Commonwealth v. Johnson , 481 Mass. 710 ( 2019 )


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    SJC-12483
    COMMONWEALTH   vs.   JAMIE B. JOHNSON.
    Plymouth.      September 5, 2018. - March 26, 2019.
    Present:   Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
    Kafker, JJ.
    Breaking and Entering. Larceny. Global Positioning System
    Device. Constitutional Law, Search and seizure. Search
    and Seizure, Probationer, Expectation of privacy.
    Practice, Criminal, Motion to suppress, Probation.
    Indictments found and returned in the Superior Court
    Department on March 14, 2014.
    A pretrial motion to suppress evidence was heard by
    Cornelius J. Moriarty, II, J., and the cases were heard by
    Jeffrey A. Locke, J.
    The Supreme Judicial Court granted an application for
    direct appellate review.
    Timothy St. Lawrence for the defendant.
    Gail M. McKenna, Assistant District Attorney (Brian S.
    Fahy, Assistant District Attorney, also present) for the
    Commonwealth.
    Matthew Spurlock, Committee for Public Counsel Services,
    for Committee for Public Counsel Services & another, amici
    curiae, submitted a brief.
    2
    Maura Healey, Attorney General, & Sarah M. Joss, Special
    Assistant Attorney General, for Massachusetts Probation Service,
    amicus curiae, submitted a brief.
    KAFKER, J.   Following a jury-waived trial, the defendant
    was convicted of two counts of breaking and entering in the
    daytime, G. L. c. 266, § 18; one count of breaking and entering
    in the nighttime, G. L. c. 266, § 16; two counts of larceny over
    $250, G. L. c. 266, § 30; and one count of larceny of $250 or
    less, G. L. c. 266, § 30.   At trial, the Commonwealth produced
    evidence matching the time and location of these crimes to
    historical global positioning system (GPS) location data
    recorded from the GPS monitoring device (GPS device) that was
    attached to the defendant as a condition of his probation.
    Before trial, the defendant had moved to suppress this evidence,
    arguing that the Commonwealth's act of accessing and reviewing
    this GPS location data was an unreasonable search under the
    Fourth Amendment to the United States Constitution and art. 14
    of the Massachusetts Declaration of Rights.   The motion was
    denied.
    On appeal, the defendant claims that (i) the motion judge
    erred in denying his motion to suppress after concluding that
    the Commonwealth did not commit a search in the constitutional
    sense when it accessed the historical GPS location data recorded
    from the defendant's GPS device without a warrant, and (ii) the
    3
    evidence at trial was not sufficient to support the defendant's
    convictions on the charge of breaking and entering in the
    nighttime and one of the charges of larceny over $250.
    For the reasons stated below, we conclude that although the
    original imposition of GPS monitoring as a condition of the
    defendant's probation was a search, it was reasonable in light
    of the defendant's extensive criminal history and willingness to
    recidivate while on probation.    We also conclude that once the
    GPS device was attached to the defendant, he did not possess a
    reasonable expectation of privacy in data targeted by police to
    determine his whereabouts at the times and locations of
    suspected criminal activity that occurred during the
    probationary period.    Accordingly, no subsequent search in the
    constitutional sense under either art. 14 or the Fourth
    Amendment occurred.    Finally, we conclude that the evidence
    introduced at trial was sufficient to support the trial judge's
    finding, beyond a reasonable doubt, that the defendant committed
    the crimes of breaking and entering in the nighttime and both
    charges of larceny over $250.    We therefore affirm the motion
    judge's denial of the motion to suppress and the defendant's
    convictions.1
    1 We   acknowledge the amicus briefs submitted by the
    Committee   for Public Counsel Services and the American Civil
    Liberties   Union of Massachusetts and by the Massachusetts
    Probation   Service.
    4
    Background.   1.   Motion to suppress.   We summarize the
    facts as found by the judge who decided the motion to suppress,
    supplementing those findings with undisputed facts from the
    documentary evidence that was before the motion judge.     See
    Commonwealth v. Monroe, 
    472 Mass. 461
    , 464 (2015).
    In April 2012, the defendant appeared in the District Court
    for a probation violation hearing on four criminal dockets
    stemming from his prior convictions of receipt of stolen
    property and restraining order violations.   The probation
    surrender was based on new charges that included breaking and
    entering and larceny from a building.   After stipulating to the
    probation violation, the defendant asked for an extension of his
    probation subject to the added condition that he wear a GPS
    device on his ankle.   The hearing judge accepted the request and
    ordered an extension of the defendant's probation for an
    additional six months with the added condition of GPS
    monitoring.
    Between May and September 2012, while the defendant was on
    probation and subject to GPS monitoring, several break-ins
    occurred at homes in Hanson, Marshfield, and Pembroke.
    Approximately one year after these break-ins, in September 2013,
    the defendant was arrested near the scene of a separate break-in
    in Randolph.   Randolph police became aware that the defendant
    had at one time been outfitted with a GPS device.    Randolph
    5
    police then contacted a Marshfield police detective and
    suggested that she contact the probation department to review
    the defendant's historical GPS location data records during the
    approximate times of the unsolved break-ins.     Marshfield police
    and probation officers thereafter accessed the defendant's
    historical GPS location data records and cross-referenced his
    location with the times and locations of the break-ins.     They
    discovered that the defendant was at or near the scene of each
    break-in at approximately the same time that each home was
    broken into.   The defendant was then indicted and charged with
    multiple counts of breaking and entering and larceny.
    Before trial, the defendant moved to suppress the
    historical GPS location data, arguing that the Commonwealth's
    act of accessing and reviewing this data without a warrant was
    an unreasonable search in violation of the Fourth Amendment and
    art. 14.   The motion judge concluded that the Commonwealth's
    conduct did not amount to a search in the constitutional sense
    under either the Fourth Amendment or art. 14 and denied the
    defendant's motion.   The case then moved to trial.
    2.     The defendant's trial.   One of the break-ins for which
    the defendant was charged and convicted occurred at a home in
    Marshfield on or about September 1, 2012.    The defendant was
    convicted of breaking and entering the home in the nighttime and
    of larceny over $250.    The defendant now appeals, arguing that
    6
    there was not sufficient evidence to support the two convictions
    related to this break-in.   We recite the facts the trial judge
    could have found with respect to these charges in the light most
    favorable to the Commonwealth, reserving other details for
    discussion when relevant to the issues raised.   Commonwealth v.
    Latimore, 
    378 Mass. 671
    , 676-677 (1979).
    From August 31, 2012, to September 3, 2012, the homeowners
    left their home to visit friends in New Hampshire.     On September
    3, 2012, the homeowners returned home; discovering broken glass
    spread over the floor of their garage, they called local police.
    They soon discovered that several pieces of jewelry,
    approximately $400 in cash, and other sentimental items were
    missing from their home.
    During the August 31 to September 3 time frame, the
    defendant's ankle was affixed with a GPS device as a condition
    of probation.2   Evidence elicited at trial showed that while
    wearing a GPS device, a probationer's location is recorded and
    2 The defendant was regularly supervised by his probation
    officer throughout his probationary period. The probation
    officer testified that there were no indications that the global
    positioning system (GPS) monitoring device had been tampered
    with or was otherwise malfunctioning during the probationary
    period. He further testified that in his experience, he had
    never encountered an issue where a probationer's GPS device
    erroneously recorded his or her location such that the probation
    service's electronic monitoring program system showed that the
    probationer was in a location that he or she had not actually
    been.
    7
    stored by the device once every minute.     This recorded location
    data is then transmitted to the probation service's electronic
    monitoring program (ELMO) system once every hour.     Once the
    location data is uploaded to the ELMO system, it can be accessed
    by probation officers and displayed on electronically generated
    maps to pinpoint the probationer's location on a minute-by-
    minute basis.    If the probationer is stationary or moving slowly
    when his or her location is recorded by the GPS device, a green
    dot will appear on the map.     Because the probationer's location
    is recorded every minute, if a probationer remains stationary
    for more than a few minutes, a cluster of green dots will appear
    on the map.     If the probationer is in motion when his or her
    location is recorded by the device, however, a green arrow will
    appear on the map to indicate the speed and direction of the
    probationer's movement.
    The defendant's GPS device transmitted location data to the
    ELMO system, establishing that he was in the vicinity of the
    home in question on the night of September 1, 2012, and early
    morning of September 2, 2012.     Specifically, a map generated by
    the ELMO system showed several green arrows on the street in
    front of the home, confirming that the defendant was traveling
    on that street at approximately 9:23 and 9:51 P.M. on September
    1.   The map also placed the defendant, represented by a single
    green dot, directly in front of, if not on, the property on
    8
    September 1.    An additional map generated by the ELMO system
    revealed that the defendant was near the home just after
    midnight on September 2, 2012, and showed a cluster of green
    dots directly on and around the home that same day.
    At the close of trial, the judge found the defendant guilty
    of the charges of breaking and entering that home in the
    nighttime and of larceny over $250.      The defendant moved for
    required findings of not guilty on these charges, but was
    denied.   The defendant appealed from this denial, and we granted
    his application for direct appellate review.
    Discussion.      1.   Motion to suppress.   On appeal, the
    defendant challenges the Commonwealth's act of accessing the
    historical GPS location data recorded from his GPS device,
    arguing that the retrieval and review of this data without a
    warrant was an unreasonable search under the Fourth Amendment
    and art. 14.   Ordinarily, in reviewing a ruling on a motion to
    suppress, we accept the motion judge's "subsidiary findings of
    fact absent clear error," but we "review independently the
    application of constitutional principles to the facts found"
    (citation omitted).       Commonwealth v. Mauricio, 
    477 Mass. 588
    ,
    591 (2017).    However, we review any factual "findings of the
    motion judge that were based entirely on the documentary
    evidence" de novo.     Monroe, 472 Mass. at 464, quoting
    Commonwealth v. Thomas, 
    469 Mass. 531
    , 539 (2014).      Because the
    9
    motion judge here conducted a nonevidentiary hearing at which
    the evidence was stipulated, "we are in the same position as the
    motion judge" to assess the documentary evidence put forward by
    the parties.3   Monroe, supra, quoting Thomas, supra at 535 n.4.
    See Commonwealth v. Tremblay, 
    480 Mass. 645
    , 654-655 (2018) ("We
    now affirm the principle that an appellate court may
    independently review documentary evidence, and that lower court
    findings drawn from such evidence are not entitled to
    deference").
    The Fourth Amendment and art. 14 protect individuals from
    "unreasonable searches" and "seizures."   For the protections of
    either the Fourth Amendment or art. 14 to apply, however, the
    Commonwealth's conduct must constitute a search in the
    constitutional sense.   Commonwealth v. Magri, 
    462 Mass. 360
    , 366
    (2012).   In its most traditional form, a search occurs when "the
    Government obtains information by physically intruding on a
    constitutionally protected area" (citation omitted).    Grady v.
    North Carolina, 
    135 S. Ct. 1368
    , 1370 (2015) (per curiam).    A
    search in the constitutional sense may also occur, however,
    "when the government's conduct intrudes on a person's reasonable
    3 The documentary evidence before the motion judge here
    included the factual record that was stipulated to at the
    nonevidentiary hearing, the documents attached to the motion to
    suppress, and the Commonwealth's memorandum in opposition
    thereto, which included an affidavit from the defendant and
    various court and probation records.
    10
    expectation of privacy."   Commonwealth v. Augustine, 
    467 Mass. 230
    , 241 (2014), S.C., 
    470 Mass. 837
     and 
    472 Mass. 448
     (2015).
    See Katz v. United States, 
    389 U.S. 347
    , 361 (1967) (Harlan, J.,
    concurring).   An individual has a reasonable expectation of
    privacy (i) if the individual has "manifested a subjective
    expectation of privacy in the object of the search," and (ii) if
    "society is willing to recognize that expectation as reasonable"
    (citation omitted).   Augustine, supra at 242.   The defendant
    bears the burden of establishing that the governmental conduct
    violated his or her reasonable expectations of privacy.
    Commonwealth v. Miller, 
    475 Mass. 212
    , 219 (2016).
    In the instant case, we must analyze the constitutionality
    of both the initial imposition of GPS monitoring for the
    purposes of probation and the police's subsequent review of the
    historical GPS location data for investigatory purposes after
    the defendant's probationary period had expired.     For the
    reasons set forth infra, we conclude that although the initial
    imposition of the GPS monitoring for probationary purposes was a
    search in the constitutional sense under the Fourth Amendment
    and art. 14, it was a reasonable one.   We also conclude that the
    police's subsequent act of accessing and reviewing the
    historical GPS location data after the defendant's probationary
    period had expired to determine whether he was present at the
    general time and place of particularly identified crimes did not
    11
    constitute a search under either the Fourth Amendment or art.
    14, because the defendant had no reasonable expectation of
    privacy in this data.
    a.   The power and potential of GPS technology.     As
    explained supra, a search in the constitutional sense may occur
    "when the government's conduct intrudes on a person's reasonable
    expectation of privacy."   Augustine, 467 Mass. at 241.      This
    court and the United States Supreme Court have recognized the
    difficulty of defining expectations of privacy that are
    implicated by novel applications of new technologies.     Both
    courts have emphasized, however, that privacy rights cannot be
    left at the "mercy of advancing technology" but rather must be
    preserved and protected as new technologies are adopted and
    applied by law enforcement.   See, e.g., Kyllo v. United States,
    
