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<v ->SJC-13600.</v>

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Commonwealth v Anthony N. Govan.

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<v ->Attorney Brooks, whenever you're ready.</v>

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Take your time.

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<v ->Good morning, your honors.</v>

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Benjamin Brooks on behalf of Anthony Govan.

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May it please the court.

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This case can be decided on either of two grounds.

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First, because imposing GPS upon Mr. Govan

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did not advance a government interest in a manner

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that outweighed the substantial privacy invasion

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that it caused.

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It was excessive

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and improperly administered in the first place.

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And second, an answer to the question

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that was left unanswered in Commonwealth versus Norman,

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because police accessed his historical GPS location data

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for purposes that were entirely unrelated

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to the reasons for which the GPS was imposed

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in the first place.

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That violated Mr. Govan's reasonable expectations of privacy

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and his rights under Article 14 in the Fourth Amendment,

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and at the very least, required a warrant.

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I just wanted to point out at the start

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that it's shot spotter technology

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that originally reports this shooting.

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Detectives respond,

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they collect automatically recorded video footage

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from various businesses in the area and traffic cameras.

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And then several days later,

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the detectives conduct this broad based dragnet inquiry

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asking the probation department for the name

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of every individual who was subjected to GPS monitoring

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or electronic court ordered monitoring

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who was in the area at the time,

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even though there was no indication at that time

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that anybody who had been involved-

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<v Justice Gaziano>Well, it's clear</v>

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there's no probable cause

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and it's also clear it's a dragnet.

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<v Benjamin>I'm sorry.</v>

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<v ->It's clear there's no probable cause to get a warrant.</v>

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<v Benjamin>Right.</v>

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<v ->And it's clear it's a dragnet.</v>

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<v Benjamin>Right.</v>

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<v ->So let me ask you about consent.</v>

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<v ->Okay.</v>

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<v ->So if we find that there was consent to impose the GPS</v>

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and then there's also a consent

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to have their tracking data out

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accessible by law enforcement.

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Do you lose if we find consent?

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<v ->Well, if you find that...</v>

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Well, first of all, yeah, to answer the question directly,

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if you find consent, I think that consent was limited

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to what would-

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<v Justice Gaziano>Why?</v>

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<v ->Because in this instance, the consent would have</v>

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to be limited to what would have been related

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to the proper scope of the search, right?

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So it's one thing for somebody to consent to wear GPS

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when they know, so that the purposes of wearing the GPS

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is to enforce a stay away order

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or to enforce an exclusion zone

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and that their location data in those areas

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would be infringed upon if there was an alleged violation.

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<v ->But what would a person objectively believe</v>

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if they consent to have a ankle bracelet put on them

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that they are consenting

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to the government being able to track them?

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<v ->I think they know that the government's being able</v>

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to track them, but I think it's reasonable for them

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to assume that the only time that the government

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is gonna access that information

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is if it relates to the purposes

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for which the GPS device was administered

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in the first place.

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<v Justice Gaziano>Because the scope of consent</v>

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is really the issue for me at least.

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<v Benjamin>Right.</v>

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<v ->If your client had been connected to the GPS device</v>

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by probation at 10:30 in the morning,

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and then they're walking by, they leave the courthouse,

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they're walking by a bank at 12 o'clock at noon,

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and they decide to rob the bank

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with the recently applied ankle bracelet on GPS device,

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are you saying that they have a reasonable expectation

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of privacy that when they walk into the bank

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just a few hours later that they're not gonna be tracked

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by the police?

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<v ->I think they do, yes.</v>

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And I think the reason is because consent has to be limited

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to what would otherwise be justified

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by a proper imposition of the search.

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<v Justice Gaziano>Do you have any cases on consent</v>

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and the scope of consent in GPS?

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<v ->Well, I think that-</v>

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<v ->The usual consent rules, which I don't think help you but.</v>

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<v Benjamin>Right.</v>

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<v ->Give me if there are any cases that help him.</v>

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<v ->I think the best articulation</v>

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is in Justice Wall Hogan's dissent

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in Commonwealth versus Johnson,

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where it essentially says, look,

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just because somebody is placed on GPS monitoring

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or just because somebody consents to that GPS monitoring,

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that doesn't mean that they're consenting

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that this whole universe of information

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that GPS data is gonna collect.

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It means that they're consenting only to police review

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or probation's review, honestly, of just those areas

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where it's specifically needed to enforce the conditions

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that would justify it in the first place.

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<v ->[Associate Justice] Do you think perhaps-</v>

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<v Woman>No comment, sorry.</v>

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<v Justice Gaziano>Any other cases other than that dissent?</v>

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<v ->Well then I think there are the cases</v>

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that we put in the opening brief that talk about consent

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has to be unambiguous,

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both in terms of its actual giving consent

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and then it has to be unambiguous with respect to the scope.

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And here, all you have is this statement GPS monitoring

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on release.

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<v ->Did you work outside of Massachusetts?</v>

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'Cause I have the same question, Justice Gaziano.

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Has anyone...

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I mean, it's an interesting question,

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but has anyone other state written on this issue

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about consent and GPS and how far it goes?

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'cause you make a very interesting argument,

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and it may be correct, but it would be useful to know

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if some court has adopted it.

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<v ->I didn't do that and I would be happy to look</v>

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and submit a letter to the court afterward

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if I found anything useful.

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But I do think that it is a very different thing

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for somebody to say, okay, I'm gonna wear a GPS device.

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And I understand that the reason for this

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is because the government wants

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to enforce a stay away order.

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So I will understand that in this, you know,

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I think a good way to think about it-

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<v Justice Gaziano>If it was a condition</v>

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of probation not to commit further crime.

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<v ->It is.</v>

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But I think from what we know from Norman

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is that when it's pre-trial release

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that we're talking about,

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GPS can only be imposed for very specific purposes,

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and general deterrence is not one of those purposes.

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It has to be-

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<v ->But the imposition is for kind of familiar with Norman,</v>

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the imposition of of GPS is one thing,

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but then we have a consensual application of a GPS device,

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and we'll probably talk about

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whether it was actually truly consensual

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given the Hobson's choice that the defendant had,

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but it was counseled at least unlike the other cases.

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So if it was consensual

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and the record doesn't reveal whether it was a call query

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or anything about the scope of that consent,

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I'm just wondering if the average person,

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and that's really the test,

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is the objectively average person,

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they know they have an ankle bracelet on,

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what are they gonna think as far as scope of consent?

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Just the same as when the police come up to you

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and say, yeah, you can search my car.

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What does that mean?

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<v ->Well then, that is the case</v>

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that's cited in the opening brief

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when the police said, you can search my car.

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That didn't include looking-

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<v Justice Gaziano>Like the air filter, right? Yeah.</v>

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<v ->And I think that it is the average reasonable person,</v>

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especially when they're faced

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with those coercive circumstances

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and they're agreeing to this, you know.

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<v ->And I'm not saying we're gonna get to consent,</v>

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but like, we will get to it,

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but whether or not it'll go you in your favor

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because you have the course of circumstances.

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But I'm just wondering if we get past that,

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whether you have a basis to say

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that the information that was given to the police

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was not out there, essentially.

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<v Benjamin>I'm sorry, I didn't understand</v>

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<v ->Whether the information given to the police,</v>

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whether the defendant consented to have his tracking data.

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<v Benjamin>Right.</v>

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<v ->Revealed to the police by going on the GPS.</v>

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<v ->Yeah.</v>

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I mean, our position is that with respect

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to the expectation of privacy, you know,

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that has to be even with consent, right?

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And under Norman, consent really shouldn't come in

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to the constitutional analysis here.

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It should be separated

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because the circumstances were so coercive.

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But it should be at least as broad

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as his right against an improper search.

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And, you know, a pre-trial probationary

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maintains robust expectations of privacy.

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And that expectation of privacy-

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<v ->[Associate Justice] From which perspective</v>

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do we measure the scope of consent?

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<v ->I think it's on...</v>

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Well, I think that what the case says

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is it should be determined

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by what's specifically stated in the exchange

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where the consent is given.

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And here all we have is GPS monitoring no real.

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<v Justice Gaziano>Measured against an average person.</v>

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<v ->Measured against the average person</v>

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or the average defendant in this situation.

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And I think for somebody who is saying, okay,

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I'll agree to GPS monitoring as a manner

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of enforcing a stay away order, then their expectations

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of privacy should be diminished only to the extent

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that a later review of their historical GPS tracking data

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would be necessary in order to enforce that.

