Massachusetts Supreme Court: Commonwealth Failed to Show GPS Monitoring as Condition of Probation Is Constitutional
by Anthony W Accurso
The Supreme Judicial Court of Massachusetts overturned a Superior Court’s denial of a defendant’s motion challenging a condition of his probation which required GPS monitoring, ruling the Commonwealth failed to prove that the search occasioned by the monitoring was constitutionally justified.
Timothy M. Roderick was convicted of sexually assaulting a female guest in his home one night in June 2016. She was homeless but would occasionally sleep at his house. She insisted that their relationship was strictly platonic. Yet, when she became intoxicated and fell asleep one night, she awoke to Roderick standing over her admitting to having had sex with her.
Roderick was convicted on two counts of rape, G.L.c. 265, § 22(b), and sentenced to four years in prison on the first count and three years of probation on the second. As a condition of probation, he was ordered to submit to GPS monitoring pursuant to G.L.c. 265, § 47, which was required at the time for individuals convicted of rape. See Commonwealth v. Guzman, 14 N.E.3d 946 (Mass. 2014). Additionally, the trial court imposed a “one-half mile exclusion zone around the victim’s residence and place of employment, which the defendant was not to enter,” which the GPS monitoring would help enforce.
Just prior to his release from prison, Roderick moved to vacate the GPS monitoring condition, relying on Commonwealth v. Feliz, 119 N.E.3d 700 (Mass. 2019), which held that GPS monitoring as a condition of probation constitutes a search under both the Massachusetts Declaration of Rights and the Fourth Amendment, as per Grady v. North Carolina, 575 U.S. 306 (2015). Thus, when imposing GPS monitoring as a condition of probation, the Commonwealth must show that its interest in doing so outweighs the privacy intrusion to the probationer; otherwise, such a condition is unconstitutional. Feliz.
At the time of the hearing on Roderick’s motion, the prosecutor notified the trial court that it could not contact the victim to obtain the location of her residence or place of employment to establish the exclusion zones. Nevertheless, the trial court found the GPS monitoring to be reasonable, but it would reconsider its decision if the prosecution could not contact the victim prior to Roderick’s release from prison (she was eventually contacted, and probation was notified).
Roderick appealed, arguing the Commonwealth could not establish a compelling interest that outweighed his right to be free from unreasonable searches under the Fourth Amendment and Article 14 of the Massachusetts Declaration of Rights.
On appeal, the Commonwealth argued that three interests outweigh the intrusion, viz., (1) enforcing the exclusion zone, (2) deterring and investigating future crime, and (3) punishing the defendant. Roderick countered that the Commonwealth failed to show how GPS monitoring would further those interests, specifically arguing that the Commonwealth didn’t demonstrate the establishment of an exclusion zone and it failed to provide sufficient reason to believe he posed a risk of recidivating.
The Court began its analysis by noting that GPS monitoring as a condition of probation constitutes a warrantless search and thus is presumptively unreasonable and unconstitutional. See Commonwealth v. Johnson, 119 N.E.3d 669 (Mass. 2019); Commonwealth v. Norman, 142 N.E.3d 1 (Mass. 2020); see also Grady. However, GPS monitoring may be constitutional if the Commonwealth establishes that the search is reasonable. See Commonwealth v. Antobenedetto, 315 N.E.2d 530 (Mass. 1974); see also Feliz. This determination depends on a “constellation of factors” that are evaluated in the totality of the circumstances. Feliz.
The court undertaking this analysis must first examine “the expectation of privacy of the person subject to the search.” See Landry v. Attorney General, 709 N.E.2d 1085 (Mass. 1999). Next, it must consider the extent GPS monitoring would intrude upon that expectation of privacy. Feliz. The nature and execution of the search are taken into consideration, see Feliz, as are the character and amount of information revealed by the search, see Garcia v. Commonwealth, 158 N.E.3d 452 (Mass. 2020). The court then determines whether the Commonwealth established how GPS monitoring, when treated as a search, furthers its legitimate government interest. See Feliz; see also Johnson. In weighing the government interest, the court considers the probationer’s risk of recidivism and danger posed to society in the event he reoffends. See id.
