Commonwealth v. Feliz , 481 Mass. 689 ( 2019 )

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SJC-12545
COMMONWEALTH vs. ERVIN FELIZ.
Suffolk. September 5, 2018. - March 26, 2019.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Obscenity, Child pornography. Sex Offender. Global Positioning
System Device. Practice, Criminal, Probation.
Constitutional Law, Sex offender, Search and seizure.
Search and Seizure, Probationer, Expectation of privacy.
Indictments found and returned in the Superior Court
Department on March 3, 2015.
A motion in opposition to the imposition of global
positioning system monitoring as a condition of probation was
heard by Robert B. Gordon, J., and a motion for reconsideration
was considered by him.
The Supreme Judicial Court granted an application for
direct appellate review.
David R. Rangaviz, Committee for Public Counsel Services,
for the defendant.
Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
Maura Healey, Attorney General, & Sarah M. Joss, Special
Assistant Attorney General, for Massachusetts Probation Service,
amicus curiae, submitted a brief.
2
Eric Tennen, for Massachusetts Association for the
Treatment of Sexual Abusers & another, amici curiae, submitted a
brief.
GAZIANO, J. After pleading guilty to possession and
distribution of child pornography, the defendant was sentenced
to five concurrent five-year terms of probation, and two
concurrent two and one-half year sentences of incarceration,
which were suspended for five years. In accordance with the
terms of G. L. c. 265, § 47, which requires judges to impose
global positioning system (GPS) monitoring as a condition of
probation for individuals convicted of most sex offenses, the
sentencing judge imposed GPS monitoring as a condition of the
defendant's probation. The defendant opposed the condition of
GPS monitoring when it was imposed, arguing that mandatory GPS
monitoring constituted an unreasonable search in violation of
the Fourth Amendment to the United States Constitution and
art. 14 of the Massachusetts Declaration of Rights. After an
evidentiary hearing, a different Superior Court judge found
G. L. c. 265, § 47, facially constitutional, and also rejected
the defendant's as-applied challenge. The defendant appealed,
and we allowed his petition for direct appellate review.
The defendant argues that, as applied to him, the condition
of mandatory GPS monitoring, pursuant to G. L. c. 265, § 47,
constitutes an unreasonable search under the Fourth Amendment
3
and art. 14. We consider this argument in light of the United
States Supreme Court's holding that GPS monitoring is a search.
See Grady v. North Carolina, 135 S. Ct. 1368, 1370 (2015). We
conclude that G. L. c. 256, § 47, is overinclusive in that GPS
monitoring will not necessarily constitute a reasonable search
for all individuals convicted of a qualifying sex offense.
Article 14 requires an individualized determination of
reasonableness in order to conduct more than minimally invasive
searches, and GPS monitoring is not a minimally invasive search.
To comport with art. 14, prior to imposing GPS monitoring on a
given defendant, a judge is required to conduct a balancing test
that weighs the Commonwealth's need to impose GPS monitoring
against the privacy invasion occasioned by such monitoring.
We conclude that, in the circumstances of this case, the
Commonwealth's particularized reasons for imposing GPS
monitoring on this defendant do not outweigh the privacy
invasion that GPS monitoring entails. Accordingly, as applied
to this defendant, GPS monitoring is an unconstitutional search
under art. 14.1
1. Background. a. Prior proceedings. The defendant was
arrested in December 2014; he was arraigned in the District
1 We acknowledge the amicus brief of the Massachusetts
Association for the Treatment of Sexual Abusers and the
Massachusetts Association of Criminal Defense Lawyers, and the
amicus brief of the Massachusetts Probation Service.
4
Court on charges related to possession and distribution of child
pornography and was placed on pretrial release with GPS
monitoring. In March 2015, the defendant was indicted on
charges of two counts of possession of child pornography, in
violation of G. L. c. 272, § 29C, and five counts of
distribution of child pornography, in violation of G. L. c. 272,
§ 29B (a). He was arraigned in the Superior Court in April
2015, and placed on pretrial probation, with conditions,
including reporting to a probation officer, in person, once per
week. The condition of GPS monitoring was waived at that time,
on the defendant's motion, and the GPS device was removed. In
April 2016, the defendant pleaded guilty to all of the charges.
A Superior Court judge sentenced him to five concurrent five-
year terms of probation and two concurrent terms of
incarceration of two and one-half years in a house of
correction, suspended for five years.2
At the time of his guilty pleas, the defendant was given
notice of his obligation to register as a sex offender;
registration also was imposed as a condition of probation. As
statutorily mandated, see G. L. c. 6, §§ 178C-178P, the
2 The judge also ordered that the defendant could apply for
early termination of probation after four years of full
compliance with the imposed conditions.
5
defendant thereafter registered as a sex offender, and was
classified as a level one offender.3
General Laws c. 265, § 47, mandates that any person placed
on probation for numerous enumerated sex offenses4 is required to
wear a GPS device. See Commonwealth v. Guzman, 469 Mass. 492,
496 (2014) ("G. L. c. 265, § 47, applies to any defendant who
has been convicted of a predicate offense and sentenced to a
term of probation"). Accordingly, the sentencing judge imposed
GPS monitoring as a condition of the defendant's probation. The
judge also imposed additional conditions of probation, including
that the defendant not reside with anyone under the age of
sixteen; not work or hold a job that would involve contact with
children under sixteen; and remain 300 feet away from schools,
parks, and day care centers.
3 Individuals classified as level one sex offenders have
been determined to pose a low risk of reoffending and a low
degree of danger to the public. See G. L. c. 6, § 178K (2) (a)
("Where the board determines that the risk of reoffense is low
and the degree of dangerousness posed to the public is not such
that a public safety interest is served by public availability,
it shall give a level [one] designation to the sex offender").
