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15-P-987 Appeals Court
COMMONWEALTH vs. JAMIE B. JOHNSON.
No. 15-P-987.
Suffolk. May 3, 2016. - April 7, 2017.
Present: Grainger, Meade, & Wolohojian, JJ.
Global Positioning System Device. Bail. Due Process of Law,
Pretrial detainees. Practice, Criminal, Motion to
suppress, Required finding. Abuse Prevention. Protective
Order. Constitutional Law, Search and seizure. Search and
Seizure, Expectation of privacy, Consent. Consent.
Complaint received and sworn to in the West Roxbury
Division of the Boston Municipal Court Department on November
13, 2013.
A pretrial motion to suppress evidence was heard by Mary
Ann Driscoll, J, and the case was heard by her.
Travis J. Jacobs for the defendant.
Matthew Sears, Assistant District Attorney, for the
Commonwealth.
MEADE, J. After a jury-waived trial, the defendant was
convicted of breaking and entering a building during the daytime
with the intent to commit a felony, in violation of G. L.
2
c. 266, § 18, and larceny in an amount more than $250, in
violation of G. L. c. 266, § 30. On appeal, the defendant
claims error in the admission of data generated from a global
positioning system (GPS) tracking device he agreed to wear as a
condition of his release after being charged with violating an
abuse prevention order, see G. L. c. 209A, § 7, and that the
evidence was insufficient to support his convictions of breaking
and entering a building during the daytime with the intent to
commit a felony, and of larceny. We affirm.
1. Background. a. Agreed-to GPS monitoring. On July 8,
2013, the defendant was charged with having committed various
crimes stemming from an incident of domestic violence on Nancy
Jones1 that took place two days earlier in the Dorchester section
of Boston (Dorchester case).2 At the defendant's arraignment, a
judge of the Dorchester Division of the Boston Municipal Court
Department (Dorchester judge) determined that, for various
reasons,3 the defendant should not be released on personal
1
A pseudonym.
2
The charges were violating an abuse prevention order, see
G. L. c. 209A, § 7, resisting arrest, see G. L. c. 268, § 32B,
malicious destruction of property worth more than $250, see
G. L. c. 266, § 127, assault and battery, see G. L. c. 265,
§ 13A(a), and assault and battery on a police officer, see G. L.
c. 265, § 13D.
3
As reasons, the judge indicated: (1) the nature and
circumstances of the offense charged, (2) the potential penalty
the defendant faced, (3) the defendant had a nine-page record,
3
recognizance without surety, and instead required that he post
bail in the amount of $2,500. The Dorchester judge imposed
several conditions of pretrial release, which were reflected on
a printed form provided to, and signed by, the defendant. The
conditions included GPS monitoring, staying away from Jones's
home address in Dorchester, and staying away from Jones herself.
The defendant signed this form on July 8, 2013, and, by doing
so, acknowledged that he had read and understood the conditions,
and that he agreed to abide by them. The form was also signed
by the Dorchester judge and the chief probation officer. The
defendant posted bail and was released the same day.
b. The break-in. On August 31, 2013, two Boston police
officers responded to the report of a residential break-in at a
home in the West Roxbury section of Boston. The owner, Sarah
Dundon, had returned home from a one-week vacation to discover
that two jewelry boxes containing approximately $500 worth of
jewelry had been stolen from her bedroom. The kitchen window at
the rear of the house had been forced open, and the front door,
which Dundon had locked when she left, was unlocked. These
facts suggested that the thief had entered through the window
and left through the door. No further investigation was
and (4) the defendant had several open cases in Quincy,
Framingham, Dorchester, and the West Roxbury section of Boston.
4
conducted at this point, and the police apparently had no leads
as to who might have committed the crime.
At some point thereafter, Norfolk County law enforcement
officials were conducting a criminal investigation into the
defendant. As part of that investigation, they requested that
an employee of the probation department review and analyze the
data captured by the GPS monitor imposed as a condition of the
defendant's pretrial release in the Dorchester case.
On November 6, 2013, one of the Boston police officers who
had responded to the break-in received a telephone call from
Barbara McDonough of the probation department electronic
monitoring program (ELMO).4 She informed him that while
"mapping" the defendant at the request of Norfolk County
investigators, she had noticed and mapped the defendant to the
home in West Roxbury, at about 4:20 A.M. on August 29, 2013,
where the GPS data showed he remained for approximately fifteen
to thirty minutes.
Based on this information, the officer concluded there was
probable cause to believe the defendant had broken into Dundon's
home and stolen her jewelry. Accordingly, on November 13, 2013,
by way of a complaint issued out of the West Roxbury Division of
the Boston Municipal Court Department, the defendant was charged
4
ELMO is the unit of the probation department responsible
for monitoring and maintaining GPS data.
5
with breaking and entering a building during the daytime with
the intent to commit a felony, and larceny in an amount more
than $250.
c. The motion to suppress. The defendant moved to
suppress the GPS data that was obtained without a warrant based
on his claimed expectation not to be subjected to extended GPS
surveillance by the government. In his affidavit in support of
his motion to suppress, he averred that as conditions of his
pretrial release on his Dorchester case, he was required to stay
away from Jones's address, i.e., an exclusion zone, and he was
required to wear a GPS device to monitor whether he violated
that condition. The defendant claimed that he did not know he
would be monitored and tracked everywhere he went, and that he
had not agreed to that condition. The defendant's affidavit
fails to state that the conditions of release he had signed also
required him to stay away from Jones herself.
At a nonevidentiary hearing, the motion judge (who also was
the trial judge) considered (1) the pleadings and arguments of
the parties; (2) the docket from the Dorchester case, the case
for which the defendant was on pretrial release with GPS
monitoring; (3) the conditions for bail on the Dorchester case,
signed by the Dorchester judge, the defendant, and the chief
probation officer; and (4) the representations of the parties
that the defendant's data points were first requested by Norfolk
6
County investigators who were investigating similar crimes;
that, in turn, an employee of the probation department contacted
the Boston police when she discovered the GPS points in and
around Dundon's home; that the Boston police then asked the
probation department for the relevant data; and that an employee
of the probation department provided the points to the Boston
police.
After hearing argument from the parties, the judge denied
the motion. Although she did not conduct an evidentiary
hearing, she made the findings covering the material facts set
out above, and those findings are uncontroverted. In part, the
judge stated as follows:
"Counsel has filed a motion to suppress GPS data
evidence obtained, as he said, without a warrant. I don't
think there's any question that that evidence was obtained
without a warrant, and the question before me today is not
whether the motion to suppress should be allowed or denied,
but whether [the defendant] has any expectation of privacy
in the tracking of his movements by the GPS monitor. . . .
"In this case, the defendant was -- and you can look at it
in one of two ways or even, perhaps, both ways; you can
look at it as an order of the court that he was ordered to
be subject to GPS monitoring as a condition of his release
from custody, or you can look at it that he agreed to be
subject to GPS monitoring as a condition of his release
from custody.
"And either way, I find that he has no expectation of
privacy in his movements, because his movements are subject
to GPS monitoring. He knows the device is on him. He
knows what the device does; namely, monitor his movements.
I don't think that you need to have a degree in electronic
engineering to know that, nor do you need the testimony of
someone from ELMO to tell us that. I think any reasonable
7
person would understand that one's movements are subject to
monitoring once you place the GPS -- once the GPS is placed
on your person.
"And while it may be true that he was ordered to stay away
from a particular location, [Jones's address], it's also
true that he was ordered to stay away from [Jones]. And
that order, I would take it, would be no matter where
[Jones] was.
"So that while the defendant would have to understand that
his movements were being monitored, and even if you read
the specific stay-away narrowly, it's clear that not only
is he ordered to stay away from [Jones's address], but he's
also ordered to stay away from [Jones], who could be
anywhere.
"So, given the fact that [the defendant] was either ordered
to subject himself to GPS monitoring or agreed to subject
himself to GPS monitoring, and given the fact that any
reasonable person would understand that such a device does
track your movements and that it's a condition of his
release from custody, that he has, then, no reasonable
expectation of privacy in his movements, as he knows that
they are, in fact, being monitored."
