Applying GPS monitoring statute to certain sex offenders violates Ex Post Facto Clause, Fourth Amendment

Michael Belleau v. Edward Wall, Case No. 12-CV-1198 (E.D. Wis. Sept. 21, 2015); reversed (1/29/16).

“The question presented in this case is whether … a person who has already served his sentence for his crimes and is no longer under any form of court ordered supervision can be forced by the State to wear such a device and to pay the State for the cost of monitoring him for the rest of his life.” (Slip op. at 11). A federal district judge answers “no” to that question, and holds that requiring Belleau to comply with § 301.48 by wearing a GPS tracking device for the rest of his life after he had finished his criminal sentence and was discharged from his ch. 980 commitment violates the constitutional prohibition on ex post facto laws and the Fourth Amendment.

Belleau was convicted of sexual assault in 1992 and 1994 for offenses committed in 1987 and 1988. He was sentenced to prison, paroled in 2000, and revoked in 2001,. His sentence expired in 2005, but instead of being released he was committed under ch. 980 commitment. He was discharged from that commitment in 2010. Very shortly after he was released from that commitment free of any type of supervision, DOC agents—acting under the authority of § 301.48(2)(b)2., which took effect in 2007—tracked Belleau down at a nearby bus stop, escorted him to jail, and fitted him with a GPS tracking device. Belleau sued, alleging ex post facto and Fourth Amendment violations. (Slip op. at 1-7).

Ex post facto violation

To prevail on his claim, Belleau must show that the GPS tracking statute applies retroactively with respect to his convictions and that it constitutes punishment. First, given that Belleau committed his crimes in the late 1980s, the 2007 GPS tracking law is being applied to him retroactively. The court rejects DOC’s argument that the GPS tracking law isn’t being retroactively applied to Belleau because it was the discharge from the ch. 980 commitment that made him subject to the law, and that happened in 2010, after the law took effect:

…[A]s Belleau points out, even if it was the discharge from his civil commitment that made him subject to lifetime GPS monitoring, it was his previous criminal convictions that made him eligible for civil commitment in the first place. …. While the State also needed to prove that he had a mental disorder that made it likely he would commit one or more acts of sexual violence in order to commit him, the State stipulated that it could no longer prove that he had such a disorder in July 2010. The Supreme Court has held that the initial offense conduct is the trigger for Ex Post Facto Clause purposes even when an additional penalty is imposed because of conduct that occurred after the law at issue was enacted. Johnson v. United States, 529 U.S. 694, 700–01 (2000). Here, the fact that there was no subsequent misconduct but simply a discharge of his commitment would seem to make it even more clear that the trigger is Belleau’s underlying criminal conduct. This is also clear from the fact that offenders whose convictions occurred before the effective date of the statute, but who completed their sentences afterwards, are likewise required to submit to GPS tracking, even though they were never committed under Chapter 980. Wis. Stat. § 301.48(2)(a)3, 3m. The legislature clearly intended the GPS tracking law to apply retroactively to at least those individuals who were still serving their sentences or commitments at the time the law became effective, even though their convictions occurred earlier.  (Slip op. at 13-14).

Second, applying the law to Belleau constitutes punishment. When determining whether a law constitutes punishment, the court first asks if the legislature intended to impose a punishment. If it was, retroactive application is invalid. If not, the court then goes on to determine “whether the statutory scheme is so punitive either in purpose or effect as to negate [the] intention to deem it civil.” Smith v. Doe, 538 U.S. 84, 92 (2003) (quotations omitted).

The legislature didn’t intend § 301.48 to be punishment (slip op. at 16-19), so the question then becomes whether it is punitive despite that intent. The court here finds the effects of the law are punitive because GPS tracking:

• Resembles traditional punishment because, like probation and parole, it allows the State to supervise the wearer; failure to wear the device subjects the person to revocation-like penalties in the form of potential prosecution under § 946.465; and the $50 monthly fee the wearer has to pay has the effect of a fine. (Slip op. at 9, 20-25).
• Imposes an affirmative disability or restraint not only by requiring he wear the device continuously for the rest of his life, but also by requiring he tether himself to an electrical outlet for an hour every day to keep the device charged. (That’s more than two weeks per year; and “[o]ver the five years [Belleau] has worn the device, the total comes to 75 days” (slip op. at 25).) And, § 301.48(3)(c) allows DOC to set up  “inclusion” and “exclusion” zones, which would restrain the wearer from leaving or entering certain areas (though it hasn’t done that so far for Belleau). (Slip. op at 7-9, 25-27).
• Promotes the traditional aims of punishment, i.e., deterrence and retribution. (Slip op. at 28).
• Is excessive in light of its non-punitive purpose (public safety) rather than rationally related and proportional to that purpose. (Slip op. at 28-31). The court rejects DOC’s argument that GPS tracking is rationally related to its purpose because of Belleau’s risk to reoffend: “To accept the argument that the unquestionably good end of preventing despicable crimes against children justifies the State imposing such restraint upon those it thinks more likely to commit such crimes in the future has dangerous implications for the liberty of all. It is the kind of reasoning that can turn a nation with a limited government into a police state.” (Slip op. at 30).

Fourth Amendment Violation

Applying the GPS tracking law to Belleau also violates the Fourth Amendment. Grady v. North Carolina, 135 S. Ct. 1368 (2015) (per curiam), just made clear that GPS monitoring of a person is a search. As guides for determining reasonableness of such monitoring, the Court cited Samson v. California, 547 U.S. 843 (2006), and Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995), which look to whether there is a decreased expectation of privacy, the level of obtrusiveness of the search, and the severity of the need met by the search.

Applying these same considerations here, application of the State’s GPS tracking statute violates Belleau’s Fourth Amendment right against unreasonable searches and seizures. Unlike the parolee in Samson or the students in Acton, Belleau’s expectation of privacy is not diminished; he is not serving a sentence or a civil commitment and is not otherwise in the custody of the State. Next, the intrusion on privacy is greater, as he is forced to wear a device that must be charged an hour a day and keeps a minute-by-minute record of his whereabouts. Finally, while the need for the search is to reduce the risk of reoffending, the gravity of the threat alone cannot by justify the search, City of Indianaopolis v. Edmond, 531 U.S. 32, 42 (2000). (Slip op. at 38-39).

The court makes the point of saying what this case is not about:

It is not about whether the State can subject an individual who is convicted of sexually assaulting a child to lifetime GPS monitoring as punishment for a crime. Given the fact that one can be sentenced to life in prison for such a crime, see, e.g., Wis. Stat. § 948.02(1)(am); 18 U.S.C. § 2241(c), it necessarily follows that lifetime GPS tracking, as a component of a sentence imposed for such an offense, would be lawful. The case is also not about whether a person who is currently under the lawful supervision of the State in the form of parole, probation or extended supervision in connection with a criminal conviction, or supervised release under Section 980.08, can be required to submit to such tracking while on supervision. Persons under these forms of State supervision have only a conditional liberty and are subject to the conditions, rules and regulations of the State agency with authority over them. See State v. Tarrell, 74 Wis. 2d 647, 653–54, 247 N.W.2d 696, 700–01 (1976) …. (Slip op. at 10).