Commonwealth v. Feliz, SJC-12879

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtLENK, J.
Citation486 Mass. 510,159 N.E.3d 661
Parties COMMONWEALTH v. Ervin FELIZ.
Docket NumberSJC-12879
Decision Date23 December 2020

486 Mass. 510
159 N.E.3d 661

COMMONWEALTH
v.
Ervin FELIZ.

SJC-12879

Supreme Judicial Court of Massachusetts, Suffolk..

Argued September 11, 2020.
Decided December 23, 2020.


Patrick Levin, Committee for Public Counsel Services, for the defendant.

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

Sarah M. Joss, Boston, for Massachusetts Probation Service, amicus curiae, submitted a brief.

Present: Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.1

LENK, J.

486 Mass. 511
159 N.E.3d 664

The defendant pleaded guilty to multiple counts of possession and dissemination of child pornography. He was sentenced to concurrent terms of incarceration, suspended subject to compliance with special conditions of probation, for five years. One condition, challenged here, required the defendant to allow the probation department to conduct random, suspicionless searches of his electronic devices and other locations where child pornography might be stored. The defendant maintains that this condition authorizes unreasonable searches in violation of art. 14 of the Massachusetts Declaration of Rights. On its face, we agree that the condition subjected the defendant to the continuing possibility of unreasonable searches throughout the term of his probation, and is too broad. Properly limited, however, in these particular circumstances, imposition of the condition did not violate the defendant's rights under art. 14.

1. Background. a. Underlying offenses. In 2014, investigators were alerted to social media posts involving suspected child pornography. The investigators traced the posts to a single Internet protocol (IP) address that was associated with the defendant's apartment. After executing a search warrant for the apartment, officers uncovered dozens of images and video recordings of child pornography from a computer and a "micro SD" memory card belonging to the defendant.2 The defendant admitted that he had been in possession of child pornography. He told police that he would meet people with similar interests on chat websites, and would exchange child pornography with them through an online chat service.

In March 2015, the defendant was indicted on two counts of possession of child pornography, G. L. c. 272, § 29C, and five counts of dissemination of child pornography, G. L. c. 272, § 29B (a ). He pleaded guilty on all counts. In April 2016, a

486 Mass. 512

Superior Court judge sentenced him to two concurrent terms of two and one-half years' incarceration in a house of correction, suspended for five years, and an aggregate period of five years' probation.

The sentencing judge also imposed twelve special conditions of probation. Condition no. eight required the defendant to

"allow the Department of Probation to inspect and to search, at random and without announcement, any computer, electronic device, digital media, videotape, photographs or other item capable of storing photographs, images, or depictions, for the purpose of monitoring compliance with [his] conditions of probation."

Condition no. ten ordered the defendant to submit to global positioning system (GPS) monitoring, as required by G. L. c. 265, § 47.3 The defendant unsuccessfully objected

159 N.E.3d 665

to condition nos. eight and ten when they were imposed.

b. Prior proceedings. On the day that he was sentenced, the defendant filed a motion for relief from condition no. ten; he argued, among other claims, that the statutorily mandated GPS monitoring requirement was unconstitutional under art. 14. See Commonwealth v. Feliz, 481 Mass. 689, 692, 119 N.E.3d 700 (2019) ( Feliz I ). A Superior Court judge denied the motion, the defendant appealed, and his petition for direct appellate review thereafter was allowed by this court. See id. at 693, 119 N.E.3d 700. We held that statutorily imposed GPS monitoring was unconstitutional as applied to the defendant, that imposition of GPS monitoring on any defendant required an individualized hearing, and that statutorily mandated GPS monitoring as a condition of probation "will not necessarily constitute a reasonable search for all individuals convicted of a qualifying sex offense." Id. at 690-691, 119 N.E.3d 700.

