Commonwealth v. Feliz (Lawyers Weekly No. 12-041-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CRIMINAL ACTION 16-00077 COMMONWEALTH vs. ERVIN FELIZ FINDINGS OF FACT, RULINGS OF LAW, AND ORDER OF DECISION ON DEFENDANT’S OPPOSITION TO GPS MONITORING AS CONDITION OF PROBATION Defendant Ervin Feliz (“Feliz” or the “defendant”) has brought the present motion, by which he seeks to have the Court’s imposition of GPS monitoring as a condition of his probation stricken as an unconstitutional search and seizure under the Fourth Amendment of the U.S. Constitution and article 14 of the Massachusetts Declaration of Rights. For the reasons that follow, the defendant’s motion shall be DENIED. BACKGROUND On April 22, 2016, Feliz pleaded guilty to two counts of possession of child pornography in violation of G.L. c. 272, _ 29C, and five counts of dissemination of child pornography in violation of G.L. c. 272, _ 29B(a). The subject crimes entailed Feliz’s possession and online posting of large amounts of child pornography, in which prepubescent (in some instances toddler-aged) male children were depicted engaged in explicit sex acts with adult males.[1] For the two possession offenses, the Court (Krupp, J.) sentenced Feliz to two concurrent terms of 2 ½ years in the House of Corrections, suspended for five years. For each of the dissemination charges, the Court sentenced Feliz to concurrent five-year terms of probation. Among the conditions of the defendant’s probation, the Court ordered Feliz to have no contact with children under the age of 16, to remain at least 300 feet from schools, parks and day care facilities, and to wear a Global Positioning System (“GPS”) device at all times during the pendency of his probationary term. Mandatory GPS monitoring throughout the course of this convicted sex offender’s probation sentence was in accordance with the express requirements of G.L. c. 265, _ 47 (“Section 47”). Pursuant to the terms of his probationary sentence, Feliz was outfitted with a GPS ankle bracelet and placed under the supervision of the Suffolk County Superior Court Probation Department. In this connection, Feliz signed an Order of Probation Conditions Form, an Electronic Monitoring Program Enrollment Form, and an Equipment Liability Acceptance Form. Feliz now asserts that the imposition of GPS monitoring as a condition of probation, both on its face and as applied to him, violates his right to be free from unreasonable searches and seizures under the Fourth Amendment of the U.S. Constitution and article 14 of the Massachusetts Declaration of Rights. On February 10, February 17 and February 24, 2017, and in accordance with the dictates of Grady v. North Carolina, 135 S. Ct. 1368, 1370 […]