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<v ->Where do you get that the consent</v>

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was to have a GPS device only to enforce a stay away?

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<v ->Well, that's just under Norman.</v>

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It's the only available reason

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that the Commonwealth had to impose the GPS.

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<v Justice Dewar>Well, and the judge specifically said that</v>

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on the record, right?

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She said, I need a stay away.

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<v ->She said, usually, I need a stay away.</v>

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<v Justice Dewar>Oh, sorry, an exclusion zone.</v>

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She said, I need an exclusion zone.

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<v ->Usually, I need an exclusion zone.</v>

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Right.

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And so I think a good way to think about it

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is when a defendant is placed on pre-trial monitoring

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for something, and then they say, okay,

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my reasonable expectations of privacy don't exist

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within this zone where I'm not allowed to go, right?

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Or they don't exist around this victim

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who has a stay away order from me.

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But for this broad universe of other information,

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which includes literally everywhere he goes,

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you might even be able

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to track which side of the house he's staying.

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He should maintain a reasonable expectation of privacy

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in that information.

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And when the police go back and get that,

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no matter how small a sliver of information that is,

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that violates his reasonable expectations of privacy.

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<v ->Can we talk about consent some more?</v>

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So this case is extremely different from Norman

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in terms of what we have about the circumstances

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surrounding the consent.

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So in Norman, as I recall,

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the Commonwealth was just arguing

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on the basis of his signature on a form.

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But here, you know, their Commonwealth had moved

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for a dangerousness hearing

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00:12:00.450 --> 00:12:03.240
and then clearly an agreement was worked out,

261
00:12:03.240 --> 00:12:06.210
whereby the Commonwealth agreed to not go forward

262
00:12:06.210 --> 00:12:07.410
with the dangerousness hearing

263
00:12:07.410 --> 00:12:10.170
and the defendant agreed to this whole host of conditions,

264
00:12:10.170 --> 00:12:12.270
one of which the judge spoke up and said,

265
00:12:12.270 --> 00:12:14.280
hold on a second, I think I need an exclusion zone

266
00:12:14.280 --> 00:12:16.110
to be able to do this.

267
00:12:16.110 --> 00:12:20.700
So can you tell us, give us your best argument for why,

268
00:12:20.700 --> 00:12:23.100
even though this was a counseled agreement

269
00:12:23.100 --> 00:12:24.300
with the prosecution,

270
00:12:24.300 --> 00:12:27.330
whereby the prosecution gave up going forward

271
00:12:27.330 --> 00:12:29.100
the hearing on dangerousness,

272
00:12:29.100 --> 00:12:32.250
that this was not adequate consent?

273
00:12:32.250 --> 00:12:33.870
<v ->Yeah, I mean, I think there's three reasons.</v>

274
00:12:33.870 --> 00:12:37.500
And the coercive quality of that agreement,

275
00:12:37.500 --> 00:12:40.290
I think, still exists regardless of whether it's presented

276
00:12:40.290 --> 00:12:42.660
to the judge as an agreement

277
00:12:42.660 --> 00:12:44.640
or whether the judge is imposing it

278
00:12:44.640 --> 00:12:47.550
during the course of the proceedings.

279
00:12:47.550 --> 00:12:50.550
And, you know, what Norman says is the coercive quality

280
00:12:50.550 --> 00:12:52.890
of the circumstances in which a defendant seeks

281
00:12:52.890 --> 00:12:55.920
to avoid incarceration by obtaining probation

282
00:12:55.920 --> 00:12:58.770
on certain conditions makes principles of voluntary waiver

283
00:12:58.770 --> 00:13:00.780
and consent generally in applicable.

284
00:13:00.780 --> 00:13:02.550
I think this is an example of that.

285
00:13:02.550 --> 00:13:05.466
And Norman, we didn't really know what happened

286
00:13:05.466 --> 00:13:09.240
during the proceedings.

287
00:13:09.240 --> 00:13:10.290
<v Justice Gaziano>Would you think you would have</v>

288
00:13:10.290 --> 00:13:12.030
to have a colloquy then?

289
00:13:12.030 --> 00:13:13.740
<v ->I do think that at the very least,</v>

290
00:13:13.740 --> 00:13:15.270
you have to have a colloquy.

291
00:13:15.270 --> 00:13:17.757
<v ->In order to get beyond that language in Norman</v>

292
00:13:17.757 --> 00:13:20.190
and the course of circumstances.

293
00:13:20.190 --> 00:13:22.830
<v ->And also to adequately determine what the scope</v>

294
00:13:22.830 --> 00:13:25.380
of the potential search is gonna be, right?

295
00:13:25.380 --> 00:13:28.440
And what the scope of the potential consent is.

296
00:13:28.440 --> 00:13:31.140
Without a colloquy, you don't have any of that.

297
00:13:31.140 --> 00:13:34.140
<v ->So in and of itself, I'm sorry, you should continue</v>

298
00:13:34.140 --> 00:13:35.370
to suggest to this question.

299
00:13:35.370 --> 00:13:38.130
<v ->Well, and then I think the other important case.</v>

300
00:13:38.130 --> 00:13:40.170
I mean, what we learned from Norman

301
00:13:40.170 --> 00:13:42.180
from Commonwealth versus La France

302
00:13:42.180 --> 00:13:45.990
from Commonwealth versus Moore is that any time a defendant

303
00:13:45.990 --> 00:13:48.300
is faced with a situation where they're asked

304
00:13:48.300 --> 00:13:52.350
on the one hand to give up what they're right against what

305
00:13:52.350 --> 00:13:56.160
without their consent would otherwise be an unlawful search.

306
00:13:56.160 --> 00:14:00.330
On the one hand, for a promise from freedom incarceration,

307
00:14:00.330 --> 00:14:02.700
from incarceration, on the other hand.

308
00:14:02.700 --> 00:14:04.754
That is a coercive circumstance.

309
00:14:04.754 --> 00:14:08.610
<v ->And how do you fit into this analysis in your mind,</v>

310
00:14:08.610 --> 00:14:09.720
the sort of the presumption

311
00:14:09.720 --> 00:14:13.620
that someone should be let out on personal recognizance

312
00:14:13.620 --> 00:14:17.790
unless there's adequate basis under our statutes not to.

313
00:14:17.790 --> 00:14:21.000
Do you think that if you are out with a GPS on you,

314
00:14:21.000 --> 00:14:23.223
are you out on personal recognizance?

315
00:14:24.090 --> 00:14:26.580
<v ->You're still entitled to the presumption of innocence</v>

316
00:14:26.580 --> 00:14:28.560
and you're entitled to a presumption

317
00:14:28.560 --> 00:14:32.193
of personal recognizance, but there is a condition.

318
00:14:33.480 --> 00:14:36.057
I mean, I'm not sure how to answer that.

319
00:14:36.057 --> 00:14:37.320
<v ->Well, I mean, it was a friendly question</v>

320
00:14:37.320 --> 00:14:38.153
or intended to be.

321
00:14:38.153 --> 00:14:41.280
I mean, this is very different situation from probation.

322
00:14:41.280 --> 00:14:42.240
<v ->Right. Right.</v>

323
00:14:42.240 --> 00:14:45.030
Because someone is presumed innocent.

324
00:14:45.030 --> 00:14:48.090
And so it seems like here, in order to not go forward

325
00:14:48.090 --> 00:14:53.090
with the 58A hearing, Mr. Govan agreed to a GPS.

326
00:14:54.000 --> 00:14:54.870
<v Benjamin>Right.</v>

327
00:14:54.870 --> 00:14:59.870
<v ->And, you know, I'm asking when we think about consent,</v>

328
00:15:01.710 --> 00:15:04.590
does the presumption of personal recognizance

329
00:15:04.590 --> 00:15:06.360
and the presumption of innocence,

330
00:15:06.360 --> 00:15:08.970
how does that fit into the consent analysis?

331
00:15:08.970 --> 00:15:11.250
And when we're trying to distinguish this from probation,

332
00:15:11.250 --> 00:15:13.350
I recognize that it's different from probation,

333
00:15:13.350 --> 00:15:14.460
but I'm asking does the sort

334
00:15:14.460 --> 00:15:16.230
of greater liberty interest there,

335
00:15:16.230 --> 00:15:19.203
how does it exactly relate to the consent analysis?

