Commonwealth v. Feliz

Full title: Commonwealth v. Ervin Feliz No. 136569

Court: Superior Court of Massachusetts

Date published: Apr 21, 2017

SUCR2016-00077 (Mass. Super. Apr. 21, 2017)

Opinion

SUCR2016-00077

04-21-2017

Commonwealth v. Ervin Feliz No. 136569

Robert B. Gordon, Justice of the Superior Court.

FINDINGS OF FACT, RULINGS OF LAW, AND ORDER OF DECISION ON DEFENDANT'S OPPOSITION TO GPS MONITORING AS CONDITION OF PROBATION

Robert B. Gordon, Justice of the Superior Court.

Defendant Ervin Feliz (" Feliz" or the " defendant") has brought the present motion, by which he seeks to have the Court's imposition of GPS monitoring as a condition of his probation stricken as an unconstitutional search and seizure under the Fourth Amendment of the U.S. Constitution and article 14 of the Massachusetts Declaration of Rights. For the reasons that follow, the defendant's motion shall be DENIED .

BACKGROUND

On April 22, 2016, Feliz pleaded guilty to two counts of possession of child pornography in violation of G.L.c. 272, § 29C, and five counts of dissemination of child pornography in violation of G.L.c. 272, § 29B(a). The subject crimes entailed Feliz's possession and online posting of large amounts of child pornography, in which prepubescent (in some instances toddler-aged) male children were depicted engaged in explicit sex acts with adult males.¹ For the two possession offenses, the Court (Krupp, J.) sentenced Feliz to two concurrent terms of 2 1/2 years in the House of Corrections, suspended for five years. For each of the dissemination charges, the Court sentenced Feliz to concurrent five-year terms of probation. Among the conditions of the defendant's probation, the Court ordered Feliz to have no contact with children under the age of 16, to remain at least 300 feet from schools, parks and day care facilities, and to wear a Global Positioning System (" GPS") device at all times during the pendency of his probationary term. Mandatory GPS monitoring throughout the course of this convicted sex offender's probation sentence was in accordance with the express requirements of G.L.c. 265, § 47 (" Section 47").

1 The defendant was convicted of possessory and distribution offenses only. Feliz has no history of committing " contact offenses" against children.

Pursuant to the terms of his probationary sentence, Feliz was outfitted with a GPS ankle bracelet and placed under the supervision of the Suffolk County Superior Court Probation Department. In this connection, Feliz signed an Order of Probation Conditions Form, an Electronic Monitoring Program Enrollment Form, and an Equipment Liability Acceptance Form. Feliz now asserts that the imposition of GPS monitoring as a condition of probation, both on its face and as applied to him, violates his right to be free from unreasonable searches and seizures under the Fourth Amendment of the U.S. Constitution and article 14 of the Massachusetts Declaration of Rights.

On February 10, February 17 and February 24, 2017, and in accordance with the dictates of Grady v. North Carolina, 135 S.Ct. 1368, 1370, 191 L.Ed.2d 459 (2015), the Court held an evidentiary hearing addressed to the reasonableness of the defendant's mandatory GPS monitoring under Section 47. The Court heard testimony from six witnesses: Feliz; Edward Phillips (the defendant's Probation Officer); Probation Officer Thomas Connolly; Daniel Pires (the Electronic Monitoring Program Coordinator in Massachusetts); Dr. Joseph Plaud; and Dr. Gregory Belle. The undersigned finds that these witnesses testified truthfully and, in most material respects, consistently with one another throughout; although not all of their testimony bears relevantly on the issues presented in the motion before the Court. Based on this credited testimony, which is adopted except to the extent expressly noted infra, the Court here issues the following findings of pertinent fact.

FINDINGS OF FACT

A. GPS Monitoring in Massachusetts

In Massachusetts, GPS enrollees like Feliz are monitored by the Electronic Monitoring Center (" ELMO") in Clinton, Massachusetts. At present, 3, 195 people are subject to such GPS monitoring, a number that includes both pre-trial (defendants on bail) and post-conviction (parolees and probationers) enrollees.² The GPS bracelets used are leased to ELMO by the 3M Corporation, and data is transmitted from these devices to ELMO servers equipped with 3M computer software.

2 Inasmuch as the Court has discretion to order GPS monitoring outside the mandate of Section 47, it is unclear how many of these individuals are subject to GPS monitoring pursuant to Section 47 in particular. See Emelio E. v. Commonwealth, 453 Mass. 1024, 1025, 905 N.E.2d 560 (2009) (judges retain discretion to impose GPS monitoring absent statutory authorization). Section 47 does not apply to persons charged with sex offenses placed on pre-trial probation, persons charged with sex offenses serving a term of probation whose cases were continued without a finding after a guilty plea or admission to sufficient facts, juveniles adjudicated delinquent, or youthful offenders placed on probation for sex offenses. See Commonwealth v. Doe, 473 Mass. 76, 77, 39 N.E.3d 427 (2015), and cases cited; see also Commonwealth v. Samuel S., 476 Mass. 497, 509, 69 N.E.3d 573 (2017).

The GPS devices worn by probationers (typically on the ankle) collect latitude and longitude location information through satellites, once per minute, and then transmit this time-referenced data over a cellular network maintained by Verizon Corporation. Recorded data also includes the speed and direction in which the bracelet-wearing individual is traveling. 3M reports that the location information so harvested is 90% accurate within 30 feet.³ Transmitted data is stored by ELMO indefinitely.

3 In Commonwealth v. Thissell, 457 Mass. 191, 198 n.15, 928 N.E.2d 932 (2010), the SJC stated that the origins of GPS technology provide " assurance of its reliability, " and explained that:

The GPS system operated by ELMO is based on " alerts" that are monitored by employees known as Assistant Coordinators. This means that a probationer's location data, though collected, is not ordinarily being examined in real time unless an alert has issued. When an alert issues, an Assistant Coordinator is notified (on his/her computer screen) and he or she will then address the issue. This typically entails contacting the probationer; and, in the vast majority of cases, the matter is resolved without an arrest warrant being issued.⁴

4 Assistant Coordinators are called upon to exercise some level of discretion to determine in the first instance whether the situation presents a bona fide compliance concern. If the probationer cannot be reached, the Assistant Coordinator will contact his Probation Officer. If an alert activates after hours and the Probation Officer cannot be located, an on-call Chief Probation Officer is available to address the matter. Arrest warrants are pursued and issued only if the alert cannot be explained and cleared after a substantial period of time, and that period of time will vary depending upon the nature of the alert.

ELMO alerts issue in a variety of contexts, and call for different types of responses. For example, a probationer who violates an established exclusion zone (such as by failing to remain at least 300 feet away from identified victims) will trigger an " Exclusion Zone" alert. A cellular signal or connectivity problem will produce an " Unable to Connect" alert. A probationer's failure to keep the GPS battery properly charged will result in a " Charging" alert. A GPS device that has been cut off, broken or otherwise tampered with will generate a " Tampering" alert. And so forth. Each of these alerts precipitates a different kind of intervention from law enforcement; and, because many of the alerts arise in innocent circumstances, ⁵ warrants for the arrest of the probationer are relatively uncommon.

5 For example, an Unable to Connect Alert may issue if the probationer is situated in a basement apartment or traveling in a remote area with poor cellular reception.

Much of the testimony at hearing addressed the limitations of ELMO's alerts system, and the practical problems and life inconveniences that can arise as a result. Charging alerts, for example, which are triggered when the GPS's battery is running low, are frequent. Probationers are advised to charge the device once or twice per day, as the battery is only designed to stay charged for 24 hours. Battery life has also been observed to decline after two years, requiring probationers to obtain replacements.

Signal and connectivity alerts, which typically issue when the probationer travels to a location or structure with poor cellular coverage, are likewise not uncommon, although reliability has improved substantially since ELMO upgraded its hardware to Verizon 4G equipment in 2017. When a probationer experiences a problem of this nature, he may be directed to go outside or walk around the block to restore the connection. But this is an infrequent occurrence, and very few issues of this nature have been observed by ELMO management since the Verizon upgrade.

