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SJC-12744

                 COMMONWEALTH   vs.   ERIC NORMAN.



       Middlesex.      November 7, 2019. - March 17, 2020.

   Present:   Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
                            Kafker, JJ.


Global Positioning System Device. Constitutional Law, Search
     and seizure, Privacy. Search and Seizure, Expectation of
     privacy. Privacy. Practice, Criminal, Motion to suppress.



     Indictments found and returned in the Superior Court
Department on December 11, 2015.

     A pretrial motion to suppress evidence was heard by Kenneth
J. Fishman, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Budd, J., in the Supreme Judicial Court
for the county of Suffolk, and the case was reported by her to
the Appeals Court. The Supreme Judicial Court granted an
application for direct appellate review.


     Jamie Michael Charles, Assistant District Attorney, for the
Commonwealth.
     Matthew Spurlock, Committee for Public Counsel Services,
for the defendant.
     Katharine Naples-Mitchell, for Charles Hamilton Houston
Institute for Race and Justice at Harvard Law School, amicus
curiae, submitted a brief.
                                                                    2


     Matthew R. Segal & Jessie J. Rossman, for American Civil
Liberties Union of Massachusetts, amicus curiae, submitted a
brief.


     GAZIANO, J.    This case concerns the admissibility of

location data gleaned from a global positioning system (GPS)

device imposed on a defendant as a pretrial condition of

release.   We are called upon to confront a question not present

in Commonwealth v. Johnson, 481 Mass. 710, cert. denied, 140 S.

Ct. 247 (2019).    There, we determined that imposition of GPS

monitoring on a probationer was a search but that, given the

diminished privacy expectations of a probationer, the

intrusiveness of such monitoring was outweighed by the

legitimate governmental interests served by the use of GPS

monitoring to further the goals of probation.    Id. at 720.

     Here, we must determine whether the initial imposition of

the GPS device as a condition of pretrial release violated the

Fourth Amendment to the United States Constitution or art. 14 of

the Massachusetts Declaration of Rights and, if not, whether

police access to the GPS data for the purposes of a new criminal

investigation violated the Federal or State Constitutions.     In

the circumstances here, we conclude that the initial imposition

of the GPS device violated art. 14.1


     1 We acknowledge the amicus briefs of the Charles Hamilton
Houston Institute for Race and Justice at Harvard Law School and
the American Civil Liberties Union of Massachusetts.
                                                                     3


     1.   Background.   In July 2015, the defendant was charged in

the Boston Municipal Court with possession of a class B

substance with the intent to distribute, as a subsequent

offense, and motor vehicle violations.    Among other conditions

of release, he was ordered to stay out of the city of Boston and

to wear a GPS monitoring device.2

     He was required to sign a form that stated,

     "You are hereby placed on GPS by this Court. . . .
     Coordinates and other data related to your physical
     location while on GPS are recorded and may be shared with
     the court, probation, parole, attorneys and law
     enforcement. Data generated by GPS equipment assigned to
     you is not private and confidential. It is your
     responsibility to remain in contact with probation at all
     times while under GPS supervision unless expressly
     authorized."

The form also included the following statement:

     "I have read and understood the above conditions of GPS
     supervision and I agree to observe them. I understand that
     if I violate any such condition, it may result in my being
     brought before the court, my arrest, revocation of
     probation, the entry of a guilty finding or delinquency
     adjudication (if not already entered), the imposition or
     execution of sentence and modification of my supervision."




     2 The record does not indicate the judge's reasons for
imposing the condition of GPS monitoring, and the audio
recording of the proceeding in the Boston Municipal Court has
been destroyed. We conclude, however, that a remand to
determine the reasons underlying the decision to impose
conditions of pretrial release more than four years ago would
not be fruitful. At this point, any useful evidence likely
would be documentary, so we are in as good a position as a
motion judge to evaluate the evidence. See Commonwealth v.
Cousin, 478 Mass. 608, 615 (2018).
                                                                      4


     On the evening of August 10, 2015, a home invasion and

armed robbery occurred at a home in Medford; the robbers were

described as two African-American men.     Police initially did not

have any information linking the defendant to the crimes.