336
00:15:20.850 --> 00:15:23.730
<v ->Well, I think the fact that he's entitled</v>

337
00:15:23.730 --> 00:15:26.760
to a presumption of innocence entitled to a presumption

338
00:15:26.760 --> 00:15:29.340
of personal recognizance, all of that means

339
00:15:29.340 --> 00:15:30.810
that if he's giving up that, right,

340
00:15:30.810 --> 00:15:32.250
he's giving up more, right?

341
00:15:32.250 --> 00:15:34.800
So that the court should be more protective

342
00:15:34.800 --> 00:15:37.260
of limiting the scope of the consent

343
00:15:37.260 --> 00:15:39.720
that he gives in those circumstances.

344
00:15:39.720 --> 00:15:41.220
<v ->I have one other question.</v>

345
00:15:41.220 --> 00:15:43.530
So what do we do?

346
00:15:43.530 --> 00:15:45.870
It's the sort of the elephant,

347
00:15:45.870 --> 00:15:49.350
which is the police are taking GPS

348
00:15:49.350 --> 00:15:53.370
for all pre-trial release.

349
00:15:53.370 --> 00:15:54.720
Anyone on a GPS,

350
00:15:54.720 --> 00:15:57.840
they're running these searches both probationers

351
00:15:57.840 --> 00:15:59.430
and pre-trial.

352
00:15:59.430 --> 00:16:00.510
How does that help you?

353
00:16:00.510 --> 00:16:02.850
How do we figure that into our analysis

354
00:16:02.850 --> 00:16:06.273
that they're going out there and doing these dragnets?

355
00:16:08.634 --> 00:16:11.520
I'm just trying to figure out how that plays into this

356
00:16:11.520 --> 00:16:12.813
and how we analyze it.

357
00:16:14.598 --> 00:16:17.730
<v ->Well, I think that's another reason that the court needs</v>

358
00:16:17.730 --> 00:16:22.470
to be protective of pre-trial probationers expectation

359
00:16:22.470 --> 00:16:26.730
and privacy and their presumption of innocence.

360
00:16:26.730 --> 00:16:29.790
And, you know, what I started to say at the beginning here

361
00:16:29.790 --> 00:16:32.580
is that, you know, this is a situation

362
00:16:32.580 --> 00:16:37.580
where, you know, the report, the investigation,

363
00:16:37.740 --> 00:16:39.630
the identification all takes place

364
00:16:39.630 --> 00:16:41.580
with these automatically generated

365
00:16:41.580 --> 00:16:45.270
electronic surveillance mechanisms.

366
00:16:45.270 --> 00:16:47.700
And then, you know, it's almost a situation

367
00:16:47.700 --> 00:16:50.070
where they could make this identification.

368
00:16:50.070 --> 00:16:52.470
<v ->But there's the nexus issue.</v>

369
00:16:52.470 --> 00:16:57.470
So they are doing a search on a shooting,

370
00:16:57.480 --> 00:16:59.070
a location of a shooting.

371
00:16:59.070 --> 00:17:00.600
They're not doing...

372
00:17:00.600 --> 00:17:03.510
I know you described this as everywhere he goes,

373
00:17:03.510 --> 00:17:05.280
his bath, they're not really doing that.

374
00:17:05.280 --> 00:17:10.280
They're looking at this one spot and a public spot,

375
00:17:13.170 --> 00:17:15.270
by the way, it's not his bathroom,

376
00:17:15.270 --> 00:17:17.880
it's where they're shooting in public.

377
00:17:17.880 --> 00:17:19.890
So I'm just trying to understand how that plays out

378
00:17:19.890 --> 00:17:20.880
in all of this.

379
00:17:20.880 --> 00:17:21.713
<v ->Right.</v>

380
00:17:21.713 --> 00:17:23.970
Well, I mean the only reason that they have access

381
00:17:23.970 --> 00:17:25.500
to that information about him

382
00:17:25.500 --> 00:17:30.030
is because he was compelled to wear a GPS device, right?

383
00:17:30.030 --> 00:17:33.270
And I think that to get back to some of the, you know,

384
00:17:33.270 --> 00:17:34.920
what are the cases that are helpful here

385
00:17:34.920 --> 00:17:39.810
that amicus brief cited to Commonwealth versus Pachella

386
00:17:39.810 --> 00:17:41.580
and Commonwealth versus Yusef.

387
00:17:41.580 --> 00:17:44.580
And in both of those situations, the court found

388
00:17:44.580 --> 00:17:47.940
that when the government sort of compels the disclosure

389
00:17:47.940 --> 00:17:49.890
of certain information for one purpose,

390
00:17:49.890 --> 00:17:52.380
it can't just go back and use that information

391
00:17:52.380 --> 00:17:53.520
for some second purpose

392
00:17:53.520 --> 00:17:56.790
without at least requiring a warrant.

393
00:17:56.790 --> 00:17:58.620
<v ->I think Justice Kafka's question gets</v>

394
00:17:58.620 --> 00:18:02.370
to the one hour reasonable expectation of privacy

395
00:18:02.370 --> 00:18:05.400
in one location and not a private location.

396
00:18:05.400 --> 00:18:06.390
If you could address that.

397
00:18:06.390 --> 00:18:09.480
I know that either your brief for the amicus brief

398
00:18:09.480 --> 00:18:13.050
like Esterbrook in registration versus CSOI,

399
00:18:13.050 --> 00:18:14.640
is that the point?

400
00:18:14.640 --> 00:18:15.473
<v Benjamin>Say that last part again.</v>

401
00:18:15.473 --> 00:18:17.550
<v ->Registration data versus CSOI.</v>

402
00:18:17.550 --> 00:18:18.383
<v Benjamin>Right. Right.</v>

403
00:18:18.383 --> 00:18:19.467
<v ->Is that the point?</v>

404
00:18:19.467 --> 00:18:23.130
<v ->And this is the registration data equivalent, right.</v>

405
00:18:23.130 --> 00:18:26.430
In Esterbrook, the court says

406
00:18:26.430 --> 00:18:28.990
that six hour window that we recognized

407
00:18:30.000 --> 00:18:32.190
doesn't apply to that type of information.

408
00:18:32.190 --> 00:18:34.320
And I think it's Commonwealth versus Almanor

409
00:18:34.320 --> 00:18:36.930
that's more specific there 'cause that was a case where-

410
00:18:36.930 --> 00:18:39.331
<v ->Well, but it's Johnson too.</v>

411
00:18:39.331 --> 00:18:42.090
Johnson's a probationer, not a pre-trial,

412
00:18:42.090 --> 00:18:47.090
but we make the point that, you know, you don't have,

413
00:18:47.400 --> 00:18:50.910
in that case, he was a burglar and he's continues to burgle

414
00:18:50.910 --> 00:18:53.280
while he's on probation.

415
00:18:53.280 --> 00:18:55.590
But we make the point

416
00:18:55.590 --> 00:18:58.950
that you don't have this one data point

417
00:18:58.950 --> 00:19:02.430
where basically where are the breaking and entering

418
00:19:02.430 --> 00:19:05.504
has to be analyzed, that has to be taken into account.

419
00:19:05.504 --> 00:19:09.780
You don't have an expectation of privacy necessarily,

420
00:19:09.780 --> 00:19:11.370
particularly in that context.

421
00:19:11.370 --> 00:19:13.590
Whether you do in this context, I don't know.

422
00:19:13.590 --> 00:19:14.940
And that's what I'm struggling with.

423
00:19:14.940 --> 00:19:15.773
<v ->Right.</v>

424
00:19:15.773 --> 00:19:20.040
Well, I think you do, because Johnson, you know,

425
00:19:20.040 --> 00:19:23.610
his GPS was put on him specifically

426
00:19:23.610 --> 00:19:25.980
because he'd already violated probation once

427
00:19:25.980 --> 00:19:27.150
for a B&amp;E, right?

428
00:19:27.150 --> 00:19:28.200
And then they were going back

429
00:19:28.200 --> 00:19:29.130
and they were looking at that.

430
00:19:29.130 --> 00:19:33.690
So he knew, right, that he was under GPS monitoring,

431
00:19:33.690 --> 00:19:36.750
specifically, for future deterrent purposes, right?

432
00:19:36.750 --> 00:19:38.250
This is very different, right.

433
00:19:38.250 --> 00:19:41.640
<v ->So Johnson's consent, this case not consent.</v>

434
00:19:41.640 --> 00:19:42.900
<v ->Right, Johnson is consent</v>

435
00:19:42.900 --> 00:19:44.910
and he's a post-conviction probationer,

436
00:19:44.910 --> 00:19:48.180
who does not have the same expectations of privacy

437
00:19:48.180 --> 00:19:50.040
as a pre-trial probationer.

