NO. SJC-10824 PURSUANT TO GLC 211, 5 3 FROM ... - Mass Cases

COMMONWEALTH OF MASSACHUSETTS
(1 of 2)
Suffolk, ss. Supreme Judicial Court
NO. SJC-10824
COMMONWEALTH,
Plaintiff/Appellee
vs
ROBERT ALDRICH,
Defendant/Appellant
APPEAL FROM DENIAL OF SINGLE JUSTICE OF
PETITION TO SUPREME JUDICIAL COURT FOB RELIEF
PURSUANT TO G.L.C. 211, 5 3 FROM A SUPERIOR COURT
REQUIRING DEFENDANT TO WEAR A GLOBAL POSITIONING
SYSTEM (GPS) DEVICE AS CONDITION OF RELEASE ON BAIL
(Single Justice No. SJ-2009-0474)
(Middlesex Superior Court No. 2008-00164)
February 7, 2011
BRIEF FROM DEFENDANT/APPELLANT
ROBERT ALDRICH
(SEPARATE APPENDIX)
Robert Aldrich
MCI Shirley
P.O. Box 1218
Shirley, MA 01464

Contents
TABLE OF AUTHORITY
ISSUES PRESENTED
STATEMENT OF PROCEEDINGS
STATEMENT OF FACTS
ARGUMENT NO, 1
ARGUMENT NO. 2
Sub Argument:. d.
Sub Argument: B.
Sub Argument: I3.
Sub Argument: D.
ARGUMENT NO. 3
Sub Argument: A.
Sub Argument: B.
Sub Argument: C.
Sub Argument: D.
Sub Argument: E.
CONCLUSION
ADDENDUM
TABLE OF CONTENTS
CERTIFICATE OF CERTIFICATION
CERTIFICATE OF SERVICE
Pages
i - vi
vii - viii
1
'5
23
25
25
33
34
39
43
44
45
4a
48
49
50
1 - 44

Case Laws
Commonwealth v. Adkinson
442 Mass. 410 (2004)
Commonwea
445 Mass
Commonwea
389 Mass
Cornmonwea
349 Mass
Commonwea
454 Mass
Commonwea
400 Mass
Comrnonwea
385 Mass
TABLE OF AUTHORITIES
th v. Aim
667 (1992)
th v. Appleby
359 (1983)
th v. Balliro
505 (1965)
th v. Blake
267 (2009)
th v. Blood
1 (1987)
th V.
733
Commonwealth v.
356 Mass. 132
Commonwealth v.
454 Mass. aoa
Bohanon
1982)
Carita
1969)
Connolly
2009)
Commonwealth v. Cory
454 Mass 559 (2009)
Co mm o n w e a
452 Mass
Gornmonwea
446 Mass
th v. Donohue
256 (2008).
th v. Durham
212 (2005)
Commonwea th v, Emeli
453 Mass. 1024
Commonwealht v. Eneh
76 Mass.App.Ct. 672
Commonwealth v. Gonza
76 Mass.App.Ct. 1111
Commonwealth v. Games
453 Mass. 506 (2009)
2010
ez
( 201
Pages
45, 46
40
33
45, 46, 47
30'
35, 38
45
45
37, 38
30,31, 32, 33,
36, 40, S2
24, 27
45, 46
6, 26, 27, 28,
48
48
35

Case Laws
Commonwealth v. Goodwin
458 Mass. I1 (2010)
Commonwealth v. Guznian
446 Mass. 344 (2006)
Commonwealth v. Jackson
419 Mass. 718 (1985)
Commonwealth v. Manning
373 Mass. 438 (1977)
Commonwealth v. Martin
425 Mass. 718 (1997)
Commonwealth v. Pagan
445 Mass. 161 (ZOOS)
Commonwealth v. Raposo
453 Mass. 739 (2009)
Commonwealth v. Rivera
424 Mass. 266 (1996)
Commonwealth v. Rollins
441 Mass. 114 (2004)
Commonwealth v. St. Pierre
377 Mass. 650 (1979)
Commonwealth v. Super
76 Mass.App.ct. 492 (2000)
Commonwealth v. Taylor
455 Mass. 372 (2009)
Commonwealth v. Teixeira
76 Mass.App.Ct. 101 (2010)
Commonwealth v. Vellejo
455 Mass. 72 (2009)
,Doe v. Sex Offender Reg. Ad.
450 Mass. 780 (2008)
Dutil, Petitioner
437 Mass. 9 (2002)
ii
Pages
38, 40
24
43
49
33, 43
49
6,26, 27, 28,
29, 36, 38
45
45
45
45
48
S5, 46
49
7, 30
31, 33
39

Case Laws
Guiney v. Police Comm'r of Boston
411 Mass. 692 (1989)
Horsemen's Benevolent & Protective
Ass'n Inc., v. State Racing Comrn'n
403 Mass. 692 (1989)
LaCava v. Lucander
58 Mass.App.Ct. 527 (2003)
Rosenbloom v. Kokofsky
373 Mass. 778 (1977)
Selectmen of Milton v. Justice
Dist. Ct.
286 Mass. 1 (1934)
Town o€ Rlackstone v. Town of
Mi lville
59 Mass.App.Ct. 565
U.S. Supreme Court
Brower v. County of Inyo
489 U.S. 593 (1987)
California v. Hoadari
499 U,S. 621 (1991)
Chapman v. California
386 U.S, 18 (1967)
Crawford v. Washin ton
541 U.S. 36 (20047
Feretta v+ California
422 U.S. 806 (1975)
Karo v. United States
468 U.S. 705 (1984)
Katz v. United States
389 U.S. 347 (1967)
McKaskle v. Wi gins
465 U.S. 168 71984)
iii
Pages
38
35
39
24
24
40, 41
PaRes
37, 38
38
44
46
32, &3, 44
37
35, 37
33

U.S. Supreme Court
Schmerber v. California
384 U.S. 757 (1966)
Smith v. Doe
538 U.S. 84 (2003)
Virginia v. Moore
128 S.Ct. 1598 (2008)
Federal Cases
United States V. Bailey
834 F.2d. 218 (1st. cir. 1987)
Other Jurisdiction Case Laws
People v. Weaver
909 N.E. 1195 (N.Y. 2009)
State v. Jackson
76 P.3d. 217 (Wash. 2003)
State v. Murtagh
Alaska No. S-11988/12007 (2007)
United States Constitution
Fourth Amendment
Fifth Amendment
Sixth Amendment
Thirteenth Amendment
Fourteenth Amendment
ii.ii
Pages
35, 37
32, 42
35, 38
Pages
44, 45, 47
PaEes
40
40, 41
46, 47
PaRes
24. 34, 35, 36,
37, 38, 50
25, 39
32, 43, 46, 50
25, 37
25, 39, 46, 50

Massachusetts Constitution
Article Twelve
Article Fourteen
Article Thirty
Massachusetts General Laws
G.L.~. 6, s i7ac
G.L.c. 211, g 3
G.L.c. 233, 205
G.L.c. 233, 3 20K
G.L.C. 2588, S 3(m)
G.L.c. 265, 3 47
E.L.c. 265, 3 52A
G.t.c. 268, 3 13B
G.L.c. 276, 5 58
E.L.c. 276, 3 586
G.L.c. 276, § 87
Federal Statutes
Title 10, c. 136, § 2281
Mass. Rules Criminal Procedures
Rule 14(a)(l)(iv)
Rule 36
V
PaEes
25, 32, 39,
45, 46, 50
25, 35, 36,
38, 50
23, 23, 24
Pages
2a,29, 37,50
2, 3, 4, 9
47
47
23, 47
7. 9. 23. 24.
2i, i6, i7, is,
29,.30, 33, 34,
35,36, 38, 39
41.42. 44-49.
50'
7
47
27, 28
49
27, 28
Pages
35, 36, 40
Pages
45, 48
15

Law Reviews And Commentaries
Megan A. Janick
Note: Better Seen Than Hered:
Residency Restrictions and Global
Positioning System Tracking Laws
for Sex Offenders, 16 B.U. Int.
J.L. 258 (2007).
Reepal S. DalaL
Note: Chipping Away at the Consti-
tution: The Increasing Use of RFID
Chips Could Lead to Erosion of
Privacy Rights, 86 B.U.L. Rev. 485
(2006).
R.J. Parker
Case Comment: Commonwealth v.
Morasse n. 1: Home Confinement:
Stretching the Limits On Restricting
a Probationer's Liberty (2008).
Richard G. VJright
Symposium: Parole and Probation:
Sex Offender Post-Incarceration
Sanctions: Are They Any Limits?
(2008), New tngland Journal On Criminal
and Civil Confinement.
Susan J. Walsh and Ivan J. Dominguez
Privacy and Technology : Law1 Enforce-
ment's Secrets Uses of GPS Devices,
Champion 26 (May 2009).
Note:
Who Are the People in your peighbor-
hood? Due Process, Public Protection,
And Sex Offender Notification Laws,
74 N.Y.U.L. Rev, 1451, 1467-1469
(1990)(describing acts of violence
against registered sex offenders).
George Orwell
Novel: 1984 (1949)
vi
Pages
43
43
36
36
43
42
40

