A-90-18 H.R. & I.R. v. New Jersey State Parole Board (082373) (Mercer County & Statewide)

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the

Clerk for the convenience of the reader. It has been neither reviewed nor approved by the

Court. In the interest of brevity, portions of an opinion may not have been summarized.

H.R. v. New Jersey State Parole Board (A-90-18) (082373)

Argued February 3, 2020 -- Decided June 1, 2020

LaVECCHIA, J., writing for the Court.

The Sex Offender Monitoring Act (SOMA or the Act) requires that sex offenders

designated as a high risk to reoffend -- specifically Tier III sex offenders under Megan’s

Law -- submit to continuous satellite-based monitoring. Plaintiff H.R. is a convicted sex

offender. His sentence also included placement on parole supervision for life (PSL).

When he was released from incarceration and designated as a Tier III sex offender, the

Board required H.R. to submit to GPS monitoring. H.R. challenges the constitutionality

of SOMA’s GPS monitoring program as applied to him, claiming the monitoring

constitutes an unreasonable warrantless search in violation of Article I, Paragraph 7 of the

New Jersey Constitution. The Board counters that this search is valid because it falls

within the “special needs” exception to the warrant requirement.

In 2010, H.R. was convicted of attempting to lure a minor into a motor vehicle.

His incarceration ended in March 2015, but he remained subject to PSL as part of his

sentence and, thus, was under the supervision of the Board. He was designated Tier III,

or “high risk,” under Megan’s Law. Due to that tier designation, the Board imposed GPS

monitoring as SOMA required. GPS monitoring permits the Board to track H.R.’s

movements twenty-four hours per day, seven days per week, through an ankle bracelet

device. According to H.R.’s deposition testimony, wearing the ankle bracelet causes him

physical discomfort and has burdened his life in numerous ways. H.R. and another

individual, I.R. -- who was not sentenced to PSL and had no additional parole

requirements -- commenced this action in 2015, to challenge the constitutionality of the

Board’s imposition of GPS monitoring as applied to each of them.

The trial court held that the monitoring constituted a search under the New Jersey

Constitution, relying on reasoning from Grady v. North Carolina, 575 U.S. 306 (2015).

After applying the special needs balancing test, the court granted summary judgment to

the Board as to H.R. but, noting the difference between H.R.’s PSL status and the facts in

I.R.’s case, granted summary judgment in favor of I.R. On appeal, the Appellate

Division affirmed as to both H.R. and I.R. 457 N.J. Super. 250, 255 (App. Div. 2018).

The Board did not petition for certification in I.R.’s case; the Court granted H.R.’s

petition for certification. 238 N.J. 495 (2019).

1

HELD: SOMA’s legislatively enumerated purposes demonstrate that a special need --

not an immediate need to gather evidence to pursue criminal charges -- motivates the

GPS monitoring prescribed by the Legislature. That satisfies the first step in a special

needs analysis and allows the determination that this search may be constitutional. The

Court therefore balances the interests of the parties and concludes that, although GPS

monitoring is a significantly invasive search, it is outweighed by the compelling

government interest advanced by the search and H.R.’s severely diminished expectation

of privacy. The Court notes that H.R.’s PSL status is critical to that conclusion.

1. SOMA was enacted in 2007 after the Legislature found enhanced monitoring to be

efficacious following a two-year pilot program. In the Act, the Legislature expresses

concern about the high recidivism rates of sex offenders and the “unacceptable level of

risk” such offenders pose to the community. See N.J.S.A. 30:4-123.90(a). SOMA

declares that “[i]ntensive supervision” of such “offenders is a crucial element in both the

rehabilitation of the released inmate and the safety of the surrounding community.” Id. at

(b). The Legislature called the GPS program “a valuable and reasonable requirement for

those offenders who are determined to be a high risk to reoffend.” Id. at (e). The Act

provides that those whose “risk of reoffense has been determined to be high” -- defined

as any person designated as a Tier III offender under Megan’s Law -- are automatically

subject to SOMA. N.J.S.A. 30:4-123.91(a)(1). And a person also sentenced to PSL must

comply with both PSL and SOMA requirements. N.J.A.C. 10A:72-11.5(b). (pp. 12-16)

2. The parties do not dispute that the GPS monitoring of H.R. constitutes a search for

purposes of this constitutional challenge. Any argument about that was abandoned after

the trial court concluded it was a search, citing Grady. There is also no dispute that H.R.

was automatically subject to GPS monitoring because he was designated a Tier III sex

offender under Megan’s Law. There was no individualized suspicion or warrant that

preceded imposition of H.R.’s GPS monitoring. Thus, for the search to be reasonable

under Article I, Paragraph 7, it would have to fall within a well-delineated exception to

the warrant requirement. (pp. 16-17)

3. In New Jersey, a warrant exception exists when “special needs, beyond the normal

need for law enforcement, make the warrant and probable-cause requirement

impracticable.” State v. O’Hagen, 189 N.J. 140, 150 (2007). Under a special needs

analysis, the first consideration is “whether there is a special governmental need beyond

the normal need for law enforcement that justifies [the search] without individualized

suspicion.” Id. at 158. In that examination, courts look to the explanation for the

search’s purpose, ibid., and “if the core objective of the police conduct serves a special

need other than immediate crime detection, the search may be constitutional,” id. at 160.