The ability of GPS to monitor exclusion zones is another matter of significant limitation. The software utilized by ELMO allows for " rules" to be coded into individual GPS devices, such as the definition of an exclusion zone that will trigger an alert if the probationer comes within the distance parameter established by the sentencing judge. Feliz's injunction to remain at least 300 feet from schools, parks and day care centers is a conventional limitation; but ELMO cannot code and monitor the restriction in such a broad manner, as it requires specified addresses to define an exclusion zone. So while specific schools, parks and day care facilities can be entered into the software program for particular probationers (e.g., the ones closest to where the probationer lives or works and would thus be most likely to frequent), ELMO cannot define an exclusion zone to include all such venues. However, because the system is collecting location data in an undifferentiated manner, law enforcement can examine a GPS device's points after a given crime has been committed, and thereby determine if the subject probationer was at the scene at the time of such crime's commission. Thus, while an alert will not necessarily issue in real time whenever a probationer happens to pass within 300 feet of a park, school or day care center--which would create an obvious problem of over-alerting, given the ubiquity of these venues in the modern city⁶--the ability of law enforcement to connect a probationer to a particular site post hoc means that GPS is both a useful tool of crime detection and a deterrent to crimes a given probationer might otherwise be tempted to commit.

6 At hearing, for example, the evidence revealed that it would be challenging for a probationer to commute to the Suffolk County Superior Courthouse (as is frequently required) without passing near a school, public park or day care center.

B. Feliz's Experience With GPS

Since his April 22, 2016 sentencing, the defendant has been subject to continuous GPS monitoring under the supervision of Probation Officer Edward Phillips (" P.O. Phillips") of the Suffolk County Superior Court Probation Department. As a sex offender, Feliz is required by law to report to his Probation Officer every two weeks, provide proof of residency and employment, and maintain the GPS device on his person and in good working order. Although P.O. Phillips testified that he could not recall receiving alerts from ELMO related to the defendant's GPS monitoring, documentation introduced at hearing disclosed that Feliz's device has triggered 13 alerts over the past year.⁷ Virtually all of these alerts concerned power and connectivity issues, and were resolved in an average of 22 minutes. A small number required somewhat more time (a few hours) for ELMO to resolve, but none resulted in the issuance of an arrest warrant or otherwise imposed extraordinary hardships on Feliz.

7 The Case Management Notes that reflect these alerts appear to cover only a five-month period between April and September 2016. This is all of the evidence on the point that the defendant introduced, however, leaving the Court to conclude that there have been no further alerts. With the defendant's motion resting largely on the premise that his probationary GPS monitoring visits unfair and onerous burdens on him, Feliz would have every incentive to introduce evidence of all of the alerts that have issued. Having introduced only those alerts referenced in Exhibit 9, the Court draws the reasonable inference that there are no others. It does not appear that the defendant ever sought an order for additional records from the Commissioner of Probation; nor did he seek to supplement the record with any other evidence of additional alerts. In these circumstances, the Court finds that, whatever the defendant's problems with errant alerts may have been, they were a thing of the past by the fall of 2016.

At hearing, Feliz testified to other, undocumented problems he has experienced with his GPS device. The undersigned finds that these asserted inconveniences have been substantially overstated, both in number and severity. Thus, although Feliz testified that he continues to suffer GPS malfunctions or connectivity failures on the order of several times per month, this testimony was in stark conflict with the testimony of P.O. Phillips, is unsupported by the contemporaneous documentary evidence, and is not credited by the Court. The preponderant evidence shows that Feliz's GPS bracelet is working substantially as it is designed to do, that false alerts are infrequent, and that the overall reliability of the monitoring system has improved since the change-over to 4G equipment that occurred in 2017.⁸

8 Thus, although the Court acknowledges that Feliz experienced more frequent problems with the device (and the personal inconveniences associated with responding to alerts) during his period of pre-trial release in 2015, the evidence at hearing showed that those problems were modest in 2016 and have not continued since September of that year.

Although Feliz is required to wear his GPS at all times, the Court observes that an accommodation was made in May 2016 when he needed to remove it so that he could undergo an MRI procedure. Likewise, although GPS-wearers are discouraged from submerging the device in a bathtub or swimming pool, ⁹ the Court credits the testimony of P.O. Phillips that showering can take place in a normal fashion. Despite the occasional inconvenience and feeling of stigma that Feliz has experienced while on GPS as a probationer, he has been able to maintain full-time employment and has developed a substantial network of family and close friends to support him. Apart from this instance, Feliz has not been charged with or convicted of any additional sex offenses or other crimes.

9 Aside from its potential to destroy the device, submerging a GPS bracelet in water disrupts transmission of the signal from device to satellite to GPS monitoring center. Thissell, 457 Mass. at 193.

C. Sex Offenders' Risk of Re-Offense and GPS Monitoring's Deterrence of Sex Crime

A good deal of the testimony taken at hearing addressed the risks of re-offense posed by internet sex offenders¹⁰ and the extent to which GPS monitoring mitigates such risks. Although the testifying experts (Dr. Plaud for the defendant, Dr. Belle for the Commonwealth) did not agree on all points, many of the conclusions they offered based on the available social science research aligned in material respects. Thus, both experts testified that the rates of recidivism for sex offenders is lower than the rates of re-offense for all crimes; ¹¹ and at least one study concluded that the relative risk of re-offense posed by internet sex offenders is lower still. However, Dr. Belle opined that internet child pornography offenders with an anti-social behavioral disorder present a moderate to high risk of committing a contact sexual offense in the future; and internet offenders without such a disorder present a low to moderate risk of committing a contact sexual offense in the future. The Court credits this testimony.¹²

10 That is, persons convicted of possessing and distributing child pornography over the internet, as distinguished from persons convicted of committing so-called " contact offenses" with children.

11 Neither expert, however, addressed the hypothesis suggested by the Court that the more prevalent use of GPS monitoring among sex offenders on probation and parole may itself be deterring re-offense, and thus (at least to some degree) account for the lower rate of recidivism. The fact that sex offenders found likely to re-offend are civilly committed as sexually dangerous persons, see G.L.c. 123A, § 1 et seq., may also account for a reduced rate of recidivism, a proposition likewise not addressed by the experts at hearing. Both experts, however, did acknowledge a general under-reporting phenomenon observed in cases involving contact sex offenses with children, which when accounted for would also tend to lessen the gap in actual rates of relative recidivism.

12 But see Doe, SORB No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 313 n.24, 41 N.E.3d 1058 (2015) (citing recent studies concluding " sex offenders' rates of committing an additional sex offense are low overall").

Further to the above, Drs. Belle and Plaud agree that persons who possess and disseminate child pornography display a deviant sexual interest in--that is, a sexual attraction to--children. Dr. Belle opined that permitting persons with such a sexual interest to have access to children is worrisome, and the Court credits this testimony. Although neither expert could cite published social science research on the point, both agreed as a logical matter that, because of their evident sexual interest in children, internet offenders (with or without an anti-social behavioral disorder) are substantially more likely to commit a contact offense with children than members of the general public. The Court credits this testimony as well.

The impact of GPS monitoring on the risk and rate of sex offender recidivism does not appear to have been the subject of significant empirical study. There have, however, been a few published studies that suggest that GPS monitoring does lower rates of recidivism among sex offenders.¹³ Empiricism aside, Dr. Plaud acknowledged that, because GPS can pinpoint a defendant's location at the time a sex offense is committed, and because defendants know this, the imposition of GPS monitoring on sex offenders logically (at least to some degree) operates to deter such crimes and lower the risk of re-offense. The Court accepts this common-sense conclusion.

13 See Turner et al., " Does GPS Improve Recidivism Among High Risk Sex Offenders? Outcomes for California's GPS Pilot for High Risk Sex Offender Parolees, " 10 Victims & Offenders 1, 1-28 (2015) (study of California's pilot program of GPS monitoring of high-risk sex offenders on parole showed that GPS-monitored parolees were less likely to fail to register as a sex offender, and slightly less likely to abscond from supervision); Stephen V. Gies et al., " Monitoring High-Risk Sex Offenders with GPS Technology: An Evaluation of the California Supervision Program--Final Report" (2002) (available at https://www.ncjrs.gov/pdffiles1/nij/grants/238481.pdf) (California GPS program resulted in reductions in sex violations, new arrests, and returns to custody). Cf. New Jersey State Parole Board, " New Jersey GPS Monitoring of Sex Offenders: Implementation and Assessment, Corrections Forum" 17(3), 55-59 (2008) (New Jersey study examining use of GPS on 250 sex offenders found that only one sex offender had committed a new sex crime). But see Tennessee Board or Probation and Parole and Middle Tennessee State University, " Monitoring Tennessee's Sex Offenders Using Global Positioning Systems: A Project Evaluation" (2007) (available at https://ccoso.org/sites/default/files/import/BOPP-GPS-Program-Evaluation%2C-April-2007.pdf) (Tennessee study found " no statistically significant differences" between GPS-monitored sex offenders and a comparison group of sex offenders with regard to parole violations, new criminal charges, or the number of days prior to the first parole violation).

