MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Walter Crayton, convicted of possessing child pornography (second offense), appeals from an order denying his motion to vacate a special condition of his probation -- namely, that he is prohibited from entering libraries and must wear a GPS monitoring device -- claiming that it violates his constitutional rights. We affirm.
A jury in Norfolk Superior Court convicted the defendant of possessing child pornography (six counts), G. L. c. 272, § 29C, and other crimes; after a jury-waived trial, the trial judge convicted the defendant as a second offender of possessing child pornography (six counts).
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The same judge sentenced the defendant to six to eight years in prison followed by three years of supervised probation with special conditions. In 2020, the defendant filed a pro se motion to vacate the special condition at issue, which the motion judge -- who was also the trial and sentencing judge -- denied. This appeal followed.
Background. We summarize the relevant facts as found by the motion judge, supplemented by uncontested facts in the record, reserving certain facts for later discussion. This case stems from an incident in which the defendant, who was homeless at the time, attempted to steal a coat from a store. Confronted, the defendant struggled, and website printouts displaying child pornography fell out of his pocket. While arresting him, officers also found two smartphones, two library cards, and an address book containing handwritten URLs for websites displaying child pornography, including graphic descriptions of their content. Two weeks earlier, the defendant had been released from prison after serving five years for possession of child pornography (the Suffolk case). The instant case was indicted as a second offense, although it was actually the third; the defendant had also been convicted of possessing child pornography in a Middlesex case with an extensive procedural history that affected its use as a prior offense at the time this case was indicted. The Middlesex case arose after two middle school students saw the defendant viewing child pornography that he downloaded on a public computer in the Cambridge Public Library.
During the week between the defendants conviction in this case and his sentencing hearing, officers from the Norfolk County Sheriffs Department found, in the defendants jail cell, writings that graphically described the rape of a ten year old girl and an address book listing pornographic websites, similar to the one taken from his person during his arrest in this case. He had no cellmate. This echoed a discovery when the defendant was awaiting trial on the Suffolk case, when Suffolk County officers found three hand-drawn sketches of nude or partially nude young girls in the defendants cell. See Commonwealth v. Crayton, 470 Mass. 228, 248-249 (2014). The defendant was on probation from the Suffolk case when he offended in Middlesex by viewing child pornography at the Cambridge public library, and, when the incident in this case occurred, the defendant was on probation from the Middlesex case.
Against this factual backdrop, the sentencing judge imposed a condition of probation prohibiting the defendant from entering public libraries as well as a GPS monitoring condition to enforce that exclusion.
Discussion. 1. Library exclusion. The defendant now contends that the condition banning him from public libraries for three years (library condition) is not reasonably related to probation goals and left him without alternatives to “receiv[e] ideas and information,” violating his constitutional rights. “The issue was not preserved below; we, accordingly, review to determine whether an error occurred and, if so, whether it created a substantial risk of a miscarriage of justice.” Commonwealth v. Gomes, 73 Mass. App. Ct. 857, 858 (2009), citing Commonwealth v. Simmons, 448 Mass. 687, 690-691 (2007).
When sentencing a defendant, “[j]udges are permitted ‘great latitude’ in imposing conditions of probation.” Commonwealth v. Pike, 428 Mass. 393, 402 (1998), quoting Commonwealth v. Power, 420 Mass. 410, 413-414 (1995), cert. denied, 516 U.S. 1042 (1996). “Authority to tailor probation conditions is found in G. L. c. 276, § 87, which states that a judge may impose ‘such conditions as [the judge] deems proper.’ ” Commonwealth v. Eldred, 480 Mass. 90, 95 (2018). “Even where a condition of probation affects a constitutional right, it is valid if it is ‘reasonably related’ to the goals of sentencing and probation, in light of the defendants underlying crime and [his] particular circumstances.” Id. at 96. “The primary goals of probation are twofold: rehabilitation of the defendant and protection of the public from the defendants potential recidivism,” id. at 95, citing Commonwealth v. Goodwin, 458 Mass. 11, 15 (2010); “other goals [of probation] include punishment, deterrence, and retribution.” Id., quoting Commonwealth v. LaPointe, 435 Mass. 455, 459 (2001).