Once the purpose of the search is determined to serve a special need, then a court weighs

the search’s encroachment on an individual’s privacy interests against the advancement

of legitimate state goals to determine whether, on balance, the search is reasonable. See

id. at 158. The Court notes that the nature or degree of intrusiveness of the search is a

2

factor in the balancing performed in the second part of the analysis. Contrary to

arguments advanced by H.R. and the ACLU, the first part of the test does not require a

determination that the search is only minimally intrusive. (pp. 17-19)

4. Examination of the objective of a search performed under the auspices of a state

statute begins “with the purposes enumerated by the Legislature.” Id. at 158. The Court

reviews the findings and declarations made in SOMA, noted in paragraph 1 above, and

discerns from that plain and direct statutory language that the prime purpose of

establishing SOMA’s permanent program of continuous satellite monitoring is to enhance

the State’s supervision of sex offenders at high risk to reoffend. The Court holds that the

legislatively enumerated purposes -- enhanced supervision, community protection,

deterrence, and rehabilitation -- demonstrate that a special need -- not an immediate need

to gather evidence to pursue criminal charges -- motivates the GPS monitoring prescribed

by the Legislature. That satisfies the first step in a special needs analysis and allows the

determination that this search may be constitutional. Id. at 160. (pp. 20-22)

5. Turning to the second part of the special needs test, the Court stresses that continuous

GPS monitoring is more invasive than any special needs search allowed in the past,

making the inquiry into the privacy interest affected a very important consideration.

Here, H.R.’s status as a Tier III sex offender and a PSL parolee places him in the position

of having a severely diminished expectation of privacy. The Court reviews the

requirements to which H.R. is subject and notes the well-established principle that PSL

parolees may be subjected to restrictions beyond what may ordinarily be constitutionally

imposed. In light of those, the Court finds that H.R. has little to no expectation of

privacy to assert. As to the governmental interest, the Court notes that the State’s interest

in deterring and preventing sexual offenses is compelling and well recognized but

stresses that the strength of that interest still must be evaluated in context. (pp. 23-28)

6. On balance, H.R.’s diminished privacy interests as a Tier III Megan’s Law sex offender

on PSL are outweighed by the State’s interest in deterring and rehabilitating him as a high-

risk sex offender. The Court notes for comparison’s sake only the different outcome

reached by the trial court and the Appellate Division with respect to I.R., who was not on

PSL. The Court stresses that this case presented exclusively an as-applied challenge to

SOMA’s imposition of GPS monitoring on H.R. immediately following his release from

incarceration and being designated as Tier III; it did not entail any challenge to the time

within which such monitoring is reviewed. A Megan’s Law sex offender may file a

motion for a change in tier designation based on a change in circumstances. (pp. 28-30)

AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON,

FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE

LaVECCHIA’s opinion.

3

SUPREME COURT OF NEW JERSEY

A-90 September Term 2018

082373

H.R.,

Plaintiff-Appellant,

and

I.R.,

Plaintiff,

v.

The New Jersey State Parole Board,

Defendant-Respondent.

H.R.,

Plaintiff,

and

I.R.,

Plaintiff,

v.

The New Jersey State Parole Board,

Defendant.

1

On certification to the Superior Court,

Appellate Division, whose opinion is reported at

457 N.J. Super. 250 (App. Div. 2018).

Argued Decided

February 3, 2020 June 1, 2020

Fletcher C. Duddy, Deputy Public Defender, argued the

cause for appellant (Joseph E. Krakora, Public Defender,

attorney; Fletcher C. Duddy and Stephanie A. Lutz,

Assistant Deputy Public Defender, of counsel and on the

briefs).

Jane C. Schuster, Assistant Attorney General, argued the

cause for respondent (Gurbir S. Grewal, Attorney

General, attorney; Melissa H. Raksa, Assistant Attorney

General, of counsel, and Jane C. Schuster and

Christopher C. Josephson, Deputy Attorney General, on

the briefs).

Alexander Shalom argued the cause for amicus curiae

American Civil Liberties Union of New Jersey (American

Civil Liberties Union of New Jersey Foundation,

attorneys; Alexander Shalom and Jeanne LoCicero, on

the brief).

Brian D. Kenney argued the cause for amicus curiae

Association of Criminal Defense Lawyers of New Jersey

(Einhorn, Barbarito, Frost & Botwinick, attorneys; Brian

D. Kenney, on the brief).

JUSTICE LaVECCHIA delivered the opinion of the Court.

In 2007, the Legislature enacted the Sex Offender Monitoring Act

(SOMA or the Act), N.J.S.A. 30:4-123.89 to -123.99, declaring that

2

community protection, deterrence of recidivism, and rehabilitation would be

promoted by enhanced supervision of high-risk sex offenders released into the

community. SOMA requires that sex offenders designated as a high risk to

reoffend -- specifically Tier III sex offenders under Megan’s Law, see N.J.S.A.

2C:7-8(c)(3) -- submit to continuous satellite-based monitoring. N.J.S.A.

30:4-123.91(a)(1) and -123.92. The Act authorizes the New Jersey State

Parole Board (the Board) to monitor a high-risk sex offender’s location using

an ankle device with Global Positioning System (GPS) technology. N.J.S.A.

30:4-123.92.

Plaintiff H.R. is a convicted sex offender. His sentence also included

placement on parole supervision for life (PSL). See N.J.S.A. 2C:43-6.4.

When he was released from incarceration and designated as a Tier III sex

offender, the Board required H.R. to submit to GPS monitoring. He filed this

action challenging the constitutionality of SOMA’s GPS monitoring program

as applied to him, claiming the monitoring violates his right to be free from

unreasonable searches under Article I, Paragraph 7 of the New Jersey

Constitution.

