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Massachusetts Supreme Court Holds Statute Requiring GPS Monitoring of Probationers Convicted of Sex Offenses Unconstitutional ‘as Applied’

by Douglas Ankney

The Supreme Judicial Court of Massachusetts held that Massachusetts General Law, chapter 265, § 47 (“G.L. c. 265, § 47”), is overinclusive and is unconstitutional as applied to Ervin Feliz in requiring him to be subject to Global Positioning System (“GPS”) monitoring as a condition of his probation.

The Court concluded that the statute “is overinclusive in that GPS monitoring will not necessarily constitute a reasonable search for all individuals convicted of a qualifying sex offense.”

In December 2014, Feliz was arrested on charges of possession and distribution of child pornography. He was placed on pretrial release with GPS monitoring. After indictment and arraignment in April 2015, Felix was placed on pretrial probation. The GPS monitoring was waived, but Feliz had to report to a probation officer once every 14 days. In April 2016, Feliz pleaded guilty. He was sentenced to five years’ probation. He also was classified as a “level one, non-contact sex offender” and required to register.

Additionally, G.L. c. 265, § 47 requires anyone placed on probation for various enumerated sex offenses to wear a GPS tracking device. Feliz moved to waive the monitoring, arguing that it is an unconstitutional search under article 14 (“art. 14”) of the Massachusetts Declaration of Rights and the Fourth Amendment.

In the motion, Feliz also told the trial court of his experience with “false alerts” from the GPS during his three months of pretrial release. For example, while he was at work, probation personnel phoned him and advised that the monitoring system showed he was not connected to the satellite. He was instructed to go outside and walk around. Sometimes Feliz had to spend hours walking until a connection was made. During this time, he either had to get another employee to cover for him or leave his work unattended. Several times, warrants for his arrest were issued because a connection was not timely made. He risked being fired from his job. The superior court denied his motion, and the Supreme Court granted him a direct appeal.

The Court observed that the U.S. Supreme Court has held that GPS monitoring constitutes a search for Fourth Amendment purposes. Grady v. North Carolina, 135 S. Ct. 1368 (2015).

Because G.L. c. 265, § 47 imposes GPS on probationers, it is a warrantless search. Therefore, it must be “reasonable” in light of the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations. Grady. Probationers do have a diminished expectation of privacy as compared to the general public, but the government does not have unlimited ability to infringe on those diminished expectations of privacy. Griffin v. Wisconsin, 483 U.S. 868 (1987). When the government seeks to conduct a search that is more than minimally invasive, art. 14 requires an individualized determination of reasonableness. Landry v. Attorney Gen., 709 N.E.2d 1085 (Mass. 1999). To determine the reasonableness of a search without probable cause, courts balance “the need to search or seize against the invasion that the search or seizure entails.” Commonwealth v. Catanzaro, 803 N.E.2d 287 (Mass. 2004).

The Court found that GPS monitoring of Feliz required him to often spend hours walking until a satellite connection was made, and he was subject to arrest during that time. Thus, the search was more than minimally invasive and required an individualized determination.

The Government argued the monitoring was needed to ensure Feliz complied with the terms of his probation and to act as a deterrent.

The Court rejected those reasons because Feliz complied with his pretrial probation requirements without incident, and as “level one, non-contact” offender, it is unlikely he would re-offend. In short, the Government’s “particularized reasons for imposing GPS monitoring on this defendant do not outweigh the privacy intrusion occasioned by the requirement of GPS monitoring. Therefore, imposing GPS monitoring on this defendant would violate the requirements of art. 14.”

Accordingly, the Court remanded to the superior court for entry of a modified order of probation that does not include GPS monitoring. See: Commonwealth v. Feliz, 119 N.E.3d 700 (Mass. 2019). 

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