Commonwealth v. Roderick, SJC-13212

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtGAZIANO, J.
Docket NumberSJC-13212
Decision Date16 September 2022



No. SJC-13212

Supreme Judicial Court of Massachusetts, Plymouth

September 16, 2022

Heard: April 4, 2022.

Indictments found and returned in the Superior Court Department on December 30, 2016. A motion to vacate a condition of probation, filed on June 2, 2021, was heard by Jeffrey A. Locke, J.

The Supreme Judicial Court granted an application for direct appellate review.

Edward Crane for the defendant.

Johanna S. Black, Assistant District Attorney, for the Commonwealth.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.


In Commonwealth v. Feliz, 481 Mass. 689, 690-691 (2019), S.C., 486 Mass. 510 (2020) (Feliz I), we held that global positioning system (GPS) monitoring as a condition of


probation constitutes a search under art. 14 of the Massachusetts Declaration of Rights and the Fourth Amendment to the United States Constitution, as recognized by the United States Supreme Court in Grady v. North Carolina, 575 U.S. 306, 309 (2015). Consequently, in order for such a condition of probation to be constitutional, the government must establish that its interest in imposing GPS monitoring outweighs the privacy intrusion occasioned by the monitoring. See Feliz I, supra at 701.

This case requires us to determine whether GPS monitoring as a condition of probation is constitutional as applied to the defendant, a first-time offender convicted of rape. The Commonwealth asserts that GPS monitoring will further its interests in enforcing the court-ordered exclusion zone surrounding the victim's home, deterring the defendant from engaging in criminal activity, and assisting authorities in investigating any future criminal activity by the defendant.

We conclude that the Commonwealth has not established how the imposition of GPS monitoring in this case would further its interest in enforcing the exclusion zone. Although the Commonwealth has demonstrated that GPS monitoring might aid in deterring and investigating possible future criminal activity by the defendant, in the circumstances here, those interests alone do not justify the depth of the intrusion into the defendant's


privacy that GPS monitoring entails. Accordingly, the imposition of GPS monitoring on the defendant as a condition of probation would constitute an unreasonable search in violation of art. 14.

1. Background.

The victim and the defendant met and became friends sometime in 2016. At that time, the victim primarily was living in a tent in Connecticut, but she periodically would visit Massachusetts and spend the night at the defendant's house in Wareham. While she stayed overnight, the victim repeatedly made clear to the defendant that their friendship was strictly platonic.

One evening in early June of 2016, the victim became intoxicated and fell asleep on the defendant's bedroom floor. When she awoke the next morning, the defendant was standing in the room and told her that he had "had sex with [her] body last night." The victim then noticed what she believed was the presence of semen in her body. Shortly thereafter, she obtained a sexual assault examination at a nearby hospital, which showed that male sperm were present in her vagina. The defendant subsequently contacted police and told the investigating officer that he twice had had sex with the victim on the night of the alleged rape, but asserted that she had been conscious and consenting.


Following a jury trial, the defendant was convicted on two indictments charging him with rape, G. L. c. 265, § 22 (b)[1] He was sentenced to four years of incarceration on the first indictment, followed by three years of probation on the second. As a condition of probation, the judge ordered the defendant to submit to GPS monitoring pursuant to G. L. c. 265, § 47, which at that time required the imposition of GPS monitoring as a condition of probation for individuals who were convicted of most sex offenses, including rape. See Commonwealth v. Guzman, 469 Mass. 492, 496 (2014) (where defendant was convicted of enumerated sex offense and sentenced to probation, GPS monitoring was mandatory under G. L. c. 265, § 47). The judge also imposed a one-half mile "exclusion zone" around the victim's residence and place of employment, which the defendant was not to enter.

A few weeks before he was expected to be released from prison, the defendant moved to vacate the condition of GPS monitoring, pursuant to our decision in Feliz I, 481 Mass. at 701, on the ground that it constituted an unreasonable search in violation of art. 14. At a hearing on the motion, the


prosecutor stated that she had been unable to contact the victim, and therefore was unsure whether the victim had a particular domicil or home address that could be used as the basis of an exclusion zone.

