-: SJC-13600.
Commonwealth v Anthony N. Govan.
-: Attorney Brooks, whenever you're ready.
Take your time.
-: Good morning, your honors.
Benjamin Brooks on behalf of Anthony Govan.
May it please the court.
This case can be decided on either of two grounds.
First, because imposing GPS upon Mr. Govan
did not advance a government interest in a manner
that outweighed the substantial privacy invasion
that it caused.
It was excessive
and improperly administered in the first place.
And second, an answer to the question
that was left unanswered in Commonwealth versus Norman,
because police accessed his historical GPS location data
for purposes that were entirely unrelated
to the reasons for which the GPS was imposed
in the first place.
That violated Mr. Govan's reasonable expectations of privacy
and his rights under Article 14 in the Fourth Amendment,
and at the very least, required a warrant.
I just wanted to point out at the start
that it's shot spotter technology
that originally reports this shooting.
Detectives respond,
they collect automatically recorded video footage
from various businesses in the area and traffic cameras.
And then several days later,
the detectives conduct this broad based dragnet inquiry
asking the probation department for the name
of every individual who was subjected to GPS monitoring
or electronic court ordered monitoring
who was in the area at the time,
even though there was no indication at that time
that anybody who had been involved-
Justice Gaziano: Well, it's clear
there's no probable cause
and it's also clear it's a dragnet.
Benjamin: I'm sorry.
-: It's clear there's no probable cause to get a warrant.
Benjamin: Right.
-: And it's clear it's a dragnet.
Benjamin: Right.
-: So let me ask you about consent.
-: Okay.
-: So if we find that there was consent to impose the GPS
and then there's also a consent
to have their tracking data out
accessible by law enforcement.
Do you lose if we find consent?
-: Well, if you find that...
Well, first of all, yeah, to answer the question directly,
if you find consent, I think that consent was limited
to what would-
Justice Gaziano: Why?
-: Because in this instance, the consent would have
to be limited to what would have been related
to the proper scope of the search, right?
So it's one thing for somebody to consent to wear GPS
when they know, so that the purposes of wearing the GPS
is to enforce a stay away order
or to enforce an exclusion zone
and that their location data in those areas
would be infringed upon if there was an alleged violation.
-: But what would a person objectively believe
if they consent to have a ankle bracelet put on them
that they are consenting
to the government being able to track them?
-: I think they know that the government's being able
to track them, but I think it's reasonable for them
to assume that the only time that the government
is gonna access that information
is if it relates to the purposes
for which the GPS device was administered
in the first place.
Justice Gaziano: Because the scope of consent
is really the issue for me at least.
Benjamin: Right.
-: If your client had been connected to the GPS device
by probation at 10:30 in the morning,
and then they're walking by, they leave the courthouse,
they're walking by a bank at 12 o'clock at noon,
and they decide to rob the bank
with the recently applied ankle bracelet on GPS device,
are you saying that they have a reasonable expectation
of privacy that when they walk into the bank
just a few hours later that they're not gonna be tracked
by the police?
-: I think they do, yes.
And I think the reason is because consent has to be limited
to what would otherwise be justified
by a proper imposition of the search.
Justice Gaziano: Do you have any cases on consent
and the scope of consent in GPS?
-: Well, I think that-
-: The usual consent rules, which I don't think help you but.
Benjamin: Right.
-: Give me if there are any cases that help him.
-: I think the best articulation
is in Justice Wall Hogan's dissent
in Commonwealth versus Johnson,
where it essentially says, look,
just because somebody is placed on GPS monitoring
or just because somebody consents to that GPS monitoring,
that doesn't mean that they're consenting
that this whole universe of information
that GPS data is gonna collect.
It means that they're consenting only to police review
or probation's review, honestly, of just those areas
where it's specifically needed to enforce the conditions
that would justify it in the first place.
-: [Associate Justice] Do you think perhaps-
Woman: No comment, sorry.
