NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReportersjc.state.ma.us

15-P-1085 Appeals Court

COMMONWEALTH vs. JOSEFA TEJEDA.

No. 15-P-1085.

Suffolk. April 14, 2016. - June 24, 2016.

Present: Kafker, C.J., Kinder, & Neyman, JJ.

Misleading a Police Officer. Probable Cause. Practice, 

Criminal, Dismissal, Complaint. Words, "Trick," "Scheme,"

"Device."

Complaint received and sworn to in the Roxbury Division of 

the Boston Municipal Court Department on October 8, 2014. 

A motion to dismiss was heard by David Weingarten, J., and 

a motion for reconsideration was considered by him.

Zachary Hillman, Assistant District Attorney, for the 

Commonwealth.

David S. Victorson (Lia C. Monahon with him) for the 

defendant.

KINDER, J. The defendant was charged in the Roxbury 

Division of the Boston Municipal Court Department with 

possession of heroin, see G. L. c. 94C, § 34, and misleading a 
2

police officer, see G. L. c. 268, § 13B.1 Prior to trial the 

defendant moved to dismiss both charges, arguing that the 

complaint application failed to establish probable cause. The 

motion was denied as to the heroin charge, but allowed as to the 

charge of misleading a police officer; the Commonwealth 

appealed.2 This interlocutory appeal presents the question 

whether the concealment and destruction of evidence can mislead

a police officer within the meaning of G. L. c. 268, § 13B. On 

the facts presented here, we conclude that it can. Accordingly, 

we vacate the order dismissing the charge of misleading a police 

officer.

Background. We summarize the facts set forth in the 

application in support of the complaint. On October 8, 2014, 

Boston police Officer David Crabbe was on patrol near Roxbury 

and Washington Streets, an area of Boston known for open drug 

dealing. His attention was drawn to a white male later 

identified as Christopher Willett. Earlier in the day Officer 

Crabbe had observed Willett attempting to trade food stamps for 

drugs. Officer Crabbe observed Willett walking briskly on

Marvin Street toward Shawmut Avenue. Willett was accompanied by 

the defendant, known to Officer Crabbe as "Josefa Tejada [sic]." 

 

1 The caption of the complaint reads "268/13B/A 

Witness/Juror/Police/Court Official, Intimidate c268 § 13B."

2 The Commonwealth also filed a motion for reconsideration, 

which was denied in an order that also was appealed.
3

He lost sight of them briefly as he entered his cruiser to 

follow. Officer Crabbe next observed Willett and the defendant

on Madison Park Court behind a parked car. They made eye 

contact with Officer Crabbe, turned, and began to walk away. 

Officer Crabbe then observed a third individual squatting behind 

the car. He recognized him as Jim Figueroa, known to Officer 

Crabbe as a heroin user. Figueroa appeared to be concealing 

something in his right hand and turned away from Officer Crabbe. 

Concerned that Figueroa might be holding a needle, Officer 

Crabbe demanded that Figueroa show his hands. When Figueroa did 

not comply, Officer Crabbe grabbed Figueroa's right arm, causing 

a small plastic bag of a light brown powdery substance to fall 

from his hand to the ground. Officer Crabbe then arrested 

Figueroa. Figueroa attempted to step on the bag as Officer 

Crabbe placed him in handcuffs. As Officer Crabbe pulled 

Figueroa away and placed him on the ground, Officer Crabbe 

observed the defendant return to their location, pick up the 

plastic bag, and place the item in her mouth. The bag and its 

contents were not recovered.

Discussion. In allowing the motion to dismiss, the motion 

judge reasoned that the charge of misleading a police officer 

required some act of deception and that the ingestion of the 

substance was not misleading conduct.
4

"[A] motion to dismiss a criminal complaint for lack of 

probable cause is decided from the four corners of the complaint 

application, without evidentiary hearing." Commonwealth v. 

Huggins, 84 Mass. App. Ct. 107, 111 (2013). We review the 

judge's decision to allow the defendant's motion to dismiss de 

novo. Commonwealth v. Ilya I., 470 Mass. 625, 627 (2015). On 

review, we determine "whether the complaint application contains 

'sufficient evidence to establish the identity of the accused

. . . and probable cause to arrest [her].'" Commonwealth v. 