I S S U E S P R E S E N T E D
1. WHERE A COURT ORDERED THE PROBATION DEFT. TO
ATTACH A "GP5 DEVICE" ON A PRETRIAL DEFENDANT,
WHO WAS NOT A CONVfCTED SEX OFFENDER, THE COURT
EXCEEDED ITS AUTHORITY AND VIOLATD THE SEPARA-
'TION OF POWERS BY GOING BEYOND THE LEGISLATIXVE
INTENT AND AVTHORITY OF G.E.C. 265, 5 47, IN
VIOLATION OF ART. 30 OF THE MASSACHUSETTS DE-
CL-ATION OF RIGHTS
2. WHERE PRETRIAL DEFENDANT WAS NOT A CONVICTED SEX
OFFENDER, TFIE COURT ERRED I N ORDERING THE DEFENDANT,
PURSUANT TO G.L.C. 265, 5 47, TO WEAR A GPS BRACELET
AS A CONDITION OF HIS BAIL AND PRETRIAL PROBATION,
WHICH INFIRNGED UPON TRE DEFENDANT'IS LIBERTY RIGBTS
UNDER THE 4TR. 5TH, 13TH, AND 14TB AMENDMENTS TO
THE UNITED STATES CONSTITUTION AND ART. 12 AND 14
OF THE MASSACHUSETTS DECLARATION OF RIGHTS
A. Can the GPS monitoring requirement of 5 47 be
imposed upon a pretrial defendant who is not
a convicted sex offender?
B. Does G.L.c. 265, 5 47 impose a substantial
burden on liberty through the use of the GPS
monitorinq and tracking system?
C. Governmental GPS monitoring, tracking, and
surveillance of Aldrich's movements and acti-
vities, pursuant to G.L.c. 265, 5 47. violated
Aldrich's fundamental constitutional rights
under the Fourth Amendment and Art. 14 from
unreasonable "searches" and "seizures".
D. Governmental GPS monitoring, tracking, and
surveillance of Aldrich's movements and acti-
vities, pursuant to G.L.c. 265, 5 47, violated
Aidrich's fundamental constitutional rights
under the 5th and 14th Amendments and Art. 12
to his personal "freedom" and "liberty".
vi i

3. WIlERE DEFENRANT Was ALLOWED TO PROCEED PRO
SE THROUGHOUT ALL PROCEDINGS, IT WAS A
DIRECT VIOLATION OF HIS SIXTH AMENDMENT
RIGHT FOR THE GOVERNMENT AND/OR ITS AGENTS ”
TO USE GPS DEVICE TO MONITOR, TRACK, AND
CONDUCT SURVEILLANCE OF PRO SE DEFENDANT
WHILLE HE PREPARED ms DEFENSE FOR TRIAL
A. Denial of Access To Wttnesses
B. Denial of Access To Witnesses
By Written Consent Requirement
C, Denial of Continuance To Access, Interview,
And Secure Attendance of Witnesses
D. Threats and Intimidation By Police Officer
A Day Before Trial Violated Defendant‘s
Substantive Constitutional Rights To Fair Trial
E. Abuse of Discretion In Revocation of Bail
During Trial Without Prior Notice or Hearinq
viii

STATEMENT OF PRIOR PROCEEDINGS
On February 7, 2008, a Middlesex county grand
jury returned 8 indictments against the defendant
' for burglary, larceny, larceny, attempt to commit
a crime, burglarious tool, destruction o f property,
resisting arrest
00164,~001-008).
as an habitual o
attached hereto
"1-23"). 1/
and false name (Indict, nos. 2008-
The defendant was also indicted
fender. The docket entry sheet is
n the Record of Appendix (R.A.
On February 25, 2008, defendant was arraigned
in Middlesex Superior Court, and he was granted
leave to proceed "Pro Se" after a full colloquy
from the court (R.A. "3", no. 7).
On February 25, 2008, during arraignment,
the Commonwealth's request for $25,000.00 cash
bail was allowed, and the defendant was held in
custody.
On March 18, 2009, the defendant's motion
for reduction of bail was allowed, and the court
vacated the original bail. The court reduced the
bail to $50,000.00 surety or $5,000.00 cash yith
conditions of GPS electronic bracelet, at the
Commonwealth's request (R.A. "IO").
1/ The exhibits within the attached Record of
Appendix shall be referred to as (R.A."[page]").

On August 8, 2009, the defendant filed, in
Middlesex Superior Court, 'an "Emergency Motion
To Vacate Electronic (GPS) Bracelet As A Gondi-
tion of Bail Due To Recent Supreme Judicial Court
Decision," based 'on the fact that the defendant
-
was not a convicted sex oEfender. The motion was
denied (Kottmyer, J.)(R.A. "13", no. 163).
On August 26, 2009, the defendant's bail
was posted in the. amount of $5,000.00 cash;
however, a note.was written on the bail receipt
that the defendant was to be released to bracelet
"hold," and defendant was not released from
custody (R.A. "24").
On August 31, 2009, the defendant filed,
with the.Single Justice of the Supreme Judicial .
11
Court, a Petition To Supreme Judicial Court For
Relief Pursuant to G.L.c. 211, ? 3 From A Superior
Court Order Requiring Petitioner TO Wear A Global
Positioning System (GFS) Device As A Condition
Of His Release On.Bai1," which was docketed in'
the Supreme Judicial Court on September 3, 2009, ,
under docket number 2009-0474 (R.A. "25-32").
On September 2, 2009, defendant was released
on bail with the GPS electronic bracelet attached
to his ankle (R.A. "13," no, 164).

On September 8, 2009, while on bail, the
Pro Se defendant filed, in Middlesex Superior
Court, a "Petition To Remove Electronic Bracelet
As A Condition of Bail," which was denied (Connors,
J.)(R.A. "33-35").
On September 8, 2009, the defendant then
filed, with the Single Justice of the Supreme
,I
Judicial Court, a Motion Requesting Emergency
I,
Ex Parte Hearing, for a procedural order to
vacate the lower court's ruling which forced
the defendant to wear a FPS electronic bracelet,
which was denied (Cordy, J.)(R.A. "36-38").
On September 17, 2009, a Single Justice
of the Supreme Judicial Court (Cordy, J.)
denied defendant's Petition for relief pursuant
to C.L.C. 211, 5 3 (R.A. "39-40").
On October 8, 2009, defendant filed anew,
withniddlesex Superior Court, a "Motion to Vacate
Original Order Imposing Electronic GPS Bracelet
As A Condition of Bail,'' which was denied (Muse,
J.)(R.A. "13", no. 167).
On October 22, 2009, defendant filed, with
Middlesex Superior Court, a "Motion To Vacate
Curfew Due To Use Of Electronic GPS Bracelet
Tracking System," which was denied (Muse, J.)
(B.A. "13", no. 168).
3

On December 15, 2009, after a jury trial,
defendant was found guilty of burglary, larceny,
Larceny, and attempt to commit a crime (R.A. "17",
nos. 216-219), and after a subsequent jury hearing
defendant was sentenced as an habitual offender to
20 years for burglary, 5 years for larceny, and
2 years probation for attempt to commit a crime
(K.A. "17-18").
On August 26, 2010, defendant filed with the
II
Single Justice a Motion Requesting Leave to Re-
instate Appeal," and on September 17, 2010, a
"Motion To File Late Appeal From Petition To
Supreme Judicial Court For Relief Pursuant To
G.L.c. 211, 8 3, From A Superior Court Order
Requiring Petitioner to Wear A Global Positioning
System (GPS) Device As A Condition of His Release
On Bail," which was allowed by the Single Justice
(Cordy, J.)(R.A. "41").
On October 25, 2010, defendant's "Motion To
Enter Appeal On Docket Before The Full Supreme
1,
Judicial Court, was allowed (R.A. "42").
On Decemebr 13, 2010, defendant's "Motion
To Extend Time To File Brief To January 20, 2011,"
was allowed (R.A. "43").
4

STATEMENT aF FACTS
On January 6, 2008, defendant was arrested at
the scene of an alleged early morning housebreak,
and subsequently charged with burglary, larceny,
resisting. arrest, and possession.of burglarious
tools.
On January 8, 2008, defendmt was arraigned
in Cambridge District Court, and held in custody
in lieu of bail. On February 7, 2008, defendant
was indicted by. a Middlesex County grand jury
(nos. 2008-00164, 001-008). .an February 25,'.2008,
aGfendant was arraigned- in Middlesex .Superior
Court, and upon the Commonwealth's 'request, the
defendant was held in custody on '$25,000.00 cash
bail (R.A. "3").
Most significant was the fact that the
defendant was allowed to proceed "Pro Se" in
representing himself in all aspects of his
criminal case after he received a full colloquy
from the court (Gershengorn, J.)(R.A. "3", no.
From March 25, 2008, through July 10, 2009
the Pro Se defendant filed discovery motions and
requests to interview the Commonwealth's witnesses
(R.A. "3-12", nos. 14-152). However, the Commonwealth
5

consistently impeded and interferred with the Pro
Se defendant's attempt to gather evidence in support
of his defense. The adversarial tension became so
acute that the Pro Se defendant was substantially
and unfairly deprived of his constitutional rights
to due process and equal protection of the law where
the prosecuting attorney systematically withheld
exculpatory evidence and systematica1I.y cutoff a ll
avenues of the Pro Se defendant to prepare an
adequate defense by misusing the superior resources
of the state.
On August 3, 2009, the Pro Se defendant filed
a "Motion For Protective Order Prohibiting Common-
wealth And/or Its Agents From Interfsrring With
Defense," which is a constitutional right under the
6th Amendment; however, the motion was denied by
the court (Kottmyer, J.)(R.A. "44-46").
On August 8, 2009, based on two recently
decided cases, 2/ the defendant filed, in Middle-
It
sex Superior Court, an Emergency Motion To Vacate
Electronic (GPS) Bracelet As A Condition of Bail
Due To Recent Supereme Judicial Court Decisions,
to remove the GPS electronic bracelet as a condition
2/ Commonwealth v. Raposo, 453 Mass. 739 (May 7,
2009) and Emelio E. v.~ Commonwealth, 453 Mass.1024
(May 7, 2009).
6
,I

