COMMONWEALTH v. Julio TORRES
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from the denial of his motion to modify the conditions of his probation. On appeal, he contends that the condition of his probation requiring him to wear a global positioning system (GPS) device constitutes an unreasonable search, pursuant to Commonwealth v. Feliz, 481 Mass. 689 (2019), and thus the motion judge erred in denying his motion. We affirm.
Background. On October 13, 2000, the defendant pleaded guilty to four counts of rape and one count of indecent assault and battery on a person over the age of fourteen. On the first three rape convictions, the defendant received three concurrent sentences of seven years to seven years and one day commitment to State prison. On the fourth rape conviction and the indecent assault and battery conviction, the defendant was sentenced to five years of probation, to run concurrently from and after his prison sentence.2
The defendant was released from prison on July 12, 2006. On November 28, 2006, he stipulated to violating the terms and conditions of his probation by committing a new criminal offense, specifically, for failing to register as a sex offender. On this date, the judge found the defendant in violation but at the request of the probation officer continued the defendant's probation to its original date with the same terms and conditions. On December 13, 2007, the defendant again stipulated to violating his probation by again failing to register as a sex offender. This time, the court having found the defendant in violation, imposed GPS monitoring as an additional condition of the defendant's probation, and again at the request of the defendant's probation officer, continued his probation to its original date.
On April 10, 2008, the supervision of the defendant's probation was allowed to be transferred from the Suffolk County Superior Court to the Worcester County Superior Court. On January 26, 2009, the defendant was charged with assault with intent to rape a child in the Worcester Division of the District Court Department.3 The charge was subsequently reduced to annoying and accosting a person of the opposite sex. Following a jury-waived trial on September 3, 2009, the defendant was convicted of that charge and sentenced to six months in the house of correction. On the same date, the defendant stipulated to violating his probation, and as a result, his probation was revoked for the indecent assault and battery conviction, and he was sentenced to one and one-half to two years in prison. Additionally, on his fourth rape conviction, the defendant was reprobated for five years to be served “on and after” his term of commitment. Again, GPS monitoring remained a condition of the defendant's probation.
In 2012, prior to the defendant's release from prison, he was civilly committed as a sexually dangerous person to the Massachusetts Treatment Center, pursuant to G. L. c. 123A. In January 2017, the defendant was released from civil commitment, and his probation, including the condition of GPS monitoring, commenced at that time.
On June 15, 2018, the defendant filed a motion to modify the terms of his probation, seeking to have the condition of GPS monitoring removed. He argued that the purposes of GPS monitoring had been met, and that removal “best serve[d] the ends of justice.” Following a hearing on August 27, 2018, his motion was denied. On June 26, 2019, the defendant moved again to modify the terms of his probation, arguing that, in light of a recent decision, Feliz, 481 Mass. at 691, the condition of his probation requiring him to wear a GPS device constituted an unreasonable search.
Following a hearing, the motion judge conducted an analysis, pursuant to Feliz, supra, to determine the reasonableness of the imposition of GPS monitoring as it pertained to the defendant. The judge balanced the Commonwealth's interest in requesting the GPS condition against the invasion of the defendant's privacy by its imposition. The judge concluded that “the Commonwealth's particularized reasons for imposing GPS monitoring outweigh the defendant's Article 14 rights,” and determined that the condition was reasonable.4 The judge denied the defendant's motion. This appeal followed.
Discussion. 1. Standard of review. Generally, we review a judge's decision on a motion to modify the conditions of probation for an abuse of discretion. See Commonwealth v. Morales, 70 Mass. App. Ct. 839, 842, 846 (2007). “Just as judges have considerable discretion at sentencing in establishing the terms of probation, they also have the discretion to modify those conditions ‘as a proper regard for the welfare, not only of the defendant but of the community’ may require.” Commonwealth v. Goodwin, 458 Mass. 11, 17 (2010), quoting Buckley v. Quincy Div. of Dist. Court Dep't, 395 Mass. 815, 818 (1985). However, where, as here, the judge's denial of the defendant's motion was based on a constitutional determination -- that the imposition of GPS monitoring was a reasonable search under art. 14 -- we “review independently the motion judge's application of constitutional principles.” Commonwealth v. Moore, 473 Mass. 481, 484 (2016), quoting Commonwealth v. Franklin, 456 Mass. 818, 820 (2010). Compare Commonwealth v. Tucceri, 412 Mass. 401, 409 (1992) (although typically reviewed under discretionary standard, “[i]f a new trial claim is constitutionally based, [appellate] court will exercise its own judgment on the ultimate factual as well as legal conclusions”).
2. Reasonableness of GPS monitoring. In Feliz, the Supreme Judicial Court held that GPS monitoring as a condition of probation constitutes a search under art. 14, and accordingly, an individualized determination of the search's reasonableness is required.5 See Feliz, 481 Mass. at 699-700. In determining whether the imposition of GPS monitoring as a condition of probation is reasonable, “we consider the extent to which GPS monitoring of [the] particular defendant advances the Commonwealth's interests in rehabilitation of the probationer and protection of the public, and the extent of the incremental privacy intrusion occasioned by GPS monitoring on the defendant's diminished, but still extant, expectations of privacy as a probationer.” Id. at 701.