On these bases, the judge found that the defendant was not
entitled to an evidentiary hearing and denied the motion to
suppress.
d. The motion in limine. At the start of the trial, the
defendant moved in limine to exclude evidence of the "Electronic
Monitoring Screen Printouts." Specifically, he moved to exclude
computer screen shots that depicted the geographic location of
the GPS device he wore, and data points that placed him in and
around Dundon's home in the early morning hours of August 29,
2013. As grounds therefor, the defendant claimed the evidence
was "misleading and confusing." After hearing argument, the
8
judge denied the motion and admitted the evidence de bene,
subject to any later motion to strike. Although the defendant
did not later move to strike the evidence, he did renew his
objection to the evidence as being confusing.
e. The trial. During the summer of 2013, Dundon lived in
a single-family home in West Roxbury. Dundon lived alone in the
two-story, Cape Cod-style house, located in a quiet and friendly
residential neighborhood.
From August 25 through 31, 2013, Dundon was on vacation in
Georgia and South Carolina. Her house had no alarm system, and
no one stayed there while she was away. Only her parents had a
set of keys to the home, and they lived in Dedham.
As a condition of the defendant's pretrial release
regarding the Dorchester case, he agreed to wear a GPS
"bracelet" monitored by ELMO, and he signed a condition of
release form and a GPS liability and acceptance form. A GPS
bracelet is a monitor attached to a person's ankle that emits
location signals. The defendant was fitted for his GPS device,
it was tested, and it proved to be operational.
The ELMO system permits both tracking of a GPS device's
geographic position in real time and it may retrieve historic
data points. The system records the location of a GPS device
every minute by sending a signal via satellite. Also, because
it can retrieve historical data, the ELMO system is able to
9
produce maps of specific times and dates that include minute-by-
minute position points for any particular GPS device.
Because the transmission of data is satellite-based, in
general, the data points are accurate ninety percent of the
time, within a thirty-foot radius of the transmitted point.
Historically, the ELMO system has had no problems tracking GPS
devices in West Roxbury, which tends to be a "[v]ery accurate"
area, i.e., one of the better areas of "the city" to track GPS
data. Data points are transmitted and received by the ELMO
system regardless of whether the device is inside or outside of
a building.
On August 29, 2013, between 3:40 and 5:38 A.M., the
defendant's GPS device transmitted data location points that
showed him to have been in and around Dundon's house for a
period between fifteen to thirty minutes. Dundon identified her
house as the location to which the defendant had been tracked
that morning while she was away on vacation. Dundon did not
know the defendant, and she had never invited or allowed him
into her house. There was no evidence that the defendant's GPS
device had been tampered with or removed.5
5
If a GPS device is tampered with or improperly removed, an
alert is sent to the ELMO office and the violation appears on an
employee's computer screen.
10
When Dundon returned home from vacation on August 31, 2013,
she had trouble with the lock on the front door; it was not
working properly. When she got inside, she immediately realized
that her house had been burglarized. Her kitchen window and
screen were wide open, and she discovered various items had
fallen, were broken, or were out of place. When she went
upstairs in her home, she noticed that two jewelry boxes usually
located on a bureau in her bedroom were missing, along with a
pillowcase. Her jewelry boxes had contained various silver and
gold jewelry, a watch, necklaces, bracelets, earrings, and
rings, having a total value in excess of $250.6
2. Discussion. a. The GPS evidence. The opening
sentence of art. 14 of the Massachusetts Declaration of Rights
states: "Every subject has a right to be secure from all
unreasonable searches, and seizures, of his person, his houses,
his papers, and all his possessions." When analyzing the rights
secured by art. 14, the "ultimate touchstone" for evaluating any
infringement of those protections is to ask whether the
governmental conduct at issue was reasonable. Commonwealth v.
Entwistle, 463 Mass. 205, 213 (2012), cert. denied, 133 S. Ct.
945 (2013), quoting from Commonwealth v. Townsend, 453 Mass.
413, 425 (2009). Here, the defendant claims that the judge
6
At the conclusion of the evidence, the defendant's renewed
motion to suppress the GPS data was denied.
11
erred in admitting the GPS data because the "search" conducted
by the police was unreasonable in light of his expectation of
privacy in that data.7 We disagree for several reasons.
The first matter to resolve is whether the collection and
the analysis of GPS data, as occurred here, is a search in the
constitutional sense.8 In some circumstances, but not those
presented here, the answer is "yes." Both the United States
Supreme Court and our Supreme Judicial Court have concluded that
the surreptitious installation of a GPS device on a motor
vehicle is a "search," United States v. Jones, 565 U.S. 400, 404
7
The dissent frames the issue as whether the judge erred in
denying the motion to suppress. Post at . Although
different from how the defendant stated the issue in his brief,
the difference is without moment. To the extent the defendant
and the dissent improperly rely on the trial record to argue the
judge erred in denying the motion to suppress, see Commonwealth
v. Deramo, 436 Mass. 40, 43 (2002), it is sufficient to say the
trial record does not advance the defendant's cause.
8
To the extent the dissent questions the underlying
lawfulness of the agreed-to pretrial release order, the Supreme
Judicial Court has held that, even absent statutory
authorization, a judge retains the discretion to impose "GPS
monitoring as a condition of pretrial probation." Emelio E. v.
Commonwealth, 453 Mass. 1024, 1025 (2009). Also, G. L. c. 276,
§ 87, "enables a judge, with the defendant's consent, to place
the defendant on pretrial probation and then to set conditions,
again with his consent, for release on personal recognizance or
bail." Jake J. v. Commonwealth, 433 Mass. 70, 71 (2000).
Finally, as of 2014, "[a]ny person authorized to take bail for
[a violation of a G. L. c. 209A order] may impose conditions on
a person's release in order to ensure the appearance of the
person before the court and the safety of the alleged victim
[or] any other individual or the community." G. L. c. 276,
§ 58, second par., inserted by St. 2014, c. 260, § 32.
12
(2012), or a "seizure." Commonwealth v. Connolly, 454 Mass.
808, 818 (2009). See Commonwealth v. Rousseau, 465 Mass. 372,
382 (2013). The United States Supreme Court has recently held,
in a case sorting out the Fourth Amendment intricacies of
mandatory monitoring of recidivist sex offenders, that "a State
also conducts a search when it attaches a device to a person's
body, without consent, for the purpose of tracking that
individual's movements" (emphasis supplied). Grady v. North
Carolina, 135 S. Ct. 1368, 1370 (2015). These are the cases
upon which the defendant has staked his claim, and upon which
the dissent relies. However, these cases are inapposite to the
instant defendant's circumstances. The key distinction being
that in all of the mentioned cases, the defendant did not
consent to being tracked by a GPS device.9 Rather, in those
cases, it was either a statutory requirement of his release or
was done without his knowledge. Thus, those cases shed no light
here.
To determine whether a search in the constitutional sense
has taken place, the defendant must establish that he has an
expectation of privacy in the data transmitted by his GPS device
and stored in the ELMO system. See Grasso & McEvoy, Suppression
9
In the opening sentence of the discussion section of the
dissent, post at , our colleague omits the Grady caveat
to its holding, i.e., that the use of a GPS device is a search
when it is done without the defendant's consent.
13
Matters Under Massachusetts Law § 3-5[b] (2016). See also
Commonwealth v. Carter, 424 Mass. 409, 411-412 (1997) (under
art. 14, defendant has burden of establishing that search in
constitutional sense took place). This inquiry has both a
subjective and an objective component. See ibid. In other
words, "[t]he measure of the defendant's expectation of privacy
is (1) whether the defendant has manifested a subjective
expectation of privacy in the object of the search, and (2)
whether society is willing to recognize that expectation as
reasonable." Commonwealth v. Montanez, 410 Mass. 290, 301
(1991). See Commonwealth v. Bly, 448 Mass. 473, 490 (2007).