4 General Laws c. 6, § 178C, defines "[s]ex offense" to
include "dissemination of visual material of a child in a state
of nudity or sexual conduct" and "possession of child
pornography."
6
At sentencing, the defendant signed an order of probation
conditions and a GPS equipment liability acceptance form.5 In
signing the order of probation conditions, the defendant
certified that he had "read and understood the above conditions
of probation," and would "agree to obey them." The defendant
was fitted with a GPS monitoring device in accordance with the
terms of probation. On the day he was sentenced, the defendant
filed a motion seeking to waive imposition of GPS monitoring as
a condition of probation; he argued that the mandatory GPS
monitoring requirement of G. L. c. 265, § 47, constitutes an
unconstitutional search and seizure under art. 14 and the Fourth
Amendment. The Commonwealth opposed the motion.
In February 2017, a different Superior Court judge held a
three-day evidentiary hearing to assess the reasonableness of
the defendant's statutorily imposed condition of GPS monitoring.
The judge heard testimony from the defendant concerning his
experience as a probationer subject to GPS monitoring; expert
5 The GPS monitoring contract indicates that no exclusion
zones were applied to the defendant's GPS device, and that,
because he lives in a city, where it is virtually impossible not
to be within 300 feet of a park or school when traveling on any
city street, the defendant was not precluded from passing by a
school or park, but would be considered in violation if he
loitered in or near such a location. This is consistent with
the probation officer's testimony at the hearing on the
defendant's motion to waive GPS monitoring, and the judge's
comment that actually issuing an alert every time the defendant
passed by a park or school would be impractical and "over-
alerting."
7
testimony, by Commonwealth and defense experts, on social
science research on rates of recidivism for contact and
noncontact sex offenders; and testimony about the nature of GPS
monitoring generally in Massachusetts.6
In April 2017, the judge denied the defendant's motion.
The defendant filed a timely appeal. In February 2018, the
defendant filed a motion for reconsideration, seeking to
supplement the record with additional evidence concerning issues
experienced with the day-to-day use of the GPS device, and
difficulties with connectivity to the central monitoring
station. This motion was allowed in part, and denied in part;
the motion judge amended his findings of fact to include
reference to a subset of additional GPS alerts that the
defendant had experienced. In March 2018, the judge issued
amended findings and rulings. The defendant appealed to the
Appeals Court from the partial denials; the Appeals Court
thereafter consolidated the defendant's pending appeals. The
defendant also sought direct appellate review before this court.
In June 2018, we allowed the defendant's petition for direct
appellate review, and transferred the consolidated appeals to
this court.
6 Six witnesses testified at the hearing, including the
defendant, two probation officers, an employee of the electronic
monitoring program office, and two expert psychologists.
8
b. GPS monitoring. We summarize the facts as found by the
motion judge, supplemented by uncontested facts in the record
and testimony credited by the motion judge that does not
contravene the judge's findings. See Commonwealth v. Jones-
Pannell, 472 Mass. 429, 431 (2015). We "accept subsidiary
findings based partly or wholly on oral testimony, unless
clearly erroneous." Commonwealth v. Tremblay, 480 Mass. 645,
646 (2018).
More than 3,900 individuals in the Commonwealth, on
probation, pretrial release, and parole, are subject to court-
ordered GPS monitoring, some of them pursuant to G. L. c. 265,
§ 47.
Probationers subject to GPS monitoring in the Commonwealth
are fitted either with a one-piece or a two-piece GPS device,
usually worn around the ankle. The probation service uses the
electronic monitoring program (ELMO) to supervise offenders
placed on GPS monitoring. ELMO operates a monitoring center
located in Clinton, staffed by probation service employees.
ELMO probation service employees work in conjunction with
probation officers who are assigned to supervise individuals
placed on GPS monitoring.
The GPS devices used by ELMO store information about a
wearer's latitude and longitude, gathered via communication with
a network of satellites. This information is uploaded through a
9
cellular telephone network to computers at the ELMO monitoring
center that are running third-party monitoring software. The
timing of uploads depends on many factors, including
connectivity with the satellites used in the GPS component of
the system, issues with the cellular telephone service provider,
and connectivity and timing issues with the ELMO center.
According to the corporation that currently leases GPS devices
to the Commonwealth, the location data gathered by its GPS
monitoring equipment is ninety percent accurate within thirty
feet.7 See Commonwealth v. Thissell, 457 Mass. 191, 198 n.15
(2010), citing National Space–Based Positioning, Navigation, and
Timing Coordination Office, The Global Positioning System.
A GPS-monitored person's location information continuously
is gathered and uploaded to ELMO computer systems. ELMO
employees generally review a probationer's location information
only when the ELMO monitoring software generates an "alert."
Even when no alert is generated, however, ELMO employees are
able to look up and retrieve a probationer's historical location
data. The alert notifies an ELMO assistant coordinator that one
of several issues has arisen with respect to a given GPS device,
and prompts the assistant coordinator to address the issue by
7 The Commonwealth has not conducted independent testing to
assess the accuracy of the GPS monitoring hardware or software
that it uses.
10
attempting to contact the probationer. Any of several kinds of
alert may lead to the issuance of an arrest warrant for a
probationer, if probation employees are unable to "resolve" the
alert in a timely manner.8
When a probationer subject to GPS monitoring has been told
to stay away from certain addresses, a probation department
employee may be able to enter a specific "exclusion zone" into
the ELMO monitoring system. If an exclusion zone is entered,
the system will trigger an alert when a GPS-monitored individual
enters that zone. The system permits entry of exclusion zones
by specific addresses. The system does not permit entry of more
general exclusion zones, such as "parks" or "schools"; to
approximate that type of restriction, the street addresses of
the pertinent parks or schools would have to be entered
manually.
8 As the motion judge explained,
"Assistant Coordinators are called upon to exercise some
level of discretion to determine in the first instance
whether the situation presents a bona fide compliance
concern. If the probationer cannot be reached, the
Assistant Coordinator will contact his Probation Officer.
