Commonwealth v. Johnson

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SJC-12483

COMMONWEALTH vs. JAMIE B. JOHNSON.

Plymouth. September 5, 2018. - March 26, 2019.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.

Breaking and Entering. Larceny. Global Positioning System
Device. Constitutional Law, Search and seizure. Search
and Seizure, Probationer, Expectation of privacy.
Practice, Criminal, Motion to suppress, Probation.

Indictments found and returned in the Superior Court
Department on March 14, 2014.

A pretrial motion to suppress evidence was heard by
Cornelius J. Moriarty, II, J., and the cases were heard by
Jeffrey A. Locke, J.

The Supreme Judicial Court granted an application for
direct appellate review.

Timothy St. Lawrence for the defendant.
Gail M. McKenna, Assistant District Attorney (Brian S.
Fahy, Assistant District Attorney, also present) for the
Commonwealth.
Matthew Spurlock, Committee for Public Counsel Services,
for Committee for Public Counsel Services & another, amici
curiae, submitted a brief.
 2

Maura Healey, Attorney General, & Sarah M. Joss, Special
Assistant Attorney General, for Massachusetts Probation Service,
amicus curiae, submitted a brief.

KAFKER, J. Following a jury-waived trial, the defendant

was convicted of two counts of breaking and entering in the

daytime, G. L. c. 266, § 18; one count of breaking and entering

in the nighttime, G. L. c. 266, § 16; two counts of larceny over

$250, G. L. c. 266, § 30; and one count of larceny of $250 or

less, G. L. c. 266, § 30. At trial, the Commonwealth produced

evidence matching the time and location of these crimes to

historical global positioning system (GPS) location data

recorded from the GPS monitoring device (GPS device) that was

attached to the defendant as a condition of his probation.

Before trial, the defendant had moved to suppress this evidence,

arguing that the Commonwealth's act of accessing and reviewing

this GPS location data was an unreasonable search under the

Fourth Amendment to the United States Constitution and art. 14

of the Massachusetts Declaration of Rights. The motion was

denied.

On appeal, the defendant claims that (i) the motion judge

erred in denying his motion to suppress after concluding that

the Commonwealth did not commit a search in the constitutional

sense when it accessed the historical GPS location data recorded

from the defendant's GPS device without a warrant, and (ii) the
 3

evidence at trial was not sufficient to support the defendant's

convictions on the charge of breaking and entering in the

nighttime and one of the charges of larceny over $250.

For the reasons stated below, we conclude that although the

original imposition of GPS monitoring as a condition of the

defendant's probation was a search, it was reasonable in light

of the defendant's extensive criminal history and willingness to

recidivate while on probation. We also conclude that once the

GPS device was attached to the defendant, he did not possess a

reasonable expectation of privacy in data targeted by police to

determine his whereabouts at the times and locations of

suspected criminal activity that occurred during the

probationary period. Accordingly, no subsequent search in the

constitutional sense under either art. 14 or the Fourth

Amendment occurred. Finally, we conclude that the evidence

introduced at trial was sufficient to support the trial judge's

finding, beyond a reasonable doubt, that the defendant committed

the crimes of breaking and entering in the nighttime and both

charges of larceny over $250. We therefore affirm the motion

judge's denial of the motion to suppress and the defendant's

convictions.1

1 We acknowledge the amicus briefs submitted by the
Committee for Public Counsel Services and the American Civil
Liberties Union of Massachusetts and by the Massachusetts
Probation Service.
 4

Background. 1. Motion to suppress. We summarize the

facts as found by the judge who decided the motion to suppress,

supplementing those findings with undisputed facts from the

documentary evidence that was before the motion judge. See

Commonwealth v. Monroe, 472 Mass. 461, 464 (2015).

In April 2012, the defendant appeared in the District Court

for a probation violation hearing on four criminal dockets

stemming from his prior convictions of receipt of stolen

property and restraining order violations. The probation

surrender was based on new charges that included breaking and

entering and larceny from a building. After stipulating to the

probation violation, the defendant asked for an extension of his

probation subject to the added condition that he wear a GPS

device on his ankle. The hearing judge accepted the request and

ordered an extension of the defendant's probation for an

additional six months with the added condition of GPS

monitoring.

Between May and September 2012, while the defendant was on

probation and subject to GPS monitoring, several break-ins

occurred at homes in Hanson, Marshfield, and Pembroke.

Approximately one year after these break-ins, in September 2013,

the defendant was arrested near the scene of a separate break-in

in Randolph. Randolph police became aware that the defendant

had at one time been outfitted with a GPS device. Randolph
 5

police then contacted a Marshfield police detective and

suggested that she contact the probation department to review

the defendant's historical GPS location data records during the

approximate times of the unsolved break-ins. Marshfield police

and probation officers thereafter accessed the defendant's

historical GPS location data records and cross-referenced his

location with the times and locations of the break-ins. They

discovered that the defendant was at or near the scene of each

break-in at approximately the same time that each home was

broken into. The defendant was then indicted and charged with

multiple counts of breaking and entering and larceny.

Before trial, the defendant moved to suppress the

historical GPS location data, arguing that the Commonwealth's

act of accessing and reviewing this data without a warrant was

an unreasonable search in violation of the Fourth Amendment and

art. 14. The motion judge concluded that the Commonwealth's

conduct did not amount to a search in the constitutional sense

under either the Fourth Amendment or art. 14 and denied the

defendant's motion. The case then moved to trial.

2. The defendant's trial. One of the break-ins for which

the defendant was charged and convicted occurred at a home in

Marshfield on or about September 1, 2012. The defendant was

convicted of breaking and entering the home in the nighttime and

of larceny over $250. The defendant now appeals, arguing that
 6

there was not sufficient evidence to support the two convictions

related to this break-in. We recite the facts the trial judge

could have found with respect to these charges in the light most

favorable to the Commonwealth, reserving other details for

discussion when relevant to the issues raised. Commonwealth v.

Latimore, 378 Mass. 671, 676-677 (1979).

From August 31, 2012, to September 3, 2012, the homeowners

left their home to visit friends in New Hampshire. On September

3, 2012, the homeowners returned home; discovering broken glass

spread over the floor of their garage, they called local police.

They soon discovered that several pieces of jewelry,

approximately $400 in cash, and other sentimental items were

missing from their home.

During the August 31 to September 3 time frame, the

defendant's ankle was affixed with a GPS device as a condition

of probation.2 Evidence elicited at trial showed that while

wearing a GPS device, a probationer's location is recorded and

2 The defendant was regularly supervised by his probation
officer throughout his probationary period. The probation
officer testified that there were no indications that the global
positioning system (GPS) monitoring device had been tampered
with or was otherwise malfunctioning during the probationary
period. He further testified that in his experience, he had
never encountered an issue where a probationer's GPS device
erroneously recorded his or her location such that the probation
service's electronic monitoring program system showed that the
probationer was in a location that he or she had not actually
been.
 7

stored by the device once every minute. This recorded location

data is then transmitted to the probation service's electronic

monitoring program (ELMO) system once every hour. Once the

location data is uploaded to the ELMO system, it can be accessed

by probation officers and displayed on electronically generated

maps to pinpoint the probationer's location on a minute-by-

minute basis. If the probationer is stationary or moving slowly

when his or her location is recorded by the GPS device, a green

dot will appear on the map. Because the probationer's location

is recorded every minute, if a probationer remains stationary

for more than a few minutes, a cluster of green dots will appear

on the map. If the probationer is in motion when his or her

location is recorded by the device, however, a green arrow will

appear on the map to indicate the speed and direction of the

probationer's movement.

The defendant's GPS device transmitted location data to the

ELMO system, establishing that he was in the vicinity of the

home in question on the night of September 1, 2012, and early

morning of September 2, 2012. Specifically, a map generated by

the ELMO system showed several green arrows on the street in

front of the home, confirming that the defendant was traveling

on that street at approximately 9:23 and 9:51 P.M. on September

1. The map also placed the defendant, represented by a single

green dot, directly in front of, if not on, the property on
 8

September 1. An additional map generated by the ELMO system

revealed that the defendant was near the home just after

midnight on September 2, 2012, and showed a cluster of green

dots directly on and around the home that same day.

At the close of trial, the judge found the defendant guilty

of the charges of breaking and entering that home in the

nighttime and of larceny over $250. The defendant moved for

required findings of not guilty on these charges, but was

denied. The defendant appealed from this denial, and we granted

his application for direct appellate review.

Discussion. 1. Motion to suppress. On appeal, the

defendant challenges the Commonwealth's act of accessing the

historical GPS location data recorded from his GPS device,

arguing that the retrieval and review of this data without a

warrant was an unreasonable search under the Fourth Amendment

and art. 14. Ordinarily, in reviewing a ruling on a motion to

suppress, we accept the motion judge's "subsidiary findings of

fact absent clear error," but we "review independently the

application of constitutional principles to the facts found"

(citation omitted). Commonwealth v. Mauricio, 477 Mass. 588,

591 (2017). However, we review any factual "findings of the

motion judge that were based entirely on the documentary

evidence" de novo. Monroe, 472 Mass. at 464, quoting

Commonwealth v. Thomas, 469 Mass. 531, 539 (2014). Because the
 9

motion judge here conducted a nonevidentiary hearing at which

the evidence was stipulated, "we are in the same position as the

motion judge" to assess the documentary evidence put forward by

the parties.3 Monroe, supra, quoting Thomas, supra at 535 n.4.

See Commonwealth v. Tremblay, 480 Mass. 645, 654-655 (2018) ("We

now affirm the principle that an appellate court may

independently review documentary evidence, and that lower court

findings drawn from such evidence are not entitled to

deference").

The Fourth Amendment and art. 14 protect individuals from

"unreasonable searches" and "seizures." For the protections of

either the Fourth Amendment or art. 14 to apply, however, the

Commonwealth's conduct must constitute a search in the

constitutional sense. Commonwealth v. Magri, 462 Mass. 360, 366

(2012). In its most traditional form, a search occurs when "the

Government obtains information by physically intruding on a

constitutionally protected area" (citation omitted). Grady v.

