealth argues that the complaint overcomes the low threshold required to show that there was probable cause that the defendant committed two counts of criminal harassment. The defendant maintains that there is no probable cause to support four of the five elements of criminal harassment: (1) the complaint does not allege three qualifying acts; (2) he did not intend to target J.D. or J.H. with harassing conduct; (3) the conduct would not cause a reasonable person to suffer substantial emotional distress; and (4) the conduct was not committed willfully and maliciously.

a. Three acts targeted at J.D. and J.H. According to the defendant, the complaint does not establish three qualifying acts of criminal harassment against either J.D. or J.H. We conclude that there was probable cause that the defendant committed at least three separate acts targeted at J.D. and J.H. when he concealed the GPS device on J.D.'s vehicle, concealed the GPS device on J.H.'s vehicle, and then tracked the movements of the GPS devices from his iPhone.

The defendant contends that placing GPS tracking devices on the couple's vehicles does not qualify as an "act" under § 43A because there is no law that criminalizes such conduct by a private person. The defendant's argument is unavailing. A defendant's otherwise legal conduct may qualify as an act of harassment when considered with other evidence. See McDonald, 462 Mass. at 245, 967 N.E.2d 1101. In addition to concealing the GPS devices, the defendant commented to the police that J.D. was "stepping out" on his wife and that the defendant was "guarding the hen house." Making matters worse, the defendant admits that he had never had any interaction with either J.D. or J.H. before. Viewing the evidence in this context and in the light most favorable to the Commonwealth, we conclude that the act of concealing a GPS device on an individual's vehicle qualifies as an "act" within § 43A.

The defendant maintains, however, that even if placing the GPS devices does qualify as an "act" within § 43A, it is only one act against J.D., placing the GPS on his car, and one act against J.H., placing the GPS on her car. The defendant correctly points out that G. L. c. 265, § 43A (a ), "requires that the Commonwealth prove three or more predicate acts of harassment that were 'directed at a specific person.' " Commonwealth v. Johnson, 470 Mass. 300, 312, 21 N.E.3d 937 (2014), quoting McDonald, 462 Mass. at 240, 967 N.E.2d 1101. He claims that the complaint does not provide evidence that his attention was directed specifically at J.D. or J.H. We disagree.

The information in the complaint is enough to warrant a reasonable person to conclude that the defendant's harassing conduct was targeted at J.D. and J.H. See generally Johnson, 470 Mass. at 312-313, 21 N.E.3d 937 (acts of harassment can be directed simultaneously at more than one person). Contrast Commonwealth v. Welch, 444 Mass. 80, 92, 825 N.E.2d 1005 (2005), abrogated on another ground, O'Brien v. Borowski, 461 Mass. 415, 961 N.E.2d 547 (2012) (Commonwealth did not establish that defendant's use of homophobic slurs once when talking in normal tones outside apartment building where she and alleged victims lived and again when yelling inside her own apartment was intended to be heard by victims or that she should have known that slurs would be heard by them); Demayo v. Quinn, 87 Mass.App.Ct. 115, 116, 118, 25 N.E.3d 903 (2015) (evidence was insufficient to show that defendant's conduct -- entering plaintiff's horse barn, removing or rearranging items, and throwing items into horse's stall -- was aimed at plaintiff). In response to the police's questioning, it was evident that the defendant harbored an animus toward J.D. Cf. Demayo, supra at 118, 25 N.E.3d 903. The defendant made a number of statements aimed at the couple regarding J.D.'s fidelity to J.H. The defendant stated that he believed J.D. was "stepping out" of J.D.'s marriage and that he wanted to make sure his "backyard was clear." He suggested that J.H. "might want to start checking [J.D.'s] phone." The defendant stated that he was "guarding the hen house" and that his "only stake in all this [was] to make sure somebody was not in the place that [he was] in all the time." When he eventually admitted that he had an account with Brickhouse, he confessed that he was monitoring the movements of J.D. and J.H. Moreover, the forensic extraction data from the defendant's phone showed that he was visiting J.D.'s Twitter social media page. The defendant's peculiar behavior is exacerbated by the fact that he had never met the couple.