    533 U.S. 27
    , 35 (2001) (prohibiting law enforcement's
    warrantless use of thermal imaging device to look into home so
    as not to leave privacy rights "at the mercy of advancing
    technology"); Olmstead v. United States, 
    277 U.S. 438
    , 473
    (1928) (Brandeis, J., dissenting) (noting that courts must be
    vigilant to guard against "[s]ubtler and more far-reaching means
    of invading privacy [that] have become available to the
    government"); Augustine, supra at 250-251 (restricting law
    enforcement's use of cell site location information [CSLI] to
    track individuals due to intrusion of privacy interests).      We
    12
    are now tasked with addressing these concerns in the context of
    law enforcement's use of a probationer's GPS location data for
    investigatory purposes.
    As this court and the Supreme Court have held in recent
    years, there is no question that the government's extensive
    collection and examination of personal location data can intrude
    on an individual's reasonable expectation of privacy, at least
    for an individual who is not a probationer.   The Supreme Court
    has emphasized in the Fourth Amendment context that individuals
    have a reasonable expectation of privacy in a detailed
    comprehensive documentation of their physical movements over an
    extended period of time due to the amount of sensitive and
    private information that can be gleaned from this data.
    Carpenter v. United States, 
    138 S. Ct. 2206
    , 2217, 2218 (2018)
    ("individuals have an expectation of privacy in the whole of
    their physical movements").    The same is true under art. 14.
    See Augustine, 467 Mass. at 253; Commonwealth v. Rousseau, 
    465 Mass. 372
    , 382 (2013).    Much less clear, however, is how such
    decisions apply to probationers who have GPS devices attached to
    them as a condition of probation.
    As is the case when an individual carries a cellular
    telephone or has a GPS device attached to his or her vehicle, a
    probationer's precise location is continuously tracked while he
    or she is wearing a GPS device as a condition of probation.       See
    13
    Augustine, 467 Mass. at 253; Rousseau, 465 Mass. at 382.
    Because law enforcement cannot similarly and continually track a
    probationer's location and monitor them in real time, or at
    least do so without extraordinary expense, the historical GPS
    location data gives probation officers and police "access to a
    category of information otherwise unknowable."    Carpenter, 
    138 S. Ct. at 2217-2218
    .    See United States v. Jones, 
    565 U.S. 400
    ,
    415-416 (2012) (Sotomayor, J., concurring).    See also Carpenter,
    
    supra at 2218
     ("With just the click of a button, the Government
    can access . . . [a] deep repository of historical location
    information at practically no expense").     The nature and extent
    of this GPS location data yields a "treasure trove of very
    detailed and extensive information about the individual's
    'comings and goings'" for law enforcement.    Augustine, supra at
    251.   See Jones, 
    supra at 415
     (Sotomayor, J., concurring) ("GPS
    monitoring generates a precise, comprehensive record of a
    person's public movements . . .").    This is particularly true
    where the tracking takes place over a long period of time.
    Augustine, supra at 253 ("when . . . tracking takes place over
    extended periods of time . . . the cumulative nature of the
    information collected implicates a privacy interest on the part
    of the individual who is the target of the tracking").
    In cases of an extended probationary period, the
    Commonwealth is able to collect and archive an enormous volume
    14
    of location data.4    With this location data at its disposal, the
    Commonwealth could conceivably reconstruct a complete mapping of
    a probationer's movements throughout the probationary period if
    it chose to do so.     See Carpenter, 
    138 S. Ct. at 2217
    .   In so
    doing, the Commonwealth would be able to discover an extensive
    amount of sensitive and private information about a
    probationer's life.    See id.; Augustine, 467 Mass. at 248-249.
    As the Supreme Court recently explained in Carpenter, 
    supra at 2217
    , in the context of CSLI, location records "hold for many
    Americans the privacies of life" and "provide[] an intimate
    window into a person's life, revealing not only his [or her]
    particular movements, but through them his [or her] familial,
    political, professional, religious, and sexual associations"
    (quotations and citations omitted).
    With this understanding of the power and the potential of
    this technology, we turn to the particular legal issues
    presented by the attachment of a GPS device to a probationer
    with a lengthy criminal history as a condition of probation, and
    to the subsequent act of accessing and reviewing this location
    data by the police after the expiration of his or her
    probationary period.
    4 In the defendant's case, the probationary period was six
    months.
    15
    b.    Imposition of GPS monitoring as a condition of
    probation.    In 2015, in Grady, the United States Supreme Court
    held that a search under the Fourth Amendment occurs when the
    government "attaches a device to a person's body, without
    consent, for the purpose of tracking that individual's
    movements."    Grady, 
    135 S. Ct. at 1370
    .   There, the Court
    considered the constitutionality of a North Carolina statute
    that required recidivist sex offenders to be subjected to GPS
    monitoring.    
    Id. at 1369
    .   After determining that the GPS
    monitoring was "plainly designed to obtain information," and did
    so by "physically intruding on a subject's body," the Court
    concluded that it was a search under the Fourth Amendment.       
    Id. at 1371
    .    Imposing GPS monitoring as a condition of probation is
    also a search in the constitutional sense under art. 14.
    Commonwealth v. Feliz, 481 Mass.     ,      (2019).   Accordingly,
    the Commonwealth conducted a search of the defendant when the
    GPS monitoring condition was imposed on the defendant in this
    case.5    See Grady, 
    supra at 1371
    ; Feliz, supra.
    5 Neither the defendant nor the Commonwealth addresses
    whether the initial imposition of the GPS monitoring as a
    condition of probation was a search in the constitutional sense
    on appeal. As this initial search is interconnected with the
    subsequent accessing of the data by the police, as both a
    practical and a legal matter, we must analyze both. The record
    on appeal is sufficient to allow us to exercise our discretion
    to address this issue. Mass. R. A. P. 16 (a) (9) (A), as
    appearing in 
    481 Mass. 1628
     (2019). See Canter v. Commissioner
    of Pub. Welfare, 
    423 Mass. 425
    , 432 (1996).
    16
    As the Grady Court also explained, such a search is
    constitutional only if it was reasonable.          Grady, 
    135 S. Ct. at 1371
    .   See Feliz, 481 Mass. at         ; Commonwealth v. Entwistle,
    
    463 Mass. 205
    , 213 (2012), cert. denied, 
    568 U.S. 1129
     (2013)
    ("the ultimate touchstone of . . . art. 14 is reasonableness"
    [quotation and citation omitted]).         Article 14 requires an
    "individualized determination" of the reasonableness of
    subjecting a defendant to GPS monitoring as a condition of
    probation.   Feliz, supra at       .       In making this determination,
    courts must balance "the Commonwealth's need to impose GPS
    monitoring against the privacy invasion occasioned by such
    monitoring."   Feliz, supra at         .    See Grady, 
    supra.
       Courts
    may consider a "constellation of factors," including, among
    others, the intrusiveness of the search; the defendant's
    particular circumstances, such as his or her criminal
    convictions, past probation violations, or risk of recidivism;
    and the probationary purposes, if any, for which the monitoring
    was imposed.   Feliz, supra at         (analyzing goals of probation
    and defendant's likelihood to recidivate in balancing test).
    See Grady, 
    supra
     (noting that reasonableness depends on "the
    totality of the circumstances").       No single factor, however, is
    dispositive in every case.     Feliz, supra at         .
    Prior to the imposition of GPS monitoring as a condition of
    his probation, the defendant in this case was on probation for
    17
    several convictions, including receiving stolen property and
    restraining order violations.    The defendant thereafter violated
    his probation when he was charged with breaking and entering in
    the nighttime and larceny from a building.     At the probation
    violation hearing, the defendant stipulated to the violations
    and requested that he be subject to GPS monitoring in an effort
    to avoid incarceration.   The judge extended his probation for
    six months and ordered the GPS monitoring.     At the hearing, the
    judge was clearly concerned about the defendant's likelihood to
    recidivate in the future.     Specifically, the judge ordered the
    defendant to be held pending the installation of the GPS device
    to his ankle because the judge was "not comfortable" releasing
    the defendant to the public until it was determined when he
    could be "hooked up" with the GPS device and tracked.
    In light of the defendant's criminal convictions, and past
    probation violations, the record makes clear that GPS monitoring
    was imposed on the defendant for the legitimate probationary
    purposes that this court and the Supreme Court have previously
    identified.   See United States v. Knights, 
    534 U.S. 112
    , 120-121
    (2001); Feliz, 481 Mass. at       ; Commonwealth v. Lapointe, 
    435 Mass. 455
    , 459 (2001).    These include deterring the probationer
    from engaging in criminal activity and detecting such criminal
    activity if it occurs.    See Knights, 
    supra;
     Lapointe, supra;
    Commonwealth v. Power, 
    420 Mass. 410
    , 415 (1995), cert. denied,
    18
    