First, we must evaluate whether this defendant, by his
conduct, manifested a subjective expectation of privacy in the
data emitted from the GPS device and stored in the ELMO system.
See Commonwealth v. Montanez, supra. That is, whether this
defendant has shown that he has made an effort to preserve the
evidence in question as private. See Katz v. United States, 389
U.S. 347, 351-352 (1967); Smith v. Maryland, 442 U.S. 735, 740
(1979). The defendant has not carried this burden.
Unlike the tracking of a cellular telephone's emission of
location data unbeknownst to its owner, see Commonwealth v.
Augustine, 467 Mass. 230, 252-255 (2014), S.C., 472 Mass. 448
(2015), the defendant's GPS device did not belong to him and he
was wearing it for the express purpose of tracking his
14
location.10 Indeed, as a condition to his consented-to pretrial
release, the defendant agreed to wear the device at all times
and to permit continuous supervision of his whereabouts by the
probation department's monitoring of the device and its
transmissions. On the pretrial release order itself, which the
defendant signed, he agreed to be supervised by the probation
department, and to observe all of the conditions of that
probation, including the GPS monitoring of an order to stay away
from Jones, the named 209A victim in the case, a condition
without geographic limitations. See G. L. c. 276, § 87; Jake J.
v. Commonwealth, 433 Mass. 70, 70-71 (2000).
As conditions of his pretrial release, the defendant was
ordered to stay away from Jones's home, and Jones herself.
Nowhere in the defendant's motion to suppress, or in the
affidavit in support thereof, did he acknowledge the condition
that he was to stay away from Jones, a condition that the judge
10
The dissent's reliance on Commonwealth v. Augustine, 467
Mass. at 245, to reject the Commonwealth's claim that the
defendant could have no expectation of privacy in the GPS data
because it was in the hands of a third party, is misplaced.
Post at . Unlike the surreptitious tracking of
Augustine's cell site location information, the instant
defendant agreed to wear the GPS device to permit his location
to be tracked. Moreover, the dissent's conclusion that the
probation department is not a third party in these circumstances
is puzzling. Post at .
15
found decisive,11 and a fact that undermines his claim that his
consent was restricted to a particular location.12 To the extent
the defendant claimed his understanding of the parameters of the
pretrial release order was limited to him staying away from
Jones's home, the judge was not required to credit that
averment, especially where the agreement the defendant signed
contradicted that claim. Moreover, nowhere in his affidavit in
support of his motion to suppress does he even state that he
believed his GPS data would remain private. Rather, by agreeing
to the terms of his release, i.e., an agreement to provide the
probation department with his constant and continuous location,
the defendant made no effort to keep private the GPS data.
Rather, he expressly and intentionally signed it away and, thus,
he failed to manifest a subjective expectation of privacy in
that information. See Commonwealth v. Bly, 448 Mass. at 490.
Second, even if the defendant harbored a subjective
expectation of privacy in the GPS data, we nonetheless conclude
that society would not be "willing to recognize that expectation
as reasonable." Commonwealth v. Montanez, 410 Mass. at 301. In
11
On four occasions in her decision denying the motion to
suppress, the judge stressed the condition that the defendant
stay away from Jones.
12
Contrary to the suggestion in the dissent, post
at , the lack of a geographic restriction on where the
defendant would be monitored was not limited to places where
Jones had some connection.
16
reaching this conclusion, the following factors are relevant to
the analysis: "(1) the character of the location; (2) the
nature of the place involved (did the defendant own, have a
possessory interest in, or control access to); (3) does the
defendant have a possessory interest in the item seized; (4) has
the defendant taken normal precautions to protect his privacy;
and (5) the nature of the intrusion." Grasso & McEvoy,
Suppression Matters Under Massachusetts Law § 3-5[c] (2016).
See Commonwealth v. Pina, 406 Mass. 540, 545 (1990). Here, the
data emitted from the GPS device is stored in the ELMO system,
which is not a place the defendant controls or possesses, or to
which he has access. He neither has a possessory interest in
the data, nor has he endeavored to protect any privacy interest
in it given his agreement to wear the device that was designed
to provide his location data to the probation department. See
Commonwealth v. D'Onofrio, 396 Mass. 711, 714-715 (1986);
Commonwealth v. Pina, supra at 544-545; Commonwealth v.
Montanez, supra at 301-303. Finally, the nature of the
intrusion is one he voluntarily chose in order to enjoy the
liberty provided by his pretrial release.13 Cf. Commonwealth v.
13
At the same time, there is nothing in the record that
indicates that the defendant was compelled to either accept GPS
monitoring or be held without bail. Nor, as the dissent
suggests, was GPS monitoring a "punitive restraint on his
liberty," as it provided him release from the confines of jail.
Post at . In addition, the defendant made no claim in
17
Morrison, 429 Mass. 511, 514 (1999) ("It is simply nonsense to
say that society is prepared to recognize [a defendant's] right
to be where [an abuse prevention order] has ordered him not to
be").
This case presents a defendant, who the record fails to
reflect is a person who possesses anything less than ordinary
intelligence or who otherwise suffers from any intellectual
deficits, who agreed to wear a GPS tracking device, and later
claimed he did not understand that the tracking device was going
to actually track him. It would indeed be a strange society,
and one challenged by common sense, that would be "willing to
recognize" the defendant's understanding "as reasonable."
Commonwealth v. Montanez, supra at 301.14
his motion to suppress or in his affidavit in support thereof,
that his consent to wearing the GPS device was invalid due to
"coercion, duress, or improper inducements." Commonwealth v.
Berrios, 447 Mass. 701, 708 (2006).
14
In addition, the dissent finds fault in the judge's
ruling based on an issue that the defendant raised neither in
his motion to suppress nor on appeal before us, i.e., that GPS
monitoring is an unconstitutional or excessive condition of his
pretrial release. Post at . See Commonwealth v. Silva,
440 Mass. 772, 781-782 (2004); Commonwealth v. Mathis, 76 Mass.
App. Ct. 366, 374-375 (2010). See also Mass.R.Crim.P. 13(a)(2),
as appearing in 442 Mass. 1516 (2004) ("Grounds not stated which
reasonably could have been known at the time a motion is filed
shall be deemed to have been waived"); Mass.R.A.P. 16(a)(4), as
amended, 367 Mass. 921 (1975) (claims not raised in briefs are
waived). Thus, contrary to the dissent's discussion of the
matter, post at , the claim was not before the judge and,
correspondingly, not before us. See Budish v. Daniel, 417 Mass.
574, 577 n.5 (1994). See also Commonwealth v. Obi, 475 Mass.
18
Furthermore, once the defendant consented to the pretrial
release condition of the GPS monitoring, it is not reasonable to
conclude that he could control or limit how that GPS data would
be used, including for a law enforcement purpose. See United
States v. Jacobsen, 466 U.S. 109, 117 (1984) ("It is well
settled that when an individual reveals private information to
541, 549 (2016) (where defendant's claim that condition of
probation was unconstitutional intrusion on right to free
exercise of religion was not raised in trial court, but instead
raised for first time on appeal, claim waived). Even though
this case is even further procedurally removed from Obi, i.e.,
the claim has not been raised at all, there is also no merit to
it. The defendant does not have a constitutional right to be
released on bail prior to trial. Querubin v. Commonwealth, 440
Mass. 108, 112 (2003). See United States v. Salerno, 481 U.S.
739, 748-751 (1987). Even though a defendant has no right to
bail, in general, bail cannot be set with excessive conditions
that infringe on constitutionally protected interests without a
sufficient countervailing governmental interest. See United
States v. Salerno, supra at 754. See also Perry v. Sindermann,
408 U.S. 593, 597 (1972). Here, the defendant, an arrestee in a
domestic violence case with a significant criminal record,
consented to being tracked by a GPS device as a means designed
to keep the 209A victim safe in her home and person. As we have
stated, keeping away from Jones herself was an agreement without
geographic limitation. Agreed-upon GPS tracking to protect a
victim's safety as well as the community's safety are proper,
sufficient, and significant governmental interests that outweigh
any unreasonable, albeit theoretical, expectation of privacy.