In addition to deterring contact offenses (whatever level of risk might be posed by those convicted of possession of internet child pornography), GPS monitoring likewise facilitates the investigation of non-contact offenses. Law enforcement officers frequently investigate the dissemination of child pornography by ascertaining the internet protocol (" IP") address that was utilized to upload the images. Because the IP address is traceable to a physical location, GPS location data can confirm or refute whether the device-wearer was at such location at the time of an offending upload. This, in turn, the Court infers, logically operates to deter child pornographers from committing even non-contact offenses.

Finally, GPS monitoring furthers the rehabilitation-oriented goals of probation by allowing a probationer's addresses to be verified in real time. Through GPS, a probation officer is able to confirm that his/her charge is continuing to reside at the home address he has reported, adhering to court-imposed curfews, continuing to work at the places of employment and during the hours of service claimed, and attending all required rehabilitative programs.

RULINGS OF LAW

1. LEGAL LANDSCAPE

Section 47 provides in relevant part as follows:

Any person who is placed on probation for any offense listed within the definition of " sex offense, " a " sex offense involving a child" or a " sexually violent offense, " as defined in section 178C of chapter 6, shall, as a requirement of any term of probation, wear a global positioning system device . . . at all times for the length of his probation for any such offense. The commissioner of probation . . . shall establish defined geographic exclusion zones including, but not limited to, the areas in and around the victim's residence, place of employment and school and other areas defined to minimize the probationer's contact with children, if applicable. If the probationer enters an excluded zone . . . the probationer's location data shall be immediately transmitted to the police department . . .

G.L.c. 265, § 47. In Commonwealth v. Guzman, 469 Mass. 492, 14 N.E.3d 946 (2014), the SJC held that this statute did not violate a probationer's due process rights, but noted in dictum that " the sanction of GPS monitoring appears excessive to the extent that it applies without exception to convicted sex offenders sentenced to a probationary term, regardless of any individualized determination of their dangerousness or risk of re-offense." Id. at 500 (quotations and alterations omitted). The Court nonetheless abjured consideration of the issue currently before the undersigned, viz., whether the GPS requirement constitutes an unreasonable search or seizure, since such questions " are necessarily fact-dependent . . . [and] neither the Commonwealth nor the defendant [had] presented evidence concerning the details of the GPS monitoring to which the defendant is subject." Id.

Subsequently, in Grady v. North Carolina, 135 S.Ct. 1368, 1371, 191 L.Ed.2d 459 (2015), the U.S. Supreme Court held that a North Carolina statute imposing mandatory GPS requirements similar to those required by Section 47 gave rise to a search for Fourth Amendment purposes. The statute at issue required the " continuous tracking of the geographic location of the subject" and the " [r]eporting of the subject's violation of prescriptive and proscriptive schedule or location requirements." Id. The Court noted, however, that its conclusion did " not decide the ultimate question of the program's constitutionality, " which turned on the reasonableness of North Carolina's monitoring program " when properly viewed as a search." Id. The Court expressly declined to consider the reasonableness of North Carolina's GPS program in the first instance, and remanded the case for further proceedings to review the search 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." Id.

The defendant in the case at bar requests that we pick up where the Supreme Court left off in Grady, and review whether Section 47 imposes unconstitutional searches under the Fourth Amendment and article 14. Inasmuch as Grady has already concluded that the imposition of GPS monitoring is, indeed, a search in the constitutional sense, the burden rests upon the Commonwealth to show that it is reasonable. See Commonwealth v. Berry, 420 Mass. 95, 105-06, 648 N.E.2d 732 (1995). The Court is unaware of any legal authority (and the parties have offered conflicting, but largely unsubstantiated, arguments on the subject) addressing whether the hearing contemplated by Grady requires an examination of Section 47 as it applies generally in Massachusetts or as it applies to the defendant personally. For this reason, the Court shall review Section 47's constitutionality through both perspectives.¹⁴

14 The parties are in disagreement as to whether the GPS monitoring prescribed by Section 47 amounts to a search in the constitutional sense. As set forth supra, the U.S. Supreme Court directly addressed this question in Grady. Grady, 135 S.Ct. at 1371 ( " [A] State . . . conducts a search when it attaches a device to a person's body, without consent, for the purpose of tracking that individual's movements"). Compare Commonwealth v. Connolly, 454 Mass. 808, 818, 913 N.E.2d 356 (2009) (installation of GPS device on motor vehicle and continued use for surveillance purposes is a " seizure"), and Commonwealth v. Augustine, 467 Mass. 230, 255, 4 N.E.3d 846 (2014) (compelled production of cell site location information constituted search). The Commonwealth, however, contends that the defendant has failed to specify which conduct constitutes the Fourth Amendment search: the physical intrusion of wearing the GPS tracking device, or the collection of the defendant's location information during the pendency of his probation. As the defendant has challenged both features of Section 47's GPS requirement, and inasmuch as both can occur simultaneously, the Court will address them together.

II. ANALYTICAL FRAMEWORK

Article 14 and the Fourth Amendment do " not proscribe all searches and seizures, but only those that are unreasonable." Skinner v. Railway Executives' Ass'n, 489 U.S. 602, 619, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). What is " reasonable" depends on the totality of the circumstances surrounding the search or seizure, and is determined by weighing " the nature and purpose of the search" against " the extent to which the search intrudes upon reasonable privacy expectations." Grady, 135 S.Ct. at 1371; see also Commonwealth v. Catanzaro, 441 Mass. 46, 56, 803 N.E.2d 287 (2004) (" There is no ready test for reasonableness except by balancing the need to search or seize against the invasion that the search or seizure entails").

Generally, in criminal cases, the constitutional balance is struck pursuant to the warrant and individualized suspicion requirements of the Fourth Amendment and article 14. See Skinner, 489 U.S. at 619; Commonwealth v. Shields, 402 Mass. 162, 169, 521 N.E.2d 987 (1988). A reasonableness analysis performed under what is known as the " special needs" doctrine, however, provides an exception to this general rule. See Ferguson v. Charleston, 532 U.S. 67, 79 n.15, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001) (special needs doctrine " has been used to uphold certain suspicionless searches performed for reasons unrelated to law enforcement, [and] is an exception to the general rule that a search must be based on individualized suspicion of wrongdoing") (quotation omitted).

When faced with " special needs" that render individualized suspicion and/or obtaining a warrant impracticable, the Court must determine whether the government's situational needs outweigh its citizens' reasonable expectation of privacy. See id. ; O'Connor v. Police Comm'r of Boston, 408 Mass. 324, 327, 557 N.E.2d 1146 (1990), quoting National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). A " blanket suspicionless" search is reasonable, and thus constitutional under the special needs exception, where " the risk to public safety is substantial and real" and the search at issue is " calibrated to the risk . . ." Chandler v. Miller, 520 U.S. 305, 323, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997); accord Commonwealth v. Rodriguez, 430 Mass. 577, 580, 722 N.E.2d 429 (2000). " We are particularly reluctant to recognize exceptions to the general rule of individualized suspicion where governmental authorities primarily pursue their general crime control ends." Indianapolis v. Edmond, 531 U.S. 32, 43, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000).

Many decisions reviewing the constitutionality of a search or seizure purported to intrude on a probationer's or parolee's privacy interests rest on something of a hybrid of the totality of the circumstances and special needs analyses. In Griffin v. Wisconsin, 483 U.S. 868, 875, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), for example, the U.S. Supreme Court held that the " special needs of the probation system" permitted a search of a probationer's person or residence without a warrant or probable cause. Griffin did not, however, find that the searches at issue met Fourth Amendment requirements based on special needs alone. Id. at 878-79. Equally important was the fact that the contested regulation permitting the warrantless searches required probation officers to have " reasonable grounds to believe" that the search would lead to the discovery of contraband. Id. Although Griffin 's invocation of the special needs exception did not do away with the need for individualized suspicion entirely, it suggested that there is a constitutionally significant distinction between special needs searches of individuals under penal supervision and special needs searches of the general public. See Ferguson, 532 U.S. at 79 n.15 (" We agree with petitioners that Griffin is properly read as limited by the fact that probationers have a lesser expectation of privacy than the public at large").

