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Commonwealth v. Johnson

Supreme Judicial Court of Massachusetts, Plymouth

March 26, 2019

COMMONWEALTH
v.
JAMIE B. JOHNSON.

          Heard: September 5, 2018.

         Indictments found and returned in the Superior Court Department on March 14, 2014. A pretrial motion to suppress evidence was heard by Cornelius J. Moriarty, II, J., and the cases were heard by Jeffrey A. Locke, J.

         The Supreme Judicial Court granted an application for direct appellate review.

          Timothy St. Lawrence for the defendant.

          Gail M. McKenna, Assistant District Attorney (Brian S. Fahy, Assistant District Attorney, also present) for the Commonwealth.

          Matthew Spurlock, Committee for Public Counsel Services, for Committee for Public Counsel Services & another, amici curiae, submitted a brief.

          Maura Healey, Attorney General, & Sarah M. Joss, Special Assistant Attorney General, for Massachusetts Probation Service, amicus curiae, submitted a brief.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          KAFKER, J.

         Following a jury-waived trial, the defendant was convicted of two counts of breaking and entering in the daytime, G. L. c. 266, § 18; one count of breaking and entering in the nighttime, G. L. c. 266, § 16; two counts of larceny over $250, G. L. c. 266, § 30; and one count of larceny of $250 or less, G. L. c. 266, § 30. At trial, the Commonwealth produced evidence matching the time and location of these crimes to historical global positioning system (GPS) location data recorded from the GPS monitoring device (GPS device) that was attached to the defendant as a condition of his probation. Before trial, the defendant had moved to suppress this evidence, arguing that the Commonwealth's act of accessing and reviewing this GPS location data was an unreasonable search under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. The motion was denied.

         On appeal, the defendant claims that (i) the motion judge erred in denying his motion to suppress after concluding that the Commonwealth did not commit a search in the constitutional sense when it accessed the historical GPS location data recorded from the defendant's GPS device without a warrant, and (ii) the evidence at trial was not sufficient to support the defendant's convictions on the charge of breaking and entering in the nighttime and one of the charges of larceny over $250.

         For the reasons stated below, we conclude that although the original imposition of GPS monitoring as a condition of the defendant's probation was a search, it was reasonable in light of the defendant's extensive criminal history and willingness to recidivate while on probation. We also conclude that once the GPS device was attached to the defendant, he did not possess a reasonable expectation of privacy in data targeted by police to determine his whereabouts at the times and locations of suspected criminal activity that occurred during the probationary period. Accordingly, no subsequent search in the constitutional sense under either art. 14 or the Fourth Amendment occurred. Finally, we conclude that the evidence introduced at trial was sufficient to support the trial judge's finding, beyond a reasonable doubt, that the defendant committed the crimes of breaking and entering in the nighttime and both charges of larceny over $250. We therefore affirm the motion judge's denial of the motion to suppress and the defendant's convictions.[1]

         Background.

         1. Motion to suppress.

         We summarize the facts as found by the judge who decided the motion to suppress, supplementing those findings with undisputed facts from the documentary evidence that was before the motion judge. See Commonwealth v. Monroe, 472 Mass. 461, 464 (2015).

         In April 2012, the defendant appeared in the District Court for a probation violation hearing on four criminal dockets stemming from his prior convictions of receipt of stolen property and restraining order violations. The probation surrender was based on new charges that included breaking and entering and larceny from a building. After stipulating to the probation violation, the defendant asked for an extension of his probation subject to the added condition that he wear a GPS device on his ankle. The hearing judge accepted the request and ordered an extension of the defendant's probation for an additional six months with the added condition of GPS monitoring.