In this appeal we address H.R.’s contention that the requirement that he

submit to GPS monitoring under SOMA constitutes an unreasonable

warrantless search and the Board’s countervailing argument that this search is

3

valid because it falls within the “special needs” exception to the warrant

requirement. The Appellate Division, as well as the trial court, upheld the

GPS monitoring of H.R. as a legitimate special needs search in this as applied

challenge. We now affirm.

I.

A.

In 2010, H.R. was convicted of the offense of attempting to lure a minor

into a motor vehicle. N.J.S.A. 2C:13-6. His incarceration ended in March

2015, but he remained subject to PSL as part of his sentence and, thus, was

under the supervision of the Board. A tier classification hearing was

conducted, and he was designated Tier III, or “high risk,” under Megan’s Law.

See N.J.S.A. 2C:7-8(c). Due to that tier designation, the Board imposed GPS

monitoring as SOMA required.

GPS monitoring permits the Board to track H.R.’s movements twenty-

four hours per day, seven days per week, through an ankle bracelet device.

According to H.R.’s deposition testimony, wearing the ankle bracelet

causes him physical discomfort including chafing, bleeding, open wounds,

scarring on his foot and ankle, and numbness in his foot and toes. H.R. also

testified about how the device has burdened his life. He described feeling

humiliated and degraded wearing the device in public settings and how the

4

device causes him to feel ostracized. Due to the stigma of the device, he has

not visited a doctor for medical issues; moreover, he feels that he cannot talk

to others. Among other inconveniences, he explained that he must charge the

ankle bracelet daily, which can take up to an hour, during which his

movements are limited by an eight-foot electrical cord. When away from

home, he must carry a battery pack, which he wears around his waist. If he

fails to charge the device, an alarm will sound and the device will audibly

remind him to recharge the battery. It may also state, “call your parole

officer,” or “are you out of the State?” Failure to recharge the battery can

result in a violation and jail sentence.

H.R. and another individual commenced this action on April 24, 2015, to

challenge the constitutionality of the Board’s imposition of GPS monitoring as

applied to each of them.1 H.R. alleged that GPS monitoring violates Article I,

Paragraph 7 of the New Jersey Constitution as an unreasonable search because

it is conducted without a warrant and probable cause; he further claimed that

because he is a parolee, he is entitled, at the very least, to a showing of

reasonable articulable suspicion before he is subjected to a search. He also

1

I.R. was the additional plaintiff in the complaint. The Board placed I.R. on

GPS monitoring under SOMA following his release from confinement and

designation as a Tier III offender. Unlike H.R., I.R. was not sentenced to PSL

and had no additional parole requirements.

5

sought a preliminary injunction to enjoin the Board from continuing his GPS

monitoring. The matter proceeded on cross motions for summary judgment --

for the relief sought and, on the Board’s part, for dismissal of the action.

On January 25, 2017, the trial court issued an opinion holding first that

the GPS monitoring constituted a search under Article I, Paragraph 7 of the

New Jersey Constitution, relying on reasoning from Grady v. North Carolina,

575 U.S. 306 (2015), which held, under similar factual circumstances, that

satellite-based monitoring constituted a search for Fourth Amendment

purposes.

The court then addressed the Board’s assertion that the search should be

sustained as a special needs search. The court rejected H.R.’s argument that

SOMA’s purpose was law enforcement. The court reasoned that, “[w]hile the

monitoring and the information obtained by the State may provide evidence

that will assist in the prosecution of the offender, the monitoring is not

intended to directly aid in the prosecution of the offender, but to prevent the

commission of new crimes by sex offenders.”

The court then applied the special needs balancing test to H.R.’s

personal circumstances, weighing the “competing private and public interests

advanced by the parties.” (quoting State v. O’Hagen, 189 N.J. 140, 161

(2007)). The court recognized a significant intrusion on H.R.’s constitutional

6

right to personal liberty but concluded that, because H.R. is subject to PSL, his

“expectation of privacy is already seriously diminished.” The court

determined that the governmental interests at work in SOMA outweighed the

personal liberty invasions to which H.R. was subjected due to the GPS

monitoring. Accordingly, the court granted summary judgment to the Board.2

B.

H.R. appealed.3 The arguments on appeal focused on whether GPS

monitoring was a special needs search and whether the trial court properly

weighed the parties’ respective interests. In light of the Supreme Court’s

decision in Grady, the parties no longer disputed that the GPS monitoring was

a search.

The Appellate Division affirmed in a published decision. H.R. v. State

Parole Bd., 457 N.J. Super. 250, 255 (App. Div. 2018). The Appellate

Division first determined that, as a search, the GPS monitoring fit within the

“special needs” exception to the warrant requirement. Id. at 260. The court

2

The court opinion noted the difference between H.R.’s PSL status and the

facts in I.R.’s case. Because I.R. was not subject to any parole restrictions, the

court concluded that SOMA’s “punitive nature” and “intrusiveness”

outweighed the Board’s interest in subjecting I.R. to SOMA’s GPS

monitoring. The court therefore granted I.R.’s motion for summary judgment.

3

The Board also filed an appeal from the judgment in I.R.’s favor. The

Appellate Division consolidated the two appeals.

7

reviewed the Legislature’s enumerated purposes for SOMA’s required GPS

monitoring, noting the deterrence and rehabilitation considerations cited in

N.J.S.A. 30:4-123.90(b) and (c). Id. at 258-59. The court also was persuaded

that a person is likely to be deterred from committing a crime when his or her

actions are monitored through GPS and that avoiding criminal activity

advances a person’s rehabilitation. Id. at 259. The court further noted that

GPS monitoring can exonerate an offender from a matter under investigation.