Subsequently, in United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), the Supreme Court left open the question of whether suspicionless searches of probationers are permitted under the Fourth Amendment when conducted for law enforcement purposes alone:

We do not decide whether the probation condition so diminished, or completely eliminated, Knight's reasonable expectation of privacy . . . that a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment. The terms of the probation condition permit such a search, but we need not address the constitutionality of a suspicionless search because the search in this case was supported by reasonable suspicion.

Id. at 120 n.6. The Court addressed this question with respect to parolees (who have a somewhat lesser expectation of privacy than probationers) in Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006). See also Commonwealth v. Moore, 473 Mass. 481, 485, 43 N.E.3d 294 (2016) (" [A]rt. 14 provides to a parolee an expectation of privacy that is less than even the already diminished expectation afforded to a probationer"). In Samson, the Court found that a suspicionless search of a parolees' person conducted pursuant to a policy that proscribed " arbitrary, capricious or harassing searches, " and thus did not confer upon parole officers " a blanket grant of discretion . . ., " was reasonable under the Fourth Amendment. 547 U.S. at 856. Samson nonetheless disclaimed the need to consider the search at issue under a special needs analysis, noting that its " holding under general Fourth Amendment principles, " i.e., a totality of the circumstances test, rendered a special needs analysis unnecessary. Id. at 852 n.3.

Unlike the federal courts, Massachusetts courts generally apply the special needs exception only to searches that lack individualized suspicion altogether, and have yet to apply the analysis to warrantless searches of probationers and parolees. See, e.g., Moore, 473 Mass. at 487 (declining to apply special needs exception, while holding that a warrant is not required to search a parolee's home). Cf. Landry v. Attorney General, 429 Mass. 336, 347-48, 709 N.E.2d 1085 (1999) (finding no need to conduct special needs analysis, because court did not rely on fact that convicted persons were likely to re-offend, the relevance of DNA evidence to prove crimes, or penological interests within the prison in determining warrantless collection of offender's DNA was " reasonable" based on totality of circumstances).

With the foregoing principles in mind, the Court turns to the defendant's facial and as-applied challenges to Section 47's GPS requirement. The Court will, by turns, consider the privacy interests of individuals on probation for sex offenses, the degree of intrusion visited upon them by GPS monitoring, the government's interest in continuously tracking the location of a sex offender on probation, and whether either the balance of the totality of the circumstances or the special needs of law enforcement justify Section 47's inherent lack of individualized suspicion.

III. FACIAL CHALLENGE

1. Intrusion on Privacy

i. Probationer Interests

" Privacy interests protected by the Fourth Amendment . . . and art. 14 . . . exist where it is shown that a person has exhibited an actual (subjective) expectation of privacy, and when that expectation is one that society is prepared to recognize as reasonable." In the Matter of a Grand Jury Subpoena, 454 Mass. 685, 688, 912 N.E.2d 970 (2009) (quotations and alterations omitted).

It is well settled that the fact of a criminal conviction operates to reduce a person's reasonable expectation of privacy. See Landry, 429 Mass. at 344-45. A person's expectation of privacy is further reduced when his conviction requires him to serve a sentence along the continuum of State-imposed punishments, viz., probation, parole, or incarceration. Ferguson, 532 U.S. at 79 n.15 (citing Griffin, 483 U.S. at 874-75). See generally Knights, 534 U.S. at 118-20; Commonwealth v. LaFrance, 402 Mass. 789, 792-93, 525 N.E.2d 379 (1988).

Although a probationer is subject " to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison." Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Notwithstanding the fact that a probationer's expectation of privacy is diminished, therefore, the permissible infringement upon it " is not unlimited." Griffin, 483 U.S. at 875; see also Samson, 547 U.S. at 850 n.2 (diminished expectation of privacy is different than no expectation of privacy).

The distinctive privacy interests of those convicted of crime have to date received only limited discussion in our reported cases. As stated supra, the Fourth Amendment does not require a warrant or probable cause to search a probationer's home, but the search must still be predicated on reasonable suspicion. Knights, 534 U.S. at 121. And in Massachusetts, " art. 14 offers greater protections for parolees than does the Fourth Amendment." Moore, 473 Mass. at 482. Article 14 does not, however, offer as much protection to parolees as it affords to probationers. Id. Accordingly, article 14 does require probation officers who wish to search a probationer's home to obtain a warrant; although such a warrant may be supported by reasonable suspicion rather than probable cause. See LaFrance, 402 Mass. at 794.

Article 14 also permits a reduced level of suspicion to support the search of a probationer's person, " but any standard below . . . reasonable suspicion" has been held impermissible. Commonwealth v. Waller, 90 Mass.App.Ct. 295, 304, 58 N.E.3d 1070 (2016) (quotation omitted).¹⁵ To that end, the Supreme Judicial Court has rejected conditions of probation " that subjected probationers to a blanket threat of warrantless searches . . . notwithstanding the fact that such a condition might aid in the probationers' rehabilitation and help to ensure their compliance with other conditions of probation." Commonwealth v. Obi, 475 Mass. 541, 548, 58 N.E.3d 1014 (2016) (citation omitted); see also Moore, 473 Mass. at 487 (citing LaFrance, 402 Mass. at 792-93) (" [A]rt. 14 guarantees that any condition of probation compelling a probationer to submit to searches must be accompanied by reasonable suspicion"). At the same time, and by contrast, the SJC has recognized that any convicted person's expectation of privacy in his or her identity is so diminished as to allow the compulsory and suspicionless seizure of identifying information derived from a blood sampling. See Landry, 429 Mass. at 344-45.

15 The Court is not aware of any U.S. Supreme Court cases that speak to a probationer's Fourth Amendment privacy interest in his or her person. The Court did, however, address a parolee's privacy interests in his or her person in Samson v. California, 547 U.S. 843, 848, 856-57, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), where it held that the Fourth Amendment permitted suspicionless searches of a parolee's person pursuant to a policy that proscribed " arbitrary, capricious or harassing searches" and therefore did not confer upon parole officers " a blanket grant of discretion . . ."

Although Massachusetts appellate courts have had occasion to discuss how a probationer's liberty interests are impacted by GPS monitoring, they have yet to address explicitly the extent to which the collection of location data by GPS implicates a probationer's privacy interests where the probationer did not consent to the GPS monitoring condition.¹⁶ See, e.g., Commonwealth v. Cory, 454 Mass. 559, 569, 911 N.E.2d 187 (2009) (GPS monitoring " imposes a significant limitation on liberty"); Commonwealth v. Johnson, 91 Mass.App.Ct. 296, 303-05 (2017) (addressing privacy interests of defendant who consented to GPS monitoring as a term of pre-trial release). The evidence adduced at hearing, however, including most particularly the testimony of Probation Officers Phillips and Connolly, as well as the legal regulations governing probationers and sex offenders in general, persuade the Court that the privacy interests of a sex offender serving a term of probation in his or her GPS location data are modest.

16 Here, GPS monitoring was a statutorily required condition of Feliz's release. See LaFrance, 402 Mass. at 791 n.3 (" 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"); Commonwealth v. Johnson, 91 Mass.App.Ct. 296, 303 (2017) (distinguishing situations where GPS monitoring is a statutory requirement or done without defendant's knowledge from situations where defendant consents to GPS monitoring, imposed pursuant to an act of judicial discretion, as a condition of pre-trial release); see also Moore, 473 Mass. at 487 n.6 (terms of penal supervision cannot " contract around" constitutional requirements in order to compel an offender " to accept a condition that would unnecessarily and unreasonably limit his or her art. 14 privacy rights").

For one, sex offenders are required to report their work and home addresses (and all secondary addresses), and to promptly update such information with the Probation Department. See G.L.c. 6, § § 178D, 178F. Sex offenders must also " register the names and addresses of the institutions of higher learning they attend . . ." Doe, SORB No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 305, 41 N.E.3d 1058 (2015). Furthermore, individuals serving a term of probation for sex offenses are required to report to their probation officers with proof of address every fourteen days. " An offender may be arrested without a warrant '[w]henever a police officer has probable cause to believe that [he or she] has failed to comply with the registration requirements.'" Id. at 306 n.13 (quoting G.L.c. 6, § 178P). The Probation Department similarly directs and monitors the location of probationers by administrating and enforcing orders to stay away from certain locations (i.e., parks, schools, and daycare facilities), to adhere to specified curfews, to avoid living near certain places or certain people (i.e., with children or with the victims of prior offenses), and to attend certain rehabilitative programs. See G.L.c. 276, § 87A; Commonwealth v. MacDonald, 435 Mass. 1005, 1006, 757 N.E.2d 725 (2001); Commonwealth v. Morales, 70 Mass.App.Ct. 839, 843-44, 877 N.E.2d 938 (2007).

