Argued: October 6, 2014.
Complaint received and sworn to in the Suffolk County Division of the Juvenile Court Department on June 4, 2012.
A motion to dismiss was heard bye Leslie E. Harris, J.
After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.
Gail S. Strassfeld for the juvenile.
Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Spina, J. (dissenting, with whom Cordy and Botsford, JJ., join).
[24 N.E.3d 1050] Hines, J.
After a street encounter in the Dorchester section of Boston, a police officer arrested the juvenile and charged him with possession of a class D substance with the intent to distribute in violation of G. L. c. 94C, § 32C ( a ). A clerk-magistrate issued a delinquency complaint formally charging the juvenile with the offense. A judge in the Juvenile Court allowed the juvenile's motion to dismiss the complaint for lack of probable cause. The Commonwealth sought review in the Appeals Court, which re-
versed the dismissal in an unpublished decision. See Commonwealth v. Ilya I., 84 Mass.App.Ct. 1128, 1 N.E.3d 294 (2014). We granted the juvenile's petition for further appellate review and now affirm the dismissal of the complaint.
Our review of the judge's order of dismissal is confined to the four corners of the application for complaint, which in this case is essentially the police incident report detailing the facts underlying the juvenile's arrest. Following is a summary of the police incident report.
On June 1, 2012, members of the youth violence strike force, a unit within the Boston police department, were conducting surveillance in Codman Square in Dorchester. The police officers were familiar with that area as being one where drug and gang activity took place. Shortly before 5 p.m., the officers observed four black teenagers in the vicinity of Washington Street and Talbot Avenue. A male and a female approached the teenagers and engaged them in a " brief conversation." Two of the teenagers walked up Washington Street toward Southern Avenue with the couple. The other two teenagers remained in the location where the first encounter with the couple occurred and appeared to look up and down Washington Street. When the two teenagers and the couple reached Southern Avenue, they had a " brief interaction," after which the teenagers [24 N.E.3d 1051] walked back in the direction from which they had come. Based on these observations, the police officers believed that " a drug transaction may have occurred." They relayed this information to other police officers in the vicinity.
As the police officers approached a restaurant located at the corner of Washington Street and Talbot Avenue, the four teenagers walked away " in a hurried manner." The juvenile, who was part of the group of black teenagers under surveillance, looked back at the police officers several times as he crossed Washington Street. The juvenile and the other teenagers entered a vehicle parked on Washington Street across from the restaurant. Two of the teenagers got out of the vehicle and walked up Washington
Street in the same direction as before. The vehicle followed and stopped after about one block, where the two teenagers who had gotten out reentered the vehicle. The vehicle left the area, turning onto Aspinwall Road and then onto Whitfield Street before stopping at the corner of Dunlap Road and Whitfield Street.
At that location, the police officers approached the vehicle on both sides. A police officer asked the passenger to roll down his window. The passenger opened the door instead of rolling down the window, and the police officer smelled the odor of unburnt marijuana. The police officers requested identification from the driver and the passenger; the passenger did not produce identification, and the driver did not have a valid license to operate the vehicle. The occupants were then ordered to get out of the vehicle. As the juvenile got out, the police officer noticed that the juvenile twice looked down at his groin area, which, along with the smell of unburnt marijuana, prompted a patfrisk and the subsequent discovery of thirteen individually wrapped bags of marijuana inside a clear plastic sandwich bag.
Where an arrest occurs without a warrant, a judicial officer must review the complaint application for probable cause to believe that the person arrested committed the offense charged before issuing the complaint. See Commonwealth v. Lester L., 445 Mass. 250, 255, 835 N.E.2d 244 (2005); Commonwealth v. DiBennadetto, 436 Mass. 310, 313, 764 N.E.2d 338 (2002); Mass. R. Crim. P. 3 (g) (2), as appearing in 442 Mass. 1502 (2004). The complaint application must allege facts sufficient to establish probable cause as to each element of the offense charged. See Commonwealth v. Moran, 453 Mass. 880, 884, 906 N.E.2d 343 (2009). After the issuance of a complaint, the defendant (or juvenile) may challenge the probable cause finding by a motion to dismiss. DiBennadetto, supra. The probable cause standard on a motion to dismiss a complaint is identical to that applied in the analysis of a motion to dismiss an indictment for lack of probable cause. See Lester L., 445 Mass. at 255-256, citing ...