Ibid. As a result of its analysis, the court concluded that H.R. could not

demonstrate, either from “the statute’s plain language or its actual

enforcement, that the central purpose of the GPS monitoring is to assist in

criminal investigations.” Id. at 260.

Applying the special needs exception’s balancing test, the Appellate

Division concluded that the Board’s interest in the prevention and deterrence

of sexual offenses was significant. Id. at 261. Although the court recognized

H.R. has a personal privacy interest that GPS monitoring “substantially

diminishes,” the Appellate Division’s weighing of the interests hinged on

H.R.’s PSL status. Id. at 261-63. The Appellate Division noted that being on

PSL already diminishes H.R.’s privacy and personal autonomy because PSL

subjects him to numerous restrictions, such as “polygraphs, curfews, travel

restrictions . . . and searches of his home, vehicle[,] and person based on

8

reasonable suspicion.” Id. at 263. On balance, the Appellate Division

determined that the Board’s interest outweighed H.R.’s privacy interest and

upheld the GPS monitoring as a valid search under the special needs analysis.4

Id. at 264.

We granted H.R.’s petition for certification. 238 N.J. 495 (2019). 5 We

also granted amicus curiae status to the American Civil Liberties Union of

New Jersey (ACLU) and the Association of Criminal Defense Lawyers of New

Jersey (ACDL).

II.

A.

1.

H.R. distinguishes GPS monitoring from special needs searches allowed

in the past. He argues that SOMA’s plain language, as well as its actual use,

makes the search’s immediate objective evidence-gathering, which cannot be

squared with a non-criminal purpose as required for the special needs

exception to apply. Moreover, H.R. claims that allowing such monitoring is

4

In contrast, with respect to I.R., the Appellate Division agreed with the

motion court and found that I.R. had a greater expectation of privacy because,

but for his SOMA requirements, he was not under the Board’s supervision, and

GPS monitoring constituted an unreasonable search as applied to him. H.R.,

457 N.J. Super. at 263-64.

5

The Board did not file a petition for certification in I.R.’s case.

9

incompatible with his rights as a parolee because the Board “must have

reasonable suspicion of a parole violation before it may search [him].”

Assuming a special needs analysis is applicable, H.R. asserts that the

GPS monitoring fails the balancing test. Calling GPS monitoring “a

restrictive, invasive, painful, and shameful experience,” he argues that the

intrusion on his privacy is not minimal and “outweighs the State’s interest in

conducting the search.” Although H.R. does not dispute that “preventing sex

offender recidivism is a compelling governmental interest,” he asserts that

other existing mechanisms protect that interest and that “the incremental

advancement that GPS surveillance provides in preventing [H.R.] from

committing another crime is greatly outweighed by the burdens placed on him

through the suspicionless search.”

2.

The ACLU endorses H.R.’s arguments and homes in on the impropriety

of extending the special needs exception beyond searches involving a minimal

invasion of a privacy interest, calling that “a necessary precondition.” It

describes GPS monitoring as “among the most invasive searches imaginable,”

identifying and elaborating on “pain and humiliation, limitations on liberty,

and invasions of privacy” as the types of burdens imposed on the monitored

individual.

10

The ACDL similarly argues that GPS monitoring is unreasonable and

should not be permitted under the special needs exception. According to the

ACDL, every special needs search upheld to date in this state is

distinguishable from the burdens imposed by GPS monitoring.

B.

The Board urges affirmance of H.R.’s GPS monitoring as a special needs

search. It counters the claim that the purpose of GPS monitoring is evidence-

gathering, pointing to the findings and declarations in SOMA that “continuous

GPS monitoring of ‘those offenders who are determined to be a high risk to

reoffend’ is both ‘a valuable and reasonable requirement,’” (quoting N.J.S.A.

30:4-123.90(e)). The Board also points to SOMA’s language about deterrence

and rehabilitation, and its legislative history, 6 as demonstrating the legislative

intent to protect the community, rendering incidental any law enforcement

benefit.

Further, the Board argues that the Appellate Division correctly held that

the special needs balancing test was satisfied in this case. The Board

emphasizes that, because H.R. is subject to PSL and Megan’s Law, he starts

with “a reduced expectation of privacy.” In terms of invasiveness of this

6

Citing Pub. Hearing Before S. Law & Pub. Safety & Veterans’ Affairs

Comm. on S-484 (June 7, 2007); Pub. Hearing Before Assemb. Judiciary

Comm. on A-1716 (May 21, 2007).

11

privacy intrusion, the Board distinguishes GPS monitoring of location from

“full-blown search[es] of [a] person, home, and car, which require reasonable

suspicion.” When evaluated against the governmental interest involved, the

Board disputes that H.R.’s current status as a PSL parolee and Tier III

Megan’s Law offender somehow lessens the weight to be attributed to the

value of SOMA’s GPS monitoring. In explaining the value of such

monitoring, the Board relies on empirical data that had been presented to the

Legislature and demonstrated that “in New Jersey, the electronic monitoring of

our high-risk offenders is more effective than traditional parole supervision.” 7

Thus, due to H.R.’s significantly reduced privacy interest, the Board contends

that the balancing under the special needs test “tips heavily in favor of the

State.”

III.

SOMA was enacted on August 6, 2007, after the Legislature found

enhanced monitoring to be efficacious following a two-year pilot program.

