High court orders review of sex offender GPS monitoring

See also: SCOTUS grants review for sex offender ordered to wear tracker for life and U.S. Supreme Court remands Wilmington man’s case to state court to determine ‘reasonableness’ of satellite monitoring

3-30-15 Washington DC, North Carolina:

WASHINGTON -- State programs that use GPS systems to monitor sex offenders could eventually be jeopardized based on a preliminary Supreme Court ruling Monday.

The justices gave a North Carolina sex offender another chance to prove in state court that being forced to wear a GPS monitoring bracelet for life could be unconstitutional.

More than 40 states have passed laws in the last decade that call for some type of GPS monitoring of sex offenders, including eight states that monitor them for life. Some states have expanded their programs to include other crimes; California, for instance, monitors gang members along with more than 9,000 sex offenders. At least 13 states monitor domestic abusers.

The court allowed a challenge brought by Torrey Dale Grady, a convicted sex offender from North Carolina, who has two sex crimes on his record -- a second-degree offense from 1996, when he was 17, and a 2005 conviction for taking "indecent liberties with a child." He was sentenced to nearly three years for the latter offense.

Grady was ordered by a state Superior Court judge to enter the GPS monitoring program in 2013. It requires him to wear an ankle bracelet around the clock so that all his movements are transmitted to state officials. State officials can enter his home unannounced to maintain the base station.

And because the bracelet must be charged daily, the order "requires him to be plugged into a wall outlet at least once a day for four to six hours at a time," his Supreme Court petition said. The state monitors about 600 other sex offenders.

Grady's challenge contends that the extreme nature of the monitoring constitutes an unconstitutional search under the 4th Amendment. The high court agreed and sent the case back to the lower court for a full hearing along those lines.

"The state's program is plainly designed to obtain information," the Supreme Court ruled in an unsigned opinion. "And since it does so by physically intruding on a subject's body, it effects a Fourth Amendment search.

"That conclusion, however, does not decide the ultimate question of the program's constitutionality. The Fourth Amendment prohibits only unreasonable searches.... The North Carolina courts did not examine whether the state's monitoring program is reasonable -- when properly viewed as a search -- and we will not do so in the first instance."

In its brief, the state attorney general's office contested Grady's facts as outdated and uncorroborated. It said Grady "resorts to hyperbole to characterize the severity and offensiveness of the 'trespass' resulting from the monitoring."

The justices have ruled in the past on such issues as a GPS device surreptitiously attached to a suspect's car and a police search of a cellphone upon arrest. In both cases, the court struck down the searches.

"As GPS surveillance technology advances, the public will continue to demand its use in more -- and more intrusive -- searches," Grady's petition says. "This court must make certain that such searches comport with the requirements of the Fourth Amendment." ..Source.. by Richard Wolf, USA TODAY

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Court rules GPS monitoring of convicted sex offender unlawful

10-2-2011 New Jersey:

A state appeals court ruled that forcing a sex offender convicted more than 20 years ago to comply with GPS monitoring rules that were enacted about four years ago violates his constitutional rights.

In the 2-1 decision, the Appellate Division of Superior Court reversed a state parole board decision that required George C. Riley, a Tier III sex offender, to wear a GPS ankle bracelet. The court said the requirements of the monitoring program constituted a level of punishment that violates the constitutional provision barring retroactive laws.

“We conclude that although the Legislature's intention in enacting the Sex Offender Monitoring Act was civil and nonpunitive, the act is so punitive in effect that it violates the ex post facto clause,” Judges Stephen Skillman and Marianne Espinosa said in their decision.

In his dissent, Judge Anthony J. Parrillo said while the GPS monitoring may be more burdensome than the yearly registration requirements for sex offenders, “it does not rise to the level of a direct and punitive disability or restraint,” and is far less restrictive than the involuntary civil confinement some sex offenders are subject to upon completion of their prison terms.

“Simply put, the majority's constitutional tolerance of laws that register, publicize, monitor and indefinitely institutionalize sex offenders after completion of their criminal sentences cannot logically be reconciled with its avowed distaste for a rule requiring the most serious sex offenders, who remain free to live, work and walk wherever they please, to submit to a form of electronic surveillance,” he wrote.

