Petition for Writ of Certiorari — Benjamin Braam, et al., Petitioners v. Kevin A. Carr, Secretary, Wisconsin Department of Corrections
Supreme Court briefSep 19, 2022
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No. ____
IN THE
Supreme Court of the United States
BENJAMIN BRAAM, ALTON ANTRIM and
DANIEL OLSZEWSKI,
Petitioners,
v.
KEVIN CARR,
Secretary of the Wisconsin
Department of Corrections,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
ADELE D. NICHOLAS
Counsel of Record
LAW OFFICE OF ADELE D.
NICHOLAS
5707 W. Goodman Street
Chicago, Illinois 60630
(847) 361-3869
adele@civilrightschicago.com
MARK G. WEINBERG
LAW OFFICE OF MARK G.
WEINBERG
3612 N. Tripp Avenue
Chicago, Illinois 60641
(773) 283-3913
Counsel for Petitioners
i
QUESTION PRESENTED
Wisconsin law requires persons convicted of certain
sex offenses to wear GPS tracking devices for life even
after they have completed post-confinement supervision (e.g., probation, parole, or extended supervision).
Wis. Stats. §301.48(2). Pursuant to the statute, the
Wisconsin Department of Corrections affixes an unremovable GPS ankle monitor to individuals and
“monitors, identifies, and records” everywhere the
person who wears the device goes 24 hours a day,
every day for the rest of the person’s life.
§301.48(1)(dm).
The question presented is:
Whether the Wisconsin Department of Corrections’
program categorically requiring lifetime GPS tracking
of individuals who have been convicted of certain sex
offenses but who are no longer under the supervision
of the criminal justice system violates the Fourth
Amendment under either a “Totality of the Circumstances” or “Special Needs” Analysis.
ii
PARTIES TO THE PROCEEDING
Petitioners are Benjamin Braam, Alton Antrim and
Daniel Olszewski.
Respondent is Kevin Carr, Secretary of the Wisconsin Department of Corrections.
iii
TABLE OF CONTENTS
Page
Question Presented................................................. i
Parties to the Proceeding ....................................... ii
Table of Authorities ................................................ vii
Petition for a Writ of Certiorari ............................. 1
Opinions Below ....................................................... 1
Statement of Jurisdiction ....................................... 1
Constitutional and Statutory Provisions
Involved ................................................................... 1
Statement of the Case ............................................ 2
I.
Wisconsin’s Program of Lifetime GPS
Monitoring ........................................................ 2
II. The Petitioners ................................................. 4
III. Proceedings Below ........................................... 6
Reasons for Granting the Petition ......................... 7
I.
Certiorari Is Warranted Because the
Seventh Circuit’s Decision Conflicts
with this Court’s Fourth Amendment
Jurisprudence ................................................... 8
A. Wisconsin’s Statutory Scheme Is
Unreasonable under a Totality of the
Circumstances Analysis ............................ 8
1. GPS Tracking of Persons Who
Have Completed their Criminal
Sentences Is a Severe Intrusion
into an Individual’s Privacy .................. 10
iv
2. The State’s Interest in Promoting
Public Safety Does Not Justify
Categorically Imposing GPS
Monitoring ............................................. 13
a. The Main Problem With the
Law Is Its Categorical Nature......... 13
b. There Are Four Other Reasons
to Call Into Question the State
Interests Served by the GPS
Monitoring Law................................ 16
3. Persons Not Under the Supervision
of the Criminal Justice System Have
a Reasonable Expectation of Privacy ... 18
B. The Seventh Circuit’s Decision Conflicts
with this Court’s Special Needs
Jurisprudence ............................................. 20
1. The Seventh Circuit Misidentified
the Proper Test ...................................... 21
2. Under Proper Application of this
Court’s Special Needs Cases,
Wisconsin’s Scheme Fails ..................... 24
3. The Doctrine Is in Disarray .................. 24
II. Certiorari Should Be Granted Because
There Is a Split in Authority on Important
and Recurring Questions of Law ..................... 26
v
A. The Seventh Circuit Is in Conflict with
Four State Supreme Courts with Regard
to Whether Suspicionless GPS Tracking
of Persons with Sex Offense Convictions
Violates the Fourth Amendment ............... 27
B. The Lower Courts Disagree About
What Legal Standards Govern the
Analysis of GPS Monitoring Schemes’
Constitutionality ......................................... 28
III. This Court Should Give Substance to Its
Admonition in Packingham ............................. 31
Conclusion ............................................................... 33
vi
APPENDIX
Opinion of the United States Court of
