Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Commonwealth v. Johnson

Appeals Court of Massachusetts, Suffolk

April 7, 2017


          Heard: May 3, 2016.

         Complaint received and sworn to in the West Roxbury Division of the Boston Municipal Court Department on November 13, 2013.

         A pretrial motion to suppress evidence was heard by Mary Ann Driscoll, J, and the case was heard by her.

          Travis J. Jacobs for the defendant.

          Matthew Sears, Assistant District Attorney, for the Commonwealth.

          Present: Grainger, Meade, & Wolohojian, JJ.

          MEADE, J.

         After a jury-waived trial, the defendant was convicted of breaking and entering a building during the daytime with the intent to commit a felony, in violation of G. L. c. 266, § 18, and larceny in an amount more than $250, in violation of G. L. c. 266, § 30. On appeal, the defendant claims error in the admission of data generated from a global positioning system (GPS) tracking device he agreed to wear as a condition of his release after being charged with violating an abuse prevention order, see G. L. c. 209A, § 7, and that the evidence was insufficient to support his convictions of breaking and entering a building during the daytime with the intent to commit a felony, and of larceny. We affirm.

         1. Background.

         a. Agreed-to GPS monitoring.

         On July 8, 2013, the defendant was charged with having committed various crimes stemming from an incident of domestic violence on Nancy Jones[1] that took place two days earlier in the Dorchester section of Boston (Dorchester case).[2] At the defendant's arraignment, a judge of the Dorchester Division of the Boston Municipal Court Department (Dorchester judge) determined that, for various reasons, [3] the defendant should not be released on personal recognizance without surety, and instead required that he post bail in the amount of $2, 500. The Dorchester judge imposed several conditions of pretrial release, which were reflected on a printed form provided to, and signed by, the defendant. The conditions included GPS monitoring, staying away from Jones's home address in Dorchester, and staying away from Jones herself. The defendant signed this form on July 8, 2013, and, by doing so, acknowledged that he had read and understood the conditions, and that he agreed to abide by them. The form was also signed by the Dorchester judge and the chief probation officer. The defendant posted bail and was released the same day.

         b. The break-in.

         On August 31, 2013, two Boston police officers responded to the report of a residential break-in at a home in the West Roxbury section of Boston. The owner, Sarah Dundon, had returned home from a one-week vacation to discover that two jewelry boxes containing approximately $500 worth of jewelry had been stolen from her bedroom. The kitchen window at the rear of the house had been forced open, and the front door, which Dundon had locked when she left, was unlocked. These facts suggested that the thief had entered through the window and left through the door. No further investigation was conducted at this point, and the police apparently had no leads as to who might have committed the crime.

         At some point thereafter, Norfolk County law enforcement officials were conducting a criminal investigation into the defendant. As part of that investigation, they requested that an employee of the probation department review and analyze the data captured by the GPS monitor imposed as a condition of the defendant's pretrial release in the Dorchester case.

         On November 6, 2013, one of the Boston police officers who had responded to the break-in received a telephone call from Barbara McDonough of the probation department electronic monitoring program (ELMO).[4] She informed him that while "mapping" the defendant at the request of Norfolk County investigators, she had noticed and mapped the defendant to the home in West Roxbury, at about 4:20 A.M. on August 29, 2013, where the GPS data showed he remained for approximately fifteen to thirty minutes.

         Based on this information, the officer concluded there was probable cause to believe the defendant had broken into Dundon's home and stolen her jewelry. Accordingly, on November 13, 2013, by way of a complaint issued out of the West Roxbury Division of the Boston Municipal Court Department, the defendant was charged with breaking and entering a building during the daytime with the intent to commit a felony, and larceny in an amount more than $250.

         c. The motion to suppress.

         The defendant moved to suppress the GPS data that was obtained without a warrant based on his claimed expectation not to be subjected to extended GPS surveillance by the government. In his affidavit in support of his motion to suppress, he averred that as conditions of his pretrial release on his Dorchester case, he was required to stay away from Jones's address, i.e., an exclusion zone, and he was required to wear a GPS device to monitor whether he violated that condition. The defendant claimed that he did not know he would be monitored and tracked everywhere he went, and that he had not agreed to that condition. The defendant's affidavit fails to state that the conditions of release he had signed also required him to stay away from Jones herself.

