CA7: WI’s lifetime GPS monitoring of released SVPs is reasonable under 4A

Plaintiff was civilly committed as a sexually violent predator and finally released with GPS monitoring for life. Such monitoring is reasonable under the Fourth Amendment compared to parole searches, and the state has shown that there is a likelihood that it deters further crimes and, at the minimum, provides evidence of where he was at all times should he do so. Belleau v. Wall, 2016 U.S. App. LEXIS 1517 (7th Cir. Jan. 29, 2016):

For it’s not as if the Department of Corrections were following the plaintiff around, peeking through his bedroom window, trailing him as he walks to the drug store or the local Starbucks, videotaping his every move, and through such snooping learning (as the amicus curiae brief of the Electronic Frontier Foundation would have it) “whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband,” etc. (quoting United States v. Maynard, 615 F.3d 544, 562 (D.C. Cir. 2010)). The fruits of such surveillance techniques would be infringements of privacy that the Supreme Court deems serious. See, e.g., Kyllo v. United States, 533 U.S. 27, 33-36 (2001); see also Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring); United States v. Jones, 132 S. Ct. 945, 954-56 (2012) (Sotomayor, J., concurring); id. at 963-64 (Alito, J., concurring). But nothing of that kind is involved in this case, quite apart from the fact that persons who have demonstrated a compulsion to commit very serious crimes and have been civilly determined to have a more likely than not chance of reoffending must expect to have a diminished right of privacy as a result of the risk of their recidivating—and as Justice Harlan explained in his influential concurrence in the Katz case, the only expectation of privacy that the law is required to honor is an “expectation … that society is prepared to recognize as ‘reasonable.’” 389 U.S. at 361.

Rather, every night the Department of Corrections makes a map of every anklet wearer’s whereabouts that day so that should he be present at a place where a sex crime has been committed, or be hanging around school playgrounds or otherwise showing an abnormal interest in children not his own, the police will be alerted to the need to conduct an investigation. But the main “objective of the searches [the mapping, in this case] was [not] to generate evidence for law enforcement purposes,” as in Ferguson v. City of Charleston, 532 U.S. 67, 83 (2001) (emphasis in original), but instead to deter future offenses by making the plaintiff aware that he is being monitored and is likely therefore to be apprehended should a sex crime be reported at a time, and a location, at which he is present.

The plaintiff’s argument that his monitoring violates the Fourth Amendment is further weakened when we consider the concession by his lawyer at oral argument that the Wisconsin legislature could, without violating the Fourth Amendment, make lifetime wearing of the anklet monitor a mandatory condition of supervised release for anyone convicted of sexual molestation of a child. That would be a likely, and seemingly an unassailable, response of the legislature to a decision by this court upholding the district court’s invalidation of the GPS-monitoring statute—which is to say that for pedophiles to prevail in cases such as this would give them only a hollow victory.

It’s untrue that “the GPS device burdens liberty … by its continuous surveillance of the offender’s activities,” Commonwealth v. Cory, 911 N.E.2d 187, 196-97 (Mass. 2009); it just identifies locations; it doesn’t reveal what the wearer of the device is doing at any of the locations. And its “burden” must in any event be balanced against the gain to society from requiring that the anklet monitor be worn. It is because of the need for such balancing that persons convicted of crimes, especially very serious crimes such as sexual offenses against minors, and especially very serious crimes that have high rates of recidivism such as sex crimes, have a diminished reasonable constitutionally protected expectation of privacy.

So let’s recapitulate the gain to society from GPS monitoring of convicted sexual molesters. Every night as we said a unit of the Department of Corrections downloads the information collected that day by the anklet monitor and creates a map showing all the locations at which the wearer was present during the day and what time he was present at each location. Should a sexual offense be reported at a location and time at which the map shows the person wearing the anklet to have been present, he becomes a suspect and a proper target of investigation. But by the same token if he was not at the scene of the crime when the crime was committed, the anklet gives him an ironclad alibi. Missing this point, the amicus curiae brief of the Electronic Frontier Foundation in support of the plaintiff criticizes anklet monitoring for its accuracy!

A study of similar GPS monitoring of parolees in California found that they were half as likely as traditional parolees to be arrested for or convicted of a new sex offense. Stephen V. Gies, et al., “Monitoring High-Risk Sex Offenders with GPS Technology: An Evaluation of the California Supervision Program,” Final Report, pp. 3-11, 3-13 (March 2012). There is no reason to think that GPS monitoring of convicted child molesters in Wisconsin is any less efficacious.

Given how slight is the incremental loss of privacy from having to wear the anklet monitor, and how valuable to society (including sex offenders who have gone straight) the information collected by the monitor is, we can’t agree with the district judge that the Wisconsin law violates the Fourth Amendment. The plaintiff argues that monitoring a person’s movements requires a search warrant. That’s absurd. The test is reasonableness, not satisfying a magistrate. Consider a neighborhood in which illegal drug dealing is common. There will be an enhanced police presence in the neighborhood and, probably more important, several former or present drug dealers whom the police have enlisted as undercover agents. The result will be surveillance of the drug scene. No one (unless it’s the plaintiff’s lawyer in this case) thinks that such surveillance requires a warrant.

Or suppose police place hidden cameras in traffic lights to detect drivers who run red lights. That is investigative surveillance similar to what the Wisconsin Department of Corrections is doing with regard to potential sex offenders, yet no warrant is required for traffic surveillance. It would be odd to think that the Department of Corrections could not use GPS monitoring to determine the plaintiff’s location at all times, but could have one of its agents follow him whenever he left his house.

It would be particularly odd to think that all searches require a warrant just because most of them invade privacy to a greater or lesser extent. The terms of supervised release, probation, and parole often authorize searches by probation officers without the officers’ having to obtain warrants, and the Supreme Court has held that such warrantless searches do not violate the Fourth Amendment as long as they are reasonable. Samson v. California, supra; United States v. Knights, 534 U.S. 112, 118-120 (2001). The “search” conducted in this case via the anklet [*19] monitor is less intrusive than a conventional search. Such monitoring of sex offenders is permissible if it satisfies the reasonableness test applied in parolee and special-needs cases. Grady v. North Carolina, supra, 135 S. Ct. at 1371. Wisconsin’s ankle monitoring of Belleau is reasonable.

. . .

To return to our traffic analogy briefly: no one thinks that a posted speed limit is a form of punishment. It is a punishment trigger if the police catch you violating the speed limit, but police are not required to obtain a warrant before stopping a speeding car. The anklet monitor law is the same: it tells the plaintiff—if you commit another sex offense, you’ll be caught and punished, because we know exactly where you are at every minute of every day. Similar statutes in other states have reduced sex-crime recidivism. And though no one doubts the propriety of parole supervision of sex criminals though it diminishes parolees’ privacy, a study by the National Institute of Justice finds that GPS monitoring of sex criminals has a greater effect in reducing recidivism than traditional parole supervision does. Gies et al., supra, at vii, 3-11, 3-13.

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