Commonwealth v. Johnson

• Decision Date: 07 April 2017
• Docket Number: No. 15-P-987,15-P-987
• Citation: 91 Mass.App.Ct. 296,75 N.E.3d 51
• Parties: COMMONWEALTH v. Jamie B. JOHNSON.
• Court: Appeals Court of Massachusetts

91 Mass.App.Ct. 296

75 N.E.3d 51

COMMONWEALTH

v.Jamie B. JOHNSON.

No. 15-P-987

Appeals Court of Massachusetts, Suffolk..

Argued May 3, 2016.

Decided April 7, 2017.

Travis J. Jacobs, Boston, for the defendant.

Matthew Sears, Assistant District Attorney, for the Commonwealth.

Present: Grainger, Meade, & Wolohojian, JJ.

MEADE, J.

After a jury-waived trial, the defendant was convicted of breaking and entering a building during the daytime with the intent to commit a felony, in violation of G. L. c. 266, § 18, and larceny in an amount more than $250, in violation of G. L. c. 266, § 30. On appeal, the defendant claims error in the admission of data generated from a global positioning system (GPS) tracking device he agreed to wear as a condition of his release after being charged with violating an abuse prevention order, see G. L. c. 209A, § 7, and that the evidence was insufficient to support his convictions of breaking and entering a building during the daytime with the intent to commit a felony, and of larceny. We affirm.

1. Background. a. Agreed-to GPS monitoring. On July 8, 2013, the defendant was charged with having committed various crimes stemming from an incident of domestic violence on Nancy Jones¹ that took place two days earlier in the Dorchester section of Boston (Dorchester case).² At the defendant's arraignment, a judge of the Dorchester Division of the Boston Municipal Court Department (Dorchester judge) determined that, for various reasons,³ the defendant should not be released on personal recognizance without surety, and instead required that he post bail in the amount of $2,500. The Dorchester judge imposed several conditions of pretrial release, which were reflected on a printed form provided to, and signed by, the defendant. The conditions included GPS monitoring, staying away from Jones's home address in Dorchester, and staying away from Jones herself. The defendant signed this form on July 8, 2013, and, by doing so, acknowledged that he had read and understood the conditions, and that he agreed to abide by them. The form was also signed by the Dorchester judge and the chief probation officer. The defendant posted bail and was released the same day.

b. The break-in. On August 31, 2013, two Boston police officers responded to the report of a residential break-in at a home in the West Roxbury section of Boston. The owner, Sarah Dundon, had returned home from a one-week vacation to discover that two jewelry boxes containing approximately $500 worth of jewelry had been stolen from her bedroom. The kitchen window at the rear of the house had been forced open, and the front door, which Dundon had locked when she left, was unlocked. These facts suggested that the thief had entered through the window and left through the door. No further investigation was conducted at this point, and the police apparently had no leads as to who might have committed the crime.

At some point thereafter, Norfolk County law enforcement officials were conducting a criminal investigation into the defendant. As part of that investigation, they requested that an employee of the probation department review and analyze the data captured by the GPS monitor imposed as a condition of the defendant's pretrial release in the Dorchester case.

On November 6, 2013, one of the Boston police officers who had responded to the break-in received a telephone call from Barbara McDonough of the probation department electronic monitoring program (ELMO).⁴ She informed him that while "mapping" the defendant at the request of Norfolk County investigators, she had noticed and mapped the defendant to the home in West Roxbury, at about 4:20 A.M. on August 29, 2013, where the GPS data showed he remained for approximately fifteen to thirty minutes.

Based on this information, the officer concluded there was probable cause to believe the defendant had broken into Dundon's home and stolen her jewelry. Accordingly, on November 13, 2013, by way of a complaint issued out of the West Roxbury Division of the Boston Municipal Court Department, the defendant was charged with breaking and entering a building during the daytime with the intent to commit a felony, and larceny in an amount more than $250.

c. The motion to suppress. The defendant moved to suppress the GPS data that was obtained without a warrant based on his claimed expectation not to be subjected to extended GPS surveillance by the government. In his affidavit in support of his motion to suppress, he averred that as conditions of his pretrial release on his Dorchester case, he was required to stay away from Jones's address, i.e., an exclusion zone, and he was required to wear a GPS device to monitor whether he violated that condition. The defendant claimed that he did not know he would be monitored and tracked everywhere he went, and that he had not agreed to that condition. The defendant's affidavit fails to state that the conditions of release he had signed also required him to stay away from Jones herself.

