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Commonwealth v. Feliz

Superior Court of Massachusetts, Suffolk

April 21, 2017

Ervin Feliz No. 136569


          Robert B. Gordon, Justice of the Superior Court.

         Defendant Ervin Feliz (" Feliz" or the " defendant") has brought the present motion, by which he seeks to have the Court's imposition of GPS monitoring as a condition of his probation stricken as an unconstitutional search and seizure under the Fourth Amendment of the U.S. Constitution and article 14 of the Massachusetts Declaration of Rights. For the reasons that follow, the defendant's motion shall be DENIED .


         On April 22, 2016, Feliz pleaded guilty to two counts of possession of child pornography in violation of G.L.c. 272, § 29C, and five counts of dissemination of child pornography in violation of G.L.c. 272, § 29B(a). The subject crimes entailed Feliz's possession and online posting of large amounts of child pornography, in which prepubescent (in some instances toddler-aged) male children were depicted engaged in explicit sex acts with adult males.[1] For the two possession offenses, the Court (Krupp, J.) sentenced Feliz to two concurrent terms of 2 1/2 years in the House of Corrections, suspended for five years. For each of the dissemination charges, the Court sentenced Feliz to concurrent five-year terms of probation. Among the conditions of the defendant's probation, the Court ordered Feliz to have no contact with children under the age of 16, to remain at least 300 feet from schools, parks and day care facilities, and to wear a Global Positioning System (" GPS") device at all times during the pendency of his probationary term. Mandatory GPS monitoring throughout the course of this convicted sex offender's probation sentence was in accordance with the express requirements of G.L.c. 265, § 47 (" Section 47").

         Pursuant to the terms of his probationary sentence, Feliz was outfitted with a GPS ankle bracelet and placed under the supervision of the Suffolk County Superior Court Probation Department. In this connection, Feliz signed an Order of Probation Conditions Form, an Electronic Monitoring Program Enrollment Form, and an Equipment Liability Acceptance Form. Feliz now asserts that the imposition of GPS monitoring as a condition of probation, both on its face and as applied to him, violates his right to be free from unreasonable searches and seizures under the Fourth Amendment of the U.S. Constitution and article 14 of the Massachusetts Declaration of Rights.

         On February 10, February 17 and February 24, 2017, and in accordance with the dictates of Grady v. North Carolina, 135 S.Ct. 1368, 1370, 191 L.Ed.2d 459 (2015), the Court held an evidentiary hearing addressed to the reasonableness of the defendant's mandatory GPS monitoring under Section 47. The Court heard testimony from six witnesses: Feliz; Edward Phillips (the defendant's Probation Officer); Probation Officer Thomas Connolly; Daniel Pires (the Electronic Monitoring Program Coordinator in Massachusetts); Dr. Joseph Plaud; and Dr. Gregory Belle. The undersigned finds that these witnesses testified truthfully and, in most material respects, consistently with one another throughout; although not all of their testimony bears relevantly on the issues presented in the motion before the Court. Based on this credited testimony, which is adopted except to the extent expressly noted infra, the Court here issues the following findings of pertinent fact.


         A. GPS Monitoring in Massachusetts

         In Massachusetts, GPS enrollees like Feliz are monitored by the Electronic Monitoring Center (" ELMO") in Clinton, Massachusetts. At present, 3, 195 people are subject to such GPS monitoring, a number that includes both pre-trial (defendants on bail) and post-conviction (parolees and probationers) enrollees.[2] The GPS bracelets used are leased to ELMO by the 3M Corporation, and data is transmitted from these devices to ELMO servers equipped with 3M computer software.

         The GPS devices worn by probationers (typically on the ankle) collect latitude and longitude location information through satellites, once per minute, and then transmit this time-referenced data over a cellular network maintained by Verizon Corporation. Recorded data also includes the speed and direction in which the bracelet-wearing individual is traveling. 3M reports that the location information so harvested is 90% accurate within 30 feet.[3] Transmitted data is stored by ELMO indefinitely.

         The GPS system operated by ELMO is based on " alerts" that are monitored by employees known as Assistant Coordinators. This means that a probationer's location data, though collected, is not ordinarily being examined in real time unless an alert has issued. When an alert issues, an Assistant Coordinator is notified (on his/her computer screen) and he or she will then address the issue. This typically entails contacting the probationer; and, in the vast majority of cases, the matter is resolved without an arrest warrant being issued.[4]

         ELMO alerts issue in a variety of contexts, and call for different types of responses. For example, a probationer who violates an established exclusion zone (such as by failing to remain at least 300 feet away from identified victims) will trigger an " Exclusion Zone" alert. A cellular signal or connectivity problem will produce an " Unable to Connect" alert. A probationer's failure to keep the GPS battery properly charged will result in a " Charging" alert. A GPS device that has been cut off, broken or otherwise tampered with will generate a " Tampering" alert. And so forth. Each of these alerts precipitates a different kind of intervention from law enforcement; and, because many of the alerts arise in innocent circumstances, [5] warrants for the arrest of the probationer are relatively uncommon.