North Carolina, 135 S. Ct. 1368, 1370 (2015) (per curiam). A

search in the constitutional sense may also occur, however,

"when the government's conduct intrudes on a person's reasonable

3 The documentary evidence before the motion judge here
included the factual record that was stipulated to at the
nonevidentiary hearing, the documents attached to the motion to
suppress, and the Commonwealth's memorandum in opposition
thereto, which included an affidavit from the defendant and
various court and probation records.
 10

expectation of privacy." Commonwealth v. Augustine, 467 Mass.

230, 241 (2014), S.C., 470 Mass. 837 and 472 Mass. 448 (2015).

See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,

concurring). An individual has a reasonable expectation of

privacy (i) if the individual has "manifested a subjective

expectation of privacy in the object of the search," and (ii) if

"society is willing to recognize that expectation as reasonable"

(citation omitted). Augustine, supra at 242. The defendant

bears the burden of establishing that the governmental conduct

violated his or her reasonable expectations of privacy.

Commonwealth v. Miller, 475 Mass. 212, 219 (2016).

In the instant case, we must analyze the constitutionality

of both the initial imposition of GPS monitoring for the

purposes of probation and the police's subsequent review of the

historical GPS location data for investigatory purposes after

the defendant's probationary period had expired. For the

reasons set forth infra, we conclude that although the initial

imposition of the GPS monitoring for probationary purposes was a

search in the constitutional sense under the Fourth Amendment

and art. 14, it was a reasonable one. We also conclude that the

police's subsequent act of accessing and reviewing the

historical GPS location data after the defendant's probationary

period had expired to determine whether he was present at the

general time and place of particularly identified crimes did not
 11

constitute a search under either the Fourth Amendment or art.

14, because the defendant had no reasonable expectation of

privacy in this data.

a. The power and potential of GPS technology. As

explained supra, a search in the constitutional sense may occur

"when the government's conduct intrudes on a person's reasonable

expectation of privacy." Augustine, 467 Mass. at 241. This

court and the United States Supreme Court have recognized the

difficulty of defining expectations of privacy that are

implicated by novel applications of new technologies. Both

courts have emphasized, however, that privacy rights cannot be

left at the "mercy of advancing technology" but rather must be

preserved and protected as new technologies are adopted and

applied by law enforcement. See, e.g., Kyllo v. United States,

533 U.S. 27, 35 (2001) (prohibiting law enforcement's

warrantless use of thermal imaging device to look into home so

as not to leave privacy rights "at the mercy of advancing

technology"); Olmstead v. United States, 277 U.S. 438, 473

(1928) (Brandeis, J., dissenting) (noting that courts must be

vigilant to guard against "[s]ubtler and more far-reaching means

of invading privacy [that] have become available to the

government"); Augustine, supra at 250-251 (restricting law

enforcement's use of cell site location information [CSLI] to

track individuals due to intrusion of privacy interests). We
 12

are now tasked with addressing these concerns in the context of

law enforcement's use of a probationer's GPS location data for

investigatory purposes.

As this court and the Supreme Court have held in recent

years, there is no question that the government's extensive

collection and examination of personal location data can intrude

on an individual's reasonable expectation of privacy, at least

for an individual who is not a probationer. The Supreme Court

has emphasized in the Fourth Amendment context that individuals

have a reasonable expectation of privacy in a detailed

comprehensive documentation of their physical movements over an

extended period of time due to the amount of sensitive and

private information that can be gleaned from this data.

Carpenter v. United States, 138 S. Ct. 2206, 2217, 2218 (2018)

("individuals have an expectation of privacy in the whole of

their physical movements"). The same is true under art. 14.

See Augustine, 467 Mass. at 253; Commonwealth v. Rousseau, 465

Mass. 372, 382 (2013). Much less clear, however, is how such

decisions apply to probationers who have GPS devices attached to

them as a condition of probation.

As is the case when an individual carries a cellular

telephone or has a GPS device attached to his or her vehicle, a

probationer's precise location is continuously tracked while he

or she is wearing a GPS device as a condition of probation. See
 13

Augustine, 467 Mass. at 253; Rousseau, 465 Mass. at 382.

Because law enforcement cannot similarly and continually track a

probationer's location and monitor them in real time, or at

least do so without extraordinary expense, the historical GPS

location data gives probation officers and police "access to a

category of information otherwise unknowable." Carpenter, 138

S. Ct. at 2217-2218. See United States v. Jones, 565 U.S. 400,

415-416 (2012) (Sotomayor, J., concurring). See also Carpenter,

supra at 2218 ("With just the click of a button, the Government

can access . . . [a] deep repository of historical location

information at practically no expense"). The nature and extent

of this GPS location data yields a "treasure trove of very

detailed and extensive information about the individual's

'comings and goings'" for law enforcement. Augustine, supra at

251. See Jones, supra at 415 (Sotomayor, J., concurring) ("GPS

monitoring generates a precise, comprehensive record of a

person's public movements . . ."). This is particularly true

where the tracking takes place over a long period of time.

Augustine, supra at 253 ("when . . . 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").

In cases of an extended probationary period, the

Commonwealth is able to collect and archive an enormous volume
 14

of location data.4 With this location data at its disposal, the

Commonwealth could conceivably reconstruct a complete mapping of

a probationer's movements throughout the probationary period if

it chose to do so. See Carpenter, 138 S. Ct. at 2217. In so

doing, the Commonwealth would be able to discover an extensive

amount of sensitive and private information about a

probationer's life. See id.; Augustine, 467 Mass. at 248-249.

As the Supreme Court recently explained in Carpenter, supra at

2217, in the context of CSLI, location records "hold for many

Americans the privacies of life" and "provide[] an intimate

window into a person's life, revealing not only his [or her]

particular movements, but through them his [or her] familial,

political, professional, religious, and sexual associations"

(quotations and citations omitted).

With this understanding of the power and the potential of

this technology, we turn to the particular legal issues

presented by the attachment of a GPS device to a probationer

with a lengthy criminal history as a condition of probation, and

to the subsequent act of accessing and reviewing this location

data by the police after the expiration of his or her

probationary period.

4 In the defendant's case, the probationary period was six
months.
 15

b. Imposition of GPS monitoring as a condition of

probation. In 2015, in Grady, the United States Supreme Court

held that a search under the Fourth Amendment occurs when the

government "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. There, the Court

considered the constitutionality of a North Carolina statute

that required recidivist sex offenders to be subjected to GPS

monitoring. Id. at 1369. After determining that the GPS

monitoring was "plainly designed to obtain information," and did

so by "physically intruding on a subject's body," the Court

concluded that it was a search under the Fourth Amendment. Id.

at 1371. Imposing GPS monitoring as a condition of probation is

also a search in the constitutional sense under art. 14.

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

the Commonwealth conducted a search of the defendant when the

GPS monitoring condition was imposed on the defendant in this

case.5 See Grady, supra at 1371; Feliz, supra.

5 Neither the defendant nor the Commonwealth addresses
whether the initial imposition of the GPS monitoring as a
condition of probation was a search in the constitutional sense
on appeal. As this initial search is interconnected with the
subsequent accessing of the data by the police, as both a
practical and a legal matter, we must analyze both. The record
on appeal is sufficient to allow us to exercise our discretion
to address this issue. Mass. R. A. P. 16 (a) (9) (A), as
appearing in 481 Mass. 1628 (2019). See Canter v. Commissioner
of Pub. Welfare, 423 Mass. 425, 432 (1996).
 16

As the Grady Court also explained, such a search is

constitutional only if it was reasonable. Grady, 135 S. Ct. at

1371. See Feliz, 481 Mass. at ; Commonwealth v. Entwistle,

463 Mass. 205, 213 (2012), cert. denied, 568 U.S. 1129 (2013)

("the ultimate touchstone of . . . art. 14 is reasonableness"

[quotation and citation omitted]). Article 14 requires an

"individualized determination" of the reasonableness of

subjecting a defendant to GPS monitoring as a condition of

probation. Feliz, supra at . In making this determination,

courts must balance "the Commonwealth's need to impose GPS

monitoring against the privacy invasion occasioned by such

monitoring." Feliz, supra at . See Grady, supra. Courts

may consider a "constellation of factors," including, among

others, the intrusiveness of the search; the defendant's

particular circumstances, such as his or her criminal

convictions, past probation violations, or risk of recidivism;

and the probationary purposes, if any, for which the monitoring

was imposed. Feliz, supra at (analyzing goals of probation

and defendant's likelihood to recidivate in balancing test).

See Grady, supra (noting that reasonableness depends on "the

totality of the circumstances"). No single factor, however, is

dispositive in every case. Feliz, supra at .

Prior to the imposition of GPS monitoring as a condition of

his probation, the defendant in this case was on probation for
 17

several convictions, including receiving stolen property and

restraining order violations. The defendant thereafter violated

his probation when he was charged with breaking and entering in

the nighttime and larceny from a building. At the probation

violation hearing, the defendant stipulated to the violations

and requested that he be subject to GPS monitoring in an effort

to avoid incarceration. The judge extended his probation for

six months and ordered the GPS monitoring. At the hearing, the

judge was clearly concerned about the defendant's likelihood to

recidivate in the future. Specifically, the judge ordered the

defendant to be held pending the installation of the GPS device

to his ankle because the judge was "not comfortable" releasing

the defendant to the public until it was determined when he

could be "hooked up" with the GPS device and tracked.