    516 U.S. 1042
     (1996).     Although we have recognized that the
    imposition of GPS monitoring as a condition of probation
    significantly burdens a probationer's liberty, Feliz, supra
    at       , we conclude that the intrusiveness of the GPS monitoring
    condition imposed on the defendant-probationer's already
    diminished privacy expectations6 was outweighed by the
    governmental interests served by such monitoring, including but
    not limited to the deterrence and detection of criminal activity
    during the probationary period.     Accordingly, the defendant's
    particular circumstances rendered the imposition of GPS
    monitoring as a condition of his probation for six months
    reasonable under the Fourth Amendment and art. 14.     Cf. Belleau
    v. Wall, 
    811 F.3d 929
    , 936-937 (7th Cir. 2016) (mandatory
    imposition of GPS monitoring for probationer pursuant to statute
    reasonable where defendant was recidivist sex offender).
    Contrast Feliz, supra at        (GPS monitoring condition
    unreasonable in defendant's particular circumstances where,
    among other factors, Commonwealth presented insufficient
    evidence that defendant posed threat of "reoffending, or
    otherwise of violating the terms of his probation").
    6 Both this court and the United States Supreme Court have
    previously recognized that a probationer has a diminished
    expectation of privacy. See United States v. Knights, 
    534 U.S. 112
    , 119 (2001); Commonwealth v. Moore, 
    473 Mass. 481
    , 485
    (2016). See also part 2.c.ii, infra (discussing diminished
    expectations of privacy held by probationers).
    19
    c.   Law enforcement's subsequent access to historical GPS
    location data.   Having found the condition of probation
    subjecting the defendant to GPS monitoring for six months to be
    a reasonable search, we next address the constitutionality of
    the Commonwealth's subsequent act of accessing the historical
    GPS location data recorded from the defendant's GPS device.     The
    Commonwealth's retrieval and review of this historical data
    requires a separate constitutional inquiry under the Fourth
    Amendment and art. 14 because it was conducted by the police,
    not the probation service, for investigatory, rather than
    probationary, reasons.    It was also conducted after the
    defendant's probationary period had ended.
    This type of governmental conduct is distinct from the
    periodic review of a probationer's GPS location by probation
    officials.   The decision to review the GPS location data was
    not, for example, the result of the defendant entering an
    exclusionary zone, which would trigger an alert to a probation
    official.    Nor was this a review of the defendant's location by
    a probation official to ensure compliance with any of the
    defendant's other conditions of probation.    Rather, the review
    here was undertaken on the basis of law enforcement's hunch that
    the defendant may have been responsible for various unsolved
    housebreaks that took place in the preceding months.
    Accordingly, it requires a separate constitutional analysis.
    20
    i.   Subjective expectation of privacy.    To claim a
    reasonable expectation of privacy, the defendant must first
    "manifest[] a subjective expectation of privacy in the object of
    the search" (citation omitted).    Augustine, 467 Mass. at 242.
    The defendant here requested and agreed to the GPS monitoring as
    a condition of his probation.     He also averred in his affidavit
    in support of his motion to suppress that he was told that "the
    purpose of the GPS bracelet was to ensure that [he] did not
    enter any exclusionary zones."7    At minimum, the defendant knew
    that he was subject to GPS monitoring and that his location
    could be broadcast to probation officials under certain
    circumstances.8
    7 As previously explained, the defendant was subjected to
    GPS monitoring following a probation violation hearing on four
    criminal dockets, including two restraining order violations.
    It is not clear from the record, however, that the defendant's
    probationary conditions, at least in this case, included any
    exclusionary zones. Indeed, the probation violation hearing and
    the order of probation conditions make no mention of any
    exclusionary zones, other than a handwritten notation on the
    order stating "No abuse of J." The section of the order dealing
    with "stay away" provisions was left blank. It does appear,
    however, that the defendant was at one point subjected to an
    exclusionary zone for a separate probationary term. See
    Commonwealth v. Johnson, 
    91 Mass. App. Ct. 296
    , 298 (2017).
    8 We note, however, that the defendant's probation records
    fail to detail the extent of the GPS monitoring or explain the
    purposes for which the GPS location data would be recorded,
    retained, and used by law enforcement, including after his
    probationary period. Rather, these probation records merely
    note that the defendant would be subjected to GPS monitoring
    generally. For instance, the order of probation conditions,
    which was signed by the defendant, simply includes the
    21
    What the defendant subjectively understood his expectation
    of privacy to be while wearing the GPS device in this case is
    not perfectly clear.     Whether he could plausibly argue that he
    did not understand that the purpose of the GPS device was to
    deter and detect his uninvited presence in other people's homes
    is not worth belaboring, however, as we conclude that he could
    have no objectively reasonable expectation of privacy in the
    historical GPS location data that was accessed and used by the
    Commonwealth here.
    ii.    Objective expectation of privacy.    Even assuming that
    the defendant had a subjective expectation of privacy, the
    expectation must be one that society is willing to recognize as
    reasonable for the protections of the Fourth Amendment and art.
    14 to apply.   Augustine, 467 Mass. at 242.    The defendant's
    status as a probationer is "salient" to this evaluation.
    Commonwealth v. Moore, 
    473 Mass. 481
    , 485 (2016).     See Knights,
    
    534 U.S. at 119
    .     By virtue of being on probation, a probationer
    is subject to regular government supervision and thus can
    neither enjoy the same amount of liberty nor reasonably expect
    the same amount of privacy as an ordinary citizen.    See Knights,
    
