Commonwealth v Norman: A Sea Change in Pre-Trial Electronic SurveillancePosted: November 18, 2020
by Jamie Michael Charles
In recent years, the Supreme Judicial Court (the “SJC”) has dramatically changed the legal landscape governing the supervision upon release of people charged or convicted of criminal offenses by expanding privacy rights under the Fourth Amendment and Article 14 of the Massachusetts Declaration of Rights. Most recently, in Commonwealth v. Norman, 484 Mass. 330 (2020), the SJC limited a trial court’s ability to impose a requirement that a defendant wear a global positioning system (“GPS”) device as a condition of pre-trial release.
The rubric by which trial courts must assess the propriety of GPS monitoring as a condition of release going forward, and the peripheral ramifications of the SJC’s decision for the various parties to the criminal justice system, have broad implications for client and Commonwealth advocacy. For instance, the decision appears to mark a retreat from prior rulings tacitly approving a broader, safety-based rationale for pre-trial release conditions, and may vitiate other release conditions historically imposed pursuant to the bail statute. In the absence of legislative action, justices of the trial courts must now strike a new balance in their efforts to ensure a defendant’s appearance and protect the various parties to a criminal case. Additionally, both prosecutors and police must revisit their use of surveillance technology, particularly in the absence of legal process, to avoid constitutional violations carrying severe consequences for prosecutions that emanate from such surveillance.
In 2006, the Massachusetts Legislature amended the bail statute, M.G.L. c. 276, § 58, to permit the imposition of various “restrictions on personal associations or conduct” as conditions of release in addition to (or in lieu of) cash bail.[i] In the decade that followed, law enforcement officials, probation officers, and members of the bar operated under the assumption that, where appropriate, the trial court could require a defendant or probationer to wear a GPS ankle bracelet as a condition of release without implicating that individual’s constitutional rights.
This understanding began to unravel in Commonwealth v. Johnson, 481 Mass. 710 (2019), and Commonwealth v. Feliz, 481 Mass. 689 (2019), where the SJC concluded that GPS monitoring of post-conviction probationers amounts to a constitutional search under the Fourth Amendment and Article 14. These decisions were followed in short order by Norman, which extended their holdings to defendants subjected to pre-trial release on conditions. Norman revisited the underlying purposes for which trial courts can impose pre-trial conditions pursuant to the bail statute. In doing so, the SJC left open for question the legality of pre-trial conditions that were routinely imposed on defendants across the Commonwealth before Norman. Furthermore, viewed in combination with Johnson, as well as subsequent decisions in Commonwealth v. McCarthy, 484 Mass. 493 (2020) and Commonwealth v. Mora, 485 Mass. 360 (2020), Norman reflects the SJC’s broader concern with law enforcement’s warrantless use of ever-advancing surveillance technology.
The Norman Decision
In Norman, Medford police were investigating an armed home invasion and armed robbery. They requested a targeted search from the Massachusetts Probation Service’s Electronic Monitoring (“ELMO”) Program, which oversees compliance with GPS release conditions, to determine whether any individuals under GPS supervision were present at the time and location of the robbery. That search yielded a positive result for the defendant, who was subject to GPS monitoring as a condition of release imposed in conjunction with an unrelated drug crime. The ELMO data both placed the defendant at the scene of the robbery and led authorities to a residence where the defendant was shortly before and after the robbery. A search warrant executed at that residence yielded additional inculpatory information. A Superior Court judge allowed the defendant’s motion to suppress, agreeing that the initial procurement of ELMO data absent a warrant violated the defendant’s Fourth Amendment and Article 14 rights. The Commonwealth appealed.
Relying primarily on Massachusetts and United States Supreme Court precedent recognizing an expectation of privacy in the whole of an individual’s physical movements, the SJC found that the initial imposition of GPS monitoring as a condition of pretrial release constituted a search under Article 14.[ii] It held that, going forward, the Commonwealth must demonstrate on the particular facts of each individual case that warrantless monitoring is “reasonable” to justify the attachment of a GPS ankle bracelet. Prior to imposing GPS monitoring, a judge must balance the intrusiveness of the monitoring against any legitimate governmental interests. In light of the “severe intrusion” occasioned by around-the-clock GPS monitoring[iii] – which the justices analogized to a modern-day scarlet letter – the SJC cautioned that even monitoring that serves legitimate government interests could be deemed unreasonable.
