SJC Clarifies that GPS Monitoring is a Search Subject to Constitutional Protections
Massachusetts courts often require individuals on probation, particularly sex offenders, to wear GPS monitors that track their every movement. Imposing this requirement, the state’s highest court said for the first time recently, is a search, meaning that a judge can only lawfully require such monitoring after making an individualized determination that balances “the Commonwealth’s need to impose monitoring against the privacy invasion occasioned by such monitoring.”
The two decisions issued by the Supreme Judicial Court (SJC), Commonwealth v. Feliz and Commonwealth v. Johnson, are the first to apply Grady v. North Carolina, a 2015 Supreme Court decision holding that GPS monitoring is in fact a search protected under the Fourth Amendment’s prohibition against “unreasonable” searches. While the SJC had previously treated GPS monitoring as something else, calling it, for instance, “punishment” for committing an offense, Feliz and Johnson clarify that under both federal and state constitutional law, GPS monitoring is in fact a search. Applying its own new standard, the SJC reached contrasting results, deciding that GPS monitoring was unreasonable in Feliz but reasonable in Johnson.
Treating GPS monitoring as a search that triggers constitutional scrutiny has broad implications, some of which Feliz and Johnson explore. In Feliz, the SJC examined a statute that requires GPS monitoring for an entire class of offenders – those convicted of most sex offenses – and concluded that the “mandatory, blanket imposition of GPS monitoring on probationers, absent individualized determinations of reasonableness, is unconstitutional under the Massachusetts Declaration of Rights.” And in Johnson, the court determined – over a sharp dissent – that in certain circumstances, law enforcement may conduct a warrantless search of an individual’s historical GPS data even after an individual has completed his term of probation.
More than 3,900 people in Massachusetts are subject to GPS monitoring at any time. The records created by this monitoring, the SJC noted, “provide an intimate window into a person’s life, revealing not only his or her particular movements, but through them his or her familial, political, professional, religious, and sexual associations.” The Commonwealth currently retains such data indefinitely and a statute gives police extensive access to an individual’s probation records.
Such devices are also physically intrusive and can subject individuals to arrest and economic consequences, even for conduct that does not violate the terms of their probation. Individuals on GPS monitoring generally wear a GPS device on their ankles, and the devices are monitored by probation service employees who coordinate with the probation officers responsible for supervising certain individuals. The current system stores information about each individual’s latitude and longitude once every minute, but that data is generally reviewed only when the monitoring system generates an “alert,” which can happen for any number of minor reasons, such as when cellular or satellite connections are lost or a battery runs low – both of which, the SJC noted, are not uncommon. Alerts are also triggered if an individual attempts to sabotage a device or when an individual who is supposed to stay out of certain geographic areas enters an area from which he or she is barred.
Every alert requires that the person under supervision communicate with probation, because unresolved alerts can lead to arrest warrants. Alerts are not uncommon. According to the probation service’s estimates, the number of daily alerts is equal to roughly half the number of individuals on GPS monitoring. Resolving alerts disrupts an individual’s daily life. An individual may be ordered by probation to leave a given location and walk around outside at various times of day or night. As the SJC noted, this risks potential economic consequences: an individual may receive repeated telephone calls at work, may need to arrange with a co-worker to cover his job temporarily, and may need to walk out of the workplace in the middle of the workday, disruptions that may be intolerable to some employers.
Commonwealth v. Feliz
Ervin Feliz pled guilty to possession and distribution of child pornography. Consistent with G.L. c. 265, § 47, a statute that requires judges to impose GPS monitoring as a condition of probation for individuals convicted of most sex offenses, Mr. Feliz was placed on GPS monitoring. The SJC concluded that the statute is “overinclusive” and cannot – consistent with the state or federal constitution – mandate monitoring for all individuals based simply on the crime of conviction. Instead, a court must conduct an individualized determination, balancing “the Commonwealth’s need to impose monitoring against the privacy invasion occasioned by such monitoring.” Looking at the “totality of the circumstances” and considering the “constellation of factors” that were relevant, the SJC concluded that monitoring Mr. Feliz was unreasonable.
Examining the government’s interests, the court emphasized that they were compelling. Such interests included preventing the sexual exploitation and abuse of children – “a government objective of surpassing importance” – and the “vital interest in rehabilitating convicted sex offenders,” as well as the “vital interest in protecting the children exploited by the child pornography production process.”
On the other side of the equation, the court noted that as a probationer, Mr. Feliz had a diminished expectation of privacy as compared to an ordinary citizen. The Court noted, however, that GPS monitoring is highly intrusive. It involves a substantial physical intrusion, in that an individual is forced to wear a device on his body over a long period of time. That physical intrusion also has specific consequences: probation employees repeatedly required Mr. Feliz to leave his workplace and home in an attempt to reestablish a connection with the GPS device. In addition, GPS tracking “amasses a substantial quantum of intimate information about a person” that the Commonwealth currently maintains indefinitely.
