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Commonwealth v. Feliz

Supreme Judicial Court of Massachusetts, Suffolk

March 26, 2019

COMMONWEALTH
v.
ERVIN FELIZ.

          Heard: September 5, 2018.

         Indictments found and returned in the Superior Court Department on March 3, 2015. A motion in opposition to the imposition of global positioning system monitoring as a condition of probation was heard by Robert B. Gordon, J., and a motion for reconsideration was considered by him.

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

          David R. Rangaviz, Committee for Public Counsel Services, for the defendant.

          Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

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

          Eric Tennen, for Massachusetts Association for the Treatment of Sexual Abusers & another, amici curiae, submitted a brief.

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

          GAZIANO, J.

         After pleading guilty to possession and distribution of child pornography, the defendant was sentenced to five concurrent five-year terms of probation, and two concurrent two and one-half year sentences of incarceration, which were suspended for five years. In accordance with the terms of G. L. c. 265, § 47, which requires judges to impose global positioning system (GPS) monitoring as a condition of probation for individuals convicted of most sex offenses, the sentencing judge imposed GPS monitoring as a condition of the defendant's probation. The defendant opposed the condition of GPS monitoring when it was imposed, arguing that mandatory GPS monitoring constituted an unreasonable search in violation of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. After an evidentiary hearing, a different Superior Court judge found G. L. c. 265, § 47, facially constitutional, and also rejected the defendant's as-applied challenge. The defendant appealed, and we allowed his petition for direct appellate review.

         The defendant argues that, as applied to him, the condition of mandatory GPS monitoring, pursuant to G. L. c. 265, § 47, constitutes an unreasonable search under the Fourth Amendment and art. 14. We consider this argument in light of the United States Supreme Court's holding that GPS monitoring is a search. See Grady v. North Carolina, 135 S.Ct. 1368, 1370 (2015) . We conclude that G. L. c. 256, § 47, is overinclusive in that GPS monitoring will not necessarily constitute a reasonable search for all individuals convicted of a qualifying sex offense.

         Article 14 requires an individualized determination of reasonableness in order to conduct more than minimally invasive searches, and GPS monitoring is not a minimally invasive search. To comport with art. 14, prior to imposing GPS monitoring on a given defendant, a judge is required to conduct a balancing test that weighs the Commonwealth's need to impose GPS monitoring against the privacy invasion occasioned by such monitoring.

         We conclude that, in the circumstances of this case, the Commonwealth's particularized reasons for imposing GPS monitoring on this defendant do not outweigh the privacy invasion that GPS monitoring entails. Accordingly, as applied to this defendant, GPS monitoring is an unconstitutional search under art. 14.[1]

         1. Background.

         a. Prior proceedings.

         The defendant was arrested in December 2014; he was arraigned in the District Court on charges related to possession and distribution of child pornography and was placed on pretrial release with GPS monitoring. In March 2015, the defendant was indicted on charges of two counts of possession of child pornography, in violation of G. L. c. 272, § 29C, and five counts of distribution of child pornography, in violation of G. L. c. 272, § 29B (a.) . He was arraigned in the Superior Court in April 2015, and placed on pretrial probation, with conditions, including reporting to a probation officer, in person, once per week. The condition of GPS monitoring was waived at that time, on the defendant's motion, and the GPS device was removed. In April 2016, the defendant pleaded guilty to all of the charges. A Superior Court judge sentenced him to five concurrent five-year terms of probation and two concurrent terms of incarceration of two and one-half years in a house of correction, suspended for five years.[2]

         At the time of his guilty pleas, the defendant was given notice of his obligation to register as a sex offender; registration also was imposed as a condition of probation. As statutorily mandated, see G. L. c. 6, §§ 178C-178P, the defendant thereafter registered as a sex offender, and was classified as a level one offender.[3]

         General Laws c. 265, § 47, mandates that any person placed on probation for numerous enumerated sex offenses[4] is required to wear a GPS device. See Commonwealth v. Guzman, 469 Mass. 492, 496 (2014) ("G. L. c. 265, § 47, applies to any defendant who has been convicted of a predicate offense and sentenced to a term of probation"). Accordingly, the sentencing judge imposed GPS monitoring as a condition of the defendant's probation. The judge also imposed additional conditions of probation, including that the defendant not reside with anyone under the age of sixteen; not work or hold a job that would involve contact with children under sixteen; and remain 300 feet away from schools, parks, and day care centers.

         At sentencing, the defendant signed an order of probation conditions and a GPS equipment liability acceptance form.[5] In signing the order of probation conditions, the defendant certified that he had "read and understood the above conditions of probation," and would "agree to obey them." The defendant was fitted with a GPS monitoring device in accordance with the terms of probation. On the day he was sentenced, the defendant filed a motion seeking to waive imposition of GPS monitoring as a condition of probation; he argued that the mandatory GPS monitoring requirement of G. L. c. 265, § 47, constitutes an unconstitutional search and seizure under art. 14 and the Fourth Amendment. The Commonwealth opposed the motion.