         Between May and September 2012, while the defendant was on probation and subject to GPS monitoring, several break-ins occurred at homes in Hanson, Marshfield, and Pembroke. Approximately one year after these break-ins, in September 2013, the defendant was arrested near the scene of a separate break-in in Randolph. Randolph police became aware that the defendant had at one time been outfitted with a GPS device. Randolph police then contacted a Marshfield police detective and suggested that she contact the probation department to review the defendant's historical GPS location data records during the approximate times of the unsolved break-ins. Marshfield police and probation officers thereafter accessed the defendant's historical GPS location data records and cross-referenced his location with the times and locations of the break-ins. They discovered that the defendant was at or near the scene of each break-in at approximately the same time that each home was broken into. The defendant was then indicted and charged with multiple counts of breaking and entering and larceny.

         Before trial, the defendant moved to suppress the historical GPS location data, arguing that the Commonwealth's act of accessing and reviewing this data without a warrant was an unreasonable search in violation of the Fourth Amendment and art. 14. The motion judge concluded that the Commonwealth's conduct did not amount to a search in the constitutional sense under either the Fourth Amendment or art. 14 and denied the defendant's motion. The case then moved to trial.

         2. The defendant's trial.

         One of the break-ins for which the defendant was charged and convicted occurred at a home in Marshfield on or about September 1, 2012. The defendant was convicted of breaking and entering the home in the nighttime and of larceny over $250. The defendant now appeals, arguing that there was not sufficient evidence to support the two convictions related to this break-in. We recite the facts the trial judge could have found with respect to these charges in the light most favorable to the Commonwealth, reserving other details for discussion when relevant to the issues raised. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979) .

         From August 31, 2012, to September 3, 2012, the homeowners left their home to visit friends in New Hampshire. On September 3, 2012, the homeowners returned home; discovering broken glass spread over the floor of their garage, they called local police. They soon discovered that several pieces of jewelry, approximately $400 in cash, and other sentimental items were missing from their home.

         During the August 31 to September 3 time frame, the defendant's ankle was affixed with a GPS device as a condition of probation.[2] Evidence elicited at trial showed that while wearing a GPS device, a probationer's location is recorded and stored by the device once every minute. This recorded location data is then transmitted to the probation service's electronic monitoring program (ELMO) system once every hour. Once the location data is uploaded to the ELMO system, it can be accessed by probation officers and displayed on electronically generated maps to pinpoint the probationer's location on a minute-by-minute basis. If the probationer is stationary or moving slowly when his or her location is recorded by the GPS device, a green dot will appear on the map. Because the probationer's location is recorded every minute, if a probationer remains stationary for more than a few minutes, a cluster of green dots will appear on the map. If the probationer is in motion when his or her location is recorded by the device, however, a green arrow will appear on the map to indicate the speed and direction of the probationer's movement.

         The defendant's GPS device transmitted location data to the ELMO system, establishing that he was in the vicinity of the home in question on the night of September 1, 2012, and early morning of September 2, 2012. Specifically, a map generated by the ELMO system showed several green arrows on the street in front of the home, confirming that the defendant was traveling on that street at approximately 9:23 and 9:51 P_.M. on September 1. The map also placed the defendant, represented by a single green dot, directly in front of, if not on, the property on September 1. An additional map generated by the ELMO system revealed that the defendant was near the home just after midnight on September 2, 2012, and showed a cluster of green dots directly on and around the home that same day.

         At the close of trial, the judge found the defendant guilty of the charges of breaking and entering that home in the nighttime and of larceny over $250. The defendant moved for required findings of not guilty on these charges, but was denied. The defendant appealed from this denial, and we granted his application for direct appellate review.

         Discussion.