Second, convicted sex offenders are also subject to registry laws that call " for extensive dissemination of offenders' registry information. Both level two and level three sex offenders' information is now posted on the internet . . . [and] [n]o limits are placed on the secondary dissemination of this information." Doe, SORB No. 380316, 473 Mass. at 307. " Where previously the time and resource constraints of local police departments set functional limits on the dissemination of registry information, the Internet allows for around-the-clock, instantaneous, and worldwide access to that information--a virtual sword of Damocles." Id. at 307. " Although level one offenders' information is not disseminated publicly, it still may be released to the local police department where they attend institutions of higher learning . . . as well as to a variety of State agencies and the Federal Bureau of Investigation . . . In addition, a level one sex offender's classification level and the city or town in which the offender lives, works, or attends an institution of higher learning may be released to a victim who submitted a written victim impact statement as part of the offender's classification hearing." Id. at 308.¹⁷ The Court thus finds that the privacy interests of a convicted sex offender serving a term of probation are diminished below the privacy interests the SJC and Appeals Court have recognized with respect to probationers and parolees who were convicted of other types of crimes. See, e.g., Moore, 473 Mass. at 481 (assault with a firearm); LaFrance, 402 Mass. at 790 (burglary and larceny); Waller, 90 Mass.App.Ct. at 296 (animal cruelty).

17 Recently, in Johnson No. 15-P-987, 91 Mass.App.Ct. at 305, the Appeals Court found that a defendant required to wear a GPS device during a period of pre-trial release had no possessory interest in his GPS data, because it was stored in the ELMO server--which was " not a place the defendant control[ed] or possess[ed], or to which he ha[d] access." It is important to note, however, that the Appeals Court's finding was clearly influenced by the fact that the defendant had consented to GPS monitoring and had thereby failed to protect his possessory interest in the data.

ii. Level of Intrusion

The SJC has acknowledged that GPS monitoring is a " restraint on liberty that is 'dramatically more intrusive and burdensome' than sex offender registration . . ." Commonwealth v. Doe, 473 Mass. 76, 83, 39 N.E.3d 427 (2015); see also Cory, 454 Mass. at 570 (" There is no context other than punishment in which the State physically attaches an item to a person, without consent and also without consideration of individual circumstances, that must remain attached for a period of years and may not be tampered with or removed on penalty of imprisonment"); Doe v. Massachusetts Parole Bd., 82 Mass.App.Ct. 851, 858, 979 N.E.2d 226 (2012) (" GPS monitoring conditions are a form of punishment that are materially different and more onerous than other terms of probation or parole . . .").

A GPS device invades privacy in substantially the same way that it intrudes on liberty: " [1] by its permanent, physical attachment to the offender, and [2] by its continuous surveillance of the offender's activities." Commonwealth v. Goodwin, 458 Mass. 11, 22-23, 933 N.E.2d 925 (2010) (citations omitted); Grady, 135 S.Ct. at 1371 (GPS monitoring physically intrudes on a subject's body).¹⁸ The Court will address each feature in turn.

18 Several decades ago, the U.S. Supreme Court held that " to determine by means of an electronic device, without a warrant and without probable cause or reasonable suspicion, whether a particular article--or a person, for that matter--is in an individual's home at a particular time . . . present[s] far too serious a threat to privacy interests in the home to escape entirely some sort of Fourth Amendment oversight." United States v. Karo, 468 U.S. 705, 716, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). This principle drove the Supreme Court's determination in Kyllo v. United States, 533 U.S. 27, 40, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), that thermal imaging technology used by law enforcement to surveil a defendant's home violated the Fourth Amendment. The Supreme Court explained, " [i]n the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes." Id. at 37-40. These cases demonstrate the extent to which technology may intrude on the expectation of privacy a citizen has in his or her home; but they do not address whether the degree of intrusion is sufficiently mitigated for constitutional purposes when technology is applied to monitor the location of a sex offender serving a term of probation.

" A GPS device . . . consists of two pieces of electronic equipment: an ankle bracelet, which is permanently attached to the probationer, and a GPS-enabled cellular telephone, which communicates with the ankle bracelet and transmits the probationer's current location to the probation department." Commonwealth v. Hanson H., 464 Mass. 807, 815, 985 N.E.2d 1181 (2013) (quotation omitted). The defendant contends that the compulsory attachment of a GPS device to his ankle at all times represents an unreasonable intrusion on a privacy interest in his body, and is akin to being made to wear a scarlet letter of criminality. See Grady, 135 S.Ct. at 1370 (attaching device to person's body without consent for purpose of tracking individual's movements is a physical intrusion on constitutionally protected area); see also Hanson H., 464 Mass. at 815 (" We have recognized that, as currently implemented, GPS monitoring is inherently stigmatizing, a modern-day 'scarlet letter' . . . [and] may have the additional punitive effect of exposing the offender to persecution or ostracism, or at least placing the offender in fear of such consequences") (citation omitted). Insofar as the visibility of the GPS bracelet implicates privacy interests, according to Feliz's own testimony, a probationer can easily avoid detection of the device by others if he obscures it with clothing. The ability to control visibility in this manner restores privacy to a significant extent.

With respect to the defendant's contention that the GPS device unreasonably intrudes on a privacy interest in his body, the Court also observes that the Probation Department readily accommodates probationers when they need to remove the bracelet for emergency reasons, such as when the defendant needed to undergo an MRI procedure. Moreover, P.O. Phillips' testimony dispelled the defendant's concern that, on account of the GPS's electronics, he needed to shower with his ankle held away from the water. Once again, therefore, the practical implementation of GPS mitigates some of the more serious hardships that might otherwise be posed by forced wearing of the device.

The second privacy interest implicated by GPS monitoring is a probationer's interest in his or her movements and location at all times. In Commonwealth v. Cory, the SJC stated that, " [w]hile GPS monitoring does not rise to the same level of intrusive regulation that having a personal guard constantly and physically present would impose, it is certainly far greater than that associated with traditional monitoring." 454 Mass. at 570-71.¹⁹ In addition to tracking the location of a probationer's person, GPS devices (particularly, two-piece devices like the one Feliz uses in his home) can pinpoint a probationer's location within his own residence through a stationary device known as a " beacon." The devices also collect massive amounts of data--approximately 525, 600 data points per year based on a collection rate of once per minute. See Riley v. California, 134 S.Ct. 2473, 2490, 189 L.Ed.2d 430 (2014), quoting United States v. Jones, 565 U.S. 400, 415, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (Sotomayor, J., concurring) (" GPS monitoring generates a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations"); Commonwealth v. Rousseau, 465 Mass. 372, 381, 990 N.E.2d 543 (2013) (same).

19 It is important to note that, in Cory, the SJC evaluated GPS intrusiveness in a context vastly different than the reasonableness standards prescribed by article 14 and the Fourth Amendment. The SJC's analysis of Section 47 related solely to the issue of whether " the statutory scheme [was] so punitive either in purpose or effect as to negate the State's intention to deem it civil." Cory, 454 Mass. at 565 (internal quotations and modifications omitted). For the reasons cited above, the Court held that the purposes and effects of Section 47 are sufficiently punitive in nature to bar retroactive application of the statute pursuant to the constitutional prohibition barring ex post facto laws. Id. at 563-73.

That said, however, the significant intrusion of 24/7 data collection is mitigated by the reality that this information is (to an overwhelming degree) left unexamined on a remote ELMO server. Cf. United States v. Karo, 468 U.S. 705, 712, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) (" [W]e have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment"). A large volume of location data is, to be sure, being collected and stored on a government server. But this is surely not the same thing as the government monitoring a probationer's movements in real time. See United States v. Jones, 565 U.S. 400, 430, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (recognizing constitutionally significant distinction between " short-term monitoring of a person's movements on public streets" and " longer term GPS monitoring") (Alito, J., concurring). Law enforcement is only accessing this collected information when it might reveal what a probationer was doing during a specific moment in time where there is reason to believe that a sex offender may be involved in a probation violation (viz., when an alert issues); or, less frequently, when a crime has been committed in a geographic area that suggests a probationer may have been involved. See Commonwealth v. Augustine, 467 Mass. 230, 254, 4 N.E.3d 846 (2014) (duration of time for which historical location data is sought is " relevant consideration" in privacy calculus); Rousseau, 465 Mass. at 381-82 (" [T]he government's contemporaneous electronic monitoring of one's comings and goings in public places invades one's reasonable expectation of privacy") (emphasis added). Although these circumstances may fall short of satisfying an individualized reasonable suspicion test, the infrequency with which a probationer's location data is actually accessed by law enforcement serves to mitigate what might otherwise seem to be a vast privacy intrusion by the government. See Commonwealth v. Connolly, 454 Mass. 808, 835-36, 913 N.E.2d 356 (" Our constitutional analysis should focus on the privacy interest at risk from contemporaneous GPS monitoring . . .") (Gants, J., concurring); cf. Johnson, 91 Mass.App.Ct. at 312 (availability, efficiency, and low cost of GPS monitoring has fundamentally altered what constitutes a reasonable expectation of privacy) (Grainger, J., concurring).

