Commonwealth v. Govan: GPS Monitoring, Privacy Rights, and the Future of Pretrial Surveillance in Massachusetts
In Commonwealth v. Govan, the Massachusetts Supreme Judicial Court (SJC) tackled an important and unresolved constitutional question: When someone is on pretrial release with a GPS ankle monitor, can law enforcement later access that location data for a new criminal investigation without a warrant? The answer, according to the Court, is yes—under certain limits.
This case is a must-read for criminal defense lawyers across Massachusetts. It clarifies the scope of protection under Article 14 of the Massachusetts Declaration of Rights when it comes to location data, pretrial liberty, and the power of the state to track and use movement data as evidence.
The Basic Facts: A Domestic Violence Case Leads to a Later Shooting Investigation
The case begins with an incident on December 26, 2019, when police responded to a domestic violence call in Jamaica Plain. Anthony Govan’s ex-wife reported that Govan threatened to kill her and her family, discharged a firearm, and followed her out of the apartment, grabbing her by the jacket. A warrant issued, but Govan wasn’t arrested until July 2020.
At arraignment on the original domestic violence charges, Govan agreed to pretrial release on conditions including GPS monitoring and staying away from the victim. Importantly, the Commonwealth didn’t yet know the victim’s address, so there was no active exclusion zone programmed into the GPS.
Then, on August 1, 2020—while Govan was out on pretrial release—a shooting occurred in Dorchester. Investigators had no suspect, only video of two cars exchanging gunfire. Days later, a Boston Police detective asked probation’s Electronic Monitoring Program (ELMO) to pull the GPS records of anyone wearing an ankle monitor who had been in the area at the time. Five names came back. One was Govan.
Further GPS analysis showed that Govan’s movements matched one of the shooters. That data helped support a new arrest and indictment for firearms offenses and assault with a dangerous weapon.
Govan filed a motion to suppress the GPS evidence, arguing that the search was unconstitutional under Article 14. He lost in the Superior Court and entered a conditional guilty plea while preserving his right to appeal. The SJC transferred the case on its own initiative and issued a comprehensive ruling.
The Two Legal Questions: Was There a Search—and Was It Reasonable?
Govan’s appeal raised two distinct constitutional questions under Article 14:
Was the initial imposition of GPS monitoring as a condition of pretrial release a “search”?
Was the later warrantless retrieval and review of GPS data for a new criminal investigation a separate “search”—and if so, was it lawful?
The Court answered both in a way that preserves government access to GPS data, but also imposes meaningful constitutional boundaries.
First: Imposing GPS at Arraignment Is a Search—but Can Be Reasonable
The SJC reaffirmed its previous ruling in Commonwealth v. Norman, 484 Mass. 330 (2020), that GPS monitoring imposed as a condition of pretrial release is a search under Article 14. This is because GPS technology allows round-the-clock tracking, which intrudes on a person’s reasonable expectation of privacy in the whole of their movements.
But the fact that it’s a search doesn’t make it illegal. The Court applied a balancing test and found that this search was reasonable under the circumstances.
What made it reasonable? Several key facts:
Govan was facing serious domestic violence charges involving threats of lethal violence.
The alleged victim and her daughter were both potential witnesses.
Govan agreed on the record to the GPS condition.
Even without a fixed exclusion zone, GPS monitoring helped enforce the “stay away” and “no contact” orders by deterring violations and making potential violations easily verifiable.
The Court rejected the argument that the GPS was constitutionally unjustified just because the exclusion zone wasn’t programmed at the outset. It emphasized that the condition served legitimate government interests in protecting victims and witnesses.
Key takeaway for defense lawyers: Article 14 requires a case-by-case analysis, but in domestic violence cases, courts are likely to find GPS monitoring at arraignment to be constitutionally sound—especially when threats of violence, witness intimidation, or recidivism are concerns.
Second: Pulling GPS Data for a New Crime Is Not a Search—If It’s Narrow and Short-Term
The tougher question was whether Detective Plunkett’s retrieval of GPS data, six days after the Dorchester shooting, was itself a “search” under Article 14.
The defense argued that this retrospective use of GPS data for a separate investigation violated Govan’s expectation of privacy and required a warrant.
The SJC disagreed.
The Court concluded that the GPS retrieval and review—consisting of two narrow requests covering (1) a 20-minute window to identify people near the scene, and (2) a one-hour window to pinpoint Govan’s route—did not amount to a “search” under Article 14. That’s because:
Govan knew he was being tracked.