Justice Gaziano: Any other cases other than that dissent?
-: Well then I think there are the cases
that we put in the opening brief that talk about consent
has to be unambiguous,
both in terms of its actual giving consent
and then it has to be unambiguous with respect to the scope.
And here, all you have is this statement GPS monitoring
on release.
-: Did you work outside of Massachusetts?
'Cause I have the same question, Justice Gaziano.
Has anyone...
I mean, it's an interesting question,
but has anyone other state written on this issue
about consent and GPS and how far it goes?
'cause you make a very interesting argument,
and it may be correct, but it would be useful to know
if some court has adopted it.
-: I didn't do that and I would be happy to look
and submit a letter to the court afterward
if I found anything useful.
But I do think that it is a very different thing
for somebody to say, okay, I'm gonna wear a GPS device.
And I understand that the reason for this
is because the government wants
to enforce a stay away order.
So I will understand that in this, you know,
I think a good way to think about it-
Justice Gaziano: If it was a condition
of probation not to commit further crime.
-: It is.
But I think from what we know from Norman
is that when it's pre-trial release
that we're talking about,
GPS can only be imposed for very specific purposes,
and general deterrence is not one of those purposes.
It has to be-
-: But the imposition is for kind of familiar with Norman,
the imposition of of GPS is one thing,
but then we have a consensual application of a GPS device,
and we'll probably talk about
whether it was actually truly consensual
given the Hobson's choice that the defendant had,
but it was counseled at least unlike the other cases.
So if it was consensual
and the record doesn't reveal whether it was a call query
or anything about the scope of that consent,
I'm just wondering if the average person,
and that's really the test,
is the objectively average person,
they know they have an ankle bracelet on,
what are they gonna think as far as scope of consent?
Just the same as when the police come up to you
and say, yeah, you can search my car.
What does that mean?
-: Well then, that is the case
that's cited in the opening brief
when the police said, you can search my car.
That didn't include looking-
Justice Gaziano: Like the air filter, right? Yeah.
-: And I think that it is the average reasonable person,
especially when they're faced
with those coercive circumstances
and they're agreeing to this, you know.
-: And I'm not saying we're gonna get to consent,
but like, we will get to it,
but whether or not it'll go you in your favor
because you have the course of circumstances.
But I'm just wondering if we get past that,
whether you have a basis to say
that the information that was given to the police
was not out there, essentially.
Benjamin: I'm sorry, I didn't understand
-: Whether the information given to the police,
whether the defendant consented to have his tracking data.
Benjamin: Right.
-: Revealed to the police by going on the GPS.
-: Yeah.
I mean, our position is that with respect
to the expectation of privacy, you know,
that has to be even with consent, right?
And under Norman, consent really shouldn't come in
to the constitutional analysis here.
It should be separated
because the circumstances were so coercive.
But it should be at least as broad
as his right against an improper search.
And, you know, a pre-trial probationary
maintains robust expectations of privacy.
And that expectation of privacy-
-: [Associate Justice] From which perspective
do we measure the scope of consent?
-: I think it's on...
Well, I think that what the case says
is it should be determined
by what's specifically stated in the exchange
where the consent is given.
And here all we have is GPS monitoring no real.
Justice Gaziano: Measured against an average person.
-: Measured against the average person
or the average defendant in this situation.
And I think for somebody who is saying, okay,
I'll agree to GPS monitoring as a manner
of enforcing a stay away order, then their expectations
of privacy should be diminished only to the extent
that a later review of their historical GPS tracking data
would be necessary in order to enforce that.
-: Where do you get that the consent
was to have a GPS device only to enforce a stay away?
-: Well, that's just under Norman.
It's the only available reason
that the Commonwealth had to impose the GPS.
Justice Dewar: Well, and the judge specifically said that
on the record, right?
She said, I need a stay away.
-: She said, usually, I need a stay away.