         1. Motion to suppress.

         On appeal, the defendant challenges the Commonwealth's act of accessing the historical GPS location data recorded from his GPS device, arguing that the retrieval and review of this data without a warrant was an unreasonable search under the Fourth Amendment and art. 14. Ordinarily, in reviewing a ruling on a motion to suppress, we accept the motion judge's "subsidiary findings of fact absent clear error," but we "review independently the application of constitutional principles to the facts found" (citation omitted). Commonwealth v. Mauricio, 477 Mass. 588, 591 (2017). However, we review any factual "findings of the motion judge that were based entirely on the documentary evidence" de novo. Monroe, 472 Mass. at 464, quoting Commonwealth v. Thomas, 469 Mass. 531, 539 (2014). Because the motion judge here conducted a nonevidentiary hearing at which the evidence was stipulated, "we are in the same position as the motion judge" to assess the documentary evidence put forward by the parties.[3] Monroe, supra, quoting Thomas, supra at 535 n.4. See Commonwealth v. Tremblay, 480 Mass. 645, 654-655 (2018) ("We now affirm the principle that an appellate court may independently review documentary evidence, and that lower court findings drawn from such evidence are not entitled to deference").

         The Fourth Amendment and art. 14 protect individuals from "unreasonable searches" and "seizures." For the protections of either the Fourth Amendment or art. 14 to apply, however, the Commonwealth's conduct must constitute a search in the constitutional sense. Commonwealth v. Magri, 462 Mass. 360, 366 (2012). In its most traditional form, a search occurs when "the Government obtains information by physically intruding on a constitutionally protected area" (citation omitted). Grady v. North Carolina, 135 S.Ct. 1368, 1370 (2015) (per curiam). A search in the constitutional sense may also occur, however, "when the government's conduct intrudes on a person's reasonable expectation of privacy." Commonwealth v. Augustine, 467 Mass. 230, 241 (2014), S.C., 470 Mass. 837 and 472 Mass. 448 (2015). See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). An individual has a reasonable expectation of privacy (i) if the individual has "manifested a subjective expectation of privacy in the object of the search," and (ii) if "society is willing to recognize that expectation as reasonable" (citation omitted). Augustine, supra at 242. The defendant bears the burden of establishing that the governmental conduct violated his or her reasonable expectations of privacy. Commonwealth v. Miller, 475 Mass. 212, 219 (2016).

         In the instant case, 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 after the defendant's probationary period had expired. For the reasons set forth infra, we conclude that although the initial imposition of the GPS monitoring for probationary purposes was a search in the constitutional sense under the Fourth Amendment and art. 14, it was a reasonable one. We also conclude that the police's subsequent act of accessing and reviewing the historical GPS location data after the defendant's probationary period had expired to determine whether he was present at the general time and place of particularly identified crimes did not constitute a search under either the Fourth Amendment or art. 14, because the defendant had no reasonable expectation of privacy in this data.

         a. The power and potential of GPS technology.

         As explained supra, a search in the constitutional sense may occur "when the government's conduct intrudes on a person's reasonable expectation of privacy." Augustine, 467 Mass. at 241. This court and the United States Supreme Court have recognized the difficulty of defining expectations of privacy that are implicated by novel applications of new technologies. Both courts have emphasized, however, that privacy rights cannot be left at the "mercy of advancing technology" but rather must be preserved and protected as new technologies are adopted and applied by law enforcement. See, e.g., Kyllo v. United States, 533 U.S. 27, 35 (2001) (prohibiting law enforcement's warrantless use of thermal imaging device to look into home so as not to leave privacy rights "at the mercy of advancing technology"); Olmstead v. United States, 277 U.S. 438, 473 (1928) (Brandeis, J., dissenting) (noting that courts must be vigilant to guard against "[s]ubtler and more far-reaching means of invading privacy [that] have become available to the government"); Augustine, supra at 250-251 (restricting law enforcement's use of cell site location information [CSLI] to track individuals due to intrusion of privacy interests). We are now tasked with addressing these concerns in the context of law enforcement's use of a probationer's GPS location data for investigatory purposes.