of bail whereas the defendant was awaiting trial
and he was - not a convicted sex offender as required
by G.L.c. 265, 5 47. The hearing judge (Kottmyer,
J.) claimed that the two recent decisions did not
apply, and that her reading o f the bail statute
allowed her the discretion to place the deEendant
on a GPS bracelet as a condition of bail, and denied
the motion (Kottrnyer, J.)(R.A. "13", no. 163). 3/
On August 26, 2009, the defendant's mother
posted his bail in the amount of $5,000.00 cash;
however, after defendant signed the bail receipt,
the defendant was told that he would not be released
at that time because a "hold" was placed on him until
the GPS monitoring base unit was installed at his
house, and the GPS electronic bracelet was affixed
to his ankle (R.A. "24"). The defendant was then
returned to custody at MCI Concord as a pretrial
detainee under 52A status (G.L.C. 265, 5 52A).
On Septemebr 2, 2009, seven days later, the
GPS monitoring base unit was installed at defendant's
house, the defendant was fitted with the electronic
monitoring device, and released from custody (R.A.
"13", no. 164).
3/ Three months prior, in Commonwealth v. Vallejo,
455 Mass. 72 (Mav -, 5. , 2009). a decision bv the
same judge (Kottmyer, J.)-was reversed regarding
her misapplication of G.L.c. 265, 5 47.
7

On September 8, 2009, the defendnat appeared
at a hearing on his "Petition To Remove Electronic
Bracelet As A Condition of Bail," where he again
complained to the court that he was - not a sex
offender, and that his liberty was substantially
circumscribed, especially where he was precluded
from visiting his younger brother (Paul Aldrich)
who had recently suffered a massive brain aneurysm
and was receiving long term treatment at a New
Hampshire rehabilitation center. The hearing judge
threatened to return the defendant "back to the can"
if he refused to wear the GPS bracelet. When the
defendant attempted to cite the two recent decisions
(see n. 2), the hearing judge simply stated that
they do not apply. The Probation Officer then
requested a modification of the bail conditions
(R.A. "33").
The hearing judge (Conners, J.) accepted the
Probation Officer's recommended rnodifictions, over
defendant's objection, and imposed a residential
curfew from 8 :OO PM to 6:OO AM, and allowed defendant
to visit his seriously ill brother in New Hampshire
on the weekends. However, defendant was required
to wear GPS bracelet at all times (R.A. "33").
8

On September 8, and 18, 2009, the Pro se
defendant filed with the Single Justice of the
Supreme Judicial Court a "Motion Requesting
Emergency Ex Parte Hearing'' and a "Petition For
Relief Pursuant To F.L,c. 211, 8 3", seeking
an order to vacate the lower court's misapplica-
tion of G.L.c. 265, $ 47, forcing defendant to
wear a GPS electronic bracelet. However, both
matters were denied without a hearing (Cordy, J.)
(R.A. "36-40").
While on bail, the defendnat was ridiculed,
ostracized, and harassed by family, friends, and
the public in general. So much so that family and
friends made it known to the defendant that they
did not want the defendant to be around their
children unsupervised because the court would not
have put the defendant on a GPS electronic bracelet
if he was not a sex offender.
The defendant was stopped by the police on
several occasions, allegedly to check his license
and registration for some contrived motor vehicle
infraction, but never given a citation. Defendant's
movements were being closely monitored by police
and other law enforcement entities with access to
the GPS monitoring system.
9

The defendant receieved numerous telephone
calls on his cell phone from the GPS monitoring
office questioning him about his whereabouts and
curfew compliance, and whether he was near any
parks or playgrounds. The defendant repeatedly
complained that -he was - not a sex offender,
and demanded to speak with the GPS monitoring
system supervisor. After several convcrsations
with the GPS monitoring supervisor the defendant
was instructed to go back to the court and get
them to vacate the GPS bracelet as a condition
of bail, but until then the defendant had to
remain in compliance or a warrant would be issue
for his arrest.
On October 22, 2009, the Pro Se defendant
filed a "Motion To Vacate Curfew Due To Use Of
11
Electronic GFS Bracelet Tracking System, in
Middlesex Superior Court (R.A. "13", no. 168).
The prosecuting attorney reiterated that they
wanted to monitor the defendant's movements
while on bail to ensure that he did not violate
a 1000 feet stay away order from the home that
was burglarized, to ensure his appearance in
court, and to monitor his involvement in any
criminal activity. Again, the defendant argued
10

that he was - not a convicted sex offender, and
that he was on bail for property related crimes.
The defendant also argued that the government
had an uLterior motive €or placing the Pro Se
defendant an the GPS tracking device so as to
monitor and conduct 24 hour surveillance on
the defendant‘s movements as he prepared his
case for trial. The hearing judge (Muse, J.),
threatened to revoke defendant’s bail and have
him placed back in custody i f the defendant
persisted with his challenge to the conditions
of bail that he wear a GPS bracelet, The motion
was then denied (R.A. “13” , no. 168).
The Pro Se defendant then complained to
the Middlesex Superior Court Chief Frobation
Officer (Joyce Coleman), that the Probation
Department did not have the legal authority to
maintain supervision over the defendant through
the use of GFS monitoring because the defendant
-
was not a sex offender. The Chief Probation
Officer agreed that there was a conflict, but
that there was nothing she could do except to
notify the Commissioner of Probation about the
problem.
11

The Pro Se defendant sent an email to the
Commissioner of Probation complaining that the
probation department did not have the authority
to maintain probation supervision over the defendant
through the use of GPS monitoring because the
defendant was I_
not a convicted sex offender. The
defendant received a telephone call from someone
from the Commissioner of Probation's office who
advised the defendant that the probation dept.
had hundreds of people on the GPS electronic
bracelet, and that the defendant would have to
petition the court to be taken off of the GPS
electronic bracelet, otherwise a warrant would
be issued for his arrest if he removed the GPS
electronic bracelet on his own or failed to
comply with the corresponding conditions.
When the Pro Se defendant attempted to
interview the Commonwealth's witnesses, he was
met with fierce resistance from the prosecuting
attorney, who continuously refused to comply with
mandatory discovery and would not provide the Pro
Se defendant with the names and address of the
Commonwealth's witnesses. Standby counsel (Bruce
Ferg) advised the Pro Se defendant not to attempt
to contact any of the Commonwealth's witnesses
. .
12

else he would be setting himself up for a claim
of violating the conditions of bail.
By this point, the Pro Se defendant had
exercised every conceivable option available t o
him to seek relief through the courts. The Pro Se
defendant was hardpressed and hedged in by the
government on all sides, and completely stymied
in his ability to develope a defense due to the
government's constant interference by systematic-
ally inEringing upon and/or supplanting his
constitutional rights to formulate a defense, all
of which is connected, in whole or in part, to the
government's use of the GPS electronic bracelet to
monitor, track, and maintain a constant surveillance
of the Pro Se defendant a5 he prepared for trial.
On December 2, 2009, five days before the
start of trial, as a last resort, the Pro Se
defendant filed a "Motion Requesting Court Order
To Interview Commonwealth's Witnesses For Trial
Purposes" (R.A. "47"). During the pretrial hearing,
the prosecutor objected to the Pro Se defendant
being allowed to interview its witnesses, and she
would not provide the defendant with the names and
addresses of the Commonwealth's witnesses. The
hearing judge (Muse, J.), realizing 'chat this has
13

een an ongoing problem, allowed the motion, in
part; however, as a precondition, the hearing judge
issued an unusual order requiring the Pro Se defendant
to write a letter to the Commonwealth's witnesses,
and give the letters to the prosecutor to review the
contents, as a prerequisite, and the prosecutor would
then transmit the letters to the witnesses whom the
Pro Se defendant wanted to interview (R.A. "I&", no.
171).
Standby counsel (Bruce Ferg) then advised the
defendant to - not write any letters which the Common-
wealth would be allowed to review beforc the letters
were transmitted to the witnesses because it would
be a direct violation of defendant's 6th amendment
rights.
On December 7, 2009, the Pro Se defendant filed
a "Motion To Continue Trial Date,
wherein on ground two he argued that he was 'I... not
properly prepared for trial where he has been engaged
in the process of interviewing the Commonwealth's
witnesses and evidence before trial, " (R+A. "48").
The motion was denied (Muse, J.)(R.A. "14" , no. 185).
On the same date, the prosecuting attorney
I,
citing four grounds,
filed "Commonwealth List of Potential Witnesses,
14
I,