Justice Dewar: Oh, sorry, an exclusion zone.
She said, I need an exclusion zone.
-: Usually, I need an exclusion zone.
Right.
And so I think a good way to think about it
is when a defendant is placed on pre-trial monitoring
for something, and then they say, okay,
my reasonable expectations of privacy don't exist
within this zone where I'm not allowed to go, right?
Or they don't exist around this victim
who has a stay away order from me.
But for this broad universe of other information,
which includes literally everywhere he goes,
you might even be able
to track which side of the house he's staying.
He should maintain a reasonable expectation of privacy
in that information.
And when the police go back and get that,
no matter how small a sliver of information that is,
that violates his reasonable expectations of privacy.
-: Can we talk about consent some more?
So this case is extremely different from Norman
in terms of what we have about the circumstances
surrounding the consent.
So in Norman, as I recall,
the Commonwealth was just arguing
on the basis of his signature on a form.
But here, you know, their Commonwealth had moved
for a dangerousness hearing
and then clearly an agreement was worked out,
whereby the Commonwealth agreed to not go forward
with the dangerousness hearing
and the defendant agreed to this whole host of conditions,
one of which the judge spoke up and said,
hold on a second, I think I need an exclusion zone
to be able to do this.
So can you tell us, give us your best argument for why,
even though this was a counseled agreement
with the prosecution,
whereby the prosecution gave up going forward
the hearing on dangerousness,
that this was not adequate consent?
-: Yeah, I mean, I think there's three reasons.
And the coercive quality of that agreement,
I think, still exists regardless of whether it's presented
to the judge as an agreement
or whether the judge is imposing it
during the course of the proceedings.
And, you know, what Norman says is the coercive quality
of the circumstances in which a defendant seeks
to avoid incarceration by obtaining probation
on certain conditions makes principles of voluntary waiver
and consent generally in applicable.
I think this is an example of that.
And Norman, we didn't really know what happened
during the proceedings.
Justice Gaziano: Would you think you would have
to have a colloquy then?
-: I do think that at the very least,
you have to have a colloquy.
-: In order to get beyond that language in Norman
and the course of circumstances.
-: And also to adequately determine what the scope
of the potential search is gonna be, right?
And what the scope of the potential consent is.
Without a colloquy, you don't have any of that.
-: So in and of itself, I'm sorry, you should continue
to suggest to this question.
-: Well, and then I think the other important case.
I mean, what we learned from Norman
from Commonwealth versus La France
from Commonwealth versus Moore is that any time a defendant
is faced with a situation where they're asked
on the one hand to give up what they're right against what
without their consent would otherwise be an unlawful search.
On the one hand, for a promise from freedom incarceration,
from incarceration, on the other hand.
That is a coercive circumstance.
-: And how do you fit into this analysis in your mind,
the sort of the presumption
that someone should be let out on personal recognizance
unless there's adequate basis under our statutes not to.
Do you think that if you are out with a GPS on you,
are you out on personal recognizance?
-: You're still entitled to the presumption of innocence
and you're entitled to a presumption
of personal recognizance, but there is a condition.
I mean, I'm not sure how to answer that.
-: Well, I mean, it was a friendly question
or intended to be.
I mean, this is very different situation from probation.
-: Right. Right.
Because someone is presumed innocent.
And so it seems like here, in order to not go forward
with the 58A hearing, Mr. Govan agreed to a GPS.
Benjamin: Right.
-: And, you know, I'm asking when we think about consent,
does the presumption of personal recognizance
and the presumption of innocence,
how does that fit into the consent analysis?
And when we're trying to distinguish this from probation,
I recognize that it's different from probation,
but I'm asking does the sort
of greater liberty interest there,
how does it exactly relate to the consent analysis?
-: Well, I think the fact that he's entitled
to a presumption of innocence entitled to a presumption
of personal recognizance, all of that means
that if he's giving up that, right,
he's giving up more, right?
