Commonwealth v. Johnson

Decision Date26 March 2019
Docket NumberSJC-12483
Parties COMMONWEALTH v. Jamie B. JOHNSON.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

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, 35 N.E.3d 677 (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, 393 N.E.2d 370 (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, 80 N.E.3d 318 (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, 35 N.E.3d 677, quoting Commonwealth v. Thomas, 469 Mass. 531, 539, 21 N.E.3d 901 (2014). Because the motion judge here conducted a nonevidentiary hearing at which the evidence was stipulated, ...

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