Although the defendant's statements during the investigation suggest he was monitoring J.D. to protect J.H. from J.D.'s alleged infidelity, the defendant placed GPS devices on both J.D. and J.H.'s vehicles. The complaint provides no indication that the defendant knew which vehicle J.D. or J.H. drove. It is a reasonable inference that the defendant targeted both individuals when he attached a device to both vehicles, rather than just one, to ensure that all of J.D.'s potential movements were tracked. In determining whether acts of harassment are directed at a person, we look not only to statements and conduct of the defendant but to the nature of the act and the natural consequence of the act. See Johnson, 470 Mass. at 312, 21 N.E.3d 937. Here, a reasonable person in the defendant's position would have known that placing the GPS devices on both vehicles would alarm both individuals if and when they learned of it. Because the complaint provides reasonably trustworthy information sufficient to warrant a reasonable person in believing that the defendant targeted both J.D. and J.H., we conclude that the concealment of the two devices on the couple's vehicles constitutes two acts of harassment against J.D. and two acts of harassment against J.H.

The Commonwealth argues that the defendant committed at least one act against J.D. and J.H. when he tracked the GPS devices seventeen times over the course of ten days. The defendant argues that his act of gathering the GPS information and mapping the devices' coordinates online does not qualify as an "act" because neither J.D. nor J.H. was aware that they were being tracked.

Neither J.D. nor J.H. had to be aware that they were being tracked for the defendant's conduct to qualify as at least one act of harassment against each of them. The complaint must show that there is probable cause that the "cumulative effect of the defendant's pattern of conduct 'seriously alarm[ed]' [them] -- not that each individual incident was alarming." Commonwealth v. Walters, 472 Mass. 680, 699, 37 N.E.3d 980 (2015), S.C., 479 Mass. 277, 94 N.E.3d 764 (2018), quoting Johnson, 470 Mass. at 314, 21 N.E.3d 937. See Johnson, supra (criminal harassment "statute's wording ties the requirement to the over-all pattern of conduct"). J.D. and J.H. may not have been aware that they were being tracked, but, as the defendant concedes, once they discovered the devices they were seriously alarmed.

Adding an awareness element to § 43A would frustrate the purpose of the law. "The criminal harassment law was passed in response to a perceived loophole in the stalking statute. The stalking statute expressly included within its reach 'threatening' conduct or acts, but left without remedy those victims plagued by harassment that, although potentially dangerous, did not include an overt 'threat' and thus was not actionable under existing law" (citation omitted). McDonald, 462 Mass. at 241, 967 N.E.2d 1101. With advancements in technology it is becoming easier for people to do exactly what the defendant did here. Once J.D. discovered the GPS devices, it is logical that the defendant's tactics used to monitor the couple's movements would qualify as acts to satisfy the criminal harassment statute. Therefore, the couple did not have to know in real time that they were being tracked for the defendant's conduct of mapping their locations to constitute at least one act.

We recognize that the defendant's conduct of entering the GPS devices' coordinates into an Internet mapping program seventeen times over a ten-day span may be construed as more than one act. The police report shows that the defendant mapped the GPS coordinates at different times -- sometimes closer in time than others -- on different days. We count the tracking of the devices as at least one act for purposes of reaching the requisite three acts in § 43A. We determine, however, that it is unnecessary in this case to conduct a temporal analysis of each time the defendant checked the GPS devices to deconstruct each individual act because we already have identified the three acts to satisfy the statute.

b. Substantial emotional distress. After learning that they were being tracked, the couple suffered substantial emotional distress. J.D. expressed concern for his safety, changed his work schedule, installed security cameras at his house, and feared retaliation from the defendant for informing the police. J.H. also was concerned for her safety, was afraid to be home alone at night, and had difficulty sleeping. The defendant concedes that there was sufficient evidence that the couple was seriously alarmed by his conduct. He argues, however, that a reasonable person in their position would not suffer substantial emotional distress.