The SJC also defined narrowly the legitimate interests served by conditions of release imposed pursuant to the bail statute. It concluded that the only permissible goals of pretrial conditions of release in the defendant’s case were “ensuring the defendant’s return to court and his presence at trial, and safeguarding the integrity of the judicial process by protecting witnesses from intimidation and other forms of influence.”[iv] In doing so, the SJC rejected the Commonwealth’s argument that, unlike cash bail, conditions of release imposed under section 58 may serve the goals of generally deterring criminal conduct or addressing dangerousness concerns (the latter being an interest served under section 58A governing dangerousness determinations). As to the latter goal, the SJC appeared to limit the scope of its earlier ruling in Brangan v. Commonwealth, 477 Mass. 691, 706 (2017), that “a judge may not consider a defendant’s alleged dangerousness in setting the amount of bail, although a defendant’s dangerousness may be considered as a factor in setting other conditions of release.”[v] As a result, prosecutors must now be cognizant that general criminal deterrence and dangerousness are not valid interests in imposing GPS monitoring pursuant to the bail statute in most cases.
Broader Implications of Norman
The reasoning of the SJC’s Norman decision may also limit other types of conditions routinely imposed by the Commonwealth’s trial courts. For example, does ordering a defendant charged with operating under the influence to abstain from drugs or alcohol, or submit to random screens designed to detect those substances, ensure that defendant’s return to court?[vi] Will ordering a defendant repeatedly charged with drug distribution to stay away from the geographical area in which the charges arose protect potential witnesses? There certainly is an argument that these conditions more readily serve the goals of deterrence or community safety, and therefore are inappropriate conditions post-Norman. In fact, the SJC appeared to explicitly disapprove of an exclusionary zone in drug distribution cases absent evidence that the condition was “intended to insulate any particular victims or civilian witnesses[.]”[vii] Without legislative action, judicial officers[viii] may need to reassess the enduring utility of these and other commonly imposed conditions, and explore alternative avenues to cabin a defendant’s pre-trial conduct.
In addition to creating legitimate questions about the legality of certain release conditions, Norman also is one of a string of recent decisions creating a ‘new normal’ for law enforcement use of data generated by electronic surveillance. In Commonwealth v. McCarthy, 484 Mass. 493 (2020), the SJC held that law enforcement review of automated license plate reader (“ALPR”) data maintained by the Executive Office of Public Safety and Security could infringe upon a reasonable expectation of privacy if the data painted a detailed enough picture (or “mosaic”) of the targeted individual’s movements. Likewise, in Commonwealth v. Mora, 485 Mass. 360 (2020), the SJC applied a virtually identical analysis to protracted pole camera surveillance, concluding that a warrant was required where such monitoring enabled investigators to uncover the defendant’s private behaviors, patterns, and associations.
The theme in these cases, as in Norman and Johnson, is the SJC’s recognition that individuals have an expectation of privacy in the whole of their physical movements. And, that regardless of its form, prolonged electronic surveillance can provide “access to a category of information otherwise unknowable.”[ix] Yet while the technologies and data at issue in Norman, McCarthy, and Mora have historically been available to law enforcement in Massachusetts without a warrant, the SJC has thus far declined to set a bright line rule as to when the aggregation of such digital surveillance data crosses the threshold into an Article 14 search.[x] Members of law enforcement must therefore exercise caution when utilizing digital surveillance data that has historically served as a building block for criminal investigations. And prosecutors should seriously consider advising their law enforcement partners to secure a warrant supported by probable cause or another governing legal standard before requesting such data.[xi] Officers who fail to seek legal process run the risk of an ex post facto determination that the aggregation of GPS surveillance data infringed upon a reasonable expectation of privacy, resulting in that data being suppressed “even if law enforcement could have met the applicable [legal] standard.”[xii]
Lessons for Law Enforcement
This new “proceed at your peril” paradigm, aptly demonstrated by the historical GPS data ultimately suppressed in Norman, provides several practical lessons for law enforcement. First, warrantless requests for ELMO data may become less common, as law enforcement must determine whether the quantum of data requested from ELMO will infringe on a potential suspect’s reasonable expectation of privacy such that a warrant is required. Although there was no need for this analysis in Norman (because the ankle bracelet’s initial imposition was itself deemed unreasonable), the SJC recognized in Johnson, 481 Mass. at 727, that, at least as to defendants on probation, there is a difference between “a targeted review of GPS data directed at times and locations of suspected criminal activity” and “mapping out and reviewing all of the defendant’s movements . . . or rummaging through the defendant’s historical GPS location data indiscriminately.” The former may, depending on the specific facts of a particular case, fall short of a constitutional search necessitating probable cause.
Second, while application of the “mosaic” theory may be somewhat more straightforward in the context of ALPRs, pole cameras, and other surveillance technologies, any warrantless request will inevitably be subject to a retroactive assessment of its constitutionality. Such an analysis will consider both the volume of data requested or acquired and what that data reveals about a suspect’s movements, day-to-day routine, political and religious beliefs, and other private affairs. Absent legal process, the pyramid of evidence emanating from such data may collapse upon judicial review and cripple a prosecution.
Third, as to historical ELMO data, even a lawful, warrantless request may be subject to suppression based on a judicial determination that the suspect (whose identity was likely unknown to law enforcement at the time of the request) was improperly subjected to GPS monitoring. Given the virtually unknowable nature of this analysis at the time of an officer’s initial request, law enforcement officials may need to think twice about using ELMO data to find the proverbial needle in a haystack.