So that the court should be more protective
of limiting the scope of the consent
that he gives in those circumstances.
-: I have one other question.
So what do we do?
It's the sort of the elephant,
which is the police are taking GPS
for all pre-trial release.
Anyone on a GPS,
they're running these searches both probationers
and pre-trial.
How does that help you?
How do we figure that into our analysis
that they're going out there and doing these dragnets?
I'm just trying to figure out how that plays into this
and how we analyze it.
-: Well, I think that's another reason that the court needs
to be protective of pre-trial probationers expectation
and privacy and their presumption of innocence.
And, you know, what I started to say at the beginning here
is that, you know, this is a situation
where, you know, the report, the investigation,
the identification all takes place
with these automatically generated
electronic surveillance mechanisms.
And then, you know, it's almost a situation
where they could make this identification.
-: But there's the nexus issue.
So they are doing a search on a shooting,
a location of a shooting.
They're not doing...
I know you described this as everywhere he goes,
his bath, they're not really doing that.
They're looking at this one spot and a public spot,
by the way, it's not his bathroom,
it's where they're shooting in public.
So I'm just trying to understand how that plays out
in all of this.
-: Right.
Well, I mean the only reason that they have access
to that information about him
is because he was compelled to wear a GPS device, right?
And I think that to get back to some of the, you know,
what are the cases that are helpful here
that amicus brief cited to Commonwealth versus Pachella
and Commonwealth versus Yusef.
And in both of those situations, the court found
that when the government sort of compels the disclosure
of certain information for one purpose,
it can't just go back and use that information
for some second purpose
without at least requiring a warrant.
-: I think Justice Kafka's question gets
to the one hour reasonable expectation of privacy
in one location and not a private location.
If you could address that.
I know that either your brief for the amicus brief
like Esterbrook in registration versus CSOI,
is that the point?
Benjamin: Say that last part again.
-: Registration data versus CSOI.
Benjamin: Right. Right.
-: Is that the point?
-: And this is the registration data equivalent, right.
In Esterbrook, the court says
that six hour window that we recognized
doesn't apply to that type of information.
And I think it's Commonwealth versus Almanor
that's more specific there 'cause that was a case where-
-: Well, but it's Johnson too.
Johnson's a probationer, not a pre-trial,
but we make the point that, you know, you don't have,
in that case, he was a burglar and he's continues to burgle
while he's on probation.
But we make the point
that you don't have this one data point
where basically where are the breaking and entering
has to be analyzed, that has to be taken into account.
You don't have an expectation of privacy necessarily,
particularly in that context.
Whether you do in this context, I don't know.
And that's what I'm struggling with.
-: Right.
Well, I think you do, because Johnson, you know,
his GPS was put on him specifically
because he'd already violated probation once
for a B&E, right?
And then they were going back
and they were looking at that.
So he knew, right, that he was under GPS monitoring,
specifically, for future deterrent purposes, right?
This is very different, right.
-: So Johnson's consent, this case not consent.
-: Right, Johnson is consent
and he's a post-conviction probationer,
who does not have the same expectations of privacy
as a pre-trial probationer.
-: And one of the reasons for the GPS in Johnson
was to deter future crime.
Benjamin: Correct.
-: Which is exactly
within the nexus what the police was looking for.
-: Right.
And in this case, you don't have that.
And in fact, what Norman says is you can't impose GPS
just for deterrent purposes.
And the only reason that police would have access to this
is because essentially,
the GPS device collects more information than it needs to
in order to enforce the specific purposes
for which it's introduced.
And so I think when the police come back and look at that,
you have to pare it down to what was just necessary
for the enforcement of the stay away order
that justified the GPS in the first place.
And everything else should be awarded
with an expectation of privacy.
Woman: Okay. Thank you.
-: Thank you.
-: Attorney Slyman.
-: Good morning.
And may I please the court.