7

The Board cites a report it provided the Legislature and Governor that

“suggest[ed] the State Parole Board’s GPS monitoring has contributed to a

significantly lower recidivism rate than nationwide data indicates for high -risk

sex offenders.” State Parole Board, Report on New Jersey’s GPS Monitoring

of Sex Offenders (Dec. 5, 2007), https://ccoso.org/sites/default/files/import/nj-

program.pdf. It points to other courts that have relied on similar empirical

data on recidivism, citing Belleau v. Wall, 811 F.3d 929, 933 (7th. Cir. 2016).

12

L. 2005, c. 189 (N.J.S.A. 30:4-123.83). The Act directs the Chairman of the

State Parole Board (Chairman) to “establish a program for the continuous,

satellite-based monitoring of sex offenders in this State.” N.J.S.A. 30:4-

123.92(a).

When enacting SOMA as a permanent program, the Legislature made the

following findings and declarations:

a. Offenders who commit serious and violent sex

crimes have demonstrated high recidivism rates and,

according to some studies, are four to five times more

likely to commit a new sex offense than those without

such prior convictions, thereby posing an unacceptable

level of risk to the community.

b. Intensive supervision of serious and violent sex

offenders is a crucial element in both the rehabilitation

of the released inmate and the safety of the surrounding

community.

c. Technological solutions currently exist to provide

improved supervision and behavioral control of sex

offenders following their release.

d. These solutions also provide law enforcement and

correctional professionals with new tools for electronic

correlation of the constantly updated geographic

location of supervised sex offenders following their

release with the geographic location of reported crimes,

to possibly link released offenders to crimes or to

exclude them from ongoing criminal investigations.

e. Continuous 24 hours per day, seven days per week,

monitoring is a valuable and reasonable requirement for

13

those offenders who are determined to be a high risk to

reoffend, were previously committed as sexually

violent predators and conditionally discharged, or

received or are serving a special sentence of community

or parole supervision for life. A program to monitor

these sex offenders should be established.

[N.J.S.A. 30:4-123.90.]

Pertinent to the instant appeal, persons subject to SOMA automatically

include those whose “risk of reoffense has been determined to be high” --

defined as any person designated as a Tier III offender under Megan’s Law,

N.J.S.A. 2C:7-8. N.J.S.A. 30:4-123.91(a)(1). Monitored individuals also

include, definitionally, individuals who the Chairman deems appropriate for

GPS monitoring under the Act and who fall within one of three categories, one

category being persons having been sentenced to PSL. Id. at (a)(2).

SOMA directs that monitoring include (1) “[t]ime-correlated or

continuous tracking of the geographic location of the monitored subject using

a [GPS]” and (2) “[a]n automated monitoring system that can be used to permit

law enforcement agencies to compare the geographic positions of monitored

subjects with reported crime incidents and whether the subject was in the

proximity of such reported crime incidents.” N.J.S.A. 30:4-123.92(b). SOMA

further directs the Board to “develop procedures to determine, investigate, and

report on a 24 hours per day basis a monitored subject’s noncompliance with

14

the terms and conditions of the program.” N.J.S.A. 30:4-123.92(c). Any

report of noncompliance is investigated immediately by law enforcement or a

parole officer. Ibid. SOMA also provides that the information collected

through monitoring may be used to “prepar[e] correlation reports for

distribution and use by federal, State, county and municipal law enforcement

agencies.” N.J.S.A. 30:4-123.93.

In regulations promulgated to implement SOMA, the Board tracks

SOMA’s requirement that a person “whose risk of re-offense has been

determined to be high” under Megan’s Law is automatically enrolled in GPS

monitoring. N.J.A.C. 10A:72-11.1(a)(1).8

A person subject to GPS monitoring must: (1) meet with an assigned

parole officer for installation of the GPS monitor; (2) insure that the device is

charged daily and remains charged; (3) advise the parole officer if the device

becomes inoperable; (4) refrain from interfering with the device; (5) pay for

the cost of repair or replacement of the device if the loss or damage is caused

by the person; (6) maintain physical control over the device when leaving his

8

Although not applicable to H.R., the regulations also dictate the process for

the Chairman to deem persons appropriate for GPS monitoring consistent with

N.J.S.A. 30:4-123.91(a)(2). See N.J.A.C. 10A:72-11.1(a)(2). When a person

is placed on GPS monitoring pursuant to the Chairman’s determination, the

offender’s case is reviewed every 180 days to determine whether GPS

monitoring should continue. N.J.A.C. 10A:72-11.4(a).

15

or her residence; (7) provide the parole officer with reasonable access to the

device for maintenance or diagnostics; (8) provide the parole officer with

immediate access to the device “to investigate a report of non-compliance with

a condition of the [program]”; (9) inform the parole officer of a change in

residence no later than ten days prior; (10) inform the parole officer of

anticipated travel outside of the state; and (11) provide the parole officer with

information related to employment. N.J.A.C. 10A:72-11.5(a).

If a person is also sentenced to PSL, the person must comply with the

requirements of PSL as well as the above-listed requirements. N.J.A.C.

10A:72-11.5(b).

IV.

A.

The parties do not dispute that the GPS monitoring of H.R. constitutes a

search for purposes of this constitutional challenge. Any argument about that

was abandoned after the trial court concluded it was a search, citing the United

States Supreme Court decision in Grady.