which, remarkably, contained a list of 21 witnesses
(R.A. "49-50").
The Pro Se defendant strenguously objected and
argued that the Commonwealth had manipulated the
process for disclosure and access to its witnesses
-
for nearly two years, while at the same time with-
holding the names and addresses of its witnesses
until the day of trial, in violation of mandatory
discovery. The Pro Se defendant further argued that
where the court was forcing him to trial the next
day (12/08/09), after having just received a list
of 21 witnesses from the Commonwealth that day
(12/07/09), would result in a "trial by ambush."
The trial judge (Muse, J.) stated that the dcfen-
dant's objection was "duly noted,"and he then
threatened the defendant that if he appeared late
for trial the next day, the court would revoke
defendantls bail, and have him taken back into
custody (R.A. "48").
All the while, the government maintained a
constant surveillance of the Pro 5e defendant's
movements and activities through GPS electronic
moitoring and tracking.
On December 8, 2009, the defendant filed
II
Defendant's Motion For Continuance Of Trial And
II
Waiver of Rule 36 Speedy Trial Right, citing
15

several grounds, including the issue that he was
being placed at a substantial disadvanatge by not
being afforded the opportunity to interview the
Commonwealth’s witnesses, especially where the
Commonwealth filed an extensive witness list on
the previous day (12/07/09). The trial judge (Muse,
J.) again noted defendant’s objection, and denied
the motion (R.A. “51”). After jury selection and
enpanellrnent, the session was adjourned, and trial
was to begin the next day.
On December 8, 2009, later that afternoon,
the defendant went to the office of attorney Lisa
S. Belanger, i n Medford to discuss trial strategies
and defenses. Attorney Belanger called the GPS
monitoring center and requested additional time
for the defendant to prepare for trial at her
office; however, that request was denied. The
defendant was instructed to step outside so that
the GPS monitoring center could re-adjust their
GPS tracking monitor.
Shortly after the defendant left attorney
Belanger’s office, the GPS tracking system
recognized that the defendant was no longer at
attorney Belanger’s office. While at Men’s Wear-
house, the defendant received a phone call on his
cellular phone from a Cambridge Police Officer,
16

who threatened the defendant with additional
criminal charges for unsolved burglaries if
the defendant went forward with the trial. The
police officer went on to 'cell the defendant that
he should not challenge the background and train-
ing of his fellow female officer, and that the
defendant was stupid for representing himself.
The police officer then threatened the defendant
to plead guilty to save themalot of trouble or
he would talk with the D.A. and make sure the
defendant received 20 years retirement in prison.
The defendant became fearful and intimidated by
the phone call from the police officer, and he
was sure that the call was only made to him
after he left attorney Eelanger's office, which
would have been easily known through GP5 monitor-
iong, tracking, and surveillance.
The defendant then called attorney Belanger
and told her about the threatening phone call
he received from a Cambridge Police Officer.
Attorney Belanger was deeply concerned about the
telephone threats from a police officer, and she
advised the defendant to get a copy of the METRO
PCS Cellular phone record as evidence before
bringing the matter to the attention of the Court
(B.A. "52-53").
17

The defendant then informed Ms. Marie Williams
(owner of the cellular phone) about the telephone
threats from a police officer, and Ms. Williams
stated that she would get a copy of the METRO PCS
cellular phone records as soon as possible. (R.A.
"54-55").
The defendant also contacted his legal assist-
ant, Ms. Joe Younge, and informed her about the
threatening phone call from a police officer, and
Ms. Younge also advised the defendant to get a copy
of the METRO PCS cellular phone records as proof
before bringing the matter to the attention of the
court (R.A. "56-57").
The defendant had been leery about aggressively
pursuing defense leads and questioning potential
witnesses because of the GPS monitoring, tracking,
and surveillance, and his reluctance was proven
to have some merit as a result of the timing of
the threatening phone call from a police officer
shortly after leaving attorney Relanger's office,
and a day before the start of trial. All of which
was aimed at interfering and inlfuencing trial
proceedings. While at the same time, the defen-
dant had to endure constant harassment, ridicule,
and ostracization by being mislablled as a sex
offender wearing a GPS electronic bracelet.
18
.

As a result of three months of constant GPS
monitoring, tracking, and surveillance, which
culminated in a threatening phone call from a
police officer the day before trial, the Pro Se
defendant has reason to be fearful and leery,
The PKO se defendant changed his defense, and
decided to not testify on his own behalf at trial.
After closing arguments and jruy instructions,
as the jury was leaving the courtroom for delibera-
tion, the trial judge instructed the defendant to
remain in the courtraom (the Pro Se defendant was
preparing to leave the courtroom to call the
missing witnesses). The trial judge (Muse, J.),
then ordered that court officers to take the
Pro Se defendant into custody. When the defendant
asked the trial judge what was going on, the trial
judge stated that he was revoking the dgfendant's
bail. The defendant argued that he had not violated
the conditions of his bail or the GPS consitions,
and that the Commonwealth did not request that the
defendant's bail be revoked. The trial judge stated
that he was revoking the defendant's bail, "sua
sponte. 1,
Though the trial was still in progress, the Pro
Se defmdant was taken into custody and placed in
19

the court holding cell. When attorney Lisa Belanger
attempted to visit the defendant in the holding cell,
attorney Belanger was denied access to the defendant
by the court officer who informed attorney Belanger
I' I'
that it was per order of the judge.
Though the trial was still in process, the Pro
Se defendant was taken into custody and placed in
the court holding cell. When attorney Lisa Belanger
attempted to visit the defendant in the holding cell,
attorney Belanger was denied access to the defendant
by the court officer who informed attorney Belanger
that it was "per order of the judge.
The defendant was found guilty by the jury, and
after a subsequent hearing, the trial judge (Muse,
J.) sentenced the defendant to 20 years as a habitual.
offender for burglary, two concurrent 5 year sentences
for larcenies, and 2 years probation from and after
for attempt to commit a crime (B.A. "17-18").
Shortly thereafter, the GPS electronic bracelet
was removed from the defendant's ankle, and the
defendant was transported to MCI Cedar Junction.
Three months later, on March 27, 2010, Ms.
Marie Williams received a copy of her METRO PCS
cellular phone records (857-251-5661), which revealed
the date, time, duration and incoming telephone
number of the phone used to make the threatening
T I

phone call to the defendant from a police officer
(Christopher Burke), on 12/8/2009, at 17:OO (5 PM),
which lasted approximately 14:09 minutes (R.A. "52-
53").
The phone records also show that the defendant
had, in fact, called attorney Lisa S.' Relanger,
(617-510-6212)(R.A. "53"), .Ms. Marie Williams,
(617-436-5127)(B.A. "s"), and Ms. Joe Younge
(617-800-5851)(R.A. "51"), after he received the
threatening phone call from a police officer (617-
349-3385) (R. A * "53").
To verify the incoming phone number from. the
police officer who threatened the defendant a day
before trial, the defendant was able to obtain a
copy of the internet informational phone directory
for the ''City of Cambridge Police Department ,"
{R.A. "%"), where he €ound that the incoming
telephone number 617-349-3385 belonged to Cambridge
Police Officer, "Christopher Burke," (R.A. "56").
On July 9, 2010, the defendant received an
affidavit from attorney Lisa Siege1 Belanger which
recited the fact that the defendent was in her
office just. prior to the threatening phone call,
that the defendant called her imrned.iately after
receiving the threatening phone call, and her
advice to obta-in a copy O f the cellular telephone
21

ecords (R,A. "59-60") - 4/
In response to the defendant's allegations
of police misconduct and threats from a police
officer before trial, 5/ the government filed
its opposition with an attached affidavit from
II
"Christopher J. Burke, wherein officer Burke
admitted t o calling the Pro Se defendant and to
the contents of the telephone conversation;
however, officer Burke did not admit to threat-
ening and/or intimidating the defendant a day
before trial (R.A. "6T-62"). Moreover, officer
Burke did not admit or deny whether the Pro Se
defendant was the subject of governmental GPS
surveillance and tracking while on bail (R.A.
"61 -62" 1.
4/ Attorney Belanger mistakenly listed the
name as Officer Gallagher, when, in fact,
the Officer's .. . name was "Christopher Burke,"
(Ria.. 1'.6L-62")
5/ The defendant's Motion for New Trial was
denied without a hearing (Muse, J., 09/
21/2010)(B.A. "21", n. 271. & 274).
22.