Medford police contacted the probation service's electronic

monitoring program (ELMO) and inquired whether any individuals

under GPS supervision had been present at the time and location

of the crimes.   The police did not obtain a search warrant or

court order for the GPS location data.     ELMO used stored GPS

data to identify the defendant as being present at the scene of

the crime.   The GPS data also indicated that the defendant went

to an address in Everett shortly before and shortly after the

time of the home invasion.   Police then obtained a search

warrant for the Everett location, where they discovered

additional inculpatory information.   One of the victims of the

home invasion also was presented with a photographic array that

included the defendant's photograph; the victim indicated that

he was "almost positive" that the defendant was one of the

robbers.   The defendant was arrested and indicted on charges of,

inter alia, armed robbery while masked.3




     3 The defendant also was indicted on charges of armed home
invasion, armed burglary, armed assault in a dwelling, and
larceny from a building.
                                                                      5


    The defendant moved to suppress the GPS location data and

its fruits, arguing that police acquisition of the data violated

his rights under the Fourth and Fourteenth Amendments to the

United States Constitution and art. 14.     The judge found that

the defendant had consented to the imposition of the GPS device

and the use of the GPS location data only for the purposes of

enforcing conditions of release, and not for general law

enforcement purposes.   The judge therefore determined that the

police were not permitted to obtain the GPS location data

without probable cause.   Because nothing linked the defendant to

the crimes before police obtained the GPS location data, the

judge concluded that the search was not supported by probable

cause and granted the motion to suppress.

    The Commonwealth sought leave to pursue an interlocutory

appeal in the county court, and a single justice allowed the

appeal to proceed in the Appeals Court.     We subsequently allowed

the Commonwealth's petition for direct appellate review.     We

affirm the judge's determination, on different grounds.     See

Commonwealth v. Cotto, 471 Mass. 97, 118 (2015), citing

Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997).

    2.   Discussion.    "In reviewing a motion to suppress, 'we

accept the judge's subsidiary findings of fact absent clear

error,' but 'review independently the motion judge's application

of constitutional principles to the facts found.'"     Commonwealth
                                                                     6


v. Moore, 473 Mass. 481, 484 (2016), quoting Commonwealth v.

Franklin, 456 Mass. 818, 820 (2010).

    The defendant argues that the judge's decision may be

affirmed on either of two grounds:     the initial imposition of

the GPS device was an unconstitutional search; or even if we

were to determine that this pretrial condition of release was

constitutional, the use of the GPS data for an unrelated

criminal investigation was unconstitutional.     We agree that, if

either of these related actions is unconstitutional, the GPS

data must be suppressed.   See Johnson, 481 Mass. at 715 ("we

must analyze the constitutionality of both the initial

imposition of GPS monitoring for the purposes of probation and

the police's subsequent review of the historical GPS location

data for investigatory purposes").

    We conclude that the initial imposition of GPS monitoring

in this case was not based on valid government interests and

thus was unreasonable and unconstitutional under art. 14.

Accordingly, we need not reach the question whether, had the

initial imposition been constitutional, police use of the data

for a criminal investigation would have been permissible.

    a.   Imposition of GPS monitoring as a search.     "[A] search

in the constitutional sense occurs when the government's conduct

intrudes on a person's reasonable expectation of privacy."

Commonwealth v. Augustine, 467 Mass. 230, 241-242 (2014), citing
                                                                      7


Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,

concurring), and Commonwealth v. Montanez, 410 Mass. 290, 301

(1991).   This expectation must be "an actual (subjective)

expectation of privacy . . . that society is prepared to

recognize as reasonable."     Matter of a Grand Jury Subpoena, 454

Mass. 685, 688 (2009), quoting Commonwealth v. Blood, 400 Mass.

61, 68 (1987).

    Under the Federal and Massachusetts Constitutions,

"individuals have a reasonable expectation of privacy in the

whole of their physical movements."    See Carpenter v. United

States, 138 S. Ct. 2206, 2217 (2018), citing United States v.

Jones, 565 U.S. 400, 430 (2012) (Alito, J., concurring), and

Jones, supra at 415 (Sotomayor, J., concurring).    See also

Johnson, 481 Mass. at 716-717, citing Augustine, 467 Mass. at

253, and Commonwealth v. Rousseau, 465 Mass. 372, 382 (2013)

(same under art. 14).     GPS monitoring "continuously track[s]" an

individual's "precise location," thereby "giv[ing] probation

officers and police 'access to a category of information

otherwise unknowable.'"     Johnson, supra at 717, quoting

Carpenter, supra at 2217-2218.     "The nature and extent of this

GPS location data yields a 'treasure trove of very detailed and

extensive information about the individual's "comings and

goings"' for law enforcement."     Johnson, supra, quoting

Augustine, supra at 251.
                                                                     8


      In Grady v. North Carolina, 575 U.S. 306 (2015), "the

United States Supreme Court held that a search under the Fourth

Amendment occurs when the government 'attaches a device to a

person's body, without consent, for the purpose of tracking that

individual's movements.'"    Johnson, 481 Mass. at 718, quoting

Grady, supra at 309.    Subsequently, we held that imposing GPS

monitoring as a condition of probation is a search under art.