Because the appellate decision was split, if the state Attorney General’s Office files an appeal, the case would automatically be heard by the state Supreme Court.

Riley did not have an attorney — he filed briefs pro se, or acting on his own behalf — and he did not argue in court.

But the appellate division allowed both the American Civil Liberties Union of New Jersey and the state Office of the Public Defender to argue as a friend of the court — meaning that although those two groups did not represent Riley, they entered the case because of an interest in the legal issues surrounding it.


Alison S. Perrone, the Burlington County-based attorney who handled those arguments, said that with Thursday’s ruling, the court “reaffirmed a fundamental Constitutional principle — that a person can’t be subject to retroactive punishment.”

Lee Moore, a spokesman for the state Attorney General’s Office, said: “We’re still reviewing the decision and considering our legal options.”

Riley, of Eatontown, was sentenced to 20 years in prison for a 1986 attempted sexual assault. According to newspaper accounts from that time, Riley, an Eatontown sanitation worker, telephoned an 11-year-old girl, whose family lived on his route, and suggested they have an intimate relationship.

With permission from the girl’s family, police recorded the phone calls and Riley was arrested when he showed up at the family’s home, the newspaper reports said.

He was convicted at trial and ordered to serve that sentence consecutive to a term he was already serving for a parole violation. According to newspaper stories, in the 1960s Riley was sentenced to 62 to 65 years in prison for rape, robbery, assault and weapons offenses that occurred in several communities, including Colts Neck, Howell and Neptune. Those prison terms did not carry mandatory minimum sentences, according to records.

In the 1960s, he wore a ski mask and preyed on young couples parked in lovers’ lanes, according to newspaper accounts. In some cases, he assaulted the men with a rifle, then sexually assaulted the women, the newspaper said.

Riley, now 78, was released from the Adult Diagnostic and Treatment Center — the state’s prison for sex offenders in the Avenel section of Woodbridge — in February 2009.

Because he finished the prison sentence — or maxed out — he was not subject to parole, although he was subject to Megan’s Law registration requirements.

About six months later, the state Parole Board notified Riley that he was subject to 24-hour a day, 7-day-a-week GPS monitoring because he had been classified as a Tier III offender, with a high risk of re-offense, according to the appellate decision.

That monitoring came with other conditions, including a requirement that he allow a parole officer access to his home if the device stopped emitting a signal, and a rule that he provide a parole officer with advance notice of out-of-state travel, the court papers said.

The state argued that it was not Riley’s 1986 conviction, but his 2009 classification as a high-risk offender that triggered the GPS monitoring requirement. But with Thursday’s decision, the appeals court rejected that argument.

The GPS monitoring program was set up after the Sex Offender Monitoring Act was signed into law in 2007. That law directed the chairman of the parole board, in consultation with the state attorney general, to “establish a program for the continuous, satellite-based monitoring of sex offenders in this state.” ..Source.. by Michelle Sahn | Staff Writer

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Judges Divided Over Rising GPS Surveillance

Interesting comment by Paul Ohm, highlighted below: Such is like sex offender registration (when it was first reviewed by the Supreme Court), initially it was a system for the police and not public, but as time went on the volume was turned up (new laws enacted attached to the registry), and now with all the collateral law attachments, it is truly FURTHER PUNISHMENT, for most!

8-16-2010 Washington DC:

WASHINGTON — The growing use by the police of new technologies that make surveillance far easier and cheaper to conduct is raising difficult questions about the scope of constitutional privacy rights, leading to sharp disagreements among judges.

A federal appeals court, for example, issued a ruling last week that contradicts precedents from three other appeals courts over whether the police must obtain a warrant before secretly attaching a Global Positioning System device beneath a car. The issue is whether the Fourth Amendment’s protection against unreasonable searches covers a device that records a suspect’s movements for weeks or months without any need for an officer to trail him.

The GPS tracking dispute coincides with a burst of other technological tools that expand police monitoring abilities — including automated license-plate readers in squad cars, speed cameras mounted on streetlight poles, and even the widely discussed prospect of linking face-recognition computer programs to the proliferating number of surveillance cameras.

Some legal scholars say the escalating use of such high-tech techniques for enhancing traditional police activities is eroding the pragmatic considerations that used to limit how far a law-enforcement official could intrude on people’s privacy without court oversight. They have called for a fundamental rethinking of how to apply Fourth Amendment privacy rights in the 21st century.

