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Commonwealth v. Brennan

Supreme Judicial Court of Massachusetts, Plymouth

December 21, 2018

COMMONWEALTH
v.
FRANCIS T. BRENNAN

          Heard: October 4, 2018.

         Complaint received and sworn to in the Hingham Division of the District Court Department on August 26, 2016. A motion to dismiss was heard by Julieann Hernon, J.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          David Cutshall, Assistant District Attorney (Gail M. McKenna, Assistant District Attorney, also present) for the Commonwealth.

          Sabrina E. Bonanno (Richard J. Sweeney also present) 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.[1] 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.[2]

         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 (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.[3] 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[4] and laptop computer.[5] 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.[6] Baldwin also discovered that the defendant purchased a third GPS device in April, approximately one month before J.D. ...


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