         Much of the testimony at hearing addressed the limitations of ELMO's alerts system, and the practical problems and life inconveniences that can arise as a result. Charging alerts, for example, which are triggered when the GPS's battery is running low, are frequent. Probationers are advised to charge the device once or twice per day, as the battery is only designed to stay charged for 24 hours. Battery life has also been observed to decline after two years, requiring probationers to obtain replacements.

         Signal and connectivity alerts, which typically issue when the probationer travels to a location or structure with poor cellular coverage, are likewise not uncommon, although reliability has improved substantially since ELMO upgraded its hardware to Verizon 4G equipment in 2017. When a probationer experiences a problem of this nature, he may be directed to go outside or walk around the block to restore the connection. But this is an infrequent occurrence, and very few issues of this nature have been observed by ELMO management since the Verizon upgrade.

         The ability of GPS to monitor exclusion zones is another matter of significant limitation. The software utilized by ELMO allows for " rules" to be coded into individual GPS devices, such as the definition of an exclusion zone that will trigger an alert if the probationer comes within the distance parameter established by the sentencing judge. Feliz's injunction to remain at least 300 feet from schools, parks and day care centers is a conventional limitation; but ELMO cannot code and monitor the restriction in such a broad manner, as it requires specified addresses to define an exclusion zone. So while specific schools, parks and day care facilities can be entered into the software program for particular probationers ( e.g., the ones closest to where the probationer lives or works and would thus be most likely to frequent), ELMO cannot define an exclusion zone to include all such venues. However, because the system is collecting location data in an undifferentiated manner, law enforcement can examine a GPS device's points after a given crime has been committed, and thereby determine if the subject probationer was at the scene at the time of such crime's commission. Thus, while an alert will not necessarily issue in real time whenever a probationer happens to pass within 300 feet of a park, school or day care center--which would create an obvious problem of over-alerting, given the ubiquity of these venues in the modern city[6]--the ability of law enforcement to connect a probationer to a particular site post hoc means that GPS is both a useful tool of crime detection and a deterrent to crimes a given probationer might otherwise be tempted to commit.

         B. Feliz's Experience With GPS

         Since his April 22, 2016 sentencing, the defendant has been subject to continuous GPS monitoring under the supervision of Probation Officer Edward Phillips (" P.O. Phillips") of the Suffolk County Superior Court Probation Department. As a sex offender, Feliz is required by law to report to his Probation Officer every two weeks, provide proof of residency and employment, and maintain the GPS device on his person and in good working order. Although P.O. Phillips testified that he could not recall receiving alerts from ELMO related to the defendant's GPS monitoring, documentation introduced at hearing disclosed that Feliz's device has triggered 13 alerts over the past year.[7] Virtually all of these alerts concerned power and connectivity issues, and were resolved in an average of 22 minutes. A small number required somewhat more time (a few hours) for ELMO to resolve, but none resulted in the issuance of an arrest warrant or otherwise imposed extraordinary hardships on Feliz.

         At hearing, Feliz testified to other, undocumented problems he has experienced with his GPS device. The undersigned finds that these asserted inconveniences have been substantially overstated, both in number and severity. Thus, although Feliz testified that he continues to suffer GPS malfunctions or connectivity failures on the order of several times per month, this testimony was in stark conflict with the testimony of P.O. Phillips, is unsupported by the contemporaneous documentary evidence, and is not credited by the Court. The preponderant evidence shows that Feliz's GPS bracelet is working substantially as it is designed to do, that false alerts are infrequent, and that the overall reliability of the monitoring system has improved since the change-over to 4G equipment that occurred in 2017.[8]

         Although Feliz is required to wear his GPS at all times, the Court observes that an accommodation was made in May 2016 when he needed to remove it so that he could undergo an MRI procedure. Likewise, although GPS-wearers are discouraged from submerging the device in a bathtub or swimming pool, [9] the Court credits the testimony of P.O. Phillips that showering can take place in a normal fashion. Despite the occasional inconvenience and feeling of stigma that Feliz has experienced while on GPS as a probationer, he has been able to maintain full-time employment and has developed a substantial network of family and close friends to support him. Apart from this instance, Feliz has not been charged with or convicted of any additional sex offenses or other crimes.