“[R]easonableness depends ‘on the totality of the circumstances.’ ” Id. at 701, quoting Grady v. North Carolina, 575 U.S. 306, 310 (2015). Whether the government's interest in imposing GPS monitoring outweighs the defendant's privacy interests will depend on a “ ‘constellation of factors,’ including, among others, the intrusiveness of the search; the defendant's particular circumstances, such as his or her criminal convictions, past probation violations, or risk of recidivism; and the probationary purposes, if any, for which the monitoring was imposed.” Commonwealth v. Johnson, 481 Mass. 710, 719 (2019), quoting Feliz, 481 Mass. at 701. No single factor is dispositive. Id.
To begin, the government has a “strong interest in protecting the public from sex offenders.” Feliz, 481 Mass. at 705. The defendant was classified by the Sex Offender Registry Board as a level three sex offender, meaning that he was considered to pose the highest risk of reoffending and a concomitant danger to the public. See id. at 707 (discussing cases where GPS monitoring deemed reasonable where individual “assigned to the ‘most severe’ risk assessment tier”). Moreover, the defendant was convicted of four counts of rape and one count of indecent assault and battery, and while on probation for those offenses, the defendant committed several additional offenses. The defendant violated the conditions of his probation three times -- twice for failing to register as a sex offender,6 and the third time, while the defendant was being monitored by a GPS device, he was charged with assault with intent to rape a child: a new contact offense. As stated supra, the charge was reduced, and the defendant was convicted of annoying and accosting a person of the opposite sex. See Johnson, 481 Mass. at 719 (defendant's criminal convictions and past probation violations justified imposition of GPS monitoring).
The defendant however argues that these factors are insufficient to render the imposition of GPS monitoring reasonable because, since the condition first was imposed, he has participated in sex offender treatment, he has not committed any new offenses, and several doctors have opined that, as of 2016, he is no longer a sexually dangerous person.7 He argues that, for these reasons, the Commonwealth's interest in monitoring his location is diminished and can no longer justify the intrusion on his privacy. We are not persuaded. The defendant, at the time of the motion, had spent the bulk of his time confined and only had been released from civil commitment for a period of two years. Moreover, as a probationer, the defendant's expectation of privacy is diminished. See Johnson, 481 Mass. at 720 n.6. As such, weighed against the Commonwealth's interest in protecting the public, as well as its significant interest in “deterring the probationer from engaging in criminal activity and detecting such criminal activity if it occurs,” see id. at 719, the burden on the defendant's privacy effected by the GPS device is not so significant to render the condition unreasonable.8
In light of the defendant's criminal convictions which were all contact offenses, his numerous violations of probation, his risk of reoffending, and the limited period of time that he has been released from civil commitment, the Commonwealth's interest in imposing GPS monitoring on this defendant persists and outweighs the privacy intrusion occasioned by the condition. See Johnson, 481 Mass. at 720. Cf. Feliz, 481 Mass. at 705-706. The denial of the defendant's motion to modify the conditions of his probation is therefore affirmed.
So ordered.
Affirmed
FOOTNOTES
2. As conditions of his probation, the defendant was ordered to stay away from the victim, with no direct or indirect contact, and was also ordered to undergo sex offender treatment.
3. The facts which formed the basis for that charge include that the defendant grabbed the wrist of an eleven year old girl, who was at the defendant's home visiting his stepson, and he attempted to pull her into a bedroom, stating that he wanted to “fuck.” The victim was able to escape the defendant's grasp and go into another room in the home.
4. The Commonwealth's reasons for imposing the condition included protection of the public and deterrence of future offenses as the defendant had a history of sexual violence, had violated his probation on several occasions, and had been classified by the Sex Offender Registry Board as a level three sex offender, a level considered to pose the highest risk of reoffending while in the community.
5. Prior to Feliz, under G. L. c. 265, § 47, any person who was placed on probation for an enumerated sex offense was required to wear a GPS device as a condition of that probation. The defendant was one such person. In Feliz, however, the Supreme Judicial Court concluded that G. L. c. 265, § 47, was “overinclusive in that GPS monitoring [would] not necessarily constitute a reasonable search for all individuals convicted of a qualifying sex offense.” 481 Mass. at 690. It held that, absent individualized determinations of reasonableness, the “[m]andatory, blanket imposition of GPS monitoring on probationers” was unconstitutional. Id. at 700.
6. “The purpose of the sex offender registration statute is to protect the vulnerable members of our communities from sexual offenders, and from the danger of recidivism posed by sex offenders” (citations and quotations omitted). Doe, Sex Offender Registry Bd. No. 7083 v. Sex Offender Registry Bd., 472 Mass. 475, 481 (2015).
7. It is important to note that each doctor, in reaching their conclusion that the defendant was no longer a sexually dangerous person as of 2016, considered that the defendant would be under the supervision of probation for five years following his release from civil commitment. A condition of that probation included GPS monitoring.
8. This is especially true where the defendant has repeatedly violated the less intrusive condition of his probation requiring him to register as a sex offender.