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SJC-12744
COMMONWEALTH vs. ERIC NORMAN.
Middlesex. November 7, 2019. - March 17, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Global Positioning System Device. Constitutional Law, Search
and seizure, Privacy. Search and Seizure, Expectation of
privacy. Privacy. Practice, Criminal, Motion to suppress.
Indictments found and returned in the Superior Court
Department on December 11, 2015.
A pretrial motion to suppress evidence was heard by Kenneth
J. Fishman, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Budd, J., in the Supreme Judicial Court
for the county of Suffolk, and the case was reported by her to
the Appeals Court. The Supreme Judicial Court granted an
application for direct appellate review.
Jamie Michael Charles, Assistant District Attorney, for the
Commonwealth.
Matthew Spurlock, Committee for Public Counsel Services,
for the defendant.
Katharine Naples-Mitchell, for Charles Hamilton Houston
Institute for Race and Justice at Harvard Law School, amicus
curiae, submitted a brief.
2
Matthew R. Segal & Jessie J. Rossman, for American Civil
Liberties Union of Massachusetts, amicus curiae, submitted a
brief.
GAZIANO, J. This case concerns the admissibility of
location data gleaned from a global positioning system (GPS)
device imposed on a defendant as a pretrial condition of
release. We are called upon to confront a question not present
in Commonwealth v. Johnson, 481 Mass. 710, cert. denied, 140 S.
Ct. 247 (2019). There, we determined that imposition of GPS
monitoring on a probationer was a search but that, given the
diminished privacy expectations of a probationer, the
intrusiveness of such monitoring was outweighed by the
legitimate governmental interests served by the use of GPS
monitoring to further the goals of probation. Id. at 720.
Here, we must determine whether the initial imposition of
the GPS device as a condition of pretrial release violated the
Fourth Amendment to the United States Constitution or art. 14 of
the Massachusetts Declaration of Rights and, if not, whether
police access to the GPS data for the purposes of a new criminal
investigation violated the Federal or State Constitutions. In
the circumstances here, we conclude that the initial imposition
of the GPS device violated art. 14.1
1 We acknowledge the amicus briefs of the Charles Hamilton
Houston Institute for Race and Justice at Harvard Law School and
the American Civil Liberties Union of Massachusetts.
3
1. Background. In July 2015, the defendant was charged in
the Boston Municipal Court with possession of a class B
substance with the intent to distribute, as a subsequent
offense, and motor vehicle violations. Among other conditions
of release, he was ordered to stay out of the city of Boston and
to wear a GPS monitoring device.2
He was required to sign a form that stated,
"You are hereby placed on GPS by this Court. . . .
Coordinates and other data related to your physical
location while on GPS are recorded and may be shared with
the court, probation, parole, attorneys and law
enforcement. Data generated by GPS equipment assigned to
you is not private and confidential. It is your
responsibility to remain in contact with probation at all
times while under GPS supervision unless expressly
authorized."
The form also included the following statement:
"I have read and understood the above conditions of GPS
supervision and I agree to observe them. I understand that
if I violate any such condition, it may result in my being
brought before the court, my arrest, revocation of
probation, the entry of a guilty finding or delinquency
adjudication (if not already entered), the imposition or
execution of sentence and modification of my supervision."
2 The record does not indicate the judge's reasons for
imposing the condition of GPS monitoring, and the audio
recording of the proceeding in the Boston Municipal Court has
been destroyed. We conclude, however, that a remand to
determine the reasons underlying the decision to impose
conditions of pretrial release more than four years ago would
not be fruitful. At this point, any useful evidence likely
would be documentary, so we are in as good a position as a
motion judge to evaluate the evidence. See Commonwealth v.
Cousin, 478 Mass. 608, 615 (2018).
4
On the evening of August 10, 2015, a home invasion and
armed robbery occurred at a home in Medford; the robbers were
described as two African-American men. Police initially did not
have any information linking the defendant to the crimes.