If an alert activates after hours and the Probation Officer
cannot be located, an on-call Chief Probation Officer is
available to address the matter. Arrest warrants are
pursued and issued only if the alert cannot be explained
and cleared after a substantial period of time, and that
period of time will vary depending upon the nature of the
alert."
11
It is common for a GPS monitoring device to issue alerts
related to cellular or satellite connection, as well as the
integrity of the device itself. Many alerts occur because of
events unrelated to a defendant's efforts to comply with
conditions of probation. For instance, when a defendant's
device loses its signal connection with the cellular telephone
network, an "unable to connect" alert is triggered. If the GPS
device is within cellular network coverage, but loses connection
to the satellite network, a "motion, no GPS" alert is triggered.
If the device becomes cut or broken for any reason, it will
trigger a "tampering" alert. While a GPS device is expected to
retain a battery charge for approximately twenty-four hours,
battery life may decline, and may result in common "charging
alerts" when battery life runs low. Each time an alert is
triggered, the probationer must communicate with a probation
employee to attempt to resolve the issue. If the issue is not
resolved, the probationer risks being subject to an arrest
warrant and possible arrest.9
9 According to the probation service's own estimates, on any
given day, it is monitoring approximately 5,000 individuals,
more than 3,400 of whom are subject to GPS monitoring. On any
given day, the approximately fifty probation staff members must
respond to approximately 1,700 alerts. Although in some cases
this may reflect more than one alert for a given individual, in
general, this number is roughly thirty-four percent of the total
individuals monitored, and approximately one-half of the total
number of individuals subject to GPS monitoring, and includes
alerts for GPS monitoring of pretrial probationers; probationers
12
At the time of the evidentiary hearing, approximately ten
months after postconviction monitoring had begun, the defendant
had experienced at least thirty-one alerts.10 A number of these
alerts involved power disconnection and the failure of the
defendant's GPS device to maintain a satellite connection. The
alerts were resolved after periods of time ranging from
approximately thirty minutes to six hours, and none of them had
resulted in the defendant's arrest.11
convicted of a range of different offenses, including sex
offenses; and individuals subject to remote alcohol monitoring.
10In February 2018, the defendant submitted evidence to the
motion judge that, between September 2016 and February 2018, his
GPS monitoring device had issued 166 alerts. Citing the need
for "finality of judgments and the efficient use of court
resources," the motion judge amended his findings of fact to
include only the eighteen additional GPS alerts that had been
triggered before the conclusion of the evidentiary hearing in
February 2017. The judge did not make any finding that the
probation department reports concerning later alerts were in any
way unreliable or not credible.
11The defendant also sought to introduce at the hearing,
and included in his record appendix, probation reports of alerts
generated during the five months that he was on pretrial GPS
monitoring. Because those reports were preconviction, the judge
did not consider them at the hearing, and also did not make any
determination with respect to their credibility. In its filings
in the Superior Court, the Commonwealth agreed that the
defendant had been subject to alerts at least three or four
times per week during that period, as a result of connectivity
issues in the neighborhood where he lives and works.
Examination of those reports shows that, on numerous occasions,
resolution of the alerts took many hours; the defendant was at
times ordered to go outside and walk around in order to obtain a
signal; and multiple warrants for his arrest issued when he
still was not able to obtain one, while following the
13
2. Discussion. In this case, the defendant argues that
GPS monitoring, imposed pursuant to G. L. c. 265, § 47,
constitutes an unreasonable search under the Fourth Amendment
and art. 14.
a. Standard of review. We review a challenge to the
constitutionality of a statute de novo. See Commonwealth v.
McGhee, 472 Mass. 405, 412 (2015). "In accordance with canons
of statutory construction, a statute is presumed to be
constitutional." Id. See Luk v. Commonwealth, 421 Mass. 415,
431 (1995). "[T]he historic fact of the Legislature's choice,"
however, "does not relieve us of our constitutional obligation
to review the validity of a search and seizure in light of art.
14." Commonwealth v. Blood, 400 Mass. 61, 75 (1987).
Generally, "when the constitutionality of a statute is
challenged, the question to be decided is whether the statute is
unconstitutional as applied in the particular case." United
States v. Ferrara, 771 F. Supp. 1266, 1282 (D. Mass. 1991).
b. GPS monitoring as a constitutional search. In 2015,
the United States Supreme Court established that "a State . . .
conducts a search when it attaches a device to a person's body,
without consent, for the purpose of tracking that individual's
movements." Grady, 135 S. Ct. at 1370. The petitioner in that
instructions provided by probation. Ultimately, all of the
alerts were resolved and the warrants were recalled.
14
case had been placed on GPS monitoring after being classified as
a recidivist sex offender. Id. at 1369. Because only
"unreasonable" searches violate the Fourth Amendment, the Court
remanded the matter so that the North Carolina court could
determine "whether the State's monitoring program is
reasonable -- when properly viewed as a search." 12 Id. at 1371.
Following remand, the North Carolina Court of Appeals
interpreted Grady to require "case-by-case determinations of
reasonableness, now . . . referred to as 'Grady hearings,'" at
which the State must provide "sufficient record evidence to
support" a finding that GPS monitoring imposed by State statute
"is reasonable as applied to this particular defendant"
(emphasis in original). See State v. Grady, 817 S.E.2d 18, 23,
26 (N.C. Ct. App. 2018) (Grady II). The court concluded that
the State's burden of establishing that GPS monitoring is
reasonable includes a requirement (without explanation as to how
that is to be accomplished) that the State provide evidence that
GPS monitoring actually is effective in protecting the public
12 Probationers retain a reasonable, albeit diminished,
expectation of privacy. See Commonwealth v. Moore, 473 Mass.