In light of the defendant's criminal convictions, and past

probation violations, the record makes clear that GPS monitoring

was imposed on the defendant for the legitimate probationary

purposes that this court and the Supreme Court have previously

identified. See United States v. Knights, 534 U.S. 112, 120-121

(2001); Feliz, 481 Mass. at ; Commonwealth v. Lapointe, 435

Mass. 455, 459 (2001). These include deterring the probationer

from engaging in criminal activity and detecting such criminal

activity if it occurs. See Knights, supra; Lapointe, supra;

Commonwealth v. Power, 420 Mass. 410, 415 (1995), cert. denied,
 18

516 U.S. 1042 (1996). Although we have recognized that the

imposition of GPS monitoring as a condition of probation

significantly burdens a probationer's liberty, Feliz, supra

at , we conclude that the intrusiveness of the GPS monitoring

condition imposed on the defendant-probationer's already

diminished privacy expectations6 was outweighed by the

governmental interests served by such monitoring, including but

not limited to the deterrence and detection of criminal activity

during the probationary period. Accordingly, the defendant's

particular circumstances rendered the imposition of GPS

monitoring as a condition of his probation for six months

reasonable under the Fourth Amendment and art. 14. Cf. Belleau

v. Wall, 811 F.3d 929, 936-937 (7th Cir. 2016) (mandatory

imposition of GPS monitoring for probationer pursuant to statute

reasonable where defendant was recidivist sex offender).

Contrast Feliz, supra at (GPS monitoring condition

unreasonable in defendant's particular circumstances where,

among other factors, Commonwealth presented insufficient

evidence that defendant posed threat of "reoffending, or

otherwise of violating the terms of his probation").

6 Both this court and the United States Supreme Court have
previously recognized that a probationer has a diminished
expectation of privacy. See United States v. Knights, 534 U.S.
112, 119 (2001); Commonwealth v. Moore, 473 Mass. 481, 485
(2016). See also part 2.c.ii, infra (discussing diminished
expectations of privacy held by probationers).
 19

c. Law enforcement's subsequent access to historical GPS

location data. Having found the condition of probation

subjecting the defendant to GPS monitoring for six months to be

a reasonable search, we next address the constitutionality of

the Commonwealth's subsequent act of accessing the historical

GPS location data recorded from the defendant's GPS device. The

Commonwealth's retrieval and review of this historical data

requires a separate constitutional inquiry under the Fourth

Amendment and art. 14 because it was conducted by the police,

not the probation service, for investigatory, rather than

probationary, reasons. It was also conducted after the

defendant's probationary period had ended.

This type of governmental conduct is distinct from the

periodic review of a probationer's GPS location by probation

officials. The decision to review the GPS location data was

not, for example, the result of the defendant entering an

exclusionary zone, which would trigger an alert to a probation

official. Nor was this a review of the defendant's location by

a probation official to ensure compliance with any of the

defendant's other conditions of probation. Rather, the review

here was undertaken on the basis of law enforcement's hunch that

the defendant may have been responsible for various unsolved

housebreaks that took place in the preceding months.

Accordingly, it requires a separate constitutional analysis.
 20

i. Subjective expectation of privacy. To claim a

reasonable expectation of privacy, the defendant must first

"manifest[] a subjective expectation of privacy in the object of

the search" (citation omitted). Augustine, 467 Mass. at 242.

The defendant here requested and agreed to the GPS monitoring as

a condition of his probation. He also averred in his affidavit

in support of his motion to suppress that he was told that "the

purpose of the GPS bracelet was to ensure that [he] did not

enter any exclusionary zones."7 At minimum, the defendant knew

that he was subject to GPS monitoring and that his location

could be broadcast to probation officials under certain

circumstances.8

7 As previously explained, the defendant was subjected to
GPS monitoring following a probation violation hearing on four
criminal dockets, including two restraining order violations.
It is not clear from the record, however, that the defendant's
probationary conditions, at least in this case, included any
exclusionary zones. Indeed, the probation violation hearing and
the order of probation conditions make no mention of any
exclusionary zones, other than a handwritten notation on the
order stating "No abuse of J." The section of the order dealing
with "stay away" provisions was left blank. It does appear,
however, that the defendant was at one point subjected to an
exclusionary zone for a separate probationary term. See
Commonwealth v. Johnson, 91 Mass. App. Ct. 296, 298 (2017).

8 We note, however, that the defendant's probation records
fail to detail the extent of the GPS monitoring or explain the
purposes for which the GPS location data would be recorded,
retained, and used by law enforcement, including after his
probationary period. Rather, these probation records merely
note that the defendant would be subjected to GPS monitoring
generally. For instance, the order of probation conditions,
which was signed by the defendant, simply includes the
 21

What the defendant subjectively understood his expectation

of privacy to be while wearing the GPS device in this case is

not perfectly clear. Whether he could plausibly argue that he

did not understand that the purpose of the GPS device was to

deter and detect his uninvited presence in other people's homes

is not worth belaboring, however, as we conclude that he could

have no objectively reasonable expectation of privacy in the

historical GPS location data that was accessed and used by the

Commonwealth here.

ii. Objective expectation of privacy. Even assuming that

the defendant had a subjective expectation of privacy, the

expectation must be one that society is willing to recognize as

reasonable for the protections of the Fourth Amendment and art.

14 to apply. Augustine, 467 Mass. at 242. The defendant's

status as a probationer is "salient" to this evaluation.

Commonwealth v. Moore, 473 Mass. 481, 485 (2016). See Knights,

534 U.S. at 119. By virtue of being on probation, a probationer

is subject to regular government supervision and thus can

neither enjoy the same amount of liberty nor reasonably expect

the same amount of privacy as an ordinary citizen. See Knights,

supra. Accordingly, this court and the Supreme Court have

recognized that, although probationers do not give up all

sentencing judge's handwritten notation, "GPS 6 Mo[nths]," as a
special condition of probation.
 22

expectations of privacy while on probation, their expectations

are significantly diminished. See id.; Moore, supra.

The defendant here was of course not just on probation; he

was on probation with the added condition of GPS monitoring

because he had stipulated to violating his original sentence of

probation after he was charged with breaking and entering and

larceny while on probation. The defendant was thus on notice

that GPS monitoring was imposed as a result of the defendant's

criminal activity while on probation and the judge's concern

over the defendant's demonstrated risk of recidivism. Any such

defendant-probationer would therefore objectively understand

that his or her person and movements were being recorded by the

GPS device and monitored by the Commonwealth to ensure

compliance with probationary conditions and to deter him or her

from committing future crimes while wearing the GPS device.

This understanding further diminished any objective expectation

of privacy he might have had in his whereabouts, at least during

the probationary period. Knights, 534 U.S. at 119-120 (privacy

expectations diminished where probationer aware of condition of

probation subjecting him to government monitoring). As the

dissent appropriately recognizes, the defendant's subsequent

decision to break and enter peoples' homes while wearing the GPS

device in these circumstances took tremendous "chutzpah." Post

at .
 23

The Legislature has also provided for police access to

probation information in G. L. c. 276, § 90, which states, in

pertinent part, that a probation officer's records may "at all

times be inspected by police officials of the towns of the

commonwealth." G. L. c. 276, § 90. The statute thus provides

an express, and apparently unlimited, authorization for law

enforcement to review probation records, including the

historical GPS location data recorded from a probationer's GPS

device. See id. See also G. L. c. 276, § 100. The motion

judge principally relied on this statute in reaching his

conclusion that the defendant did not have an objectively

reasonable expectation of privacy in the GPS location data

recorded from the GPS device. The Commonwealth similarly argues

that because the Legislature has authorized the police to

inspect a probationer's records, the probationer has no

objective expectation of privacy in any information contained

therein. Although the statute informs our analysis of the

objective expectation of privacy probationers may have in the

GPS location data recorded from their GPS devices, it does not

end our inquiry. We must, as always, provide an independent

review of the constitutionality of the governmental conduct that

is authorized by statute. Commonwealth v. Blood, 400 Mass. 61,

75 (1987) ("the historic fact of the Legislature's choice does
 24

not relieve us of our constitutional obligation to review the

validity of a search . . . in light of art. 14").9

The defendant contends that the Commonwealth's retrieval

and review of the historical GPS location data intruded on his

objective expectation of privacy because the Commonwealth

accessed a broad and extensive accumulation of location data

that spanned a period of several months. Analogizing his

circumstances to those present in recent cases involving

governmental use of location records outside the probation

context, such as CSLI, the defendant argues that in accessing

the GPS location data recorded from his GPS device, the

Commonwealth was exposed to an enormous amount of sensitive

information that could provide an "intimate window" into his

9 General Laws c. 276, § 90, was enacted in 1880 and was
last amended in 1938. G. L. c. 276, § 90, as amended through
St. 1938, c. 174, § 3. See St. 1880, c. 129, §§ 1, 5. The
state of technology at the time meant that the enacting
Legislature had no opportunity to evaluate the privacy interests
that may now be implicated by the recording and storing of long-
term historical GPS location data. See Commonwealth v.
Augustine, 467 Mass. 230, 245 (2014), S.C., 472 Mass. 448 (2015)
("the digital age has altered dramatically the societal
landscape"). See also United States v. Jones, 565 U.S. 400, 415
(2012) (Sotomayor, J., concurring) ("the same technological
advances that have made possible [law enforcement's]
nontrespassory surveillance techniques will . . . shap[e] the
evolution of societal privacy expectations"). As stated supra,
we must reconsider older statutes in light of new technologies
to ensure that privacy rights are not left at "the mercy of
advancing technology." Kyllo v. United States, 533 U.S. 27, 35
(2001). See Olmstead v. United States, 277 U.S. 438, 473 (1928)
(Brandeis, J., dissenting); Augustine, supra at 250-251.
 25

life. See Carpenter, 138 S. Ct. at 2217-2218. We recognize and

respect the significant privacy concerns raised by the

continuous recording, collection, and accumulation of location

data described by the defendant. See id.; Augustine, 467 Mass.

at 251-253. That being said, our task is to determine whether

an individual's expectation of privacy is one that society is

willing to recognize as reasonable. Augustine, supra at 242.

