NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-549
COMMONWEALTH
vs.
JOHN MURPHY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The probationer, John Murphy, appeals from an order dated
February 9, 2023, denying his motion to vacate the global
positioning system (GPS) monitoring condition of his probation,
without prejudice to renewal of the motion in June 2024. We
affirm.
Background. The probationer and the primary victim of his
crimes both resided in Marblehead in 2009 when the defendant,
then age twenty-one, supplied alcohol to several teenage girls
at a house party and later raped one of them, age fourteen, in a
public park while she was incapacitated. He was convicted of
two counts of rape of a child under sixteen, in violation of
G. L. c. 265, § 23, and two counts of furnishing alcohol to a
person under twenty-one, in violation of G. L. c. 138, § 34, and
sentenced to a State prison term of nine to eleven years, followed by a five-year term of probation. Special conditions
of probation included having no contact with the victim, no
contact with children under sixteen, and GPS monitoring, which
was mandatory and automatic at the time under G. L. c. 265,
§ 47. 1 He was released from prison in June 2020 and was
classified as a level two sex offender.
The GPS monitoring condition initially enforced an
exclusion zone delineated by certain streets in Marblehead
around the victim's childhood home. In November 2020, after the
probationer was detected within the exclusion zone, a Superior
Court judge other than the trial judge, who had retired,
modified the exclusion zone to bar the probationer from entering
Marblehead, except on Saturdays. Even on Saturdays, he was
still excluded from the streets near the victim's home.
Almost a decade after the probationer's convictions, the
Supreme Judicial Court held that GPS monitoring under G. L.
c. 265, § 47, could no longer be imposed without an
individualized determination whether the Commonwealth's public
safety interests outweighed the probationer's reasonable
expectation of privacy. See Commonwealth v. Feliz, 481 Mass.
689, 699-700 (2019), S.C., 486 Mass. 510 (2020). The
1A panel of this court affirmed the convictions. See Commonwealth v. Murphy, 85 Mass. App. Ct. 1106 (2014).
2 probationer moved to vacate his GPS monitoring condition in
2022.
In its written opposition, the Commonwealth represented
that the victim, who no longer lived in Marblehead but
frequently returned to visit her mother at her childhood home,
continued to fear the probationer and wished for the GPS-
monitored exclusion zone to remain in effect. After a
nonevidentiary hearing on the motion, the judge denied it,
concluding that the Commonwealth's public safety interests
justified the marginal invasion of the probationer's privacy due
to GPS monitoring. The probationer appeals.
Discussion. "Although ordinarily we review a judge's
decision on a motion to vacate a condition of probation for an
abuse of discretion, we conduct an independent review where, as
here, the judge's decision was based on a constitutional
determination" (citations omitted). Commonwealth v. Roderick,
490 Mass. 669, 673 (2022). While we do not agree with every
aspect of the motion judge's decision, we agree that at the time
of the hearing, continued GPS monitoring was justified.
GPS monitoring constitutes a search under the Fourth
Amendment and art. 14. See Roderick, 490 Mass. at 672. Because
such a search is more than minimally invasive, it requires an
individualized determination of reasonableness under art. 14.
See Feliz, 481 Mass. at 699-700. A probationer has "a
3 significantly diminished expectation of privacy" and is presumed
"more likely than the ordinary citizen to violate the law"
(citations omitted). Roderick, 490 Mass. at 673. Even so,
because GPS monitoring is a significant intrusion on a
probationer's liberty and privacy interests, the Commonwealth
must demonstrate how its legitimate public safety interests
outweigh the probationer's "expectation of privacy in his real-
time location information." Id. at 673-674. We evaluate the
strength of the Commonwealth's interests by considering "the
probationer's risk of recidivism and the danger posed to society
should he or she reoffend; as the probationer's risk of
reoffense and degree of dangerousness increases, so too does the
weight of the government's interest." Id. at 673.
We begin by acknowledging the nature and severity of the
crimes. A probationer's degree of dangerousness, and thus the
Commonwealth's "interest in deterrence and investigation,"
increases with the severity of the crime. Roderick, 490 Mass.
at 682. The probationer was convicted of two counts of rape,
"one of the most serious crimes punishable by law." Id. at 682,
quoting Commonwealth v. Sherman, 481 Mass. 464, 473 (2019). The
seriousness of the probationer's offenses was aggravated by the
youth of the victims and the probationer's criminal actions to
induce the rape victim's incapacity. We likewise consider the
probationer's classification as a level two sex offender: a
4 determination, based on clear and convincing evidence, that he
poses a moderate risk of reoffense and a moderate degree of
dangerousness. See Roderick, supra at 680; G. L. c. 6,
§ 178K (2) (b). "[T]he government has a valid interest in
deterrence and investigation where the Commonwealth provides
sufficient evidence that a defendant poses a demonstrable risk
of reoffending." Roderick, supra at 679.