Contrary to the defendant's argument, the evidence in the complaint was sufficient to establish probable cause that a reasonable person in J.D. and J.H.'s positions would have suffered substantial emotional distress. J.D. found two GPS tracking devices under his and his wife's cars that were placed by the defendant -- someone that the couple had never met. The couple also learned that the defendant had tracked the GPS device's location seventeen times over the course of ten days. Moreover, the defendant made a number of distressing statements regarding J.D.'s fidelity toward J.H. There was probable cause that J.D. and J.H. were seriously alarmed, and "any reasonable person would be greatly alarmed and experience severe emotional distress if subjected to such similar circumstances." Commonwealth v. O'Neil, 67 Mass.App.Ct. 284, 294, 853 N.E.2d 576 (2006).

c. Willful and malicious conduct. The defendant argues that he did not commit the requisite three acts willfully or maliciously as the statute requires. See G. L. c. 265, § 43A. "Wilful conduct is that which is 'intentional rather than accidental'; it requires no evil intent, ill will, or malevolence." McDonald, 462 Mass. at 242, 967 N.E.2d 1101, quoting Commonwealth v. Luna, 418 Mass. 749, 753, 641 N.E.2d 1050 (1994). Malicious conduct is an "intentional, wrongful act done willfully or intentionally against another without legal justification or excuse." McDonald, supra, quoting Commonwealth v. Paton, 63 Mass.App.Ct. 215, 219, 824 N.E.2d 887 (2005).

As discussed above, the defendant committed at least three acts against J.D. and J.H. when he placed the GPS devices on each of their vehicles and then tracked the GPS devices locations by using his iPhone. The acts were willful because he intentionally placed the GPS devices and intentionally tracked the locations. Likewise, the defendant's actions were malicious because he had no justification for his conduct. See O'Neil , 67 Mass.App.Ct. at 293, 853 N.E.2d 576. It was also reasonably foreseeable that J.D. and J.H. would be alarmed when they learned that they were being tracked. See McDonald, 462 Mass. at 242, 967 N.E.2d 1101, quoting Commonwealth v. Schuchardt, 408 Mass. 347, 352, 557 N.E.2d 1380 (1990) ("Conduct is wilful when the actor intends both the conduct and its harmful consequences [and] may be wilful and malicious although its harmful consequences are neither substantial nor highly likely").

4. Conclusion. Probable cause must be determined from the totality of the circumstances.

Commonwealth v. Hernandez, 448 Mass. 711, 715, 863 N.E.2d 930 (2007). It is a concept guided by "factual and practical considerations of everyday life on which reasonable and prudent [people], not legal technicians, act." Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). The Commonwealth has made the requisite showing. There was probable cause that the defendant committed three separate acts of intentional harassment when he placed the GPS device on J.D.'s car, placed the GPS device on J.H.'s car, and then tracked the movements of the devices. The acts were done willfully and maliciously, seriously alarmed J.D. and J.H., and would cause a reasonable person to suffer substantial emotional distress.

As technology has advanced, the tools that people can use to harass victims have increased. See Fraser, Olsen, Lee, Southworth, and Tucker, The New Age of Stalking: Technological Implications for Stalking, 61 Juv. & Fam. Ct. J. 39, 40-41 (Fall 2010). The law has not fully caught up to the new technology, and given the speed with which technology evolves, it may sometimes leave victims without recourse. See id. at 48-49. The Legislature may wish to explore whether the conduct of a private person electronically monitoring the movements of another private person should be criminalized, regardless of whether it would constitute criminal harassment. In these circumstances, the defendant's behavior satisfied the three acts necessary for the criminal harassment statute, but there may be occasions where the facts might not be sufficient for the statute to encompass a defendant's conduct.

Order allowing motion to dismiss reversed.

      Although the complaint is silent regarding any relationship between the defendant and the couple, the defendant contends in his brief, at the motion hearing, and at oral argument before this court that he had never met J.D. or J.H. before. He claims that their first interaction was at a hearing for a harassment prevention order.