There is no question that the reasonableness of any expectations

of privacy held by a probationer knowingly subject to GPS

monitoring as a condition of probation is far different from the

reasonableness of the expectations of privacy held by

individuals who are surreptitiously tracked by law enforcement.10

As explained supra, the defendant was subjected to GPS

monitoring after he stipulated to having been charged with

engaging in criminal activity while serving his original

probation sentence. Under these circumstances, a probationer

subject to GPS monitoring as a condition of probation would

certainly objectively understand that his or her location would

be recorded and monitored to determine compliance with the

conditions of probation, including whether he or she had engaged

in additional criminal activity, to deter the commission of such

offenses, and that police would have access to this location

10 The dissent minimizes this important distinction. Post
at .
 26

information for that purpose.11 General Laws c. 276, § 90, which

serves the legitimate, even compelling, governmental purpose of

detecting and determining whether a probationer engaged in

criminal activity during the probationary period, confirms that

objective understanding by expressly providing for police access

to this data. This governmental interest in detecting and

determining whether a probationer had engaged in criminal

activity during his probationary period does not disappear once

the probationary period ends. Indeed, criminal activity that

occurred during the probationary period is of particular concern

to the Commonwealth, as it reflects the recidivist nature of the

probationer. This is true regardless of whether the criminal

activity is detected during or after the probationary period.

Accordingly, as opposed to nonprobationers who have their GPS,

CSLI, or other precise location information recorded and

reviewed by law enforcement without their knowledge, the

defendant could not reasonably expect that his whereabouts while

subject to GPS monitoring, particularly his whereabouts at the

time and place of criminal activity, would remain private from

11As explained supra, the dissent appears to acknowledge
this point to some extent, characterizing the defendant's
willingness to break into homes while wearing a GPS monitoring
device as a condition of probation as a "jaw-dropping act of
audacity." Post at .
 27

government eyes.12 The defendant therefore could have no

reasonable expectation of privacy in the data accessed by the

police here to target criminal activity during the probationary

period, even where the data was accessed after the probationary

period ended.13

Moreover, the Commonwealth's conduct did not amount to the

same type of conduct we have identified in other contexts as

intruding on an individual's reasonable expectation of privacy

12We do not, as the dissent argues, suggest that a
defendant "forfeits his [or her] expectation of privacy" upon
notice of government surveillance. Post at note 4. Although
notice is a relevant consideration, see Matter of a Grand Jury
Subpoena, 454 Mass. 685, 689 (2009), we are in no way saying
that it is dispositive. Whether notice of surveillance is given
or not, the controlling question remains whether the expectation
of privacy is one that society would call reasonable. See
Hudson v. Palmer, 468 U.S. 517, 525 n.7 (1984). Here, as
explained supra, we conclude that it is not.

13The dissent argues that whatever diminished expectation
of privacy the defendant had in the GPS data during probation
"would have changed the day he completed his sentence." Post
at . On that day, according to the dissent, he was not only
no longer on probation, but he recovered an undiminished right
to privacy in this data retroactively, as if he had never been
on probation. This is incorrect. As explained supra, the
principal purposes of the original imposition of GPS monitoring
as a condition of probation are to rehabilitate the defendant,
deter and detect criminal activity, and protect the public.
Society would not consider it reasonable for a probationer to
expect that evidence that he or she committed crimes during the
probationary period could not be shared with law enforcement,
even after the probationary period had ended, to determine
whether he or she did in fact commit the crimes. Cf. Matter of
a Grand Jury Subpoena, 454 Mass. at 689 n.6 (prison officials
permitted to share recordings of inmate telephone calls with law
enforcement).
 28

in his or her whereabouts. See Augustine, 467 Mass. at 253

(CSLI); Rousseau, 465 Mass. at 382 (GPS tracking of motor

vehicle). The record does not describe law enforcement engaged

in an effort to map out and analyze all of the defendant's

movements over the six-month probationary period. Nor does the

Commonwealth appear to have, as the defendant argues on appeal,

"rummaged through five months' worth of . . . locational data to

find and trace every move [the defendant] made" during his

probationary period. Rather, as the defendant recognized in his

motion to suppress, the Commonwealth reviewed the defendant's

historical GPS location data to determine whether he was present

at the general times and locations when various unsolved break-

ins may have occurred.14 This is corroborated by the motion to

14The dissent disputes this. Post at . Citing "the
uncontroverted statements in the defendant's memorandum in
support of his motion to suppress," the dissent argues that the
defendant's minute-by-minute movements over a period of months
were reviewed by law enforcement. Id. at . This, the
dissent argues, surely intruded on the defendant's reasonable
expectation of privacy. Although the motion judge's findings of
fact on this issue do not make this point clear, the dissent
overstates the record in this case. Indeed, by the defendant's
very own uncontroverted admission in his motion to suppress, the
Commonwealth examined the defendant's location "at certain times
[on] certain days" to determine if he was at the location of
known criminal activity. Recognizing that the record does not
support its position, the dissent looks to information outside
of the record. Specifically, the dissent cites to an exhibit
entered in evidence at trial and a summary of the trial
testimony of a probation official of her conduct in a separate
case as support for an inference that law enforcement intruded
upon a reasonable expectation of privacy. This information,
 29

suppress record, which appears to show that the GPS location

data actually accessed and reviewed by the Commonwealth was

targeted to the task at hand. The record before the motion

judge, and provided to us on appeal, thus describes law

enforcement accessing and analyzing the defendant's GPS location

data with respect to the general times and locations of

suspected criminal activity, particularly unsolved break-ins in

however, was not before the motion judge when he considered the
defendant's motion to suppress.

It is well established that in reviewing a denial of a
motion to suppress, an appellate court may not consider evidence
outside the factual record that was put before the motion judge.
See Commonwealth v. Rivera, 441 Mass. 358, 367 (2004) ("Evidence
adduced at trial but not before the motion judge . . . cannot be
determinative of the propriety of the motion judge's decision"
[citation omitted]); Commonwealth v. Taylor, 383 Mass. 272, 280
n.9 (1981) ("we must judge the motion to suppress solely on the
record made at the suppression hearing"); Commonwealth v.
Wojcik, 358 Mass. 623, 631 (1971) ("Statements in a brief or
oral argument cannot be used as a means of placing before this
court any facts which are not included in the record on
appeal"). Accordingly, we may not properly consider this
information on appeal. Even had it been included in the record,
much of the evidence cited by the dissent was not provided to us
on appeal. See Chokel v. Genzyme Corp., 449 Mass. 272, 279
(2007) ("It is [the appellant's] obligation to include in the
record appendix any documents on which he [or she]
relies . . . . When a party fails to include a document in the
record appendix, an appellate court is not required to look
beyond that appendix to consider the missing document"). The
defendant had the burden of proving that the Commonwealth's
conduct violated a reasonable expectation of privacy.
Commonwealth v. Miller, 475 Mass. 212, 219 (2016). The
defendant here failed to meet this burden with the record as it
existed before the motion judge. An appellate court cannot
relitigate a motion to suppress on his behalf with materials
outside the record.
 30

Hanson, Marshfield, and Pembroke. Simply comparing subsets of

the defendant's GPS location data recorded while he was on

probation to the general times and places of suspected criminal

activity during the probationary period is not a search in the

constitutional sense. At least in other contexts, society has

not recognized a probationer's purported expectation of privacy

in information that identifies his or her presence at the scene

of a crime as a reasonable one. Cf. Commonwealth v. Arzola, 470

Mass. 809, 816, 820 (2015), cert. denied, 136 S. Ct. 792 (2016)

(deoxyribonucleic acid [DNA] analysis of bloodstain found on

defendant's shirt did not amount to search because Commonwealth

performed narrow analysis that avoided "reveal[ing] more

information than the identity of the source"); Boroian v.

Mueller, 616 F.3d 60, 67-68 (1st Cir. 2010) (retention and

subsequent use of DNA profiles only to match against other

profiles in criminal database after probationary period expired

did not "violate an expectation of privacy that society is

prepared to recognize as reasonable").

We also understand that even a targeted review of GPS data

directed at times and locations of suspected criminal activity

during a probationary period will likely expose the police to

some other information concerning the defendant's whereabouts

during the relevant time periods. Cf. Knights, 534 U.S. at 119-

121 (discussing diminished expectations of privacy held by
 31

probationers). This is, however, quite different from either

mapping out and reviewing all of the defendant's movements

while on probation or rummaging through the defendant's

historical GPS location data indiscriminately. So long as the

review is targeted at identifying the defendant's presence at

the time and location of particular criminal activity during the

probationary period, it is not a search, as such review is

consistent with a probationer's limited expectations of privacy.

See id. Police action necessary to deter and detect criminal

activity during the probationary period is reasonably expected.

See G. L. c. 276, § 90.

In sum, this case is not, as the defendant argues, one in

which the police, after his probation had expired, mapped out

months of the defendant's historical GPS location data in a

coordinated effort to recreate a full mosaic of his personal

life, over an extended and unnecessary period of time, that

would have revealed, in the words of the United States Supreme

Court, "not only his particular movements, but through them his

[or her] familial, political, professional, religious, and

sexual associations" (quotation and citation omitted).

Carpenter, 138 S. Ct. at 2217. Nor it is a case of

indiscriminate rummaging through six months of data. Those

circumstances might raise different, more difficult

constitutional questions about objective expectations of
 32

privacy, even for a probationer subjected to GPS monitoring. We

need not, and do not, decide that question today. According to

the record before the motion judge, the police here instead

targeted their analysis to whether the defendant -- a

probationer with significantly diminished expectations of

privacy in his whereabouts while on probation -- was present at

the general times and locations of crimes committed during his

probationary period. Such a review of the probationer's GPS

location data, even if it may have revealed the presence of some

lawful activities, did not intrude on any privacy expectations

that society would be willing to recognize as reasonable.

Accordingly, on the record put before the motion judge, the

defendant has failed to make a showing that the Commonwealth

intruded on any reasonable expectation of privacy he might have

had in this data once the GPS was imposed as a condition of

probation. The Commonwealth therefore did not commit a search

in the constitutional sense under the Fourth Amendment or art.

14 when the police accessed this data after his probationary

period expired.

2. Sufficiency of the evidence. The defendant also argues

that the trial judge erred in denying his motion for required

findings of not guilty on the counts of breaking and entering in

the nighttime and larceny over $250 that arose from the break-in

in Marshfield on or about September 1, 2012. Specifically, the
 33

defendant argues that the GPS location data introduced at trial

only placed him in the vicinity of, but not inside, the home in

question on September 1, 2012. Accordingly, he argues, the

evidence put forth at trial was speculative and therefore not

sufficient to prove beyond a reasonable doubt that he ever broke

into and entered the home. We disagree.