481, 482 (2016); Commonwealth v. LaFrance, 402 Mass. 789, 795
(1988). The defendant in State v. Grady, 817 S.E.2d 18, 24
(N.C. Ct. App. 2018), arguably had a higher expectation of
privacy because he had completed his sentence and was not on
probation. North Carolina's GPS monitoring program applies not
only to individuals under State penal supervision, but also to
people with a prior conviction who are "not otherwise subject to
any direct supervision by State officers." See id.15
against recidivism by sex offenders. Id. at 27-28. See State
v. Griffin, 818 S.E.2d 336, 338, 342 (N.C. Ct. App. 2018). In
assessing reasonableness, the court has looked to evidence
regarding a "defendant's current threat of reoffending," Grady
II, supra at 26, and has evaluated whether the State presented
"evidence concerning its specific interest in monitoring [a
given] defendant,"13 id. at 27.
13 The South Carolina Supreme Court similarly interpreted
the decision in Grady v. North Carolina, 135 S. Ct. 1368, 1370
(2015), to require "an individualized inquiry into the
reasonableness of the [GPS monitoring] search in every case,"
because "of the widely varying circumstances that may lead to
automatic, mandatory electronic monitoring imposed for
[misdemeanor] failure to register" as a sex offender in
accordance with the requirements of South Carolina's sex
offender registry act. See State v. Ross, 423 S.C. 504, 513
(2018).
Other jurisdictions to have considered the issue have taken
varying approaches, often in the context of a more
particularized statute requiring monitoring of a specific subset
of sex offenders. See, e.g., Belleau v. Wall, 811 F.3d 929,
931, 933-937 (7th Cir. 2016) (imposition of GPS monitoring
pursuant to Wis. Stat. § 301.48, requiring sex offenders
released from civil commitment to submit to GPS monitoring under
specific circumstances, was reasonable where qualifying sex
offenses involved sexual contact with children and defendant was
recidivist sex offender); Doe No. 1 v. Coupe, 143 A.3d 1266,
1274-1279 (Del. Ch. 2016), aff'd, 158 A.3d 449 (Del. 2017)
(applying three-part "special needs" framework to determine that
mandatory GPS monitoring of "Tier III," highest risk, sex
offenders was reasonable); State v. Kane, 2017 VT 36, ¶¶ 26-31
(GPS monitoring condition was reasonable where monitored
individual on probation had removed her son from his legal
guardian and transported him across State lines, and probation
conditions required probationer to stay away from son's school
and residence).
16
In Guzman, 469 Mass. at 498, we heard a constitutional
challenge to G. L. c. 265, § 47, and concluded that the statute
does not violate due process. Because the record in Guzman was
"too sparse to permit an adequate assessment" of the defendant's
claim that GPS monitoring infringed upon his right to be free of
unreasonable searches and seizures, we did not address that
claim. Id. at 497. Our decision in Guzman does not alter the
inquiry we must make in this case, to determine whether
imposition of ongoing, mandatory GPS monitoring (searching) of
all persons convicted of a sex offense of any type in the
Commonwealth is "reasonable" under art. 14 and the Fourth
Amendment.14 In Guzman, supra, we discussed mandatory GPS
monitoring, as required by G. L. c. 265, § 47, as a
legislatively imposed "punishment[] for a given offense," and,
consequently, considered "only whether that mandatory sentence
meets the rational basis test." Guzman, supra, citing
Commonwealth v. Therriault, 401 Mass. 237, 241-242 (1987).
After considering the Legislature's reasons for deciding to
impose mandatory GPS monitoring, we concluded that the GPS
monitoring requirement of G. L. c. 265, § 47, had a rational
basis and therefore did not offend due process. See Guzman,
14See People v. Hallak, 310 Mich. App. 555, 578-579, 583
(2015), rev'd on other grounds, 499 Mich. 879 (2016) (assessing
Fourth Amendment reasonableness of GPS monitoring apart from
classifying GPS monitoring as legislatively imposed sanction).
17
supra at 500. Because the defendant in Guzman did not raise the
issue, we did not address whether "the mandatory imposition of
GPS monitoring could in some circumstances constitute a
punishment 'disproportionate to the magnitude of the crime' in
question." Id. at 497 n.8, quoting Commonwealth v. O'Neal, 369
Mass. 242, 247–248 (1975). We nonetheless have characterized
the effects of GPS monitoring pursuant to G. L. c. 265, § 47, as
"singularly punitive." See Commonwealth v. Selavka, 469 Mass.
502, 505 n.5 (2014).
c. GPS monitoring as a warrantless search. No probable
cause and warrant requirement inheres in G. L. c. 265, § 47.
Indeed, GPS monitoring, as here, is imposed on probationers
without recourse to probable cause and a search warrant. It has
become axiomatic that not all searches require a warrant and
probable cause to be "reasonable," and therefore
constitutional.15 See Maryland v. King, 569 U.S. 435, 448
(2013); United States v. Knights, 534 U.S. 112, 118 (2001) ("The
touchstone of the Fourth Amendment is reasonableness . . .").
15Indeed, the United States Supreme Court has determined
that "[a] State's operation of a probation system . . . may
justify departures from the usual warrant and probable-cause
requirements." See Griffin v. Wisconsin, 483 U.S. 868, 873–874
(1987). See also Skinner v. Railway Labor Executives' Ass'n,
489 U.S. 602, 640 (1989) (Marshall, J., dissenting) (noting that
"the searches in . . . Griffin . . . were supported by
individualized evidence suggesting the culpability of the
persons").
18
The reasonableness of a search is assessed under the "totality
of the circumstances, including the nature and purpose of the
search and the extent to which the search intrudes upon
reasonable privacy expectations." Grady, 135 S. Ct. at 1371.