14.   See Johnson, supra, citing Commonwealth v. Feliz, 481 Mass.

689, 690-691 (2019).   This is so even though probationers have a

"diminished expectation of privacy relative to the general

population."   See Feliz, supra at 700, citing United States v.

Knights, 534 U.S. 112, 119-120 (2001).

      The reasonable expectation of privacy of a defendant

pretrial, such as the defendant here, is greater than that of a

probationer.   See Commonwealth v. Silva, 471 Mass. 610, 617

(2015), citing Bell v. Wolfish, 441 U.S. 520, 545 (1979), and

United States v. Cohen, 796 F.2d 20, 23-24 (2d Cir.), cert.

denied, 479 U.S. 854 (1986) ("pretrial detainee enjoys at least

as many constitutional rights as a convicted prisoner and

perhaps more").    See also United States v. Scott, 450 F.3d 863,

873-874 (9th Cir. 2006) ("privacy and liberty interests" of

individual on pretrial release are "far greater than a

probationer's").    Given the greater expectation of privacy of a

defendant pretrial, the implication is clear.    The imposition of
                                                                     9


GPS monitoring as a condition of pretrial release is a search

under art. 14.

    Although consent can justify a warrantless search, "the

Commonwealth bears the burden of proof that consent was freely

and voluntarily given, meaning it was unfettered by coercion,

express or implied" (quotations and citations omitted).

Commonwealth v. Buckley, 478 Mass. 861, 875 (2018).     We have

held that the signing of a contract of probation that includes

GPS monitoring is not sufficient to establish consent because

the "coercive quality of the circumstance in which a defendant

seeks to avoid incarceration by obtaining probation on certain

conditions makes principles of voluntary waiver and consent

generally inapplicable."     See Feliz, 481 Mass. at 702, quoting

Commonwealth v. LaFrance, 402 Mass. 789, 791 n.3 (1988).

    Here, the only evidence of consent is the fact that the

defendant signed the form.     If he had not, the consequence

presumably would have been pretrial detention.     Therefore, the

form "does not change our constitutional analysis."     See Feliz,

481 Mass. at 701-702, citing Guiney v. Police Comm'r of Boston,

411 Mass. 328, 341 (1991), O'Connor v. Police Comm'r of Boston,

408 Mass. 324, 329 (1990), and United States v. Lara, 815 F.3d
                                                                  10


605, 609 (9th Cir. 2016).   The Commonwealth has not met its

burden of showing free and voluntary consent.4

     b.   Interest balancing.   "The Fourth Amendment and art. 14

prohibit 'unreasonable' searches and seizures."   Moore, 473

Mass. at 484, citing Commonwealth v. Rodriguez, 472 Mass. 767,

775-776 (2015).   Warrantless searches are "'presumptively

unreasonable' and, therefore, presumptively unconstitutional."

Commonwealth v. White, 475 Mass. 583, 588 (2016), quoting

Commonwealth v. Craan, 469 Mass. 24, 28 (2014).   See Katz, 389

U.S. at 357 ("searches conducted outside the judicial process,

without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment -- subject only to a few

specifically established and well-delineated exceptions"

[footnotes omitted]).   The Commonwealth has the burden of

showing that any warrantless search "falls within a narrow class

of permissible exceptions to the warrant requirement."

Commonwealth v. Ferreira, 481 Mass. 641, 655 (2019), quoting

Commonwealth v. Abdallah, 475 Mass. 47, 51 (2016).   "We

determine whether a search is reasonable by 'balanc[ing] the

intrusiveness of the police activities at issue against any

legitimate governmental interests that these activities serve.'"