Appeals for the Seventh Circuit
(June 21, 2022) .................................................. 1a
Order of the United States District
Court for the Eastern District of
Wisconsin on Plaintiffs’ Motion for
a Preliminary Injunction
(December 17, 2019) .......................................... 16a
Transcript of Motion Hearing Before
the Hon. Pamela Pepper, United
States Chief District Judge,
Eastern District of Wisconsin,
on Plaintiff’s Motion for a Preliminary
Injunction (December 17, 2019) ........................ 18a
Wis. Stats. §301.48
Global positioning system tracking
and residency requirement for certain
sex offenders ...................................................... 55a
vii
TABLE OF AUTHORITIES
Cases
Belleau v. Wall,
811 F.3d 929 (7th Cir. 2016) ............................. 6, 7
Carpenter v. United States,
___ U.S.___, 138 S. Ct. 2206 (2018) .............. 10, 11
Chandler v. Miller,
520 U.S. 305 (1997) ............................................ 24
Commonwealth v. Feliz,
481 Mass. 689 (Mass. 2019) .......................... 27, 29
Doe No. 1 v. Coupe,
143 A.3d 1266 (Del. Ch. 2016),
aff'd, 158 A.3d 449 (Del. 2017) .......................... 30
Ferguson v. City of Charleston,
532 U.S. 67 (2001) .............................................. 22
Foucha v. Louisiana,
504 U.S. 71 (1992) .............................................. 17
Grady v. North Carolina,
575 U.S. 306 (2015) .................................... passim
H.R. v. New Jersey State Parole Bd.,
242 N.J. 271 (N.J. 2020) ................................ 17, 29
Hudson v. Palmer,
468 U.S. 517 (1984) ............................................ 20
Indianapolis v. Edmond,
531 U.S. 32 (2000) ..................................... passim
viii
Kansas v. Hendricks,
521 U.S. 326 (1997) ............................................ 12
Kaufman v. Walker,
2018 WI App 37,
382 Wis. 2d 774 (Wis. App. 2018) ...................... 25
Maryland v. King,
569 U.S. 435 (2013) ................................ 11, 19, 23
Michigan v. Tyler,
436 U.S. 499 (1978) ............................................ 14
Morrissey v. Brewer,
408 U.S. 471 (1972) ............................................ 20
New Jersey v. T.L.O.,
469 U.S. 325 (1985) ............................................ 21
Packingham v. North Carolina,
___ U.S. ___, 137 S.Ct. 1730 (2017) .......... 7, 12, 32
Park v. State,
305 Ga. 348 (Ga. 2019) .............................26, 29, 31
Richardson v. Ramirez,
418 U.S. 24 (1974) .............................................. 16
Riley v. California,
573 U.S. 373 (2014) ............................................ 11
Samson v. California,
547 U.S. 843 (2006) .................................... passim
ix
Skinner v. Ry. Labor Exec. Ass’n,
489 U.S. 602 (1989) ............................................ 21
Smith v. Doe,
538 U.S. 84 (2003) .................................. 11, 12, 19
Smith v. Maryland,
442 U.S. 735 (1979) ............................................ 19
Stanley v. Illinois,
405 U.S. 645 (1972) ............................................ 12
State v. Grady,
372 N.C. 509 (N.C. 2019) ........................... passim
State v. Hilton,
378 N.C. 692 (N.C. 2021) ................................... 29
State v. Ross,
423 S.C. 504 (S.C. 2018) ................................ 27, 29
State v. Smith,
2021 MT 148 (Mont. 2021) ............................ 17, 30
United States v. Jones,
565 U.S. 400 (2012) ............................................ 10
Vernonia School Dist. 47J v. Acton,
515 U.S. 646 (1995) ....................................... 14, 28
Statutes
28 U.S.C. §1254 ....................................................... 1
Wis. Stat. §301.48 ..........................................passim
x
Other Authority
Edwin J. Butterfoss,
A Suspicionless Search And Seizure
Quagmire: The Supreme Court Revives
The Pretext Doctrine and Creates Another
Fine Fourth Amendment Mess,
40 Creighton L. Rev. 419 (2007) ...................... 25
Catherine L. Carpenter & Amy E. Beverlin,
The Evolution of Unconstitutionality of
Sex Offender Laws,
63 Hastings L.J. 1071 (2012) .......................... 32
Catherine L Carpenter,
All Except For: Animus that Drives
Exclusions in Criminal Justice Reform,
50 SW. L. REV. 1 (2020) ................................. 32
Joshua Dressler,
Understanding Criminal Procedure,
(3rd Ed. 2002) .................................................. 25
Antoine McNamara,
The “Special Needs” of Prison, Probation,
and Parole,
82 N.Y.U. L.R. 209 (2007) ................................ 25
Stephen J. Schulhofer,
On The Fourth Amendment Rights
of the Law-Abiding Public,
1989 Sup. Ct. Rev. 87 (1989) ............................ .25
OPINIONS BELOW
The opinion of the Seventh Circuit Court of Appeals
is reported at 37 F.4th 1269 and reproduced in Petitioners’ Appendix at 1a–15a. The opinion of the U.S.
