Statute mandating GPS monitoring of all Tier III sex offenders granted parole or probation without reference to their individual risks of recidivism did not violate the Fourth Amendment under Vernonia’s “special needs” exception. Plaintiffs did not have a legitimate privacy interest that sufficient to shield them from GPS monitoring. Also, the incremental infringement on plaintiffs’ privacy imposed by the GPS monitoring requirement was not unduly burdensome, and the statute was relatively efficacious in advancing Delaware’s legitimate interest in reducing sex offender recidivism. Doe v. Coupe, 2016 Del. Ch. LEXIS 122 (Aug. 12, 2016):
I address each of the three factors of the Vernonia special needs test in turn to evaluate whether Section 4121(u) is reasonable under the Fourth Amendment. Plaintiffs’ “status as [parolees and probationers] subject to a search condition informs” each of the three factors of the “special needs” test of Section 4121(u)’s reasonableness.
a. The nature of Plaintiffs’ privacy interest
As to the first Vernonia factor, “[t]he Fourth Amendment does not protect all subjective expectations of privacy, but only those that society recognizes as ‘legitimate.'” Probationers who agree to warrantless searches as a condition of their probation have “significantly diminished … reasonable expectation[s] of privacy.” Further, “parolees have [even] fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.” …
…
b. The character of Section 4121(u)’s privacy intrusion
As to the second Vernonia factor, I recognize that GPS monitoring necessarily intrudes upon an individual’s privacy. Plaintiffs describe the physical burdens, the embarrassment and shame, and the occupational inconvenience that they have experienced as a result of wearing the GPS monitors on their ankles. And, in State v. Holden, the Superior Court noted the extent to which continuous GPS monitoring can intrude upon an individual’s privacy: …
That said, however, while I do recognize that Section 4121(u)’s GPS monitoring requirement limits Plaintiffs’ privacy, I also recognize that, undoubtedly, “[h]aving to to wear a GPS anklet monitor is less restrictive, and less invasive of privacy, than being in jail or prison.”
. . . The incremental imposition into Plaintiffs’ privacy caused by Section 4121(u)’s GPS monitoring requirement, therefore, is not unduly burdensome.
c. The nature and immediacy of Delaware’s governmental concern and Section 4121(u)’s efficacy for meeting it
Finally, as to the third Vernonia factor, Plaintiffs do not dispute that the Delaware state government has a legitimate interest in avoiding recidivism by sex offenders. Instead, Plaintiffs contend that Section 4121(u)’s mandated GPS monitoring of all Tier III sex offenders-without reference to the actual risk posed by any individual sex offender-is not an efficacious means by which to satisfy that interest. …
Although Coupe quibbles with certain of Plaintiffs’ statistics regarding sex offender recidivism rates, I need not resolve the parties’ dispute as to that issue. The facts that sex offenders may recidivate at a lower rate than other criminals and that P&P would reduce overall recidivism more effectively by focusing on higher risk individuals are not dispositive as to whether Section 4121(u)’s GPS monitoring requirement is reasonable. Here, the record indicates that Section 4121(u)’s GPS monitoring requirement has at least some benefits in terms of reducing the rate of or mitigating the harm from recidivism by Tier III sex offenders. Even if sex offenders do recidivate at a lower rate than other criminals, the Delaware General Assembly reasonably may view sex crimes as more detrimental to public safety than other crimes and “could also have concluded that any sex offender recidivism is more egregious than recidivism of other crimes.” And, because even the most advanced risk assessment metrics have subjective components, the General Assembly validly exercised its legislative discretion in using the severity of a sex offender’s crime as a proxy for that individual’s future risk to society, even if P&P would more effectively reduce sex offender recidivism by deciding whether to use GPS monitors based on individual risk assessments.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)