     4 There are some situations, however, where a pretrial
condition of release would be justified by free and voluntary
consent.
                                                                   11


Moore, supra, citing Rodriguez, supra at 776.   When a search,

such as GPS monitoring, is conducted as a pretrial condition of

release, the only legitimate justifications for doing so are

those authorized by statute; courts do not have inherent

authority to impose pretrial conditions of release.   See

Commonwealth v. Preston P., 483 Mass. 759, 763 (2020).

    i.   Legitimate governmental interests.   The monitoring

requirement at issue was imposed at arraignment as a condition

of release.   Therefore, the condition must be permissible under

G. L. c. 276, § 58, the applicable bail statute.   General Laws

c. 276, § 58, provides, in part:

    "A justice . . . shall, when a person is held under arrest
    or committed either with or without a warrant for an
    offense other than an offense punishable by death, or, upon
    the motion of the commonwealth, for an offense enumerated
    in [G. L. c. 276, § 58A,] or for any offense on which a
    warrant of arrest has been issued by the superior court,
    hold a hearing in which the defendant and his counsel, if
    any, may participate and inquire into the case and shall
    admit such person to bail on his personal recognizance
    without surety unless said justice . . . determines, in the
    exercise of his [or her] discretion, that such a release
    will not reasonably assure the appearance of the person
    before the court" (emphasis added).

Thus, the goal and purpose of G. L. c. 276, § 58, are clear:     to

permit pretrial release while ensuring that a defendant appears

in court.   See Commonwealth v. Vieira, 483 Mass. 417, 420

(2019), citing Brangan v. Commonwealth, 477 Mass. 691, 692, 699

(2017), and Commonwealth v. King, 429 Mass. 169, 174 (1999)
                                                                   12


("The purpose of bail is to assure the appearance of the accused

in court").

    General Laws c. 276, § 58, contains three references to

conditions of release.   The first reference states explicitly

that conditions of release may be used to ensure a defendant's

return to court:

    "Except in cases where the person is determined to pose a
    danger to the safety of any other person or the community
    under [G. L. c. 276, § 58A], bail shall be set in an amount
    no higher than what would reasonably assure the appearance
    of the person before the court after taking into account
    the person's financial resources; provided, however, that a
    higher than affordable bail may be set if neither
    alternative nonfinancial conditions nor a bail amount which
    the person could likely afford would adequately assure the
    person's appearance before the court" (emphasis added).

G. L. c. 276, § 58, first par.

    The second reference states that if the judge setting bail

"determines it to be necessary, the defendant may be ordered to

abide by specified restrictions on personal associations or

conduct including, but not limited to, avoiding all contact with

an alleged victim of the crime and any potential witness or

witnesses who may testify concerning the offense, as a condition

of release."   G. L. c. 276, § 58, first par.   This language

clearly contemplates that limits may be placed on a defendant's

contact with an alleged victim, as well as with other witnesses,

presumably for the purpose of "preserving the integrity of the

judicial process."   Josh J. v. Commonwealth, 478 Mass. 716, 721
                                                                    13


(2018), quoting Paquette v. Commonwealth, 440 Mass. 121, 131

(2003), cert. denied, 540 U.S. 1150 (2004).

       The third reference to conditions of release in G. L.

c. 276, § 58, allows conditions of release to be imposed in

certain crimes involving domestic abuse "in order to

ensure . . . the safety of the alleged victim, any other

individual or the community."    See G. L. c. 276, § 58, third

par.    This provision is inapplicable here because the defendant

was not charged with a crime involving domestic abuse.

       The Commonwealth argues that the permissible goals of G. L.

c. 276, § 58, include generally preventing or deterring criminal

conduct.   The statute's second reference to conditions of

release may permit a broader range of conditions, arguably

including conditions aimed at dangerousness or deterrence.       See

G. L. c. 276, § 58, first par. ("defendant may be ordered to

abide by specified restrictions on personal associations or

conduct including, but not limited to, avoiding all contact

with" victim and witnesses).     The Legislature, however, clearly

has indicated an intent to address deterrence and dangerousness

in other statutory provisions.    See Paquette, 440 Mass. at 130,

citing Boston Water & Sewer Comm'n v. Metropolitan Dist. Comm'n,

408 Mass. 572, 578 (1990) ("If the Legislature had intended to

utilize bail revocation under the third paragraph of G. L.

c. 276, § 58, as a broad preventive detention scheme with a
                                                                  14


focus on dangerousness, then the promulgation of G. L. c. 276,

§§ 58A and 58B, would have been duplicative and unnecessary").

See also Brangan, 477 Mass. at 706 (dangerousness would have

been relevant "if the Commonwealth had sought to detain [the

defendant] under [G. L. c. 276,] § 58A").

    General Laws c. 276, § 58A, states, "[t]he [C]ommonwealth

may move, based on dangerousness, for an order of pretrial

detention or release on conditions for a felony offense that has

as an element of the offense the use, attempted use[,]

threatened use[, or a substantial risk] of physical force").