    supra.
        Accordingly, this court and the Supreme Court have
    recognized that, although probationers do not give up all
    sentencing judge's handwritten notation, "GPS 6 Mo[nths]," as a
    special condition of probation.
    22
    expectations of privacy while on probation, their expectations
    are significantly diminished.    See id.; Moore, supra.
    The defendant here was of course not just on probation; he
    was on probation with the added condition of GPS monitoring
    because he had stipulated to violating his original sentence of
    probation after he was charged with breaking and entering and
    larceny while on probation.     The defendant was thus on notice
    that GPS monitoring was imposed as a result of the defendant's
    criminal activity while on probation and the judge's concern
    over the defendant's demonstrated risk of recidivism.       Any such
    defendant-probationer would therefore objectively understand
    that his or her person and movements were being recorded by the
    GPS device and monitored by the Commonwealth to ensure
    compliance with probationary conditions and to deter him or her
    from committing future crimes while wearing the GPS device.
    This understanding further diminished any objective expectation
    of privacy he might have had in his whereabouts, at least during
    the probationary period.   Knights, 
    534 U.S. at 119-120
     (privacy
    expectations diminished where probationer aware of condition of
    probation subjecting him to government monitoring).       As the
    dissent appropriately recognizes, the defendant's subsequent
    decision to break and enter peoples' homes while wearing the GPS
    device in these circumstances took tremendous "chutzpah."          Post
    at   .
    23
    The Legislature has also provided for police access to
    probation information in G. L. c. 276, § 90, which states, in
    pertinent part, that a probation officer's records may "at all
    times be inspected by police officials of the towns of the
    commonwealth."       G. L. c. 276, § 90.   The statute thus provides
    an express, and apparently unlimited, authorization for law
    enforcement to review probation records, including the
    historical GPS location data recorded from a probationer's GPS
    device.    See id.     See also G. L. c. 276, § 100.   The motion
    judge principally relied on this statute in reaching his
    conclusion that the defendant did not have an objectively
    reasonable expectation of privacy in the GPS location data
    recorded from the GPS device.       The Commonwealth similarly argues
    that because the Legislature has authorized the police to
    inspect a probationer's records, the probationer has no
    objective expectation of privacy in any information contained
    therein.   Although the statute informs our analysis of the
    objective expectation of privacy probationers may have in the
    GPS location data recorded from their GPS devices, it does not
    end our inquiry.       We must, as always, provide an independent
    review of the constitutionality of the governmental conduct that
    is authorized by statute.       Commonwealth v. Blood, 
    400 Mass. 61
    ,
    75 (1987) ("the historic fact of the Legislature's choice does
    24
    not relieve us of our constitutional obligation to review the
    validity of a search . . . in light of art. 14").9
    The defendant contends that the Commonwealth's retrieval
    and review of the historical GPS location data intruded on his
    objective expectation of privacy because the Commonwealth
    accessed a broad and extensive accumulation of location data
    that spanned a period of several months.   Analogizing his
    circumstances to those present in recent cases involving
    governmental use of location records outside the probation
    context, such as CSLI, the defendant argues that in accessing
    the GPS location data recorded from his GPS device, the
    Commonwealth was exposed to an enormous amount of sensitive
    information that could provide an "intimate window" into his
    9 General Laws c. 276, § 90, was enacted in 1880 and was
    last amended in 1938. G. L. c. 276, § 90, as amended through
    St. 1938, c. 174, § 3. See St. 1880, c. 129, §§ 1, 5. The
    state of technology at the time meant that the enacting
    Legislature had no opportunity to evaluate the privacy interests
    that may now be implicated by the recording and storing of long-
    term historical GPS location data. See Commonwealth v.
    Augustine, 
    467 Mass. 230
    , 245 (2014), S.C., 
    472 Mass. 448
     (2015)
    ("the digital age has altered dramatically the societal
    landscape"). See also United States v. Jones, 
    565 U.S. 400
    , 415
    (2012) (Sotomayor, J., concurring) ("the same technological
    advances that have made possible [law enforcement's]
    nontrespassory surveillance techniques will . . . shap[e] the
    evolution of societal privacy expectations"). As stated supra,
    we must reconsider older statutes in light of new technologies
    to ensure that privacy rights are not left at "the mercy of
    advancing technology." Kyllo v. United States, 
    533 U.S. 27
    , 35
    (2001). See Olmstead v. United States, 
    277 U.S. 438
    , 473 (1928)
    (Brandeis, J., dissenting); Augustine, supra at 250-251.
    25
    life.     See Carpenter, 
    138 S. Ct. at 2217-2218
    .   We recognize and
    respect the significant privacy concerns raised by the
    continuous recording, collection, and accumulation of location
    data described by the defendant.      See id.; Augustine, 467 Mass.
    at 251-253.      That being said, our task is to determine whether
    an individual's expectation of privacy is one that society is
    willing to recognize as reasonable.      Augustine, supra at 242.
    There is no question that the reasonableness of any expectations
    of privacy held by a probationer knowingly subject to GPS
    monitoring as a condition of probation is far different from the
    reasonableness of the expectations of privacy held by
    individuals who are surreptitiously tracked by law enforcement.10
    As explained supra, the defendant was subjected to GPS
    monitoring after he stipulated to having been charged with
    engaging in criminal activity while serving his original
    probation sentence.      Under these circumstances, a probationer
    subject to GPS monitoring as a condition of probation would
    certainly objectively understand that his or her location would
    be recorded and monitored to determine compliance with the
    conditions of probation, including whether he or she had engaged
    in additional criminal activity, to deter the commission of such
    offenses, and that police would have access to this location
    10     The dissent minimizes this important distinction.   Post
    at      .
    26
    information for that purpose.11    General Laws c. 276, § 90, which
    serves the legitimate, even compelling, governmental purpose of
    detecting and determining whether a probationer engaged in
    criminal activity during the probationary period, confirms that
    objective understanding by expressly providing for police access
    to this data.   This governmental interest in detecting and
    determining whether a probationer had engaged in criminal
    activity during his probationary period does not disappear once
    the probationary period ends.     Indeed, criminal activity that
    occurred during the probationary period is of particular concern
    to the Commonwealth, as it reflects the recidivist nature of the
    probationer.    This is true regardless of whether the criminal
    activity is detected during or after the probationary period.
    Accordingly, as opposed to nonprobationers who have their GPS,
    CSLI, or other precise location information recorded and
    reviewed by law enforcement without their knowledge, the
    defendant could not reasonably expect that his whereabouts while
    subject to GPS monitoring, particularly his whereabouts at the
    time and place of criminal activity, would remain private from
    11As explained supra, the dissent appears to acknowledge
    this point to some extent, characterizing the defendant's
    willingness to break into homes while wearing a GPS monitoring
    device as a condition of probation as a "jaw-dropping act of
    audacity." Post at     .
    27
    government eyes.12   The defendant therefore could have no
    reasonable expectation of privacy in the data accessed by the
    police here to target criminal activity during the probationary
    period, even where the data was accessed after the probationary
    period ended.13
    Moreover, the Commonwealth's conduct did not amount to the
    same type of conduct we have identified in other contexts as
    intruding on an individual's reasonable expectation of privacy
    12We do not, as the dissent argues, suggest that a
    defendant "forfeits his [or her] expectation of privacy" upon
    notice of government surveillance. Post at note 4. Although
    notice is a relevant consideration, see Matter of a Grand Jury
    Subpoena, 
    454 Mass. 685
    , 689 (2009), we are in no way saying
    that it is dispositive. Whether notice of surveillance is given
    or not, the controlling question remains whether the expectation
    of privacy is one that society would call reasonable. See
    Hudson v. Palmer, 
    468 U.S. 517
    , 525 n.7 (1984). Here, as
    explained supra, we conclude that it is not.
    13The dissent argues that whatever diminished expectation
    of privacy the defendant had in the GPS data during probation
    "would have changed the day he completed his sentence." Post
    at    . On that day, according to the dissent, he was not only
    no longer on probation, but he recovered an undiminished right
    to privacy in this data retroactively, as if he had never been
    on probation. This is incorrect. As explained supra, the
    principal purposes of the original imposition of GPS monitoring
    as a condition of probation are to rehabilitate the defendant,
    deter and detect criminal activity, and protect the public.
    Society would not consider it reasonable for a probationer to
    expect that evidence that he or she committed crimes during the
    probationary period could not be shared with law enforcement,
    even after the probationary period had ended, to determine
    whether he or she did in fact commit the crimes. Cf. Matter of
    a Grand Jury Subpoena, 454 Mass. at 689 n.6 (prison officials
    permitted to share recordings of inmate telephone calls with law
    enforcement).
    28
    in his or her whereabouts.   See Augustine, 467 Mass. at 253
    (CSLI); Rousseau, 465 Mass. at 382 (GPS tracking of motor
    vehicle).   The record does not describe law enforcement engaged
    in an effort to map out and analyze all of the defendant's
    movements over the six-month probationary period.   Nor does the
    Commonwealth appear to have, as the defendant argues on appeal,
    "rummaged through five months' worth of . . . locational data to
    find and trace every move [the defendant] made" during his
    probationary period.   Rather, as the defendant recognized in his
    motion to suppress, the Commonwealth reviewed the defendant's
    historical GPS location data to determine whether he was present
    at the general times and locations when various unsolved break-
    ins may have occurred.14   This is corroborated by the motion to
    14The dissent disputes this. Post at     . Citing "the
    uncontroverted statements in the defendant's memorandum in
    support of his motion to suppress," the dissent argues that the
    defendant's minute-by-minute movements over a period of months
    were reviewed by law enforcement. Id. at     . This, the
    dissent argues, surely intruded on the defendant's reasonable
    expectation of privacy. Although the motion judge's findings of
    fact on this issue do not make this point clear, the dissent
    overstates the record in this case. Indeed, by the defendant's
    very own uncontroverted admission in his motion to suppress, the
    Commonwealth examined the defendant's location "at certain times
    [on] certain days" to determine if he was at the location of
    known criminal activity. Recognizing that the record does not
    support its position, the dissent looks to information outside
    of the record. Specifically, the dissent cites to an exhibit
    entered in evidence at trial and a summary of the trial
    testimony of a probation official of her conduct in a separate
    case as support for an inference that law enforcement intruded
    upon a reasonable expectation of privacy. This information,
    29
    suppress record, which appears to show that the GPS location
    data actually accessed and reviewed by the Commonwealth was
    targeted to the task at hand.   The record before the motion
    judge, and provided to us on appeal, thus describes law
    enforcement accessing and analyzing the defendant's GPS location
    data with respect to the general times and locations of
    suspected criminal activity, particularly unsolved break-ins in
    however, was not before the motion judge when he considered the
    defendant's motion to suppress.
    It is well established that in reviewing a denial of a
    motion to suppress, an appellate court may not consider evidence
    outside the factual record that was put before the motion judge.
    See Commonwealth v. Rivera, 
    441 Mass. 358
    , 367 (2004) ("Evidence
    adduced at trial but not before the motion judge . . . cannot be
    determinative of the propriety of the motion judge's decision"
    [citation omitted]); Commonwealth v. Taylor, 
    383 Mass. 272
    , 280
    n.9 (1981) ("we must judge the motion to suppress solely on the
    record made at the suppression hearing"); Commonwealth v.
    Wojcik, 
    358 Mass. 623
    , 631 (1971) ("Statements in a brief or
    oral argument cannot be used as a means of placing before this
    court any facts which are not included in the record on
    appeal"). Accordingly, we may not properly consider this
    information on appeal. Even had it been included in the record,
    much of the evidence cited by the dissent was not provided to us
    on appeal. See Chokel v. Genzyme Corp., 
    449 Mass. 272
    , 279
    (2007) ("It is [the appellant's] obligation to include in the
    record appendix any documents on which he [or she]
    relies . . . . When a party fails to include a document in the
    record appendix, an appellate court is not required to look
    beyond that appendix to consider the missing document"). The
    defendant had the burden of proving that the Commonwealth's
    conduct violated a reasonable expectation of privacy.
    Commonwealth v. Miller, 
    475 Mass. 212
    , 219 (2016). The
    defendant here failed to meet this burden with the record as it
    existed before the motion judge. An appellate court cannot
    relitigate a motion to suppress on his behalf with materials
    outside the record.
    30
    Hanson, Marshfield, and Pembroke.    Simply comparing subsets of
    the defendant's GPS location data recorded while he was on
    probation to the general times and places of suspected criminal
    activity during the probationary period is not a search in the
    constitutional sense.   At least in other contexts, society has
    not recognized a probationer's purported expectation of privacy
    in information that identifies his or her presence at the scene
    of a crime as a reasonable one.     Cf. Commonwealth v. Arzola, 
    470 Mass. 809
    , 816, 820 (2015), cert. denied, 
    136 S. Ct. 792
     (2016)
    (deoxyribonucleic acid [DNA] analysis of bloodstain found on
    defendant's shirt did not amount to search because Commonwealth
    performed narrow analysis that avoided "reveal[ing] more
    information than the identity of the source"); Boroian v.
    Mueller, 
    616 F.3d 60
    , 67-68 (1st Cir. 2010) (retention and
    subsequent use of DNA profiles only to match against other
    profiles in criminal database after probationary period expired
    did not "violate an expectation of privacy that society is
    prepared to recognize as reasonable").
    We also understand that even a targeted review of GPS data
    directed at times and locations of suspected criminal activity
    during a probationary period will likely expose the police to
    some other information concerning the defendant's whereabouts
    during the relevant time periods.    Cf. Knights, 
    534 U.S. at
    119-
    121 (discussing diminished expectations of privacy held by
    31
    probationers).   This is, however, quite different from either
    mapping out and reviewing all of the defendant's movements
    while on probation or rummaging through the defendant's
    historical GPS location data indiscriminately.   So long as the
    review is targeted at identifying the defendant's presence at
    the time and location of particular criminal activity during the
    probationary period, it is not a search, as such review is
    consistent with a probationer's limited expectations of privacy.
    See 
    id.
       Police action necessary to deter and detect criminal
    activity during the probationary period is reasonably expected.
    See G. L. c. 276, § 90.
    In sum, this case is not, as the defendant argues, one in
    which the police, after his probation had expired, mapped out
    months of the defendant's historical GPS location data in a
    coordinated effort to recreate a full mosaic of his personal
    life, over an extended and unnecessary period of time, that
    would have revealed, in the words of the United States Supreme
    Court, "not only his particular movements, but through them his
    [or her] familial, political, professional, religious, and
    sexual associations" (quotation and citation omitted).
    Carpenter, 
    138 S. Ct. at 2217
    .   Nor it is a case of
    indiscriminate rummaging through six months of data.     Those
    circumstances might raise different, more difficult
    constitutional questions about objective expectations of
    32
    privacy, even for a probationer subjected to GPS monitoring.     We
    need not, and do not, decide that question today.   According to
    the record before the motion judge, the police here instead
    targeted their analysis to whether the defendant -- a
    probationer with significantly diminished expectations of
    privacy in his whereabouts while on probation -- was present at
    the general times and locations of crimes committed during his
    probationary period.   Such a review of the probationer's GPS
    location data, even if it may have revealed the presence of some
    lawful activities, did not intrude on any privacy expectations
    that society would be willing to recognize as reasonable.
    Accordingly, on the record put before the motion judge, the
    defendant has failed to make a showing that the Commonwealth
    intruded on any reasonable expectation of privacy he might have
    had in this data once the GPS was imposed as a condition of
    probation.   The Commonwealth therefore did not commit a search
    in the constitutional sense under the Fourth Amendment or art.
    14 when the police accessed this data after his probationary
    period expired.
    2.   Sufficiency of the evidence.   The defendant also argues
    that the trial judge erred in denying his motion for required
    findings of not guilty on the counts of breaking and entering in
    the nighttime and larceny over $250 that arose from the break-in
    in Marshfield on or about September 1, 2012.   Specifically, the
    33
    defendant argues that the GPS location data introduced at trial
    only placed him in the vicinity of, but not inside, the home in
    question on September 1, 2012.     Accordingly, he argues, the
    evidence put forth at trial was speculative and therefore not
    sufficient to prove beyond a reasonable doubt that he ever broke
    into and entered the home.    We disagree.
    In reviewing the denial of a motion for a required finding
    of not guilty, we must determine whether the evidence, when
    "viewed in the light most favorable to the Commonwealth and
    drawing all inferences in favor of the Commonwealth, would
    permit a rational [trier of fact] to find each essential element
    of the crime beyond a reasonable doubt."      Commonwealth v. Merry,
    