         C. Sex Offenders' Risk of Re-Offense and GPS Monitoring's Deterrence of Sex Crime

         A good deal of the testimony taken at hearing addressed the risks of re-offense posed by internet sex offenders[10] and the extent to which GPS monitoring mitigates such risks. Although the testifying experts (Dr. Plaud for the defendant, Dr. Belle for the Commonwealth) did not agree on all points, many of the conclusions they offered based on the available social science research aligned in material respects. Thus, both experts testified that the rates of recidivism for sex offenders is lower than the rates of re-offense for all crimes; [11] and at least one study concluded that the relative risk of re-offense posed by internet sex offenders is lower still. However, Dr. Belle opined that internet child pornography offenders with an anti-social behavioral disorder present a moderate to high risk of committing a contact sexual offense in the future; and internet offenders without such a disorder present a low to moderate risk of committing a contact sexual offense in the future. The Court credits this testimony.[12]

         Further to the above, Drs. Belle and Plaud agree that persons who possess and disseminate child pornography display a deviant sexual interest in--that is, a sexual attraction to--children. Dr. Belle opined that permitting persons with such a sexual interest to have access to children is worrisome, and the Court credits this testimony. Although neither expert could cite published social science research on the point, both agreed as a logical matter that, because of their evident sexual interest in children, internet offenders (with or without an anti-social behavioral disorder) are substantially more likely to commit a contact offense with children than members of the general public. The Court credits this testimony as well.

         The impact of GPS monitoring on the risk and rate of sex offender recidivism does not appear to have been the subject of significant empirical study. There have, however, been a few published studies that suggest that GPS monitoring does lower rates of recidivism among sex offenders.[13] Empiricism aside, Dr. Plaud acknowledged that, because GPS can pinpoint a defendant's location at the time a sex offense is committed, and because defendants know this, the imposition of GPS monitoring on sex offenders logically (at least to some degree) operates to deter such crimes and lower the risk of re-offense. The Court accepts this common-sense conclusion.

         In addition to deterring contact offenses (whatever level of risk might be posed by those convicted of possession of internet child pornography), GPS monitoring likewise facilitates the investigation of non-contact offenses. Law enforcement officers frequently investigate the dissemination of child pornography by ascertaining the internet protocol (" IP") address that was utilized to upload the images. Because the IP address is traceable to a physical location, GPS location data can confirm or refute whether the device-wearer was at such location at the time of an offending upload. This, in turn, the Court infers, logically operates to deter child pornographers from committing even non-contact offenses.

         Finally, GPS monitoring furthers the rehabilitation-oriented goals of probation by allowing a probationer's addresses to be verified in real time. Through GPS, a probation officer is able to confirm that his/her charge is continuing to reside at the home address he has reported, adhering to court-imposed curfews, continuing to work at the places of employment and during the hours of service claimed, and attending all required rehabilitative programs.



         Section 47 provides in relevant part as follows:

Any person who is placed on probation for any offense listed within the definition of " sex offense, " a " sex offense involving a child" or a " sexually violent offense, " as defined in section 178C of chapter 6, shall, as a requirement of any term of probation, wear a global positioning system device . . . at all times for the length of his probation for any such offense. The commissioner of probation . . . shall establish defined geographic exclusion zones including, but not limited to, the areas in and around the victim's residence, place of employment and school and other areas defined to minimize the probationer's contact with children, if applicable. If the probationer enters an excluded zone . . . the probationer's location data shall be immediately transmitted to the police department . . .

G.L.c. 265, § 47. In Commonwealth v. Guzman, 469 Mass. 492, 14 N.E.3d 946 (2014), the SJC held that this statute did not violate a probationer's due process rights, but noted in dictum that " the sanction of GPS monitoring appears excessive to the extent that it applies without exception to convicted sex offenders sentenced to a probationary term, regardless of any individualized determination of their dangerousness or risk of re-offense." Id. at 500 (quotations and alterations omitted). The Court nonetheless abjured consideration of the issue currently before the undersigned, viz., whether the GPS requirement constitutes an unreasonable search or seizure, since such questions " are necessarily fact-dependent . . . [and] neither the Commonwealth nor the defendant [had] presented evidence concerning the details of the GPS monitoring to which the defendant is subject." Id.

         Subsequently, in Grady v. North Carolina, 135 S.Ct. 1368, 1371, 191 L.Ed.2d 459 (2015), the U.S. Supreme Court held that a North Carolina statute imposing mandatory GPS requirements similar to those required by Section 47 gave rise to a search for Fourth Amendment purposes. The statute at issue required the " continuous tracking of the geographic location of the subject" and the " [r]eporting of the subject's violation of prescriptive and proscriptive schedule or location requirements." Id. The Court noted, however, that its conclusion did " not decide the ultimate question of the program's constitutionality, " which turned on the reasonableness of North Carolina's monitoring program " when properly viewed as a search." Id. The Court expressly declined to consider the reasonableness of North Carolina's GPS program in the first instance, and remanded the case for further proceedings to review the search in light of the totality of the circumstances, " including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations." Id.