In reviewing the denial of a motion for a required finding

of not guilty, we must determine whether the evidence, when

"viewed in the light most favorable to the Commonwealth and

drawing all inferences in favor of the Commonwealth, would

permit a rational [trier of fact] to find each essential element

of the crime beyond a reasonable doubt." Commonwealth v. Merry,

453 Mass. 653, 660 (2009), citing Latimore, 378 Mass. at 676–

677. "While the inferences drawn must be reasonable, they need

not be necessary or inescapable" (quotation and citation

omitted). Merry, supra at 661. The evidence would not be

sufficient to convict the defendant of a charged crime, however,

"if it requires piling inference upon inference, or requires

conjecture and speculation" (quotations and citation omitted).

Id.

General Laws c. 266, § 16, provides: "Whoever, in the

night time, breaks and enters a building . . . with intent to

commit a felony . . . shall be punished by imprisonment in the

state prison for not more than twenty years or in a jail or
 34

house of correction for not more than two and one-half years."

The element of "break[ing]" is not defined by the statute, but

has "long been understood to include all actions violating the

common security of a dwelling," including "obvious intrusions

into locked areas," "lifting a latch and opening the door,"

"shoving up a window," and moving "to a material degree

something that barred the way" (quotations and citations

omitted). Commonwealth v. Burke, 392 Mass. 688, 689–690 (1984).

The element of "enter[ing]" is similarly not defined by the

statute, but has traditionally been interpreted as constituting

"any intrusion into a protected enclosure by any part of a

defendant's body." Commonwealth v. Stokes, 440 Mass. 741, 748

(2004), quoting Burke, supra at 690.

Here, the evidence at trial showed that the homeowners were

away from their home from August 31 to September 3, 2012. At no

time did the homeowners grant the defendant permission to enter

their home. When they returned home, they discovered that

broken glass was spread on the floor of their garage. They

later discovered that cash, jewelry, and sentimental items were

missing from their home. The value of the missing items

exceeded $250.

At the time of the break-in, the defendant had been wearing

a GPS device as a condition of probation. The device recorded

the defendant's location every minute while he was wearing it
 35

and uploaded this data to the ELMO system once every hour.

There was no evidence that the defendant's GPS device was

inaccurate or had been malfunctioning in any way during his six-

month probationary period. The defendant's GPS device

transferred location data to the ELMO system that placed the

defendant in and around the home on the evening of September 1

and the very early morning of September 2.

At trial, the Commonwealth introduced this evidence through

a collection of screenshots of maps that were electronically

generated by the ELMO system.15 In these maps, the defendant's

location was represented by either a green dot or a green arrow,

depending on the defendant's speed of movement at the time his

location was recorded by his GPS device. One of these maps

clearly showed that as of approximately 9:23 and 9:51 P.M. on

the night of September 1, the defendant was traveling on the

street on which the home is located. Another map showed that

the defendant was stationary on the street directly in front of,

if not on, the property on September 1. A second set of maps

subsequently confirmed that the defendant was steps away from

the property at 12:03 A.M. on September 2. These maps also

15The defendant did not object to the admissibility of
these records or to the purpose for which they were being
offered by the Commonwealth. The defendant did, however, object
to their introduction to preserve his appeal from the denial of
his motion to suppress them.
 36

showed several green dots located around, and indeed directly

on, the home at various times on September 2.

The defendant argues that this evidence was not sufficient

under Latimore to convict him of breaking and entering because

the GPS location data could not definitively prove that he ever

entered the home. Rather, the defendant argues, these maps

merely place him "in the general vicinity of [the home], but not

on the property itself," and that accordingly, the

Commonwealth's evidence only proved that he had the "opportunity

to commit the charged crime[s]." The defendant overlooks the

evidence of his location on the early morning of September 2

that was properly admitted at trial. This evidence placed the

defendant directly on the property for several minutes. With

all of this evidence in hand, any rational trier of fact could

have reasonably inferred that the defendant broke and entered

the home on or about September 1 and committed larceny over

$250. Accordingly, we conclude that there was sufficient

evidence, when "viewed in the light most favorable to the

Commonwealth" and taken together with the reasonable inferences

drawn therefrom, to support the trial judge's conclusions that

the defendant broke and entered the home on or about September 1

with the intent to commit a felony and stole items valued in

excess of $250. Merry, 453 Mass. at 660. We therefore affirm

the defendant's convictions.
 37

Conclusion. For these reasons, we affirm the denial of the

defendant's motion to suppress and the defendant's convictions

of breaking and entering in the nighttime under G. L. c. 266,

§ 16, and larceny over $250 under G. L. c. 266, § 30.

So ordered.
 LENK, J. (dissenting). As is hardly unusual with motions

to suppress, the police hunch here proved to be quite right:

the defendant was indeed involved in a series of unsolved

breaking and entering cases. From April to September 2012, the

defendant wore a global positioning system (GPS) device; it had

been attached to his ankle at his request, in order that he

remain on probation after he acknowledged that he had violated

his terms of probation. While wearing the device, he

nonetheless committed a series of break-ins in Hanson,

Mansfield, and Pembroke. The break-ins went undetected at the

time, and the defendant was released from probation.

Approximately ten months later, in July 2013, the defendant

again found himself subject to GPS monitoring, this time as a

condition of pretrial release in connection with charges

stemming from an incident of domestic violence in a different

county. See Commonwealth v. Johnson, 91 Mass. App. Ct. 296, 297

(2017).1 In yet another jaw-dropping act of audacity, while

wearing the second GPS device, he committed a breaking and

entering in the West Roxbury section of Boston in August 2013.

1 In Commonwealth v. Johnson, 91 Mass. App. Ct. 296 (2017),
this same defendant appealed from the denial of his motion to
suppress a search of his 2013 global positioning system (GPS)
data during the investigation of the 2013 break-in for which he
had been arrested. The case now before the court concerns a
different search, conducted around the same time, of the
defendant's 2012 GPS records that were collected during a period
of probationary supervision.
 2

In September 2013, the defendant was arrested in Randolph near

the scene of a separate break-in.

It is as a result of this arrest, approximately one year

after the termination of the defendant's probation, that

Marshfield police sought to determine whether he had been

involved in ten unsolved break-ins that occurred between May and

September 2012. To that end, the government began its

warrantless search of the defendant's year old GPS data

collected during his 2012 probationary period. It is this

search, acknowledged by the court to have been based on no more

than a police hunch, that the defendant urges be suppressed.

See ante at . While his acts are chutzpah on stilts, I am

constrained to agree with the defendant: our jurisprudence

requires suppression. Consistent with our case law, the

government needed a warrant before conducting its search of

historical GPS records at a time when the defendant was not a

probationer.

I do not disagree with the court that there is sufficient

evidence to support the defendant's convictions. Nor do I

disagree that the Commonwealth is entitled to accumulate

location records of individuals whose GPS coordinates are

monitored by the probation department, and that it may maintain

a copy of those records even after termination of the

individual's probationary supervision. As evidenced here, such
 3

records later may prove useful. But the court's decision today

has an impact on not only this defendant but, at a minimum, all

individuals who have ever worn a GPS device while on probation.

Where my reasoning diverges from that of my colleagues is

with respect to the level of judicial oversight required

whenever the Commonwealth seeks to search the location history

of an individual who once was -- but, at the time of the search,

is not -- a probationer.2 The court today determines that no

judicial oversight of any kind is necessary. Because, in my

view, art. 14 of the Massachusetts Declaration of Rights and the

2 At the time police examined his GPS data, in the fall of
2013, the defendant had been arrested in connection with a
break-in in West Roxbury. An individual's status as a pretrial
detainee, however, does not permit a warrantless search of that
individual's historical location information. See Commonwealth
v. Broom, 474 Mass. 486, 491-492 (2016) (warrant supported by
probable cause required to access defendant's historical cell
site location information [CSLI] subsequent to arrest). Cf.
Riley v. California, 573 U.S. 373, 401 (2014) (requiring search
warrant to access contents of cellular telephone while defendant
was held pretrial); Shipley v. California, 395 U.S. 818, 820
(1969) (requiring warrant to search defendant's house after
defendant was arrested outside house). The narrow "search
incident to arrest" exception, which permits some warrantless
searches when detainees first enter custody, is inapplicable
here. See Preston v. United States, 376 U.S. 364, 367 (1964)
("Once an accused is under arrest and in custody, then a search
made at another place, without a warrant, is simply not incident
to the arrest"). Constitutional protections are in full force
during pretrial detention. Cf. Miranda v. Arizona, 384 U.S.
436, 444-445 (1966) (defendant retains right to remain silent
under Fifth Amendment to United States Constitution throughout
duration of custody).
 4

Fourth Amendment to the United States Constitution require more,

I respectfully dissent.

Two relevant time periods. The court is correct to

separate this case into two moments of constitutional analysis:

"the initial imposition of GPS monitoring for the purposes of

probation," on the one hand, and the "subsequent review of the

historical GPS location data for investigatory purposes after

the defendant's probationary period had expired," on the other.

Ante at . The court determines, and I agree, that the

attachment of the GPS device in April 2012, at the defendant's

own request, was a search, and that the search was lawful here.

See Grady v. North Carolina, 135 S. Ct. 1368, 1371 (2015)

(electronic monitoring by physical bodily intrusion is search);

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

court must balance government interests in imposing GPS

monitoring against defendant's reasonable expectation of

privacy). That lawful intrusion continued until September 2012,

when the GPS device was removed and probationary supervision was

terminated. Approximately one year later, police sought to

reexamine the defendant's old GPS records. It is at that point,

after the completion of probation, that the court fails to

consider the defendant's actual and reasonable expectation of

privacy with respect to the history of his movements. See

Commonwealth v. Augustine, 467 Mass. 230, 242 (2014), S.C., 470
 5

Mass. 837 and 472 Mass. 448 (2015) (search occurs when

government intrudes on actual and reasonable expectation of

privacy).