A R G U M E N T S
1. WHERE A COURT ORDERED THE PROBATION DEPT. TO
ATTACH A "GPS DEVICE" ON A PRETRIAL DEFENDANT,
WHO WAS NOT A CONVICTED SEX OFFENDER, THE COURT
EXCEEDED ITS AUTHORITY AND VIOLATED THE SEPARA-
TION OFPOWERSEY GOING BEYOND THE LEGISLATIVE
INTENT AND AUTHORITY OF G.L.C. 265, 5 47, IN
VIOLATION OF ART. 30 OF THE MASSACHUSETTS DE-
CLAWTION OF RIGHTS
In 2006, the Massachusetts Legislature enacted
M.G.L.c, 265, S 47; entitled as "Probation of Sex
Of fenders ; Geographic Exclusion Zones ; GPS." (Adden-
dum, p. I), Section 47 reads, in part:
"Any person who is placed on probation for any
offense listed within the definition of "sex
offense", a "sex offense involving a child'' or
I,
a sexually violent offense", as defined in
section 178C of chapter 6 , shall, as a requirement
of any term of probation, wear a global
positioning system device, or any comparable
device, administered by the commission of
probation, at all times for the length of his
II
probation for any offense.
The Legislature did - not enact any other corre:
spending or ancillary statues or amendments which
expressly authorize the warrantless use of a "GPS
device", especially on pretrial defendants who are
- not convicted sex offenders. See Legislative history
of Acts 2006, 303 5 8. Also see Commonwealth v.
Connolly, 454 Mass, 808, 818-826 (2009).
The Massachusetts Constitution Declaration of
11
Rights Art. 30: Separation of Executive, Judicial,
23
._

and Legislative Departments", (Addendum, p. 9),
clearly states, in part:
"the judicial shall never exercise the legis-
lative and executive powers, or either of
them: to the end it may be a government of
laws and not of men. I,
Here, a Superior Court judge exceeded his authority
and violated the "Separation of Powers" of Art. 30 when
he ordered the probation department to attach a "GPS
device" to the defendant as a condition of bail, where
the defendant was - not and is - not a convictedsexoffender
pursuant t o G.L.c. 265, 47. (R.A. "33").
A Superior Court judge does not have "unfettered
discretion" to act outside the scope and authority of
a statute. Commonwealth v. Guzman, 446 Mass. 344 (2006);
Rosenbloom v. Kokofsky, 375 Mass. 778 (1977)(Scope and
auithority of Supreme Judicial Court to interpret and
apply statues is limited by its constitutional role as
judicial, rather than, legislative body); and Selectmen
of Milton v. Justice of Dist. Ct., 286 Mass. 1 (1934)
(No legislative or executive powers can be constitution-
ally conferred upon the courts. That is strickly for-
bidden by this [Art. 301 provision).
Thus, where defendant was not sentenced, not on
probation, and not a convicted sex offender, the court
violated Art, 30 by imposing "GPS device" on him,
which exceeded the authority of G.L.c. 265, 8 47, See
and compare Commonwealth v. Donohue, 452 Mass. 256 (2008).
24

A R G U M E N T S
2. WHERE PRETRIAL DEFENDANT WAS NOT A CONVICTED
SEX OFFENDER, THE COURT ERRED IN ORDERING THE
DEFENDANT, PURSUANT TO G.L.C. 265, 5 47, TO
WEAR A GPS BRACELET AS A CONDITION OF HIS BAIL
AND PRETRIAL PROBATION, WlCH INFRINGED ON
THE DEFENDANT'S LIBERTY RIGHTS UNDER THE 4TH.
This is a case of "FIRST IMPRESSTON," which is
of constitutional importance where a lower court judge
incorrectly ordered a pretrial defendant, who was not
a convicted sex offender, to wear a Global Positioning
System (GPS) device as a condition of his release on
bail, pursuant to G.L.c. 265, 47. (Addendum, p. 1)"
A. Can the GPS monitoring requirement of $ 47 be
imposed upon a pretrial defendant who is not
a convicted sex offender?
The defendant contends that the GPS monitoring
requirement of G.L.c. 265, 5 47, can - not be imposed
on a pretrial defendant who is not a convicted sex
offender, and to do so would violate the Fourth,
Fifth, Thirteenth, and Fourteenth Amendments to the
United States Constitution, and Articles Twelve and
Fourteen of the Massachusetts Constitution Declara-
tion of rights to freedom a,nd liberty. '(Addendm,.p. .2-8).
;\ The Addendum is hereto attached which contain
reference pages pertaining to federal and state
constitutions, statutes, and relevant case l aws.
25

There are only - two known cases cited in
Massachusetts which challenged the application
of G.L.c. 265, 5 47, where a lower court judge
required that an untried defendant wear a GPS
monitoring device as a condition of pretrial
release, and in BOTH cases this Court granted
relief. See Commonwealth v. Raposo, 453 Mass.
739 (2009) and Emelio E. v. Commonwealth, 453
Mass. 1024 (2009).
, In Raposo, supra, this Court elected to
not address the five reported questions pertain-
ing to various constitutional issues associated
with the application of G.L.c. 265, 5 47 to
persons placed on probation for certain sex
offenses and required to wear a GPS monitoring
device. In Raposo, supra at 742, this Court
left open and undecided five reported questions,
and ruled that "[b]ecause we conclude that 5 47
does not apply to a person, such as the defendant
in this case, who is placed oh probation before
trial or entry of guilty plea or admission to
sufficient facts, and not as part of a sentence
or disposition following conviction, we need not
reach the reported constitutional questions.
Raposo, supra at 733.
26
1,

In Emelio E, V. Commonwealth, 453 Mass. 1024
(2009), this Court was faced with a similar issue
whether G.L.c. 265, 8 47, required that Emelio E.
I,
wear a global positioning system (GPS) device as
a mandatory condition of his release on probation
pending trial." Emelio, supra at 560. In deciding
Emelio, this Court relied on its prior decision
in Raposo, supra at 740, holding that S 47 "does
not apply to persons placed on probation prior to
trial and prior to conviction or entry of a plea
oradmission to facts sufficient for a finding of
guilty." Emphasis added. Emelio, supra at 1024
Though Raposo, was placed on pretrial proba-
tion pursuant to G.L.c. 276, s 87, this Court
rejected the Commonwealth's argument that 8 47
must be interpreted harmoniously with G.L.c. 276,
5 87. Simply put, this Court stated: "[t]he
I,
argument is not persuasive. Raposo, supra at
748. Cf. Commonwealth v. Donohue, 452 Mass. 256 (2008).
Conversely, Emelio, was released on bail
with supervised release through the probation
department pursuant to G.L.c. 276, 5 58. Again
this Court reiterated its holding in Raposo,
supra at 740, that 5 47 "does not apply topersons

placed on probation prior to trial and prior to
conviction or entry of a plea of guilty or admission
to facts sufficient for a finding of guilty." Emphasis
added. Emelio, supra at 1024. Also of significant
importance is the fact that this Court concludedthat
the distinction between G.L.c. 276, $ 87 and G.L.c.
276, 3 58, had "no bearing on our resolution of this
I1
cnse. Emelio, supra at n. 3.
Therefore, based on Raposo and Emelio, supra,
as a matter of judicial precendence (stare decisis),
the issue is now well settled thatapretrialdefendant
cannot be required to wear a global positioning system
(GPS) device (pursuant to G.L.c. 265, 471, whether
he is released from custody on pretrial probation
pursuant to G.L.G. 276, 5 87 (Raposo, supra a t 740),
or bail pursuant to G.L.c. 276, 5 58 (Emelio, supra
at n. 3). Moreover, as a matter of statutory inter-
pretation, this Court concluded from the language
and history of G.L.c. 265, s 47, "that the Mass-
achusetts legislature intends a global positioning
system requirement to apply only to convicted
individuals." Raposo, supra at 748.
Though both Raposo and Emelio were charged with
sex offenses, as defined by G.L.c. 6, § 178C);
however, Emelio was awaiting trial and had "not

admitted to facts u€ficient for such an
cation. The judge was therefore incorrect
djudi-
concluding that 5 47 required imposition of GPS
monitoring in this case." Emelio, supra at 1024-
1025.
In the instant matter, the defendant was
- -
not and is not a convicted sex offender (R.A.
"63-78"). 6/ See G.L.c. 6, 5 178C (to which
5 47 refers for other definitions), defining a
[s]ex offender'' as a person II who has been convicted
I'
of a sex offense. Commonwealth v. Raposo, 453
Mass. 739, n. 8 (2009).
Moreover, the defendant was awaiting trial
in Middlesex Superior Court (no. 2008-0164) for
non sex related crimes, i.e. burglary, larceny,
larceny, attempt to comitt a crime, burglarious
'cool, destruction of property, resisting arrest,
and false name violation (R.A. ''1").
On September 2 , 2009, like Emelio, supra at
560, this defendant was released on bail pending
trial with the requirement that he wear a global
positioning system (GPS) monitoring device, and
supervision by the Middlesex Superior Court
Probation Department (R.A. "10").
6/ A copy of defendant's entire juvenile and
adult-criminal adult criminal record i s attached (R.A."63-
78" ) .
___
29
in

However, the defendant was not released until
the Middlesex Superior Court Probation Department
installed the GPS rnon'itoring base unit at defendant's
home, and attached the GPS ankle bracelet and trans-.
ponder to the defendant's person (R.A. "13", n. 164),
pursuant to G.L.c. 265, 5 47. -(Addendum, p. i)
The defendant,€iled numerous motions challenging
the imposition of the GPS monitoring, device as a
condition o€ his release, .pursuant to G.L.c. 276, 8
47 (R,A. "13", n. 163, 167, and 168; R.A. "25-30";
R.A. "33-35"; and B.A. "36-38"). And at all times,
the defendant objected t o the imposition of the
GPS monitoring device,, and complained to the court
that he was - not a convicted sex offender, as required
by G.L.c. 276, $47. Cf. Commonwealth v. Cory, 454
Mass. 559 (2009); Commonwealth v.. Vallejo, 455 Mass.
72 (2009): and Commonwealth v. Blake, 454 Mass. 267
(2009) (Adjudicated a sexual dangerous person).
The defendant endured constant harassment,
bullying, ridicule, humiliation, and ostracization
as being mislabeled as'an infamous "sex offender"
I,
and sexual predator" due to observations of the
GPS monitoring bracelet and transponder, Similarly,
this Court has said that the sex registry require-
ment "presents an importantly distinct kind of
30

constitutional danger, because it forces an action
on the person required to register. It is a contin-
uing, intrusive, and humiliating regulation of the
person himself," Doe v. Sex O€fender Registry Bd.,
450 Mass. 780, 792 (2008); quoted in Commonwealth
v. Cory, 454 Mass. 559, 570, (2009).
It is publically andprivately humiliating and
stressful to be harassed as a convicted sex offender,
-
but moreso when a person is not a convicted sex
offender simply because he or she i s forced to
wear a GPS monitoring bracelet and transponder.
In Cory, supra at 570, this Court addressed the
potential consequences of when the State physically
att&hes a GPS device to a person, and stated:
11
As 'continuing, intrusive, and humiliating'
as a yearly registration requirement might
be, a requirement permanently to attach a
CPS device seems dramatically more intrusive
and burdensome. There is no context other
than punsihment in which the State physically
attaches an item to a person, without consent
and also without consideration of individual
circumstances, that must remain attached €or
a period of years and may not be tampered
with or removed on penalty of imprisonment.
Such an imposition is a serious, affirmative
restraint." Cory at 570.
33