Medford police contacted the probation service's electronic
monitoring program (ELMO) and inquired whether any individuals
under GPS supervision had been present at the time and location
of the crimes. The police did not obtain a search warrant or
court order for the GPS location data. ELMO used stored GPS
data to identify the defendant as being present at the scene of
the crime. The GPS data also indicated that the defendant went
to an address in Everett shortly before and shortly after the
time of the home invasion. Police then obtained a search
warrant for the Everett location, where they discovered
additional inculpatory information. One of the victims of the
home invasion also was presented with a photographic array that
included the defendant's photograph; the victim indicated that
he was "almost positive" that the defendant was one of the
robbers. The defendant was arrested and indicted on charges of,
inter alia, armed robbery while masked.3
3 The defendant also was indicted on charges of armed home
invasion, armed burglary, armed assault in a dwelling, and
larceny from a building.
5
The defendant moved to suppress the GPS location data and
its fruits, arguing that police acquisition of the data violated
his rights under the Fourth and Fourteenth Amendments to the
United States Constitution and art. 14. The judge found that
the defendant had consented to the imposition of the GPS device
and the use of the GPS location data only for the purposes of
enforcing conditions of release, and not for general law
enforcement purposes. The judge therefore determined that the
police were not permitted to obtain the GPS location data
without probable cause. Because nothing linked the defendant to
the crimes before police obtained the GPS location data, the
judge concluded that the search was not supported by probable
cause and granted the motion to suppress.
The Commonwealth sought leave to pursue an interlocutory
appeal in the county court, and a single justice allowed the
appeal to proceed in the Appeals Court. We subsequently allowed
the Commonwealth's petition for direct appellate review. We
affirm the judge's determination, on different grounds. See
Commonwealth v. Cotto, 471 Mass. 97, 118 (2015), citing
Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997).
2. Discussion. "In reviewing a motion to suppress, 'we
accept the judge's subsidiary findings of fact absent clear
error,' but 'review independently the motion judge's application
of constitutional principles to the facts found.'" Commonwealth
6
v. Moore, 473 Mass. 481, 484 (2016), quoting Commonwealth v.
Franklin, 456 Mass. 818, 820 (2010).
The defendant argues that the judge's decision may be
affirmed on either of two grounds: the initial imposition of
the GPS device was an unconstitutional search; or even if we
were to determine that this pretrial condition of release was
constitutional, the use of the GPS data for an unrelated
criminal investigation was unconstitutional. We agree that, if
either of these related actions is unconstitutional, the GPS
data must be suppressed. See Johnson, 481 Mass. at 715 ("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").
We conclude that the initial imposition of GPS monitoring
in this case was not based on valid government interests and
thus was unreasonable and unconstitutional under art. 14.
Accordingly, we need not reach the question whether, had the
initial imposition been constitutional, police use of the data
for a criminal investigation would have been permissible.
a. Imposition of GPS monitoring as a search. "[A] search
in the constitutional sense occurs when the government's conduct
intrudes on a person's reasonable expectation of privacy."
Commonwealth v. Augustine, 467 Mass. 230, 241-242 (2014), citing
7
Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,
concurring), and Commonwealth v. Montanez, 410 Mass. 290, 301
(1991). This expectation must be "an actual (subjective)
expectation of privacy . . . that society is prepared to
recognize as reasonable." Matter of a Grand Jury Subpoena, 454
Mass. 685, 688 (2009), quoting Commonwealth v. Blood, 400 Mass.
61, 68 (1987).
Under the Federal and Massachusetts Constitutions,
"individuals have a reasonable expectation of privacy in the
whole of their physical movements." See Carpenter v. United
States, 138 S. Ct. 2206, 2217 (2018), citing United States v.
Jones, 565 U.S. 400, 430 (2012) (Alito, J., concurring), and
Jones, supra at 415 (Sotomayor, J., concurring). See also
Johnson, 481 Mass. at 716-717, citing Augustine, 467 Mass. at
253, and Commonwealth v. Rousseau, 465 Mass. 372, 382 (2013)
(same under art. 14). GPS monitoring "continuously track[s]" an
individual's "precise location," thereby "giv[ing] probation
officers and police 'access to a category of information
otherwise unknowable.'" Johnson, supra at 717, quoting
Carpenter, supra at 2217-2218. "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." Johnson, supra, quoting
Augustine, supra at 251.
8
In Grady v. North Carolina, 575 U.S. 306 (2015), "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.'" Johnson, 481 Mass. at 718, quoting
Grady, supra at 309. Subsequently, we held that imposing GPS
monitoring as a condition of probation is a search under art.