In light of the inquiry at hand, and the nature and extent of a probationer's privacy interests acknowledged, the Court turns next to an assessment of the countervailing governmental interests that have been invoked to demonstrate the reasonableness of the Section 47 search.

B. Government Interests

Having acknowledged the significantly diminished expectations of privacy held by sex offenders serving a term of probation, and the contextually modest intrusion upon that expectation caused by mandatory GPS bracelet-wearing, ²⁰ the Court will now consider the legitimate governmental interests underlying Section 47. See Catanzaro, 441 Mass. at 56 (2004).

20 Once again, the incursion into privacy occasioned by the mandatory wearing of a GPS bracelet must be evaluated in the context of a probationer whose conviction for sex crime already subjects him to a substantial amount of government oversight and data-collection. See supra .

In Commonwealth v. Kelsey, 464 Mass. 315, 321, 982 N.E.2d 1134 (2013), the SJC identified certain interests the Commonwealth has with respect to probationers generally, including " an interest in expeditiously containing the threat posed by a noncompliant probationer; in imposing effective punishment when a convicted criminal is unable to rehabilitate himself on probation; . . . in keeping judicial administrative costs to a minimum[; ] . . . [and] in a reliable, accurate evaluation of whether the probationer indeed violated the conditions of his probation." (Quotations omitted.) In this regard, our precedents recognize that " [t]he two principal goals of probation are rehabilitation of the defendant and protection of the public." Goodwin, 458 Mass. at 15 and cases cited.²¹ " While these goals are intertwined, because a defendant who is rehabilitated is not committing further crimes, they remain distinct, because a probation condition that protects the public from the defendant may not advance the likelihood of his rehabilitation." Id. at 15-16. " In cases where a condition touches on constitutional rights, the goals of probation 'are best served if the conditions of probation are tailored to address the particular characteristics of the defendant and the crime.'" Commonwealth v. LaPointe, 435 Mass. 455, 459, 759 N.E.2d 294 (2001) (quoting Commonwealth v. Pike, 428 Mass. 393, 403, 701 N.E.2d 951 (1998)).

21 The Commonwealth cites to Guzman, 469 Mass. at 499-500, to argue that the SJC has already recognized Section 47 " as serving" the goals of " deterrence, isolation, incapacitation, retribution and moral reinforcement, as well as reformation and rehabilitation." Id. This is true. The SJC in Guzman, however, addressed the constitutionality of Section 47 under the due process provisions of the Fourteenth Amendment of the U.S. Constitution and articles 1, 10, 11 and 12 of the Massachusetts Declaration of Rights. The Court expressly declined to address constitutionality under the search and seizure provisions of article 14 or the Fourth Amendment, id. at 500; and the balancing of relative interests in this context is surely different. Thus, although the SJC has acknowledged important governmental interests underlying Section 47, Guzman does not control the constitutional review called for in the case at bar.

The Commonwealth has provided ample evidence to support the conclusion that both of these governmental interests are served by Section 47. First, Section 47's GPS tracking requirement promotes deterrence and rehabilitation, because probationers are aware that the government is capable of monitoring (or, more frequently, retroactively determining) their physical location. P.O. Connolly testified to this effect, reporting that he has observed low rates of re-offense among his probationers because they know they can be closely tracked. P.O. Connolly additionally testified that probationers are obligated to comply with myriad reporting requirements (i.e., providing proof of address every fourteen days, attendance at rehabilitation programs, and securing and maintaining employment). GPS tracking helps ensure compliance with these terms of probation, an obviously legitimate interest of the government.²²

22 But see Doe, SORB No. 380316, 473 Mass. at 305-06 & n.12 (sex offender registration combined with intensive conditions imposed on sex offenders under penal supervision are " exceptionally burdensome" and, according to one study, can result in the offender " [f]eeling alone, isolated, ashamed, embarrassed, hopeless, or fearful[, ] [which] may threaten a sex offender's reintegration and recovery and may even trigger some sex offenders to relapse") (quotation omitted).

Second, both Dr. Plaud and Dr. Belle testified that GPS tracking can help confirm whether a probationer has re-offended, whether it be by a contact or non-contact offense, thereby promoting public safety. GPS data is clearly able to place a probationer in the location of a reported contact crime. Less obvious, however, is the role GPS information can play in detecting non-contact crimes such as the possession of child pornography. Dr. Plaud testified that law enforcement agencies often use IP addresses to identify the geographical location from which child pornography is being disseminated. GPS data, in turn, can pinpoint a probationer to the given IP address, thereby furnishing probable cause to establish his involvement in the dissemination. Once again, the government plainly has a legitimate interest in facilitating law enforcement in this manner.

Finally, the Commonwealth contends that the government has an interest in even non-contact sex offenders' physical locations, because they pose a heightened risk of both re-offending in the realm of internet pornography and offending in the realm of child abuse. See Doe v. Sex Offender Registry Bd., 428 Mass. 90, 103, 697 N.E.2d 512 (1998) (acknowledging state's interest in protecting children " and other vulnerable people from recidivistic sex offenders").²³ The former inference is unexceptional, the latter less intuitive. But both Dr. Plaud and Dr. Belle acknowledged at hearing that the risk of a non-contact sex offender committing a future contact offense was substantially higher than the same risk posed by a member of the general population. The reason for this is that persons who possess and disseminate child pornography display a deviant sexual interest in--that is, a sexual attraction to--children. Drs. Plaud and Belle thus credibly opined that, as a logical matter, because of their evident sexual interest in children, internet-based offenders (with or without an anti-social behavioral disorder) are substantially more likely to commit a contact offense with children than members of the general public are.²⁴ The Court concludes, therefore, that the government has demonstrated a legitimate interest in deterring physical contact between non-contact sex offenders on probation (such as Feliz) and potential victims of criminal child abuse--an interest that the GPS requirement of Section 47 reasonably serves.

23 But see Doe, SORB No. 380316, 473 Mass. at 313-14 (noting state's interest in avoiding overbroad sex offender regulations, which " distracts the public's attention from those offenders who pose a real risk of reoffense, and strains law enforcement resources").

24 The Court submits that this is the proper inquiry when evaluating the reasonableness of requiring non-contact sex offenders to wear GPS bracelets. That some studies have suggested that sex offenders display lower rates of recidivism than other types of convicted criminals is of no moment, particularly given the acknowledged under-reporting of sex crime and the other reasons to question the reliability of this conclusion. See supra at n.11.

D. Balance of Interests

i. Totality of the Circumstances

Placing these interests in proper balance, the Court concludes that the important governmental interests in investigating and deterring child sex crime substantially outweigh the intrusion into the already diminished expectations of privacy afforded to sex offenders serving a term of probation. To be sure, probationers retain some residual expectation of privacy in their physical persons and whereabouts, and the compulsory wearing of a GPS bracelet on their ankle (and the resulting transmittal of 24/7 location data to ELMO) visits some degree of intrusion into that privacy. Nevertheless, given the compelling interest in preventing and punishing those who would commit sex offenses against our children--an interest the SJC in Guzman acknowledged cleared rational basis scrutiny--the Court finds that this balance tilts decidedly in favor Section 47's constitutionality. See Doe, SORB No. 380316, 473 Mass. at 313 (" The State has a strong interest in protecting children and other vulnerable people from recidivistic sex offenders") (quotation omitted). Cf. Johnson, 91 Mass.App.Ct. at 305-06 (society unwilling to recognize expectation of privacy in GPS data of defendant on pre-trial release).