Given the history underlying the defendants current and past convictions, and the evidence that he has used a public library to view and download child pornography, and that minors observed that child pornography while in the library, the library condition is reasonably related to the goals of sentencing and probation, particularly the goal of protecting the public. The defendants tendency to reoffend is well established. Juries in three counties have convicted him of this offense, yet he continues to reoffend during and immediately after he is brought to justice or completes a prison term and he has violated probation five times in four years. The defendant has been caught with items related to child pornography in two different jail cells, first while awaiting trial on the Suffolk case, and then immediately after the jury convicted him on child pornography charges in this case.
The library condition is a physical restriction only. The defendant may still connect to the library over the internet via smartphone (he had two on his person at the time of his arrest) or other WiFi-enabled devices, thus allowing him to access library resources and order written materials for pickup by a designee. However, if the defendant does find, upon release, that this condition unduly burdens his ability, consistent with the constitution, to access information, he is free to seek modification of this condition. See Commonwealth v. McGovern, 183 Mass. 238, 240 (1903) (the nature of probation is not a binding agreement between Commonwealth and defendant that, once made, cannot be changed). See also Lu v. Hulme, 133 F. Supp. 3d 312, 324 (D. Mass. 2015) (noting, in case challenging, on First Amendment grounds, a homeless patrons exclusion from the library, that a public library is “the quintessential locus of the receipt of information” [quotation omitted]). Consequently, the library condition did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Kendrick, 446 Mass. 72, 76-78 (2006) (probation condition that defendant have no contact with minors under sixteen years of age, which was interpreted to mean avoiding encounters or engagements with children, refraining from places children likely to be, and promptly removing himself from encounters with children, was valid); LaPointe, 435 Mass. at 456 (probation condition prohibiting defendant from residing with his minor children and with any future children he may have for twenty years found valid and constitutional); Commonwealth v. Williams, 60 Mass. App. Ct. 331, 332-333 (2004) (court found valid a probation condition that defendant not consume or process any alcohol where underlying charge not connected to alcohol).
2. Reasonableness of GPS monitoring. The defendant contends that the imposition of GPS monitoring is too invasive and violates his State constitutional rights, under art. 14, and Federal constitutional rights, under the Fourth and Fourteenth Amendments, as he has never “been known to approach children sexually” and GPS monitoring places a severe burden on individual interests, especially for the homeless.
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Generally, we review the imposition of special conditions of probation for abuse of discretion, see Eldred, 480 Mass. at 98, but where, as here, the judge made a constitutional determination in denying defendants motion -- that the imposition of GPS monitoring was a reasonable search under art. 14 -- we “review independently the motion judges application of constitutional principles.” Commonwealth v. Moore, 473 Mass. 481, 484 (2016), quoting Commonwealth v. Franklin, 456 Mass. 818, 820 (2010).
“[Article] 14 requires individualized determinations of reasonableness in order to impose GPS monitoring as a condition of probation.” Commonwealth v. Feliz, 481 Mass. 689, 700 (2019). To determine reasonableness, “we consider the extent to which GPS monitoring of this particular defendant advances the Commonwealths interests in rehabilitation of the probationer and protection of the public, and the extent of the incremental privacy intrusion occasioned by GPS monitoring on the defendants diminished, but still extant, expectations of privacy as a probationer.” Id. at 701. “Whether the governments interest in imposing GPS monitoring outweighs the privacy intrusion occasioned by GPS monitoring, thus constituting a reasonable search, depends on a constellation of factors.” Id. These factors include, among others, “the intrusiveness of the search; the defendants 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.” Commonwealth v. Johnson, 481 Mass. 710, 719, cert. denied, 140 S.Ct. 247 (2019). “Because reasonableness depends ‘on the totality of the circumstances,’ Grady [v. North Carolina, 575 U.S. 306, 310 (2015)], no one factor will be dispositive in every case.” Feliz, 481 Mass. at 701.