    453 Mass. 653
    , 660 (2009), citing Latimore, 
    378 Mass. at
    676–
    677.    "While the inferences drawn must be reasonable, they need
    not be necessary or inescapable" (quotation and citation
    omitted).   Merry, supra at 661.    The evidence would not be
    sufficient to convict the defendant of a charged crime, however,
    "if it requires piling inference upon inference, or requires
    conjecture and speculation" (quotations and citation omitted).
    Id.
    General Laws c. 266, § 16, provides:   "Whoever, in the
    night time, breaks and enters a building . . . with intent to
    commit a felony . . . shall be punished by imprisonment in the
    state prison for not more than twenty years or in a jail or
    34
    house of correction for not more than two and one-half years."
    The element of "break[ing]" is not defined by the statute, but
    has "long been understood to include all actions violating the
    common security of a dwelling," including "obvious intrusions
    into locked areas," "lifting a latch and opening the door,"
    "shoving up a window," and moving "to a material degree
    something that barred the way" (quotations and citations
    omitted).   Commonwealth v. Burke, 
    392 Mass. 688
    , 689–690 (1984).
    The element of "enter[ing]" is similarly not defined by the
    statute, but has traditionally been interpreted as constituting
    "any intrusion into a protected enclosure by any part of a
    defendant's body."   Commonwealth v. Stokes, 
    440 Mass. 741
    , 748
    (2004), quoting Burke, 
    supra at 690
    .
    Here, the evidence at trial showed that the homeowners were
    away from their home from August 31 to September 3, 2012.     At no
    time did the homeowners grant the defendant permission to enter
    their home.   When they returned home, they discovered that
    broken glass was spread on the floor of their garage.     They
    later discovered that cash, jewelry, and sentimental items were
    missing from their home.   The value of the missing items
    exceeded $250.
    At the time of the break-in, the defendant had been wearing
    a GPS device as a condition of probation.   The device recorded
    the defendant's location every minute while he was wearing it
    35
    and uploaded this data to the ELMO system once every hour.
    There was no evidence that the defendant's GPS device was
    inaccurate or had been malfunctioning in any way during his six-
    month probationary period.   The defendant's GPS device
    transferred location data to the ELMO system that placed the
    defendant in and around the home on the evening of September 1
    and the very early morning of September 2.
    At trial, the Commonwealth introduced this evidence through
    a collection of screenshots of maps that were electronically
    generated by the ELMO system.15   In these maps, the defendant's
    location was represented by either a green dot or a green arrow,
    depending on the defendant's speed of movement at the time his
    location was recorded by his GPS device.     One of these maps
    clearly showed that as of approximately 9:23 and 9:51 P.M. on
    the night of September 1, the defendant was traveling on the
    street on which the home is located.   Another map showed that
    the defendant was stationary on the street directly in front of,
    if not on, the property on September 1.    A second set of maps
    subsequently confirmed that the defendant was steps away from
    the property at 12:03 A.M. on September 2.     These maps also
    15The defendant did not object to the admissibility of
    these records or to the purpose for which they were being
    offered by the Commonwealth. The defendant did, however, object
    to their introduction to preserve his appeal from the denial of
    his motion to suppress them.
    36
    showed several green dots located around, and indeed directly
    on, the home at various times on September 2.
    The defendant argues that this evidence was not sufficient
    under Latimore to convict him of breaking and entering because
    the GPS location data could not definitively prove that he ever
    entered the home.    Rather, the defendant argues, these maps
    merely place him "in the general vicinity of [the home], but not
    on the property itself," and that accordingly, the
    Commonwealth's evidence only proved that he had the "opportunity
    to commit the charged crime[s]."    The defendant overlooks the
    evidence of his location on the early morning of September 2
    that was properly admitted at trial.    This evidence placed the
    defendant directly on the property for several minutes.      With
    all of this evidence in hand, any rational trier of fact could
    have reasonably inferred that the defendant broke and entered
    the home on or about September 1 and committed larceny over
    $250.   Accordingly, we conclude that there was sufficient
    evidence, when "viewed in the light most favorable to the
    Commonwealth" and taken together with the reasonable inferences
    drawn therefrom, to support the trial judge's conclusions that
    the defendant broke and entered the home on or about September 1
    with the intent to commit a felony and stole items valued in
    excess of $250.     Merry, 453 Mass. at 660.   We therefore affirm
    the defendant's convictions.
    37
    Conclusion.   For these reasons, we affirm the denial of the
    defendant's motion to suppress and the defendant's convictions
    of breaking and entering in the nighttime under G. L. c. 266,
    § 16, and larceny over $250 under G. L. c. 266, § 30.
    So ordered.
    LENK, J. (dissenting).    As is hardly unusual with motions
    to suppress, the police hunch here proved to be quite right:
    the defendant was indeed involved in a series of unsolved
    breaking and entering cases.    From April to September 2012, the
    defendant wore a global positioning system (GPS) device; it had
    been attached to his ankle at his request, in order that he
    remain on probation after he acknowledged that he had violated
    his terms of probation.    While wearing the device, he
    nonetheless committed a series of break-ins in Hanson,
    Mansfield, and Pembroke.    The break-ins went undetected at the
    time, and the defendant was released from probation.
    Approximately ten months later, in July 2013, the defendant
    again found himself subject to GPS monitoring, this time as a
    condition of pretrial release in connection with charges
    stemming from an incident of domestic violence in a different
    county.    See Commonwealth v. Johnson, 
    91 Mass. App. Ct. 296
    , 297
    (2017).1   In yet another jaw-dropping act of audacity, while
    wearing the second GPS device, he committed a breaking and
    entering in the West Roxbury section of Boston in August 2013.
    1 In Commonwealth v. Johnson, 
    91 Mass. App. Ct. 296
     (2017),
    this same defendant appealed from the denial of his motion to
    suppress a search of his 2013 global positioning system (GPS)
    data during the investigation of the 2013 break-in for which he
    had been arrested. The case now before the court concerns a
    different search, conducted around the same time, of the
    defendant's 2012 GPS records that were collected during a period
    of probationary supervision.
    2
    In September 2013, the defendant was arrested in Randolph near
    the scene of a separate break-in.
    It is as a result of this arrest, approximately one year
    after the termination of the defendant's probation, that
    Marshfield police sought to determine whether he had been
    involved in ten unsolved break-ins that occurred between May and
    September 2012.       To that end, the government began its
    warrantless search of the defendant's year old GPS data
    collected during his 2012 probationary period.       It is this
    search, acknowledged by the court to have been based on no more
    than a police hunch, that the defendant urges be suppressed.
    See ante at       .    While his acts are chutzpah on stilts, I am
    constrained to agree with the defendant:       our jurisprudence
    requires suppression.       Consistent with our case law, the
    government needed a warrant before conducting its search of
    historical GPS records at a time when the defendant was not a
    probationer.
    I do not disagree with the court that there is sufficient
    evidence to support the defendant's convictions.       Nor do I
    disagree that the Commonwealth is entitled to accumulate
    location records of individuals whose GPS coordinates are
    monitored by the probation department, and that it may maintain
    a copy of those records even after termination of the
    individual's probationary supervision.       As evidenced here, such
    3
    records later may prove useful.   But the court's decision today
    has an impact on not only this defendant but, at a minimum, all
    individuals who have ever worn a GPS device while on probation.
    Where my reasoning diverges from that of my colleagues is
    with respect to the level of judicial oversight required
    whenever the Commonwealth seeks to search the location history
    of an individual who once was -- but, at the time of the search,
    is not -- a probationer.2   The court today determines that no
    judicial oversight of any kind is necessary.   Because, in my
    view, art. 14 of the Massachusetts Declaration of Rights and the
    2 At the time police examined his GPS data, in the fall of
    2013, the defendant had been arrested in connection with a
    break-in in West Roxbury. An individual's status as a pretrial
    detainee, however, does not permit a warrantless search of that
    individual's historical location information. See Commonwealth
    v. Broom, 
    474 Mass. 486
    , 491-492 (2016) (warrant supported by
    probable cause required to access defendant's historical cell
    site location information [CSLI] subsequent to arrest). Cf.
    Riley v. California, 
    573 U.S. 373
    , 401 (2014) (requiring search
    warrant to access contents of cellular telephone while defendant
    was held pretrial); Shipley v. California, 
    395 U.S. 818
    , 820
    (1969) (requiring warrant to search defendant's house after
    defendant was arrested outside house). The narrow "search
    incident to arrest" exception, which permits some warrantless
    searches when detainees first enter custody, is inapplicable
    here. See Preston v. United States, 
    376 U.S. 364
    , 367 (1964)
    ("Once an accused is under arrest and in custody, then a search
    made at another place, without a warrant, is simply not incident
    to the arrest"). Constitutional protections are in full force
    during pretrial detention. Cf. Miranda v. Arizona, 
    384 U.S. 436
    , 444-445 (1966) (defendant retains right to remain silent
    under Fifth Amendment to United States Constitution throughout
    duration of custody).
    4
    Fourth Amendment to the United States Constitution require more,
    I respectfully dissent.
    Two relevant time periods.      The court is correct to
    separate this case into two moments of constitutional analysis:
    "the initial imposition of GPS monitoring for the purposes of
    probation," on the one hand, and the "subsequent review of the
    historical GPS location data for investigatory purposes after
    the defendant's probationary period had expired," on the other.
    Ante at     .   The court determines, and I agree, that the
    attachment of the GPS device in April 2012, at the defendant's
    own request, was a search, and that the search was lawful here.
    See Grady v. North Carolina, 
    135 S. Ct. 1368
    , 1371 (2015)
    (electronic monitoring by physical bodily intrusion is search);
    Commonwealth v. Feliz, 481 Mass.       ,     (2019) (reviewing
    court must balance government interests in imposing GPS
    monitoring against defendant's reasonable expectation of
    privacy).     That lawful intrusion continued until September 2012,
    when the GPS device was removed and probationary supervision was
    terminated.     Approximately one year later, police sought to
    reexamine the defendant's old GPS records.     It is at that point,
    after the completion of probation, that the court fails to
    consider the defendant's actual and reasonable expectation of
    privacy with respect to the history of his movements.     See
    Commonwealth v. Augustine, 
    467 Mass. 230
    , 242 (2014), S.C., 470
    