438
00:19:50.040 --> 00:19:53.430
<v ->And one of the reasons for the GPS in Johnson</v>

439
00:19:53.430 --> 00:19:56.730
was to deter future crime.

440
00:19:56.730 --> 00:19:57.563
<v Benjamin>Correct.</v>

441
00:19:57.563 --> 00:19:58.396
<v ->Which is exactly</v>

442
00:19:58.396 --> 00:20:01.440
within the nexus what the police was looking for.

443
00:20:01.440 --> 00:20:02.273
<v ->Right.</v>

444
00:20:02.273 --> 00:20:03.810
And in this case, you don't have that.

445
00:20:03.810 --> 00:20:06.810
And in fact, what Norman says is you can't impose GPS

446
00:20:06.810 --> 00:20:08.580
just for deterrent purposes.

447
00:20:08.580 --> 00:20:11.670
And the only reason that police would have access to this

448
00:20:11.670 --> 00:20:13.890
is because essentially,

449
00:20:13.890 --> 00:20:17.400
the GPS device collects more information than it needs to

450
00:20:17.400 --> 00:20:21.640
in order to enforce the specific purposes

451
00:20:23.820 --> 00:20:25.590
for which it's introduced.

452
00:20:25.590 --> 00:20:30.590
And so I think when the police come back and look at that,

453
00:20:30.780 --> 00:20:34.260
you have to pare it down to what was just necessary

454
00:20:34.260 --> 00:20:38.100
for the enforcement of the stay away order

455
00:20:38.100 --> 00:20:40.200
that justified the GPS in the first place.

456
00:20:40.200 --> 00:20:43.800
And everything else should be awarded

457
00:20:43.800 --> 00:20:46.530
with an expectation of privacy.

458
00:20:46.530 --> 00:20:48.120
<v Woman>Okay. Thank you.</v>

459
00:20:48.120 --> 00:20:48.953
<v ->Thank you.</v>

460
00:20:52.770 --> 00:20:53.837
<v ->Attorney Slyman.</v>

461
00:21:07.320 --> 00:21:08.153
<v ->Good morning.</v>

462
00:21:08.153 --> 00:21:08.986
And may I please the court.

463
00:21:08.986 --> 00:21:11.040
ADA Mackenzie Slyman and on behalf of the Commonwealth,

464
00:21:11.040 --> 00:21:13.590
with me at council table is ADA Tiffany Albanese

465
00:21:13.590 --> 00:21:16.110
who was the prosecutor on this case.

466
00:21:16.110 --> 00:21:19.650
I'll start my argument with the consent question.

467
00:21:19.650 --> 00:21:22.680
And again, first acknowledging that we are looking at two,

468
00:21:22.680 --> 00:21:26.130
essentially two phases here is the imposition and subsequent

469
00:21:26.130 --> 00:21:28.140
and incidental collection of data

470
00:21:28.140 --> 00:21:30.930
versus the accessing of the data itself.

471
00:21:30.930 --> 00:21:33.540
Here, the defendant clearly consented

472
00:21:33.540 --> 00:21:35.220
to being put on the GPS monitor.

473
00:21:35.220 --> 00:21:39.003
I would also acknowledge that voluntariness-

474
00:21:40.050 --> 00:21:43.260
<v ->How could you say that he clearly consented</v>

475
00:21:43.260 --> 00:21:45.150
in light of the course

476
00:21:45.150 --> 00:21:48.000
of inherently coercive circumstances

477
00:21:48.000 --> 00:21:49.080
in which he found himself?

478
00:21:49.080 --> 00:21:51.330
I think he had just spent three days in jail.

479
00:21:51.330 --> 00:21:52.163
Was that right?

480
00:21:53.490 --> 00:21:57.000
<v ->He had been in custody on the 58A hearing.</v>

481
00:21:57.000 --> 00:21:59.247
The record doesn't indicate whether that was-

482
00:21:59.247 --> 00:22:02.253
<v ->And the Commonwealth came forward and represented.</v>

483
00:22:04.110 --> 00:22:04.943
You know what?

484
00:22:04.943 --> 00:22:06.630
We're not gonna do the 58A

485
00:22:06.630 --> 00:22:11.630
because there is a condition of pre-trial, which is the GPS.

486
00:22:11.820 --> 00:22:13.680
And so we've come to a settlement.

487
00:22:13.680 --> 00:22:14.513
<v ->Yes.</v>

488
00:22:14.513 --> 00:22:15.900
And I think that that last part is very important here.

489
00:22:15.900 --> 00:22:18.000
It's not that the Commonwealth presented to the court.

490
00:22:18.000 --> 00:22:20.100
You know, we've, on our own, without speaking

491
00:22:20.100 --> 00:22:21.240
with the defendant, decided

492
00:22:21.240 --> 00:22:23.730
that we're no longer gonna go forward with the 58A hearing.

493
00:22:23.730 --> 00:22:26.940
This was clearly represented to have been a result

494
00:22:26.940 --> 00:22:29.010
of negotiation and bargaining between the two parties.

495
00:22:29.010 --> 00:22:30.510
<v ->[Justice Wendlandt] What was the bargaining power</v>

496
00:22:30.510 --> 00:22:32.011
of the defendant?

497
00:22:32.011 --> 00:22:33.450
<v ->The defendant by consenting</v>

498
00:22:33.450 --> 00:22:36.390
to be put on the GPS no longer runs the risk,

499
00:22:36.390 --> 00:22:39.810
but not guarantee in any regard

500
00:22:39.810 --> 00:22:44.810
that he could have been held under pre-trial detention.

501
00:22:45.210 --> 00:22:47.880
<v ->So you can either continue to be held</v>

502
00:22:47.880 --> 00:22:50.580
or you wear this GPS and you think that was voluntary?

503
00:22:50.580 --> 00:22:53.040
<v ->I disagree that it was a binary question to that nature</v>

504
00:22:53.040 --> 00:22:54.390
because we still would've had

505
00:22:54.390 --> 00:22:56.880
to make all the requisite showings at 50A hearing

506
00:22:56.880 --> 00:22:58.590
that there was clear and convincing evidence

507
00:22:58.590 --> 00:23:00.570
that the defendant was too dangerous to the community

508
00:23:00.570 --> 00:23:04.290
or to the named witnesses, in this case,

509
00:23:04.290 --> 00:23:06.090
to be released on any,

510
00:23:06.090 --> 00:23:10.230
and that there were not any reasonable conditions of release

511
00:23:10.230 --> 00:23:11.340
that would've been adequate.

512
00:23:11.340 --> 00:23:13.500
We still had that a significant showing the Commonwealth

513
00:23:13.500 --> 00:23:15.720
would've had to make before the judge

514
00:23:15.720 --> 00:23:19.170
in order to have him held prior to to trial.

515
00:23:19.170 --> 00:23:21.990
So it's not a guarantee of being held,

516
00:23:21.990 --> 00:23:23.820
which is what the defendant was facing,

517
00:23:23.820 --> 00:23:27.750
I think, in Johnson one and in Norman, where at that point,

518
00:23:27.750 --> 00:23:30.600
separate from his consent to, you know, any bartering

519
00:23:30.600 --> 00:23:32.850
that had happened before the court placed that order.

520
00:23:32.850 --> 00:23:36.390
Once the court ordered GPS as a condition of release,

521
00:23:36.390 --> 00:23:37.680
he had to sign that form.

522
00:23:37.680 --> 00:23:39.210
And if he didn't, it was guaranteed

523
00:23:39.210 --> 00:23:42.330
that he would be held prior to trial for failure

524
00:23:42.330 --> 00:23:45.810
to acknowledge and agree to follow that to.

525
00:23:45.810 --> 00:23:48.030
<v ->So assuming you've made a case for consent,</v>

526
00:23:48.030 --> 00:23:49.083
what is the scope?

527
00:23:50.160 --> 00:23:50.993
<v ->Sure.</v>

528
00:23:50.993 --> 00:23:55.263
So I think the scope at minimum is,

529
00:23:56.130 --> 00:23:57.930
and again, focusing first on the question

530
00:23:57.930 --> 00:24:00.270
of the imposition and the collection of data,

531
00:24:00.270 --> 00:24:02.370
because I don't think the Commonwealth here needs

532
00:24:02.370 --> 00:24:04.560
to be successful in an argument of consent

533
00:24:04.560 --> 00:24:06.390
for the accessing of the data.