In June 2018, the defendant filed a second motion for relief from condition no. eight.4 He argued that condition no. eight allowed unconstitutional searches under art. 14 because "a search of a

486 Mass. 513

probationer must be based upon reasonable suspicion." See Commonwealth v. LaFrance, 402 Mass. 789, 790, 525 N.E.2d 379 (1988) ; Commonwealth v. Waller, 90 Mass. App. Ct. 295, 304, 58 N.E.3d 1070 (2016). After a hearing in July 2018, a Superior Court judge, who was not the sentencing judge, denied the motion. The judge stated that, "[u]nlike the probation conditions in LaFrance and Waller, the condition in the present case does not permit a search of the defendant's premises," and that "[t]he sentencing judge ... specifically limited a search to devices and not a general search of the defendant's home." The judge did not explain his reasoning in interpreting the condition so narrowly, given its broad wording. Recognizing that condition no. eight constituted a search under art. 14, the judge concluded that the condition "is reasonably related to the goals of probation and is tailored to specific characteristics of the defendant [and] his offenses,"5 and therefore denied the motion.

In May 2020, the defendant successfully moved for early termination of his probation, as permitted under the original order of probation.

2. Discussion. a. Mootness. Because the defendant's only request for relief in this appeal is the vacatur of a condition of probation, and his probation has been terminated, his appeal is moot. Nonetheless, we have discretion to review a case

159 N.E.3d 666

notwithstanding its mootness where the issue is of public importance and is capable of repetition yet evading review. See Commonwealth v. McCulloch, 450 Mass. 483, 486, 879 N.E.2d 685 (2008) ; Matter of Sturtz, 410 Mass. 58, 59-60, 570 N.E.2d 1024 (1991), and cases cited.

Although "we are particularly reluctant to answer constitutional questions which have become moot,"

486 Mass. 514

Matter of Sturtz, 410 Mass. at 60, 570 N.E.2d 1024, the issue here warrants resolution. There is apparent confusion among probation officers and district attorneys' offices regarding the validity of search-related conditions of probation. Indeed, following the Appeals Court's decision in Waller, 90 Mass. App. Ct. at 304, 58 N.E.3d 1070, which held that "any standard below ... reasonable suspicion" would not allow a search of a probationer and the probationer's premises, the probation department directed its officers not to enforce conditions that allowed random, suspicionless searches of probationers, and to seek reevaluation of those conditions in court (citation omitted).6 Given the broad importance of the issue and the apparent uncertainty among prosecutors and courts, we exercise our discretion to decide the case.

b. Search-related conditions of probation. We review de novo the motion judge's conclusion that, as a matter of law, condition no. eight "is reasonably related to the goals of probation and is tailored to specific characteristics of the defendant [and] his offenses." See Commonwealth v. Edwards, 444 Mass. 526, 532, 830 N.E.2d 158 (2005). See also Commonwealth v. McGhee, 472 Mass. 405, 412, 35 N.E.3d 329 (2015).

Article 14 guarantees the right to be free from unreasonable searches. See Commonwealth v. Norman, 484 Mass. 330, 335-336, 142 N.E.3d 1 (2020) ; Commonwealth v. Rodriguez, 472 Mass. 767, 775, 37 N.E.3d 611 (2015) ("ultimate touchstone" of art. 14 is reasonableness [citation omitted]). Nonetheless, "[a]s a probationer, the defendant lawfully may be subjected to reasonable restraints on ‘freedoms enjoyed by law-abiding citizens.’ " Feliz I, 481 Mass. at 700, 119 N.E.3d 700, quoting United States v. Knights, 534 U.S. 112, 119, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). See Commonwealth v. Pike, 428 Mass. 393, 402, 701 N.E.2d 951 (1998). "The defendant's status as a probationer informs our assessment of both ‘the degree to which [a search] intrudes upon an individual's privacy’ and ‘the degree to which it is needed for the promotion of legitimate governmental interests.’ " Feliz I, supra, quoting Knights, supra. "A probation condition is not necessarily invalid simply because it affects a probationer's ability to exercise constitutionally

486 Mass. 515

protected rights" (citation omitted). Pike, supra at 403, 701 N.E.2d 951. Where a condition of probation "infringes on constitutional rights," however, it must "be ‘reasonably related’ to the goals of sentencing and probation" (citation omitted). Id. See, e.g., Commonwealth v. Eldred, 480 Mass. 90, 96, 101 N.E.3d 911 (2018) ; Commonwealth v. Guzman, 469 Mass. 492, 497, 14 N.E.3d 946 (2014) ; Commonwealth v...