      We acknowledge the amicus brief submitted by the Licensed Private Detective Association of Massachusetts in support of the Commonwealth.

      The defendant's interest in J.D.'s fidelity is not apparent from the record in this appeal.

      An iPhone, which is manufactured by Apple Inc., is a type of "smart" cellular telephone that, in addition to making telephone calls, can transmit text messages, perform the functions of both a camera and a video recorder, enable the operation of various applications, and connect to the Internet. See Commonwealth v. Dorelas, 473 Mass. 496, 497 n.1, 43 N.E.3d 306 (2016).

      A search of the defendant's laptop computer provided a negative result because the computer did not have a hard drive.

      The reports had information about the speed and distance the devices traveled, and the devices' coordinates, matched with dates and times.

      We do not hold that the entire course of conduct of repeatedly tracking the device is one continuous act. Although our cases have not established a specific amount of time that must elapse between harassing acts for them to be sufficiently discrete, acts committed during a single afternoon have been deemed sufficiently distinct to warrant a conviction of criminal harassment. See Commonwealth v. Julien, 59 Mass.App.Ct. 679, 685, 797 N.E.2d 470 (2003) (three incidents, two occurring on same day, sufficient to satisfy stalking statute). Cf. Commonwealth v. Kulesa, 455 Mass. 447, 451, 917 N.E.2d 762 (2009) (defendant's two telephone calls to victim's sister on one afternoon were sufficient for two of three required acts).

      Other States have done so. See, e.g., Cal. Penal Code § 637.7 (prohibits person or entity from using electronic tracking device to determine location or movement of person); Fla. Stat. § 934.425 (person may not knowingly install tracking device on another person's property without consent); 720 Ill. Comp. Stat. 5/21-2.5 (no person shall use tracking device to determine location or movement of another person); La. Rev. Stat. Ann. § 14:323 (no person shall use tracking device to determine location or movement of another person without consent of that person); Mich. Comp. Laws § 750.539l (prohibits placing tracking device on motor vehicle without consent of owner of vehicle); Minn. Stat. § 626A.35 (no person may install or use tracking device without first obtaining court order or consent of owner of object to which device is attached); N.C. Gen. Stat. § 14-196.3 (no person shall use tracking device to determine location or movement of another person without that person's consent); R.I. Gen. Laws § 11-69-1 (person may not knowingly install tracking device in or on motor vehicle without consent of all owners and occupants of vehicle for purpose of monitoring or following occupant); Tenn. Code Ann. § 39-13-606 (person may not knowingly install tracking device in or on motor vehicle without consent of all owners for purpose of monitoring or following occupant of vehicle).

      For example, we can envision a circumstance in which a defendant uses a GPS device, but the Commonwealth cannot show that there was a specific target of the tracking, or that there were three acts of criminal harassment.


author: ENGLANDER, J.

text:
    COMMONWEALTH v. Anthony ARTHUR.
    No. 17-P-1244.
    Appeals Court of Massachusetts, Suffolk..
    Argued May 8, 2018 Decided October 1, 2018
    Cailin M. Campbell, Assistant District Attorney (Caitlin Fitzgerald, Assistant District Attorney, also present) for the Commonwealth.
    Michael L. Tumposky, Boston, for the defendant.
    Present: Sullivan, Neyman, & Englander, JJ.
   ENGLANDER, J.

This case presents the question whether the police unreasonably delayed obtaining a warrant to search the contents of cellular telephones (second warrant), where those cell phones had already been properly seized pursuant to a lawful first warrant and were being held as evidence pending trial. A Superior Court judge held that the delay in seeking the second warrant was unreasonable under Commonwealth v. White, 475 Mass. 583, 59 N.E.3d 369 (2016), and suppressed the fruits of the search conducted pursuant to the second warrant. We reverse, concluding that the delay in seeking the second warrant was not unreasonable, where the cell phones were already lawfully in police custody and were reasonably expected to remain so until trial.