While Moore, LaFrance, and Waller held that individualized reasonable suspicion is required to justify the search of a parolee or probationer and/or a parolee's or probationer's residence, these decisions are distinguishable in several important respects. First, these cases concerned searches broadly targeted at evidence of criminal activity that involved an element of uncertainty as to if, when, and in some cases where, the search would be conducted. See Moore, 473 Mass. at 483-84 (search of parolee's home following arrest); LaFrance, 402 Mass. at 790 (condition allowing search of probationer for any or no reason); Waller, 90 Mass.App.Ct. at 304 (condition allowing random inspections by Massachusetts Society for Prevention of Cruelty to Animals and/or the Probation Department). By contrast, a probationer subject to GPS monitoring under Section 47 is well aware of when the search will occur (for the duration of his or her probationary term), how it will take place (satellite monitoring of a device affixed to the probationer's ankle), and the precise information or evidence that the government seeks to obtain (the probationer's location data). See Shields, 402 Mass. at 165 (minimizing the surprise and fear occasioned by a search also minimizes the intrusiveness of the search). In point of fact, GPS monitoring of convicted sex offenders adds little to the interference with privacy already engendered by the Commonwealth's sex offender registry laws-- i.e., statutory mandates to avoid certain exclusion zones, requirements to regularly report their primary address, secondary addresses, workplace, and institutions of higher learning, and in some instances, broad public dissemination of this sensitive information. See Doe v. Sex Offender Registry Bd., 466 Mass. 594, 596, 999 N.E.2d 478 (2013) (recognizing that sex offender registry laws compromise constitutionally protected privacy interests).

Second, as compared to the potentially extreme physical invasiveness sanctioned by the search of a probationer's person, a GPS bracelet appears to visit no greater physical intrusion than mandatory DNA collection under G.L.c. 22E, § 3--a constitutional search the SJC has found to be reasonable despite the lack of individualized suspicion required to conduct it. See Landry, 429 Mass. at 350 (collecting DNA from convicted persons represents a " minor intrusion" that is outweighed by a strong state interest in the ability to identify serious offenders). Indeed, the wearing of the GPS device on one's ankle arguably entails less interference with human dignity and privacy than a supervised extraction of blood from the body.

Third, Section 47 may be further distinguished from the searches at issue in Moore, LaFrance and Waller in that GPS monitoring is not a search broadly directed at the discovery of evidence of criminal activity. Rather, GPS is a monitoring system that effects a search tailored to collect a specific type of data, from a specific and targeted type of offender, and does so in a manner that serves salutary goals that benefit both the offender and society at large. In this regard, Justice Botsford's reasoning under the analogous due process paradigm at issue in Guzman is instructive:

Permissible legislative objectives concerning criminal sentencing include deterrence, isolation and incapacitation, retribution and moral reinforcement, as well as reformation and rehabilitation. The provisions of [Section 47] reasonably can be viewed as serving many, if not all, of these goals. We have noted the danger of recidivism posed by sex offenders. The Legislature permissibly has determined that the risk of being subjected to GPS monitoring might deter future or repeat offenders. The Legislature similarly was free to conclude that enabling police to track the movements of all convicted sex offenders would promote the security and well-being of the general public. Within constitutional limitations, the Legislature may establish harsh punishments for particular offenses in order to discourage reoffense and promote rehabilitation. The present statute, therefore, is obviously an attempt to deter through a nondiscretionary penalty.

***

In promulgating [Section 47 ], the Legislature saw fit to impose GPS monitoring as a condition for probation even for those sex offenders convicted of noncontact offenses. We cannot say that the Legislature's determination is without rational basis.

Guzman, 469 Mass. at 499-500 (citations and quotations omitted).²⁵

25 Citing Cory, the SJC noted in Guzman that " the sanction of GPS monitoring appears excessive to the extent that it applies without exception to convicted sex offenders sentenced to a probationary term, regardless of any individualized determination of their dangerousness or risk of reoffense." 469 Mass. at 500 (alterations omitted). This Court observes that the foregoing dictum is susceptible to construction as an observation that the Legislature may have been unnecessarily harsh or expansive in imposing the GPS penalty on all convicted sex offenders (without an individualized determination of dangerousness). That is, Justice Botsford's commentary is not necessarily a forecast that Section 47 violates the state or federal constitution. Indeed, the very next sentence appears to belie such a reading of the dictum. " At least for purposes of due process analysis, however, this is a debate that has already been settled on the floor of the Legislature, " Guzman, 469 Mass. at 500 (quotation omitted). If the SJC were intending to make the point that Section 47 appears excessive for constitutional purposes, it would never have stated that this is an issue that has been settled on the floor of the Legislature. The Legislature resolves issues of sentencing policy, and it is the courts that settle questions of constitutionality. For this reason, the Guzman dictum relied upon by the defendant carries less force than initially meets the eye.

The Court thus finds that GPS monitoring pursuant to Section 47 effects a lesser intrusion on a probationer's privacy expectations than the searches that LaFrance, Moore and Waller determined require individualized reasonable suspicion. This intrusion on the already diminished privacy interests of sex offenders serving a term of probation, in turn, is outweighed by the Commonwealth's compelling interest in monitoring the location of convicted sex offenders while on probation. For these reasons, the Court concludes that GPS monitoring pursuant to Section 47 is, under the totality of the circumstances, reasonable, and thus withstands the balancing of relative interests mandated by the Fourth Amendment and article 14.

ii. Special Needs

Although the Court has found that the balance of interests under a totality of circumstances analysis militates toward the conclusion that GPS monitoring under Section 47 is reasonable and thus constitutional, the mandatory GPS monitoring of probation-sentenced sex offenders is independently justified as a special need.

The myriad registration and other statutory requirements imposed on convicted sex offenders reflect the Legislature's determination that sex crimes pose a greater threat to public safety than other categories of crime. Section 47 addresses the Legislature's concern, in part, by mandating closer supervision of sex offenders serving a term of probation than the level of supervision customarily applied to probationers convicted of other types of offenses. See Guzman, 469 Mass. at 499-500. See also Commonwealth v. Boe, 456 Mass. 337, 345 n.13, 924 N.E.2d 239 (2010) (citing Commonwealth v. Jackson, 369 Mass. 904, 919-20, 344 N.E.2d 166 (1976)) (" [I]t is not [the] court's function to question the necessity, expediency, or wisdom of settled legislative judgment").

The role of the Court under Section 47 is to implement the mechanism the Legislature enacted to facilitate the closer supervision of an entire classification of convicted felons. See Jackson, 369 Mass. at 923 (" The establishment of the probation system and the limitations upon its exercise are set forth in the statutes. The bounds imposed by the statute must be observed when the machinery provided by the probation system is invoked") (quotation omitted). This is a context that is manifestly unsuited to an individualized suspicion analysis. Absent a mandatory GPS requirement for all sex offenders, the delay inherent in a probation officer's ability to determine whether a sex offender serving a term of probation has entered an exclusion zone or violated registration requirements, such as by providing inaccurate information or absconding, " would make it more difficult for probation officials to respond quickly to evidence of misconduct" and reduce the deterrent effect that real-time monitoring of the probationer's location would otherwise create. See Griffin, 483 U.S. at 876.

Although the Court is " reluctant to recognize exceptions to the general rule of individualized suspicion where governmental authorities primarily pursue their general crime control ends, " Indianapolis, 531 U.S. at 43, GPS monitoring under Section 47 is not imposed principally as an investigative tool (as it is, for example, in the conventional case of a criminal suspect being monitored by authorities with law enforcement objectives). Rather, GPS monitoring under Section 47 is imposed to facilitate rehabilitation and deterrence, objectives that a requirement of individualized suspicion would surely thwart. See Illinois v. Lidster, 540 U.S. 419, 424-25, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004) (certain police objectives permissible under special needs exception would be defeated by requirement of individualized suspicion). A probation officer plays a unique role in assisting a probationer in his quest to reintegrate into society. GPS location data can provide the officer with important information about a probationer, such as whether he is adhering to curfews, respecting exclusion zones, and maintaining regular employment. The possession of such information better enables the parole officer to advise his or her charge and guide him in the appropriate direction. See Morrissey, 408 U.S. at 478. The ability to monitor a probationer's location, without specific grounds to believe that he has committed or will imminently commit a violation of law, represents both a powerful deterrent to probation violations going forward and an invaluable asset to a probation officer's efforts to assist in the sex offender's rehabilitation.

Further to the above, the relationship between releasing a sex offender on probation and the safety of children and other vulnerable individuals " is obvious and direct." See Rodriguez, 430 Mass. at 583. Monitoring a sex offender-probationer's location in real time mitigates threats posed to the safety of children and other at-risk citizens by immediately notifying authorities when an offender enters a location pre-determined to place them at an increased risk of re-offense. This function is of vital importance to the State's interest in protecting the community during a probationer's service of his sentence, and in this regard differs dramatically from the use of GPS devices to gather information about suspected criminal activity.