See G. L. c. 276, § 58, second par., inserted by St. 2014,
c. 260, § 32 ("Any person authorized to take bail for [a
violation of a G. L. c. 209A restraining order] may impose
conditions on a person's release in order to ensure the
appearance of the person before the court and the safety of the
alleged victim, any other individual or the community"). At the
very least, in light of the legislative goals of protecting
domestic violence victims and our communities as a whole, the
defendant has not even attempted to carry his burden of showing
that agreed-upon GPS tracking was excessive either generally or
in the particular circumstances of his case.
19
another, he assumes the risk that his confidant will reveal that
information" to third party even if "information is revealed on
the assumption that it will be used only for a limited
purpose"). Without an expectation of privacy in the location
data, the defendant cannot control with whom it is shared.
Indeed, G. L. c. 276, § 90, permits the police to inspect
probation records at any time, and G. L. c. 276, § 100, as
appearing in St. 1966, c. 623, permits probation records to be
shared with the "police commissioner for the city of Boston,"
and "to all chiefs of police," among others. In other contexts,
the same is true for sharing information for law enforcement
purposes. See Matter of a Grand Jury Subpoena, 454 Mass. 685,
689 n.6 (2009) (pretrial detainee had no reasonable expectation
that recorded telephone calls would not be shared with law
enforcement). There was no impropriety in sharing the GPS
location data with the police, and what occurred here was
entirely reasonable.
Because the defendant's motion and affidavit failed to
present facts to establish that the use of the GPS location data
constituted a search in the constitutional sense, the judge
properly denied the motion without an evidentiary hearing, see
Commonwealth v. Rodriguez, 456 Mass. 578, 588 (2010), and the
evidence was properly admitted at trial. As such, and contrary
to the view of the dissent, post at , there is no need to
20
remand this case to ascertain whether probable cause existed to
justify a search that did not occur.
b. Sufficiency of the evidence. The defendant also claims
that there was insufficient evidence to support his conviction
of breaking and entering a building during the daytime with the
intent to commit a felony, and because of that deficiency, the
Commonwealth failed to offer sufficient evidence to support his
related conviction of larceny. More specifically, the defendant
claims the evidence that he entered the Dundon's home was
speculative and unreliable. We disagree.
When analyzing whether the record evidence is sufficient to
support a conviction, an appellate court is not required to "ask
itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt." Commonwealth v.
Velasquez, 48 Mass. App. Ct. 147, 152 (1999), quoting from
Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). See
Commonwealth v. Bell, 83 Mass. App. Ct. 82, 83 (2013). Rather,
the relevant "question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass.
671, 677 (1979), quoting from Jackson v. Virginia, supra.
When evaluating sufficiency, the evidence must be reviewed
with specific reference to the substantive elements of the
21
offense. See Commonwealth v. Latimore, supra at 677-678. To
prove the crime of breaking and entering a building during the
daytime with the intent to commit a felony, in violation of
G. L. c. 266, § 18, the Commonwealth must prove beyond a
reasonable doubt that the defendant broke into the building of
another during the daytime, entered the building, and did so
with the intent to commit a felony therein. Commonwealth v.
Burton, 82 Mass. App. Ct. 912, 912-913 (2012).
The element of "breaking" is broadly defined and
encompasses all actions violating the common security of a
dwelling, including the lifting of a latch and opening a door,
opening of a window, and moving "to a material degree something
that barred the way." Commonwealth v. Tilley, 355 Mass. 507,
508 (1969). "Entering," as it was understood at common law,
includes "any intrusion into a protected enclosure by any part
of a defendant's body." Commonwealth v. Burke, 392 Mass. 688,
690 (1984). See Commonwealth v. Cotto, 52 Mass. App. Ct. 225,
228 (2001); Commonwealth v. Smith, 75 Mass. App. Ct. 196, 200
(2009), S.C., 458 Mass. 1012 (2010).
Here, Dundon was on vacation from August 25 to August 31,
2013. All of her windows were closed and locked. When she
returned, she found the front door lock was not working
correctly, and saw evidence of a break-in, specifically the
metal garden hose holder outside of the kitchen window, directly
22
under the window, was pulled out, the window and the screen
above the sink were open, and the knickknacks that once sat on
the window sill were knocked into the sink and onto the floor.
She also discovered that her jewelry boxes were gone, along with
a pillowcase. The value of the missing items exceeded $250.
See Commonwealth v. Burton, supra.
The defendant's GPS data location points revealed that he
was in and around Dundon's home for a period of thirty minutes
in the early morning hours of August 29, 2013, while she was
away on vacation. The defendant was unknown to Dundon, he did
not have permission to be inside her home, and there was no
evidence that his GPS device had been tampered with or removed.
Nonetheless, the defendant claims that because there was but one
single data point inside Dundon's house, and the margin of error
in the GPS data (ninety percent of the time the data is accurate
within a thirty-foot radius), the evidence is too speculative
and unreliable to support his conviction. "However, to indulge
this argument, we would have to view the evidence in the light
least favorable to the Commonwealth, which, of course, we cannot
do." Commonwealth v. Arias, 78 Mass. App. Ct. 429, 435 (2010).
See Commonwealth v. James, 30 Mass. App. Ct. 490, 491 n.2
(1991). In any event, there was also evidence that GPS devices
in West Roxbury tended to be "[v]ery accurate," as it was one of
the better areas of "the city" to successfully conduct such
23
tracking. Thus, there was ample evidence and reasonable
inferences drawn therefrom, that supported the judge's
conclusion that the defendant broke and entered Dundon's home
and stole items valued in excess of $250. See Commonwealth v.
Casale, 381 Mass. 167, 173 (1980) ("[I]nferences drawn by the
jury need only be reasonable and possible and need not be
necessary or inescapable").
Judgments affirmed.
GRAINGER, J., concurring. While I regard the view
expressed by our dissenting colleague that the case should be
remanded for an evidentiary hearing as a sensible approach, I do
not consider the failure to hold an evidentiary hearing to be
error under existing case law. Accordingly, I concur in the
result.
This case presents the intersection of evolving concepts
related to electronic privacy with established principles
applicable generally to motions to suppress. I write separately
because I consider our task unnecessarily complicated by current
jurisprudence1 that is outdated in its reliance on theories of
trespass and property rights.
Search and seizure. The distinction between a seizure and
a search, historically a linchpin in measuring the level of
permissible government incursion, is losing practical
application.2 The distinction has been based on the different
levels of intrusiveness traditionally associated with a physical
detention (a stop or a seizure) on the one hand and an
exploration of a person's body, clothing, or the interior of a
1
The issues raised here invoke both art. 14 of the
Massachusetts Declaration of Rights and corresponding Federal
Constitutional privacy rights under the Fourth Amendment.
2
Perhaps sensing the problem, in United States v. Jones,
565 U.S. 400, 404 (2012), the United States Supreme Court
defined the global positioning system monitoring of the
defendant's vehicle simply as a search.
2
vehicle (a search or a patfrisk), on the other. Terry v. Ohio,
392 U.S. 1, 16-17 (1968). We endeavor with increasing futility
to apply these points of reference in the context of electronic
signals from orbiting satellites used to triangulate a
geographic position.
In the present case existing law deems the attachment of
the monitoring device a seizure, while the review of previously
collected data is considered a search. Grady v. North Carolina,
135 S. Ct. 1368, 1370-1371 (2015). See Commonwealth v.
Connolly, 454 Mass. 808, 822 (2009) (installation of global
positioning system [GPS] "device clearly constituted a seizure
under art. 14"); Commonwealth v. Augustine, 467 Mass. 230, 255
(2014), S.C., 472 Mass. 448 (2015) (compelled production of cell
site location information [CSLI] constituted "search").
