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SJC-12518

COMMONWEALTH vs. FRANCIS T. BRENNAN.

Plymouth. October 4, 2018. - December 21, 2018.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.

Criminal Harassment. Global Positioning System Device.

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.

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 
2

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 

 

1 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.

2 We acknowledge the amicus brief submitted by the Licensed 

Private Detective Association of Massachusetts in support of the 

Commonwealth.
3

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 
4

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 

 

3 The defendant's interest in J.D.'s fidelity is not 

apparent from the record in this appeal.
5

his Apple iPhone4 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.

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.

 

4 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 (2016).

5 A search of the defendant's laptop computer provided a 

negative result because the computer did not have a hard drive.

6 The reports had information about the speed and distance 

the devices traveled, and the devices' coordinates, matched with 

dates and times.
6

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 (2013), 

quoting Commonwealth v. McCarthy, 385 Mass. 160, 163 (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 (1984), citing Myers

v. Commonwealth, 363 Mass. 843, 848-849 (1973). "A judge 

considering a motion to dismiss should not confuse the question 
7

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 (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, quoting O'Dell, supra at 450. 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, quoting Commonwealth v. Long, 

454 Mass. 542, 555 (2009), S.C., 476 Mass. 526 (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 (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 
8

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 (2012), quoting Commonwealth v. Kulesa, 455 Mass. 

447, 452 (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.
9

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. 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 (2014), quoting

McDonald, 462 Mass. at 240. He claims that the complaint does 
10

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 (acts of harassment can be directed 

simultaneously at more than one person). Contrast Commonwealth

v. Welch, 444 Mass. 80, 92 (2005), abrogated on another ground, 

O'Brien v. Borowski, 461 Mass. 415 (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 (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. 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 
11

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. Here, a reasonable person in the defendant's 

position would have known that placing the GPS devices on both 
12

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 (2015), S.C., 479 Mass. 277 

(2018), quoting Johnson, 470 Mass. at 314. 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 
13

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. 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 
14

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.7

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, 

 

7 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 (2003) (three incidents, two occurring on same day, 

sufficient to satisfy stalking statute). Cf. Commonwealth v. 

Kulesa, 455 Mass. 447, 451 (2009) (defendant's two telephone 

calls to victim's sister on one afternoon were sufficient for 

two of three required acts).
15

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 (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, quoting Commonwealth

v. Luna, 418 Mass. 749, 753 (1994). Malicious conduct is an 

"intentional, wrongful act done willfully or intentionally 
16

against another without legal justification or excuse." 

McDonald, supra, quoting Commonwealth v. Paton, 63 Mass. App. 

Ct. 215, 219 (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. 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, quoting 

Commonwealth v. Schuchardt, 408 Mass. 347, 352 (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 (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 (1949). The Commonwealth has 
17

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.8 In these

 

8 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 
18

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.9

Order allowing motion to 

 dismiss reversed.

 

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).

9 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.