    5 Mass. 837
     and 
    472 Mass. 448
     (2015) (search occurs when
    government intrudes on actual and reasonable expectation of
    privacy).
    It is not implausible that, as the defendant asserts, once
    he was released from probation and the GPS device was removed
    from his ankle, he came to believe that the police could not
    "access [his] GPS data without a warrant."     The defendant states
    that he had been ordered to wear the GPS monitor "as a condition
    of [his] Probation" and was "told that the purpose of the GPS
    bracelet was to ensure that [he] did not enter any exclusionary
    zones."     Upon the successful completion of probation and the
    removal of the monitoring device, such insurance no longer was
    necessary, and the defendant received no indication that his
    location history would continue to be examined.
    The more significant question, and the one to which the
    court devotes the majority of its discussion, is whether an
    individual reasonably may expect his or her location history to
    become private after the probation department no longer requires
    it for the purposes of monitoring the individual's progress as a
    probationer.     To answer that question, we must turn to our
    jurisprudence regarding the expectations of privacy that
    individuals maintain in their historical location information.3
    3 Without citation to any authority, the court insists, by
    ipse dixit, that the "governmental interest in detecting and
    6
    Historical location information.    "[U]nder art. 14, a
    person may reasonably expect not to be subjected to extended GPS
    electronic surveillance by the government, targeted at his
    movements, without judicial oversight and a showing of probable
    cause."   Augustine, 467 Mass. at 248, quoting Commonwealth v.
    Rousseau, 
    465 Mass. 372
    , 382 (2013).   This court has recognized
    that the history of an individual's movements, over a
    sufficiently lengthy period of time, reveals a great number of
    personal details.   When the government learns where people have
    been, it learns
    determining whether a probationer had engaged in criminal
    activity during his probationary period does not disappear once
    the probationary period ends." Ante at      . It is not clear
    why this would be the case; after the termination of the
    probationary period, probation no longer can be revoked for a
    violation of probation. At that point, the only interest in
    conducting the search would be to detect ordinary criminal
    wrongdoing. Although "there are instances in which we have
    permitted searches without individualized suspicion, '[i]n none
    of these cases . . . did we indicate approval of a [search]
    whose primary purpose was to detect evidence of ordinary
    criminal wrongdoing.' . . . That limitation is crucial." See
    Maryland v. King, 
    569 U.S. 435
    , 468 (2013) (Scalia, J.,
    dissenting), quoting Indianapolis v. Edmond, 
    531 U.S. 32
    , 38
    (2000).
    In any event, the determination whether a search has
    occurred in the constitutional sense does not turn on the
    government's interest, but, rather, on the individual's
    expectation of privacy. See Commonwealth v. Augustine, 
    467 Mass. 230
    , 241 (2014), S.C., 
    470 Mass. 837
     and 
    472 Mass. 448
    (2015). See also United States v. Karo, 
    468 U.S. 705
    , 715
    (1984) (determining search was unconstitutional while
    recognizing that government "is extremely interested" in its
    outcome).
    7
    "not just where people go -- which doctors, religious
    services, and stores they visit -- but also the people and
    groups they choose to affiliate with and when they actually
    do so. That information cuts across a broad range of
    personal ties with family, friends, political groups,
    health care providers, and others. . . . [It] can provide
    an intimate picture of one's daily life." (Citation
    omitted).
    See Augustine, supra.   The United States Supreme Court similarly
    has observed that historical location information reveals
    "familial, political, professional, religious, and sexual
    associations" (citation omitted).   Carpenter v. United States,
    
    138 S. Ct. 2206
    , 2217 (2018).   "These location records hold for
    many Americans the privacies of life" (quotations and citation
    omitted).   
    Id.
    Accordingly, both this court and the Supreme Court,
    applying art. 14 and the Fourth Amendment, respectively, have
    required a search warrant supported by probable cause prior to
    examining the long-term movements of an individual, as
    approximated by the movements of his or her cellular telephone
    through cell site location information (CSLI).    See Carpenter,
    
    138 S. Ct. at 2221
    ; Augustine, 467 Mass. at 256.    As the Supreme
    Court has observed, "when the Government tracks the location of
    a cell phone it achieves near perfect surveillance, as if it had
    attached an ankle monitor to the phone's user."    Carpenter,
    
    supra at 2218
    .
    8
    This case goes a step further, asking us to consider what
    reasonable expectation of privacy a former probationer has when
    the government literally has "attached an ankle monitor" to that
    individual's leg.   In such a case of historical "perfect
    surveillance," the individual's privacy interest in the data
    collected ought not be less than that which we recognize in the
    case of cellular telephones.
    Yet the court concludes that no reasonable expectation of
    privacy was implicated here.   Had the police attempted to
    retrieve the defendant's location history by contacting his
    cellular telephone provider, our jurisprudence plainly would
    have required a warrant supported by probable cause.   See
    Augustine, 467 Mass. at 254-255.    The court, however, maintains
    that historical location information collected by a GPS ankle
    monitor is distinguishable from that collected by a cellular
    telephone for four reasons:    (1) probationers have diminished
    expectations of privacy; (2) the government is permitted to
    reexamine records it has collected lawfully; (3) we have
    permitted similar warrantless searches in the context of
    matching deoxyribonucleic acid (DNA) profiles; and
    (4) relatively little information was examined in this case.      In
    my view, none of these arguments is persuasive.
    1.     Probationers' and former probationers' expectations of
    privacy.   The court notes that a probationer has a diminished
    9
    expectation of privacy relative to an "ordinary citizen."           Ante
    at       .   A "diminished" expectation of privacy, however, is not
    "no" expectation of privacy.       We previously have observed that
    probation is not imprisonment; indeed, it is not even on a par
    with parole.     See Commonwealth v. Moore, 
    473 Mass. 481
    , 485-486
    (2016) ("parole is more akin to imprisonment than probation is"
    [citation omitted]).       Accordingly, "art. 14 bars the imposition
    on probationers of a blanket threat of warrantless searches."
    Commonwealth v. LaFrance, 
    402 Mass. 789
    , 795 (1988) (requiring
    reasonable suspicion to search probationer's home and person,
    even where probationer consented to suspicionless searches).
    The court does not grapple with the implications of
    LaFrance.     Instead, it determines that, because the defendant
    knew he had been monitored via the GPS device, he could not
    reasonably expect his location to remain private when probation
    ceased.      See ante at      .   Even if knowledge of government
    surveillance were sufficient to defeat a reasonable expectation
    of privacy while the defendant actually was on probation,4 a
    4 The court suggests that, because the monitoring here was
    not surreptitious, the defendant forfeits his expectation of
    privacy. See ante at      . I am troubled by the court's
    reasoning that, because the Commonwealth might have informed the
    defendant that he ought have no expectation of privacy -- i.e.,
    the surveillance was not surreptitious -- his art. 14 rights
    thereby evaporated. See ante at      . "Notice of the
    government's claimed search authority" does not itself abrogate
    art. 14. See 5 W.R. LaFave, Search and Seizure § 10.10(c), at
    544-545 (5th ed. 2012) (criticizing role of "notice" in Federal
    10
    point we need not address, the defendant's expectation of
    privacy would have changed the day he completed his sentence.
    See United States v. Kincade, 
    379 F.3d 813
    , 870 (9th Cir. 2004)
    (Reinhardt, J., dissenting), cert. denied, 
    544 U.S. 924
     (2005)
    (defendant "has paid his debt to society," State has "cease[d]
    to have a supervisory interest over [him],"   and he merits "full
    future expectation of privacy"); id. at 871-872 (Kozinski, J.,
    dissenting) ("Once [defendant] completes his period of
    supervised release, he becomes an ordinary citizen just like
    everyone else.   Having paid his debt to society, he recovers his
    full Fourth Amendment rights, and police have no greater
    authority to invade his private sphere than anyone else's").5
    The defendant, it must be remembered, was not a probationer
    at the time the police searched his GPS data; his period of
    probation had terminated nearly a year earlier.   Rather, the
    probationer search cases). See also Samson v. California, 
    547 U.S. 843
    , 863 (2006) (Stevens, J., dissenting), quoting Smith v.
    Maryland, 
    442 U.S. 735
    , 740 n.5 (1979) ("the loss of a
    subjective expectation of privacy would play 'no meaningful
    role' in analyzing the legitimacy of expectations, for example,
    'if the Government were suddenly to announce on nationwide
    television that all homes henceforth would be subject to
    warrantless entry'").
    5 The court discounts the notion that a former probationer
    would recover his or her right to privacy "retroactively," "as
    if he [or she] had never been on probation." Ante at note 13.
    The court knocks down a straw man. Here, the government