In Grady, the Supreme Court held that, for purposes of the Fourth

Amendment, “a State . . . conducts a search when it attaches a device to a

person’s body, without consent, for the purpose of tracking that individual’s

movements.” 575 U.S. at 309. The Appellate Division in this matter noted its

16

agreement with the trial court on that point. H.R., 457 N.J. Super. at 257. We

also see it as beyond cavil and therefore now expressly hold that the

continuous GPS monitoring of H.R. by securing a device to his body

constitutes a search under Article I, Paragraph 7 of our State Constitution. Cf.

State v. Earls, 214 N.J. 564, 588-89 (2013).

There is also no dispute that H.R. was required to submit to GPS

monitoring because he was designated a Tier III sex offender under Megan’s

Law. That made him automatically subject to SOMA’s GPS monitoring.

N.J.S.A. 30:4-123.91(a). There was no individualized suspicion or warrant

that preceded imposition of H.R.’s GPS monitoring. Thus, for this search to

be reasonable under Article I, Paragraph 7, it would have to “fall[] within a

well-delineated exception to the warrant requirement.” State v. Brown, 216

N.J. 508, 516 (2014). Here, the Board claims that the search falls within the

special needs exception to that requirement.

B.

In this state, a warrant exception exists when “special needs, beyond the

normal need for law enforcement, make the warrant and probable-cause

requirement impracticable.” O’Hagen, 189 N.J. at 150 (quoting Skinner v. Ry.

Labor Execs.’ Ass’n, 489 U.S. 602, 619 (1989)). The special needs exception

applies in this state “when the search is conducted for reasons unrelated to law

17

enforcement’s investigation and prosecution of criminal activity and furthers

an important state interest.” State v. Harris, 211 N.J. 566, 582 (2012).

Under a special needs analysis, the first consideration is

whether there is a special governmental need beyond

the normal need for law enforcement that justifies [the

search] without individualized suspicion. If there is a

special need, we must next examine the privacy

interests advanced by [the] defendant and any

limitations imposed. Finally, we must weigh the

competing governmental need against the privacy

interests involved to determine whether [the challenged

program] “ranks among the limited circumstances in

which suspicionless searches are warranted.”

[O’Hagen, 189 N.J. at 158 (quoting State in Interest of

J.G., 151 N.J. 565, 578 (1997)).]

In the threshold determination of whether a special need exists, we focus

on the search’s objective. Id. at 159-60. In that examination, we look to the

explanation for the search’s purpose, id. at 158, and “if the core objective of

the police conduct serves a special need other than immediate crime detection,

the search may be constitutional,” id. at 160.

Once the purpose of the search is determined to serve a special need,

then a court weighs the search’s “encroachment on an individual’s [privacy]

interests against the advancement of legitimate state goals” to determine

whether, on balance, the search is reasonable. J.G., 151 N.J. at 576; see also

O’Hagen, 189 N.J. at 158. Thus, the second part of the test involves balancing

18

the relevant interests, which include “the affected [individual’s] expectation of

privacy, the search’s degree of obtrusiveness, and the strength of the

government’s asserted need in conducting the search.” Joye v. Hunterdon

Cent. Reg’l High Sch. Bd. of Educ., 176 N.J. 568, 597 (2003).

Before turning to the application of those principles, however, we note

that H.R. and the ACLU argue that the first part of the test requires a

determination that the search is only minimally intrusive. We have never so

held. The nature or degree of intrusiveness, even if highly intrusive, is a factor

in the balancing performed in the second part of the special needs analysis.

See, e.g., O’Hagen, 189 N.J. at 161-63; Joye, 176 N.J. at 597-600; J.G., 151

N.J. at 580; N.J. Transit PBA Local 304 v. N.J. Transit Corp., 151 N.J. 531,

660-62 (1997). In each such example, we conducted the balancing analysis

and considered the invasiveness of the search, any limitations imposed, and

whether those subject to the search had a diminished expectation of privacy.

The invasiveness of the search alone is not dispositive and does not foreclose

the balancing test.

19

V.

A.

Examination of the objective of a search performed under the auspices of

a state statute begins “with the purposes enumerated by the Legislature.”

O’Hagen, 189 N.J. at 158.

Here, the opening section of SOMA, in which the Legislature sets forth

its findings and declarations, expresses concern about the high recidivism rates

of sex offenders and the “unacceptable level of risk” such offenders pose to the

community. See N.J.S.A. 30:4-123.90(a). SOMA declares that “[i]ntensive

supervision” of such “offenders is a crucial element in both the rehabilitation

of the released inmate and the safety of the surrounding community. ” Id. at

(b). Further, the Act declares, in the wake of the piloting of GPS monitoring

over a two-year period, that “[t]echnogical solutions currently exist to provide

improved supervision and behavioral control of sex offenders following their

release.” Id. at (c). The Legislature called the GPS program “a valuable and

reasonable requirement for those offenders who are determined to be a high

risk to reoffend.” Id. at (e).

From that plain and direct statutory language, we discern that the prime

purpose of establishing SOMA’s permanent program of continuous satellite

monitoring is to enhance the State’s supervision of sex offenders at high risk to

20

reoffend. That overriding purpose furthers the declared goals of community

protection and deterring recidivism, thereby advancing the monitored subject’s

rehabilitation. Those purposes were properly recognized by the trial court and

Appellate Division as legitimate special needs.

That there is mention of the monitoring information’s capacity to be

linked to new crimes, see id. at (d), bears noting, to be sure; but in the same

sentence the Legislature recognized that same link’s capacity to exonerate

monitored subjects who had no proximity to an event that happens to be under

investigation. Clearly, a criminal investigation is not the prompt for

imposition of monitoring under SOMA. Subsection d’s reference to potential

new charges is no more than an acknowledged ancillary consequence, not the

chief purpose of SOMA’s enhanced monitoring.