534
00:24:06.390 --> 00:24:08.850
So turning first to the imposition and the collection,

535
00:24:08.850 --> 00:24:10.800
I'd say, at the very minimum here,

536
00:24:10.800 --> 00:24:12.780
the defendant's consent to wear the monitor

537
00:24:12.780 --> 00:24:14.463
and have his data collected,

538
00:24:15.999 --> 00:24:19.920
would extend through the time that he's wearing the monitor

539
00:24:19.920 --> 00:24:21.399
as a condition of pre-trial release.

540
00:24:21.399 --> 00:24:24.480
<v ->What is there in the record to indicate</v>

541
00:24:24.480 --> 00:24:27.750
that he consented to the GPS for all purposes,

542
00:24:27.750 --> 00:24:32.100
including criminal investigatory purposes unrelated

543
00:24:32.100 --> 00:24:35.760
to the offense that brought him before the court?

544
00:24:35.760 --> 00:24:39.810
<v ->So there aren't details to that degree in the record.</v>

545
00:24:39.810 --> 00:24:42.660
It's just expressed as an agreement between the parties.

546
00:24:42.660 --> 00:24:47.660
<v ->So for what purpose was the judge authorized</v>

547
00:24:48.300 --> 00:24:53.300
to impose GPS as a condition of pre-trial release?

548
00:24:53.340 --> 00:24:55.170
It doesn't, in my view, matter so much

549
00:24:55.170 --> 00:24:57.062
what the parties agreed to.

550
00:24:57.062 --> 00:24:58.890
The parties I don't believe can agree to things

551
00:24:58.890 --> 00:25:01.020
that the judge cannot lawfully do.

552
00:25:01.020 --> 00:25:04.530
So would you agree with that general proposition?

553
00:25:04.530 --> 00:25:06.000
You couldn't say we have an agreement

554
00:25:06.000 --> 00:25:08.370
that the defendant should be executed.

555
00:25:08.370 --> 00:25:10.110
So judge, would you please do that?

556
00:25:10.110 --> 00:25:10.968
<v Mackenzie>Sure. Yes, your honor.</v>

557
00:25:10.968 --> 00:25:11.801
<v ->Okay.</v>

558
00:25:11.801 --> 00:25:16.320
So assuming that's true, for what purpose

559
00:25:16.320 --> 00:25:21.320
could the judge lawfully impose GPS monitoring

560
00:25:21.840 --> 00:25:25.590
in a pre-trial context under section 58?

561
00:25:25.590 --> 00:25:28.440
<v ->Yeah, so these are the three bases that are set out</v>

562
00:25:28.440 --> 00:25:30.660
in Norman that it's either going

563
00:25:30.660 --> 00:25:32.910
to ensure the defendants return to court

564
00:25:32.910 --> 00:25:34.980
to preserve the integrity of the judicial process

565
00:25:34.980 --> 00:25:36.840
or in cases of domestic abuse

566
00:25:36.840 --> 00:25:39.600
in order to ensure the safety of the alleged victim

567
00:25:39.600 --> 00:25:40.487
in any other individual or community.

568
00:25:40.487 --> 00:25:44.103
<v ->Right, so let's assume that the judge did that here,</v>

569
00:25:45.420 --> 00:25:46.830
but nothing further, right?

570
00:25:46.830 --> 00:25:51.547
The judge could not impose GPS as just a general tool

571
00:25:54.750 --> 00:25:57.240
that might be convenient for law enforcement in the future.

572
00:25:57.240 --> 00:25:58.073
Correct?

573
00:26:01.170 --> 00:26:03.870
<v ->I would agree that I think Norman has made it clear</v>

574
00:26:03.870 --> 00:26:07.200
that the parameters that we have in order to testify.

575
00:26:07.200 --> 00:26:11.790
<v ->Right, so how could, as a matter of law,</v>

576
00:26:11.790 --> 00:26:16.233
the defendant's consent extend beyond the judge's authority?

577
00:26:18.450 --> 00:26:20.310
<v ->I think that because it's an incidental</v>

578
00:26:20.310 --> 00:26:21.420
to the main purpose,

579
00:26:21.420 --> 00:26:23.490
and then that this is where we transition now

580
00:26:23.490 --> 00:26:26.460
to the question of a reasonable expectation of privacy.

581
00:26:26.460 --> 00:26:29.520
So I think, and I'll back up-

582
00:26:29.520 --> 00:26:30.450
<v ->Before you transition,</v>

583
00:26:30.450 --> 00:26:33.153
so do you have a case to support your thought?

584
00:26:35.190 --> 00:26:37.710
<v ->I would point to Johnson.</v>

585
00:26:37.710 --> 00:26:39.870
Johnson 2 as we refer to in our brief,

586
00:26:39.870 --> 00:26:41.397
the Commonwealth case there.

587
00:26:41.397 --> 00:26:43.512
<v ->[Justice Wolohojian] That's the probation case.</v>

588
00:26:43.512 --> 00:26:44.345
<v ->Sure.</v>

589
00:26:44.345 --> 00:26:46.470
I would also point to to to Johnson 1,

590
00:26:46.470 --> 00:26:49.980
which I know, your honor, issued a dissent on.

591
00:26:49.980 --> 00:26:52.080
And I recognize that that predates Norman.

592
00:26:52.080 --> 00:26:54.360
<v ->So any case other than that</v>

593
00:26:54.360 --> 00:26:57.423
that shows that a defendant that is upheld,

594
00:26:58.800 --> 00:27:03.800
that is found valid, a defendant's consent

595
00:27:04.320 --> 00:27:08.200
to something the judge could not do

596
00:27:09.240 --> 00:27:11.553
as a condition of pre-trial release?

597
00:27:12.630 --> 00:27:13.590
<v ->No, I don't think...</v>

598
00:27:13.590 --> 00:27:15.510
Not not to that specificity, your honor,

599
00:27:15.510 --> 00:27:17.070
but I think I would push back a little bit

600
00:27:17.070 --> 00:27:22.070
as to that the judge, so long as it's been imposed

601
00:27:22.410 --> 00:27:25.110
for an appropriate reason,

602
00:27:25.110 --> 00:27:27.330
which I think here at minimum the last two

603
00:27:27.330 --> 00:27:30.123
of the Norman fact, Norman basis have been met.

604
00:27:31.050 --> 00:27:34.200
That the further use of it beyond that

605
00:27:34.200 --> 00:27:39.200
does not disqualify the extent to which the data can be used

606
00:27:40.470 --> 00:27:42.240
or accessed here.

607
00:27:42.240 --> 00:27:44.610
And as I said, I acknowledge that there hasn't been...

608
00:27:44.610 --> 00:27:46.470
I don't think the court yet has reached this question

609
00:27:46.470 --> 00:27:47.970
to this degree specificity.

610
00:27:47.970 --> 00:27:49.590
<v ->Did you look beyond the state too?</v>

611
00:27:49.590 --> 00:27:50.423
'Cause it seems

612
00:27:50.423 --> 00:27:54.450
like we're addressing some certainly novel questions.

613
00:27:54.450 --> 00:27:55.283
Have you done a 50 state

614
00:27:55.283 --> 00:27:58.620
or looked outside of Massachusetts on this?

615
00:27:58.620 --> 00:28:00.390
<v ->I'm happy to look further.</v>

616
00:28:00.390 --> 00:28:01.890
It's been a minute since we've briefed,

617
00:28:01.890 --> 00:28:05.040
so I can't recall the full extent of my searching.

618
00:28:05.040 --> 00:28:08.010
I didn't find anything within Massachusetts

619
00:28:08.010 --> 00:28:09.450
that goes to this degree.

620
00:28:09.450 --> 00:28:10.740
I will say I did.

621
00:28:10.740 --> 00:28:12.000
And I don't know

622
00:28:12.000 --> 00:28:13.440
that this was put in the Commonwealth's brief,

623
00:28:13.440 --> 00:28:17.430
but there was a First Circuit case,

624
00:28:17.430 --> 00:28:20.130
I think, Commonwealth versus Hunt or State versus Hunt

625
00:28:20.970 --> 00:28:23.820
that I'm happy to provide the site for to the court,

626
00:28:23.820 --> 00:28:24.653
which deals with the...

627
00:28:24.653 --> 00:28:27.000
It's coming out of Suffolk Superior,

628
00:28:27.000 --> 00:28:30.240
but in the federal court, United States versus Hunt,

629
00:28:30.240 --> 00:28:33.240
which is incredibly factually similar to where we are today.