District Court for the Eastern District of Wisconsin is
not reported and is reproduced in Petitioners’ Appendix at 18a–54a.
STATEMENT OF JURISDICTION
The judgment of the Seventh Circuit Court of Appeals from which review is sought was entered on
June 21, 2022 (App. 1a–15a). This Petition has been
timely filed in accordance with U.S. Supreme Court
Rule 13.3. The jurisdiction of this Court is invoked under 28 U.S.C. §1254(1).
RELEVANT CONSTITUTIONAL AND
STATUTORY PROVISIONS
The Fourth Amendment to the United States Constitution provides in relevant part:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated …
The Wisconsin statute challenged in this case,
§301.48, is reproduced in full at App. 55a.
2
STATEMENT OF THE CASE
This case involves a law that is alien to our legal
tradition. The law compels all persons with past convictions for certain sex offenses to wear a GPS monitor
for the rest of their lives after they are no longer under
any form of criminal justice supervision.
The law violates the Fourth Amendment because it
authorizes intrusive searches without any individualized consideration of risk and cannot be upheld under
the totality of circumstances test or the special needs
test.
The Seventh Circuit’s decision conflicts with the decisions of four state supreme courts that have struck
down similar GPS monitoring schemes and rests on
the mistaken premise that individuals who have been
convicted of a sex offense at any time in the past have
diminished privacy expectations that subverts any
right to be free from having an unremovable GPS
monitor permanently affixed to their leg.
I. Wisconsin’s Program of Lifetime GPS
Monitoring
In 2005, the Wisconsin Legislature enacted Wis.
Stat. §301.48, which requires the Wisconsin Department of Corrections to maintain lifetime GPS monitoring of individuals who are not subject to any criminal justice supervision (e.g., probation, parole, or extended supervision) but who have been convicted of
3
certain sexual offenses. Wis. Stat. §301.48(2)(a)1–8.1
Individuals with qualifying convictions must wear a
device that tracks their physical location at all times.
Wis. Stat. §301.48(3). The Department’s system “monitors, identifies, and records” everywhere a person
who wears the device goes 24 hours a day, every day
for the rest of the person’s life. §301.48(1)(dm). The
State charges a person who is subject to monitoring
up to $240 per month for being on GPS monitoring.
§301.48(4).
Petitioners are subject to lifetime monitoring under
§301.48(2)(a)(7), pursuant to which any individual
who has been convicted of a sex offense “on 2 or more
separate occasions” is deemed to be a “Special Bulletin
Notification” offender (“SBN”) and subject to lifetime
monitoring. Until September 2018, the Department
interpreted the phrase “2 or more separate occasions”
to mean two or more separate cases. In September
2018, the Department changed its interpretation of
the statute to conclude that convictions on “two or
more separate occasions” refers to multiple convictions regardless of whether they were part of the same
proceeding, occurred on the same date, or were
In particular, Wisconsin imposes lifetime GPS tracking on
persons who: (1) have been convicted of a “level 1” or “level two”
sex offense against a minor victim (§301.48(2)(a)(1)–(3)); (2) have
been discharged from conditional release after being found not
guilty by reason of mental disease of a “serious child sex offense”
(§301.48(2)(a)(5)); (3) have been convicted of a sex offense on “two
or more separate occasions” (§301.48(2)(a)(7)); (4) have been discharged from civil commitment (§301.48(2)(b)(1) and (3)); or (5)
are not otherwise subject to lifetime monitoring who has been
convicted of a “serious child sex offense” is “appropriate” based
on a “standard risk assessment instrument.” (§301.48(2g)). See
App. 57a–58a.
1
4
included in the same criminal complaint. App. 27a–
28a. Since September 2018, the Department has applied GPS monitoring to everyone convicted of more
than one count of any sex offense, even where the two
counts arose from the same conduct and were charged
in the same criminal case.
The Department of Corrections does not take into
account an individualized assessment of an individuals’ dangerousness to the public or likelihood of re-offense before imposing GPS monitoring. By default, the
GPS tracking requirement lasts for life, but individuals subject to monitoring may petition a state trial
court to terminate tracking after 20 years. Wis. Stat.