At a nonevidentiary hearing, the motion judge (who also was the trial judge) considered (1) the pleadings and arguments of the parties; (2) the docket from the Dorchester case, the case for which the defendant was on pretrial release with GPS monitoring; (3) the conditions for bail on the Dorchester case, signed by the Dorchester judge, the defendant, and the chief probation officer; and (4) the representations of the parties that the defendant's data points were first requested by Norfolk County investigators who were investigating similar crimes; that, in turn, an employee of the probation department contacted the Boston police when she discovered the GPS points in and around Dundon's home; that the Boston police then asked the probation department for the relevant data; and that an employee of the probation department provided the points to the Boston police.

After hearing argument from the parties, the judge denied the motion. Although she did not conduct an evidentiary hearing, she made the findings covering the material facts set out above, and those findings are uncontroverted. In part, the judge stated as follows:

"Counsel has filed a motion to suppress GPS data evidence obtained, as he said, without a warrant. I don't think there's any question that that evidence was obtained without a warrant, and the question before me today is not whether the motion to suppress should be allowed or denied, but whether [the defendant] has any expectation of privacy in the tracking of his movements by the GPS monitor. ...

"In this case, the defendant was—and you can look at it in one of two ways or even, perhaps, both ways; you can look at it as an order of the court that he was ordered to be subject to GPS monitoring as a condition of his release from custody, or you can look at it that he agreed to be subject to GPS monitoring as a condition of his release from custody.

"And either way, I find that he has no expectation of privacy in his movements, because his movements are subject to GPS monitoring. He knows the device is on him. He knows what the device does; namely, monitor his movements. I don't think that you need to have a degree in electronic engineering to know that, nor do you need the testimony of someone from ELMO to tell us that. I think any reasonable person would understand that one's movements are subject to monitoring once you place the GPS—once the GPS is placed on your person.

"And while it may be true that he was ordered to stay away from a particular location, [Jones's address], it's also true that he was ordered to stay away from [Jones]. And that order, I would take it, would be no matter where [Jones] was.

"So that while the defendant would have to understand that his movements were being monitored, and even if you read the specific stay-away narrowly, it's clear that not only is he ordered to stay away from [Jones's address], but he's also ordered to stay away from [Jones], who could be anywhere.

"So, given the fact that [the defendant] was either ordered to subject himself to GPS monitoring or agreed to subject himself to GPS monitoring, and given the fact that any reasonable person would understand that such a device does track your movements and that it's a condition of his release from custody, that he has, then, no reasonable expectation of privacy in his movements, as he knows that they are, in fact, being monitored."

On these bases, the judge found that the defendant was not entitled to an evidentiary hearing and denied the motion to suppress. d. The motion in limine. At the start of the trial, the defendant moved in limine to exclude evidence of the "Electronic Monitoring Screen Printouts." Specifically, he moved to exclude computer screen shots that depicted the geographic location of the GPS device he wore, and data points that placed him in and around Dundon's home in the early morning hours of August 29, 2013. As grounds therefor, the defendant claimed the evidence was "misleading and confusing." After hearing argument, the judge denied the motion and admitted the evidence de bene, subject to any later motion to strike. Although the defendant did not later move to strike the evidence, he did renew his objection to the evidence as being confusing.

e. The trial. During the summer of 2013, Dundon lived in a single-family home in West Roxbury. Dundon lived alone in the two-story, Cape Cod-style house, located in a quiet and friendly residential neighborhood.

From August 25 through 31, 2013, Dundon was on vacation in Georgia and South Carolina. Her house had no alarm system, and no one stayed there while she was away. Only her parents had a set of keys to the home, and they lived in Dedham.

As a condition of the defendant's pretrial release regarding the Dorchester case, he agreed to wear a GPS "bracelet" monitored by ELMO, and he signed a condition of release form and a GPS liability and acceptance form. A GPS bracelet is a monitor attached to a person's ankle that emits location...