NJ: GPS monitoring of sex offender still on supervision is reasonable under “special needs”; one not on supervision is not

Two sex offenders sued over their GPS monitoring. The state defended under the special needs doctrine. GPS monitoring of SO still on supervision is reasonable, but it is unreasonable as to the one off supervision. H.R. v. N.J. State Parole Bd., 2018 N.J. Super. LEXIS 175 (Dec. 20, 2018):

Once the court is satisfied that a search serves special needs, it must weigh “the privacy interests advanced … and any limitations imposed,” as well as “the competing governmental need against the privacy interests involved,” to determine if it is an “unreasonable search” under Article I, Paragraph 7. O’Hagen, 189 N.J. at 158, 914 A.2d 267. The balancing is “fact-specific.” N.J. Transit PBA Local 304 v. N.J. Transit Corp., 151 N.J. 531, 548, 701 A.2d 1243 (1997). The State, in I.R.’s case, and H.R. contend the court erred in its balancing.

The monitoring program furthers a significant state interest: the deterrence and prevention of sexual offenses. See Doe v. Poritz, 142 N.J. 1, 89, 662 A.2d 367 (1995) (“The state interest in protecting the safety of members of the public from sex offenders is clear and compelling.”). The Legislature has found that the risk of recidivism is high for sex offenders. N.J.S.A. 30:4-123.90(a); see also Doe, 142 N.J. at 14-18, 662 A.2d 367. As noted, some research discloses a greater-than fifty-percent reduction in recidivism among monitored offenders. We need not determine the precise extent to which offenders re-offend to conclude that any significant reduction furthers a governmental interest in protecting their potential victims.

Turning to the offender’s privacy interests, we decline the State’s suggestion that we follow Belleau, wherein both Judge Posner, writing for the court, and Judge Flaum, concurring, concluded that GPS monitoring did not violate the Fourth Amendment rights of a seventy-two-year-old offender who had long ago completed his sentence and was not on parole, but who was subject to Megan’s-Law-type registration and disclosure. Judge Posner’s view that the loss of privacy suffered under GPS monitoring is slight, Belleau, 811 F.3d at 932-33, is at odds with our Supreme Court’s assessment in Riley that GPS monitoring substantially diminishes individual privacy. 219 N.J. at 295-96, 98 A.3d 544.

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I.R. enjoys a greater expectation of privacy than H.R. No doubt, he already suffers an intrusion into his privacy as a Megan’s Law registrant. See Doe, 142 N.J. at 84-85, 662 A.2d 367 (recognizing that registration and notification affects privacy interests, notwithstanding the public nature of conviction and address information); see also J. Bryan Boyd, Tracking Reasonableness: An Evaluation of North Carolina’s Lifetime Satellite-Based Monitoring Statutes in the Wake of Grady v. North Carolina, 38 Campbell L. Rev. 151, 205 (2016) (suggesting that “a sex offender’s privacy rights are more diluted than other felons” in part because of notification and registration laws). I.R. also suffers disabilities as an ex-offender. See Green v. Berge, 354 F.3d 675, 680 (7th Cir. 2004) (Easterbrook, J., concurring) (contrasting the gradually increasing liberty interests of prisoners, parolees, felons who have served their sentence and persons never convicted, and stating that “[w]hat is ‘reasonable’ under the fourth amendment for a … felon, may be unreasonable for the general population”). However, but for SOMA, I.R. would be free of supervision and surveillance by the Board.

We conclude the continuous nature of the suspicionless surveillance under SOMA distinguishes it from episodic suspicion-based and other intrusions to which a PSL-parolee is otherwise subject. Nonetheless, we are convinced, as was the trial court, that the balance favors the State in H.R.’s case. As H.R.’s expectation of privacy is already limited, the substantial impact on his protected privacy interests is outweighed by the government’s greater interest in deterrence and rehabilitation. On the other hand, I.R. completed his sentence and is not subject to continuing parole supervision. Under I.R.’s circumstances, we conclude that GPS monitoring is an unreasonable search.