         At a nonevidentiary hearing, the motion judge (who also was the trial judge) considered (1) the pleadings and arguments of the parties; (2) the docket from the Dorchester case, the case for which the defendant was on pretrial release with GPS monitoring; (3) the conditions for bail on the Dorchester case, signed by the Dorchester judge, the defendant, and the chief probation officer; and (4) the representations of the parties that the defendant's data points were first requested by Norfolk

          County investigators who were investigating similar crimes; that, in turn, an employee of the probation department contacted the Boston police when she discovered the GPS points in and around Dundon's home; that the Boston police then asked the probation department for the relevant data; and that an employee of the probation department provided the points to the Boston police.

         After hearing argument from the parties, the judge denied the motion. Although she did not conduct an evidentiary hearing, she made the findings covering the material facts set out above, and those findings are uncontroverted. In part, the judge stated as follows:

"Counsel has filed a motion to suppress GPS data evidence obtained, as he said, without a warrant. I don't think there's any question that that evidence was obtained without a warrant, and the question before me today is not whether the motion to suppress should be allowed or denied, but whether [the defendant] has any expectation of privacy in the tracking of his movements by the GPS monitor. . . .
"In this case, the defendant was -- and you can look at it in one of two ways or even, perhaps, both ways; you can look at it as an order of the court that he was ordered to be subject to GPS monitoring as a condition of his release from custody, or you can look at it that he agreed to be subject to GPS monitoring as a condition of his release from custody.
"And either way, I find that he has no expectation of privacy in his movements, because his movements are subject to GPS monitoring. He knows the device is on him. He knows what the device does; namely, monitor his movements. I don't think that you need to have a degree in electronic engineering to know that, nor do you need the testimony of someone from ELMO to tell us that. I think any reasonable person would understand that one's movements are subject to monitoring once you place the GPS -- once the GPS is placed on your person.
"And while it may be true that he was ordered to stay away from a particular location, [Jones's address], it's also true that he was ordered to stay away from [Jones]. And that order, I would take it, would be no matter where [Jones] was.
"So that while the defendant would have to understand that his movements were being monitored, and even if you read the specific stay-away narrowly, it's clear that not only is he ordered to stay away from [Jones's address], but he's also ordered to stay away from [Jones], who could be anywhere.
"So, given the fact that [the defendant] was either ordered to subject himself to GPS monitoring or agreed to subject himself to GPS monitoring, and given the fact that any reasonable person would understand that such a device does track your movements and that it's a condition of his release from custody, that he has, then, no reasonable expectation of privacy in his movements, as he knows that they are, in fact, being monitored."

         On these bases, the judge found that the defendant was not entitled to an evidentiary hearing and denied the motion to suppress.

         d. The motion in limine.

         At the start of the trial, the defendant moved in limine to exclude evidence of the "Electronic Monitoring Screen Printouts." Specifically, he moved to exclude computer screen shots that depicted the geographic location of the GPS device he wore, and data points that placed him in and around Dundon's home in the early morning hours of August 29, 2013. As grounds therefor, the defendant claimed the evidence was "misleading and confusing." After hearing argument, the judge denied the motion and admitted the evidence de bene, subject to any later motion to strike. Although the defendant did not later move to strike the evidence, he did renew his objection to the evidence as being confusing.

         e. The trial.

         During the summer of 2013, Dundon lived in a single-family home in West Roxbury. Dundon lived alone in the two-story, Cape Cod-style house, located in a quiet and friendly residential neighborhood.

         From August 25 through 31, 2013, Dundon was on vacation in Georgia and South Carolina. Her house had no alarm system, and no one stayed there while she was away. Only her parents had a set of keys to the home, and they lived in Dedham.

         As a condition of the defendant's pretrial release regarding the Dorchester case, he agreed to wear a GPS "bracelet" monitored by ELMO, and he signed a condition of release form and a GPS liability and acceptance form. A GPS bracelet is a monitor attached to a person's ankle that emits location signals. The defendant was fitted for his GPS device, it was tested, and it proved to be operational.

         The ELMO system permits both tracking of a GPS device's geographic position in real time and it may retrieve historic data points. The system records the location of a GPS device every minute by sending a signal via satellite. Also, because it can retrieve historical data, the ELMO system is able to produce maps of specific times and dates that include minute-by-minute position points for any particular GPS device.

         Because the transmission of data is satellite-based, in general, the data points are accurate ninety percent of the time, within a thirty-foot radius of the transmitted point. Historically, the ELMO system has had no problems tracking GPS devices in West Roxbury, which tends to be a "[v]ery accurate" area, i.e., one of the better areas of "the city" to track GPS data. Data points are transmitted and received by the ELMO system regardless of whether the device is inside or outside of a building.

