Commonwealth v. Norman

• Decision Date: 17 March 2020
• Docket Number: SJC-12744
• Citation: 142 N.E.3d 1,484 Mass. 330
• Parties: COMMONWEALTH v. Eric NORMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

484 Mass. 330

142 N.E.3d 1

COMMONWEALTH

v.Eric NORMAN.

SJC-12744

Supreme Judicial Court of Massachusetts, Middlesex..

Argued November 7, 2019

Decided March 17, 2020

Jamie Michael Charles, Assistant District Attorney, for the Commonwealth.

Matthew Spurlock, Committee for Public Counsel Services, for the defendant.

Katharine Naples-Mitchell, for Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, amicus curiae, submitted a brief.

Matthew R. Segal & Jessie J. Rossman, for American Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief.

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

GAZIANO, J.

This case concerns the admissibility of location data gleaned from a global positioning system (GPS) device imposed on a defendant as a pretrial condition of release. We are called upon to confront a question not present in Commonwealth v. Johnson, 481 Mass. 710, 119 N.E.3d 669, cert. denied, ––– U.S. ––––, 140 S. Ct. 247, 205 L.Ed.2d 138 (2019). There, we determined that imposition of GPS monitoring on a probationer was a search but that, given the diminished privacy expectations of a probationer, the intrusiveness of such monitoring was outweighed by the legitimate governmental interests served by the use of GPS monitoring to further the goals of probation. Id. at 720, 119 N.E.3d 669.

Here, we must determine whether the initial imposition of the GPS device as a condition of pretrial release violated the Fourth Amendment to the United States Constitution or art. 14 of the Massachusetts Declaration of Rights and, if not, whether police access to the GPS data for the purposes of a new criminal investigation violated the Federal or State Constitutions. In the circumstances here, we conclude that the initial imposition of the GPS device violated art. 14.¹

1. Background. In July 2015, the defendant was charged in the Boston Municipal Court with possession of a class B substance with the intent to distribute, as a subsequent offense, and motor vehicle violations. Among other conditions of release, he was ordered to stay out of the city of Boston and to wear a GPS monitoring device.²

He was required to sign a form that stated,

"You are hereby placed on GPS by this Court.... Coordinates and other data related to your physical location while on GPS are recorded and may be shared with the court, probation, parole, attorneys and law enforcement. Data generated by GPS equipment assigned to you is not private and confidential. It is your responsibility to remain in contact with probation at all times while under GPS supervision unless expressly authorized."

The form also included the following statement:

"I have read and understood the above conditions of GPS supervision and I agree to observe them. I understand that if I violate any such condition, it may result in my being brought before the court, my arrest, revocation of probation, the entry of a guilty finding or delinquency adjudication (if not already entered), the imposition or execution of sentence and modification of my supervision."

On the evening of August 10, 2015, a home invasion and armed robbery occurred at a home in Medford; the robbers were described as two African-American men. Police initially did not have any information linking the defendant to the crimes. Medford police contacted the probation service's electronic monitoring program (ELMO) and inquired whether any individuals under GPS supervision had been present at the time and location of the crimes. The police did not obtain a search warrant or court order for the GPS location data. ELMO used stored GPS data to identify the defendant as being present at the scene of the crime. The GPS data also indicated that the defendant went to an address in Everett shortly before and shortly after the time of the home invasion.

Police then obtained a search warrant for the Everett location, where they discovered additional inculpatory information. One of the victims of the home invasion also was presented with a photographic array that included the defendant's photograph; the victim indicated that he was "almost positive" that the defendant was one of the robbers. The defendant was arrested and indicted on charges of, inter alia, armed robbery while masked.³

The defendant moved to suppress the GPS location data and its fruits, arguing that police acquisition of the data violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution and art. 14. The judge found that the defendant had consented to the imposition of the GPS device and the use of the GPS location data only for the purposes of enforcing conditions of release, and not for general law enforcement purposes. The judge therefore determined that the police were not permitted to obtain the GPS location data without probable cause. Because nothing linked the defendant to the crimes before police obtained the GPS location data, the judge concluded that the search was not supported by probable cause and granted the motion to suppress.

The Commonwealth sought leave to pursue an interlocutory appeal in the county court, and a single justice allowed the appeal to proceed in the Appeals Court. We subsequently allowed the Commonwealth's petition for direct appellate review. We affirm the judge's determination, on different grounds. See Commonwealth v. Cotto, 471 Mass. 97, 118, 27 N.E.3d 1213 (2015), citing Commonwealth v. Va Meng Joe, 425 Mass. 99, 102, 682 N.E.2d 586 (1997).