Looking specifically at Mr. Feliz, the SJC concluded that even the government’s strong interests did not outweigh the intrusion on Mr. Feliz’s privacy. Specifically, Mr. Feliz had “no prior record of a sex offense”; “no psychiatric diagnosis indicating a compulsion toward sexually deviant activity; no history of violations of probation or terms of pretrial release;” no exclusion zones entered into the GPS monitoring system; “no geographically proximate victim”; and had been classified by the Sex Offender Registry Board as a level one sex offender, meaning someone who posed a low risk of reoffense and low level of risk to the public. The SJC emphasized that a hypothetical possibility of reoffense does not support monitoring: the record included no evidence “sufficient to indicate that this defendant poses a threat of reoffending, or otherwise violating the terms of his probation” (emphasis added). The court also dismissed as irrelevant that Mr. Feliz had signed a probation contract agreeing to monitoring, noting that a probationer’s decision to accede to a search that does not meet pass constitutional muster is not meaningful consent.
Commonwealth v. Johnson
Jamie B. Johnson was convicted of breaking and entering and larceny after a trial in which the Commonwealth relied on GPS monitoring data – from a prior term of probation – to show that Mr. Johnson had been at the location of each break-in at the relevant time. Mr. Johnson challenged the warrantless search of his data, but the SJC concluded that under the circumstances, Mr. Johnson had no privacy interest in his historical monitoring data, and as such, the search was constitutional.
The court first considered whether, under the standard announced in Feliz, the initial decision to impose GPS monitoring on Mr. Johnson was lawful. Mr. Johnson was placed on probation for convictions including receiving stolen property and restraining order violations; he violated his probation when he was then charged with breaking and entering and larceny. At the hearing on the probation violation, Mr. Johnson requested GPS monitoring to avoid incarceration. The court concluded that monitoring was lawful under the circumstances, given the defendant’s criminal convictions and past probation violations: the intrusion on Mr. Johnson’s privacy interest was justified by the governmental interests in deterring and detecting criminal activity while Mr. Johnson was on probation.
After Mr. Johnson completed his probation, police investigating unsolved break-ins made the decision – acting on a “hunch” – to review his historical GPS monitoring data. As the SJC noted, this was an investigative search, and as such, is different from reviewing GPS data to address an alert or to ensure compliance with the terms of probation. The court concluded, however, that the search was reasonable, because Mr. Johnson had no objective expectation of privacy under the circumstances. Mr. Johnson was on GPS monitoring as a direct result of a probation violation, and “[a]ny such defendant-probationer would therefore objectively understand that his or her person and movements were being recorded by the GPS device and monitored by the Commonwealth to ensure compliance with probationary conditions and to deter him or her from committing future crimes while wearing the GPS device.” A state statute, G.L. c. 276, § 90, permits unlimited access to a probation officer’s records by police officials. The Commonwealth focused its review of data on general times and locations relevant to the unsolved break-ins and did not merely reconstruct all of Mr. Johnson’s movements over his six-month probationary period; such “indiscriminate rummaging through six months of data” would, the SJC conceded, raise “different, more difficult constitutional questions.” Absent that more intrusive search, the court concluded that the search “did not intrude on any privacy expectations that society would be willing to recognize as reasonable.”
Justice Barbara Lenk wrote a lengthy dissent, explaining that she would have concluded that the search of Mr. Johnson’s historical data required a warrant and as such, was presumptively unreasonable. While conceding that the defendant’s repeated breaking and entering while on GPS monitoring (as a result of another breaking and entering charge) was “chutzpah on stilts,” she emphasized that a search of historical GPS records after the defendant concluded his probation implicated serious privacy interests. Once Mr. Johnson had completed his term of probation, he was no longer a probationer with a diminished expectation of privacy, but “had returned to society as an ordinary citizen.” Indeed, in a pointed footnote, Justice Lenk sharply criticized the majority for referring to Mr. Johnson repeatedly as a “probationer,” noting that “[t]hese references are a stark reminder of the court’s underlying view that, for those who once wore GPS devices, probation never fully ends.” She rejected the majority’s description of the search as narrow and targeted, noting that police reviewed not only data concerning reflecting Mr. Johnson’s location at time of the crimes in question, but also data suggesting that Mr. Johnson had cased the houses before breaking into them. In other words, the “Commonwealth’s search encompassed hundreds of hours of location information, spanning multiple days before and during potential periods of suspicious activity, throughout a several-month period.” Finally, Justice Lenk called on the legislature to reconsider the scope of G.L. c. 276, § 90, a statute that currently permits examination of probation records at any time, including after probation has ended. “The statute, enacted in 1880 and last amended in 1938, did not contemplate the long-term collection of GPS data. . . After 80 years, much has changed. The Legislature should consider whether this new and expansive information truly ought to remain open to government inspection, for any purpose and at any time.”
Both Feliz and Johnson emphasize that constitutional law must evolve to keep up with the changing capacity of our technology. While the decisions enhance constitutional rights by recognizing that GPS monitoring is a search – and “not a minimally invasive search” –Johnson is a major step backward for individual liberties. The Commonwealth should not be able to retain historical GPS data indefinitely and then to engage in warrantless searches of such data. As Justice Lenk suggested, the legislature should act swiftly to revisit the law – including a statute written well before GPS data was available – in order to ensure that individual rights and privacy are protected even as technology advances.