§301.48(2)(a), §301.48(6).
II. The Petitioners
Petitioners Benjamin Braam, Alton Antrim and
Daniel Olszewski are all individuals who have completed their prison sentences and periods of post-incarceration supervision but are subject to mandatory
lifetime GPS monitoring because they have been convicted of more than one count of a sex offense.2
Petitioner Daniel Olszewski: Petitioner Daniel
Olszewski is a 41-year-old resident of Salem, Wisconsin. R. 3-3, Decl. of Olszewski, at ¶1. He pled guilty in
2013 to two counts of possession of child pornography
(Wis. Stats. §948.12) and was sentenced to three years
in prison and two years of supervised release. Id. at
¶2. Olszewski’s supervised release ended on January
Petitioners refer to the entries on the district court’s electronic record as R.__.
2
5
16, 2020. Id. at ¶3-4. Nevertheless, he is required to
wear a GPS monitor for the rest of his life because he
was convicted of two counts of possession of child pornography. Id.
Petitioner Benjamin Braam: Petitioner Benjamin Braam is a 44-year-old resident of Racine, Wisconsin. R. 1-1, Decl. of Braam, at ¶1. He was convicted
of two counts of second-degree sexual assault of a minor in December 2000. Id. at ¶2. Both counts resulted
from a single criminal complaint and involved sexual
contact with the same 14-year-old victim, the brother
of Braam’s friend, when Braam was 21 years old. Id.
Braam was sentenced to ten years of incarceration
and seven years of probation. Id. at ¶3. Braam discharged his sentence in March 2018 and is not under
any kind of criminal justice supervision. Id. Braam is
subject to lifetime GPS monitoring because the Department interprets “2 or more occasions” to apply to
persons who were convicted of two counts in a single
case.
Petitioner Alton Antrim: Petitioner Alton Antrim is a 66-year-old resident of Kenosha, Wisconsin.
R. 3-2, Decl. of Antrim, at ¶1. Antrim was convicted of
one count of first-degree sexual assault in 1990 and of
one count of first degree sexual assault in 1999. Id. at
¶2. Antrim successfully completed his period of community supervision in October 2018 and is not under
any kind of criminal justice supervision. Id. at ¶4. Antrim is subject to GPS monitoring pursuant to Wis.
Stats. §301.48(2)(a)(7) because he has been convicted
of more than one sex offense.
6
III. Proceedings Below
Petitioners filed a complaint and motion for a preliminary injunction in the U.S. District Court for the
Eastern District of Wisconsin on March 18, 2019. They
alleged that Wisconsin’s statutory scheme of categorically subjecting individuals who have been convicted
of certain sex offenses to lifetime GPS monitoring after they are no longer under the supervision of the
criminal justice system violates the Fourth Amendment. R. 1.
On December 17, 2019, the district court denied Petitioners’ motion for a preliminary injunction, finding
that they had not demonstrated a likelihood of success
on the merits of their claim that the GPS monitoring
scheme violates the Fourth Amendment under Seventh Circuit precedent. App. 16a–54a.
Petitioners timely appealed. The Seventh Circuit
affirmed the district court’s decision in its entirety on
June 21, 2022. App. 1a–15a.
In its opinion, the Seventh Circuit relied on its previous decision in Belleau v. Wall, 811 F.3d 929 (7th
Cir. 2016), as controlling precedent. In Belleau, the
Seventh Circuit upheld a subsection of §301.48 that
imposes lifetime monitoring on sex offenders who
have been released from post-prison civil commitment. §301.48(2)(b)(2). App. 2a. Applying the Fourth
Amendment’s reasonableness standard, the Seventh
Circuit held that the government’s interest in “protecting the public from recidivism by sex offenders”
outweighs the monitored individuals’ “diminished
7
privacy expectations.” Id. at 8a–9a (citing Belleau, 811
F.3d at 935).
Extending that precedent to the present case, the
Seventh Circuit concluded that the statute satisfied
the Fourth Amendment’s “totality of the circumstances” test because anyone who has been convicted
of a sex offense has “diminished privacy interests” and
Wisconsin has a “strong governmental interest” in
monitoring persons with sex offense convictions. App.
10a–11a.
REASONS FOR GRANTING THE PETITION
This Court’s review of the question presented is
warranted for several reasons: First, certiorari should
be granted because the decision below conflicts with
this Court’s Fourth Amendment jurisprudence under
either a totality of the circumstances or special needs
analysis.