Norman and similar decisions addressing the use of digital surveillance – whether during the pre-charge investigatory phase or in conjunction with a criminal prosecution – have fundamentally altered the manner in which police and prosecutors use these technologies. Prosecutors and judges must re-evaluate how to address and constrain the behavior of defendants before and after trial. Conditions of release routinely imposed pre-trial may no longer serve the legitimate government interests vindicated by the bail statute. In particular, GPS monitoring as a condition of release and the use of associated location data by law enforcement have been significantly constrained. Police likewise must reassess technologies that previously served as building blocks of criminal investigations and weigh the utility of their warrantless use against the risk of a court suppressing the resulting evidence. One thing remains certain: as technology inevitably evolves, our appellate jurisprudence will continue to redefine the balance between the tools available to law enforcement and the courts and an individual’s right to privacy.
 See St. 2006, c. 48, § 8 (Mar. 30, 2006).
 While acknowledging that consent can justify a warrantless search, the Court largely dismissed its import in this context given the inherent coercion involved where a defendant agrees to GPS monitoring in lieu of pre-trial incarceration. Norman, 484 Mass. at 335.
 The Court highlighted how faulty alerts and charging issues associated with monitoring devices can compromise an individual’s employment and subject that person to the indignities and dangers associated with an arrest. Norman, 484 Mass. at 339.
 Norman, 484 Mass. at 338. The Court acknowledged that a separate provision of the bail statute permitted conditions of release to be imposed in certain crimes involving domestic abuse “in order to ensure . . . the safety of the alleged victim, any other individual or the community.” See G.L. c. 276, § 58, third par.
 In a footnote, the Court specifically referenced the provision of section 58 authorizing specific restrictions on personal associations or conduct. See Brangan, 477 Mass. at 706 n.18.
 Like GPS monitoring, random drug and alcohol testing constitutes a search and seizure for constitutional purposes under Article 14 of the Massachusetts Declaration of Rights. See Commonwealth v. Gomes, 73 Mass. App. Ct. 857, 859 (2009). Such conditions have been deemed appropriate in the probationary context, where a defendant’s expectation of privacy is reduced, so long as “reasonably related” to the goals of sentencing and probation, in light of the defendant’s underlying crime and his or her particular circumstances. See Commonwealth v. Lapointe, 435 Mass. 455, 459 (2001).
 Norman, 484 Mass. at 338.
 Mass. Gen. Laws. c. 276, § 58 authorizes numerous parties, including justices, clerks and bail commissioners, to set conditions of pretrial release.
 McCarthy, 484 Mass. at 500, quoting Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018); Norman, 484 Mass. at 334, quoting Commonwealth v. Johnson, 481 Mass. 710, 717 (2019). The Court first recognized this privacy expectation in Commonwealth v. Augustine, 467 Mass. 230, 245-49 (2014). Acknowledging that cellular phones had become “an indispensable part of modern American life”, the Court found that “[cell-site location information] raises even greater privacy concerns than a GPS tracking device” as a “cellular telephone is carried on the person of its user, [and therefore] tracks the user’s location far beyond the limitations of where a car can travel.” Id. at 245, 249. The United States Supreme Court reached a similar conclusion in Carpenter v. United States, 138 S. Ct. 2206 (2018).
 McCarthy acknowledged that the absence of a bright-line rule would create “some interim confusion[,]” but expressed confidence that the “constitutional line” would “gradually and appropriately . . . come into focus.” 484 Mass. at 509. The Court cautioned that it “risk[ed] error by elaborating too fully on the Fourth Amendment [or art. 14] implications of emerging technology before its role in society has become clear.” Id., quoting Ontario v. Quon, 560 U.S. 746, 759 (2010).
 Massachusetts case law already recognizes that law enforcement may obtain certain forms of historical location data on a lesser showing than probable cause. For example, in Commonwealth v. Estabrook, 472 Mass. 852, 855 n.4 (2015), the Court concluded that Article 14 permits requests for less than six hours of historical cell-site location information (“CSLI”) on a showing of “specific and articulable facts” evidencing “reasonable grounds to believe” that the records “are relevant and material to an ongoing criminal investigation[.]” Likewise, Chief Justice Gants’ concurrence in McCarthy, 484 Mass. at 514, proposed a “lesser” locational mosaic threshold that would require a showing of “‘specific and articulable facts’ demonstrating reasonable suspicion that the targeted individual has committed, is committing, or will commit a crime . . . and that there are reasonable grounds to believe that the data obtained from the query are relevant and material to an investigation of the crime.”
 McCarthy, 484 Mass. at 514 (Gants, C.J., concurring).
Jamie Michael Charles is an Assistant District Attorney in the Appeals and Training Bureau of the Middlesex District Attorney’s Office.