         As this court and the Supreme Court have held in recent years, there is no question that the government's extensive collection and examination of personal location data can intrude on an individual's reasonable expectation of privacy, at least for an individual who is not a probationer. The Supreme Court has emphasized in the Fourth Amendment context that individuals have a reasonable expectation of privacy in a detailed comprehensive documentation of their physical movements over an extended period of time due to the amount of sensitive and private information that can be gleaned from this data. Carpenter v. United States, 138 S.Ct. 2206, 2217, 2218 (2018) ("individuals have an expectation of privacy in the whole of their physical movements"). The same is true under art. 14. See Augustine, 467 Mass. at 253; Commonwealth v. Rousseau, 465 Mass. 372, 382 (2013). Much less clear, however, is how such decisions apply to probationers who have GPS devices attached to them as a condition of probation.

         As is the case when an individual carries a cellular telephone or has a GPS device attached to his or her vehicle, a probationer's precise location is continuously tracked while he or she is wearing a GPS device as a condition of probation. See Augustine, 467 Mass. at 253; Rousseau, 465 Mass. at 382. Because law enforcement cannot similarly and continually track a probationer's location and monitor them in real time, or at least do so without extraordinary expense, the historical GPS location data gives probation officers and police "access to a category of information otherwise unknowable." Carpenter, 138 S.Ct. at 2217-2218. See United States v. Jones, 565 U.S. 400, 415-416 (2012) (Sotomayor, J., concurring). See also Carpenter, supra at 2218 ("With just the click of a button, the Government can access . . . [a] deep repository of historical location information at practically no expense"). 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. Augustine, supra at 251. See Jones, supra at 415 (Sotomayor, J., concurring) ("GPS monitoring generates a precise, comprehensive record of a person's public movements . . ."). This is particularly true where the tracking takes place over a long period of time. Augustine, supra at 253 ("when . . . tracking takes place over extended periods of time . . . the cumulative nature of the information collected implicates a privacy interest on the part of the individual who is the target of the tracking"). In cases of an extended probationary period, the Commonwealth is able to collect and archive an enormous volume of location data.[4] With this location data at its disposal, the Commonwealth could conceivably reconstruct a complete mapping of a probationer's movements throughout the probationary period if it chose to do so. See Carpenter, 138 S.Ct. at 2217. In so doing, the Commonwealth would be able to discover an extensive amount of sensitive and private information about a probationer's life. See Id.; Augustine, 467 Mass. at 248-249. As the Supreme Court recently explained in Carpenter, supra at 2217, in the context of CSLI, location records "hold for many Americans the privacies of life" and "provide[] an intimate window into a person's life, revealing not only his [or her] particular movements, but through them his [or her] familial, political, professional, religious, and sexual associations" (quotations and citations omitted).

         With this understanding of the power and the potential of this technology, we turn to the particular legal issues presented by the attachment of a GPS device to a probationer with a lengthy criminal history as a condition of probation, and to the subsequent act of accessing and reviewing this location data by the police after the expiration of his or her probationary period.

          b. Imposition of GPS monitoring as a condition of probation.

         In 2015, in Grady, 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." Grady, 135 S.Ct. at 1370. There, the Court considered the constitutionality of a North Carolina statute that required recidivist sex offenders to be subjected to GPS monitoring. Id. at 1369. After determining that the GPS monitoring was "plainly designed to obtain information," and did so by "physically intruding on a subject's body," the Court concluded that it was a search under the Fourth Amendment. Id. at 1371. Imposing GPS monitoring as a condition of probation is also a search in the constitutional sense under art. 14. Commonwealth v. Feliz, 481 Mass., (2019) . Accordingly, the Commonwealth conducted a search of the defendant when the GPS monitoring condition was imposed on the defendant in this case.[5] See Grady, supra at 1371; Feliz, supra.