Similarly, SOMA’s allowance of information-sharing among law

enforcement agencies, see N.J.S.A. 30:4-123.93, does not make monitoring a

criminal-purpose search. SOMA does not subject random members of the

public to monitoring in the hope of catching someone committing any crime or

to aid in general criminal investigations. 9 Rather, the monitoring focuses on a

discrete class of persons at high risk of reoffense.

9

In contrast, in City of Indianapolis v. Edmond, the United States Supreme

Court invalidated a narcotics checkpoint program where any motorist on the

road could be subjected to the stop. 531 U.S. 32, 34-35 (2000). Likewise, in

21

A search qualifies as a special needs search if “the central purposes of

the [search] are not intended to subject the [target of the search] to criminal

charges.” O’Hagen, 189 N.J. at 159. That holds true even when “the

enumerated purposes may involve law enforcement to some degree.” Ibid.

The criminal enforcement consequences that could flow from SOMA’s GPS

monitoring are ancillary, not central.

We hold that the legislatively enumerated purposes -- enhanced

supervision, community protection, deterrence, and rehabilitation -- provide

the surest guide to the purpose of SOMA’s GPS monitoring. And those

purposes demonstrate that a special need -- not an immediate need to gather

evidence to pursue criminal charges -- motivates the GPS monitoring

prescribed by the Legislature. That satisfies the first step in a special needs

analysis and allows the determination that this search may be constitutional.

Id. at 160. Next, the interests of the parties come into play. We turn to that

second part of the special needs test.

Ferguson v. City of Charleston, the Supreme Court invalidated a program that

drug tested pregnant patients where any woman could be subjected to testing

simply by meeting one of nine criteria. 532 U.S. 67, 71-72, 71 n.4 (2001).

22

B.

1.

With respect to the nature of the invasion here, this Court has already

taken a detailed look at continuous GPS tracking. In Riley v. State Parole

Board, we reviewed the realities of being subjected to GPS monitoring. 219

N.J. 270, 293-96 (2014). That review, now enhanced by H.R.’s personal

account about wearing the device, reveals that GPS monitoring significantly

infringes on an individual’s privacy interests. We reject the Board’s

minimization of the intrusiveness involved as only revealing the subject’s

location. That does not do justice to what life is like tethered to an ankle

bracelet as part of continuous GPS monitoring. And, to the extent that the

Board relies on a single out-of-state decision in claiming that the monitoring

inflicts a minimal or slight invasion of privacy, citing Belleau v. Wall, 811

F.3d 929 (7th Cir. 2016), we note that we have taken a different view of the

realities of the circumstances. 10

Continuous GPS monitoring is more invasive than any special needs

search we have allowed in the past, both suspicionless ones and those that

required some level of individualized suspicion. See O’Hagen, 189 N.J. at 163

10

Belleau expressly rejected this Court’s decision in Riley and dismissed this

Court’s characterization of the realities of wearing the GPS device as

“hyperbolic.” 811 F.3d at 938.

23

(permitting suspicionless DNA swab of convicted persons’ inner cheek); Joye,

176 N.J. at 607 (permitting suspicionless drug and alcohol testing of high

school students participating in extracurricular activities); J.G., 151 N.J. at

587-88 (permitting suspicionless HIV testing of sex offenders); N.J. Transit,

151 N.J. at 564-65 (permitting suspicionless drug testing of transit employees);

see also New Jersey v. T.L.O., 469 U.S. 325, 342-43 (1985) (holding that a

student’s purse may be searched by school officials based on reasonable

suspicion); State v. Best, 201 N.J. 100, 114 (2010) (extending T.L.O. to the

search of a student’s car parked on school property).

Moreover, unlike those cases, which involved temporally limited, one-

time searches, this search is continuous. This is an invasive search, and we do

not underestimate it in our analysis.

2.

That this is an invasive search makes the inquiry into the privacy interest

affected a very important consideration. Here, H.R.’s status as a Tier III sex

offender and a PSL parolee places him in the position of having a severely

diminished expectation of privacy.

As a Tier III sex offender, H.R. is subject to the registration and

community notification provisions of Megan’s Law: N.J.S.A. 2C:7-13

(publication on the New Jersey Sex Offender Internet Registry); N.J.S.A.

24

2C:7-8(c)(2) (notification to schools and certain organizations in the

community); N.J.S.A. 2C:7-8(c)(3) (door-to-door notification to members of

the public likely to encounter plaintiff); and N.J.S.A. 2C:7-2 (periodic

registration and verification with law enforcement).

Moreover, H.R. is subject to PSL. Among the more than twenty-five

conditions that status imposes on his everyday life are polygraphs, curfews,

travel restrictions, face-to-face visits, and searches of his home, vehicle and

person based on reasonable suspicion. N.J.S.A. 2C:43-6.4(f); N.J.A.C.

10A:71-6.12(d). His status is that of a parolee -- for life. It is well established

that “it is constitutionally permissible to subject parolees to ‘conditions [that]

restrict their activities substantially beyond the ordinary restrictions imposed

by law on an individual citizen.’” J.B. v. State Parole Bd., 229 N.J. 21, 40

(2017) (alteration in original) (quoting Morrissey v. Brewer, 408 U.S. 471, 478

(1972)).