Thus, our analysis under existing cases proceeds on the
basis that any consent obtained from this defendant was limited
to attaching the device to his ankle (the seizure), and to the
use of the data to determine his location at or close to the
time of transmission (the search), but might not necessarily
encompass the later examination of the previously collected data
(the extended search). Id. at 254 (governmental tracking of two
weeks' historical CSLI data falls outside brief time period
during which individual has no reasonable privacy interest).
3
This approach equates physical and digital searches -- but
they are not alike. Unlike the contents of a shirt pocket or an
automobile that may have been hidden or removed before a search,
and that can be jettisoned later if they remain undetected
during a search, the data obtained by GPS monitoring remains on
file and cannot be discarded by a suspect acting unilaterally.
Consent to wear a GPS monitoring device, thus, is not comparable
to an individual's willingness to be detained by a police
officer or to a suspect's consent to submit to a physical
search, both of which are limited to one point in time. For
this reason the legal consequence of the defendant's consent to
be monitored by a GPS device should be analyzed only in the
context of his reasonable expectation of ongoing privacy.3
Reasonable expectation of privacy. The defendant's
affidavit asserts that he did not know that the GPS device would
monitor all his locations. Although the judge did not conduct
an evidentiary hearing, she explicitly discredited this
assertion: "[A]ny reasonable person would understand that such
a device does track your movements and that it's a condition of
his release from custody, that he has, then, no reasonable
3
And, for this reason, I do not perceive utility in those
portions of the majority opinion that attempt to analyze whether
use of GPS data "is a search in the constitutional sense." Ante
at .
4
expectation of privacy in his movements, as he knows that they
are, in fact, being monitored."
The judge's observation is sensible commentary reflecting
what has become everyday common knowledge. Nonetheless, our
continuing adherence to physical notions of surveillance of
individuals and search of property is at odds with her
statement. While few recent cases rely exclusively on property-
based approaches to privacy expectations, they uniformly attempt
a hybrid approach that only emphasizes the incongruity.
The case of United States v. Jones, 565 U.S. 400 (2012), is
emblematic. The majority (Scalia, J.) adhered to an eighteenth
century property analysis with unsurprising intransigence.4 Id.
at 404-408. But even the concurring Justices, while disavowing
a physical trespass theory,5 referred to "longer term GPS
monitoring" (undefined as to specific length of time) as
violative of a reasonable privacy expectation stemming from the
"unique attributes of GPS surveillance." Jones, supra at 415
(Sotomayor, J., concurring). The Supreme Judicial Court has
specified that these unique attributes result in a violation of
4
"[W]e must assur[e] preservation of that degree of privacy
against government that existed when the Fourth Amendment was
adopted." Jones, supra at 406 (quotation omitted).
5
In fact, the Court had already held that a Fourth
Amendment violation did not require a trespass. Katz v. United
States, 389 U.S. 347, 353 (1967).
5
art. 14 of the Massachusetts Declaration of Rights because GPS
monitoring allows police to record "a person's public movements
at a cost far below conventional techniques" (emphasis
supplied). Commonwealth v. Rousseau, 465 Mass. 372, 381 (2013).
The evident problem with this standard is the rapidly
disappearing notion that conventional techniques are limited to
physical surveillance and, therefore, continue likewise to limit
reasonable expectations.
Our own cases have followed suit. "There is no real
question that the government, without securing a warrant, may
use electronic devices to monitor an individual's movements in
public to the extent that the same result could be achieved
through visual surveillance." Commonwealth v. Augustine, 467
Mass. at 252, citing United States v. Knotts, 460 U.S. 276, 282,
285 (1983). In Commonwealth v. Connolly, 454 Mass. at 835, the
concurrence advocated a privacy rather than a property approach
to GPS monitoring,6 but nonetheless defined the defendant's
reasonable privacy expectation as a belief that his "comings and
goings will not be continuously monitored except through
physical surveillance, which requires a far greater investment
6
"Our constitutional analysis should focus on the privacy
interest at risk from contemporaneous GPS monitoring, not simply
the property interest." Commonwealth v. Connolly, supra at 836
(Gants, J., concurring).
6
of police resources and generates far less information than GPS
monitoring." (Gants, J., concurring).
If there ever were a time when a suspect had a reasonable
expectation that the police would not avail themselves of widely
available and well-known technology providing significantly
greater investigative efficiency at a far lower cost, that time
is well past. It is certainly past with respect to GPS
monitoring.7
The analogy to physical surveillance is particularly wide
of the mark in this particular case. The defendant's argument
concedes that his presence in the West Roxbury house at around
4:00 A.M. on the night of the crime legitimately could have been
ascertained if the police had decided to use the GPS system to
effect a random check of his compliance with the bail conditions
at that time. The corresponding likelihood that they would
decide to do so by physical surveillance, i.e., by sending an
officer out in the middle of the night to conduct a random
search for the defendant, is a far less reasonable expectation,
bordering on absurd.8
7
Indeed, it appears more than probable that technological
advances in the form of remote access surveillance will continue
to discredit any property-based analysis.
8
As electronic ability to monitor individuals increases,
reasonable expectations of privacy decrease. This case,
involving a consensual agreement to be monitored by a GPS device
rather than, for example, surreptitious cellular telephone
7
While the scope of any court order, consensual or
otherwise, might explicitly be time-restricted or might be
otherwise restricted as a matter of law related to its
underlying purpose,9 GPS monitoring itself, however labeled,
contains no such inherent restriction.
Reasonable expectations depend on specific circumstances.10
As a rule the context, communications, and purposes related to
the defendant's consent are sufficiently determinative of
important rights under art. 14 to warrant an evidentiary
hearing.11 If the defendant asserts he was led reasonably to
tracking, does not implicate the more troubling aspects of this
self-perpetuating attribute of technology.
9
I consider analogies to case law involving prearrest
investigative searches or postconviction parole and probation
monitoring to have limited application to these circumstances.
Again, as a general matter, these do not involve consent.
10
The dissent asserts the invalidity of any consent to an
unconstitutional condition that is imposed as a provision of
pretrial release. Post at . I believe the reverse is
more accurate: the validity of the consent, based on reasonable
expectations, should be our first inquiry, as this is what
determines constitutionality in the first place. Moreover, it
has long been recognized that the decision to invoke or waive
constitutional rights may involve serious competing
disadvantages. See Commonwealth v. Means, 454 Mass. 81, 90
(2009); Commonwealth v. Beauchamp, 49 Mass. App. Ct. 591, 606-
608 (2000).
11
The majority correctly observes that the defendant bears
the burden of establishing a reasonable expectation of privacy.
Ante at . That does not necessarily lead to the
conclusion in a case of first impression that it would be
inappropriate for him to have the opportunity to do so at an
evidentiary hearing.
8
expect that his monitoring would be restricted in some fashion,
he has a legal right to present evidence on that point. But
that right is conditioned on a proffer of facts "that, if true,
would establish (1) that evidence was obtained through a search
or seizure for which the Commonwealth must prove probable cause,
reasonable suspicion, or consent to search; and (2) that the
defendant has standing to challenge the constitutionality of the
search or seizure." Commonwealth v. Mubdi, 456 Mass. 385, 389
(2010). Additionally, the defendant is required to provide
sufficient detail in the affidavit required under Mass.R.Crim.P.
13(a)(2), as appearing in 442 Mass. 1516 (2004), "so that the
prosecution may determine which witnesses it should call and
what evidence it should offer to meet its burden of proving
probable cause, reasonable suspicion, or consent." Mubdi,
supra, citing Costa v. Commonwealth, 440 Mass. 1003, 1004
(2003).
The defendant's affidavit is conclusory in nature. It
asserts only his own limited familiarity with GPS capability and
his expectations of the limited use to which GPS data would be
applied. He proffers neither communications with other
individuals, nor other facts or circumstances on which a claim
that those expectations are objectively reasonable can be based.
Finally, I note that the specific issue raised here can be
averted in future cases with a colloquy at the bail hearing and
9
detailed written notice, each explaining the scope of monitoring
that will be performed.