2. Discussion. "In reviewing a motion to suppress, ‘we accept the judge's subsidiary findings of fact absent clear error,’ but ‘review independently the motion judge's application of constitutional principles to the facts found.’ " Commonwealth v. Moore, 473 Mass. 481, 484, 43 N.E.3d 294 (2016), quoting Commonwealth v. Franklin, 456 Mass. 818, 820, 926 N.E.2d 199 (2010).

The defendant argues that the judge's decision may be affirmed on either of two grounds: the initial imposition of the GPS device was an unconstitutional search; or even if we were to determine that this pretrial condition of release was constitutional, the use of the GPS data for an unrelated criminal investigation was unconstitutional. We agree that, if either of these related actions is unconstitutional, the GPS data must be suppressed. See Johnson, 481 Mass. at 715, 119 N.E.3d 669 ("we must analyze the constitutionality of both the initial imposition of GPS monitoring for the purposes of probation and the police's subsequent review of the historical GPS location data for investigatory purposes").

We conclude that the initial imposition of GPS monitoring in this case was not based on valid government interests and thus was unreasonable and unconstitutional under art. 14. Accordingly, we need not reach the question whether, had the initial imposition been constitutional, police use of the data for a criminal investigation would have been permissible.

a. Imposition of GPS monitoring as a search. "[A] search in the constitutional sense occurs when the government's conduct intrudes on a person's reasonable expectation of privacy."

Commonwealth v. Augustine, 467 Mass. 230, 241-242, 4 N.E.3d 846 (2014), citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring), and Commonwealth v. Montanez, 410 Mass. 290, 301, 571 N.E.2d 1372 (1991). This expectation must be "an actual (subjective) expectation of privacy ... that society is prepared to recognize as reasonable." Matter of a Grand Jury Subpoena, 454 Mass. 685, 688, 912 N.E.2d 970 (2009), quoting Commonwealth v. Blood, 400 Mass. 61, 68, 507 N.E.2d 1029 (1987).

Under the Federal and Massachusetts Constitutions, "individuals have a reasonable expectation of privacy in the whole of their physical movements." See Carpenter v. United States, ––– U.S. ––––, 138 S. Ct. 2206, 2217, 201 L.Ed.2d 507 (2018), citing United States v. Jones, 565 U.S. 400, 430, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (Alito, J., concurring), and Jones, supra at 415, 132 S.Ct. 945 (Sotomayor, J., concurring). See also Johnson, 481 Mass. at 716-717, 119 N.E.3d 669, citing Augustine, 467 Mass. at 253, 4 N.E.3d 846, and Commonwealth v. Rousseau, 465 Mass. 372, 382, 990 N.E.2d 543 (2013) (same under art. 14). GPS monitoring "continuously track[s]" an individual's "precise location," thereby "giv[ing] probation officers and police ‘access to a category of information otherwise unknowable.’ " Johnson, supra at 717, 119 N.E.3d 669, quoting Carpenter, supra at 2217-2218. "The nature and extent of this GPS location data yields a ‘treasure trove of very detailed and extensive information about the individual's "comings and goings" ’ for law enforcement." Johnson, supra, quoting Augustine, supra at 251, 4 N.E.3d 846.

In Grady v. North Carolina, 575 U.S. 306, 135 S.Ct. 1368, 191 L.Ed.2d 459 (2015), "the United States Supreme Court held that a search under the Fourth Amendment occurs when the government ‘attaches a device to a person's body, without consent, for the purpose of tracking that individual's movements.’ " Johnson, 481 Mass. at 718, 119 N.E.3d 669, quoting Grady, supra at 309, 135 S.Ct. 1368. Subsequently, we held that imposing GPS monitoring as a condition of probation is a search under art. 14. See Johnson, supra, citing Commonwealth v. Feliz, 481 Mass. 689, 690-691, 119 N.E.3d 700 (2019). This is so even though probationers have a "diminished expectation of privacy relative to the general population." See Feliz, supra at 700, 119 N.E.3d 700, citing United States v. Knights, 534 U.S. 112, 119-120, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001).

The reasonable expectation of privacy of a defendant pretrial, such as the defendant here, is greater than that of a probationer. See Commonwealth v. Silva, 471 Mass. 610, 617, 31 N.E.3d 1092 (2015), citing Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), and United States v. Cohen, 796 F.2d 20, 23-24 (2d Cir.), cert. denied, 479...