Supreme Judicial Court (September 17, 2010)

A judge does not have the authority to impose a global positioning system (GPS) monitoring device as an additional condition of probation in a modification proceeding where there is no finding of a violation of a condition of probation.

In September 1990 the defendant plead guilty to three counts of rape of a child by force and kidnapping. He was sentenced to state prison with conditions of probation and a lengthy suspended sentence upon release. In 2003 he was found to be a sexually dangerous person and civilly committed. In 2009 a jury found he was no longer sexually dangerous and he was released from prison to begin serving his probationary term.

Shortly after release, the probation department sought to modify the defendant's conditions to include, among other things, wearing a GPS monitoring device and not entering certain exclusion zones including all parks, playgrounds, schools and libraries. The judge rejected the probation department's request, finding that she had no authority to add those conditions because there had been no change in circumstances and adding such condition without a violation of probation would amount to ex post facto punishment. The Commonwealth moved for reconsideration; its motion was denied and the Commonwealth sought relief under G.L. c. 211, § 3.

The Supreme Judicial Court upheld the ruling of the Superior Court judge. "[H]aving concluded in Commonwealth v. Corey, 454 Mass. 559 (2009), that GPS monitoring constitutes a substantial burden on liberty that is punitive in effect, we conclude here that the additional probation condition of GPS monitoring, paired with geographic exclusions, is so punitive in effect as to increase significantly the severity of the original probationary conditions and therefore may be imposed only after a finding of a violation of a condition of probation."