“Often what we have to do with the march of technology is realize that the difference in quantity and speed can actually amount to significantly more invasive practices, “ said Paul Ohm, a University of Colorado law professor and former federal computer-crimes prosecutor. “It’s like you keep turning the volume knob and it becomes something different, not the same thing just a little louder.”

Last week, such calls seemed to be answered by an ideologically diverse panel on the United States Court of Appeals for the District of Columbia. It overturned a drug trafficking conviction because the evidence against the defendant included tracking data from a GPS receiver that the police hid under his sport utility vehicle without a warrant. The device essentially recorded his whereabouts 24 hours a day for four weeks.

Traditionally, courts have held that the Fourth Amendment does not cover the trailing of a suspect because people have no expectation of privacy for actions exposed to public view.

But the appeals court argued that people expect their overall movements to be private because different strangers see only isolated moments and a police department’s surveillance resources are limited. GPS technology, by allowing police departments to inexpensively track someone’s comings and goings, changes that equation, it said.

“Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble,” wrote Judge Douglas Ginsburg.

“A person who knows all of another’s travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individual or political groups — and not just one such fact about a person, but all such facts.”

Supreme Court review of the decision seems likely. It contradicted decisions in three similar GPS-related cases by appellate panels in Chicago, St. Louis and San Francisco.

In 2007, for example, Judge Richard Posner argued that “following a car on a public street” is “unequivocally not a search within the meaning” of the Fourth Amendment. While acknowledging that “technological progress poses a threat to privacy by enabling an extent of surveillance that in earlier times would have been prohibitively expensive,” he concluded that using a GPS device to investigate a suspect crossed no constitutional line.

The Fourth Amendment “cannot sensibly be read to mean that police shall be no more efficient in the 21st century than they were in the 18th,” he wrote. “There is a tradeoff between security and privacy, and often it favors security.”

Judge Posner also cited a 1983 Supreme Court ruling upholding the use of a hidden radio transmitter that helped police trail a suspect. But other judges have argued that the limited power of that device make it different from the prolonged, automated tracking that GPS devices enable.

On Thursday, five judges on the San Francisco appeals court dissented from a decision not to re-hear a ruling upholding the warrantless use of GPS trackers. Chief Judge Alex Kozinski characterized the tactic as “creepy and un-American” and contended that its capabilities handed “the government the power to track the movements of every one of us, every day of our lives.”

There is no central repository of how many police forces use the devices, which cost several hundred dollars. But there has been a recent spate of cases about them. Several state supreme courts — including those in Massachusetts, New York, Oregon and Washington — have ruled that their state constitutions require police to obtain a warrant to use them.

Related questions have arisen over businesses’ customer records, which courts generally allow police to obtain without a warrant. The appeals court in Philadelphia is considering whether the Fourth Amendment protects location data for cellphones.

The few Fourth Amendment cases involving contemporary technologies to reach the Supreme Court so far have generally stuck to the principle that privacy rights cover only actions no one else could normally see or hear. In 2001, for example, the court ruled that without a warrant, police cannot point a thermal imaging device at a home in search of heat associated with marijuana growing.

Privacy advocates say the volume of public information about people that is increasingly collectable has called into question that approach. Stephen Leckar, who represented the defendant in the GPS case before the District of Columbia appeals court, argued that judicial oversight is needed over the mass collection of information like a suspect’s movements, in order to maintain checks and balances.

But Orin Kerr, a George Washington University professor and former federal computer-crimes prosecutor, criticized the ruling. He argued that the police need clear rules, and said it would sow confusion to require warrants for collecting large amounts of information about suspects’ action in public because investigators cannot know ahead of time how much they will eventually compile — or how much is too much.

“Police will never know whether they have violated the Fourth Amendment until some judge tells them,” Mr. Kerr said.

In other privacy contexts, courts have recognized that aggregating information can make a legal difference. For example, the Supreme Court has interpreted a privacy exception in the Freedom of Information Act as covering “rap sheets” compiling people’s criminal records — even though each offense was separately listed in public documents scattered through decades of courthouse files. ..Source.. by Charles Savage, NYTimes

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