In this case, the question is whether imposition of GPS
monitoring on this defendant itself is reasonable, and thus
constitutional, under the Fourth Amendment and art. 14,16 given
the government's strong interests both in protecting the public
from sexual predators and in rehabilitating convicted sex
offenders.
To be sure, we previously have upheld certain programmatic,
suspicionless searches as constitutional -- but only when those
searches minimally invaded already diminished expectations of
privacy. Where we upheld the constitutionality of roadblock
seizures intended to locate impaired drivers, for instance, we
emphasized that the result we reached did not "open[] the door
for suspicionless searches and seizures in other contexts."
Commonwealth v. Shields, 402 Mass. 162, 167 (1988). See Landry
v. Attorney Gen., 429 Mass. 336, 350 (1999), cert. denied, 528
U.S. 1073 (2000) (upholding mandatory, minimally invasive
deoxyribonucleic acid [DNA] searches for identification purposes
16 This is a question distinct from asking whether discrete
searches of data that has been collected by GPS monitoring may
be reasonable. See Commonwealth v. Johnson, 481 Mass. ,
(2019).
19
as constitutional for convicted persons with low expectations of
privacy in their identity). See also Horsemen's Benevolent &
Protective Ass'n v. State Racing Comm'n, 403 Mass. 692, 703
(1989). Cf. Guiney v. Police Comm'r of Boston, 411 Mass. 328,
342 (1991).
In sum, when the government seeks to conduct a search that
is more than minimally invasive, art. 14 requires an
individualized determination of reasonableness. For reasons
that we outline infra, GPS monitoring is not a minimally
invasive search. Accordingly, art. 14 requires individualized
determinations of reasonableness in order to impose GPS
monitoring as a condition of probation. Mandatory, blanket
imposition of GPS monitoring on probationers, absent
individualized determinations of reasonableness, is
unconstitutional under the Massachusetts Declaration of Rights.
d. Balancing test to assess constitutional reasonableness.
To determine whether it is reasonable for the government to
conduct a search absent probable cause, courts conduct a
balancing test that weighs "the need to search or seize against
the invasion that the search or seizure entails."17 Commonwealth
17In certain narrow circumstances, the United States
Supreme Court has upheld suspicionless searches as
constitutional under a "closely guarded category" known as the
"special needs exception" to the Fourth Amendment. See Chandler
v. Miller, 520 U.S. 305, 309 (1997). We have yet to justify
20
v. Catanzaro, 441 Mass. 46, 56 (2004). See Samson v.
California, 547 U.S. 843, 848 (2006), quoting Knights, 534 U.S.
at 118-119; New Jersey v. T.L.O., 469 U.S. 325, 341 (1985);
Terry v. Ohio, 392 U.S. 1, 22-25 (1968); Commonwealth v.
Rodriguez, 472 Mass. 767, 776 (2015); Landry, 429 Mass. at 348,
citing Guiney, 411 Mass. at 331-332.
As a probationer, the defendant lawfully may be subjected
to reasonable restraints on "freedoms enjoyed by law-abiding
citizens." See Knights, 534 U.S. at 119. See also Commonwealth
v. Pike, 428 Mass. 393, 402 (1998). Consequently, with respect
to the Fourth Amendment and art. 14, the defendant possesses a
diminished expectation of privacy relative to the general
population. See Knights, supra at 119-120; Commonwealth v.
Moore, 473 Mass. 481, 485 (2016).18 The defendant's status as a
probationer informs our assessment of both "the degree to which
[a search] intrudes upon an individual's privacy" and "the
degree to which it is needed for the promotion of legitimate
governmental interests." See Knights, supra at 119.
searches of individuals on the basis of the special needs
exception, and decline to do so here.
18This court also has interpreted art. 14 to prohibit
suspicionless searches of parolees, thus extending the
protections of art. 14 beyond those of the Fourth Amendment.
Moore, 473 Mass. at 482.
21
Nonetheless, the government does not have an "unlimited"
ability to infringe upon a probationer's still-existing, albeit
diminished, expectations of privacy. See Griffin v. Wisconsin,
483 U.S. 868, 875 (1987). "[T]he fact of 'diminished privacy
interests does not mean that the Fourth Amendment falls out of
the picture entirely.'" Carpenter v. United States, 138 S. Ct.
2206, 2219 (2018), quoting Riley v. California, 573 U.S. 373,
392 (2014). Furthermore, that an individual has been convicted
of a crime does not eliminate the person's reasonable
expectation of privacy under art. 14. See Commonwealth v.
LaFrance, 402 Mass. 789, 794-795 (1988).19
In light of the foregoing, we consider the extent to which
GPS monitoring of this particular defendant advances the
Commonwealth's interests in rehabilitation of the probationer
and protection of the public, and the extent of the incremental
privacy intrusion occasioned by GPS monitoring on the
defendant's diminished, but still extant, expectations of
privacy as a probationer. See Belleau v. Wall, 811 F.3d 929,
19In LaFrance, 402 Mass. at 790, we struck down as
unconstitutional a special condition of probation that required
a probationer to "[s]ubmit to any search of herself, her
properties or any place where she then resides or is situate,
with or without a search warrant, by a probation officer or by
any law enforcement officer at the direction or by the request
of the probation officer." Id. at 791 n.2. We concluded that
individual searches of a probationer could be proper under
art. 14 if conducted on the basis of reasonable suspicion of
wrongdoing. Id. at 792.
22
934-935 (7th Cir. 2016) (considering "the incremental effect of
the challenged statute on the [defendant's] privacy"). Whether
the government's interest in imposing GPS monitoring outweighs
the privacy intrusion occasioned by GPS monitoring, thus
constituting a reasonable search, depends on a constellation of
factors. Because reasonableness depends "on the totality of the
circumstances," Grady, 135 S. Ct. at 1371, no one factor will be
dispositive in every case.
