Heard: May 3, 2016.
received and sworn to in the West Roxbury Division of the
Boston Municipal Court Department on November 13, 2013.
pretrial motion to suppress evidence was heard by Mary Ann
Driscoll, J, and the case was heard by her.
J. Jacobs for the defendant.
Matthew Sears, Assistant District Attorney, for the
Present: Grainger, Meade, & Wolohojian, JJ.
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.
Agreed-to GPS monitoring.
8, 2013, the defendant was charged with having committed
various crimes stemming from an incident of domestic violence
on Nancy Jones that took place two days earlier in the
Dorchester section of Boston (Dorchester case). At the
defendant's arraignment, a judge of the Dorchester
Division of the Boston Municipal Court Department (Dorchester
judge) determined that, for various reasons,  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
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.
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.
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). 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.
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.
The motion to suppress.
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.
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
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.
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
"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."
these bases, the judge found that the defendant was not
entitled to an evidentiary hearing and denied the motion to
The motion in limine.
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
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
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.
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
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
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.
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
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.
The GPS evidence.
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. We disagree for several reasons.
first matter to resolve is whether the collection and the
analysis of GPS data, as occurred here, is a search in the
constitutional sense. 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. 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.
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) .
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.
the tracking of a cellular telephone's emission of
location data unbeknownst to its owner, see
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. 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 ...