Humberto H., 466 Mass. 562, 565 (2013), quoting from 

Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). For the 

reasons that follow, we conclude that the facts set forth in the 

complaint application, together with reasonable inferences drawn 

therefrom, established probable cause that the defendant 

concealed and destroyed evidence with the intent to interfere 

with a criminal investigation, and that such conduct was 

misleading pursuant to G. L. c. 268, § 13B(1)(c). 

The witness intimidation statute, G. L. c. 268, § 13B, was 

expanded in 2006 to cover a broad range of crimes against public 

justice. "As a result, § 13B for the first time outlawed

'mislead[ing]' and 'harass[ing]' conduct, in addition to the 

'threaten[ing]' and 'intimidat[ing]' conduct that the prior 
5

version of the statute had proscribed."3 Commonwealth v. Morse, 

468 Mass. 360, 369 (2014). As relevant here, G. L. c. 268, 

§ 13B(1)(c), provides that "whoever directly or indirectly (1) 

wilfully misleads (2) a police officer (3) with the intent to 

impede, obstruct, delay, harm, punish, or otherwise interfere

thereby with a criminal investigation shall be punished." 

Morse, supra at 370. 

In Commonwealth v. Figueroa, 464 Mass. 365, 372 (2013), the

Supreme Judicial Court adopted the definition of misleading

conduct that was used in the Federal witness tampering statute, 

18 U.S.C. § 1512 (2006).4 Misleading conduct was defined in 18 

 

3 General Laws c. 268, § 13B, as appearing in St. 2006, 

c. 48, § 3, provides in relevant part, "Whoever, directly or 

indirectly, willfully . . . (c) misleads, intimidates or 

harasses another person who is: (i) a witness or potential 

witness at any stage of a criminal investigation, grand jury 

proceeding, trial or other criminal proceeding of any type; (ii) 

a person who is or was aware of information, records, documents 

or objects that relate to a violation of a criminal statute, or 

a violation of conditions of probation, parole or bail; (iii) a 

judge, juror, grand juror, prosecutor, police officer, federal 

agent, investigator, defense attorney, clerk, court officer, 

probation officer or parole officer; [or] (iv) a person who is 

or was furthering a criminal investigation, grand jury 

proceeding, trial or other criminal proceeding of any type; with 

the intent to impede, obstruct, delay, harm, punish or otherwise 

interfere thereby with a criminal investigation, grand jury 

proceeding, trial or other criminal proceeding of any type shall 

be punished." Section 13B was amended in 2010 in a manner not 

relevant here. St. 2010, c. 256, § 120.

4 The Federal witness tampering statute, 18 U.S.C. § 1512(b)

(2006), provided, "Whoever knowingly uses intimidation, 

threatens, or corruptly persuades another person, or attempts to 

do so, or engages in misleading conduct toward another person, 
6

U.S.C. § 1515(a)(3) (2006).

5 Pertinent here, it is knowingly 

using a trick, scheme, or device with intent to mislead. 18 

U.S.C. § 1515(a)(3)(E) (2006). Because the Federal statute does

not define "trick, scheme or device," and Federal cases have not 

 

with intent to (1) influence, delay, or prevent the testimony of 

any person in an official proceeding; (2) cause or induce any 

person to (A) withhold testimony, or withhold a record, 

document, or other object, from an official proceeding; (B) 

alter, destroy, mutilate, or conceal an object with intent to 

impair the object's integrity or availability for use in an 

official proceeding; (C) evade legal process summoning that 

person to appear as a witness, or to produce a record, document, 

or other object, in an official proceeding; or (D) be absent 

from an official proceeding to which such person has been 

summoned by legal process; or (3) hinder, delay, or prevent the 

communication to a law enforcement officer or judge of the 

United States of information relating to the commission or 

possible commission of a Federal offense or a violation of 

conditions of probation[,] . . . supervised release, . . . 

parole, or release pending judicial proceedings . . . shall be 

fined . . . or imprisoned." Section 1512(b) appeared in the 

2012 version of the United States Code in a substantially 

similar way.