    searched the defendant's records after probation terminated.
    His rights were not retroactive; they protected him at the time
    of the search. See note 7, infra.
    11
    defendant had returned to society as an "ordinary citizen."    See
    ante at     .   See also note 2, supra.   Nonprobationers,
    including former probationers, enjoy the full protections of
    art. 14 and the Fourth Amendment; for a nonprobationer, probable
    cause and a warrant are required to search historical location
    information.6   See generally Carpenter, 
    138 S. Ct. at 2217
    ;
    Augustine, 467 Mass. at 254-255.
    6 The court's repeated references to the defendant as a
    probationer, following the termination of his period of
    probation, minimizes the difference between an actual
    probationer and a former probationer -- i.e., an ordinary
    citizen. See, e.g., ante at      ("defendant-probationer"); id.
    at      ("probationer's GPS location data"); id. at       ("the
    defendant -- a probationer").
    These references are a stark reminder of the court's
    underlying view that, for those who once wore GPS devices,
    probation never fully ends. No matter how long a period of time
    elapses after the formal termination of probation, no matter how
    exemplary the person's conduct may be thereafter, he or she
    always will be branded a probationer. It is of course easy
    enough to call "unreasonable" this miscreant defendant's
    postprobation expectation of privacy in data collected during a
    probationary period in which he repeatedly reoffended. But the
    court's view encompasses as well those who, years after their
    successful rehabilitation, will have voluminous and intimately
    personal data exposed to intrusive governmental examination
    without probable cause or a warrant. Surely at some point
    society would have to recognize as reasonable the former
    probationer's expectation of privacy, but when might that be?
    After five, nineteen, or twenty-five years? After all statutes
    of limitation have run? The court apparently settles on
    "never." Believing as I -- and much of society -- do, in the
    possibility both of rehabilitation and of discharging one's debt
    to society, I conclude that people once on probation regain the
    rights and privileges of ordinary citizenship once their
    probation ends.
    12
    2.   Reexamination of formerly obtained information.    The
    court, however, appears to suggest that, because the GPS data
    had been collected lawfully by the probation department in the
    first instance, the Commonwealth is permitted to dip back into
    that well at any time.   In other words, once the government
    permissibly has obtained information about an individual, that
    individual is deprived permanently of all expectation of privacy
    in that information.7
    No reasonable person would expect, however, that the
    government, having lawfully obtained a copy of a suspect's
    historical CSLI, could post those records on the Internet or
    plaster them on billboards.   "It would appear reasonable to
    expect that a government agency, to which a citizen is required
    7 In the context of warrant-based searches, this plainly is
    not the case. Rather, a new warrant is required whenever the
    government seeks to reexamine digital evidence for some new
    investigatory purpose that exceeds the bounds of the initial
    search warrant. See, e.g., United States v. Walser, 
    275 F.3d 981
    , 987 (10th Cir. 2001), cert. denied, 
    535 U.S. 1069
     (2002)
    (no violation of Fourth Amendment where, upon inadvertently
    discovering child pornography on computer, investigator
    "immediately suspended his search and went to a magistrate for a
    new warrant"); United States vs. Koch, U.S. Dist. Ct., No. 3:08-
    cr-0105-JAJ (S.D. Iowa June 1, 2009), aff'd, 
    625 F.3d 470
     (8th
    Cir. 2010) (investigator "did precisely what he should have
    done -- stopped his search soon after he found child pornography
    and sought a new search warrant"). Cf. 2 W.R. LaFave, J.H.
    Israel, N.J. King, & O.S. Kerr, Criminal Procedure § 3.4(j) (4th
    ed. 2015) ("A warrant may be executed only once, and thus if a
    place is to be searched a second time the proper procedure is to
    obtain a second warrant based on an affidavit explaining why
    there is now probable cause notwithstanding the execution of the
    earlier warrant" [footnote omitted]).
    13
    to submit certain materials, will use those materials solely for
    the purposes intended and not disclose them to others in ways
    that are unconnected with those intended purposes."
    Commonwealth v. Buccella, 
    434 Mass. 473
    , 485 (2001), cert.
    denied, 
    534 U.S. 1079
     (2002).8   The government's permitted use of
    information it obtains is limited, and the subject of the
    information retains reasonable expectations of privacy in it.
    In the context of physical evidence, "[p]roperty seized
    pursuant to a search warrant must be restored to its owners when
    it is no longer needed."   See Commonwealth v. Sacco, 
    401 Mass. 204
    , 207 n.3 (1987), citing G. L. c. 276, § 3.   Once the item is
    returned, the expectation of privacy is restored; to search the
    object again, probable cause and a warrant again are required.9
    That protection is not limited to physical objects; indeed,
    art. 14 and the Fourth Amendment are premised on privacy rights,
    not property rights.   See Carpenter, 
    138 S. Ct. at 2213
     ("the
    Court has recognized that property rights are not the sole
    8 What is reasonable at one time, for one purpose, may not
    be reasonable at another time, for another purpose. Cf.
    Zittrain, Searches and Seizures in a Networked World, 119 Harv.
    L. Rev. F. 83, 89 (2005) (reasonableness of searching
    individual's electronic files "ought to hinge in part on
    retaining such data no longer than necessary for a specific
    purpose").
    9 See, e.g., People v. Trujillo, 
    15 Cal. App. 5th 574
    , 584
    (2017) ("If [defendant] is successful at his probation, the
    Fourth Amendment waiver will terminate and his electronic
    devices will again be completely private").
    14
    measure of Fourth Amendment violations . . . and expanded our
    conception of the Amendment to protect certain expectations of
    privacy as well" [quotations and citations omitted]).     As
    Professor Orin Kerr cautions, it is necessary to impose the same
    constitutional protections on a search of the government's copy
    of digital data as would be imposed on the search of the
    individual's copy of the same.10    See Kerr, Searches and Seizures
    in a Digital World, 
    119 Harv. L. Rev. 531
    , 560 (2005).
    Otherwise, it is not clear, from the court's reasoning,
    what prevents a police officer from adding every CSLI record he
    or she legally obtains, pursuant to a warrant, to a database of
    accumulated government intelligence regarding the movements and
    whereabouts of any individual.     Nor is it clear when, if ever,
    judicial oversight would be exercised prior to permitting an
    officer -- operating even on an educated hunch -- from perusing
    that data at any point in the future.11
    10"Permitting the government to make and retain copies of
    our private electronic [information] seems inconsistent with our
    traditions. The idea that the government could freely generate
    copies of our [data] and indefinitely retain [it] in government
    storage seems too Orwellian -- and downright creepy -- to be
    embraced as a Fourth Amendment rule." Kerr, Searches and
    Seizures in a Digital World, 
    119 Harv. L. Rev. 531
    , 560 (2005).
    See also 
    id. at 556
     ("Over time, it should become increasingly
    clear that the Fourth Amendment should track the information,
    not the physical box").
    11"[T]he Government cites, and the Court is aware of, no
    authority suggesting that simply because it has retained all
    originally searchable electronic materials, the Government is
    15
    Such an accumulation of data, whether limited to GPS
    records of probationers or expanded to GPS records of ordinary
    citizens, "never would [have been] available through the use of
    traditional law enforcement tools of investigation" (emphasis in
    original).   See Augustine, 467 Mass. at 248, 254.   "At bottom,
    we must assur[e] preservation of that degree of privacy against
    government that existed when the Fourth Amendment was adopted"
    (quotation and citation omitted).12   United States v. Jones, 565
    permitted to return to the proverbial well months or years after
    the relevant Warrant has expired to make another sweep for
    relevant evidence, armed with newly refined search criteria and
    novel case theories." United States v. Wey, 
    256 F. Supp. 3d 355
    , 406 (S.D.N.Y. 2017).
    In United States v. Ganias, 
    824 F.3d 199
    , 201, 207, 225 (2d
    Cir.), cert. denied, 
    137 S. Ct. 569
     (2016), for example,
    investigators obtained digital records from an accountant in
    order to investigate two of his clients. Three years later, the
    government sought to reexamine the records, this time targeting
    the accountant himself. To do so,
    "the Government applied for a new search warrant and made
    clear in its application that it wished to run new searches
    over electronic materials that had been in its custody, and
    assumed irrelevant, for several years. . . . The [Second]
    Circuit, sitting en banc, upheld the later search . . . in
    large measure because the Government had acted reasonably
    in applying for the second warrant and alerting the
    magistrate to the circumstances." (Emphases in original.)
    Wey, 256 F. Supp. 3d at 407.
    12"I would also consider the appropriateness of entrusting
    to the Executive, in the absence of any oversight from a
    coordinate branch, a tool so amenable to misuse, especially in
    light of the Fourth Amendment's goal to curb arbitrary exercises
    of police power to and prevent a too permeating police
    
