In a recent decision – Commonwealth v. Feliz – the Supreme Judicial Court ruled that the imposition of GPS monitoring as a condition of the defendant’s probation and pursuant to G.L. c. 265, §47 was an unconstitutional search under art. 14 of the Massachusetts Declaration of Rights.
The background was as follows. After the defendant pleaded guilty to possession and distribution of child pornography, he received a sentence that included a term of probation. “In accordance with the terms of G.L. c.265, §47, which requires judges to impose [GPS] monitoring as a condition of probation for individuals convicted of most sex offenses, the sentencing judge imposed [such] monitoring as a condition of the defendant’s probation.” On appeal, “[t]he defendant argue[d] that, as applied to him, the condition of mandatory GPS monitoring, pursuant to G.L. c.265, §47, constitutes an unreasonable search under the Fourth Amendment and art. 14.
In its decision, the SJC stated, “We consider [the defendant’s] argument in light of the United States Supreme Court’s holding that GPS monitoring is a search. See Grady v. North Carolina, 135 S.Ct. 1368, 1370 (2015). We conclude that G.L. c.256, §47, is over inclusive in that [mandatory] GPS monitoring will not necessarily constitute a reasonable search for all individuals convicted of a qualifying sex offense. Article 14 requires an individualized determination of reasonableness in order to conduct more than minimally invasive searches, and GPS monitoring,” which continuously collects and stores a substantial amount of information about a person’s activities, “is not a minimally invasive search.
To comport with art. 14, prior to imposing GPS monitoring on a given defendant, a judge is required to conduct a balancing test that weighs the Commonwealth’s need to impose GPS monitoring against the privacy invasion occasioned by such monitoring…. [I]n the circumstances of this case, the Commonwealth’s particularized reasons for imposing GPS monitoring on this defendant,” including protection of the public and rehabilitation of the defendant, “do not outweigh the privacy invasion that GPS monitoring entails.” Regarding protection of the public, the Court noted that a psychological “expert determined that the defendant was ‘not a significant sexual offense recidivism risk (contact or non-contact sexual offenses),’” and that SORB classified the defendant as a level one sex offender. Moreover, the defendant had “no history of violations of probation or terms of pretrial release,” “and no geographically proximate victim.” In addition, stated the Court, the Commonwealth did not adequately “establish how the condition of GPS monitoring assists in the defendant’s rehabilitation.”
If you or a loved one is facing criminal charges that could result in the imposition of GPS monitoring under G.L. c. 265, §47, or if you have been convicted of a charge that resulted in the imposition of such monitoring, you will need an attorney to help you determine the best course of action in light of this important decision. Attorney Daniel Cappetta is a skilled and experienced attorney who is well versed in the law and up to date on the newest developments. Put his expertise to use and call him for a free consultation today.