DE: GPS monitoring of Tier III sex offenders satisfied “special needs” exception

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.

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