         The defendant in the case at bar requests that we pick up where the Supreme Court left off in Grady, and review whether Section 47 imposes unconstitutional searches under the Fourth Amendment and article 14. Inasmuch as Grady has already concluded that the imposition of GPS monitoring is, indeed, a search in the constitutional sense, the burden rests upon the Commonwealth to show that it is reasonable. See Commonwealth v. Berry, 420 Mass. 95, 105-06, 648 N.E.2d 732 (1995). The Court is unaware of any legal authority (and the parties have offered conflicting, but largely unsubstantiated, arguments on the subject) addressing whether the hearing contemplated by Grady requires an examination of Section 47 as it applies generally in Massachusetts or as it applies to the defendant personally. For this reason, the Court shall review Section 47's constitutionality through both perspectives.[14]


          Article 14 and the Fourth Amendment do " not proscribe all searches and seizures, but only those that are unreasonable." Skinner v. Railway Executives' Ass'n, 489 U.S. 602, 619, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). What is " reasonable" depends on the totality of the circumstances surrounding the search or seizure, and is determined by weighing " the nature and purpose of the search" against " the extent to which the search intrudes upon reasonable privacy expectations." Grady, 135 S.Ct. at 1371; see also Commonwealth v. Catanzaro, 441 Mass. 46, 56, 803 N.E.2d 287 (2004) (" There is no ready test for reasonableness except by balancing the need to search or seize against the invasion that the search or seizure entails").

         Generally, in criminal cases, the constitutional balance is struck pursuant to the warrant and individualized suspicion requirements of the Fourth Amendment and article 14. See Skinner, 489 U.S. at 619; Commonwealth v. Shields, 402 Mass. 162, 169, 521 N.E.2d 987 (1988). A reasonableness analysis performed under what is known as the " special needs" doctrine, however, provides an exception to this general rule. See Ferguson v. Charleston, 532 U.S. 67, 79 n.15, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001) (special needs doctrine " has been used to uphold certain suspicionless searches performed for reasons unrelated to law enforcement, [and] is an exception to the general rule that a search must be based on individualized suspicion of wrongdoing") (quotation omitted).

          When faced with " special needs" that render individualized suspicion and/or obtaining a warrant impracticable, the Court must determine whether the government's situational needs outweigh its citizens' reasonable expectation of privacy. See id. ; O'Connor v. Police Comm'r of Boston, 408 Mass. 324, 327, 557 N.E.2d 1146 (1990), quoting National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). A " blanket suspicionless" search is reasonable, and thus constitutional under the special needs exception, where " the risk to public safety is substantial and real" and the search at issue is " calibrated to the risk . . ." Chandler v. Miller, 520 U.S. 305, 323, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997); accord Commonwealth v. Rodriguez, 430 Mass. 577, 580, 722 N.E.2d 429 (2000). " We are particularly reluctant to recognize exceptions to the general rule of individualized suspicion where governmental authorities primarily pursue their general crime control ends." Indianapolis v. Edmond, 531 U.S. 32, 43, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000).

         Many decisions reviewing the constitutionality of a search or seizure purported to intrude on a probationer's or parolee's privacy interests rest on something of a hybrid of the totality of the circumstances and special needs analyses. In Griffin v. Wisconsin, 483 U.S. 868, 875, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), for example, the U.S. Supreme Court held that the " special needs of the probation system" permitted a search of a probationer's person or residence without a warrant or probable cause. Griffin did not, however, find that the searches at issue met Fourth Amendment requirements based on special needs alone. Id. at 878-79. Equally important was the fact that the contested regulation permitting the warrantless searches required probation officers to have " reasonable grounds to believe" that the search would lead to the discovery of contraband. Id. Although Griffin 's invocation of the special needs exception did not do away with the need for individualized suspicion entirely, it suggested that there is a constitutionally significant distinction between special needs searches of individuals under penal supervision and special needs searches of the general public. See Ferguson, 532 U.S. at 79 n.15 (" We agree with petitioners that Griffin is properly read as limited by the fact that probationers have a lesser expectation of privacy than the public at large").

         Subsequently, in United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), the Supreme Court left open the question of whether suspicionless searches of probationers are permitted under the Fourth Amendment when conducted for law enforcement purposes alone:

We do not decide whether the probation condition so diminished, or completely eliminated, Knight's reasonable expectation of privacy . . . that a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment. The terms of the probation condition permit such a search, but we need not address the constitutionality ...

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