Background. On December 15, 2015, the defendant and two accomplices, Richie Williams and Keyarn Richardson, participated in a coordinated attack on a home at 7 Morse Street in the Dorchester section of Boston. Much of the attack was witnessed by various Boston police officers, who were in the area at the time. At approximately 4:30 P.M. two cars drove onto Brinsley Street, one street away from and parallel to the block of 7 Morse Street. The defendant was driving one of the cars and was alone. Williams was driving the other car, with Richardson in the front passenger seat. Both cars parked on Brinsley Street, facing in the same direction.

Shortly after parking, Williams and Richardson got out of their car (leaving the engine running), walked briskly down Brinsley Street, and turned onto Ronald Street (a cross street), heading in the direction of Morse Street. Shortly thereafter, Richardson was observed stepping behind a Dumpster, taking out a firearm, and "chamber[ing] a round into the firearm." He thereafter was observed on Morse Street handing a firearm to Williams.

At the same time that Williams and Richardson were walking toward Morse Street, the defendant got out of his car on Brinsley Street and began peering through the yards toward the area of 7 Morse Street "as if he was waiting to see something occur."

Shortly thereafter, shots were heard coming from Morse Street. Williams and Richardson then were observed running down Morse Street, with Williams holding a gun in his hand. Police officers ordered them to stop, but Williams continued running to Brinsley Street and, after discarding his firearm, got into the passenger seat of the defendant's car. The defendant had, by this time, returned to his car, but before he could drive away with Williams they were stopped and arrested by the police. Later, the police confirmed that multiple bullets had been fired into the home at 7 Morse Street, although no one had been injured.

An officer on the scene observed two cell phones in the defendant's car -- one on the driver's seat and one on the front passenger's seat. The officer observed three cell phones in the car initially driven by Williams -- two on the driver's seat and one in the passenger's side door handle. The police impounded both cars.

Three days after impoundment, on December 18, 2015, the police sought and received the first warrant to search both cars and to seize all the cell phones. The affidavit in support of the first warrant set forth, among other things, the facts of the coordinated attack listed above. The affidavit specifically identified where the cell phones were located and requested authorization to "seize" them. The warrant was executed on the same day, the cell phones were seized, and they were thereafter held as evidence.

The Commonwealth did not seek to view the contents of the cell phones, however, until eighty-five days after the impoundment. On March 9, 2016, the Commonwealth sought the second warrant, this time specifically requesting to search the "electronic data" of each of the seized cell phones. The affidavit in support of the second warrant added four new paragraphs to the affidavit submitted on December 18, 2015; the new paragraphs provided additional grounds for searching the data on the cell phones. The second warrant was issued on the same day, and the cell phones were searched.

On April 1, 2016, the defendant was indicted for two counts of armed assault with intent to murder, in violation of G. L. c. 265, § 18 (b ) ; two counts of attempted assault and battery by discharging a firearm, in violation of G. L. c. 265, § 15F ; and possession of a firearm without a license, second offense, in violation of G. L. c. 269, § 10 (h ) (1). The defendant thereafter moved to suppress evidence found as a result of the search of the two cell phones found in his vehicle. He contended (1) that the eighty-five-day delay in seeking the second warrant rendered the search unreasonable under the holding in White, and (2) that in any event the affidavit in support of the second warrant failed to show a sufficient nexus between the cell phones and the alleged criminal activity. The Commonwealth responded, among other things, that the cell phones had been seized pursuant to a valid warrant and that the police were going to maintain possession of the cell phones through trial whether or not the cell phones were forensically examined.

The judge granted the suppression motion. As to the delay issue, he ruled that the circumstances were essentially indistinguishable from White, rejecting the argument that this case differs from White because here the cell phones had been initially seized pursuant to a warrant. The Commonwealth appealed.

Discussion. 1. The issue of unreasonable delay. The principal question before us is whether the judge was correct in suppressing the fruits of the searches of the cell phones on the ground that the delay in obtaining the second warrant was unreasonable. We hold that the suppression order was not correct because this case is materially distinguishable from White.

