Commonwealth v. Feliz

• Decision Date: 23 December 2020
• Docket Number: SJC-12879
• Citation: 486 Mass. 510,159 N.E.3d 661
• Parties: COMMONWEALTH v. Ervin FELIZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

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.

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 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 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 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 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," 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 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. Power, 420 Mass. 410, 417, 650 N.E.2d 87 (1995), cert. denied, 516 U.S. 1042, 116 S.Ct. 697, 133 L.Ed.2d 655 (1996).

In examining the reasonableness of a condition of probation that authorizes suspicionless searches without probable cause or reasonable suspicion, courts weigh the government's need for the search and the degree of invasion of the reasonable expectations of privacy that the search entails. See Landry v. Attorney Gen., 429 Mass. 336, 348, 709 N.E.2d 1085 (1999), cert. denied, 528 U.S. 1073, 120 S.Ct. 785, 145 L.Ed.2d 663 (2000). "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." Commonwealth v. Catanzaro, 441 Mass. 46, 56, 803 N.E.2d 287 (2004), citing Landry, supra, and Commonwealth v. Shields, 402 Mass. 162, 164, 521 N.E.2d 987 (1988).

Some conditions, such as those that authorize blanket suspicionless searches of a probationer's home, are so invasive that they are not permissible under art. 14. See, e.g., LaFrance, 402 Mass. at 794-795, 525 N.E.2d 379. Others, such as random drug screens, authorize only minimally invasive searches and are constitutional despite permitting suspicionless searches....