WOLOHOJIAN, J., dissenting. I agree with the concurrence
that our cases draw a distinction under art. 14 between the
seizure that occurs when a GPS device is attached (whether to a
person or an object) and the search that occurs by that device's
collection of data. Ante at . But regardless of whether
the initial physical intrusion constitutes a seizure or a
search, the government's collection of long-term historical
locational data is a search in which a person has an established
privacy interest recognized under both the Fourth Amendment and
art. 14. There is no case -- Federal or State -- that
concludes, as does the majority, that a person's consent to wear
or to carry a location-tracking device such as a GPS monitor or
a cell phone as a matter of law destroys his or her expectation
of privacy in the historical locational data collected by the
device. Ante at . Indeed, our art. 14 jurisprudence
concludes to the contrary. Consent to a physical seizure is not
ipso facto consent to a subsequent search, nor does consent to a
seizure entirely and necessarily destroy a person's privacy
interests in his whereabouts.
For these reasons, like the concurrence, I disagree with
the majority view that the defendant's consent to wear a GPS
device as a condition of pretrial release in and of itself
destroyed, as a matter of law, any subjective or objective
expectation of privacy in the data collected by the device
2
without regard to any other circumstance, including the duration
and scope of the search. Ante at . In my view, the
defendant's consent to GPS monitoring as a condition of pretrial
release did not extend beyond the judge's authority to impose
GPS monitoring as a reasonable pretrial condition as authorized
by the Legislature. Therefore, although the defendant's consent
operated to reduce his expectation of privacy in the GPS data to
the extent they would be searched to ensure compliance with the
stay-away conditions of his pretrial release, it did not operate
to eliminate his expectation of privacy in the long-term
historical GPS data unrelated to those conditions. Because the
defendant retained both a subjective and an objective
expectation of privacy in any search of the data that was not
tied to the pretrial conditions for which GPS monitoring was
permissibly imposed, and because the Commonwealth made no
showing that the defendant consented to any search of the GPS
data beyond those purposes, I respectfully dissent. In my view,
the motion to suppress should not have been denied without an
evidentiary hearing to determine whether there was probable
cause for the search of the historical GPS data; accordingly, I
would vacate the judgments and remand for such an evidentiary
hearing.1
1
I do not disagree with the majority that, taking the GPS
data into account, the evidence was sufficient to support the
3
I begin by drawing out some important factual and
procedural information from the record. The defendant's
arraignment in the Dorchester Division of the Boston Municipal
Court Department on domestic violence charges occurred on July
8, 2013, when GPS monitoring was imposed as a condition of his
pretrial release. The record is silent as to what -- if
anything -- the defendant was told about the GPS monitoring
before he consented to it. More specifically, there is nothing
to show or suggest that the defendant was told that the GPS
device would collect minute-by-minute data about his location
wherever he might be, including in his own home. Nor is there
any evidence that the defendant was told that the historical
data collected by the GPS device could or would be used for law
enforcement purposes, including the prosecution or investigation
of other, unrelated, crimes. Nor was he informed how long the
data would be retained.
Instead, the evidence shows only that the defendant
received and signed a court form containing the following
language:
"TO THE ABOVE NAMED DEFENDANT: You are hereby given the
following conditions of release by this court. . . .
"[X] GPS MONITORING (If condition is so ordered defendant
may NOT LEAVE THE STATE).
convictions. Ante at .
4
"[ ] STAY AWAY/NO CONTACT WITH THE FOLLOWING PERSONS
"[left blank]
"[X] STAY AWAY FROM THE FOLLOWING AREAS/LOCATIONS
(indicate addresses of above named individuals if
applicable -- all addresses will have a 600ft radius unless
otherwise ordered):
"[Nancy Jones's2 home in the Dorchester section of Boston]
"& [Nancy Jones]."
For reasons that are unexplained, Jones was not written in the
section of the form requiring that the defendant stay away from
particular persons. Yet the parties appear to accept, as do I,
that Jones is a person and not a place. The parties also appear
to accept, as do I, that the address listed in Dorchester is her
address. This reading of the form is certainly logical; after
all, the form requires that the address of any person from whom
the defendant is to stay away be disclosed. The form was
witnessed and countersigned by the chief probation officer,
Dierdre Kennedy.
That same day, the defendant and Kennedy both signed a
probation department electronic monitoring form entitled, "GPS
EQUIPMENT LIABILITY ACCEPTANCE FORM."3 This document likewise
2
A pseudonym.
3
The document bears the letterhead "THE COMMONWEALTH OF
MASSACHUSETTS, THE TRIAL COURT, OFFICE OF THE COMMISSIONER OF
PROBATION, ELECTRONIC MONITORING PROGRAM, 119 Chestnut Street,
Clinton, MA 01510, Phone #: 978-365-2970, email:
elmoclinton@jud.state.ma.us."
5
made no mention of the extent, duration, scope, or use of the
data that would be collected by the GPS device. Nor did it
inform the defendant that the data could or would be searched
for law enforcement purposes. Instead, the document was limited
to informing the defendant of his financial responsibility for
any physical damage to, or loss of, the GPS equipment.
The defendant's affidavit in support of his motion to
suppress averred that he "was not told that the GPS device would
monitor and keep track of all the places [he] went to while [he]
was wearing the device." Not only is this statement
uncontradicted, it is consistent with the contemporaneous court
and probation records. None of the documents pertaining to the
defendant's GPS monitoring state that the defendant would be
monitored constantly, nor do they say anything about the
purposes for which the GPS data would be collected, maintained,
or used.
Two months after the defendant's arraignment, Sarah
Dundon's home in West Roxbury was broken into. Apart from their
investigation at the scene on the day it was reported, the
police did not further pursue the matter, had no leads, and the
case went quiet. There is nothing to suggest that the police
suspected the defendant had anything to do with the break-in at
6
that time. There is also evidently no connection between Jones
and Dundon's home.
At some point later, potentially as late as the beginning
of November, police from Norfolk County conducting a different
criminal investigation requested that the probation department
review and analyze several months of historical locational data
captured by the defendant's GPS device. We have no information
about the nature of that investigation, but there is nothing to
suggest that it related to the locational conditions of the
defendant's pretrial release. Specifically, there is no reason
to think that the investigation related to Jones or her home.
As a result of the request from Norfolk County, Barbara
McDonough, an employee of the probation department electronic
monitoring program (ELMO),4 searched at least two months5 of
minute-by-minute historical locational data captured by the
defendant's GPS device. Notably, the data did not show that the
defendant had violated any of the locational (i.e., stay-away)
4
This is the same office that created, and entered into,
the GPS equipment monitoring liability acceptance form the
defendant (and the chief probation officer) signed when he was
arraigned.
5
McDonough's testimony suggests that a longer period was
examined, but the record does not reveal exactly how long the
defendant remained on the GPS monitoring system. In any event,
she investigated the defendant's minute-by-minute movements for
the period July 8, 2013 (when he went onto the GPS system) until
at least August 29, 2013 (when the break-in was committed).
7
restrictions of his pretrial release, and he is not accused of
having done so. However, McDonough noticed that the data placed
the defendant at a location in West Roxbury in the early hours
of the morning. Although she did not know the significance, if
any, of this information, she forwarded it to the West Roxbury
police in case it might prove useful. And so it proved, because
it connected the defendant to the break-in at Dundon's home a
few months earlier.
Because the judge unfortunately did not conduct an
evidentiary hearing on the motion to suppress, she did not have
the benefit of the following information, all of which bears on
the proper analysis of the constitutional interests at stake. I
set it out here because the evidence was put before the judge at
trial, when the defendant again moved for an evidentiary
hearing, and he renewed his motion to suppress after the close
of the Commonwealth's case, when it was again denied.
McDonough testified that she searched the defendant's
minute-by-minute movements for the entire period he was
monitored by the GPS system, namely from July 8, 2013, forward.
