COMMONWEALTH v. RESENDES (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a hearing, a judge of the District Court allowed the defendant's motion to dismiss a complaint charging him with operating a motor vehicle while under the influence of drugs. The judge concluded that the complaint application failed to establish probable cause on the element of public way.² The Commonwealth appealed. We reverse.

We review an order to dismiss a complaint for lack of probable cause de novo by examining the four corners of the complaint application, “in the light most favorable to the Commonwealth.” Commonwealth v. Santos, 94 Mass. App. Ct. 558, 560 (2018). Probable cause exists where the complaint provides “reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense.” Commonwealth v. Humberto H., 466 Mass. 562, 565 (2013), quoting Commonwealth v. Roman, 414 Mass. 642, 643 (1993). The standard is “considerably less exacting than a requirement of sufficient evidence to warrant a guilty finding․ ‘[It] does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction.’ ” Commonwealth v. O'Dell, 392 Mass. 445, 451 (1984), quoting K.B. Smith, Criminal Practice and Procedure § 104 (1983).

Here, the defendant claimed, and the judge agreed, that the complaint failed to establish probable cause for only one element: public way. Proof of this element “may ‘rest entirely on circumstantial evidence.’ ” Commonwealth v. Belliveau, 76 Mass. App. Ct. 830, 835 (2010), quoting Commonwealth v. Petersen, 67 Mass. App. Ct. 49, 52 (2006).

The complaint application, as supported by the police report, stated that on January 31, 2019 at approximately 2:55 p.m., Officer David Figueiredo of the New Bedford police department was dispatched to 110 Hathaway Street to investigate a report of an unknown man passed out behind the wheel of a car that was parked in a residential driveway. Upon Figueiredo's arrival, a woman was standing near the car. She reported that she had tried to wake the man, whom she did not know, but was unable to do so. She further indicated that the car was blocking her car from leaving the driveway. Figueiredo observed that there was a car, parked in the driveway, with the engine running, blocking the sidewalk. He found a man, later identified as the defendant, in the driver's seat, slumped forward. After multiple attempts, Figueiredo was able to arouse the defendant. He was disoriented, had pinpoint pupils and glassy eyes. The defendant denied using any drugs or alcohol and explained that he was tired because he worked nights.

In response to Figueiredo's questions, the defendant said he was waiting for a girl, but did not know where he was. The defendant said that he was near “Expos” but did not know why he was in the driveway. Figueiredo informed the defendant that he would receive a criminal citation, for among things, operating under the influence of drugs.³ While waiting for the tow company, the defendant stated the car belonged to his wife.

The complaint application set forth probable cause on the contested element of public way. The defendant was found slumped forward in the driver's seat, with the engine running, blocking both the driveway and the sidewalk, in a place that is accessible only by means of a public way. See Commonwealth v. Kaplan, 97 Mass. App. Ct. 540, 542 n.7 (2020); Belliveau, 76 Mass. App. Ct. at 835. See also O'Dell, 392 Mass. at 451. Therefore, dismissal of the complaint was error.⁴

Order dismissing complaint reversed.

FOOTNOTES

2.   General Laws c. 90, § 24 (1) (a) (1), defines public way “as any way or ․ any place to which the public has the right of access, or ․ any place to which members of the public have access as invitees or licensees.”

3.   A plastic bag that contained a brown powdered substance was found in a package of cigarettes in the defendant's left front sweatshirt pocket.

4.   The defendant's argument that he could have been where he was in a motor vehicle with the engine running without operating on a public way does not adhere to the rule that we view the complaint in the light most favorable to the Commonwealth.