This Court further stated the following:
"To the extent that the ankle bracelet
portion of the GPS device i s potentially
visible to the public, it may have the
additional punitive effect of exposing
the offender t o persecution or ostracism,
or at least placing the offender i n fear
of such consequences. Cf. Smith v. Doe,
538 U.S. 84, 115 (2003)(Cinsburg, J.
dissenting)(affirrnative restraint estab-
, lished by "profound humiliation and community
wide ostracism" of sex offender registry);
Note, Who Are The People in your Neighbor-
hood? Due Process, Public Protection,
And Sex Offender Notification Laws, 74 N.Y.
U. L. Rev. 1451, 1467-1469 (1999)(describing
acts of violence against sex offenders).
Cf. also N. Hawthorne, The Scarlet Letter 58
(1871)("Ah, but ... let her cover the
mark as she will, the pang Gf it will be always
in her heart")." Cory, at TI. 18.
Moreover, it can be forcefully argued that
such a stressful situation had a mjor impact on
the Pro Se defendant, and substantially impaired
his ability to prepare a defense for trial in
violation of his 6th Amendment. right to the United
States Constitution. See Faretta v. California,
422 U.S. 806, 829 (1975)(The right to s elf rep-
resentation and the right t o the making of a
defense). See also Art. 12 Declaration of Rights.
32
.,

defense); McKaskle v. Wigpins, 465 U.S. 168, 173
(1984)(A criminal defendant has the right t o
conduct his own defense, provided only that he
knowingly and intelligently forgoes his right to
counsel and that he abides by rules of procedures
and courtroom protocol); and Commonwealth v. Apple-
&, 389 Mass. 359, 366, cert. denied, 464 U.S.
841 (1983); and Commonwealth v. Martin, 425 Mass.
718, 720-721 (1997).
Thus, where a lower court judge abused his
discretion and misapplied G.L.c. 276, 3 47, and
required the Pro Se defendant t o wear a GPS monitor-
ing tracking device during his pretrial release,
-
and defendant was not a convicted sex ofrender,
was plain error, and the defendant i s entitled
to relief, accordingly.
B. Does G.L.c. 265, 3 47 impose a substantial
burden on liberty through the use of the
GPS monitoring and tracking system7
This Court recently decided in Commonwealth
v. Cory, 454 Mass. 559 (2009), that "AS a result
of the substantial burden on liberty Mass. Gen.
Laws Ch. 265, 3 47 imposes as part of the sentence
for certain crimes, 5 47 is punitive in effect.
Id at 572. See Doe v. Sex Offender Repistry Bd.,
450 Mass. 780 (2008) ("Serious affirmative restraint").
33
11

Under the unusual. circumstances o f this
case, where a Superior Court judge abused his
discretion and exceeded the statutory authority
of G.L.c. 265, 5 47 by arbitrarily and indiscri-
minately imposing a GPS monitoring device on
the defendant (hereafter "Aldrich"), who was
_I not a convicted sex offender, resulted in a
"substantial burden on [his] liberty," which
clearly violated Aldrich's fundmental constitutionally
protected rights under - both the federal
and state constitutions. col-y, supra at 572.
The Fourth Amendment of the United States
Constitution guarantees that "the right of the
people to be secure in their persons, houses, and
effects' against unreasonable searches and seizures,
shall. not be violated." Fourth Amendment, U.S.
I
I Const. (Addendum, p. 2).
! Article.14 of the Massachusetts Constitution
!
~
C. Governmental GPS monitoring tracking,
t
and surveillance of Aldrich s movements
and activities, pursuant to G.L.c. 265,
It7, violated Aldrich's fundamental
constitutional rights under the Fourth
Amendment and Art. 14 from unreasonable
r,
search e s " and " seizures I'
Declaration of Rights gurarantees tha,t [Elvery
subjectc'has a right to be secure from all unreason-
able searches, and seizures, of his person, his
tI
house, his papers, and all of his possessions.
.
34

Art. 14 Declaration of Rights, Mass. Constitution
(Addendum, p. 8).
-
First, under both the Fourth Amendment and
Art. 14, unarguably, a person has an exclusionary
right over his or her body, and a reasonable ex-
pectation of privacy of hi6 or her person. Katz
v. United States, 389 U.S. 347 (1967)(Fourth Amend-
ment expectation of privacy "protects people, not
places"); Schmerber v. California, 384 U.S. 757
(1966)(Surgical intrusion into an individual's
body €or evidence, however, implicates expectations
of privacy. The overriding function of the Fourth
Amendment i s to protect personal privacy and
dignity against unwarranted intrusion by the
state"); Virginia v. Moore, 128 S. Ct. 1598 (2008)
(the Fourth Amendment protects against unreasonable
seizures of a person). See also Commonwealth V.
Gomes, 453 Mass. 506, 507 n. 1 (2009); Comonwealth
v. Blood, 400 Mass. 1 (1987)(Art. 14 expectation
of privacy); and Horsemen's Benevolent & Protective
Ass'n, Inc., v. State Racing Comm'n, 403 Mass. 692,
706 (1989)(Art. 14 expectation of privacy of body
in urine sample).
-
Second, under federal statute Title 10, c. 136,
8 2281: Global Positioning System (GPS), the United
35

States government retains sole authority and
control over the Global Positioning System, which
is maintained by the United States military under
the authority of the Secretary of Defense. Federal
Statute Title 10, c. 136, 5 2281. (Addendum, p. 10-12).
Thus, when GPS technology is used by locaL law
enforcement and state agencies, pursuant to G.L.c.
265, 5 47 (intrusion by the state), and the state
physically attaches the GPS devise to the body of
a person (electronic fetters), that person is deemed
"SEIZED", and the body of the person himself becomes
the host property of the electronic device (GPS)
used by the state to continuously monitor, track,
and record personal data on the locations,movements,
and activities oE convicted sex offenders, which
implicates state sanction seizures that impinge
upon a person's constitutional rights under the
Fourth Amendment and Art. 14. 7/ commonwealth V.
Cory, 454 Mass. 559 (2009); and Commonwealth V.
Raposo, 453 Mass. 739 (2009).
7/ See Richard G. Wright, Symposium: Parole and
Probation: Sex Offender Post-Incarceration
Sanctions: Are There Any Limits? (zoo$), New
England Journal On Criminal and Civil Confine-
ment; and R.J. Parker, Case Gommment: Common-
wealth v. Morasse n. 1: Elome Confinement: Stret-
ching the Limits On Restricting a Probationer's
Liberty. (2008), New England Journal On Criminal
and Civil Confinement.
36

Here, where Aldrich was released on bail and
he was - not a convicted sex offender (E.L.c. 6, 5 178C),
when the government attached a GFS device to Aldrich's
ankle II through means intentionally applied, II Brower v.
County Inyo, 489 U,S. 593, 597 (1987), Aldrichwas, i n
effect, unlawfully "SEIZED" by electronic fetters, which
subjected him to "involuntary servitude," 8/ and where
the government continuously monitored, tracked, and
recorded the data on Aldrich's every movement and acti-
vities; Aldrich was, in effect, unlawfully "SEARCHED"
through the significant capabilities of GFS technology,
which substantially impinged upon Aldrich's constitu-
tional rights to his personal liberty and freedom of
movement where the government used the body of Aldrich
I,
to conduct GPS monitoring for their own purposes
II
constitued a seizure. Commonwealth v. Connolly, 454
Mass. 808, 823 (2009); United States v. Karo, 468 U.S.
705, n. 1 (1984)(tracking of beeper constituted seizure
truck); Katz v. United states, 389 U.S. 347, 359 (1967)
("Wherever a man may be, he is entitled to know that
he will remain free from unreasonable search and
II
seizures. ). Also see and compare seizure in Schmerber
v. California, 384 U.S. 757 (1966)(Fouth Amendment
8/ Where Aldrich is an African American and he was
I_ not duly convicted of. the underlying felonyat thetime
when the GPS bracelet was attached to him, Aldrich
claim that, in effect, he waa pressed into "involuntary
servitude" to the State in violation of the Thirteenth
Amendment to the U.S. Constitution (Addendum, p. 5).
37

is to protect personal privacy and dignity against
unwarranted intrusion by the state); California v*
Hodari, 499 U.S. 621 (199lj(.Seizure of pers6n); and
Virginia v. Moore , 553 "U. S. - (2008)(T€i-'-.F&rth . '
Amendment protects against unreasonable seizures
of a person). Also see Commonwealth V. Blood, 200
Mass. 1, 68 (1987)(Art 14 expectation of privacy);
and Guiney v. Police Comm'r of Boston, 421 Mass.
328 (1991)(Art. 14 expectation of privacy of one's
body in urine or blood samples).
Therefore, where Aldrich was - not a convicted
sex offender, pursuant to G.L.c. 265, 5 47, the
actions of the government in attaching a GPS device
to ALdrich's body, "through means intentionally
I, II
applied, Brower, supra at 597, constituted a
It
seizure, Connolly, supra at 823, and where the
government continuously tracked, monitored and
recorded and stored the date on Aldrich's movements
and activities, Raposo, supra at 739, constituted
If
an unreasonable search,'' Connolly, supra at 818-
816, in violation of Aldrich's fundamental consti-
tutional rights under the Fourth Amendment to the
United States Constitution and Art. 14 of the
Massachusetts Declaration of Rights. See Commonwealth
V. Goodwin, 458 Mass. 11, 22 (2010)(FPS tracking is
I,
far greater intrusion on the defendant's liberty").
38