To be sure, while the government's episodic (and infrequent) monitoring of a probationer's location data may be substantially less burdensome to privacy than what is occurring when the police monitor a criminal suspect through a GPS device, the physical intrusion of requiring a probationer to wear the device on his person (rather than unknowingly on his automobile, as in United States v. Jones, 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911, for example) is obviously greater. That fact acknowledged, however, the defeasance of a probationer's reasonable expectations of privacy caused by GPS is a good deal less. This is at once because a probationer has such a low expectation of privacy to begin with; because the government is not doing anything unannounced to interfere with such expectation as does exist (i.e., monitoring him in secret, showing up to search his house without reason, etc.); and because the government is merely collecting information that is being stored on a remote server and which goes unexamined unless the government has been alerted to the possibility that the probationer might have violated the terms of his probation or otherwise been involved in a particular crime. See Johnson, 91 Mass.App.Ct. 296, 304 & n.10 (distinguishing between privacy interests implicated by wearing GPS device for " express purpose of tracking his location" and government's surreptitious use of GPS to investigate criminal activity).

Taking into account the diminished expectation of privacy that attaches to the location data of a sex offender serving a term of probation, and the special need of law enforcement to supervise closely convicted sex offenders who are on probation, the Court concludes that the mandatory GPS bracelet-wearing feature of G.L.c. 265, § 47, even as imposed on non-contact offenders such as Feliz, does not violate the Fourth Amendment to the U.S. Constitution or article 14 of the Massachusetts Declaration of Rights. The defendant's facial challenge to the constitutionality of Section 47, therefore, is DENIED .

IV. AS-APPLIED CHALLENGE

The defendant alternatively challenges Section 47 as it applies to him as an individual, arguing that GPS monitoring, in his particular circumstances, is unreasonable. The argument is three-fold. First, Feliz maintains that GPS monitoring visits exceedingly serious invasions into his privacy. Second, Feliz reprises his contention that non-contact offenses, like the offenses related to internet child pornography of which he stands convicted, do not demonstrate that he is likely to commit a future offense that could be detected by GPS monitoring. Third, Feliz insists that his lack of criminal history, consistent employment, and large network of responsible family and friends provide reasonable grounds to believe that GPS tracking will not uncover any evidence of wrongdoing. Placing these relative interests into balance, Feliz argues that his interests in privacy outweigh the government's interests in GPS monitoring.²⁶

26 The same standard of review applies to the defendant's facial and as-applied challenges to Section 47, see Section II, supra, and the Court will not rehearse that legal standard here.

2. Intrusion Into Privacy

With respect to the intrusion into Feliz's privacy (both physically and through the collection of location data), the record demonstrates that such intrusion by GPS is--viewed in proper context--a modest one. As a threshold matter, and for the reasons discussed ante at Section IV, Feliz has a highly diminished expectation of privacy in his body and location information. As for Feliz's personal experience with GPS, and what he maintains are the onerous burdens that wearing an electronic bracelet has visited upon his life, the Court finds that the device and its occasional malfunctions have intruded on the defendant's privacy in only limited ways. For the period that Feliz has been subjected to GPS monitoring as a condition of post-release probation, his device has generated only 13 alerts, and the average amount of time to resolve such alerts was just 22 minutes. Feliz makes much of the fact that two arrest warrants were issued as a result of these alerts; but the Probation Department resolved the issues that precipitated those warrants in just a couple of hours, and law enforcement never actually arrested Feliz as a result of them. Furthermore, the defendant's claim that he was inconvenienced by having to shower with his ankle away from the water and by repeatedly having to go outside to assist the GPS device in regaining signal connection has been largely debunked by ELMO records and by P.O. Phillips' credited testimony. Likewise, the record discloses that the Probation Department is able to relax the requirement of GPS bracelet-wearing when circumstances so warrant, such as when Feliz needed to remove the device in order to undergo an MRI procedure. Thus, although wearing a GPS bracelet on one's ankle at all times surely visits some degree of intrusion into a probationer's life, the record in this case demonstrates that Feliz himself has personally experienced only minor impacts on an already diminished expectation of privacy.

B. Legitimate Government Interests

The same governmental interests described supra ( see Section III(B)) apply to Feliz's as-applied challenge to Section 47. And these interests are substantial. With respect to the social science literature addressing the correlation between non-contact sex offenders and the risk of committing future sex offenses detectable by GPS, the defendant's own expert (Dr. Plaud) testified that there are many offenses that GPS monitoring can detect even when tracking a non-contact offender.²⁷ As discussed ante, GPS monitoring could locate a probationer in the area where a suspected contact or non-contact offense occurred. Furthermore, both Dr. Plaud and Dr. Belle testified that even internet sex offenders have a greater potential to commit future sex offenses, including contact offenses, than the general public, a legitimate legislative concern sufficient to justify GPS tracking of individuals like the defendant.

27 Feliz relies on three cases that have little relevance to the issue before the Court to support his argument that non-contact offenders are not likely to re-offend in a physical manner that GPS could detect. First, Feliz points to non-binding decisions by two federal courts that address the sentencing of non-contact offenders. See United States v. Apodaca, 641 F.3d 1077, 1083 (9th Circuit 2011); United States v. Garthus, 652 F.3d 715, 720 (7th Circuit 2011). Feliz also cites to Commonwealth v. Suave, 460 Mass. 582, 588, 953 N.E.2d 178 (2011), wherein the SJC reversed a sexually dangerous person determination " [w]here the judge found no evidence that the defendant had ever stalked, lured, approached, confined, or touched a victim, . . . and that there was no reason to believe that the defendant's future sexual offenses would escalate into contact offenses . . ." Id. " As discussed supra, a sexually dangerous person determination, however, differs substantially from the reasonableness inquiry under article 14 both in terms of the legal standard applied and the burden of proof borne. See G.L.c. 123A, § 1; Suave, 460 Mass. at 585 n.3 (" The Commonwealth's burden of proof is proof beyond a reasonable doubt"). Compare Catanzaro, 441 Mass. at 56 (" There is no ready test for reasonableness [under article 14] except by balancing the need to search or seize against the invasion that the search or seizure entails"). The decisions cited by the defendant thus shed only scant light on the case at bar.

C. Balance of Interests

The governmental interests enumerated above substantially outweigh the modest inconveniences faced by Feliz in light of his already reduced expectation of privacy in his body and location data. Regarding Feliz's background and circumstances, the defendant again characterizes the potential for uncovering wrongdoing (and the government's interest in the same) too narrowly. There is no question but that Feliz has made extraordinary progress in his rehabilitation, as evidenced by his friends and family's recommendations and his consistent compliance with the requirements imposed by the Probation Department. However, these acknowledged advances do not compel the conclusion that there is no reasonable grounds to believe that GPS monitoring will either discourage or uncover evidence of future sex offenses by Feliz.

As Dr. Plaud and Dr. Belle's testimony reflect, persons who possess and disseminate child pornography display a deviant sexual interest in children. It logically follows (according to both experts) that people in Feliz's circumstances are substantially more likely to commit contact offenses against children than the general population. GPS tracking represents a bulwark against this heightened risk. In addition, rehabilitation (the continuing reminder of his past wrongdoing and the consequences that can flow from it), deterrence from committing future criminal offenses in general, and enforcement of other location-related terms and conditions of probation (updating residential and work addresses, maintaining employment, and adherence to curfews and attendance at programs) also justify the GPS monitoring of Feliz. There are, therefore, many legitimate government interests served by GPS monitoring the defendant that do not relate to his criminal background or personal circumstances.²⁸

28 The " special needs" analysis set forth supra applies with equal force to Feliz's facial challenge to Section 47.

Accordingly, the Court concludes that Section 47, as applied specifically to the defendant, does not offend either article 14 or the Fourth Amendment. The mandatory requirement of GPS monitoring of this probationer is constitutionally permissible, and the defendant's as-applied challenge to this feature of Section 47 is DENIED .

ORDER

For all the foregoing reasons, the defendant's Motion in Opposition to GPS Monitoring as a Condition of Probation shall be, and hereby is, DENIED .

SO ORDERED.

The GPS system consists of three segments operated and maintained by the United States Air Force . . . The space segment is comprised of twenty-four satellites which transmit one-way signals giving the current GPS location and time. The control segment consists of monitor and control stations that command, adjust, track, maintain, and update the satellites. Finally, the user segment includes the GPS receiver equipment that utilizes the transmitted information to calculate a user's position and time."

Id. (citations omitted).