         In February 2017, a different Superior Court judge held a three-day evidentiary hearing to assess the reasonableness of the defendant's statutorily imposed condition of GPS monitoring. The judge heard testimony from the defendant concerning his experience as a probationer subject to GPS monitoring; expert testimony, by Commonwealth and defense experts, on social science research on rates of recidivism for contact and noncontact sex offenders; and testimony about the nature of GPS monitoring generally in Massachusetts.[6]

         In April 2017, the judge denied the defendant's motion. The defendant filed a timely appeal. In February 2018, the defendant filed a motion for reconsideration, seeking to supplement the record with additional evidence concerning issues experienced with the day-to-day use of the GPS device, and difficulties with connectivity to the central monitoring station. This motion was allowed in part, and denied in part; the motion judge amended his findings of fact to include reference to a subset of additional GPS alerts that the defendant had experienced. In March 2018, the judge issued amended findings and rulings. The defendant appealed to the Appeals Court from the partial denials; the Appeals Court thereafter consolidated the defendant's pending appeals. The defendant also sought direct appellate review before this court. In June 2018, we allowed the defendant's petition for direct appellate review, and transferred the consolidated appeals to this court.

          b. GPS monitoring.

         We summarize the facts as found by the motion judge, supplemented by uncontested facts in the record and testimony credited by the motion judge that does not contravene the judge's findings. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). We "accept subsidiary findings based partly or wholly on oral testimony, unless clearly erroneous." Commonwealth v. Tremblay, 480 Mass. 645, 646 (2018).

         More than 3, 900 individuals in the Commonwealth, on probation, pretrial release, and parole, are subject to court-ordered GPS monitoring, some of them pursuant to G. L. c. 265, § 47.

         Probationers subject to GPS monitoring in the Commonwealth are fitted either with a one-piece or a two-piece GPS device, usually worn around the ankle. The probation service uses the electronic monitoring program (ELMO) to supervise offenders placed on GPS monitoring. ELMO operates a monitoring center located in Clinton, staffed by probation service employees. ELMO probation service employees work in conjunction with probation officers who are assigned to supervise individuals placed on GPS monitoring.

         The GPS devices used by ELMO store information about a wearer's latitude and longitude, gathered via communication with a network of satellites. This information is uploaded through a cellular telephone network to computers at the ELMO monitoring center that are running third-party monitoring software. The timing of uploads depends on many factors, including connectivity with the satellites used in the GPS component of the system, issues with the cellular telephone service provider, and connectivity and timing issues with the ELMO center. According to the corporation that currently leases GPS devices to the Commonwealth, the location data gathered by its GPS monitoring equipment is ninety percent accurate within thirty feet.[7] See Commonwealth v. Thissell, 457 Mass. 191, 198 n.15 (2010), citing National Space-Based Positioning, Navigation, and Timing Coordination Office, The Global Positioning System.

         A GPS-monitored person's location information continuously is gathered and uploaded to ELMO computer systems. ELMO employees generally review a probationer's location information only when the ELMO monitoring software generates an "alert." Even when no alert is generated, however, ELMO employees are able to look up and retrieve a probationer's historical location data. The alert notifies an ELMO assistant coordinator that one of several issues has arisen with respect to a given GPS device, and prompts the assistant coordinator to address the issue by attempting to contact the probationer. Any of several kinds of alert may lead to the issuance of an arrest warrant for a probationer, if probation employees are unable to "resolve" the alert in a timely manner.[8]

         When a probationer subject to GPS monitoring has been told to stay away from certain addresses, a probation department employee may be able to enter a specific "exclusion zone" into the ELMO monitoring system. If an exclusion zone is entered, the system will trigger an alert when a GPS-monitored individual enters that zone. The system permits entry of exclusion zones by specific addresses. The system does not permit entry of more general exclusion zones, such as "parks" or "schools"; to approximate that type of restriction, the street addresses of the pertinent parks or schools would have to be entered manually.

         It is common for a GPS monitoring device to issue alerts related to cellular or satellite connection, as well as the integrity of the device itself. Many alerts occur because of events unrelated to a defendant's efforts to comply with conditions of probation. For instance, when a defendant's device loses its signal connection with the cellular telephone network, an "unable to connect" alert is triggered. If the GPS device is within cellular network coverage, but loses connection to the satellite network, a "motion, no GPS" alert is triggered. If the device becomes cut or broken for any reason, it will trigger a "tampering" alert. While a GPS device is expected to retain a battery charge for approximately twenty-four hours, battery life may decline, and may result in common "charging alerts" when battery life runs low. Each time an alert is triggered, the probationer must communicate with a probation employee to attempt to resolve the issue. If the issue is not resolved, the probationer risks being subject to an arrest warrant and possible arrest.[9]

         At the time of the evidentiary hearing, approximately ten months after postconviction monitoring had begun, the defendant had experienced at least thirty-one alerts.[10] A number of these alerts involved power disconnection and the failure of the defendant's GPS device to maintain a satellite connection. The alerts were resolved after periods of time ranging from ...


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