          As the Grady Court also explained, such a search is constitutional only if it was reasonable. Grady, 135 S.Ct. at 1371. See Feliz, 481 Mass. at; Commonwealth v. Entwistle, 463 Mass. 205, 213 (2012), cert, denied, 568 U.S. 1129 (2013) ("the ultimate touchstone of . . . art. 14 is reasonableness" [quotation and citation omitted]). Article 14 requires an "individualized determination" of the reasonableness of subjecting a defendant to GPS monitoring as a condition of probation. Feliz, supra at . In making this determination, courts must balance "the Commonwealth's need to impose GPS monitoring against the privacy invasion occasioned by such monitoring." Feliz, supra at . See Grady, supra. Courts may consider a "constellation of factors," including, among others, the intrusiveness of the search; the defendant's particular circumstances, such as his or her criminal convictions, past probation violations, or risk of recidivism; and the probationary purposes, if any, for which the monitoring was imposed. Feliz, supra at (analyzing goals of probation and defendant's likelihood to recidivate in balancing test). See Grady, supra (noting that reasonableness depends on "the totality of the circumstances"). No single factor, however, is dispositive in every case. Feliz, supra at

         Prior to the imposition of GPS monitoring as a condition of his probation, the defendant in this case was on probation for several convictions, including receiving stolen property and restraining order violations. The defendant thereafter violated his probation when he was charged with breaking and entering in the nighttime and larceny from a building. At the probation violation hearing, the defendant stipulated to the violations and requested that he be subject to GPS monitoring in an effort to avoid incarceration. The judge extended his probation for six months and ordered the GPS monitoring. At the hearing, the judge was clearly concerned about the defendant's likelihood to recidivate in the future. Specifically, the judge ordered the defendant to be held pending the installation of the GPS device to his ankle because the judge was "not comfortable" releasing the defendant to the public until it was determined when he could be "hooked up" with the GPS device and tracked.

         In light of the defendant's criminal convictions, and past probation violations, the record makes clear that GPS monitoring was imposed on the defendant for the legitimate probationary purposes that this court and the Supreme Court have previously identified. See United States v. Knights, 534 U.S. 112, 120-121 (2001); Feliz, 481 Mass. at; Commonwealth v. Lapointe, 435 Mass. 455, 459 (2001). These include deterring the probationer from engaging in criminal activity and detecting such criminal activity if it occurs. See Knights, supra; Lapointe, supra; Commonwealth v. Power, 420 Mass. 410, 415 (1995), cert, denied, 516 U.S. 1042 (1996). Although we have recognized that the imposition of GPS monitoring as a condition of probation significantly burdens a probationer's liberty, Feliz, supra at, we conclude that the intrusiveness of the GPS monitoring condition imposed on the defendant-probationer's already diminished privacy expectations[6] was outweighed by the governmental interests served by such monitoring, including but not limited to the deterrence and detection of criminal activity during the probationary period. Accordingly, the defendant's particular circumstances rendered the imposition of GPS monitoring as a condition of his probation for six months reasonable under the Fourth Amendment and art. 14. Cf. Belleau v. Wall, 811 F.3d 929, 936-937 (7th Cir. 2016) (mandatory imposition of GPS monitoring for probationer pursuant to statute reasonable where defendant was recidivist sex offender). Contrast Feliz, supra at (GPS monitoring condition unreasonable in defendant's particular circumstances where, among other factors, Commonwealth presented insufficient evidence that defendant posed threat of "reoffending, or otherwise of violating the terms of his probation").

          c. Law enforcement's subsequent access to historical GPS location data. Having found the condition of probation subjecting the defendant to GPS monitoring for six months to be a reasonable search, we next address the constitutionality of the Commonwealth's subsequent act of accessing the historical GPS location data recorded from the defendant's GPS device. The Commonwealth's retrieval and review of this historical data requires a separate constitutional inquiry under the Fourth Amendment and art. 14 because it was conducted by the police, not the probation service, for investigatory, rather than probationary, reasons. It was also conducted after the defendant's probationary period had ended.