Concluding that GPS monitoring as a condition of probation was reasonable, the judge denied the defendant's motion. The judge ordered the Commonwealth to continue its efforts to determine the victim's home address and indicated that he would reconsider his ruling if the Commonwealth could not create a "meaningful" exclusion zone. After the hearing, but before the defendant was released from prison, the Commonwealth obtained the victim's home address and was able to configure the defendant's GPS device so that it would issue an alert to the probation department if the defendant entered that exclusion zone. The defendant timely appealed from the ruling on his motion to vacate the condition of GPS monitoring to the Appeals Court, and we granted his application for direct appellate review.

2. Discussion.

In support of its contention that GPS monitoring would be appropriate here, the Commonwealth relies on three principal interests that it claims collectively outweigh the intrusion on the defendant's privacy: enforcing the court-ordered exclusion zone, deterring and investigating future crime, and punishing the defendant. The defendant argues that


the Commonwealth did not establish how GPS monitoring would further these interests, and therefore did not satisfy its burden of proving the reasonableness of the search. Specifically, the defendant asserts that the Commonwealth did not satisfactorily demonstrate that an exclusion zone would be established, nor did it provide sufficient reason to believe that the defendant poses a risk of recidivating.

As stated, GPS monitoring constitutes a search under art. 14 and the Fourth Amendment. See Commonwealth v. Johnson, 481 Mass. 710, 718, cert, denied, 140 S.Ct. 247 (2019). See also Grady, 575 U.S. at 309. Because GPS monitoring as a condition of probation is imposed without a warrant, such monitoring is "'presumptively unreasonable,' and, therefore, presumptively unconstitutional." Commonwealth v. Norman, 484 Mass. 330, 335 (2020), quoting Commonwealth v. White, 475 Mass. 583, 588 (2016). Nonetheless, GPS monitoring of probationers may be constitutional if the Commonwealth establishes that such a search is reasonable. See Commonwealth v. Antobenedetto, 366 Mass. 51, 57 (1974) (Commonwealth bears burden of proving reasonableness of warrantless search). See also Feliz I, 481 Mass. at 705. GPS monitoring is reasonable if "the government's interest in imposing GPS monitoring outweighs the privacy intrusion occasioned by GPS monitoring." See Id. at 701. This


inquiry turns on a "constellation of factors," analyzed in the totality of the circumstances. Id.

In evaluating the privacy intrusion occasioned by GPS monitoring, a reviewing court considers the incremental effect of the search on the probationer's privacy. See Id. To do so, the court first examines the "the expectation of privacy of the person subject to the search." See Landry v. Attorney Gen., 429 Mass. 336, 348 (1999), cert, denied, 528 U.S. 1073 (2000). The court then considers the extent to which GPS monitoring would intrude upon this expectation of privacy by evaluating, inter alia, the "nature of the [search] and its manner of execution" (quotations and citations omitted), see Feliz I, 481 Mass. at 704, as well as the character and quantity of the information that would be revealed by the search, see Garcia v. Commonwealth, 486 Mass. 341, 354 (2020).

The extent of the government's interest in imposing GPS monitoring turns on the extent to which the search advances a legitimate government interest. See Feliz I, 481 Mass. at 700. See also Johnson, 481 Mass. at 719. Crucially, the Commonwealth must "establish how GPS monitoring, when viewed as a search, furthers its interests" (emphasis in original). Feliz I, supra at 705. In weighing the strength of the government's interest, the court considers the probationer's risk of recidivism and the danger posed to society should he or she reoffend; as the


probationer's risk of reoffense and degree of dangerousness increases, so too does the weight of the government's interest. See id.

Although ordinarily we review a judge's decision on a motion to vacate a condition of probation for an abuse of discretion, see Commonwealth v. Goodwin, 458 Mass. 11, 16 (2010), we conduct an independent review where, as here, the judge's decision was based on a constitutional determination, see Commonwealth v. Moore, 473 Mass. 481, 484 (2016). In doing so, we accept findings of fact by a judge who saw and heard the witnesses, unless those findings are clearly erroneous, but consider the constitutionality of the search de novo. See Commonwealth v. Feliz, 486 Mass. 510, 514 (2020).

a. Privacy interests.

Like all probationers, the defendant has "a significantly diminished expectation of privacy." See Moore, 473 Mass. at 485. Probationers have a diminished expectation of privacy compared to the general population; they do not enjoy the "absolute liberty" to which others are entitled because they "are on the continuum of [S]tate-imposed punishments" and are assumed...

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