14. See Johnson, supra, citing Commonwealth v. Feliz, 481 Mass.
689, 690-691 (2019). This is so even though probationers have a
"diminished expectation of privacy relative to the general
population." See Feliz, supra at 700, citing United States v.
Knights, 534 U.S. 112, 119-120 (2001).
The reasonable expectation of privacy of a defendant
pretrial, such as the defendant here, is greater than that of a
probationer. See Commonwealth v. Silva, 471 Mass. 610, 617
(2015), citing Bell v. Wolfish, 441 U.S. 520, 545 (1979), and
United States v. Cohen, 796 F.2d 20, 23-24 (2d Cir.), cert.
denied, 479 U.S. 854 (1986) ("pretrial detainee enjoys at least
as many constitutional rights as a convicted prisoner and
perhaps more"). See also United States v. Scott, 450 F.3d 863,
873-874 (9th Cir. 2006) ("privacy and liberty interests" of
individual on pretrial release are "far greater than a
probationer's"). Given the greater expectation of privacy of a
defendant pretrial, the implication is clear. The imposition of
9
GPS monitoring as a condition of pretrial release is a search
under art. 14.
Although consent can justify a warrantless search, "the
Commonwealth bears the burden of proof that consent was freely
and voluntarily given, meaning it was unfettered by coercion,
express or implied" (quotations and citations omitted).
Commonwealth v. Buckley, 478 Mass. 861, 875 (2018). We have
held that the signing of a contract of probation that includes
GPS monitoring is not sufficient to establish consent because
the "coercive quality of the circumstance in which a defendant
seeks to avoid incarceration by obtaining probation on certain
conditions makes principles of voluntary waiver and consent
generally inapplicable." See Feliz, 481 Mass. at 702, quoting
Commonwealth v. LaFrance, 402 Mass. 789, 791 n.3 (1988).
Here, the only evidence of consent is the fact that the
defendant signed the form. If he had not, the consequence
presumably would have been pretrial detention. Therefore, the
form "does not change our constitutional analysis." See Feliz,
481 Mass. at 701-702, citing Guiney v. Police Comm'r of Boston,
411 Mass. 328, 341 (1991), O'Connor v. Police Comm'r of Boston,
408 Mass. 324, 329 (1990), and United States v. Lara, 815 F.3d
10
605, 609 (9th Cir. 2016). The Commonwealth has not met its
burden of showing free and voluntary consent.4
b. Interest balancing. "The Fourth Amendment and art. 14
prohibit 'unreasonable' searches and seizures." Moore, 473
Mass. at 484, citing Commonwealth v. Rodriguez, 472 Mass. 767,
775-776 (2015). Warrantless searches are "'presumptively
unreasonable' and, therefore, presumptively unconstitutional."
Commonwealth v. White, 475 Mass. 583, 588 (2016), quoting
Commonwealth v. Craan, 469 Mass. 24, 28 (2014). See Katz, 389
U.S. at 357 ("searches conducted outside the judicial process,
without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment -- subject only to a few
specifically established and well-delineated exceptions"
[footnotes omitted]). The Commonwealth has the burden of
showing that any warrantless search "falls within a narrow class
of permissible exceptions to the warrant requirement."
Commonwealth v. Ferreira, 481 Mass. 641, 655 (2019), quoting
Commonwealth v. Abdallah, 475 Mass. 47, 51 (2016). "We
determine whether a search is reasonable by 'balanc[ing] the
intrusiveness of the police activities at issue against any
legitimate governmental interests that these activities serve.'"
4 There are some situations, however, where a pretrial
condition of release would be justified by free and voluntary
consent.