Given the conditions to which H.R. is subject as a PSL parolee and the

judicial recognition that PSL parolees may be subjected to restrictions beyond

what may ordinarily be constitutionally imposed, H.R. has little to no

expectation of privacy to assert.

25

3.

In the assessment of the governmental interest, all parties acknowledge

that the State’s interest in deterring and preventing sexual offenses is

compelling and well recognized in our jurisprudence. See Doe v. Poritz, 142

N.J. 1, 89 (1995); see also J.B., 229 N.J. at 41 (“We have acknowledged that

the State has a significant interest in ensuring adherence to the restrictive

conditions imposed pursuant to PSL . . . ‘to protect the public from recidivism

by defendants convicted of serious sexual offenses.’” (quoting Jamgochian v.

State Parole Bd., 196 N.J. 222, 237-38 (2008))). In enacting SOMA, the

Legislature reiterated that compelling interest. N.J.S.A. 30:4-123.90.

Because, in a special needs analysis, the strength of that interest still

must be evaluated in context, see Joye, 176 N.J. at 597, H.R. contends that the

governmental interest should not be regarded as compelling. The Board points

to the data and experience contemporaneous with SOMA’s enactment -- relied

upon by the Legislature -- indicating sex offenders pose a heightened risk of

recidivating, citing N.J.S.A. 30:4-123.90. H.R. counters that other research

supports that sex offense recidivism rates are lower than initially believed.

H.R. cites two articles critical of the basis for two United States

Supreme Court cases that have served as underpinnings for justifying sex

offender legislation and, in particular, sex offender registries. See Ira Mark

26

Ellman & Tara Ellman, “Frightening and High”: The Supreme Court’s Crucial

Mistake About Sex Crime Statistics, 30 Const. Comment. 495 (2015); Melissa

Hamilton, Constitutional Law and the Role of Scientific Evidence: The

Transformative Potential of Doe v. Snyder, 58 B.C. L. Rev. E. Supp. 34

(2017). The articles are of limited value to this case because SOMA is aimed

at high-risk sex offenders and thus those studies, which conclude that overall

sex offender recidivism rates are not as high as once believed, are not

particularly relevant. We do not conclude that the cited research diminishes

the value to be accorded to the governmental interest in enhanced monit oring

of high-risk sex offenders who are Tier III and on PSL.

Further, another cited study analyzed the recidivism rates of high-risk

sex offenders. See R. Karl Hanson et al., High-Risk Sex Offenders May Not

Be High Risk Forever, 29 J. Interpers. Violence 2792 (2014). That study

showed high-risk offenders’ recidivism risk was “cut in half for each 5 years

that they remained offense-free in the community,” id. at 2805, and that high-

risk offenders reoffended more quickly than other groups, id. at 2799. The

Hanson article supports the proposition that, unless high-risk sex offenders

actually remain offense free, the recidivism rates range from a five-year rate of

22%, a ten-year rate of 28.8%, and a fifteen-year rate of 31.8%. Id. at 2802.

Those results led the authors to suggest that intervention and monitoring

27

should be most intense during the first years of release and then decrease for

those who remain sex-offense-free. Id. at 2806-08. Thus, the State’s interest

in ensuring that high-risk offenders remain sex-offense-free is arguably

heightened especially in the first years of their release, in order to achieve

lower recidivism rates.

Finally, H.R. asserts that the State has other tools at its disposal to use

instead of enhanced monitoring, such as Megan’s Law and PSL. We reject the

argument that the State’s need for GPS tracking is diminished due to the

availability of those other tools. That the State has other tools available to it

does not undermine the weight to be given to the Legislature’s determination

that more intensive supervision is appropriate, particularly after a pilot test

period reinforces the salutary benefits of enhanced monitoring. We see no

diminution in the governmental interest in this respect.

4.

In balancing the interests, we conclude that although GPS monitoring is

a significantly invasive search, it is outweighed by the compelling government

interest advanced by the search and H.R.’s severely diminished expectation of

privacy.

H.R.’s PSL status is critical to our conclusion. His privacy interests

must be regarded in this balancing as extremely low; the GPS monitoring does

28

not amount to as substantial of an invasion of privacy as it would on

individuals not subject to PSL.11

H.R. nonetheless argues that in earlier special needs cases involving

drug testing and DNA samples there were restrictions or protections that

limited the intrusion on privacy and were considered when evaluating and

balancing the invasion of privacy. See, e.g., O’Hagen, 189 N.J. at 162-63;

Joye, 176 N.J. at 598-600; N.J. Transit, 151 N.J. at 560-61. And here, he says,

there are none. That argument is unavailing, however, because his severely

diminished expectation of privacy as a result of his PSL status renders this

case different from all others where such diminished privacy expectations were

lacking.

On balance, we conclude that H.R.’s diminished privacy interests as a

Tier III Megan’s Law sex offender on PSL are outweighed by the State’s

interest in deterring and rehabilitating him as a high-risk sex offender. We

consider only the case before us, which is exclusively an as-applied challenge

to SOMA’s imposition of GPS monitoring on H.R. immediately following his

release from incarceration and being designated as Tier III. This matter does

11

Here, although he is not before us, we note for comparison’s sake only the

different outcome reached by the trial court and Appellate Division with

respect to I.R., who unlike H.R. was not on PSL.

29

not entail any challenge to the time within which such monitoring is reviewed.

In that regard, we note, as the Board points out, that a Megan’s Law offender

may file a motion with a judge for a change in tier designation based on a

change in circumstances.

VI.

The judgment of the Appellate Division is affirmed.

CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON,

FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE

LaVECCHIA’s opinion.

30