Commonwealth v. White
Commonwealth v. White
Opinion of the Court
The defendant, Michael J. White, was charged in the Boston Municipal Court with violation of a restraining order. A judge dismissed the complaint finding that it was not supported by probable cause. We affirm.
Background. On September 8, 2015, A.F. filed a complaint for protection from abuse pursuant to G. L. c. 209A. An ex parte order issued on September 9, 2015, with an expiration date of September 22, 2015. On September 11, 2015, A.F. received five telephone calls from the defendant between 7:15 P.M. and 7:24 P.M. A.F. answered the first call, as she did not recognize the incoming telephone number, and hung up when she heard the defendant's voice. Thereafter, the defendant called A.F. from a telephone number that she recognized; she did not answer the call and the defendant left a voicemail message. In the message, the defendant stated, "[W]hat is this court shit?" and "[Y]ou['re] ruining my life more than you already have." The defendant was served in hand with the order on September 12, 2015, at 9:51 P.M.
Detective Carmen Rodriguez of the Boston police department domestic violence unit filed an application for a criminal complaint alleging one count of violation of a restraining order. A hearing was held before a clerk magistrate on October 29, 2015. The magistrate found probable cause to issue the complaint and made certain notations.
The defendant filed a motion to dismiss the complaint for lack of probable cause, which was allowed after a nonevidentiary hearing. In a margin endorsement, the judge found that it was more probable than not that the defendant knew of the order, but not its provisions, including that he was not to contact A.F.
Discussion. We review a motion judge's determination on the issue of probable cause de novo. See Commonwealth v. Ilya I.,
The Supreme Judicial Court has made it abundantly clear that where a prosecutor exercises his prosecutorial discretion, and in the absence of statutory authority, a judge is precluded from dismissing a valid complaint. See Commonwealth v. Newton N.,
Order dismissing complaint affirmed.
The magistrate made the following entries on the "Finding of Magistrate After Hearing Under C218/53A": "Det C. Rodriguez-BPD," "D present," "D attorney present," "victim present," "testimony," "review of R.O.," "P.C. found (D atty stips to P.C.)," "process to issue," "service checked on R.O. (served)." It does not appear that live testimony before the clerk magistrate was preserved.
"[P]robable cause exists where ... the facts and circumstances within the knowledge of the [magistrate] are enough to warrant a prudent person in believing that the individual ... has committed ... an offense .... Probable cause is a relatively low threshold, requiring only sufficiently trustworthy information to instill in a reasonable person the requisite belief of criminality." Paquette v. Commonwealth,
To establish a violation of G. L. c. 209A, the Commonwealth must prove that (1) a valid 209A order was entered by a judge and was in effect on the date of the alleged violation; (2) the defendant violated the order; and (3) the defendant had knowledge of the order. See Commonwealth v. Silva,
The fact that the defendant's attorney stipulated to "probable cause" at the clerk magistrate's hearing is of no moment. There are many tactical reasons why an attorney may choose this course of action at the initiation of a criminal proceeding and a different course of action thereafter.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.