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Commonwealth v. Dew

Superior Court of Massachusetts, Suffolk

October 27, 2015

Anthony Dew No. 131859


Kenneth W. Salinger, Justice

Anthony Dew has been indicted on six counts of human trafficking, one count of rape, two counts of assault and battery with a deadly weapon, one count of assault and battery, nine counts of distributing heroin or cocaine, and one count of possessing heroin with the intent to distribute it. Police detectives identified Mr. Dew as a suspect in these crimes in part through Global Positioning System location data recorded from a GPS tracking device that Dew was wearing as a condition of pretrial probation.

Mr. Dew asks the Court to suppress all evidence against him. He argues that: (1) the Probation Department violated Dew's constitutional right to be free from unreasonable searches when it monitored Dew's whereabouts and shared the GPS data it had collected with the police, all without a search warrant or probable cause to believe that Dew had committed any new crime; (2) Dew's consent to the conditions of his pretrial probation was not valid because he had no reasonable alternative to agreeing to be electronically monitoring; and (3) the Probation Department violated the constitutional separation of powers by giving police officers the recorded data showing Dew's location and movements.[1]

The Court concludes that these arguments are without merit and will therefore DENY Mr. Dew's motion. First, although Dew correctly notes that a pretrial detainee cannot validly consent to unconstitutional conditions of pretrial probation, that is not what happened here. The GPS tracking of Dew as a condition of pretrial probation fell within the " special needs" exception to the constitutional limitations on warrantless searches, and was lawful even without probable cause or reasonable suspicion to believe that Dew was engaged in criminal activity. Furthermore, Dew expressly agreed to be subject to constitutionally permissible round-the-clock GPS monitoring, that his GPS location and movements would be recorded, that these GPS data were neither private nor confidential, and that these data could be shared with law enforcement officials. As a result, Dew had no reasonable expectation of privacy in the recorded GPS data showing his movements, and thus the Boston police could obtain those data without first seeking a search warrant. Second, Mr. Dew's consent to be subject to GPS tracking was voluntary and satisfied the statutory requirement that a defendant consent to the conditions of any pretrial probation. Third, the Probation Department did not violate the constitutional separation of powers when it shared Mr. Dew's GPS location data with the Boston Police Department. This voluntary cooperation did not intrude into or interfere with any law enforcement or other executive branch functions. It therefore did not violate art. 30 of the Massachusetts Declaration of Rights.

1. Findings of Fact

The Court heard testimony from Superior Court Probation Officer Gavin Flanagan and Boston Police Detectives Timothy Murray and Ludwik Bartkiewicz and admitted five exhibits into evidence. The Court finds that these witnesses were credible and credits their testimony. The Court makes the following findings of fact based on this evidence and on reasonable inferences that the Court has drawn from this evidence.

On September 17, 2014, the New Bedford District Court placed Mr. Dew on pretrial probation, with Mr. Dew's consent. Dew had been charged with five serious crimes: home invasion, assault with intent to murder, armed assault in a dwelling, malicious destruction of property, and mayhem. Judge Sabra ordered that Dew be released on $450 cash bail if he agreed to be subject to pretrial probation. The conditions of that probation included that Dew obey all laws and court orders, that he stay away from the alleged victims (who lived in New Bedford), that he stay out of New Bedford except for court dates (to ensure that he stayed away from the alleged victims), that he reside at a particular address in Dorchester, Massachusetts, that he be subject to an 8 P.M. to 6 A.M. curfew, and that he be subject to round-the-clock GPS monitoring of his location and movements. The court docket indicates that this pretrial probation was imposed " by agreement." Dew signed the pretrial probation order, and in so doing certified that he did in fact agree to be on pretrial probation and agreed to observe all of the conditions of that probation, including the GPS monitoring. Dew also signed a separate form certifying his understanding that data reflecting his GPS position would be recorded by the probation department, that those data " can be shared with my probation or parole officer, the court, attorneys and law enforcement, " and that " the data generated by the GPS equipment assigned to me is not private and confidential."

On January 2, 2015, Det. Murray began to investigate a report by a woman who said that she had been orally raped by a man she knew as Anthony at a particular address in Dorchester in late November 2014. Murray located a police incident report from December 1, 2014, concerning the same address. That report said that Mr. Dew was living there and that he was being monitored by a GPS tracking device. On January 4 Murray called the Probation Department's electronic monitoring office (" ELMO"), which confirmed that it was tracking Dew on GPS and that he was registered at the same Dorchester address from September 2014 to December 6, 2014.

At the same time, Det. Bartkiewicz was conducting a parallel investigation of regarding possible human trafficking at the same address in Dorchester. He located a number of police incident reports that referenced Dew and placed him at that address. Based on those reports, Bartkiewicz contacted Dew's probation officer for the New Bedford pretrial probation. On January 9, 2015, Bartkiewicz's supervisor (Sgt. Det. Donna Gavin) called ELMO, spoke with Gavin Flanagan, and asked the Probation Department to provide GPS coordinates showing Mr. Dew's whereabouts for specific dates during November 2014, December 2014, and January 2015. Flanagan complied. He sent the Boston Police Department color maps depicting Dew's location and movements during the specified periods. Flanagan did so because it was the Probation Department's policy and practice to provide GPS data for particular pretrial or post-conviction probationers upon request by any Massachusetts police department or by the State Police. Det. Bartkiewicz followed up by asking ELMO to provide printer-friendly lists of Dew's actual GPS locations. For some reason the Probation Department never provided the Boston police with those data in list form.

On January 13, 2015, Det. Bartkiewicz and Det. Robert Charbonnier applied for and obtained a warrant to search Mr. Dew's new residence. At least some of the information contained in the detectives' supporting affidavit was obtained as a result of the address and GPS information provided by the Probation Department.

2. Rulings of Law

For the reasons discussed below, the Court concludes that the Probation Department's collection of GPS tracking data regarding Mr. Dew and its sharing of those data with the Boston Police Department were both lawful.

2.1. Constitutional Prohibition of Unreasonable Searches

2.1.1. Consent and the Unconstitutional Conditions ...

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