"Each day was a 24-hour investigation on him to see where he
was, until the time he came off the bracelet." See note 5,
supra. She reviewed several months' worth of historical data to
determine the defendant's location and movements at all times of
day and night, and overlaid the data on a map. The data
8
revealed not only the defendant's location, but also his speed
and direction. The data tracked the defendant into buildings,
including private residences. The historical GPS data is stored
(apparently indefinitely). Employees of ELMO provide historical
GPS data whenever law enforcement requests it without requiring
anything more.
Discussion. Under art. 14, the installation and use of a
GPS tracking device is a seizure, and "the monitoring and use of
data from GPS devices requires a warrant" supported by probable
cause. Commonwealth v. Connolly, 454 Mass. 808, 824 (2009).
See Grady v. North Carolina, 135 S. Ct. 1368, 1371 (2015) (GPS
monitoring "plainly designed to obtain information" by
physically intruding on subject's body" and is therefore Fourth
Amendment "search"). Both the Supreme Judicial Court and the
United States Supreme Court have held that the constitutional
concern when a location-tracking device is physically attached
to a person (or an object in which he has a possessory interest)
stems from the protection of property interests, although
members of both courts have grounded the constitutional concern
in expectations of privacy instead. See United States v. Jones,
565 U.S. 400, 405-412 (2012); Connolly, supra at 822-824.
Regardless of the root source of the concern, the pertinent
inquiry is whether the government has committed a search by
invading an individual's reasonable expectation of privacy
9
because "the Katz [v. United States, 389 U.S. 347 (1967)]
reasonable-expectation-of-privacy test has been added to, not
substituted for, the common-law trespassory test." Jones, supra
at 409.
Although neither the concurrence nor the majority appears
to dispute the point, it merits stating that under art. 14, a
person has a reasonable expectation of privacy that he will "not
. . . be subjected to extended GPS electronic surveillance by
the government, targeted at his movements, without judicial
oversight and a showing of probable cause."6 Commonwealth v.
Rousseau, 465 Mass. 372, 382 (2013). Even relatively short-term
GPS monitoring implicates privacy concerns because it "generates
a precise, comprehensive record of a person's public movements
that reflects a wealth of detail about her familial, political,
professional, religious, and sexual associations." Jones, 565
U.S. at 415 (Sotomayor, J., concurring). "In the context of GPS
monitoring, the expectation of privacy on which an individual
justifiably relies is that his comings and goings will not be
continuously and contemporaneously monitored except through
physical surveillance, which requires a far greater investment
of police resources and generates far less information than GPS
6
Similarly, under art. 14 there is no exception to the
warrant requirement for historical registration cell site
location information. Commonwealth v. Estabrook, 472 Mass. 852,
858 n.12 (2015).
10
monitoring." Connolly, 454 Mass. at 835 (Gants, J.,
concurring).
The reasonableness of an individual's privacy expectation
is directly tied to the length of time covered by the GPS data.
See Commonwealth v. Estabrook, 472 Mass. 852, 859 (2015) ("[T]he
salient consideration is the length of time for which a
person's" locational data is requested). When GPS "tracking
takes place over extended periods of time[,] . . . the
cumulative nature of the information collected implicates a
privacy interest on the part of the individual who is the target
of the tracking." Commonwealth v. Augustine, 467 Mass. 230, 253
(2014), S.C., 472 Mass. 448 (2015). On the other hand, there is
"some period of time for which the Commonwealth may obtain a
person's" historical locational data without a warrant "because
the duration is too brief to implicate the person's reasonable
privacy interest." Id. at 254. In the case of historical
locational data, the Supreme Judicial Court has assumed that a
six-hour period of data would not infringe upon a reasonable
expectation of privacy such that a warrant would be required,
whereas a two-week period clearly would. See id. at 254-255 &
n.37 (locational data from cell phones). See also Rousseau, 465
Mass. at 383-384 (GPS data). Accord Jones, 565 U.S. at 430
(Alito, J., concurring) (four-week period too long). Wherever
the line between longer-term and short-term might be drawn, we
11
are well beyond it in this case because at least two months'
worth of the defendant's historical GPS data was requested and
searched.
Under art. 14, the fact that an individual voluntarily
carries (or, in this case, wears) an electronic device that
transmits and/or collects detailed locational data does not mean
that, as a matter of law, he no longer has a reasonable
expectation of privacy in his whereabouts as reflected in that
data.7 The application of this proposition can be seen in both
Augustine, 467 Mass. 230, and Estabrook, 472 Mass. 852. In both
cases, the defendant voluntarily carried a cell phone that
captured and transmitted his locational data, and in both cases
the court nonetheless held that he retained a reasonable privacy
interest in the data collected. I find no support in our
art. 14 case law for the proposition that, as a matter of law, a
defendant's consent to wear a data-collecting device carries
with it a necessary and total relinquishment of his reasonable
expectation of privacy in the data the device collects or
7
The fact that GPS data or monitoring is involved does not
mean that we depart from the established principle that consent,
and its scope, are questions of fact to be determined from all
the facts and circumstances in which the consent is given. See,
e.g., Commonwealth v. Sanna, 424 Mass. 92, 97 (1997). The
Commonwealth bears the burden of proving consent, as it does for
all exceptions to the prohibition on warrantless searches.
12
transmits. I note that neither the majority nor the concurrence
cites to any such case.
For these reasons, I conclude that the defendant's consent
to wear a GPS device as a condition of pretrial release did not
extinguish his expectation of privacy in the long-term
historical GPS data, several months of which were searched for
the purpose of criminal investigation, as occurred here. See
Commonwealth v. Augustine, 472 Mass. 448 (2015). What is left,
therefore, is to ask whether the defendant's consent to be
subject to GPS monitoring as a condition of pretrial release
reduces to any degree his reasonable expectation to be free from
continuous government surveillance. For the reasons that
follow, I conclude that it does -- but only coextensive with a
judge's authority to impose GPS monitoring as a reasonable
pretrial condition within the purposes authorized by the
Legislature.8 To conclude otherwise would render the GPS
8
A judge has no inherent power to impose pretrial
conditions of release because "[t]he power to impose pretrial
conditions on release from custody is not essential to the
function of the judiciary." Commonwealth v. Dodge, 428 Mass.
860, 866 (1999). As a result, the judge's authority to impose
pretrial conditions on release derives from statute. See id. at
864. By contrast, a judge has the inherent authority to deny
bail "where bail will not reasonably assure the defendant's
appearance before the court" because "[t]he ability to secure a
defendant's presence at trial is of fundamental importance to
the basic functioning of the judiciary, without which justice
cannot be properly administered." Querubin v. Commonwealth, 440
Mass. 108, 114 (2003).
13
monitoring condition a punitive restraint on liberty, an outcome
that has been rejected in the analogous situation of GPS
monitoring as a condition of probation.9 See Commonwealth v.
Cory, 454 Mass. 559, 568-573 (2009).
A person cannot effectively consent to an unconstitutional
condition of pretrial release or to one that is outside the
authority of the judge to impose. The unconstitutional
conditions doctrine "vindicates the Constitution's enumerated
rights by preventing the government from coercing people into
giving them up." Koontz v. St. Johns River Water Mgmt. Dist.,
133 S. Ct. 2586, 2594 (2013). Thus, if on the facts presented,
GPS monitoring would be an excessive condition of pretrial
release under art. 26 of the Massachusetts Declaration of Rights
or would violate art. 14, then "the State could not
constitutionally require" the defendant to agree to it "and any
consent given would be ineffective." O'Connor v. Police Commr.
of Boston, 408 Mass. 324, 329 (1990). See Commonwealth v.
LaFrance, 402 Mass. 789, 791 n.3 (1988); Commonwealth v. Moore,
473 Mass. 481, 487 n.6 (2016). To conclude otherwise would mean
that a defendant "keen" to be released pretrial would be
impermissibly compelled "to accept a condition that would
9
If this is true for probationers, whose expectations of
privacy are lower, then it certainly must be true for those
released pretrial, such as the defendant.