    16 U.S. 400
    , 406 (2012).    The construction of a database of
    individuals' location histories risks making "technologically
    feasible the Orwellian Big Brother."     See United States v.
    White, 
    401 U.S. 745
    , 770 (1971) (Harlan, J., dissenting).       Our
    traditions require this risk be balanced with the measured check
    of judicial oversight.
    3.   DNA databases.    The court asserts that there is nothing
    to fear from this new technology, as it merely "identifies [the
    defendant's] presence at the scene of a crime," not unlike
    comparing DNA sample against a government database.     Ante
    at   .    Relying on Boroian v. Mueller, 
    616 F.3d 60
    , 67-68 (1st
    Cir. 2010), the court maintains that matching a probationer's
    DNA profile after the termination of probation does not violate
    a reasonable expectation of privacy.     See ante at     .
    DNA relates to an individual's identity; indeed, it
    "reveal[s] nothing more than the identity of the source."       See
    Commonwealth v. Arzola, 
    470 Mass. 809
    , 816 (2015), cert. denied,
    
    136 S. Ct. 792
     (2016).     It may well be that individuals do not
    have a reasonable expectation of privacy in concealing their
    identity, i.e., their face, fingerprint, DNA, or other immutable
    identifiers, from the police.     But location data reveals more.
    surveillance" (citations omitted). United States v. Jones, 
    565 U.S. 400
    , 415–17 (2012) (Sotomayor, J., concurring).
    17
    Indeed, the United States Court of Appeals for the First
    Circuit reasoned that warrantless DNA-matching was permissible
    precisely because a DNA profile "does not reveal any new,
    private or intimate information about [the defendant]."     See
    Boroian, 
    616 F.3d at 67
    .   The same cannot be said of long-term
    GPS data.   As we have observed, long-term location information
    can paint an "intimate picture of one's daily life" (citation
    omitted).   Augustine, 467 Mass. at 248.   See Carpenter, 
    138 S. Ct. at 2217
    .
    It is one thing to permit an officer of the Commonwealth to
    examine, without cause, the presence of alleles across various
    DNA samples stored in a DNA database.   It is quite another to
    allow that officer to examine the minute-by-minute location
    history of individuals over a period of months, revealing, as
    that analysis may, any number of "familial, political,
    professional, religious, and sexual associations" (citation
    omitted).   See Carpenter, 
    138 S. Ct. at 2217
    .13   Notably, and
    13 The United States Court of Appeals for the First Circuit
    further reasoned that "the government's comparison of [the
    defendant's] DNA profile with other profiles in [the Combined
    DNA Index System database (CODIS)] is precisely the use for
    which the profile was initially lawfully created and entered
    into CODIS." Boroian v. Mueller, 
    616 F.3d 60
    , 67 (1st Cir.
    2010). Yet, here, the government's comparison of the
    defendant's location history with the locations of known break-
    ins is not the use for which the defendant's location
    information initially was collected. "There is a need to
    supervise [a probationer] both to aid in the probationer's
    rehabilitation and to ensure her compliance with the conditions
    18
    contrary to the court's characterization, the Commonwealth's
    examination of location data in this case far exceeded merely
    identifying an individual's binary "presence."
    4.       Amount of information examined.   The court takes pains
    to assure us that police "targeted their analysis" to "the time
    and location of particular criminal activity," such that their
    review was "not a search in the constitutional sense."        Ante
    at        .   The court previously has determined, for example, that
    police may examine up to six hours of historical location
    information from a cellular telephone provider without judicial
    oversight, as the duration is too short to infringe upon
    reasonable expectations of privacy.14      See Commonwealth v.
    of probation." See Commonwealth v. LaFrance, 
    402 Mass. 789
    ,
    792-793 (1988). Once probation was terminated, however, the
    location information was repurposed, a year later, as an
    investigative tool; this was not "precisely the use" for which
    it originally was intended. See Boroian, 
    supra.
    14In establishing this six-hour safe harbor, we emphasized
    that, "in terms of reasonable expectation of privacy, the
    salient consideration is the length of time for which a person's
    CSLI is requested, not the time covered by the person's CSLI
    that the Commonwealth ultimately seeks to use as evidence at
    trial." Commonwealth v. Estabrook, 
    472 Mass. 852
    , 858-859
    (2015). For example, "[i]t would violate the constitutional
    principles underlying our decision in Augustine to permit the
    Commonwealth to request and obtain without a warrant two weeks
    of CSLI -- or longer -- so long as the Commonwealth seeks to use
    evidence relating only to six hours of that CSLI". See id. at
    859. The defendant is not required to show that police "mapped
    out months of [his] historical GPS location data in a
    coordinated effort to recreate a full mosaic of his personal
    life." See ante at      . At the point at which the
    19
    Estabrook, 
    472 Mass. 852
    , 858 (2015).   The court suggests
    similar reasoning here:    the examination of the defendant's
    historical location information was narrow, and ergo, it was not
    a search.   The record, however, paints a different picture.
    As a probationer, the defendant was monitored by means of a
    GPS device once every minute for a period of six months, from
    April to September 2012.   According to the uncontroverted
    statements in the defendant's memorandum in support of his
    motion to suppress, Barbara McDonough, of the probation
    department, gave a presentation to police one year later, on
    October 9, 2013, detailing the defendant's GPS history.
    Marshfield police Detective Kim Jones subsequently cross-
    referenced that information with the dates of the break-ins.
    At the time, police were investigating ten break-ins
    occurring between May and September 2012.   In the case of one
    break-in on September 1, 2012, the homeowners had been away for
    the four-day Labor Day weekend, beginning on August 31, 2012,
    only to discover the break-in upon their return on September 3.
    Reviewing the defendant's GPS records, police determined that
    the defendant was in or near the house on the evening of
    September 1 and the early morning of September 2.   It is
    difficult to imagine how police would have reached that
    Commonwealth obtains the data, it has violated the individual's
    reasonable expectation of privacy.
    20
    conclusion without examining the defendant's location for the
    entire four-day period (ninety-six hours).   The defendant's
    location history was further examined with respect to the other
    nine break-ins.15
    It is also clear that the search was not limited only to
    the dates and times during which the break-ins were believed to
    have actually occurred.   At the nonevidentiary hearing on the
    motion to suppress,16 the Commonwealth acknowledged that the
    probation department was "able to map [the] defendant's actions
    that were consistent with not only breaking into the houses,"
    but also, in other instances, "prior to breaking into the
    houses, casing the houses."
    Combined, it hardly overstates the record to say that the
    Commonwealth's search encompassed hundreds of hours of location
    information, spanning multiple days before and during potential
    15At a minimum, these required additional examinations of
    the defendant's movements on May 8, 2012; May 16, 2012; June 4,
    2012; July 14, 2012; and August 27, 2012. Moreover, it is not
    clear that police were aware of the particular times during
    which the break-ins occurred; if not, even further examination
    of the defendant's movements would have been required merely
    with respect to these specific incidents.
    16On March 19, 2015, the motion judge held an evidentiary
    hearing with respect to the defendant's first argument in
    support of his motion to suppress, that his arrest was an
    unlawful search and seizure. On February 10, 2016, the judge
    held a nonevidentiary hearing on the defendant's second
    argument, that the examination of his GPS records was unlawful
    as a warrantless search. The judge denied the motion to
    suppress on both grounds on March 16, 2016.
    21
    periods of suspicious activity, throughout a several-month
    period.    To be sure, the information proved useful.   But I am
    not persuaded that the investigation was "too brief to implicate
    [a] person's reasonable privacy interest" (citation omitted).
    Contrast Estabrook, 472 Mass. at 858 (no warrant required to
    examine six hours of location information).    Indeed, the motion
    judge made no such finding.17   Accordingly, on the evidence
    before the motion judge, the defendant met his burden to show
    that the Commonwealth violated his reasonable expectations of
    privacy.    See Commonwealth v. Miller, 
    475 Mass. 212
    , 219-220
    (2016).    Before the search was undertaken, probable cause and a
    warrant should have been secured.
    17The judge's relevant findings, based on stipulated facts,
    were as follows:
    "[Randolph police] decided to contact the Commissioner of
    Probation and obtain records of [the defendant's] location
    at various times to determine if they matched up with
    unsolved housebreaks on the South Shore. To that end,
    [Randolph police] contacted Marshfield Police Detective Kim
    Jones . . . and suggested she contact the probation
    department and look into [the defendant's] whereabouts.
    Thereafter, the Marshfield police and two probation
    officers reviewed the record of [the defendant's] travels
    into Marshfield, Hanson and Pembroke. Once this
    information was developed, Jones cross-referenced it with
    recent break-ins in those three towns and discovered that
    [the defendant] was at the scene of the housebreaks at the
    time of the alleged breaks."
    The judge made no finding with respect to the scope of the GPS
    data reviewed, nor does his reasoning rely on the narrowness
    thereof.
    22
    Having determined, instead, that the search was
    insufficiently extensive to merit constitutional protection, the
    court nonetheless acknowledges that a reasonable expectation of
    privacy may be implicated, "even for a probationer subjected to
    GPS monitoring," where police "map[] out months of the
    defendant's GPS location data . . . over an extended and
    unnecessary period of time."    See ante at      .   The court
    insists, however, that such a case, which "might raise
    different, more difficult constitutional questions" is not
    before us and "[w]e need not, and do not, decide that question
    today."   
    Id.
     at    .
    I would require a warrant supported by probable cause even
    where fewer than "months" of GPS data were examined, consistent
    with our jurisprudence in Augustine, 467 Mass. at 254-255, and
    Estabrook, 472 Mass. at 858.    To the extent that the court is
    concerned that the review of "months" of historical GPS data
    raises "difficult constitutional questions," in my view, those
    questions are raised here.     Evidence of such a months-long
    search was not before the motion judge, and therefore does not
    form the basis of my determination that the judge's denial of
    the motion to suppress was error.    See Commonwealth v. Rivera,
    
    441 Mass. 358
    , 367 (2004) ("Evidence adduced at trial but not
    before the motion judge . . . cannot be determinative of the
    propriety of the motion judge's decision" [citation omitted]).
    23
    Insofar as the court's reasoning is premised on a finding that
    this search was "targeted," however, I note that the motion
    judge made no such finding, see note 17, supra, and the
    information now known to us does not support one.
    Indeed, information developed following the denial of the
    motion to suppress suggests that the search in this case was
    much broader than the court is willing to acknowledge.    In
    Johnson, 
    91 Mass. App. Ct. 296
    , to which the court itself cites,
    this defendant appealed from other charges stemming from the
    Commonwealth's search of his probationary GPS records.    The same
    Barbara McDonough of the probation department conducted the GPS
    records searches in both cases.   She testified as to the manner
    in which she conducted the search as follows:
    "McDonough testified that she searched the defendant's
    minute-by-minute movements for the entire period he was
    monitored by the GPS system, namely from July 8, 2013,
    forward. 'Each day was a 24-hour investigation on him to
    see where he was, until the time he came off the bracelet.'
    . . . She reviewed several months' worth of historical
    data to determine the defendant's location and movements at
    all times of day and night, and overlaid the data on a map.
    The data revealed not only the defendant's location, but
    also his speed and direction. The data tracked the
    defendant into buildings, including private residences."
    Id. at 318 (Wolohojian, J., dissenting).   McDonough reported her
    findings in that case to Boston police in November 2013, less
    than one month after her report to the Marshfield police in this
    case.   Although we do not have the benefit of McDonough's
    testimony in this case, it seems reasonable to conclude that her
    24
    methods did not differ substantially between her two
    examinations of the same defendant's GPS records, conducted
    within the span of several weeks.
    Evidence admitted at trial in this case corroborates
    McDonough's testimony regarding her meticulous methods.      Exhibit
    2A, the first of the Commonwealth's maps of the defendant's
    movements, is labeled as the defendant's "Position History" from
    "12:00:00 A.M." to "11:59:59 P.M." on September 1, 2012.      The
    exhibit is only the first of several such maps.    Taken together,
    it would appear that the Commonwealth examined the defendant's
    minute-by-minute movements for periods of twenty-four hours at a
    time over the course of several months, thus clearly exceeding
    the "targeted" analysis the court portrays, and raising the very
    questions the court leaves for another day.    See ante at          .
    In the interest not of expediency, but of justice, i.e.,
    reaching the right result, we ought not blind ourselves to the
    indications that this search was far more extensive than
    initially assumed.    If the court intends to rely on findings
    regarding the scope of the search, it should remand for an
    evidentiary hearing to determine the true extent of the GPS data
    examined.
    Conclusion.      Article 14 and the Fourth Amendment exist to
    inject some degree of judicial oversight into the process by
    which the government may conduct surveillance.    See Carpenter,
    25
    
    138 S. Ct. at 2214
    .     To the extent that their protections are
    dimmed while an individual is on probation, they must return to
    full brightness upon completion of the probationary term.
    "Interposition of a warrant requirement is designed not to
    shield 'wrongdoers,' but to secure a measure of privacy and a
    sense of personal security throughout our society."     White, 
    401 U.S. at 790
     (Harlan, J., dissenting).
    Doubtless, the court's decision today will aid in the rapid
    resolution of future investigations, as it did in this case.
    So, too, would granting carte blanche for police to obtain any
    individual's historical location records without a demonstration
    of cause.   Yet "[our ancestors], after consulting the lessons of
    history, designed our Constitution to place obstacles in the way
    of a too permeating police surveillance, which they seemed to
    think was a greater danger to a free people than the escape of
    some criminals from punishment."     United States v. Di Re, 
    332 U.S. 581
    , 595 (1948).    The accumulation and inspection of vast
    amounts of personal historical location data, in great excess of
    anything previously available to the Commonwealth, without any
    judicial oversight, is a sobering specter.    That the court
    promises Big Brother will be watching only those individuals who
    once served probationary sentences is of little consolation.
    This is not to say that the government should destroy its
    records after the termination of probation.    On the contrary,
    26
    the Commonwealth may retain those records indefinitely, and the
    records well may prove invaluable.     Even so, there is a
    difference between maintaining evidence and searching it.       The
    latter always has required a showing of probable cause and a
    warrant, at least for those not on probation.     I would require
    the same here.
    Hence, I would conclude that, where police engage in a
    search of a nonprobationer's GPS history, art. 14 and the Fourth
    Amendment require a warrant supported by probable cause.     As
    police did not procure a warrant in this case, the search is
    presumptively unreasonable.   18   See Commonwealth v. White, 
    475 Mass. 583
    , 588 (2016).    It then would be the Commonwealth's
    burden to "show that [it] falls within a narrow class of
    permissible exceptions to the warrant requirement," such as
    probable cause and exigent circumstances (quotation and citation
    omitted).   
    Id.
       Because the Commonwealth has not made such a
    showing, I would reverse the denial of the defendant's motion to
    suppress.
    18 In denying the defendant's motion to suppress, the judge
    primarily relied on G. L. c. 276, § 90, which permits police to
    review probation records "at all times." As the court correctly
    notes, however, that the Legislature has sought to permit State
    action by statute does not mean that such action escapes
    constitutional review. See Commonwealth v. Blood, 
    400 Mass. 61
    ,
    75 (1987) (independently reviewing statute in light of art. 14).
    27
    Finally, I call upon the Legislature to revisit G. L.
    c. 276, § 90, the statute that permits police to examine
    probation records at any time, including any time after
    probation has ended.    The statute, enacted in 1880 and last
    amended in 1938, did not contemplate the long-term collection of
    GPS data.    This information now forms part of a probationer's
    "records."   After eighty years, much has changed.   The
    Legislature should consider whether this new and expansive
    information truly ought to remain open to government inspection,
    for any purpose and at any time.