630
00:28:33.240 --> 00:28:34.200
And that's (faintly speaking).

631
00:28:34.200 --> 00:28:36.960
<v ->United States versus Hunt is a a DMAs case</v>

632
00:28:36.960 --> 00:28:38.700
or what case is that?

633
00:28:38.700 --> 00:28:43.290
<v ->It's out of the first circuit and it actually...</v>

634
00:28:43.290 --> 00:28:45.090
Can I have just one moment?

635
00:28:45.090 --> 00:28:48.330
<v ->It involves this issue of, okay, we put this on</v>

636
00:28:48.330 --> 00:28:51.210
for basically an abuse order

637
00:28:51.210 --> 00:28:54.330
and then we go trolling for information with that.

638
00:28:54.330 --> 00:28:56.520
'Cause that's the issue, right?

639
00:28:56.520 --> 00:29:00.240
Because it seems like there's multiple parts to it.

640
00:29:00.240 --> 00:29:01.380
Okay.

641
00:29:01.380 --> 00:29:05.100
In this case, and by the way, don't you have a problem

642
00:29:05.100 --> 00:29:07.290
'cause we don't know where the victim lives, right?

643
00:29:07.290 --> 00:29:10.230
So this GPS doesn't do anything, right?

644
00:29:10.230 --> 00:29:14.310
<v ->I would disagree because of the additional condition</v>

645
00:29:14.310 --> 00:29:16.530
of a stay away from the victim in general.

646
00:29:16.530 --> 00:29:18.360
This isn't just stay away from her address.

647
00:29:18.360 --> 00:29:21.810
<v ->But if we don't know where she lives, how is this useful?</v>

648
00:29:21.810 --> 00:29:23.190
How does this work?

649
00:29:23.190 --> 00:29:25.110
'Cause didn't we deal with that Norman?

650
00:29:25.110 --> 00:29:26.640
I defer to Justice Gaziano.

651
00:29:26.640 --> 00:29:28.443
But didn't we say that-

652
00:29:29.430 --> 00:29:30.837
<v Justice Gaziano>General deterrence, you couldn't do it.</v>

653
00:29:30.837 --> 00:29:31.695
<v Woman>Broad.</v>

654
00:29:31.695 --> 00:29:32.528
<v ->Yeah.</v>

655
00:29:32.528 --> 00:29:34.350
I mean, you said this kinda blindly

656
00:29:34.350 --> 00:29:37.620
about a minute and a half ago that the reasons

657
00:29:37.620 --> 00:29:41.430
for the initial imposition in the BMC case met

658
00:29:41.430 --> 00:29:43.080
the Norman requirements.

659
00:29:43.080 --> 00:29:46.740
And I'm I'm struggling to see how,

660
00:29:46.740 --> 00:29:51.740
because you have a victim who even the judge makes note

661
00:29:52.260 --> 00:29:56.790
on the record that I can't do an exclusion zone.

662
00:29:56.790 --> 00:29:58.260
We can't do a stay away.

663
00:29:58.260 --> 00:29:59.460
The record indicates

664
00:29:59.460 --> 00:30:03.390
that the victim in the case didn't want her address known.

665
00:30:03.390 --> 00:30:07.680
The DA at the time of the hearing says to the judge,

666
00:30:07.680 --> 00:30:09.870
we haven't had any contact.

667
00:30:09.870 --> 00:30:12.780
So how would this be a proper imposition

668
00:30:12.780 --> 00:30:13.983
in the first place?

669
00:30:15.349 --> 00:30:17.730
What is it excluding and who is it protecting

670
00:30:17.730 --> 00:30:19.500
if we don't know where the person is?

671
00:30:19.500 --> 00:30:20.333
<v ->Sure.</v>

672
00:30:20.333 --> 00:30:21.720
And if I can step back for one second,

673
00:30:21.720 --> 00:30:23.370
I don't believe in this case

674
00:30:23.370 --> 00:30:25.530
that this is different than I think Roderick,

675
00:30:25.530 --> 00:30:26.460
which, your honor, might be thinking

676
00:30:26.460 --> 00:30:27.960
of where they hadn't had any contact

677
00:30:27.960 --> 00:30:29.190
with the victim at the time.

678
00:30:29.190 --> 00:30:31.110
Here, we had spoken to her.

679
00:30:31.110 --> 00:30:33.300
She had stated she had not had contact with this defendant

680
00:30:33.300 --> 00:30:34.950
for a period of time and had moved.

681
00:30:34.950 --> 00:30:37.260
But I think here, this defendant,

682
00:30:37.260 --> 00:30:38.880
this is where I think the consent comes back

683
00:30:38.880 --> 00:30:42.120
into being crucial here, is that had Roderick,

684
00:30:42.120 --> 00:30:45.750
I believe was discussed at the BMC level.

685
00:30:45.750 --> 00:30:46.830
But this defendant consented

686
00:30:46.830 --> 00:30:49.680
to being put on this monitor without an exclusion zone.

687
00:30:49.680 --> 00:30:52.560
Had he not consented to that, then the Commonwealth

688
00:30:52.560 --> 00:30:55.140
and the court would've faced that question of.

689
00:30:55.140 --> 00:30:55.973
And I think that-

690
00:30:55.973 --> 00:30:56.806
<v ->[Associate Justice] Sorry, sorry, hold on.</v>

691
00:30:56.806 --> 00:30:57.639
Can I stop you there?

692
00:30:57.639 --> 00:30:58.472
<v ->I'm sorry.</v>

693
00:30:58.472 --> 00:31:02.100
But that again goes one step too far

694
00:31:02.100 --> 00:31:04.980
because this is back to Justice Wolohojian's point.

695
00:31:04.980 --> 00:31:07.680
The defendant can consent to whatever he wants.

696
00:31:07.680 --> 00:31:09.420
The parties can go out and say,

697
00:31:09.420 --> 00:31:11.340
we'll consent to whatever we want

698
00:31:11.340 --> 00:31:14.400
with respect to obviating going forward the 58A,

699
00:31:14.400 --> 00:31:15.675
but that still doesn't mean

700
00:31:15.675 --> 00:31:19.680
that short circuits the judge's independent requirement

701
00:31:19.680 --> 00:31:23.460
to make sure that there's a lawful basis to impose the GPS.

702
00:31:23.460 --> 00:31:26.520
And so if you've got the Commonwealth coming saying,

703
00:31:26.520 --> 00:31:31.080
we're gonna obviate a 58A and he can consents to a to a GPS,

704
00:31:31.080 --> 00:31:32.943
the judge still has to say for what?

705
00:31:33.960 --> 00:31:37.473
And then say there's a lawful basis for me to impose it.

706
00:31:38.730 --> 00:31:39.563
<v Mackenzie>Yes, your honor.</v>

707
00:31:39.563 --> 00:31:42.210
<v ->So if there's no exclusion zone,</v>

708
00:31:42.210 --> 00:31:44.940
we don't know where the victim is,

709
00:31:44.940 --> 00:31:47.280
what's the lawful basis upon which the judge

710
00:31:47.280 --> 00:31:49.290
can impose the GPS?

711
00:31:49.290 --> 00:31:51.480
<v ->So I would say to that,</v>

712
00:31:51.480 --> 00:31:54.930
that an exclusion zone would keep us out of a known area.

713
00:31:54.930 --> 00:31:55.800
Obviously, typically,

714
00:31:55.800 --> 00:31:58.020
it's gonna be the victim's home address.

715
00:31:58.020 --> 00:32:00.990
But in situations, especially when you look at this case,

716
00:32:00.990 --> 00:32:02.760
it's an assault and battery with a family household member

717
00:32:02.760 --> 00:32:06.690
and intimidation charges, that stay away order goes

718
00:32:06.690 --> 00:32:08.460
beyond just where this person lives.

719
00:32:08.460 --> 00:32:11.220
It's going to be their place of work or any other place

720
00:32:11.220 --> 00:32:12.930
where they might interact with each other.

721
00:32:12.930 --> 00:32:15.720
And so the GPS ensures

722
00:32:15.720 --> 00:32:18.360
that should the defendant find out where she is,

723
00:32:18.360 --> 00:32:20.250
find out where she works, find out she's gonna be

724
00:32:20.250 --> 00:32:22.980
at a cookout at her family's house this weekend,

725
00:32:22.980 --> 00:32:25.380
that he knows that he's being monitored

726
00:32:25.380 --> 00:32:28.410
and that if she reports, yep, he came to the house,

727
00:32:28.410 --> 00:32:30.060
he bothered us.