R, Governmental GPS monitoring tracking,
i
and surveillance of Aldrich s movements
and activities, pursuant to G.L.c. 265,
5 47, violated Aldrich's fundamental
constitutional rights under the 5th and
14th Amendments and Art. 12 to his personal
"Freedom" and "Liberty".
The Fifth and Fourteenth Amendments to the
United States Constitution guarantees a fundamental
right t o its citizens that no person shall be deprived
of his or her "liberty" without "due process of law."
Fifth and Fourteenth Amendments, U.S. Gonst. (Adden-
dum, p. 3 and 6).
Article 12 of the Massachusetts Constitution
Declaration of Rights provide a similar fundamental
state constitutional right that no citizen of the
state of Massachusetts shall be "deprived of his ...
liberty," without due process of law. Art, 12 Decla-
ration of Rights, Mass. Const. (Addendum, p. 7).
Fundamental rights either explicitly or impli-
citly arise from the United States Constitution. See
LaCava v. Lucander, 58 Mass.App.Ct. 527, 533 (2003).
Here, Aldrich allege that the enforcement of
a GPS device upon him, pursuant to G.L.c..265, 9 47,
violated his fundamental rights to be free from
physical restraints. See Dutil, Petitioner, 437 Mass.
9 (2002)("freedom from governmental restraint lies
at the heart of our system of government ..."); and

Aim v. Commonwealth, 414 Mass. 667, 677 (1992)
(noting that "right to freedom from physical
restraint has been held to be 'core' right in
substantive duo process analysis").
Incontestably, Aldrich has a fundamental
constitutional right to his personal liberty and
I,
freedom from physical restraints" that was imposed
upon him by the government through the use of
military grade GPS technology (Title 10, C. 136,
5 2281). Commonwealth v. Goodwin, 458 Mass. 11
(2010)(A GPS device burdens a defendant's liberty);
quoting Commonwealth V. Cory, 454 Mass. 559, 572
(2009).
The long ago Orwcllian fictionalization of
an anti utopian futuristic totalitarian state
invasion, monitoring, and continuous tracking of
its citizens' movements and activities (George
Orwell, Novel: 1984, (1949)), has now become
a reality in sophisticated GPS technology, the all
seeing eye in the sky. Town of Blackstone v. Town
of Millville, 59 Mass. App. Ct. 565, 570, n. 2 (2003)
(bewitchment QE the GPS gizmo). See other juris-
dictional decisions in People V. Weaver, 909 N.E.
1195 (N.Y, 2009); and State v. Jackson, 76 P. 3d.
217 (Wash. 2003)(en banc). 9/
9/ In People v. Weaver, supra at 1199, the court
40

Here, in the non fiction, Aldrich not only
had to endure the constant onslaught of ridicule,.
humiliation, and -6stracirsm.' due to the "bewitch-
ment of the GPS gizmo," Town of Blackstone, supra
I1
at 570, a. 2, and being mislabe.led a sex offender"
II
and sexual predator", but Aldrich's .personal
liberty was substantially violated by the GPS
statutory prohibitions which forced self imposed
restaint's upon Aldrich to refrain from going to
places where children frequently congregated, e.g.
parks, playgrounds, amusement parks, schools,
community centers, etc.,. and to disassociate himself
from various religious, political, community ''and
other social activities. G.L.c. 265, 8 47.
Aldrich's fear of direct or indirect confron-
tation with the public even through the most
innocuous situations, e.g. an unintended touch,
a wink, a hug, a 'kiss, closeness, a helping hand,
.etc., could easily be misconstrued as sexual
deviant behaivor warranting a, concerned citizen's
ruled that "prolonged GPS monitoring yields ... a
highly detailed profile, not simply of where we go,
but by easy inference, our'associations - political,
religious, amicable and amormous, to name only a few -
and the pattern of our orofessional and avocatinnnl . - - - - - . - -
pursuits". In State v.'Jackson, supra at 224, the
court discussed GPS technology in vehicles and stated:
II
In this age, vehicles are used t o take people to a
vast number of places that can record all of these
travels, and thus can provide a detailed picture of
one's life".

anonymous phone call to the police, resulting in
Aldrich's precautionary arrest for public safety,
presumably pursuant to G.L.c. 265, 847, even if
in error. 10/ Cory, supra at n. 18 ("To the extent
that the ankle bracelet portion of the GPS device
is potentially visible to the public, it may have
the additional punitive effect of exposing the
offender to persecution or ostracism, or at least
placing the offender in fear of such consequences");
Cf. Smith v. Doe, 538 U.S. 84, 115 (2003)(affirma-
tive restraint established by "profound humiliation
and community-wide ostracism" of sex offender
registry).
Therefore, where Aldrich was - not a convicted
sex of€ender, and he was simply awaiting trial for
property related offenses (R.A. "I"), the government's
intentionally applied act of attaching a GPS device
to Aldrich, pursuant to G.L.c. 265, § 47, placed a
substantial burden on Aldrich's liberty in violation
of his fundamental constitutional rights, for which
he is entitled to relief. Commonwealth v. Cory, 454
Mass. 559 (2009)("Due to the substantial burden on
liberty 3 47 ... was punitive in effect").
io/ Note, Who Are the People in your Neighborhood7
Due Process, Public Protection, And Sex Offender
Notification Laws, 74 N,Y,U.L. Rev. 1451, 1467-

3. WUERE DEFENDANT WAS ALLOWED TO PROCEED PROSE
THROUGHOUT ALL PROCEEDINGS, IT WAS A DIRECT
VIOJATION OF HIS SIXTH AMENDMENT RIGHT FOR
THE GOVERNMENT AND/OR ITS AGENTS TO USE GPS
DEVICE TO MONITOR, TRACK AND CONDUCT SUR-
VEILLANCE OF PRO SE DEFENDANT WHILE HE PRE-
PARED HIS DEFENSE FOR TRIAL
The Sixth Amendment to the United States Consti-
tution guarantees the rights o f the accused "to be
informed of the nature and cause of the accusation;
to be confronted with the witnesses against him; to
have compulsory process far obtaining witnesses in
his favor, .,.I1* 6th Amendment, U.S. Const. (Adden-
dum, p. 4).
Here, Aldrich elected to proceed Pro Se, and he
alhud
was to do so after the court administered a
colloquy (B.A. "3", no. 7). At that point, Aldrich was
personally enarmed with the full panoply of rights
afforded to an accused under the Sixth Amendment.
Faretta v. California, 422 U.S. 806 (1975). Also see
Commonwealth v. Jackson, 419 Mass. 718 (1995); and
Cornmonwea1th.v. Martin, 425 Mass. 718 (1997).
1469 (1990)(describing acts of violence against re-
gistered sex offenders), Megan A. Janick, Note: Better
Seen than Herded: Residency Restrictions and Global
Positioning System Tracking Law for Sex Offenders, 16
B.U. Pub. Int. J.L. 258 (2007); Susan J. Walsh and Ivan
J. Dominguez, Privacy and Technology: Law Enforcement's
Secret Uses of GPS Devices, Champion 26 (May 2009);
Reepal 5. Dalal, Note: Chipping Away at the Constitu-
tion: the Increasing Use of HFID Chips Could Lead t o
Erosion of Privacy Rights, 86 B.U.L. Rev. 485 (2006).