         On August 29, 2013, between 3:40 and 5:38 A.M., the defendant's GPS device transmitted data location points that showed him to have been in and around Dundon's house for a period between fifteen to thirty minutes. Dundon identified her house as the location to which the defendant had been tracked that morning while she was away on vacation. Dundon did not know the defendant, and she had never invited or allowed him into her house. There was no evidence that the defendant's GPS device had been tampered with or removed.[5]

         When Dundon returned home from vacation on August 31, 2013, she had trouble with the lock on the front door; it was not working properly. When she got inside, she immediately realized that her house had been burglarized. Her kitchen window and screen were wide open, and she discovered various items had fallen, were broken, or were out of place. When she went upstairs in her home, she noticed that two jewelry boxes usually located on a bureau in her bedroom were missing, along with a pillowcase. Her jewelry boxes had contained various silver and gold jewelry, a watch, necklaces, bracelets, earrings, and rings, having a total value in excess of $250.[6]

         2. Discussion.

         a. The GPS evidence.

         The opening sentence of art. 14 of the Massachusetts Declaration of Rights states: "Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions." When analyzing the rights secured by art. 14, the "ultimate touchstone" for evaluating any infringement of those protections is to ask whether the governmental conduct at issue was reasonable. Commonwealth v. Entwistle, 463 Mass. 205, 213 (2012), cert, denied, 133 S.Ct. 945 (2013), quoting from Commonwealth v. Townsend, 453 Mass. 413, 425 (2009). Here, the defendant claims that the judge erred in admitting the GPS data because the "search" conducted by the police was unreasonable in light of his expectation of privacy in that data.[7] We disagree for several reasons.

         The first matter to resolve is whether the collection and the analysis of GPS data, as occurred here, is a search in the constitutional sense.[8] In some circumstances, but not those presented here, the answer is "yes." Both the United States Supreme Court and our Supreme Judicial Court have concluded that the surreptitious installation of a GPS device on a motor vehicle is a "search, " United States v. Jones, 565 U.S. 400, 404 (2012), or a "seizure." Commonwealth v. Connolly, 454 Mass. 808, 818 (2009). See Commonwealth v. Rousseau, 465 Mass. 372, 382 (2013). The United States Supreme Court has recently held, in a case sorting out the Fourth Amendment intricacies of mandatory monitoring of recidivist sex offenders, that "a State also conducts a search when it attaches a device to a person's body, without consent, for the purpose of tracking that individual's movements" (emphasis supplied). Grady v. North Carolina, 135 S.Ct. 1368, 1370 (2015). These are the cases upon which the defendant has staked his claim, and upon which the dissent relies. However, these cases are inapposite to the instant defendant's circumstances. The key distinction being that in all of the mentioned cases, the defendant did not consent to being tracked by a GPS device.[9] Rather, in those cases, it was either a statutory requirement of his release or was done without his knowledge. Thus, those cases shed no light here.

         To determine whether a search in the constitutional sense has taken place, the defendant must establish that he has an expectation of privacy in the data transmitted by his GPS device and stored in the ELMO system. See Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 3-5[b] (2016). See also Commonwealth v. Carter, 424 Mass. 409, 411-412 (1997) (under art. 14, defendant has burden of establishing that search in constitutional sense took place). This inquiry has both a subjective and an objective component. See ibid. In other words, "[t]he measure of the defendant's expectation of privacy is (1) whether the defendant has manifested a subjective expectation of privacy in the object of the search, and (2) whether society is willing to recognize that expectation as reasonable." Commonwealth v. Montanez, 410 Mass. 290, 301 (1991) . See Commonwealth v. Bly, 448 Mass. 473, 490 (2007) .

         First, we must evaluate whether this defendant, by his conduct, manifested a subjective expectation of privacy in the data emitted from the GPS device and stored in the ELMO system. See Commonwealth v. Montanez, supra. That is, whether this defendant has shown that he has made an effort to preserve the evidence in question as private. See Katz v. United States, 389 U.S. 347, 351-352 (1967); Smith v. Maryland, 442 U.S. 735, 740 (1979). The defendant has not carried this burden.

         Unlike the tracking of a cellular telephone's emission of location data unbeknownst to its owner, see Commonwealthv.Augustine, 467 Mass. 230, 252-255 (2014), S.C., 472 Mass. 448 (2015), the defendant's GPS device did not belong to him and he was wearing it for the express purpose of tracking his location.[10] Indeed, as a condition to his consented-to pretrial release, the defendant agreed to wear the device at all times and to permit continuous supervision of his whereabouts by the probation department's monitoring of the device and its transmissions. On the pretrial release order itself, which the defendant signed, he agreed to be supervised by the probation department, and to observe all of the conditions of that probation, including the GPS ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.