He had been explicitly warned that violating release conditions or committing new crimes could result in bail revocation.
The data reviewed was short in duration—just 60 minutes—and did not reveal a pattern of behavior or Govan’s “whole” movements.
This kind of short-term analysis was comparable to traditional surveillance, not a sweeping digital dragnet.
In short, the Court found that society wouldn’t recognize a reasonable expectation of privacy in such limited slices of location data when the person is already wearing a state-issued ankle monitor as a bail condition.
Key takeaway: The SJC distinguished this short-term GPS review from the kind of long-term surveillance that requires a warrant. But the decision makes clear that longer, repeated, or broader data pulls may still be considered a search requiring judicial oversight.
Important Limitations: The Court’s Holding Is Narrow—And Doesn’t License Fishing Expeditions
The ruling in Govan is careful to narrow its holding. The Court repeatedly emphasizes that:
This case involved only two GPS data pulls.
The timeframes were very short (20 minutes and 1 hour).
The data was not used to create a pattern or profile.
The defendant was already on notice that GPS was part of his pretrial supervision.
The Court declined to address whether more frequent, broader, or more intrusive GPS data retrievals—especially across multiple days or with no link to a concrete incident—might cross the line into a constitutional search.
For defense counsel, this creates fertile ground for future litigation. If law enforcement starts engaging in wider GPS sweeps—say, days of data across multiple people—Article 14 challenges could succeed, particularly if the searches begin to resemble continuous surveillance or pattern tracking.
What Criminal Defense Lawyers Need to Watch For
1. The Scope of GPS Review
This case gives a green light to short, targeted GPS inquiries in new investigations. But it doesn’t settle how much is too much. Defense lawyers should challenge broader data requests and highlight any evidence of pattern-based surveillance.
2. Written Conditions of Release
The Court noted that Govan's release conditions weren’t in writing in the record, but still ruled that he was on notice. Going forward, defense lawyers should insist that all bail conditions—especially those involving GPS—are documented in writing. If the government later claims “notice” of consent or scope, the record should be airtight.
3. Challenging Consent Arguments
The Court didn’t reach the question of whether Govan “consented” to GPS monitoring in a constitutional sense—it ruled based on reasonableness instead. That leaves open the argument that “agreement” to GPS may not be meaningful where a defendant has no real choice. Defense attorneys should preserve this issue for appeal when appropriate.
4. Use of GPS to Investigate New Crimes
Perhaps the biggest practical issue: when probation or law enforcement uses GPS not to enforce release terms, but to investigate new and unrelated crimes. The SJC held that such use—if narrow and short—does not require a warrant. But that boundary could be tested as technology evolves.
Defense lawyers must be vigilant for signs that police are running GPS backchecks not based on leads, but in the hope of stumbling on criminal activity—a classic Fourth Amendment concern.
What This Means for Defendants on GPS
For clients, the Govan decision is a blunt reminder: if you're wearing an ankle monitor, law enforcement may be able to use your location history in unrelated cases—even without a warrant.
The court said that Govan, and others like him, would “objectively understand” that they’re being tracked. But in reality, many defendants do not fully grasp how their data can be used. Defense attorneys should:
Explain the limits of privacy on GPS.
Push for the least intrusive conditions possible.
Warn clients to assume all movement is reviewable.
This may also affect plea negotiations. The knowledge that GPS data can be mined retroactively might tip the scales in certain risk calculations.
Conclusion: A Mixed Bag for Privacy—but a Clear Guide for Counsel
Commonwealth v. Govan is a significant case for understanding the intersection of technology, bail conditions, and constitutional rights in Massachusetts.
The SJC held that:
Imposing GPS at arraignment can be a lawful search, so long as it serves legitimate statutory goals like protecting victims and witnesses.
Pulling narrow slices of historical GPS data for a separate investigation does not count as a search under Article 14—so long as the inquiry is limited and based on reasonable suspicion.
The decision strengthens the state’s ability to use GPS data in criminal investigations. But it also provides a roadmap for defense attorneys to challenge overreach and protect clients from becoming the targets of warrantless digital surveillance.
As GPS and other forms of electronic monitoring become more common, the line between supervision and surveillance will continue to blur. And cases like Govan will form the battleground.