728
00:32:30.060 --> 00:32:32.220
<v ->But that may not give the government the right</v>

729
00:32:32.220 --> 00:32:35.730
to monitor him everywhere, right?

730
00:32:35.730 --> 00:32:37.920
That's the whole problem with GPS.

731
00:32:37.920 --> 00:32:41.670
The fact that he can be monitored in some places

732
00:32:41.670 --> 00:32:44.730
and that the person he's supposed to be stay away from

733
00:32:44.730 --> 00:32:46.890
may be in different places.

734
00:32:46.890 --> 00:32:49.710
I don't quite understand the logical Lincoln saying,

735
00:32:49.710 --> 00:32:54.000
therefore the defendant can be monitored everywhere,

736
00:32:54.000 --> 00:32:55.890
anywhere and everywhere.

737
00:32:55.890 --> 00:32:56.730
<v ->Yes, your honor.</v>

738
00:32:56.730 --> 00:33:00.960
But I think that breadth of monitoring is required

739
00:33:00.960 --> 00:33:02.653
where the-

740
00:33:02.653 --> 00:33:04.230
<v ->[Justice Wolohojian] It's to protect the victim.</v>

741
00:33:04.230 --> 00:33:05.130
<v ->Correct.</v>

742
00:33:05.130 --> 00:33:07.053
<v ->The victim is going to be somewhere.</v>

743
00:33:09.300 --> 00:33:10.290
<v Justice Gaziano>How does probation know</v>

744
00:33:10.290 --> 00:33:11.373
there's a violation?

745
00:33:12.210 --> 00:33:13.043
<v ->Sure.</v>

746
00:33:13.043 --> 00:33:16.050
So I think I acknowledge that, your honor,

747
00:33:16.050 --> 00:33:18.750
that where we have an ex exclusion zone, you know,

748
00:33:18.750 --> 00:33:20.250
GPS is gonna ping probation

749
00:33:20.250 --> 00:33:21.709
and what logically falls from there.

750
00:33:21.709 --> 00:33:22.542
<v ->Right.</v>

751
00:33:22.542 --> 00:33:23.793
And to stay away from the victim.

752
00:33:26.130 --> 00:33:27.900
How's this work?

753
00:33:27.900 --> 00:33:30.780
<v ->I think it goes to...</v>

754
00:33:30.780 --> 00:33:35.490
And this is the same as with Norman,

755
00:33:35.490 --> 00:33:39.000
excuse me, acknowledges that GPS is permissible

756
00:33:39.000 --> 00:33:40.680
to ensure someone returns to court.

757
00:33:40.680 --> 00:33:43.740
The probation department's not gonna know their location

758
00:33:43.740 --> 00:33:45.420
until this triggering event takes place.

759
00:33:45.420 --> 00:33:46.680
<v Justice Gaziano>But probation's gonna know</v>

760
00:33:46.680 --> 00:33:48.679
whether or not they show up at court.

761
00:33:48.679 --> 00:33:49.512
<v ->Right.</v>

762
00:33:49.512 --> 00:33:52.200
It would be dependent on the victim

763
00:33:52.200 --> 00:33:53.790
or anyone else who's subject, you know,

764
00:33:53.790 --> 00:33:55.830
another witness coming forward to say,

765
00:33:55.830 --> 00:33:58.620
hey, the defendant has violated this condition of release

766
00:33:58.620 --> 00:34:00.690
and has approached me.

767
00:34:00.690 --> 00:34:03.053
<v Justice Dewar>So is the purpose deterrence then?</v>

768
00:34:04.830 --> 00:34:09.420
Is it deterrence or post facto evidence gathering?

769
00:34:09.420 --> 00:34:11.280
<v ->I think they go together.</v>

770
00:34:11.280 --> 00:34:13.980
<v ->I think we're a little hampered here</v>

771
00:34:13.980 --> 00:34:15.510
because to be clear, the Commonwealth

772
00:34:15.510 --> 00:34:20.510
did not brief an argument that the imposition of GPS

773
00:34:20.640 --> 00:34:23.640
on Mr. Govan served a governmental purpose here, correct?

774
00:34:23.640 --> 00:34:26.460
You only briefed the consent issue.

775
00:34:26.460 --> 00:34:28.560
<v ->Our focus was on the consent issue, yes.</v>

776
00:34:28.560 --> 00:34:29.430
But although I will acknowledge

777
00:34:29.430 --> 00:34:31.890
that the motion judge did find both

778
00:34:31.890 --> 00:34:34.050
that there was valid consent here

779
00:34:34.050 --> 00:34:36.420
and also that the government's interest in ensuring

780
00:34:36.420 --> 00:34:40.230
that this defendant stay away from these two witnesses

781
00:34:40.230 --> 00:34:41.430
outweighed the intrusion.

782
00:34:41.430 --> 00:34:42.510
<v ->Can we go back to a second ago?</v>

783
00:34:42.510 --> 00:34:47.510
Because you said that he consented to GPS without limitation

784
00:34:50.100 --> 00:34:52.980
to enforcement of an exclusion zone.

785
00:34:52.980 --> 00:34:55.410
But the judge, it's a little unclear in the transcript,

786
00:34:55.410 --> 00:34:57.750
'cause the judge says, oh, you've got this agreement,

787
00:34:57.750 --> 00:34:59.940
but counsel, I need an exclusion zone.

788
00:34:59.940 --> 00:35:04.227
And then the ADA says, well, you know,

789
00:35:06.360 --> 00:35:07.560
we don't have the victim's address,

790
00:35:07.560 --> 00:35:08.850
she doesn't want her address known.

791
00:35:08.850 --> 00:35:11.280
And then defense counsel says something like,

792
00:35:11.280 --> 00:35:14.040
well, we would consent to, you know, an impoundment

793
00:35:14.040 --> 00:35:14.880
of the address.

794
00:35:14.880 --> 00:35:16.440
And then the judge says, okay.

795
00:35:16.440 --> 00:35:18.210
So the way that I understand that

796
00:35:18.210 --> 00:35:21.270
is that everyone thought that there was potentially going

797
00:35:21.270 --> 00:35:24.180
to be an exclusion zone created with an impounded address.

798
00:35:24.180 --> 00:35:25.470
Is that not?

799
00:35:25.470 --> 00:35:27.600
<v ->I would disagree with that classification</v>

800
00:35:27.600 --> 00:35:29.010
of how it took place.

801
00:35:29.010 --> 00:35:31.050
I do that the judge asked,

802
00:35:31.050 --> 00:35:32.700
is there an exclusion zone we're going to set here?

803
00:35:32.700 --> 00:35:33.540
The Commonwealth stated

804
00:35:33.540 --> 00:35:36.810
that they did not received an address from the victim,

805
00:35:36.810 --> 00:35:39.000
but that if in the occasion that we did,

806
00:35:39.000 --> 00:35:40.680
not suggesting that we're going

807
00:35:40.680 --> 00:35:41.670
to now take affirmative step.

808
00:35:41.670 --> 00:35:43.800
But if we did become aware of her address,

809
00:35:43.800 --> 00:35:46.380
we would submit to the court and seek that to be impounded

810
00:35:46.380 --> 00:35:47.940
to which the defense attorney replied,

811
00:35:47.940 --> 00:35:49.500
we have no objection to that.

812
00:35:49.500 --> 00:35:52.560
And I would point the court as well to later

813
00:35:52.560 --> 00:35:54.150
in the transcript in that afternoon session

814
00:35:54.150 --> 00:35:56.220
once the defendant was brought to court,

815
00:35:56.220 --> 00:35:57.510
where the court expressly tells him

816
00:35:57.510 --> 00:35:58.980
to stay away from the address.

817
00:35:58.980 --> 00:35:59.813
Should he learn of it?

818
00:35:59.813 --> 00:36:00.933
He says that's fine.

819
00:36:01.770 --> 00:36:05.400
So I don't think that there was this expectation

820
00:36:05.400 --> 00:36:07.680
that the Commonwealth would be taking affirmative steps

821
00:36:07.680 --> 00:36:12.680
to get an exclusion zone to get an address from the victim

822
00:36:13.980 --> 00:36:16.590
to then report and impound to that degree.

823
00:36:16.590 --> 00:36:20.460
I think, if we do come across this information,

824
00:36:20.460 --> 00:36:23.610
this is how we would like to deal with it once it's here.