11
Moore, supra, citing Rodriguez, supra at 776. When a search,
such as GPS monitoring, is conducted as a pretrial condition of
release, the only legitimate justifications for doing so are
those authorized by statute; courts do not have inherent
authority to impose pretrial conditions of release. See
Commonwealth v. Preston P., 483 Mass. 759, 763 (2020).
i. Legitimate governmental interests. The monitoring
requirement at issue was imposed at arraignment as a condition
of release. Therefore, the condition must be permissible under
G. L. c. 276, § 58, the applicable bail statute. General Laws
c. 276, § 58, provides, in part:
"A justice . . . shall, when a person is held under arrest
or committed either with or without a warrant for an
offense other than an offense punishable by death, or, upon
the motion of the commonwealth, for an offense enumerated
in [G. L. c. 276, § 58A,] or for any offense on which a
warrant of arrest has been issued by the superior court,
hold a hearing in which the defendant and his counsel, if
any, may participate and inquire into the case and shall
admit such person to bail on his personal recognizance
without surety unless said justice . . . determines, in the
exercise of his [or her] discretion, that such a release
will not reasonably assure the appearance of the person
before the court" (emphasis added).
Thus, the goal and purpose of G. L. c. 276, § 58, are clear: to
permit pretrial release while ensuring that a defendant appears
in court. See Commonwealth v. Vieira, 483 Mass. 417, 420
(2019), citing Brangan v. Commonwealth, 477 Mass. 691, 692, 699
(2017), and Commonwealth v. King, 429 Mass. 169, 174 (1999)
12
("The purpose of bail is to assure the appearance of the accused
in court").
General Laws c. 276, § 58, contains three references to
conditions of release. The first reference states explicitly
that conditions of release may be used to ensure a defendant's
return to court:
"Except in cases where the person is determined to pose a
danger to the safety of any other person or the community
under [G. L. c. 276, § 58A], bail shall be set in an amount
no higher than what would reasonably assure the appearance
of the person before the court after taking into account
the person's financial resources; provided, however, that a
higher than affordable bail may be set if neither
alternative nonfinancial conditions nor a bail amount which
the person could likely afford would adequately assure the
person's appearance before the court" (emphasis added).
G. L. c. 276, § 58, first par.
The second reference states that if the judge setting bail
"determines it to be necessary, the defendant may be ordered to
abide by specified restrictions on personal associations or
conduct including, but not limited to, avoiding all contact with
an alleged victim of the crime and any potential witness or
witnesses who may testify concerning the offense, as a condition
of release." G. L. c. 276, § 58, first par. This language
clearly contemplates that limits may be placed on a defendant's
contact with an alleged victim, as well as with other witnesses,
presumably for the purpose of "preserving the integrity of the
judicial process." Josh J. v. Commonwealth, 478 Mass. 716, 721
13
(2018), quoting Paquette v. Commonwealth, 440 Mass. 121, 131
(2003), cert. denied, 540 U.S. 1150 (2004).
The third reference to conditions of release in G. L.
c. 276, § 58, allows conditions of release to be imposed in
certain crimes involving domestic abuse "in order to
ensure . . . the safety of the alleged victim, any other
individual or the community." See G. L. c. 276, § 58, third
par. This provision is inapplicable here because the defendant
was not charged with a crime involving domestic abuse.
The Commonwealth argues that the permissible goals of G. L.
c. 276, § 58, include generally preventing or deterring criminal
conduct. The statute's second reference to conditions of
release may permit a broader range of conditions, arguably
including conditions aimed at dangerousness or deterrence. See
G. L. c. 276, § 58, first par. ("defendant may be ordered to
abide by specified restrictions on personal associations or
conduct including, but not limited to, avoiding all contact
with" victim and witnesses). The Legislature, however, clearly
has indicated an intent to address deterrence and dangerousness
in other statutory provisions. See Paquette, 440 Mass. at 130,
citing Boston Water & Sewer Comm'n v. Metropolitan Dist. Comm'n,
408 Mass. 572, 578 (1990) ("If the Legislature had intended to
utilize bail revocation under the third paragraph of G. L.
c. 276, § 58, as a broad preventive detention scheme with a
14
focus on dangerousness, then the promulgation of G. L. c. 276,
§§ 58A and 58B, would have been duplicative and unnecessary").
See also Brangan, 477 Mass. at 706 (dangerousness would have
been relevant "if the Commonwealth had sought to detain [the
defendant] under [G. L. c. 276,] § 58A").
General Laws c. 276, § 58A, states, "[t]he [C]ommonwealth
may move, based on dangerousness, for an order of pretrial
detention or release on conditions for a felony offense that has
as an element of the offense the use, attempted use[,]
threatened use[, or a substantial risk] of physical force").