We conclude that, in the circumstances here, the
Commonwealth's particularized reasons for imposing GPS
monitoring on this defendant do not outweigh the privacy
intrusion occasioned by the requirement of GPS monitoring.
Therefore, imposing GPS monitoring on this defendant would
violate the requirements of art. 14.
e. Signing conditions of probation does not alter art. 14
analysis. The fact that the defendant signed a probation
contract acceding to a statutorily mandated condition of GPS
monitoring does not change our constitutional analysis. See
Guiney, 411 Mass. at 341 (consent to search is "virtually
meaningless unless the consent requirement [is] 'reasonable'").
See also O'Connor v. Police Comm'r of Boston, 408 Mass. 324, 329
(1990) ("the plaintiff would not be barred from relief if his
consent to be the subject of a search and seizure were
unreasonably required as a condition of his employment"); United
23
States v. Lara, 815 F.3d 605, 609 (9th Cir. 2016) ("We have
already held that a probationer's acceptance of a search term in
a probation agreement does not by itself render lawful an
otherwise unconstitutional search of a probationer's person or
property").
With respect to GPS monitoring in particular, we previously
have described imposition of GPS monitoring under G. L. c. 265,
§ 47, as taking place without the consent of the monitored
person. See Commonwealth v. Cory, 454 Mass. 559, 570 (2009)
("There is no context other than punishment in which the State
physically attaches an item to a person, without consent and
also without consideration of individual circumstances, that
must remain attached for a period of years"). Further, "[t]he
coercive quality of the circumstance in which a defendant seeks
to avoid incarceration by obtaining probation on certain
conditions makes principles of voluntary waiver and consent
generally inapplicable." LaFrance, 402 Mass. at 791 n.3.
Thus, where a probationer accedes to a contract of
probation that includes statutorily mandated GPS monitoring, or
signs a GPS equipment contract to establish that monitoring, the
acceptance cannot be viewed as consent, where imposition of GPS
monitoring itself does not meet the requirements of art. 14.
Accordingly, to determine whether GPS monitoring of a
probationer who signed a contract for GPS monitoring is
24
reasonable, we conduct "the same type of art. 14 analysis that
would have been required without the consent." Guiney, 411
Mass. at 341. See Moore, 473 Mass. at 487 n.6 (parole board may
not create conditions of release that "contract around"
requirements of art. 14, because to do so "inappropriately
[would] allow the parole board to compel a parolee, keen to
commute his or her sentence, to accept a condition that would
unnecessarily and unreasonably limit his or her art. 14 privacy
rights").
f. Government interests. "The prevention of sexual
exploitation and abuse of children constitutes a government
objective of surpassing importance." New York v. Ferber, 458
U.S. 747, 757 (1982). In addition, the Commonwealth has a
"vital interest in rehabilitating convicted sex offenders,"
McKune v. Lile, 536 U.S. 24, 33 (2002), in part because
rehabilitation protects the public, by reducing the possibility
of future offenses.
As relevant here, the Commonwealth also has a vital
"interest in protecting the children exploited by the [child
pornography] production process." Ashcroft v. Free Speech
Coalition, 535 U.S. 234, 240 (2002). The reproduction and
dissemination of child pornography itself harms the children who
are depicted and revictimized with each viewing. Paroline v.
United States, 572 U.S. 434, 440 (2014), quoting Ferber, 458
25
U.S. at 759. Therefore, the government's interest remains
strong where the sex offense in question is an online,
noncontact offense. "[C]hild pornography is 'a permanent
record' of the depicted child's abuse, and the 'harm to the
child is exacerbated by [its] circulation." Paroline, supra,
quoting Ferber, supra. Separately, "[t]he demand for child
pornography harms children in part because it drives production,
which involves child abuse." Paroline, supra at 439-440.
g. Privacy infringement. Probationers who have been
convicted of sex offenses are subject to monitoring in numerous
ways apart from GPS monitoring.20 Nonetheless, GPS monitoring
results in "a far greater intrusion on the defendant's liberty
than that associated with traditional probation monitoring."
Commonwealth v. Goodwin, 458 Mass. 11, 22 (2010). See Cory, 454
Mass. at 570-571. That probationers subject to GPS monitoring
20Probation service records about a given probationer "may
at all times be inspected by police officials of the towns of
the commonwealth." G. L. c. 276, § 90. Probation officers
enforce probation conditions through means that may include home
visits. In this case, the defendant is required to report to a
probation officer in person once every fourteen days, and to
provide verification of his current address and income. Like
all convicted sex offenders, the defendant was required to
register with the Sex Offender Registry Board, G. L. c. 6,
§ 178D, and to provide it with personal identifying information,
including, among other things, his "name[s], aliases used, date
and place of birth, sex, race, height, weight, eye and hair
color, social security number, home address, any secondary
addresses and work address and, if the sex offender works at or
attends an institution of higher learning, the name and address
of the institution." G. L. c. 6, § 178D (a), (e).
26
have a more limited entitlement to privacy does not render GPS
monitoring minimally invasive when applied to them.
In Landry, 429 Mass. at 350, we determined that subjecting
individuals who had been convicted of a crime, and thus
possessed "a low expectation of privacy in their identity," to a
"minimally invasive [DNA] test," which can provide "an extremely
accurate record of identification," constituted a minimal
infringement of privacy in the individuals' identity. We
further determined that the privacy infringement occasioned by
such a test was "outweighed by the strong State interest in
preserving a positive recorded identification of convicted
persons." Id.
GPS monitoring, however, gathers much more information than
the identity-related test at issue in Landry, and gathers this
information over a much longer period of time. The experience
of accommodating a device that remains attached to the body for
a prolonged period of time differs materially from the one-time,
minimal physical intrusion occasioned by a properly conducted
DNA test. While being monitored using a GPS device, a
probationer is subject both to the physical intrusion of the GPS
device and the effects of that intrusion. The physically
intrusive dimensions of GPS monitoring are relevant to assessing
both privacy infringement as well as the "nature" of the GPS
27
search, see Grady, 135 S. Ct. at 1371, and its "manner of
execution." See King, 569 U.S. at 448.