Second, certiorari should be granted because the
Seventh Circuit decision deepened a split among the
lower courts regarding whether categorical GPS monitoring schemes violate the Fourth Amendment and
what the applicable test is to determine whether such
schemes are constitutional, e.g., totality of the circumstances or special needs.
And third, certiorari should be granted to give
meaning to this Court’s warning in Packingham v.
North Carolina, ___ U.S. ___, 137 S.Ct. 1730 (2017)
that states are not free to disregard the constitutional
rights of individuals with sex offense convictions
8
beyond the completion of their criminal sentences. Id.
at 1737.
I. Certiorari Is Warranted Because the Seventh
Circuit’s Decision Conflicts with this Court’s
Fourth Amendment Jurisprudence
The Court should grant certiorari under Supreme
Court Rule 10(c) because the Seventh Circuit’s analysis of the constitutionality of Wisconsin’s scheme of
GPS monitoring departs from this Court’s Fourth
Amendment jurisprudence.
There are two tests used to evaluate the constitutionality of a search under the Fourth Amendment—
whether the search is reasonable based on the “totality of the circumstances” (Grady v. North Carolina,
575 U.S. 306, 310 (2015)); and whether the search is
justified under the “special needs” test which permits
certain suspicionless searches where the “primary
purpose” of the search is distinguishable from the general interest in crime control. Indianapolis v. Edmond, 531 U.S. 32, 44 (2000). Under either approach,
Wisconsin’s lifetime GPS monitoring program is unconstitutional.
A. Wisconsin’s Statutory Scheme Is Unreasonable under a Totality of the Circumstances Analysis
In Grady, 575 U.S. 306, this Court held that the
imposition of GPS monitoring constitutes a warrantless search under the Fourth Amendment, requiring
an inquiry into the reasonableness of the search under
the totality of the circumstances. Id. at 310 (“The
9
reasonableness of a search depends on the totality of
the circumstances, including the nature and purpose
of the search and the extent to which the search intrudes upon reasonable privacy expectations.”). Application of the balancing test under a totality-of-the-circumstances analysis cannot support Wisconsin’s statutory scheme given the intrusiveness of the search
and the lack of a valid state interest served by a per se
rule that all persons convicted of qualifying sex offenses must be subjected to GPS monitoring for life.
First, GPS monitoring imposes a severe intrusion
on a person’s privacy interest even if imposed only for
a short period of time, and the lifetime duration of
Wisconsin’s statutory scheme greatly increases the
magnitude of the intrusion here. This Court has emphasized that the greater the intrusion into a person’s
privacy, the more individualized suspicion is called for
under the Fourth Amendment. In addition, by analogy
the magnitude of the intrusion is relevant because in
other cases involving restrictions imposed on individuals who have been convicted of sex offenses after they
have completed their criminal supervision (i.e., registration requirements), this Court has emphasized
that the magnitude of the restraint matters in determining its constitutional validity.
Second, while no one can dispute the validity of the
state interest in protecting public safety, Wisconsin
does not have an interest in subjecting individuals
who do not present any risk to public safety to lifetime
GPS monitoring. But by categorically imposing
searches on all individuals convicted of certain sex offenses, Wisconsin’s scheme does just that. Wisconsin
could protect its interest by undertaking
10
individualized determinations of risk before placing
individuals on lifetime GPS monitoring.
Third, individuals with past convictions who have
completed their sentences and are no longer under
any form of supervision have a reasonable expectation
of privacy that they will not be subjected to GPS monitoring for the rest of their lives. In holding otherwise,
the Seventh Circuit improperly analogized this case to
cases involving individuals under the supervision of
the criminal justice system (e.g., they are in prison, on
parole or under arrest for a felony) where this Court
has found such individuals have diminished expectations of privacy such that suspicionless searches may
be justified.
1. GPS Tracking of Persons Who Have Completed their Criminal Sentences Is a Severe Intrusion into an Individual’s Privacy
The magnitude of the intrusion here is severe. Forcing an individual to wear a monitoring device on his
person that cannot be removed and collecting data
about the individual’s whereabouts 24 hours a day,
seven days a week, for decades is a weighty intrusion
on the privacy of anyone. See, e.g., Carpenter v. United
States, 138 S. Ct. 2206, 2215 (2018) (electronic surveillance of an individual’s “physical location and movements” implicates privacy interests under the Fourth
Amendment).
