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 ...