The Court observed that Roderick, like all probationers, has a diminished expectation of privacy. See Commonwealth v. Moore, 43 N.E.3d 294 (Mass. 2016). The Commonwealth argued that his expectation of privacy is further diminished because he’s a level two sex offender who is required to register with the Sex Offender Registry Board, meaning his registration information is publicly available and thus his overall expectation of privacy is reduced even further. The Court rejected that position, reasoning that his expectation of privacy in his real-time location information is not “concomitantly diminished.” See Horsemen’s Benevolent & Protective Ass’n v. State Racing Comm’n, 532 N.E.2d 644 (Mass. 1989); see also Katz v. United States, 389 U.S. 347 (1967).
The Court stated that the registration information is “materially distinct from the information produced by GPS monitoring.” It explained that the GPS information is “dramatically more intrusive and burdensome” than the registration requirement. See Commonwealth v. Cory, 911 N.E.2d 187 (Mass. 2009). (See opinion for Court’s discussion of other jurisdictions addressing this issue.) Thus, the Court concluded that GPS monitoring “works a significant intrusion on a probationer’s … expectation of privacy” and that the “information exposed … is uniquely revealing.” Garcia; Carpenter v. United States, 138 S. Ct. 2206 (2018).
Turning to the government’s legitimate interest prong of the analysis, the Court acknowledged that the government has compelling interest in protecting the public by ensuring compliance with court-ordered exclusion zones and that GPS monitoring can assist. But in this case, the Commonwealth wasn’t able to create definite exclusion zones at the time the issue was before the motion judge and only submitted evidence of such zones for the first time on appeal.
However, the Court explained that the relevant point in time for determining whether the search (GPS monitoring constitutes a search) is justified is at its inception, i.e., before the motion judge, not whether it was justified after the fact (on appeal). New Jersey v. T.L.O., 469 U.S. 325 (1985). That is, whether the search is constitutional focuses on when it was ordered, not at the time it was conducted, according to the Court. See Maryland v. Garrison, 480 U.S. 79 (1987).
After reviewing the record, the Court determined that there was no evidence that the Commonwealth would or even could configure the GPS device with an exclusion zone because of the inability to determine where the victim lived, which was needed for the creation of an exclusion zone. Thus, the Court concluded that the Commonwealth could not show how GPS monitoring would further its legitimate government interest in enforcing the exclusion zone.
Turning to the Commonwealth’s asserted interest in “deterring and investigating future crime” by the defendant, the Court noted that GPS monitoring “provides the government with a detailed, encyclopedic, and effortlessly compiled log of the defendant’s movements.” Garcia. It added that “[s]uch extensive location information provides the government with ‘a highly detailed profile, not simply of where [the defendant] go[es], but by easy inference, of [his or her] associations — political, religious, amicable and amorous, to name only a few — and the pattern of [his or her] professional and avocational pursuits.” Quoting Commonwealth v. McCarthy, 142 N.E.3d 1090 (Mass. 2020). This monitoring thus “chills associational and expressive freedoms, potentially altering the relationship between citizen and government in a way that is inimical to democratic society.” Garcia.
Finally, the Court addressed the Commonwealth’s punitive interest. It stated that, on balance, “the government’s interest in retribution carries only de minimis weight” compared to Roderick’s privacy interest because “retribution is secondary to the principal goals of probation: rehabilitation of the defendant and protection of the public.” Commonwealth v. Lapointe, 759 N.E.2d 294 (Mass. 2001).
The Court assessed and balanced the foregoing government interests against Roderick’s interests and ruled that the Commonwealth failed to satisfy its burden of establishing that the warrantless search (GPS monitoring requirement) was constitutional at its inception (before the motion judge).
Accordingly, the Court reversed and remanded to the Superior Court for entry of a modified order of probation that doesn’t contain the condition of GPS monitoring. See: Commonwealth v. Roderick, 194 N.E.3d 197 (Mass. 2022).
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