ADA Mackenzie Slyman and on behalf of the Commonwealth,
with me at council table is ADA Tiffany Albanese
who was the prosecutor on this case.
I'll start my argument with the consent question.
And again, first acknowledging that we are looking at two,
essentially two phases here is the imposition and subsequent
and incidental collection of data
versus the accessing of the data itself.
Here, the defendant clearly consented
to being put on the GPS monitor.
I would also acknowledge that voluntariness-
-: How could you say that he clearly consented
in light of the course
of inherently coercive circumstances
in which he found himself?
I think he had just spent three days in jail.
Was that right?
-: He had been in custody on the 58A hearing.
The record doesn't indicate whether that was-
-: And the Commonwealth came forward and represented.
You know what?
We're not gonna do the 58A
because there is a condition of pre-trial, which is the GPS.
And so we've come to a settlement.
-: Yes.
And I think that that last part is very important here.
It's not that the Commonwealth presented to the court.
You know, we've, on our own, without speaking
with the defendant, decided
that we're no longer gonna go forward with the 58A hearing.
This was clearly represented to have been a result
of negotiation and bargaining between the two parties.
-: [Justice Wendlandt] What was the bargaining power
of the defendant?
-: The defendant by consenting
to be put on the GPS no longer runs the risk,
but not guarantee in any regard
that he could have been held under pre-trial detention.
-: So you can either continue to be held
or you wear this GPS and you think that was voluntary?
-: I disagree that it was a binary question to that nature
because we still would've had
to make all the requisite showings at 50A hearing
that there was clear and convincing evidence
that the defendant was too dangerous to the community
or to the named witnesses, in this case,
to be released on any,
and that there were not any reasonable conditions of release
that would've been adequate.
We still had that a significant showing the Commonwealth
would've had to make before the judge
in order to have him held prior to to trial.
So it's not a guarantee of being held,
which is what the defendant was facing,
I think, in Johnson one and in Norman, where at that point,
separate from his consent to, you know, any bartering
that had happened before the court placed that order.
Once the court ordered GPS as a condition of release,
he had to sign that form.
And if he didn't, it was guaranteed
that he would be held prior to trial for failure
to acknowledge and agree to follow that to.
-: So assuming you've made a case for consent,
what is the scope?
-: Sure.
So I think the scope at minimum is,
and again, focusing first on the question
of the imposition and the collection of data,
because I don't think the Commonwealth here needs
to be successful in an argument of consent
for the accessing of the data.
So turning first to the imposition and the collection,
I'd say, at the very minimum here,
the defendant's consent to wear the monitor
and have his data collected,
would extend through the time that he's wearing the monitor
as a condition of pre-trial release.
-: What is there in the record to indicate
that he consented to the GPS for all purposes,
including criminal investigatory purposes unrelated
to the offense that brought him before the court?
-: So there aren't details to that degree in the record.
It's just expressed as an agreement between the parties.
-: So for what purpose was the judge authorized
to impose GPS as a condition of pre-trial release?
It doesn't, in my view, matter so much
what the parties agreed to.
The parties I don't believe can agree to things
that the judge cannot lawfully do.
So would you agree with that general proposition?
You couldn't say we have an agreement
that the defendant should be executed.
So judge, would you please do that?
Mackenzie: Sure. Yes, your honor.
-: Okay.
So assuming that's true, for what purpose
could the judge lawfully impose GPS monitoring
in a pre-trial context under section 58?
-: Yeah, so these are the three bases that are set out
in Norman that it's either going
to ensure the defendants return to court
to preserve the integrity of the judicial process
or in cases of domestic abuse
in order to ensure the safety of the alleged victim
in any other individual or community.
-: Right, so let's assume that the judge did that here,
but nothing further, right?
The judge could not impose GPS as just a general tool
that might be convenient for law enforcement in the future.
Correct?
-: I would agree that I think Norman has made it clear
that the parameters that we have in order to testify.