The White decision involved the warrantless seizure by the police of the cell phone of a high school student. White, 475 Mass. at 586, 59 N.E.3d 369. The student-owner of the cell phone was a suspect in a robbery-murder at a convenience store, involving multiple perpetrators. Id. at 585-586, 59 N.E.3d 369. At the time of the seizure, the police had no particularized reason to believe the student's cell phone was involved in the crime; instead, the officers' belief that the cell phone might contain evidence was based entirely on experience and generalized reasoning that, where the robbery was a joint venture, the cell phone might contain relevant evidence.

Id. at 590, 59 N.E.3d 369. After seizing the cell phone without a warrant, the police did not seek a warrant to search the contents of the cell phone for sixty-eight days. See id. at 584-585, 59 N.E.3d 369.

The court in White first held that the police lacked probable cause to seize the cell phone because the police lacked any particularized evidence linking the cell phone to the crime. Id. at 589-591, 59 N.E.3d 369. While this conclusion resolved the suppression motion, the court went on to rule that the sixty-eight-day delay in seeking a warrant also rendered the search unreasonable. Id. at 593-595, 59 N.E.3d 369. As to the delay issue, the court emphasized that when an item is seized without a warrant the police must act "diligently" to obtain a warrant and to search the item. Id. at 595, 59 N.E.3d 369. The court reached its result by "balanc[ing] the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Id. at 593-594, 59 N.E.3d 369 (quotation omitted).

This case is different from White in two critical respects. First, in this case the police did diligently obtain a warrant to seize the cell phones -- within three days of the impoundment of the vehicles. The defendant does not challenge the legality of that seizure or the adequacy of the first warrant affidavit. Second, in this case there was particularized evidence that the cell phones were used in the commission of the crime. Here the police observed the crime in process. It appeared to be a coordinated attack carried out using separate automobiles, where one could readily infer that the occupants had been in communication. The occupants arrived and left the vehicles in sequence. When they left the vehicles they also left multiple cell phones on the seats of the cars, leading to the reasonable inference that the cell phones had been used to coordinate the crime.

The Commonwealth argues that on these facts the cell phones were "evidence of the crime independent of their content," and thus that the cell phones would be maintained as evidence for trial regardless of whether their contents were ever searched. We agree. The cell phones themselves would be relevant evidence at trial to provide detail as to how the crime was planned and coordinated. Put another way, in proving the joint venture, and the involvement of all three alleged perpetrators, the Commonwealth might well decide to introduce the cell phones, where they were located, and how they were found after the arrests. This evidentiary value existed regardless of whether, on further investigation, the cell phones might contain additional relevant evidence in their digital data.

It follows that the delay in seeking the second warrant was not unreasonable here, because unlike in White, here the police were already lawfully in possession of the cell phones and would be through trial. There was thus no substantial interest under the Fourth Amendment to the United States Constitution requiring that the search of the contents of the cell phones occur expeditiously. Under the balancing test described in White, here the government had a substantial interest in maintaining the cell phones as evidence until trial; and, on the other hand, the defendant's possessory interest in the cell phones during the delay carried no significant weight, as the defendant showed no basis to expect that the cell phones would have been returned to him during those eighty-five days or, indeed, at any time before trial. See G. L. c. 276, § 3 ; White, 475 Mass. at 593-595, 59 N.E.3d 369. ,

2. The nexus requirement. The defendant also argues that the second warrant affidavit was insufficient to justify a search of the cell phones because the affidavit did not show a sufficient nexus between the cell phones and the crime. The judge rejected this argument, and we agree, for many of the same reasons we have already stated. The facts here support the reasonable inference that the defendant's cell phones were used to communicate with his coventurers regarding the crime in the period leading up to, and immediately preceding, the attack at 7 Morse Street. As the White court noted, the nexus "need not be based on direct observation.... It may be found in the type of crime, the nature of the [evidence] sought, and normal inferences as to where such evidence may be found." White, 475 Mass. at 589, 59 N.E.3d 369 (quotation omitted). We have also said that, "[i]n dealing with probable cause ... as the very name implies, 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." Commonwealth v. Gentile, 437 Mass. 569, 573, 773 N.E.2d 428 (2002) (citation omitted).

