by David Kim

The Supreme Judicial Court of Massachusetts held that the reasonableness of global positioning system (“GPS”) monitoring as a condition of probation depends in part on its duration, and thus a judge conducting the individualized determination required by Commonwealth v. Feliz, 119 N.E.3d 700 (Mass. 2019), must consider the duration of the GPS monitoring condition. The Court further held that, notwithstanding the statutory mandate in G. L. c. 265, § 47, defendants convicted of certain sex offenses “shall” be subject to GPS monitoring “at all times for the length of his probation,” a judge may order GPS monitoring only for a duration, if any, that the judge determines to be reasonable, even if the resulting period of monitoring is shorter than the defendant’s probationary term.

Background

In March 2012, Richard Arnold pleaded guilty to one count of rape of a child, two counts of rape of a child aggravated by age, two counts of incest, and one count of indecent assault and battery on a child under 14. The victims were the defendant’s children. The defendant received concurrent sentences totaling 10 years to 10 years and one day in state prison followed by 10 years of probation. His probation conditions included GPS monitoring for the entire probationary period pursuant to § 47 and a requirement of no contact with the victims. The Sex Offender Registry Board subsequently classified the defendant as a level three offender.

In 2019, the Supreme Judicial Court held in Feliz that mandatory, blanket imposition of GPS monitoring on probationers absent individualized determinations of reasonableness is unconstitutional under art. 14 of the Massachusetts Declaration of Rights. In September 2021, the defendant completed his prison sentence and began his probationary term subject to GPS monitoring. In February 2024, he filed a motion seeking the individualized determination required by Feliz, arguing the condition violated his rights under the Fourth Amendment and art. 14 because the 10-year duration was arbitrary and excessive. He cited his compliance with probation conditions, his age of 65, and risk assessments concluding he posed a “very low risk” of reoffense notwithstanding his level three classification.

At the hearing, the Commonwealth located both victims, who resided in Massachusetts. The victims submitted statements expressing ongoing fear of the defendant and describing continuing psychological harms including posttraumatic stress disorder, chronic anxiety, insomnia, and night terrors. The motion judge denied the defendant’s motion, concluding that the Commonwealth satisfied its burden to show continued GPS monitoring was reasonable. The judge also directed that GPS exclusionary zones be established for both victims. The defendant timely appealed, and the Court granted direct appellate review.

Analysis

The Court observed that GPS monitoring constitutes a search under the Fourth Amendment and art. 14. Grady v. North Carolina, 575 U.S. 306 (2015); Feliz. Because GPS monitoring occurs without a warrant, such monitoring is “presumptively unreasonable” and therefore presumptively unconstitutional. Commonwealth v. Roderick, 194 N.E.3d 197 (Mass. 2022). Nevertheless, “GPS monitoring of probationers may be constitutional if the Commonwealth establishes that such a search is reasonable.” Id. To prove reasonableness, the Commonwealth must show that “the government’s interest in imposing GPS monitoring outweighs the privacy intrusion occasioned by GPS monitoring.” Feliz. “Because reasonableness depends ‘on the totality of the circumstances,’ … no one factor will be dispositive in every case.” Id.

The Court noted that the Commonwealth offered two legitimate governmental interests supporting monitoring in this case. First, deterrence constitutes a valid state interest when evidence establishes that a defendant presents a meaningful likelihood of committing future offenses. Roderick. A defendant’s SORB classification alone may satisfy this evidentiary requirement. See Rodriguez; Roderick. Second, when crimes target identifiable individuals, the government possesses a substantial interest in maintaining geographic restrictions designed to shield those persons from renewed harm. Roderick. The Court stated that such zones function to keep defendants physically separated from their victims, thereby creating protected spaces where victims may feel secure. Id.

Regarding the defendant’s privacy interests, the Court emphasized that although a probationer has a diminished expectation of privacy, “the government does not have an unlimited ability to infringe” upon it. Feliz. GPS monitoring requires the probation department to “attach a GPS device to the defendant’s person, in such a way that the defendant cannot remove the device,” thereby “significantly burden[ing] the defendant’s liberty interest in bodily autonomy and integrity.” Roderick. Additionally, the Court observed that the information exposed through GPS monitoring is “uniquely revealing” and “provides the government with a detailed, encyclopedic, and effortlessly compiled log of the individual’s movements.” Id.

Duration as a Factor
in Reasonableness

Turning to the issue of duration as a factor in the reasonableness determination, the Court observed that the Appeals Court recently held that duration must be considered in Commonwealth v. Streed, 264 N.E.3d 163 (Mass. App. Ct. 2025). Streed stated that a judge must “consider the incremental effect” of GPS monitoring over time on the defendant’s liberty, weigh that cumulative impact against the government’s asserted interests, and determine an appropriate period of monitoring.

Duration matters because it directly affects the burden on the defendant’s interests. The Court explained that GPS monitoring is invasive not only because of the type of information it can reveal but because it is collected over a “much longer period of time” than many other searches. Feliz. As monitoring continues, the volume and depth of information increase and so does the burden on the defendant’s liberty interest in bodily autonomy. Roderick. The Court noted that the intrusion is aggravated when monitoring is imposed for a multi-year term, stating that “the degree of intrusion upon the defendant’s privacy occasioned by GPS monitoring is aggravated” when required to wear a GPS device for multiple years. Id.

The Court stated that duration also affects what the Commonwealth must prove. Because the Commonwealth bears the burden of establishing that GPS monitoring is reasonable, it must show that its interests outweigh the defendant’s privacy and liberty interests for the full duration of the monitoring ordered. Streed.

Thus, the Court held that the duration of GPS monitoring is part of the “totality of the circumstances” that must be considered when assessing the reasonableness of GPS monitoring as a condition of probation. Feliz. The reasonableness determination regarding duration must be completed “before a defendant is subjected to GPS monitoring,” the Court instructed. Streed.

The Court rejected the Commonwealth’s argument that § 47 requires GPS monitoring for the defendant’s entire probationary term. Notwithstanding the clear statutory mandate that GPS monitoring extend for the full duration of probation, the Court stated that the Supreme Judicial Court had already held in Feliz that the Fourth Amendment and art. 14 do not permit imposition of GPS monitoring unless the Commonwealth demonstrates reasonableness, a determination that depends in part on duration. Consequently, the Court instructed that under Feliz, a judge sentencing a defendant under § 47 may impose a GPS monitoring condition only for a duration, if any, that the judge determines to be reasonable, even if the resulting period is shorter than probation.

Application to Present Case

The Court concluded that the motion judge’s findings and conclusions, issued without the benefit of Streed, failed to address the 10-year duration of the defendant’s GPS monitoring condition. Although the judge identified numerous considerations relevant to reasonableness, duration was not among them. Thus, the Court could not be sure the judge considered the duration of the GPS monitoring condition.

Conclusion

Accordingly, the Court vacated the order denying the defendant’s motion and remanded for further proceedings consistent with its opinion. See: Commonwealth v. Arnold, 2025 Mass. LEXIS 632 (2025).  

Subscribe today

Already a subscriber? Login