-: Right, so how could, as a matter of law,
the defendant's consent extend beyond the judge's authority?
-: I think that because it's an incidental
to the main purpose,
and then that this is where we transition now
to the question of a reasonable expectation of privacy.
So I think, and I'll back up-
-: Before you transition,
so do you have a case to support your thought?
-: I would point to Johnson.
Johnson 2 as we refer to in our brief,
the Commonwealth case there.
-: [Justice Wolohojian] That's the probation case.
-: Sure.
I would also point to to to Johnson 1,
which I know, your honor, issued a dissent on.
And I recognize that that predates Norman.
-: So any case other than that
that shows that a defendant that is upheld,
that is found valid, a defendant's consent
to something the judge could not do
as a condition of pre-trial release?
-: No, I don't think...
Not not to that specificity, your honor,
but I think I would push back a little bit
as to that the judge, so long as it's been imposed
for an appropriate reason,
which I think here at minimum the last two
of the Norman fact, Norman basis have been met.
That the further use of it beyond that
does not disqualify the extent to which the data can be used
or accessed here.
And as I said, I acknowledge that there hasn't been...
I don't think the court yet has reached this question
to this degree specificity.
-: Did you look beyond the state too?
'Cause it seems
like we're addressing some certainly novel questions.
Have you done a 50 state
or looked outside of Massachusetts on this?
-: I'm happy to look further.
It's been a minute since we've briefed,
so I can't recall the full extent of my searching.
I didn't find anything within Massachusetts
that goes to this degree.
I will say I did.
And I don't know
that this was put in the Commonwealth's brief,
but there was a First Circuit case,
I think, Commonwealth versus Hunt or State versus Hunt
that I'm happy to provide the site for to the court,
which deals with the...
It's coming out of Suffolk Superior,
but in the federal court, United States versus Hunt,
which is incredibly factually similar to where we are today.
And that's (faintly speaking).
-: United States versus Hunt is a a DMAs case
or what case is that?
-: It's out of the first circuit and it actually...
Can I have just one moment?
-: It involves this issue of, okay, we put this on
for basically an abuse order
and then we go trolling for information with that.
'Cause that's the issue, right?
Because it seems like there's multiple parts to it.
Okay.
In this case, and by the way, don't you have a problem
'cause we don't know where the victim lives, right?
So this GPS doesn't do anything, right?
-: I would disagree because of the additional condition
of a stay away from the victim in general.
This isn't just stay away from her address.
-: But if we don't know where she lives, how is this useful?
How does this work?
'Cause didn't we deal with that Norman?
I defer to Justice Gaziano.
But didn't we say that-
Justice Gaziano: General deterrence, you couldn't do it.
Woman: Broad.
-: Yeah.
I mean, you said this kinda blindly
about a minute and a half ago that the reasons
for the initial imposition in the BMC case met
the Norman requirements.
And I'm I'm struggling to see how,
because you have a victim who even the judge makes note
on the record that I can't do an exclusion zone.
We can't do a stay away.
The record indicates
that the victim in the case didn't want her address known.
The DA at the time of the hearing says to the judge,
we haven't had any contact.
So how would this be a proper imposition
in the first place?
What is it excluding and who is it protecting
if we don't know where the person is?
-: Sure.
And if I can step back for one second,
I don't believe in this case
that this is different than I think Roderick,
which, your honor, might be thinking
of where they hadn't had any contact
with the victim at the time.
Here, we had spoken to her.
She had stated she had not had contact with this defendant
for a period of time and had moved.
But I think here, this defendant,
this is where I think the consent comes back
into being crucial here, is that had Roderick,
I believe was discussed at the BMC level.
But this defendant consented
to being put on this monitor without an exclusion zone.
Had he not consented to that, then the Commonwealth
and the court would've faced that question of.
And I think that-
-: [Associate Justice] Sorry, sorry, hold on.
Can I stop you there?