It is not implausible that, as the defendant asserts, once

he was released from probation and the GPS device was removed

from his ankle, he came to believe that the police could not

"access [his] GPS data without a warrant." The defendant states

that he had been ordered to wear the GPS monitor "as a condition

of [his] Probation" and was "told that the purpose of the GPS

bracelet was to ensure that [he] did not enter any exclusionary

zones." Upon the successful completion of probation and the

removal of the monitoring device, such insurance no longer was

necessary, and the defendant received no indication that his

location history would continue to be examined.

The more significant question, and the one to which the

court devotes the majority of its discussion, is whether an

individual reasonably may expect his or her location history to

become private after the probation department no longer requires

it for the purposes of monitoring the individual's progress as a

probationer. To answer that question, we must turn to our

jurisprudence regarding the expectations of privacy that

individuals maintain in their historical location information.3

3 Without citation to any authority, the court insists, by
ipse dixit, that the "governmental interest in detecting and
 6

Historical location information. "[U]nder art. 14, a

person may reasonably expect not to be subjected to extended GPS

electronic surveillance by the government, targeted at his

movements, without judicial oversight and a showing of probable

cause." Augustine, 467 Mass. at 248, quoting Commonwealth v.

Rousseau, 465 Mass. 372, 382 (2013). This court has recognized

that the history of an individual's movements, over a

sufficiently lengthy period of time, reveals a great number of

personal details. When the government learns where people have

been, it learns

determining whether a probationer had engaged in criminal
activity during his probationary period does not disappear once
the probationary period ends." Ante at . It is not clear
why this would be the case; after the termination of the
probationary period, probation no longer can be revoked for a
violation of probation. At that point, the only interest in
conducting the search would be to detect ordinary criminal
wrongdoing. Although "there are instances in which we have
permitted searches without individualized suspicion, '[i]n none
of these cases . . . did we indicate approval of a [search]
whose primary purpose was to detect evidence of ordinary
criminal wrongdoing.' . . . That limitation is crucial." See
Maryland v. King, 569 U.S. 435, 468 (2013) (Scalia, J.,
dissenting), quoting Indianapolis v. Edmond, 531 U.S. 32, 38
(2000).

In any event, the determination whether a search has
occurred in the constitutional sense does not turn on the
government's interest, but, rather, on the individual's
expectation of privacy. See Commonwealth v. Augustine, 467
Mass. 230, 241 (2014), S.C., 470 Mass. 837 and 472 Mass. 448
(2015). See also United States v. Karo, 468 U.S. 705, 715
(1984) (determining search was unconstitutional while
recognizing that government "is extremely interested" in its
outcome).
 7

"not just where people go -- which doctors, religious
services, and stores they visit -- but also the people and
groups they choose to affiliate with and when they actually
do so. That information cuts across a broad range of
personal ties with family, friends, political groups,
health care providers, and others. . . . [It] can provide
an intimate picture of one's daily life." (Citation
omitted).

See Augustine, supra. The United States Supreme Court similarly

has observed that historical location information reveals

"familial, political, professional, religious, and sexual

associations" (citation omitted). Carpenter v. United States,

138 S. Ct. 2206, 2217 (2018). "These location records hold for

many Americans the privacies of life" (quotations and citation

omitted). Id.

Accordingly, both this court and the Supreme Court,

applying art. 14 and the Fourth Amendment, respectively, have

required a search warrant supported by probable cause prior to

examining the long-term movements of an individual, as

approximated by the movements of his or her cellular telephone

through cell site location information (CSLI). See Carpenter,

138 S. Ct. at 2221; Augustine, 467 Mass. at 256. As the Supreme

Court has observed, "when the Government tracks the location of

a cell phone it achieves near perfect surveillance, as if it had

attached an ankle monitor to the phone's user." Carpenter,

supra at 2218.
 8

This case goes a step further, asking us to consider what

reasonable expectation of privacy a former probationer has when

the government literally has "attached an ankle monitor" to that

individual's leg. In such a case of historical "perfect

surveillance," the individual's privacy interest in the data

collected ought not be less than that which we recognize in the

case of cellular telephones.

Yet the court concludes that no reasonable expectation of

privacy was implicated here. Had the police attempted to

retrieve the defendant's location history by contacting his

cellular telephone provider, our jurisprudence plainly would

have required a warrant supported by probable cause. See

Augustine, 467 Mass. at 254-255. The court, however, maintains

that historical location information collected by a GPS ankle

monitor is distinguishable from that collected by a cellular

telephone for four reasons: (1) probationers have diminished

expectations of privacy; (2) the government is permitted to

reexamine records it has collected lawfully; (3) we have

permitted similar warrantless searches in the context of

matching deoxyribonucleic acid (DNA) profiles; and

(4) relatively little information was examined in this case. In

my view, none of these arguments is persuasive.

1. Probationers' and former probationers' expectations of

privacy. The court notes that a probationer has a diminished
 9

expectation of privacy relative to an "ordinary citizen." Ante

at . A "diminished" expectation of privacy, however, is not

"no" expectation of privacy. We previously have observed that

probation is not imprisonment; indeed, it is not even on a par

with parole. See Commonwealth v. Moore, 473 Mass. 481, 485-486

(2016) ("parole is more akin to imprisonment than probation is"

[citation omitted]). Accordingly, "art. 14 bars the imposition

on probationers of a blanket threat of warrantless searches."

Commonwealth v. LaFrance, 402 Mass. 789, 795 (1988) (requiring

reasonable suspicion to search probationer's home and person,

even where probationer consented to suspicionless searches).

The court does not grapple with the implications of

LaFrance. Instead, it determines that, because the defendant

knew he had been monitored via the GPS device, he could not

reasonably expect his location to remain private when probation

ceased. See ante at . Even if knowledge of government

surveillance were sufficient to defeat a reasonable expectation

of privacy while the defendant actually was on probation,4 a

4 The court suggests that, because the monitoring here was
not surreptitious, the defendant forfeits his expectation of
privacy. See ante at . I am troubled by the court's
reasoning that, because the Commonwealth might have informed the
defendant that he ought have no expectation of privacy -- i.e.,
the surveillance was not surreptitious -- his art. 14 rights
thereby evaporated. See ante at . "Notice of the
government's claimed search authority" does not itself abrogate
art. 14. See 5 W.R. LaFave, Search and Seizure § 10.10(c), at
544-545 (5th ed. 2012) (criticizing role of "notice" in Federal
 10

point we need not address, the defendant's expectation of

privacy would have changed the day he completed his sentence.

See United States v. Kincade, 379 F.3d 813, 870 (9th Cir. 2004)

(Reinhardt, J., dissenting), cert. denied, 544 U.S. 924 (2005)

(defendant "has paid his debt to society," State has "cease[d]

to have a supervisory interest over [him]," and he merits "full

future expectation of privacy"); id. at 871-872 (Kozinski, J.,

dissenting) ("Once [defendant] completes his period of

supervised release, he becomes an ordinary citizen just like

everyone else. Having paid his debt to society, he recovers his

full Fourth Amendment rights, and police have no greater

authority to invade his private sphere than anyone else's").5

The defendant, it must be remembered, was not a probationer

at the time the police searched his GPS data; his period of

probation had terminated nearly a year earlier. Rather, the

probationer search cases). See also Samson v. California, 547
U.S. 843, 863 (2006) (Stevens, J., dissenting), quoting Smith v.
Maryland, 442 U.S. 735, 740 n.5 (1979) ("the loss of a
subjective expectation of privacy would play 'no meaningful
role' in analyzing the legitimacy of expectations, for example,
'if the Government were suddenly to announce on nationwide
television that all homes henceforth would be subject to
warrantless entry'").

5 The court discounts the notion that a former probationer
would recover his or her right to privacy "retroactively," "as
if he [or she] had never been on probation." Ante at note 13.
The court knocks down a straw man. Here, the government
searched the defendant's records after probation terminated.
His rights were not retroactive; they protected him at the time
of the search. See note 7, infra.
 11

defendant had returned to society as an "ordinary citizen." See

ante at . See also note 2, supra. Nonprobationers,

including former probationers, enjoy the full protections of

art. 14 and the Fourth Amendment; for a nonprobationer, probable

cause and a warrant are required to search historical location

information.6 See generally Carpenter, 138 S. Ct. at 2217;

Augustine, 467 Mass. at 254-255.

6 The court's repeated references to the defendant as a
probationer, following the termination of his period of
probation, minimizes the difference between an actual
probationer and a former probationer -- i.e., an ordinary
citizen. See, e.g., ante at ("defendant-probationer"); id.
at ("probationer's GPS location data"); id. at ("the
defendant -- a probationer").

These references are a stark reminder of the court's
underlying view that, for those who once wore GPS devices,
probation never fully ends. No matter how long a period of time
elapses after the formal termination of probation, no matter how
exemplary the person's conduct may be thereafter, he or she
always will be branded a probationer. It is of course easy
enough to call "unreasonable" this miscreant defendant's
postprobation expectation of privacy in data collected during a
probationary period in which he repeatedly reoffended. But the
court's view encompasses as well those who, years after their
successful rehabilitation, will have voluminous and intimately
personal data exposed to intrusive governmental examination
without probable cause or a warrant. Surely at some point
society would have to recognize as reasonable the former
probationer's expectation of privacy, but when might that be?
After five, nineteen, or twenty-five years? After all statutes
of limitation have run? The court apparently settles on
"never." Believing as I -- and much of society -- do, in the
possibility both of rehabilitation and of discharging one's debt
to society, I conclude that people once on probation regain the
rights and privileges of ordinary citizenship once their
probation ends.
 12

2. Reexamination of formerly obtained information. The

court, however, appears to suggest that, because the GPS data

had been collected lawfully by the probation department in the

first instance, the Commonwealth is permitted to dip back into

that well at any time. In other words, once the government

permissibly has obtained information about an individual, that

individual is deprived permanently of all expectation of privacy

in that information.7

No reasonable person would expect, however, that the

government, having lawfully obtained a copy of a suspect's

historical CSLI, could post those records on the Internet or

plaster them on billboards. "It would appear reasonable to

expect that a government agency, to which a citizen is required

7 In the context of warrant-based searches, this plainly is
not the case. Rather, a new warrant is required whenever the
government seeks to reexamine digital evidence for some new
investigatory purpose that exceeds the bounds of the initial
search warrant. See, e.g., United States v. Walser, 275 F.3d
981, 987 (10th Cir. 2001), cert. denied, 535 U.S. 1069 (2002)
(no violation of Fourth Amendment where, upon inadvertently
discovering child pornography on computer, investigator
"immediately suspended his search and went to a magistrate for a
new warrant"); United States vs. Koch, U.S. Dist. Ct., No. 3:08-
cr-0105-JAJ (S.D. Iowa June 1, 2009), aff'd, 625 F.3d 470 (8th
Cir. 2010) (investigator "did precisely what he should have
done -- stopped his search soon after he found child pornography
and sought a new search warrant"). Cf. 2 W.R. LaFave, J.H.
Israel, N.J. King, & O.S. Kerr, Criminal Procedure § 3.4(j) (4th
ed. 2015) ("A warrant may be executed only once, and thus if a
place is to be searched a second time the proper procedure is to
obtain a second warrant based on an affidavit explaining why
there is now probable cause notwithstanding the execution of the
earlier warrant" [footnote omitted]).
 13

to submit certain materials, will use those materials solely for

the purposes intended and not disclose them to others in ways

that are unconnected with those intended purposes."