         This type of governmental conduct is distinct from the periodic review of a probationer's GPS location by probation officials. The decision to review the GPS location data was not, for example, the result of the defendant entering an exclusionary zone, which would trigger an alert to a probation official. Nor was this a review of the defendant's location by a probation official to ensure compliance with any of the defendant's other conditions of probation. Rather, the review here was undertaken on the basis of law enforcement's hunch that the defendant may have been responsible for various unsolved housebreaks that took place in the preceding months. Accordingly, it requires a separate constitutional analysis.

          i. Subjective expectation of privacy. To claim a reasonable expectation of privacy, the defendant must first "manifest[] a subjective expectation of privacy in the object of the search" (citation omitted). Augustine, 467 Mass. at 242. The defendant here requested and agreed to the GPS monitoring as a condition of his probation. He also averred in his affidavit in support of his motion to suppress that he was told that "the purpose of the GPS bracelet was to ensure that [he] did not enter any exclusionary zones."[7] At minimum, the defendant knew that he was subject to GPS monitoring and that his location could be broadcast to probation officials under certain circumstances.[8]

          What the defendant subjectively understood his expectation of privacy to be while wearing the GPS device in this case is not perfectly clear. Whether he could plausibly argue that he did not understand that the purpose of the GPS device was to deter and detect his uninvited presence in other people's homes is not worth belaboring, however, as we conclude that he could have no objectively reasonable expectation of privacy in the historical GPS location data that was accessed and used by the Commonwealth here.

         ii. Objective expectation of privacy. Even assuming that the defendant had a subjective expectation of privacy, the expectation must be one that society is willing to recognize as reasonable for the protections of the Fourth Amendment and art. 14 to apply. Augustine, 467 Mass. at 242. The defendant's status as a probationer is "salient" to this evaluation. Commonwealth v. Moore, 473 Mass. 481, 485 (2016) . See Knights, 534 U.S. at 119. By virtue of being on probation, a probationer is subject to regular government supervision and thus can neither enjoy the same amount of liberty nor reasonably expect the same amount of privacy as an ordinary citizen. See Knights, supra. Accordingly, this court and the Supreme Court have recognized that, although probationers do not give up all expectations of privacy while on probation, their expectations are significantly diminished. See Id.; Moore, supra.

         The defendant here was of course not just on probation; he was on probation with the added condition of GPS monitoring because he had stipulated to violating his original sentence of probation after he was charged with breaking and entering and larceny while on probation. The defendant was thus on notice that GPS monitoring was imposed as a result of the defendant's criminal activity while on probation and the judge's concern over the defendant's demonstrated risk of recidivism. Any such defendant-probationer would therefore objectively understand that his or her person and movements were being recorded by the GPS device and monitored by the Commonwealth to ensure compliance with probationary conditions and to deter him or her from committing future crimes while wearing the GPS device. This understanding further diminished any objective expectation of privacy he might have had in his whereabouts, at least during the probationary period. Knights, 534 U.S. at 119-120 (privacy expectations diminished where probationer aware of condition of probation subjecting him to government monitoring). As the dissent appropriately recognizes, the defendant's subsequent decision to break and enter peoples' homes while wearing the GPS device in these circumstances took tremendous "chutzpah." Post at

          The Legislature has also provided for police access to probation information in G. L. c. 276, § 90, which states, in pertinent part, that a probation officer's records may "at all times be inspected by police officials of the towns of the commonwealth." G. L. c. 276, § 90. The statute thus provides an express, and apparently unlimited, authorization for law enforcement to review probation records, including the historical GPS location data recorded from a probationer's GPS device. See Id. See also G. L. c. 276, ยง 100. The motion judge principally relied on this statute in reaching his conclusion that the defendant did not have an objectively reasonable expectation of privacy in the GPS location data recorded from the GPS device. The Commonwealth similarly argues that because the Legislature has authorized the police to inspect a probationer's records, the probationer has no objective expectation of privacy in any information contained therein. Although the statute informs our analysis of the objective expectation of privacy probationers may have in the GPS location data recorded from their GPS devices, it does not end our inquiry. We must, as always, provide an independent review of ...


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