We also consider, as did the motion judge, that shortly
after his release from prison in 2020, the probationer triggered
a GPS alert when a vehicle in which he was a passenger breached
the exclusion zone near the victim's childhood home. Although
the probationer was not the driver, called the probation
department when the bracelet alerted, and was not found in
violation of the terms of probation, this incident nonetheless
demonstrated a serious lapse of judgment on his part, with
nontrivial public safety implications.
On the other hand, we do not attach as much significance as
the motion judge did to the defaults and violations of probation
that occurred prior to the probationer's convictions of rape of
a child and furnishing alcohol. Those violations occurred when
the probationer, who is now in his mid-thirties, was in his late
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-549
COMMONWEALTH
vs.
JOHN MURPHY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The probationer, John Murphy, appeals from an order dated
February 9, 2023, denying his motion to vacate the global
positioning system (GPS) monitoring condition of his probation,
without prejudice to renewal of the motion in June 2024. We
affirm.
Background. The probationer and the primary victim of his
crimes both resided in Marblehead in 2009 when the defendant,
then age twenty-one, supplied alcohol to several teenage girls
at a house party and later raped one of them, age fourteen, in a
public park while she was incapacitated. He was convicted of
two counts of rape of a child under sixteen, in violation of
G. L. c. 265, § 23, and two counts of furnishing alcohol to a
person under twenty-one, in violation of G. L. c. 138, § 34, and
sentenced to a State prison term of nine to eleven years, followed by a five-year term of probation. Special conditions
of probation included having no contact with the victim, no
contact with children under sixteen, and GPS monitoring, which
was mandatory and automatic at the time under G. L. c. 265,
§ 47. 1 He was released from prison in June 2020 and was
classified as a level two sex offender.
The GPS monitoring condition initially enforced an
exclusion zone delineated by certain streets in Marblehead
around the victim's childhood home. In November 2020, after the
probationer was detected within the exclusion zone, a Superior
Court judge other than the trial judge, who had retired,
modified the exclusion zone to bar the probationer from entering
Marblehead, except on Saturdays. Even on Saturdays, he was
still excluded from the streets near the victim's home.
Almost a decade after the probationer's convictions, the
Supreme Judicial Court held that GPS monitoring under G. L.
c. 265, § 47, could no longer be imposed without an
individualized determination whether the Commonwealth's public
safety interests outweighed the probationer's reasonable
expectation of privacy. See Commonwealth v. Feliz, 481 Mass.
689, 699-700 (2019), S.C., 486 Mass. 510 (2020). The
1A panel of this court affirmed the convictions. See Commonwealth v. Murphy, 85 Mass. App. Ct. 1106 (2014).
2 probationer moved to vacate his GPS monitoring condition in
2022.
In its written opposition, the Commonwealth represented
that the victim, who no longer lived in Marblehead but
frequently returned to visit her mother at her childhood home,
continued to fear the probationer and wished for the GPS-
monitored exclusion zone to remain in effect. After a
nonevidentiary hearing on the motion, the judge denied it,
concluding that the Commonwealth's public safety interests
justified the marginal invasion of the probationer's privacy due
to GPS monitoring. The probationer appeals.
Discussion. "Although ordinarily we review a judge's
decision on a motion to vacate a condition of probation for an
abuse of discretion, we conduct an independent review where, as
here, the judge's decision was based on a constitutional
determination" (citations omitted). Commonwealth v. Roderick,
490 Mass. 669, 673 (2022). While we do not agree with every
aspect of the motion judge's decision, we agree that at the time
of the hearing, continued GPS monitoring was justified.
GPS monitoring constitutes a search under the Fourth
Amendment and art. 14. See Roderick, 490 Mass. at 672. Because
such a search is more than minimally invasive, it requires an
individualized determination of reasonableness under art. 14.
See Feliz, 481 Mass. at 699-700. A probationer has "a
3 significantly diminished expectation of privacy" and is presumed
"more likely than the ordinary citizen to violate the law"
(citations omitted). Roderick, 490 Mass. at 673. Even so,
because GPS monitoring is a significant intrusion on a
probationer's liberty and privacy interests, the Commonwealth
must demonstrate how its legitimate public safety interests
outweigh the probationer's "expectation of privacy in his real-
time location information." Id. at 673-674. We evaluate the
strength of the Commonwealth's interests by considering "the
probationer's risk of recidivism and the danger posed to society
should he or she reoffend; as the probationer's risk of
reoffense and degree of dangerousness increases, so too does the
weight of the government's interest." Id. at 673.