5 Misleading conduct was defined in 18 U.S.C. § 1515(a)(3) 

(2006) as "(A) knowingly making a false statement; (B) 

intentionally omitting information from a statement and thereby 

causing a portion of such statement to be misleading, or 

intentionally concealing a material fact, and thereby creating a 

false impression by such statement; (C) with intent to mislead, 

knowingly submitting or inviting reliance on a writing or 

recording that is false, forged, altered, or otherwise lacking 

in authenticity; (D) with intent to mislead, knowingly 

submitting or inviting reliance on a sample, specimen, map, 

photograph, boundary mark, or other object that is misleading in 

a material respect; or (E) knowingly using a trick, scheme, or 

device with intent to mislead." Section 1515(a)(3) appeared in 

the 2012 version of the United States Code in a substantially 

similar way.
7

further interpreted these terms,

6 we "give them their usual and 

accepted meanings, as long as these meanings are consistent with 

the statutory purpose." Commonwealth v. Zone Book, Inc., 372 

Mass. 366, 369 (1977). "We derive the words' usual and accepted 

meanings from sources presumably known to the statute's 

enactors, such as their use in other legal contexts and 

dictionary definitions." Ibid. A "trick" is "[a]n indirect, 

often deceptive or fraudulent means of achieving an end. A 

mischievous act." Webster's II New College Dictionary 1177 

(2001). "Scheme" is defined as a "[a] plan, esp[ecially] a 

secret or underhand[ed] one." Id. at 987. "Device" is defined 

as a "[a] plan or scheme, esp[ecially] a malign one." Id. at 

310.

Before applying these definitions to the facts here, we 

reiterate the familiar probable cause standard. "Probable cause 

requires sufficient facts to warrant a person of reasonable 

caution in believing that an offense has been committed." 

Commonwealth v. Walczak, 463 Mass. 808, 817 (2012), quoting from 

Commonwealth v. Levesque, 436 Mass. 443, 447 (2002). The 

 

6 Without addressing the meaning of the terms "trick, 

scheme, or device" the United States Court of Appeals for the 

Eleventh Circuit concluded that the alteration of physical 

evidence by a defendant (specifically, ripping his shirt and 

submitting it to a police technician to create a false 

impression) was a misleading trick, scheme, or device within the 

meaning of 18 U.S.C. § 1515(a)(3). United States v. Veal, 153 

F.3d 1233, 1254 (11th Cir. 1998). 
8

standard is not difficult to meet. Indeed, "[i]n dealing with 

probable cause, . . . as the very name implies, we deal with 

probabilities. These are not technical; they are factual and 

practical considerations of everyday life on which reasonable 

and prudent [people], not legal technicians, act." Draper v. 

United States, 358 U.S. 307, 313 (1959), quoting from Brinegar

v. United States, 338 U.S. 160, 175 (1949). 

Mindful of this standard, we conclude the facts set forth 

in the complaint application give rise to a reasonable inference 

that the defendant's affirmative act of picking up and 

swallowing the suspected heroin was a trick. That is, it was a 

mischievous act designed to outwit the police by preventing them 

from seizing the evidence and, ultimately, proving its chemical 

composition. From a practical and commonsense point of view, it 

is reasonable to infer that swallowing the suspected heroin was 

an affirmative act committed for the purpose of interfering with 

and impeding a criminal investigation. 

This interpretation of misleading conduct is consistent 

with the legislative purpose of the 2006 amendment. Prior to 

2006, § 13B was primarily a witness intimidation statute, 

protecting witnesses and jurors from interference and injury 

during the pendency of a criminal proceeding. "The 2006 

amendment overhauled § 13B as part of a larger 'act reducing 

gang violence' . . . , significantly expanding its scope in the 
9

process, although not its essential purpose." Morse, 468 Mass.

at 368. The amendment expanded "the scope of the conduct 

prohibited, the classes of victims protected, and the types of 

criminal proceedings covered." Figueroa, 464 Mass. at 368. 

Significantly, it criminalized misleading conduct and added 

police officers to the list of victims protected. From this 

expansion of the statute we discern a legislative intent to arm 

law enforcement officers with additional tools to combat 

deliberate interference with criminal investigations and 

prosecutions, precisely the conduct alleged here.

Order dismissing charge of 

misleading a police officer 

vacated.