Commonwealth v. Feliz

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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.