As Justice Sotomayor noted in her concurrence in
United States v. Jones, 565 U.S. 400 (2012), “GPS
monitoring generates a precise, comprehensive record
11
of a person’s public movements that reflects a wealth
of detail about her familial, political, professional, religious, and sexual associations.” Id. at 415; see also
Riley v. California, 573 U.S. 373, 396 (2014) (noting
that GPS tracking allows the government to “reconstruct someone’s specific movements down to the minute.”); Carpenter, 138 S. Ct. at 2218 (comparing the
effectiveness of surveillance offered by cell phone
tracking techniques with GPS tracking and explaining, “[W]hen the Government tracks the location of a
cell phone it achieves near perfect surveillance, as if it
had attached an ankle monitor to the phone’s user.”)
Given the magnitude of the intrusion, this Court’s
precedent suggests that imposing lifetime GPS monitoring, absent individualized consideration, is constitutionally suspect. See Maryland v. King, 569 U.S.
435, 435-36 (2013) (allowing the categorical performance of DNA swabs on all persons arrested for felonies, explaining, “[T]he fact that the intrusion is negligible is of central relevance to determining whether
the search is reasonable.”).
Moreover, this Court’s precedent indicates that
where restraints are imposed on persons convicted of
sex offenses who are no longer under any criminal supervision, the magnitude of the intrusion is an important factor in determining the validity of the restraint. In Smith v. Doe, 538 U.S. 84 (2003), this Court
considered an ex post facto challenge to an Alaska law
that required people convicted of sex offenses to register with the state annually and made registrants’
names, addresses and other identifying information
public. Id. at 90. The Court upheld the law, finding
12
that the registration requirement was not punitive.
Id.
In so holding, the Court explained that whether the
absence of individual review makes a law excessive in
relation to its purported non-punitive purpose depends in part on “[t]he magnitude of the restraint.” Id.
104. In Smith, this Court held that Alaska’s conviction-based registration scheme was valid because it
imposed only “minor and indirect” consequences (id.
at 100), given that Alaska’s law did not require in-person reporting; registrants were not subject to supervision; and there was “no evidence that the Act has led
to substantial occupational or housing disadvantages
for former sex offenders that would not have otherwise
occurred.” Id. at 100–01.
But while concluding that the “minor and indirect”
consequences resulting from Alaska’s registry scheme
allowed “the State [to] dispense with individual predictions of future dangerousness,” (id. at 104), the
Court distinguished the case from Kansas v. Hendricks, 521 U.S. 326, 368 (1997), in which the Court
case upheld Kansas’ civil commitment scheme by explaining that “The magnitude of the restraint [in Hendricks] made individual assessment appropriate.”
Smith, 538 U.S. at 104. See also Stanley v. Illinois, 405
U.S. 645 (1972) (parental rights of unwed fathers
could not be terminated on a categorical basis without
an individualized determination concerning parental
fitness); see also Packingham, 137 S. Ct. 1730 (2017)
(people convicted of sex offenses could not categorically be denied First Amendment rights).
13
Given the severe intrusion of wearing a GPS monitor for life, this case is much more akin to Hendricks
than Smith. Accordingly, Wisconsin cannot simply
presume dangerousness of all individuals who have
been convicted of certain sex offenses for the remainder of their lives. To comport with the requirements of
the Fourth Amendment, the state must undertake individualized consideration of an individual’s risk of recidivism.
2. The State’s Interest in Promoting Public
Safety Does Not Justify Categorically Imposing GPS Monitoring
The reasonableness of a search also depends on the
“purpose of the search.” Grady at 310. Here, the purpose of imposing lifetime GPS monitoring is to promote public safety by “protecting the public from recidivism by sex offenders.” App. 8a. But the categorical nature of the law makes it overly broad and therefore unreasonable. It sweeps in individuals who do not
present any risk to public safety. In addition, Wisconsin’s scheme is at odds with the state interest in promoting public safety for four additional reasons.
a. The Main Problem With the Law Is Its
Categorical Nature
The norm under the Fourth Amendment is that individualized suspicion is required for a search to be
reasonable. See City of Indianapolis v. Edmond, 531
U.S. 32, 37 (2000) (“A search or seizure is ordinarily
unreasonable in the absence of individualized suspicion of wrongdoing.”) (citation omitted). To be sure,
14
this Court has identified four exceptions to the requirement of individualized suspicion:
(1) searches designed to serve “special needs beyond
the normal need for law enforcement.” See, e.g.,
Vernonia School Dist. 47J v. Acton, 515 U.S. 646
(1995) (random drug testing of student athletes);
(2) searches that take place at certain sensitive locations such as international borders, airports, and
government buildings “where the need for such
measures to ensure public safety can be particularly acute.” Edmond, 531 U.S. 32, 47-48;
(3) minimally intrusive searches conducted for administrative purposes. See e.g., Michigan v. Tyler, 436
U.S. 499, 507-509 (1978) (inspection of fire-damaged premises to determine cause of the fire); and
(4) searches wherein an individual has a diminished
expectation of privacy due to their status within
the criminal justice system. See e.g., Samson v.