-: I'm sorry.
But that again goes one step too far
because this is back to Justice Wolohojian's point.
The defendant can consent to whatever he wants.
The parties can go out and say,
we'll consent to whatever we want
with respect to obviating going forward the 58A,
but that still doesn't mean
that short circuits the judge's independent requirement
to make sure that there's a lawful basis to impose the GPS.
And so if you've got the Commonwealth coming saying,
we're gonna obviate a 58A and he can consents to a to a GPS,
the judge still has to say for what?
And then say there's a lawful basis for me to impose it.
Mackenzie: Yes, your honor.
-: So if there's no exclusion zone,
we don't know where the victim is,
what's the lawful basis upon which the judge
can impose the GPS?
-: So I would say to that,
that an exclusion zone would keep us out of a known area.
Obviously, typically,
it's gonna be the victim's home address.
But in situations, especially when you look at this case,
it's an assault and battery with a family household member
and intimidation charges, that stay away order goes
beyond just where this person lives.
It's going to be their place of work or any other place
where they might interact with each other.
And so the GPS ensures
that should the defendant find out where she is,
find out where she works, find out she's gonna be
at a cookout at her family's house this weekend,
that he knows that he's being monitored
and that if she reports, yep, he came to the house,
he bothered us.
-: But that may not give the government the right
to monitor him everywhere, right?
That's the whole problem with GPS.
The fact that he can be monitored in some places
and that the person he's supposed to be stay away from
may be in different places.
I don't quite understand the logical Lincoln saying,
therefore the defendant can be monitored everywhere,
anywhere and everywhere.
-: Yes, your honor.
But I think that breadth of monitoring is required
where the-
-: [Justice Wolohojian] It's to protect the victim.
-: Correct.
-: The victim is going to be somewhere.
Justice Gaziano: How does probation know
there's a violation?
-: Sure.
So I think I acknowledge that, your honor,
that where we have an ex exclusion zone, you know,
GPS is gonna ping probation
and what logically falls from there.
-: Right.
And to stay away from the victim.
How's this work?
-: I think it goes to...
And this is the same as with Norman,
excuse me, acknowledges that GPS is permissible
to ensure someone returns to court.
The probation department's not gonna know their location
until this triggering event takes place.
Justice Gaziano: But probation's gonna know
whether or not they show up at court.
-: Right.
It would be dependent on the victim
or anyone else who's subject, you know,
another witness coming forward to say,
hey, the defendant has violated this condition of release
and has approached me.
Justice Dewar: So is the purpose deterrence then?
Is it deterrence or post facto evidence gathering?
-: I think they go together.
-: I think we're a little hampered here
because to be clear, the Commonwealth
did not brief an argument that the imposition of GPS
on Mr. Govan served a governmental purpose here, correct?
You only briefed the consent issue.
-: Our focus was on the consent issue, yes.
But although I will acknowledge
that the motion judge did find both
that there was valid consent here
and also that the government's interest in ensuring
that this defendant stay away from these two witnesses
outweighed the intrusion.
-: Can we go back to a second ago?
Because you said that he consented to GPS without limitation
to enforcement of an exclusion zone.
But the judge, it's a little unclear in the transcript,
'cause the judge says, oh, you've got this agreement,
but counsel, I need an exclusion zone.
And then the ADA says, well, you know,
we don't have the victim's address,
she doesn't want her address known.
And then defense counsel says something like,
well, we would consent to, you know, an impoundment
of the address.
And then the judge says, okay.
So the way that I understand that
is that everyone thought that there was potentially going
to be an exclusion zone created with an impounded address.
Is that not?
-: I would disagree with that classification
of how it took place.
I do that the judge asked,
is there an exclusion zone we're going to set here?
The Commonwealth stated
that they did not received an address from the victim,
but that if in the occasion that we did,
not suggesting that we're going
to now take affirmative step.