The particularized facts linking the cell phones to the crime distinguish this case from White and cases such as Commonwealth v. Morin, 478 Mass. 415, 427-428, 85 N.E.3d 949 (2017), where the court found such particularized facts lacking. In this case "the factual and practical considerations of everyday life" tell us that the cell phones found on the car seats likely were used to coordinate the crime, including an exchange of calls, text messages, and perhaps other information in the days, hours, and minutes leading up to the attack. Gentile, supra. This case thus falls in line with those cases that have found particularized facts to support a search of the contents of a cell phone. See, e.g., Commonwealth v. Cruzado, 480 Mass. 275, 282, 103 N.E.3d 732 (2018) (probable cause to search cell phone found next to sleeping defendant, where he had been recently overheard on a cell phone confessing to crime); Commonwealth v. Holley, 478 Mass. 508, 522-524, 87 N.E.3d 77 (2017) (sufficient nexus to search cell phone contents where defendant telephoned victim while entering victim's residence shortly before shooting connected to drug transaction); Commonwealth v. Perkins, 478 Mass. 97, 104-106, 82 N.E.3d 1024 (2017) (warrant established probable cause to search call logs of seized cell phones where police had knowledge of defendant's cell phone use to arrange drug transactions); Commonwealth v. Dorelas, 473 Mass. 496, 502-504, 43 N.E.3d 306 (2016) (probable cause to search cell phone where witness reported defendant receiving threats on his cell phone before shooting).

The order granting the motion to suppress is accordingly reversed.

So ordered.

      Hereinafter cell phones.

      The facts herein are taken from the judge's decision on the motion to suppress, which, in turn, were taken from the four corners of the two warrant affidavits at issue. "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law.... We [therefore] make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." White, 475 Mass. at 587, 59 N.E.3d 369 (quotation omitted).

      In connection with this latter argument, the Commonwealth cited G. L. c. 276, § 3, which addresses the obligation to maintain evidence seized pursuant to a search warrant.

      The judge held an evidentiary hearing on the issue of the reasonableness of the delay. The judge found the affiant's testimony credible and adopted the testimony as part of the factual findings.

      The United States Supreme Court's decision in Riley v. California, --- U.S. ----, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), is not implicated by this case. The Court in Riley held that a search warrant generally must be obtained before searching the contents of a cell phone that was seized incident to an arrest, and without a warrant. Id. at 2484-2485. Unlike in Riley, a search warrant was obtained here.

      The defendant seems to suggest that under G. L. c. 276, § 3, the Commonwealth was obligated to search the cell phones and then to return them prior to trial because "the value of the evidence is not the items themselves, but their electronic contents." This argument does not account for the fact that the cell phones have evidentiary value independent of their contents. While items seized must be returned "when [they are] no longer needed," Commonwealth v. Sacco, 401 Mass. 204, 207 n.3, 515 N.E.2d 1185 (1987), the defendant cites no authority that suggests that items properly seized to be used as evidence at trial must be returned beforehand. See generally Commonwealth v. Murray, 359 Mass. 541, 547, 269 N.E.2d 641 (1971). Compare United States v. Mitchell, 565 F.3d 1347, 1352 (11th Cir. 2009) ("[t]he purpose of securing a search warrant soon after a suspect is dispossessed of a closed container reasonably believed to contain contraband is to ensure its prompt return should the search reveal no such incriminating evidence, for in that event the government would be obligated to return the container [unless it had some other evidentiary value ]" [emphasis added] ).

      Although in his appellate brief the defendant appears to assert an ownership interest in the cell phones, we note that the defendant did not move for the return of the cell phones pursuant to rule 61 of the Rules of the Superior Court (2018). See Sacco, 401 Mass. at 206-207, 515 N.E.2d 1185.

      In determining whether an affidavit justifies a finding of probable cause, all reasonable inferences that may be drawn from the information in the affidavit are considered as to whether probable cause has been established. Commonwealth v. Dorelas, 473 Mass. 496, 501, 43 N.E.3d 306 (2016).