14
unnecessarily and unreasonably limit his or her art. 14 privacy
rights." Moore, supra. If this is true for parolees, as in
Moore, then it is certainly true for the defendant here, who was
only a pretrial releasee.
No statute authorizes a judge to impose, as a pretrial
condition, GPS monitoring for general law enforcement purposes
or for purposes of criminal investigation. See G. L. c. 276,
§§ 42A, 58, 58A, & 87.10 At the time of the defendant's
arraignment, one statute permitted its imposition in cases of
domestic violence where, in a judge's discretion, it was
reasonable to "prevent [a defendant] from contact with the
abused." G. L. c. 276, § 42A, inserted by St. 1978, c. 447,
§ 5.11,12 See Commonwealth v. Pagan, 445 Mass. 315, 319-320
10
Under G. L. c. 276, § 87, a judge has the authority to
impose GPS monitoring on persons placed on pretrial probation.
See Emilio E. v. Commonwealth, 453 Mass. 1024, 1025 (2009),
citing Commonwealth v. Raposo, 453 Mass. 739, 748 n.10 (2009).
It bears stressing that the defendant was not placed on pretrial
probation.
11
As of August of 2014, the Legislature has also permitted
GPS monitoring to be imposed as a condition of pretrial release
in domestic violence cases where necessary "to ensure the
appearance of the person before the court and the safety of the
alleged victim, any other individual or the community." G. L.
c. 276, § 58, inserted by St. 2014, c. 260, § 32. This language
was not in effect when the defendant was arraigned. Even if it
had been, however, the outcome here would be no different
because the search was not conducted for that purpose.
12
Section 42A provides that, in cases of domestic violence
under c. 209A, the terms and conditions of pretrial release
"shall include reasonable restrictions on the travel,
15
(2005). However, the judge did not impose GPS monitoring
pursuant to that statute. Instead, the defendant's pretrial
conditions and bail were ordered under § 58, which specifies
that "[t]he preferred pretrial disposition is release on
personal recognizance," Mendonza v. Commonwealth, 423 Mass. 771,
774 (1996), unless, within the judge's discretion, the judge
determines "that such a release will not reasonably assure the
appearance of the person before the court." G. L. c. 276, § 58,
as appearing in St. 1995, c. 39, § 13.
Pretrial conditions must not be "excessive"13 when compared
with the "perceived evil" they are designed to address. United
States v. Salerno, 481 U.S. 739, 754 (1987). Thus, a judge's
authority to impose GPS monitoring is confined to the parameters
association or place of abode of the defendant as will prevent
such person from contact with the abused." G. L. c. 276, § 42A,
inserted by St. 1978, c. 447, § 5.
13
The Eighth Amendment to the United States Constitution,
and art. 26, which is at least as protective, see Michaud v.
Sheriff of Essex County, 390 Mass. 523, 533 (1983); Good v.
Commissioner of Correction, 417 Mass. 329, 335 (1994);
Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass.
655, 657 n.3 (2013), "provide that a defendant has a
constitutional right not to be subject to 'excessive' bail" or
pretrial conditions. Querubin v. Commonwealth, 440 Mass. 108,
112 n.4 (2003). To determine whether a particular pretrial
condition or set of conditions is "excessive, we must compare
that response against the interest the Government seeks to
protect by means of that response. Thus, when the Government
has admitted that its only interest is in preventing flight,
bail must be set by a court at a sum designed to ensure that
goal, and no more." United States v. Salerno, 481 U.S. 739, 754
(1987).
16
drawn by the Legislature and GPS monitoring cannot be imposed as
a pretrial condition if excessive to the harm it was meant to
address. See United States v. Polouizzi, 697 F. Supp.2d 381,
386-387 (E.D.N.Y. 2010) (mandatory GPS monitoring as condition
of bail unconstitutionally excessive). The defendant's consent,
in my view, is the other side of the coin. A defendant's
consent cannot be construed to exceed a judge's statutory
authority, but it can be construed to be coextensive with it.
Thus, provided pretrial GPS monitoring is imposed for the
purposes authorized by the Legislature, a defendant's consent to
such monitoring operates to reduce his reasonable expectation of
privacy in the GPS data collected to the extent they are
searched for purposes authorized by the bail statutes, but no
further.
We need not determine the exact parameters of that
reduction here because the Commonwealth has not shown that the
data were searched for any reason connected with the locational
(i.e., stay-away) conditions of the defendant's pretrial
release. Instead, the record undisputedly shows that the
historical GPS data were searched for ordinary law enforcement
purposes and investigation into other matters.
The majority places much weight on the fact that the
defendant was ordered to stay away from Jones, and that she
could be anywhere. Ante at . This is true. But it
17
leads nowhere because the Commonwealth has not shown, or argued,
that (1) the GPS data were searched for the purpose of
determining whether the defendant violated this (or any other)
condition of his pretrial release, or (2) Jones had any
connection to the house in West Roxbury that was broken into, or
for that matter, (3) she had any connection or relevance to the
investigation by police in Norfolk County who initiated the
search. Moreover, just because Jones might be anywhere, it does
not follow -- either as a matter of logic or law -- that the
defendant lost all expectation of privacy everywhere. The fact
that one person might be anywhere does not mean that another
loses his expectation of privacy everywhere.
The majority also rests upon the declaration that society
as a whole would not recognize as reasonable the defendant's
subjective belief that he retained a privacy interest in the
long-term data collected by the GPS device. Ante at .
The majority does not disclose the basis for this assertion. In
any event, empirical research does not support this view.
Kugler and Strahilevitz, Actual Expectations of Privacy, Fourth
Amendment Doctrine, and the Mosaic Theory, 2015 Sup. Ct. Rev.
205, 209-210 (2016).
I address briefly the Commonwealth's remaining arguments.
First, the Commonwealth's argument that the defendant had no
reasonable expectation of privacy in the GPS data because of his
18
status as one released pretrial is defeated by Moore, 473 Mass.
at 485, where the Supreme Judicial Court held that even parolees
(who have a lower expectation of privacy than those released
pretrial) retain an expectation (albeit diminished) of privacy.
The defendant's status is "salient," but not dispositive under
art. 14. Moore, supra. Second, the Commonwealth's argument
that the defendant had no reasonable expectation of privacy in
the GPS data because it was in the hands of a third party has
been rejected in Augustine, 467 Mass. at 245. In addition, the
GPS data was not in the hands of a third party. Rather, it was
in the hands of, and searched by, an employee of ELMO, a unit of
the probation department, and the entity with which the
defendant entered into the GPS equipment agreement. Third, to
the extent the Commonwealth is arguing that the search was
permissible under the special needs exception to the warrant
requirement, I note that the special needs doctrine applies only
when special needs "beyond the normal need for law enforcement"
outweigh "the individual's privacy expectations" and make it
"impractical to require a warrant or some level of
individualized suspicion in the particular context." O'Connor,
408 Mass. at 327, quoting from National Treasury Employees Union
v. Von Raab, 489 U.S. 656, 665 (1989). There is nothing to
indicate that the search of the defendant's historical GPS data
was conducted to further any program or need other than ordinary
19
criminal law enforcement, and so the doctrine does not apply on
this record. Finally, drawing an analogy to the six-hour
warrant exception for cell site location information, Augustine,
467 Mass. at 255 n.37, the Commonwealth argues that no warrant
was required. This argument is defeated by the record.14
For these reasons, I am of the view that the defendant's
motion to suppress should not have been denied without an
evidentiary hearing. Accordingly, I would vacate the judgments
and remand to determine "whether, in the particular
circumstances of this case, the Commonwealth is able to meet
th[e] warrant requirement through a demonstration of probable
cause." Commonwealth v. Augustine, 472 Mass. at 448. See
Augustine, 467 Mass. at 255 (probable cause required to search
historical cell site locational information).
14
It was the Commonwealth's, not the defendant's, burden to
establish that the scope of the warrantless search did not
exceed the six-hour limit of Augustine, supra.