But if we did become aware of her address,
we would submit to the court and seek that to be impounded
to which the defense attorney replied,
we have no objection to that.
And I would point the court as well to later
in the transcript in that afternoon session
once the defendant was brought to court,
where the court expressly tells him
to stay away from the address.
Should he learn of it?
He says that's fine.
So I don't think that there was this expectation
that the Commonwealth would be taking affirmative steps
to get an exclusion zone to get an address from the victim
to then report and impound to that degree.
I think, if we do come across this information,
this is how we would like to deal with it once it's here.
-: How does the lack of an exclusion zone...
Sorry, how does the lack of an exclusion zone
affect the reasonable expectations
of the pre-trial detainee?
Mackenzie: Sure.
-: Given that he knew that there was not an exclusion zone
and he also knew that he was to stay away from the victim.
The only way.
Are his expectations
that he was gonna be monitored 24/7
because there's just no way of knowing where the victim was.
-: That's our position, your honor,
is that by virtue of there not being an exclusion zone,
which the defendant was aware of
and at minimum lodged no objection to,
where there is no exclusion zone,
then you have to be monitored at 24/7.
I'll use have to loosely there,
but in order to enforce the condition in that way.
So the defendant knew.
And again, where the stay away no contact is a provision
that beyond a geographical limitation.
It's not just you cannot contact her at her home
or go to her home.
It's you need to stay away from her in all ways.
The defendant had to have known
that he was being tracked at all times.
And just turning briefly, I recognize amount of time,
but just to the question of a reasonable expectation
of privacy, I would just emphasize here
as to the first prong alone
of a subjective expectation of privacy.
The defendant has put nothing forward his motion filings
before the superior court or in support of his brief
of his own expectation of privacy here.
-: I think his argument is I get.
If you're right on consent, you can put that GPS on him
and monitor him everywhere.
But his argument is I have a reasonable expectation
of privacy that you're not gonna use it
except for the domestic relations purpose.
Isn't that his argument that, okay,
I understand I'm being monitored,
but it's not everything in my life I'm being monitored for.
I'm being monitored not to attack my spouse.
-: I had the defendant put that in affidavit
or express that elsewhere,
I would understand that subjective intent.
But here, we don't have that.
And secondarily, where we then turn to the question
of whether that expectation of privacy
would be society would be willing to accept.
I think that's also
where the defendant's argument falls apart.
That is addressed in both Johnson 1,
which was again, a pre-trial case,
and in Johnson 2, which again was probation,
but the same question of essentially a defendant
who knows that he's on GPS monitoring
just does not have a reasonable expectation of privacy
in a targeted investigation
to determine his presence at a crime scene.
And I'll leave it with that the kind of last question
of whether there was a expectation of privacy
that's even implicated here by the breadth of the data
hat was looked at
that the detective first pulled a 20 minute period of time
for discreet specific location on one date.
Once he had that data, he then, of those five individuals,
the defendant is the only one who is paying six times
versus once for the other four,
presumably off of Columbia Road just driving past,
then only requested an hour's worth of data.
This was much, much less.
-: Do you have any cases in Massachusetts
that say tracking data is subject
to the de minimis time restriction?
-: So I wanna make sure I answer that
as accurately as possible.
I would point the court to Augustine, I suppose, with CSLI.
I don't know if that's the best comparison.
-: It's not.
So you have historical CSLI and Augustine.
Even the tower dump case deals with CSLI, historical.
It's not tracking data.
-: Correct.
So again, I guess, I would point back to Johnson 1 and 2.
In one, that was two months total worth of data
that was accessed.
And in Johnson 2, that was the general area
and the location.
But as far as I was aware from the briefing,
it wasn't specific to.
They didn't put in the briefs, in the decision, excuse me,
how much time is requested.
But this was not a situation where there was enough data
to be requested to implicate that concern
of a mosaic being created of this defendant's life.
There's only so far you can move in an hour's worth of time.