Three other statutory provisions allow conditions of release to

be imposed for reasons of safety in cases involving domestic

abuse.   See G. L. c. 276, § 42A; G. L. c. 276, § 57, second

par.; G. L. c. 276, § 58, third par.   By contrast, the provision

of G. L. c. 276, § 58, in question here does not contain the

words "safety," "dangerousness," "deterrence," or any similar

language.   Therefore, we conclude that the Legislature did not

intend this provision to address dangerousness or deterrence of

future crimes.

    Thus, the only permissible goals of pretrial conditions of

release in the defendant's case were ensuring the defendant's

return to court and his presence at trial, and safeguarding the

integrity of the judicial process by protecting witnesses from

intimidation and other forms of influence.   There is no
                                                                     15


indication on this record that GPS monitoring would have

increased the likelihood of the defendant returning to court.

Although the general specter of government tracking could

provide an additional incentive to appear in court on specified

dates, the causal link in this case is too attenuated and

speculative to justify GPS monitoring.     See Feliz, 481 Mass.

at 709 (Commonwealth failed to show that GPS monitoring would

effectuate desired result).    Additionally, the exclusionary zone

of the city of Boston, which could be viewed as tied to the use

of GPS monitoring to assure the defendant was not present in

Boston, clearly did not advance the goal of ensuring the

defendant's return to the Boston Municipal Court; indeed, the

docket clearly states that an exception would apply to any court

appearances in Boston.

    Further, there is no indication in the record that the

conditions of release were intended to insulate any particular

victims or civilian witnesses, who, given the nature of the

crimes charged, likely did not exist.

    ii.   Intrusion.     We turn to the degree of intrusion on the

defendant's privacy.   See Johnson, 481 Mass. at 715.    When a

judge orders GPS tracking, a "modern-day 'scarlet letter'" is

physically tethered to the individual, reminding the public that

the person has been charged with or convicted of a crime.

Commonwealth v. Hanson H., 464 Mass. 807, 815-816 (2013),
                                                                  16


quoting Commonwealth v. Cory, 454 Mass. 559, 570 n.18 (2009).

See Commonwealth v. Goodwin, 458 Mass. 11, 22 (2010) ("ankle

bracelet . . . may . . . expos[e] the [individual] to

persecution or ostracism"); Commonwealth v. Raposo, 453 Mass.

739, 740 (2009) (describing "ankle bracelet, which is

permanently attached to the probationer").

    If a GPS monitoring device loses connection with either the

cellular network or the satellite network, or if the device's

battery runs low, "alerts" from ELMO are issued.     Feliz, 481

Mass. at 694-695, 695 n.9 (noting daily average that "thirty-

four percent of the total individuals monitored" generate

alert).   The individual may have to leave his or her location in

search of a signal, or may be required to travel to a location

where the device can be charged.   See id. at 695.   These

frequent interruptions can endanger an individual's livelihood.

See id. at 704 (noting that GPS may require individual "to leave

his [or her] job and walk around outside during work hours,

risking potential economic consequences, including loss of

employment").   In addition, despite an individual's best efforts

to comply with the strictures of GPS monitoring, connectivity

issues can lead to the issuance of arrest warrants, see id.

at 695, thereby subjecting the individual to the indignity and

dangers of an arrest.   See Commonwealth v. Charros, 443 Mass.

752, 761, cert. denied, 546 U.S. 870 (2005) ("seizure produced
                                                                    17


all the indignity of an arrest in full view of the public").

Lastly, GPS monitoring can place an especially great burden on

homeless individuals.     See Commonwealth v. Canadyan, 458 Mass.

574, 575, 578-579 (2010) (noting "undisputed evidence that

homeless shelters" could not provide electrical outlets

necessary to charge GPS units).

    iii.   Balancing.     For a warrantless search to be

permissible under art. 14, the legitimate governmental interests

must outweigh the level of intrusion.    See Moore, 473 Mass.

at 484, citing Rodriguez, 472 Mass. at 776.     Because the GPS

monitoring at issue here did not serve the purposes of the

statutory scheme, the monitoring did not further any legitimate

governmental interests.    Therefore, the search was clearly

impermissible.   We caution that even where GPS monitoring does

serve legitimate government interests, reasonableness is not

assured; the interests must be sufficient to outweigh the severe

intrusion at stake.

                                     Order allowing motion to
                                       suppress affirmed.