Commonwealth v. Buccella, 434 Mass. 473, 485 (2001), cert.

denied, 534 U.S. 1079 (2002).8 The government's permitted use of

information it obtains is limited, and the subject of the

information retains reasonable expectations of privacy in it.

In the context of physical evidence, "[p]roperty seized

pursuant to a search warrant must be restored to its owners when

it is no longer needed." See Commonwealth v. Sacco, 401 Mass.

204, 207 n.3 (1987), citing G. L. c. 276, § 3. Once the item is

returned, the expectation of privacy is restored; to search the

object again, probable cause and a warrant again are required.9

That protection is not limited to physical objects; indeed,

art. 14 and the Fourth Amendment are premised on privacy rights,

not property rights. See Carpenter, 138 S. Ct. at 2213 ("the

Court has recognized that property rights are not the sole

8 What is reasonable at one time, for one purpose, may not
be reasonable at another time, for another purpose. Cf.
Zittrain, Searches and Seizures in a Networked World, 119 Harv.
L. Rev. F. 83, 89 (2005) (reasonableness of searching
individual's electronic files "ought to hinge in part on
retaining such data no longer than necessary for a specific
purpose").

9 See, e.g., People v. Trujillo, 15 Cal. App. 5th 574, 584
(2017) ("If [defendant] is successful at his probation, the
Fourth Amendment waiver will terminate and his electronic
devices will again be completely private").
 14

measure of Fourth Amendment violations . . . and expanded our

conception of the Amendment to protect certain expectations of

privacy as well" [quotations and citations omitted]). As

Professor Orin Kerr cautions, it is necessary to impose the same

constitutional protections on a search of the government's copy

of digital data as would be imposed on the search of the

individual's copy of the same.10 See Kerr, Searches and Seizures

in a Digital World, 119 Harv. L. Rev. 531, 560 (2005).

Otherwise, it is not clear, from the court's reasoning,

what prevents a police officer from adding every CSLI record he

or she legally obtains, pursuant to a warrant, to a database of

accumulated government intelligence regarding the movements and

whereabouts of any individual. Nor is it clear when, if ever,

judicial oversight would be exercised prior to permitting an

officer -- operating even on an educated hunch -- from perusing

that data at any point in the future.11

10"Permitting the government to make and retain copies of
our private electronic [information] seems inconsistent with our
traditions. The idea that the government could freely generate
copies of our [data] and indefinitely retain [it] in government
storage seems too Orwellian -- and downright creepy -- to be
embraced as a Fourth Amendment rule." Kerr, Searches and
Seizures in a Digital World, 119 Harv. L. Rev. 531, 560 (2005).
See also id. at 556 ("Over time, it should become increasingly
clear that the Fourth Amendment should track the information,
not the physical box").

11"[T]he Government cites, and the Court is aware of, no
authority suggesting that simply because it has retained all
originally searchable electronic materials, the Government is
 15

Such an accumulation of data, whether limited to GPS

records of probationers or expanded to GPS records of ordinary

citizens, "never would [have been] available through the use of

traditional law enforcement tools of investigation" (emphasis in

original). See Augustine, 467 Mass. at 248, 254. "At bottom,

we must assur[e] preservation of that degree of privacy against

government that existed when the Fourth Amendment was adopted"

(quotation and citation omitted).12 United States v. Jones, 565

permitted to return to the proverbial well months or years after
the relevant Warrant has expired to make another sweep for
relevant evidence, armed with newly refined search criteria and
novel case theories." United States v. Wey, 256 F. Supp. 3d
355, 406 (S.D.N.Y. 2017).

In United States v. Ganias, 824 F.3d 199, 201, 207, 225 (2d
Cir.), cert. denied, 137 S. Ct. 569 (2016), for example,
investigators obtained digital records from an accountant in
order to investigate two of his clients. Three years later, the
government sought to reexamine the records, this time targeting
the accountant himself. To do so,

"the Government applied for a new search warrant and made
clear in its application that it wished to run new searches
over electronic materials that had been in its custody, and
assumed irrelevant, for several years. . . . The [Second]
Circuit, sitting en banc, upheld the later search . . . in
large measure because the Government had acted reasonably
in applying for the second warrant and alerting the
magistrate to the circumstances." (Emphases in original.)

Wey, 256 F. Supp. 3d at 407.

12"I would also consider the appropriateness of entrusting
to the Executive, in the absence of any oversight from a
coordinate branch, a tool so amenable to misuse, especially in
light of the Fourth Amendment's goal to curb arbitrary exercises
of police power to and prevent a too permeating police
 16

U.S. 400, 406 (2012). The construction of a database of

individuals' location histories risks making "technologically

feasible the Orwellian Big Brother." See United States v.

White, 401 U.S. 745, 770 (1971) (Harlan, J., dissenting). Our

traditions require this risk be balanced with the measured check

of judicial oversight.

3. DNA databases. The court asserts that there is nothing

to fear from this new technology, as it merely "identifies [the

defendant's] presence at the scene of a crime," not unlike

comparing DNA sample against a government database. Ante

at . Relying on Boroian v. Mueller, 616 F.3d 60, 67-68 (1st

Cir. 2010), the court maintains that matching a probationer's

DNA profile after the termination of probation does not violate

a reasonable expectation of privacy. See ante at .

DNA relates to an individual's identity; indeed, it

"reveal[s] nothing more than the identity of the source." See

Commonwealth v. Arzola, 470 Mass. 809, 816 (2015), cert. denied,

136 S. Ct. 792 (2016). It may well be that individuals do not

have a reasonable expectation of privacy in concealing their

identity, i.e., their face, fingerprint, DNA, or other immutable

identifiers, from the police. But location data reveals more.

surveillance" (citations omitted). United States v. Jones, 565
U.S. 400, 415–17 (2012) (Sotomayor, J., concurring).
 17

Indeed, the United States Court of Appeals for the First

Circuit reasoned that warrantless DNA-matching was permissible

precisely because a DNA profile "does not reveal any new,

private or intimate information about [the defendant]." See

Boroian, 616 F.3d at 67. The same cannot be said of long-term

GPS data. As we have observed, long-term location information

can paint an "intimate picture of one's daily life" (citation

omitted). Augustine, 467 Mass. at 248. See Carpenter, 138 S.

Ct. at 2217.

It is one thing to permit an officer of the Commonwealth to

examine, without cause, the presence of alleles across various

DNA samples stored in a DNA database. It is quite another to

allow that officer to examine the minute-by-minute location

history of individuals over a period of months, revealing, as

that analysis may, any number of "familial, political,

professional, religious, and sexual associations" (citation

omitted). See Carpenter, 138 S. Ct. at 2217.13 Notably, and

13 The United States Court of Appeals for the First Circuit
further reasoned that "the government's comparison of [the
defendant's] DNA profile with other profiles in [the Combined
DNA Index System database (CODIS)] is precisely the use for
which the profile was initially lawfully created and entered
into CODIS." Boroian v. Mueller, 616 F.3d 60, 67 (1st Cir.
2010). Yet, here, the government's comparison of the
defendant's location history with the locations of known break-
ins is not the use for which the defendant's location
information initially was collected. "There is a need to
supervise [a probationer] both to aid in the probationer's
rehabilitation and to ensure her compliance with the conditions
 18

contrary to the court's characterization, the Commonwealth's

examination of location data in this case far exceeded merely

identifying an individual's binary "presence."

4. Amount of information examined. The court takes pains

to assure us that police "targeted their analysis" to "the time

and location of particular criminal activity," such that their

review was "not a search in the constitutional sense." Ante

at . The court previously has determined, for example, that

police may examine up to six hours of historical location

information from a cellular telephone provider without judicial

oversight, as the duration is too short to infringe upon

reasonable expectations of privacy.14 See Commonwealth v.

of probation." See Commonwealth v. LaFrance, 402 Mass. 789,
792-793 (1988). Once probation was terminated, however, the
location information was repurposed, a year later, as an
investigative tool; this was not "precisely the use" for which
it originally was intended. See Boroian, supra.

14In establishing this six-hour safe harbor, we emphasized
that, "in terms of reasonable expectation of privacy, the
salient consideration is the length of time for which a person's
CSLI is requested, not the time covered by the person's CSLI
that the Commonwealth ultimately seeks to use as evidence at
trial." Commonwealth v. Estabrook, 472 Mass. 852, 858-859
(2015). For example, "[i]t would violate the constitutional
principles underlying our decision in Augustine to permit the
Commonwealth to request and obtain without a warrant two weeks
of CSLI -- or longer -- so long as the Commonwealth seeks to use
evidence relating only to six hours of that CSLI". See id. at
859. The defendant is not required to show that police "mapped
out months of [his] historical GPS location data in a
coordinated effort to recreate a full mosaic of his personal
life." See ante at . At the point at which the
 19

Estabrook, 472 Mass. 852, 858 (2015). The court suggests

similar reasoning here: the examination of the defendant's

historical location information was narrow, and ergo, it was not

a search. The record, however, paints a different picture.