California, 547 U.S. 843, 846 (2006) (upholding
suspicionless searches of parolees because “parolees have severely diminished privacy expectations
by virtue of their status alone”).
Crucially, none these exceptions apply here, and
this Court has never carved out an exception to the
requirement of individualized suspicion based solely
on a person’s past conviction.
The categorical nature of the law makes it unnecessarily broad and therefore unreasonable, which is to
say that it is the means by which Wisconsin has
15
chosen to protect public safety that makes Wisconsin’s
scheme unreasonable. No one disputes that Wisconsin
has a legitimate state interest in promoting public
safety, but Wisconsin does not have any interest in
subjecting individuals who do not present any risk to
public safety to lifetime GPS monitoring.
To be sure, if it were impossible or unduly burdensome for Wisconsin to undertake individualized determinations, then the law’s per se rule would be permissible, but we know that individualized determinations
of whether GPS monitoring is reasonable are possible
here because Wisconsin routinely performs them.3
Moreover, individuals who have been convicted of
sex offenses are not a homogenous group. They comprise a diverse group of individuals, each different
In addition to the qualifying offenses that automatically subject a person to GPS tracking for life (see §301.48(2)(a)(1)–(3),
Wis. Stats §301.48 calls for Wisconsin to individually assess
whether others should be required to wear a GPS for life. See
Wis. Stats §301.48(2g) (“If a person who committed a serious
child sex offense … is not subject to lifetime tracking under sub.
(2), the department shall assess the person’s risk using a standard risk assessment instrument to determine if global positioning system tracking is appropriate for the person.”). Additionally,
pursuant to Wis. Stats. §301.48(6), an individual who has been
on GPS monitoring for 20 years without being convicted of any
other offense can file a petition to terminate GPS tracking in the
circuit court. §301.48(6)(b). Following the filing of a petition, the
court orders an examination of the petitioner by an approved
physician or psychologist. §301.48(6)(d) and (e). The examining
physician renders an opinion concerning whether the petitioner
“is a danger to the public.” §301.48(6)(e) (“The physician or psychologist who conducts an examination under this paragraph
shall prepare a report of his or her examination that includes his
or her opinion of whether the person petitioning for termination
of lifetime tracking is a danger to the public.”).
3
16
from the next in terms of past criminal history, capacity for rehabilitation, and risk of recidivism. Thus,
contrary to the presumption made by this law, not everyone who has been convicted of a qualifying sex offense presents a danger to recidivate.
For example, the categories of individuals subject to
lifetime monitoring under Wisconsin’s law include
many individuals who have never touched a child and
do not present a serious risk to recidivate. See, e.g., R.
3-3, at ¶¶2, 8 (Petitioner Olszewski never touched a
child and pled guilty in 2013 to two counts of possession of child pornography (Wis. Stats. §948.12) and
was discharged from sex offender treatment with a
recommendation that no further treatment was
needed, due to “low” treatment needs in every category, including “deviant arousal,” “criminal thinking,”
and “denial/minimization.”).
b. There Are Four Other Reasons to Call
Into Question the State Interests
Served by the GPS Monitoring Law
The legitimacy of Wisconsin’s interest in categorically subjecting all persons with qualifying convictions to lifetime GPS monitoring is called into question for at least four other reasons:
First, Wisconsin’s program is fundamentally inconsistent with reintegrating felons back into society.
Forcing ex-offenders who do not present a risk of recidivism to wear a GPS monitor for life imposes a lifetime scarlet letter on the person, all but foreclosing
full reintegration back into society. Cf. Richardson v.
Ramirez, 418 U.S. 24, 55 (1974) (identifying a “more
17
modern view” of reintegration of ex-felons as one in
which “it is essential to the process of rehabilitating
the ex-felon that he be returned to his role in society
as a fully participating citizen when he has completed
the serving of his term.”)