A. ’ Denial of Access to Witncsses
Behind the smoke and mirrors, the facts of
this case (p. 5-24) clearly show that the govern-
ment’s real purpose in attaching a GPS device to
Aldrich was - not done for public safety pursuant
to C.L.C. 265, 5 47, but moreso as an electronic
tether to monitor Aldrich’s movements and activities
so as to systematically exclude Aldrich from access
to the government‘s witnesses (R.A. “44-46“), which
in effect, cordon off the witnesses from the defense
and denied Aldrich a fair trial in violation of his
Sixth Amendment right. Chapman v. California, 386
U.S. 18 (1967)(presumpton of prejudice); Faretta v.
California, 422 U.S. 806 (1975)(fundamental to the
Sixth Amendment is the “calling and interrogation
of favorable witnesses.”); and United States v.
Bailey, 834 F.2d. 218 (1st cir 1987)(denial of access
to witnesses within government control implicates
constitutionally protected rights. Thus relief must
be granted unless it can be said that the error was
harmless beyond a reasonable doubt).
Here, Aldrich was substantially prejudiced and
unable t o prepare a defense for unknown witnesses
where the government withheld the names and addresses
of its witnesses for neary - two years until the day
44

of trial (R.A. "49-50"), in violation of Mass.R.
Crim.P. 14(a)(l)(iv), la/ which resulted in a
"trial by ambush,' i n violation of Aldrich's
constitutional rights under both the Sixth Amend-
ment and Art. 12. Commonwealth V. Taylor, 455 Mass.
372 (2009); Commonwealth v. Balliro , 349 Mass. 505,
516 (1965)(Witnesses belong neither to the Common-
wealth nor to the defence. They are not partisans
and should be available to both parties in the
preparation of their cases); Commonwealth v. Durham,
446 Mass. 212, 218-219 (2005)(withholding the name
of a "witness who is certain to be called to testify
would undermine the discovery rules and allow attorneys
to return to trial by ambush'?; and Commonwealth v.
Adkinson, 442 Mass. 410, 416 (2004). Thus, where
Aldrich's fundamental constitutional rights were
violated (a presumption of prejudice) relief must
be granted. United States V. Bailey, 834 F.2d. 218
(1st cir. 1987); Cornonwealth v. St. Pierre, 377Mass650
(1979).
B. Denial of Access to Witnesses Ry
Written Consent Requirement
It was an "abqse of discretion", "plain e,rror",
. .
I
ll/ Mas6.R.Crirn.P. 14(a)(l)(iv): "The names, : ' .
addreses, .and dates of birth of ,the Common-
wealth's witnesses other than law enforCement
witnesses." See and compare Commonwealth v.
Rollins, 441 Mass. 114 (2004](continuance to
secure witnesses); and Commonwealth V. Bohanon,
385 Mass. 733 (1982); Commonwealth v. Rivera,
424 Mass. 266 (1996).
45

and a clear violation of Aldrich's confrontation
rights under the Sixth Amendment where the trial
judge arbitrarily imposed a written consent re-
quirement upon hldrich which required that Aldrich
had to write letters to the witnesses, whichcontents
had to be reviewed and approved by the government
before being transmitted to the witnesses (R.A. "14",
no. 171). Crawford V. Washington, 541 U.S. 36 (2004)
(Confrontation clause applied to "witnesses" against
an accused); Commonwealth V. Ralliro, 349 Mass. 505
(1965); Commonwealth v. Taylor, 455 Mass. 372 (2009);
dommonwealth.v..Durham;~446.Mass. .212.(2005); and see
Commonwealth v. Adkinson,, 442 Mass. (2004) -
There is no Massachusetts case on point which
'establishes a "written consent requirement," and
rightfully so because such a req'uirernent would
operate as an obstacle to investigation . of witnesses,
and unconstitutionally create' an unobstructed one-
sided access to w'itnesses by the .government, violating
fundamental due process rights guaranteed t o an accused
under the Fouteenth Amendment and Art. 12: See and
compare State v. MurtaEh, Alaska, No. 5-11988/12007,
10/26/07)(The state high court held that "the advice
and written-consent provisions unconstitutionally
interfere with defend'ants' investigations ... by
erecting needless practicial obstacles to investiga-
tions, and by being pverbroad). (Addendum, p. 13-44).
46

Thus, where the lower court incorrectly applied
the sex offender GPS statute to Aldrich, despite the
fact that Aldrich was - not a convicted sex offender;
there were - no sexual assault victims or children
involved (G.L.c. 258B, S 3(m)) 12/; I
no allegations
of threats or intimidation to victims and witnesses
(G.L.c. 268, 5 13B); and I
no allegations of privileged
communications (G.L.c. 233, 55 20Y and 20K); there
was a substantive violation of Aldrich's substantial
constitutional rights to due process and the confron-
tation clause where Aldrich was systematically denied
access to witnesses by the imposition of a one-sided
I,
written consent requirement", which denied Aldrich
his right to a fair trial. Commonwealth v. Balliro,
349 Mass. 505, 517 (1965)("To say that a defendant
has a right to present his defence and then deprive
him of the means of effectively exercising that right
would reduce the guaranty to an idle gesture"). See
and compare State v. MurtaRh, Alaska, No. S-11988/
12007(2007)(ruling that the written consent requirrnent
to be unconstitutional). Under these circumstances,
Aldrich i s entitled to relief.
I,
12/ G.L.c. 2588, 5 3(rn), states: For victims and
witnesses, to be informed of the right to submit to
or decline an interview by defense counsel or anyone
actine. on the defendant's behalf. eXCeDt when resoonding
ti lawful process " See C.S. v: Bailey, 824
F.2d. 218 (1st. cir. jGk?)?An uniustified denial of
access to wit.nesses within 'governmental 'control implicates
constitutionally protected rights).
47

C. Denial of Continuance To Access, Interview,
And Secure Attendance of Witnesses
Where Aldrich appeared at a status hearing on
12/02/09, and "received short notice of trial" for
12/07/09 (R.A. "14"), and on trial date the government
filed a list of 21 witnesses (R.A. "49-50"), in viola-
tion of Mass.H.Crim.P. 14(a)(l)(iv), and Aldrich filed
a Motion To Continue Trial Date(R.A. "48") to interview
and secure attendance of witnesses; the trial judge
arbitrarily abused his discretion in denying Aldrich
a continuance. Commonwealth v. Super, 431 Mass. 492,
I,
497 (2000)(continuance warranted when parties received
short notice of trial date"). Aldrich was prejudiced by
the late disclosure of the names of witnesses on theday
of trial, which deprived Aldrich of an equal opportunity
to interview witncsses.Thus, Aldrich was denied a fair
trial. Commonwealth v. Gonzalez, 76 Mass.App.Ct. 1111
(2010)(remand for new trial for abuse of discretion in
denying continuance); and Commonwealth v. Eneh, 76 Mass.
App, Ct. 672, 677 (2010)(discovery is t o prevent "trial
by ambush").
D. Threats and Intimidation By Police Officer
A Day Before Trial Violated Defendant's
Substantive Constitutional Rights ToFair Trial
Where, through telephone threats, a police officer
threatened Aldrich a day before trial with the purpose
of interferring and influencing trial proceedings (R.A.
48

"52-62"), and out of fear and intimidation Aldrich
changed his defense strategy, and decided to - not
testify on his own behlaf; the-police misconduct
violated Aldrich's substantive constitutional rights
to a full and fair trial. Aldrich relies on the hold-
ing authorities and declsions cited in Comonwealth v.
Teixeira, 76 Mass.App.Ct.Ct. 101, rev. den. 456 Mass.
1102 (2010) 13/. Aldrich should be granted relief.
E. Abuse of Discretion In Revocation of Bail.
During Trial Without Prior Notice OK HearinE
Here, the trial judge abused his discretion by
arbitrarily revoking Aldrich's bail and release on
the GPS device during trial, without providing Aldrich
with a prior notice or a revocation hearing as, required
by G.L.c. 276, 5 588 and/or G.L.c. 265, 5 47, which
violated Aldrich's liberty interest and his substantive
and procedural due process rights t o a full and fair
trial. Commonwealth v. Pagan, 445 Mass. 161 (2005)
(requirments for bail revocation hearing); and Common-
wealth v. Cory, 454 Mass. 559 (2009)(requirements for
revocation of,G.L.c. 265, 5 47).
1$/ The Appellate court reasoned that: "Ltlhere is
simply--no excuse for a police officer approaching any
witness or party in a pending criminal matter and
engaging in 'deliberate and intentional' conduct that
has a reasonable possibilty.df affecting' the course
of trial proceedings." Teixeira, supra.at 105. See
and compare Commonwealth v. Manning, 373 Mass. 438
,(1977)(police misconduct).
49

C O N C L U S I O N
WHEREFORE: Robert Aldrich prays that the Supreme
Judicial Court will grant him relief for violations of
his substantive constitutional, procedural, and due
process rights. Further, Aldrich prays that this
Honorable Court will FIND, RULE and ORDER that:
- -I
1.
2.
3.
4.
5.
6.
7.
8.
The judickal court violated the Separation of Powers
provision of Art. 30 when it exceeded the Leyislative
scope and authority of G.L-c. 265, fs 47 by imposing
A "GPS device" on a pretrial defendant who was poJ
a convicted sex offender;
Aldrich was - not and is ~ not a convicted sex offender
as defined by G.L.c. 6, 5 IIW, and that G.L.c. 265,
did not apply to ALdrich;.
The imposition of the GP'S device on Aldrich pursuant
to G.L.c. 265, § 47 was.unconstftutiona1;
Aldrich's substantive constitutional and due process
rights were violated where the government unlawfully
"SEIZED" and/or "SEARCHED" him Kbrough the use of EPS
monitoring, tracking, and surveillance while AYdrich
was a Pro Sc defendant in violation of the 4th, 6th,
and 14th hmendments and Art. 12 and 14:
Aldrich's substantive constitutional rights to a
fair trial were violated where the court arbitrarily
and systematically denied the defense access to
witneses through the prerequisite of a "written
consent requirement", which'was unconstitutional;
Aldrich's substantive constitutional rights to a
fair trial were violated through police misconduct
of threats and intimidation before trial;
Aldrich is entitled to a new trial for the above
reasons, and released on his original bail without
the restraints of electronic monitoring as a
prophylatic remedy; and
And other relief deemed appropriate by this Court.
February 8, 2011 liobert Aldrich
MCI ~~~~ Shirlev
~~~
P.0. BOX 1218
Shirley, MA 01464
50