As a probationer, the defendant was monitored by means of a

GPS device once every minute for a period of six months, from

April to September 2012. According to the uncontroverted

statements in the defendant's memorandum in support of his

motion to suppress, Barbara McDonough, of the probation

department, gave a presentation to police one year later, on

October 9, 2013, detailing the defendant's GPS history.

Marshfield police Detective Kim Jones subsequently cross-

referenced that information with the dates of the break-ins.

At the time, police were investigating ten break-ins

occurring between May and September 2012. In the case of one

break-in on September 1, 2012, the homeowners had been away for

the four-day Labor Day weekend, beginning on August 31, 2012,

only to discover the break-in upon their return on September 3.

Reviewing the defendant's GPS records, police determined that

the defendant was in or near the house on the evening of

September 1 and the early morning of September 2. It is

difficult to imagine how police would have reached that

Commonwealth obtains the data, it has violated the individual's
reasonable expectation of privacy.
 20

conclusion without examining the defendant's location for the

entire four-day period (ninety-six hours). The defendant's

location history was further examined with respect to the other

nine break-ins.15

It is also clear that the search was not limited only to

the dates and times during which the break-ins were believed to

have actually occurred. At the nonevidentiary hearing on the

motion to suppress,16 the Commonwealth acknowledged that the

probation department was "able to map [the] defendant's actions

that were consistent with not only breaking into the houses,"

but also, in other instances, "prior to breaking into the

houses, casing the houses."

Combined, it hardly overstates the record to say that the

Commonwealth's search encompassed hundreds of hours of location

information, spanning multiple days before and during potential

15At a minimum, these required additional examinations of
the defendant's movements on May 8, 2012; May 16, 2012; June 4,
2012; July 14, 2012; and August 27, 2012. Moreover, it is not
clear that police were aware of the particular times during
which the break-ins occurred; if not, even further examination
of the defendant's movements would have been required merely
with respect to these specific incidents.

16On March 19, 2015, the motion judge held an evidentiary
hearing with respect to the defendant's first argument in
support of his motion to suppress, that his arrest was an
unlawful search and seizure. On February 10, 2016, the judge
held a nonevidentiary hearing on the defendant's second
argument, that the examination of his GPS records was unlawful
as a warrantless search. The judge denied the motion to
suppress on both grounds on March 16, 2016.
 21

periods of suspicious activity, throughout a several-month

period. To be sure, the information proved useful. But I am

not persuaded that the investigation was "too brief to implicate

[a] person's reasonable privacy interest" (citation omitted).

Contrast Estabrook, 472 Mass. at 858 (no warrant required to

examine six hours of location information). Indeed, the motion

judge made no such finding.17 Accordingly, on the evidence

before the motion judge, the defendant met his burden to show

that the Commonwealth violated his reasonable expectations of

privacy. See Commonwealth v. Miller, 475 Mass. 212, 219-220

(2016). Before the search was undertaken, probable cause and a

warrant should have been secured.

17The judge's relevant findings, based on stipulated facts,
were as follows:

"[Randolph police] decided to contact the Commissioner of
Probation and obtain records of [the defendant's] location
at various times to determine if they matched up with
unsolved housebreaks on the South Shore. To that end,
[Randolph police] contacted Marshfield Police Detective Kim
Jones . . . and suggested she contact the probation
department and look into [the defendant's] whereabouts.
Thereafter, the Marshfield police and two probation
officers reviewed the record of [the defendant's] travels
into Marshfield, Hanson and Pembroke. Once this
information was developed, Jones cross-referenced it with
recent break-ins in those three towns and discovered that
[the defendant] was at the scene of the housebreaks at the
time of the alleged breaks."

The judge made no finding with respect to the scope of the GPS
data reviewed, nor does his reasoning rely on the narrowness
thereof.
 22

Having determined, instead, that the search was

insufficiently extensive to merit constitutional protection, the

court nonetheless acknowledges that a reasonable expectation of

privacy may be implicated, "even for a probationer subjected to

GPS monitoring," where police "map[] out months of the

defendant's GPS location data . . . over an extended and

unnecessary period of time." See ante at . The court

insists, however, that such a case, which "might raise

different, more difficult constitutional questions" is not

before us and "[w]e need not, and do not, decide that question

today." Id. at .

I would require a warrant supported by probable cause even

where fewer than "months" of GPS data were examined, consistent

with our jurisprudence in Augustine, 467 Mass. at 254-255, and

Estabrook, 472 Mass. at 858. To the extent that the court is

concerned that the review of "months" of historical GPS data

raises "difficult constitutional questions," in my view, those

questions are raised here. Evidence of such a months-long

search was not before the motion judge, and therefore does not

form the basis of my determination that the judge's denial of

the motion to suppress was error. See Commonwealth v. Rivera,

441 Mass. 358, 367 (2004) ("Evidence adduced at trial but not

before the motion judge . . . cannot be determinative of the

propriety of the motion judge's decision" [citation omitted]).
 23

Insofar as the court's reasoning is premised on a finding that

this search was "targeted," however, I note that the motion

judge made no such finding, see note 17, supra, and the

information now known to us does not support one.

Indeed, information developed following the denial of the

motion to suppress suggests that the search in this case was

much broader than the court is willing to acknowledge. In

Johnson, 91 Mass. App. Ct. 296, to which the court itself cites,

this defendant appealed from other charges stemming from the

Commonwealth's search of his probationary GPS records. The same

Barbara McDonough of the probation department conducted the GPS

records searches in both cases. She testified as to the manner

in which she conducted the search as follows:

"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.'
. . . 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 revealed not only the defendant's location, but
also his speed and direction. The data tracked the
defendant into buildings, including private residences."

Id. at 318 (Wolohojian, J., dissenting). McDonough reported her

findings in that case to Boston police in November 2013, less

than one month after her report to the Marshfield police in this

case. Although we do not have the benefit of McDonough's

testimony in this case, it seems reasonable to conclude that her
 24

methods did not differ substantially between her two

examinations of the same defendant's GPS records, conducted

within the span of several weeks.

Evidence admitted at trial in this case corroborates

McDonough's testimony regarding her meticulous methods. Exhibit

2A, the first of the Commonwealth's maps of the defendant's

movements, is labeled as the defendant's "Position History" from

"12:00:00 A.M." to "11:59:59 P.M." on September 1, 2012. The

exhibit is only the first of several such maps. Taken together,

it would appear that the Commonwealth examined the defendant's

minute-by-minute movements for periods of twenty-four hours at a

time over the course of several months, thus clearly exceeding

the "targeted" analysis the court portrays, and raising the very

questions the court leaves for another day. See ante at .

In the interest not of expediency, but of justice, i.e.,

reaching the right result, we ought not blind ourselves to the

indications that this search was far more extensive than

initially assumed. If the court intends to rely on findings

regarding the scope of the search, it should remand for an

evidentiary hearing to determine the true extent of the GPS data

examined.

Conclusion. Article 14 and the Fourth Amendment exist to

inject some degree of judicial oversight into the process by

which the government may conduct surveillance. See Carpenter,
 25

138 S. Ct. at 2214. To the extent that their protections are

dimmed while an individual is on probation, they must return to

full brightness upon completion of the probationary term.

"Interposition of a warrant requirement is designed not to

shield 'wrongdoers,' but to secure a measure of privacy and a

sense of personal security throughout our society." White, 401

U.S. at 790 (Harlan, J., dissenting).

Doubtless, the court's decision today will aid in the rapid

resolution of future investigations, as it did in this case.

So, too, would granting carte blanche for police to obtain any

individual's historical location records without a demonstration

of cause. Yet "[our ancestors], after consulting the lessons of

history, designed our Constitution to place obstacles in the way

of a too permeating police surveillance, which they seemed to

think was a greater danger to a free people than the escape of

some criminals from punishment." United States v. Di Re, 332

U.S. 581, 595 (1948). The accumulation and inspection of vast

amounts of personal historical location data, in great excess of

anything previously available to the Commonwealth, without any

judicial oversight, is a sobering specter. That the court

promises Big Brother will be watching only those individuals who

once served probationary sentences is of little consolation.

This is not to say that the government should destroy its

records after the termination of probation. On the contrary,
 26

the Commonwealth may retain those records indefinitely, and the

records well may prove invaluable. Even so, there is a

difference between maintaining evidence and searching it. The

latter always has required a showing of probable cause and a

warrant, at least for those not on probation. I would require

the same here.

Hence, I would conclude that, where police engage in a

search of a nonprobationer's GPS history, art. 14 and the Fourth

Amendment require a warrant supported by probable cause. As

police did not procure a warrant in this case, the search is

presumptively unreasonable. 18 See Commonwealth v. White, 475

Mass. 583, 588 (2016). It then would be the Commonwealth's

burden to "show that [it] falls within a narrow class of

permissible exceptions to the warrant requirement," such as

probable cause and exigent circumstances (quotation and citation

omitted). Id. Because the Commonwealth has not made such a

showing, I would reverse the denial of the defendant's motion to

suppress.

18 In denying the defendant's motion to suppress, the judge
primarily relied on G. L. c. 276, § 90, which permits police to
review probation records "at all times." As the court correctly
notes, however, that the Legislature has sought to permit State
action by statute does not mean that such action escapes
constitutional review. See Commonwealth v. Blood, 400 Mass. 61,
75 (1987) (independently reviewing statute in light of art. 14).
 27

Finally, I call upon the Legislature to revisit G. L.

c. 276, § 90, the statute that permits police to examine

probation records at any time, including any time after

probation has ended. The statute, enacted in 1880 and last

amended in 1938, did not contemplate the long-term collection of

GPS data. This information now forms part of a probationer's

"records." After eighty years, much has changed. The

Legislature should consider whether this new and expansive

information truly ought to remain open to government inspection,

for any purpose and at any time.