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9 practice notes
  • Commonwealth v. Carrasquillo, SJC-13122
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 7, 2022
    ...Fourth Amendment falls out of the picture entirely’ "). See also Commonwealth v. Feliz, 481 Mass. 689, 701, 119 N.E.3d 700 (2019), S.C., 486 Mass. 510, 159 N.E.3d 661 (2020), citing Carpenter, supra. Nonetheless, the defendant's privacy interest in this case was substantially diminished bec......
  • Doe v. Sex Offender Registry Bd., SJC-12908
    • United States
    • Massachusetts Supreme Judicial Court
    • July 20, 2021
    ...of a statute are questions of law that we consider de novo. See Commonwealth v. Feliz, 481 Mass. 689, 696, 119 N.E.3d 700 (2019), S.C., 486 Mass. 510, 159 N.E.3d 661 (2020). Because the plaintiff does not assert that a fundamental right is at issue (nor is any fundamental right apparent),4 ......
  • Commonwealth v. Delgado-Rivera, SJC-12919
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 1, 2021
    ...is required in light of the individualized rights protected. Commonwealth v. Feliz, 481 Mass. 689, 690-691, 119 N.E.3d 700 (2019), S.C., 486 Mass. 510, 159 N.E.3d 661 (2020). Thus, under both State and Federal law, "the question is whether the challenged search or seizure violated the ... r......
  • Commonwealth v. Dufresne, SJC-13123
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 24, 2022
    ...a challenge to the constitutionality of a statute de novo." Commonwealth v. Feliz, 481 Mass. 689, 696, 119 N.E.3d 700 (2019), S.C., 486 Mass. 510, 159 N.E.3d 661 (2020). We begin "with a presumption of statutory validity." Fifty-One Hispanic Residents of Chelsea v. School Comm. of Chelsea, ......
  • Request a trial to view additional results
9 cases
  • Commonwealth v. Carrasquillo, SJC-13122
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 7, 2022
    ...Fourth Amendment falls out of the picture entirely’ "). See also Commonwealth v. Feliz, 481 Mass. 689, 701, 119 N.E.3d 700 (2019), S.C., 486 Mass. 510, 159 N.E.3d 661 (2020), citing Carpenter, supra. Nonetheless, the defendant's privacy interest in this case was substantially diminished bec......
  • Doe v. Sex Offender Registry Bd., SJC-12908
    • United States
    • Massachusetts Supreme Judicial Court
    • July 20, 2021
    ...of a statute are questions of law that we consider de novo. See Commonwealth v. Feliz, 481 Mass. 689, 696, 119 N.E.3d 700 (2019), S.C., 486 Mass. 510, 159 N.E.3d 661 (2020). Because the plaintiff does not assert that a fundamental right is at issue (nor is any fundamental right apparent),4 ......
  • Commonwealth v. Delgado-Rivera, SJC-12919
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 1, 2021
    ...is required in light of the individualized rights protected. Commonwealth v. Feliz, 481 Mass. 689, 690-691, 119 N.E.3d 700 (2019), S.C., 486 Mass. 510, 159 N.E.3d 661 (2020). Thus, under both State and Federal law, "the question is whether the challenged search or seizure violated the ... r......
  • Commonwealth v. Dufresne, SJC-13123
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 24, 2022
    ...a challenge to the constitutionality of a statute de novo." Commonwealth v. Feliz, 481 Mass. 689, 696, 119 N.E.3d 700 (2019), S.C., 486 Mass. 510, 159 N.E.3d 661 (2020). We begin "with a presumption of statutory validity." Fifty-One Hispanic Residents of Chelsea v. School Comm. of Chelsea, ......
  • Request a trial to view additional results

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