As presently conducted, GPS monitoring intrudes upon the
defendant's personal privacy in a number of ways. On several
occasions, to regain a lost satellite connection, probation
employees have instructed the defendant to walk around outside
at various times of day or evening. This has included requiring
the defendant to leave his job and walk around outside during
work hours, risking potential economic consequences, including
loss of employment. He has been telephoned multiple times at
work when a signal was lost, and has attempted to arrange for
another employee voluntarily to handle his immediate tasks when
he was required to be away from his desk attempting to obtain a
connection. The motion judge determined that individuals
subject to GPS monitoring experience "frequent" charging alerts;
that signal and connectivity alerts are "not uncommon"; and that
"practical problems and life inconveniences" can "arise as a
result" of "limitations of ELMO's alerts system." This level of
intrusion on a probationer's person cannot be deemed "minimally
invasive."
In addition, GPS tracking amasses "a substantial quantum of
intimate information about [a] person." United States v. Jones,
565 U.S. 400, 416 (2012). GPS monitoring gathers vastly more
information than otherwise would be collected in accordance with
28
a defendant's other conditions of probation. As currently in
use in the Commonwealth, GPS devices collect one data point of
latitude and longitude per minute. In addition to collecting
points of latitude and longitude, to determine a precise
location, GPS devices collect information about a wearer's speed
of travel, such that it is possible to tell if a person is
driving, running, or walking. This detailed data is stored for
an indefinite amount of time. GPS location data "is detailed,
encyclopedic, and effortlessly compiled." Carpenter, 138 S. Ct.
at 2216. It is also because this detailed and "encyclopedic"
data is stored indefinitely, and because examination practices
are subject to change and presently are unregulated by statute,
that the continuous collection of detailed location data through
GPS monitoring cannot be termed minimally invasive.
As mentioned, we have observed that "[t]he GPS monitoring
mandated by G. L. c. 265, § 47, is not like other conditions of
probation . . . [in that] the imposition of GPS monitoring is
singularly punitive in effect." Selavka, 469 Mass. at 505 n.5.
See Cory, 454 Mass. at 560 (retroactive application of GPS
monitoring to individuals placed on probation for qualifying sex
offenses before G. L. c. 265, § 47, took effect violated ex post
facto provisions of Massachusetts and United States
Constitutions).
29
h. Assessing the balance in this case. The government's
strong interest in protecting the public from sex offenders
forms a critical component of the balancing test to determine
whether imposition of GPS monitoring on this particular
defendant was reasonable. To comply with art. 14, however, the
Commonwealth also must establish how GPS monitoring, when viewed
as a search, furthers its interests. The "State must produce a
particularized reason for the need for . . . searches and
seizures." Landry, 429 Mass. at 348, citing Guiney, 411 Mass.
at 331-332. Ultimately, the particularized reasons for a search
must "outweigh[] the degree of invasiveness occasioned by [the
State's] action." Landry, supra.
In this case, the Commonwealth's particularized reasons for
imposing GPS monitoring on this specific defendant, who was
convicted of noncontact sex offenses, do not outweigh the
privacy intrusion occasioned by GPS monitoring. This defendant
has no psychiatric diagnosis indicating a compulsion toward
sexually deviant activity; no history of violations of probation
or terms of pretrial release; no exclusion zone entered into the
ELMO system capable of generating real-time alerts for real-time
monitoring; and no geographically proximate victim. The
Commonwealth justifies imposition of GPS monitoring on this
defendant based on the potential use of GPS data as a tool to
investigate commission of sex crimes should they occur, and the
30
deterrence that comes from a defendant knowing that his precise
location can be ascertained if he were to commit future crimes.
The Commonwealth, however, has not presented evidence sufficient
to indicate that this defendant poses a threat of reoffending,
or otherwise of violating the terms of his probation. See Grady
II, 817 S.E.2d at 26. Under these circumstances, in the context
of this case, GPS monitoring constitutes an unreasonable search
under art. 14.
Following an individualized classification hearing that was
conducted before the hearing on the defendant's motion for
reconsideration, the Sex Offender Registry Board classified the
defendant as a level one sex offender. That the defendant was
assigned this classification level means that the hearing
examiner determined that he posed a low risk of reoffense and a
low degree of risk to the public. By contrast, sex offenders
designated level two or level three are deemed to pose a
moderate or high risk of reoffending and a concomitant degree of
risk to the public.
At the time of the hearing on the motion to remove
imposition of GPS monitoring, the defendant was thirty-three
years old and had no prior record of a sex offense. The motion
judge credited testimony by a psychological expert, who
previously had evaluated the defendant, that Internet offenders
without an antisocial behavioral disorder present a low to
31
moderate risk of committing a contact sex offense.21 The
expert's earlier evaluation of the defendant in this case,
conducted before the defendant's guilty pleas and sentencing,
concluded that, in the expert's opinion, the defendant "would
not meet the diagnostic criteria as codified in the Diagnostic
and Statistical Manual of Mental Disorders, Fifth
Edition[,] . . . for a mental disorder that is paraphilic in
nature." After his evaluation, the expert determined that the
defendant was "not a significant sexual offense recidivism risk
(contact or non-contact sexual offenses) going forward in time."
The Commonwealth's expert testified similarly as to the absence
of this type of mental disorder.
Evidence produced at the hearing showed that the defendant
spent approximately sixteen months on pretrial supervision.
