GPS monitoring as a condition of pretrial release violated the state constitution’s search and seizure provision. It was a great intrusion on privacy, and it did not serve the purposes of pretrial release: the return of the accused to court. Pretrial can’t be considered the same as probation because of the lack of a conviction. Commonwealth v. Norman, 484 Mass. 330 (Mar. 17, 2020):
Thus, 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. There is no indication on this record that GPS monitoring would have increased the likelihood of the defendant returning to court. Although the general specter of government tracking could provide an additional incentive to appear in court on specified dates, the causal link in this case is too attenuated and speculative to justify GPS monitoring. See Feliz, 481 Mass. at 709 (Commonwealth failed to show that GPS monitoring would effectuate desired result). Additionally, the exclusionary zone of the city of Boston, which could be viewed as tied to the use of GPS monitoring to assure the defendant was not present in Boston, clearly did not advance the goal of ensuring the defendant’s return to the Boston Municipal Court; indeed, the docket clearly states that an exception would apply to any court appearances in Boston.
Further, there is no indication in the record that the conditions of release were intended to insulate any particular victims or civilian witnesses, who, given the nature of the crimes charged, likely did not exist.
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iii. Balancing. For a warrantless search to be permissible under art. 14, the legitimate governmental interests must outweigh the level of intrusion. See Moore, 473 Mass. at 484, citing Rodriguez, 472 Mass. at 776. Because the GPS monitoring at issue here did not serve the purposes of the statutory scheme, the monitoring did not further any legitimate governmental interests. Therefore, the search was clearly impermissible. We caution that even where GPS monitoring does serve legitimate government interests, reasonableness is not assured; the interests must be sufficient to outweigh the severe intrusion at stake.