Three other statutory provisions allow conditions of release to
be imposed for reasons of safety in cases involving domestic
abuse. See G. L. c. 276, § 42A; G. L. c. 276, § 57, second
par.; G. L. c. 276, § 58, third par. By contrast, the provision
of G. L. c. 276, § 58, in question here does not contain the
words "safety," "dangerousness," "deterrence," or any similar
language. Therefore, we conclude that the Legislature did not
intend this provision to address dangerousness or deterrence of
future crimes.
Thus, the only permissible goals of pretrial conditions of
release in the defendant's case were ensuring the defendant's
return to court and his presence at trial, and safeguarding the
integrity of the judicial process by protecting witnesses from
intimidation and other forms of influence. There is no
15
indication on this record that GPS monitoring would have
increased the likelihood of the defendant returning to court.
Although the general specter of government tracking could
provide an additional incentive to appear in court on specified
dates, the causal link in this case is too attenuated and
speculative to justify GPS monitoring. See Feliz, 481 Mass.
at 709 (Commonwealth failed to show that GPS monitoring would
effectuate desired result). Additionally, the exclusionary zone
of the city of Boston, which could be viewed as tied to the use
of GPS monitoring to assure the defendant was not present in
Boston, clearly did not advance the goal of ensuring the
defendant's return to the Boston Municipal Court; indeed, the
docket clearly states that an exception would apply to any court
appearances in Boston.
Further, there is no indication in the record that the
conditions of release were intended to insulate any particular
victims or civilian witnesses, who, given the nature of the
crimes charged, likely did not exist.
ii. Intrusion. We turn to the degree of intrusion on the
defendant's privacy. See Johnson, 481 Mass. at 715. When a
judge orders GPS tracking, a "modern-day 'scarlet letter'" is
physically tethered to the individual, reminding the public that
the person has been charged with or convicted of a crime.
Commonwealth v. Hanson H., 464 Mass. 807, 815-816 (2013),
16
quoting Commonwealth v. Cory, 454 Mass. 559, 570 n.18 (2009).
See Commonwealth v. Goodwin, 458 Mass. 11, 22 (2010) ("ankle
bracelet . . . may . . . expos[e] the [individual] to
persecution or ostracism"); Commonwealth v. Raposo, 453 Mass.
739, 740 (2009) (describing "ankle bracelet, which is
permanently attached to the probationer").
If a GPS monitoring device loses connection with either the
cellular network or the satellite network, or if the device's
battery runs low, "alerts" from ELMO are issued. Feliz, 481
Mass. at 694-695, 695 n.9 (noting daily average that "thirty-
four percent of the total individuals monitored" generate
alert). The individual may have to leave his or her location in
search of a signal, or may be required to travel to a location
where the device can be charged. See id. at 695. These
frequent interruptions can endanger an individual's livelihood.
See id. at 704 (noting that GPS may require individual "to leave
his [or her] job and walk around outside during work hours,
risking potential economic consequences, including loss of
employment"). In addition, despite an individual's best efforts
to comply with the strictures of GPS monitoring, connectivity
issues can lead to the issuance of arrest warrants, see id.
at 695, thereby subjecting the individual to the indignity and
dangers of an arrest. See Commonwealth v. Charros, 443 Mass.
752, 761, cert. denied, 546 U.S. 870 (2005) ("seizure produced
17
all the indignity of an arrest in full view of the public").
Lastly, GPS monitoring can place an especially great burden on
homeless individuals. See Commonwealth v. Canadyan, 458 Mass.
574, 575, 578-579 (2010) (noting "undisputed evidence that
homeless shelters" could not provide electrical outlets
necessary to charge GPS units).
iii. Balancing. For a warrantless search to be
permissible under art. 14, the legitimate governmental interests
must outweigh the level of intrusion. See Moore, 473 Mass.
at 484, citing Rodriguez, 472 Mass. at 776. Because the GPS
monitoring at issue here did not serve the purposes of the
statutory scheme, the monitoring did not further any legitimate
governmental interests. Therefore, the search was clearly
impermissible. We caution that even where GPS monitoring does
serve legitimate government interests, reasonableness is not
assured; the interests must be sufficient to outweigh the severe
intrusion at stake.
Order allowing motion to
suppress affirmed.