825
00:36:23.610 --> 00:36:26.060
<v ->How does the lack of an exclusion zone...</v>

826
00:36:27.690 --> 00:36:30.870
Sorry, how does the lack of an exclusion zone

827
00:36:30.870 --> 00:36:33.720
affect the reasonable expectations

828
00:36:33.720 --> 00:36:35.853
of the pre-trial detainee?

829
00:36:37.710 --> 00:36:38.543
<v Mackenzie>Sure.</v>

830
00:36:38.543 --> 00:36:43.250
<v ->Given that he knew that there was not an exclusion zone</v>

831
00:36:45.000 --> 00:36:49.440
and he also knew that he was to stay away from the victim.

832
00:36:49.440 --> 00:36:50.973
The only way.

833
00:36:52.170 --> 00:36:53.370
Are his expectations

834
00:36:53.370 --> 00:36:56.730
that he was gonna be monitored 24/7

835
00:36:56.730 --> 00:37:00.093
because there's just no way of knowing where the victim was.

836
00:37:01.650 --> 00:37:02.640
<v ->That's our position, your honor,</v>

837
00:37:02.640 --> 00:37:05.100
is that by virtue of there not being an exclusion zone,

838
00:37:05.100 --> 00:37:06.690
which the defendant was aware of

839
00:37:06.690 --> 00:37:09.423
and at minimum lodged no objection to,

840
00:37:11.220 --> 00:37:12.600
where there is no exclusion zone,

841
00:37:12.600 --> 00:37:17.100
then you have to be monitored at 24/7.

842
00:37:17.100 --> 00:37:19.650
I'll use have to loosely there,

843
00:37:19.650 --> 00:37:24.650
but in order to enforce the condition in that way.

844
00:37:25.920 --> 00:37:27.060
So the defendant knew.

845
00:37:27.060 --> 00:37:31.080
And again, where the stay away no contact is a provision

846
00:37:31.080 --> 00:37:34.380
that beyond a geographical limitation.

847
00:37:34.380 --> 00:37:36.480
It's not just you cannot contact her at her home

848
00:37:36.480 --> 00:37:37.590
or go to her home.

849
00:37:37.590 --> 00:37:40.140
It's you need to stay away from her in all ways.

850
00:37:40.140 --> 00:37:42.390
The defendant had to have known

851
00:37:42.390 --> 00:37:44.760
that he was being tracked at all times.

852
00:37:44.760 --> 00:37:47.130
And just turning briefly, I recognize amount of time,

853
00:37:47.130 --> 00:37:48.960
but just to the question of a reasonable expectation

854
00:37:48.960 --> 00:37:51.030
of privacy, I would just emphasize here

855
00:37:51.030 --> 00:37:52.230
as to the first prong alone

856
00:37:52.230 --> 00:37:54.300
of a subjective expectation of privacy.

857
00:37:54.300 --> 00:37:58.740
The defendant has put nothing forward his motion filings

858
00:37:58.740 --> 00:38:02.460
before the superior court or in support of his brief

859
00:38:02.460 --> 00:38:04.650
of his own expectation of privacy here.

860
00:38:04.650 --> 00:38:08.070
<v ->I think his argument is I get.</v>

861
00:38:08.070 --> 00:38:11.550
If you're right on consent, you can put that GPS on him

862
00:38:11.550 --> 00:38:13.410
and monitor him everywhere.

863
00:38:13.410 --> 00:38:16.860
But his argument is I have a reasonable expectation

864
00:38:16.860 --> 00:38:19.530
of privacy that you're not gonna use it

865
00:38:19.530 --> 00:38:22.290
except for the domestic relations purpose.

866
00:38:22.290 --> 00:38:24.810
Isn't that his argument that, okay,

867
00:38:24.810 --> 00:38:26.280
I understand I'm being monitored,

868
00:38:26.280 --> 00:38:30.330
but it's not everything in my life I'm being monitored for.

869
00:38:30.330 --> 00:38:33.663
I'm being monitored not to attack my spouse.

870
00:38:34.980 --> 00:38:37.560
<v ->I had the defendant put that in affidavit</v>

871
00:38:37.560 --> 00:38:38.790
or express that elsewhere,

872
00:38:38.790 --> 00:38:40.800
I would understand that subjective intent.

873
00:38:40.800 --> 00:38:42.630
But here, we don't have that.

874
00:38:42.630 --> 00:38:44.940
And secondarily, where we then turn to the question

875
00:38:44.940 --> 00:38:47.160
of whether that expectation of privacy

876
00:38:47.160 --> 00:38:50.880
would be society would be willing to accept.

877
00:38:50.880 --> 00:38:51.713
I think that's also

878
00:38:51.713 --> 00:38:53.460
where the defendant's argument falls apart.

879
00:38:53.460 --> 00:38:55.440
That is addressed in both Johnson 1,

880
00:38:55.440 --> 00:38:57.300
which was again, a pre-trial case,

881
00:38:57.300 --> 00:38:59.490
and in Johnson 2, which again was probation,

882
00:38:59.490 --> 00:39:02.280
but the same question of essentially a defendant

883
00:39:02.280 --> 00:39:04.950
who knows that he's on GPS monitoring

884
00:39:04.950 --> 00:39:07.020
just does not have a reasonable expectation of privacy

885
00:39:07.020 --> 00:39:08.970
in a targeted investigation

886
00:39:08.970 --> 00:39:11.310
to determine his presence at a crime scene.

887
00:39:11.310 --> 00:39:16.310
And I'll leave it with that the kind of last question

888
00:39:16.680 --> 00:39:19.860
of whether there was a expectation of privacy

889
00:39:19.860 --> 00:39:22.707
that's even implicated here by the breadth of the data

890
00:39:22.707 --> 00:39:23.540
hat was looked at

891
00:39:23.540 --> 00:39:26.820
that the detective first pulled a 20 minute period of time

892
00:39:26.820 --> 00:39:30.330
for discreet specific location on one date.

893
00:39:30.330 --> 00:39:33.810
Once he had that data, he then, of those five individuals,

894
00:39:33.810 --> 00:39:35.910
the defendant is the only one who is paying six times

895
00:39:35.910 --> 00:39:37.380
versus once for the other four,

896
00:39:37.380 --> 00:39:40.170
presumably off of Columbia Road just driving past,

897
00:39:40.170 --> 00:39:43.020
then only requested an hour's worth of data.

898
00:39:43.020 --> 00:39:45.269
This was much, much less.

899
00:39:45.269 --> 00:39:46.977
<v ->Do you have any cases in Massachusetts</v>

900
00:39:46.977 --> 00:39:48.860
that say tracking data is subject

901
00:39:48.860 --> 00:39:51.843
to the de minimis time restriction?

902
00:39:53.670 --> 00:39:56.070
<v ->So I wanna make sure I answer that</v>

903
00:39:56.070 --> 00:39:57.960
as accurately as possible.

904
00:39:57.960 --> 00:40:01.920
I would point the court to Augustine, I suppose, with CSLI.

905
00:40:01.920 --> 00:40:03.663
I don't know if that's the best comparison.

906
00:40:03.663 --> 00:40:04.496
<v ->It's not.</v>

907
00:40:04.496 --> 00:40:07.290
So you have historical CSLI and Augustine.

908
00:40:07.290 --> 00:40:12.151
Even the tower dump case deals with CSLI, historical.

909
00:40:12.151 --> 00:40:14.040
It's not tracking data.

910
00:40:14.040 --> 00:40:14.873
<v ->Correct.</v>

911
00:40:14.873 --> 00:40:17.970
So again, I guess, I would point back to Johnson 1 and 2.

912
00:40:17.970 --> 00:40:20.340
In one, that was two months total worth of data

913
00:40:20.340 --> 00:40:21.810
that was accessed.

914
00:40:21.810 --> 00:40:26.810
And in Johnson 2, that was the general area

915
00:40:26.910 --> 00:40:27.743
and the location.

916
00:40:27.743 --> 00:40:29.340
But as far as I was aware from the briefing,

917
00:40:29.340 --> 00:40:30.873
it wasn't specific to.

918
00:40:31.980 --> 00:40:35.490
They didn't put in the briefs, in the decision, excuse me,

919
00:40:35.490 --> 00:40:36.780
how much time is requested.

920
00:40:36.780 --> 00:40:38.820
But this was not a situation where there was enough data

921
00:40:38.820 --> 00:40:41.190
to be requested to implicate that concern

922
00:40:41.190 --> 00:40:43.590
of a mosaic being created of this defendant's life.

923
00:40:43.590 --> 00:40:46.433
There's only so far you can move in an hour's worth of time.