Throughout that time, of which approximately the first five
months were spent on GPS monitoring, the defendant did not
violate any condition of his pretrial supervision. The
21We observe that some courts in other jurisdictions have
considered the question of categorical treatment of all sex
offenders as a homogeneous group, for purposes of issues such as
treatment, GPS monitoring, and risk of recidivism, and have
concluded that a categorical approach may be inappropriate. The
United States Court of Appeals for the Ninth Circuit, for
example, noted that "failure to distinguish between contact and
possession-only offenders . . . may go against the grain of a
growing body of empirical literature indicating that there are
significant . . . differences between these two groups." United
States v. Apodaca, 641 F.3d 1077, 1083 (9th Cir.), cert. denied,
565 U.S. 901 (2011).
32
defendant's compliance, for sixteen months, with the terms of
his pretrial probation would have provided no suggestion at
sentencing that he would fail to comply with the terms of
probation after being sentenced. When a second hearing was held
to assess the reasonableness of the GPS monitoring condition,
after the defendant had been on posttrial GPS monitoring for
approximately nine months, the defendant had not violated the
terms of his probation.
We emphasize that the defendant's circumstances differ
substantially from cases in other jurisdictions where GPS
monitoring of a sex offender has been upheld as a reasonable
search. For instance, in Belleau, 811 F.3d at 931, GPS
monitoring was deemed to constitute a reasonable search where a
defendant had sexually assaulted young children and was
determined to suffer from a mental disorder that made "it likely
that [the defendant would] engage in one or more acts of sexual
violence" (citation omitted). Statutorily mandated GPS
monitoring also has been deemed reasonable where it is
applicable only to individuals assigned to the "most severe"
risk assessment tier, who have committed crimes such as rape and
sexual abuse of a child under age thirteen. See Doe v. Coupe,
143 A.3d 1266, 1270, 1279 (Del. Ch. 2016), aff'd, 158 A.3d 449(Del. 2017).
33
The Commonwealth asserts that GPS monitoring facilitates
the probationary goals both of rehabilitation and of protection
of the public. Rehabilitation of the probationer and protection
of the public are "distinct [goals of probation], because a
probation condition that protects the public from the defendant
may not advance the likelihood of his rehabilitation." Goodwin,
458 Mass. at 15–16. See Eldred, 480 Mass. at 95; Griffin, 483
U.S. at 875. In this case, however, the Commonwealth's
purported reasons for imposing GPS monitoring are insufficient.
See Landry, 429 Mass. at 348.
The Commonwealth contends that, generally, GPS monitoring
can promote compliance with the terms of probation by verifying
that a defendant lives at the address he provides to the
probation service every fourteen days. GPS monitoring also
might verify that the defendant is going to work as he should
be, and is completing any rehabilitative programs; it also
otherwise might serve as "concrete proof that a probationer is
doing well on probation." Although such verification well may
be possible in theory, capacity constraints and existing
monitoring protocols indicate that GPS monitoring is not
currently used in this manner. The motion judge determined that
"[l]aw enforcement is only accessing [GPS] collected
information when it might reveal what a probationer
was doing during a specific moment in time where there
is reason to believe that a sex offender may be
involved in a probation violation (viz., when an alert
34
issues); or, less frequently, when a crime has been
committed in a geographic area that suggests a
probationer may have been involved" (emphasis in
original).
In its amicus brief, the probation service confirms this method
of operation, and asserts that it "monitors GPS by investigating
and responding to 'alerts.'" Thus, in the circumstances of this
case, the Commonwealth has not established how the condition of
GPS monitoring assists in the defendant's rehabilitation.22 See
T.L.O., 469 U.S. at 341, quoting Terry, 392 U.S. at 20 (to
assess whether search is reasonable, we "consider 'whether
the . . . action was justified at its inception'; . . . [and]
whether the search as actually conducted 'was reasonably related
in scope to the circumstances which justified the interference
in the first place'").
The Commonwealth asserts also that GPS monitoring "furthers
the substantial government interest in protecting the public,
especially children." The motion judge described several
hypothetical situations in which he believed that GPS monitoring
might deter at least some sex offenders, including online
noncontact sex offenders, from recidivism. The judge explained
that,
22As the probation service notes, a judge conceivably might
impose curfews at progressively later hours over time, using GPS
monitoring as an incentive, to serve rehabilitative ends. In
this case, however, because the defendant has no curfew, GPS
monitoring cannot serve curfew-related rehabilitative purposes.
35
"because the [ELMO] system is collecting location data
in an undifferentiated manner, law enforcement can
examine a GPS device's points after a given crime has
been committed, and thereby determine if the subject
probationer was at the scene at the time of such
crime's commission. Thus, while an alert will not
necessarily issue in real time whenever a probationer
happens to pass within 300 feet of a park, school or
day care center -- which would create an obvious
problem of over-alerting, given the ubiquity of these
venues in the modern city -- the ability of law
enforcement to connect a probationer to a particular
site post hoc means that GPS is both a useful tool of
crime detection and a deterrent to crimes a given
probationer might otherwise be tempted to commit"
(emphasis in original; footnote omitted).
Where, as here, a defendant's exclusion zones have not been
entered into the ELMO monitoring system, however, and where, as
the judge found, even if it were feasible, doing so "would
create an obvious problem of over-alerting, given the ubiquity
of these venues in the modern city," GPS monitoring's deterrent
potential appears linked primarily to its possible post hoc
investigative use. As stated, the Commonwealth has not put
forth sufficient evidence to suggest that this particular
defendant would be reasonably likely to violate the terms of his
probation absent the deterrent effect of GPS monitoring, or that
such post hoc investigative use may become necessary. The
absence of evidence demonstrating a risk of recidivism anchored
in facts related to this particular defendant tilts the balance
against concluding that GPS monitoring is a reasonable search.
36
In these circumstances, the government interests do not outweigh
the privacy infringement occasioned by GPS monitoring.
3. Conclusion. The matter shall be remanded to the
Superior Court for entry of a modified order of probation that
does not include GPS monitoring.
So ordered.