Here, the condition requiring GPS monitoring is reasonable because the governments interest in enforcing the library condition outweighs the privacy intrusion occasioned by the GPS monitoring. The government has a “strong interest in protecting the public from sex offenders,” Feliz, 481 Mass. at 705, and, because two middle school students saw the defendant viewing child pornography at a public library, and because history shows the defendant to be a chronic, repeat offender of possessing child pornography, the governments strong interest in protecting library patrons supports the intrusiveness of GPS monitoring. Craytons criminal history -- including convictions for larceny, resisting arrest, assault and battery with a dangerous weapon, and possession of narcotics -- his probation violations, and his recidivism reveal a lack of compliance with societal rules and norms, which adds to the reasonableness of GPS monitoring to ensure compliance with the library condition. See Doe, Sex Offender Registry Bd. No. 390261 v. Sex Offender Registry Bd., 98 Mass. App. Ct. 219, 226 (2020), quoting 803 Code. Mass. Regs. § 1.33(10)(a) (2016) (“Lawlessness and antisocial behavior correlate with risk of reoffense and degree of dangerousness”).
The defendant argues that these factors are insufficient to render the imposition of GPS monitoring reasonable because he has not committed a contact offense against children and, as such, poses less of a risk to the public. However, “the governments interest remains strong where the sex offense in question is an online, noncontact offense.” Feliz, 481 Mass. at 703. Furthermore, the Middlesex case amply demonstrates that the defendants consumption of child pornography can (in a library setting) expose real, local children to real harm. See Commonwealth v. Medeiros, 95 Mass. App. Ct. 132, 137-138 (2019) (defendants prior act of exposing himself and showing child pornography to two children considered predatory behavior). Furthermore, “the mere possession or control of any sexually exploitative material results in continuing victimization of children as such material is a permanent record of an act or acts of sexual abuse or exploitation of a child and ․ each time such material is viewed the child is harmed.” St. 1997, c. 181, § 1 (2).
GPS monitoring imposes a reasonable burden on the defendant, despite his being homeless, in light of the substantial government interest in protecting library patrons, including minor children, from exposure to child sexual abuse material. See Johnson, 481 Mass. at 711 (“although the original imposition of GPS monitoring as a condition of the defendants probation was a search, it was reasonable in light of the defendants extensive criminal history and willingness to recidivate while on probation”). Weighed against the Commonwealths interest in protecting the public, as well as its significant interest in “deterring the probationer from engaging in criminal activity and detecting such criminal activity if it occurs,” id. at 719, the burden on the defendants privacy effected by the GPS device is not so significant. Therefore, the condition imposing GPS monitoring is reasonable. See id. at 720. Contrast Feliz, 481 Mass. at 705-706.
The denial of the defendants motion to vacate special conditions of his probation is therefore affirmed.
Order denying motion to vacate special conditions of probation affirmed.
FOOTNOTES
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. The defendant appealed from his convictions, arguing that his convictions for possessing child pornography were duplicative; this Court affirmed one count of possession of child pornography but remanded the case for vacatur of the duplicative convictions in accordance with Commonwealth v. Rollins, 470 Mass. 66, 74 (2014). Commonwealth v. Crayton, 98 Mass. App. Ct. 1118 (2020), cert. denied, 142 S.Ct. 151 (2021). The defendants remaining convictions, larceny under $250, G. L. c. 266, § 30 (1), as amended through St. 1987, c. 468, § 1, and resisting arrest, G. L. c. 268, § 32B, were affirmed. Id.
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. The defendant also contends that the judge erroneously found that he displayed pornography “in front of children” during the Cambridge Public Library incident, but the judge did not find this; rather, the prosecutor argued this during the sentencing hearing. Two middle school students testified that they had seen child pornography on the library computer being used by the defendant.