We begin by acknowledging the nature and severity of the
crimes. A probationer's degree of dangerousness, and thus the
Commonwealth's "interest in deterrence and investigation,"
increases with the severity of the crime. Roderick, 490 Mass.
at 682. The probationer was convicted of two counts of rape,
"one of the most serious crimes punishable by law." Id. at 682,
quoting Commonwealth v. Sherman, 481 Mass. 464, 473 (2019). The
seriousness of the probationer's offenses was aggravated by the
youth of the victims and the probationer's criminal actions to
induce the rape victim's incapacity. We likewise consider the
probationer's classification as a level two sex offender: a
4 determination, based on clear and convincing evidence, that he
poses a moderate risk of reoffense and a moderate degree of
dangerousness. See Roderick, supra at 680; G. L. c. 6,
§ 178K (2) (b). "[T]he government has a valid interest in
deterrence and investigation where the Commonwealth provides
sufficient evidence that a defendant poses a demonstrable risk
of reoffending." Roderick, supra at 679.
We also consider, as did the motion judge, that shortly
after his release from prison in 2020, the probationer triggered
a GPS alert when a vehicle in which he was a passenger breached
the exclusion zone near the victim's childhood home. Although
the probationer was not the driver, called the probation
department when the bracelet alerted, and was not found in
violation of the terms of probation, this incident nonetheless
demonstrated a serious lapse of judgment on his part, with
nontrivial public safety implications.
On the other hand, we do not attach as much significance as
the motion judge did to the defaults and violations of probation
that occurred prior to the probationer's convictions of rape of
a child and furnishing alcohol. Those violations occurred when
the probationer, who is now in his mid-thirties, was in his late
teens or early twenties and have little bearing on his current
risk of violating the terms of probation. The record suggests
no misconduct in prison, and the probationer was released on
5 parole when he first became eligible. Apart from the single GPS
alert, the probationer's violation-free record on his current
term of probation is far more indicative of his risk of
reoffense than his record from 2008 and 2009.
The judge also erred by failing to consider a letter,
offered through counsel, from the probationer's current licensed
mental health counselor, which apparently discussed the
probationer's recent treatment and the counselor's risk
assessment. The judge refused to receive the letter because it
was not a "psychiatric diagnosis" from a medical doctor.
Although a psychiatrist's diagnosis and testimony were
considered in Feliz, 481 Mass. at 705-706, nothing in that
decision requires a formal psychiatric diagnosis to the
exclusion of all other evidence of a probationer's prognosis and
risk level. However, as the letter was not made part of the
record, we are unable to determine that the probationer was
prejudiced by the judge's failure to consider it.
The defendant asserts that the GPS-enforced exclusionary
zone cannot be appropriately applied because the victim no
longer resides at her childhood home and was, understandably,
unwilling to disclose her current residence. He further argues
that the Commonwealth cannot justify GPS monitoring where the
victim has not testified about why GPS-enforced exclusion from
6 all of Marblehead is necessary, not merely desirable, for her
peace of mind. We disagree.
In Roderick, 490 Mass. at 681-682, although the court
vacated the GPS monitoring condition, it stated, "There is
little question that the Commonwealth's interest in enforcing
the exclusion zone around the victim's home, in conjunction with
its interest in deterring and investigating future sex offenses,
would have outweighed the incremental privacy intrusion
occasioned by GPS monitoring in the instant case." Here,
although the exclusion zone is not perfectly tailored to the
victim's current circumstances, it nonetheless protects the
victim's safety by providing her a "safe haven" at her childhood
home and "prevent[ing] further victimization." Id. at 677.
Indeed, the prosecutor represented that the thought of the
probationer not being GPS monitored was "extremely upsetting to
[the victim]."
Given the seriousness of the offenses, the probationer's
level two sex offender classification, his 2020 violation of the
exclusion zone, and the fact that the zone, while not perfectly
configured, reasonably serves the Commonwealth's interest in
protecting the victim, we conclude that the overall balance of
interests at the time of the motion hearing justified continued
GPS monitoring.
7 Finally, we note that in Roderick, 490 Mass. at 683, the
court stated that "the degree of intrusion upon the defendant's
privacy occasioned by GPS monitoring is aggravated by the fact
that the defendant was ordered to wear a GPS device for three
years." Here the motion judge was cognizant of the fact that
the probationer had been subject to GPS monitoring for over two
and one-half years at the time of the hearing and, with one
exception, had been in compliance. Accordingly, the judge
denied the motion without prejudice, inviting the probationer to
renew the motion in 2024, assuming continued compliance. The
judge appropriately recognized that because the burden on the
defendant's liberty increases over time, see id., the balance of
interests may shift. 2
Conclusion. We affirm the February 9, 2023, order denying
the motion to vacate the GPS monitoring condition of probation,
without prejudice to renewal in June 2024. Proceedings on any
2 We also note that the exclusion zones may be maintained as a condition of probation without enforcement by GPS monitoring.
8 renewed motion shall be conducted consistently with this
decision.
So ordered.
By the Court (Milkey, Massing & Neyman, JJ. 3),
Assistant Clerk
Entered: May 22, 2024.
3 The panelists are listed in order of seniority.