Second, Wisconsin’s program not only violates the
Fourth Amendment; it is also unnecessary. It’s unnecessary because there are constitutionally permissible
ways to keep individuals on GPS for life without abandoning Fourth Amendment principles. As this Court
explained in Foucha v. Louisiana, 504 U.S. 71, 82
(1992), the interest in preventing recidivism may be
vindicated “by the ordinary criminal processes involving charge and conviction, the use of enhanced sentences for recidivists, and other permissible ways of
dealing with patterns of criminal conduct.”4
Third, although the law applies categorically to anyone who has been convicted of more than one count
of possession of child pornography, GPS monitoring
does not provide any utility to law enforcement
One possible solution is to do what both New Jersey and
Montana have done which is to impose supervision for life on individuals designated as high-risk offenders, with GPS monitoring being one of the conditions of lifetime supervision. See, e.g.,
H.R. v. New Jersey State Parole Bd., 242 N.J. 271, 293 (N.J. 2020)
(“H.R.'s [parole supervision for life] status is critical to our conclusion. His privacy interests must be regarded in this balancing
as extremely low; the GPS monitoring does not amount to as substantial of an invasion of privacy as it would on individuals not
subject to [parole supervision for life])”; see also State v. Smith,
2021 MT 148 (Mont. 2021) (upholding lifetime GPS monitoring
where lifetime supervision was a mandatory part of the sentence
for sexual abuse of a minor).
4
18
officials who seek to prevent or solve child pornography offenses. It’s hard to imagine how geographical
monitoring of an individual’s whereabouts would prevent someone from using a computer to view illegal
images; nor is it readily ascertainable how having geographical data about a person’s movements could result in the apprehension of a person who viewed or
downloaded illegal images.
Fourth, Wisconsin has produced no evidence
demonstrating that GPS monitoring of sex offenders
has any positive impact on reducing recidivism. The
state admitted at oral argument that, even though its
GPS monitoring program has been in place since 2006,
it has no data on the recidivism rate of people who are
subject to the monitoring. See Sept. 18, 2020, Seventh
Circuit Oral Argument, available at: http://media.ca7.uscourts.gov/sound/2020/cm.20-1059.201059_09_18_2020.mp3, at 25:00-25:12.
3. Persons Not Under the Supervision of the
Criminal Justice System Have a Reasonable Expectation of Privacy
The Seventh Circuit found that Wisconsin’s scheme
of suspicionless lifetime GPS monitoring was reasonable under a “totality of circumstances” standard in
significant part because it concluded that individuals
who have been convicted of sex offenses in the past
have “diminished privacy expectations” that “endure
after [they are] discharged from prison and post-confinement supervision.” App. 11a. The court found that
in light of the requirement that persons with such convictions must register as sex offenders their “privacy
19
interests are severely curtailed.” Id. (citation omitted). 5
The Seventh Circuit’s holding that all persons convicted of sex offenses have a diminished expectation of
privacy is a troubling and unwarranted extension of
this Court’s precedents. This Court has held that certain suspicionless searches may be reasonable due to
a person’s status within the criminal justice system,
as when a person is in custody or under post-confinement supervision. See Samson, 547 U.S. 852 (upholding the suspicionless search of a parolee’s person because a parolee, whose liberty in the community is
conditioned upon his compliance with conditions that
restrict his freedom, “did not have an expectation of
privacy that society would recognize as legitimate.”);
King, 569 U.S. at 463 (upholding DNA swabs of
The Seventh Circuit’s claim that placement on a state sex offender registry diminishes one’s privacy expectations so severely
that registrants have no legitimate objection to lifetime GPS
monitoring undermines the entire foundation of this Court’s decision in Smith v. Doe, 538 U.S. 84 (2003), in which this Court
held that sex offender registries are constitutional precisely because persons “subject to [registration] are free to move where
they wish and to live and work as other citizens, with no supervision.” Id. at 89. In addition, the Seventh Circuit’s reasoning
that placement on a sex offender registry deprives an individual
of any legitimate privacy expectations is circular—i.e., the government cannot say a person has a diminished expectation of privacy because the government has chosen to diminish the person’s
expectation of privacy. See Samson, 547 U.S. at 863 (Stevens, J.,
dissenting) (“the loss of a subjective expectation of privacy would
play ‘no meaningful role’ in analyzing the legitimacy of expectations, for example, ‘if the Government were suddenly to announce on nationwide television that all homes henceforth would
be subject to warrantless entry.’”) (citing Smith v. Maryland, 442
U.S. 735, 740-741, n 5 (1979)).
5
20
persons arrested for felonies because “[o]nce an individual has been arrested on probable cause for a dangerous offense that may require detention before
trial,” his or her “expectations of privacy and freedom
from police scrutiny are reduced.”); Hudson v. Palmer,
468 U.S. 517, 530 (1984) (“prisoners have no legitimate expectation of privacy” in prison cells.)
But this Court has never found that a person has
diminished privacy expectations based solely on a past
conviction. To the contrary, this Court has distinguished parolees from free citizens, holding that it is
constitutionally permissible to “restrict [parolees’] activities substantially beyond the ordinary restrictions
imposed by law on an individual citizen.” Morrissey v.
Brewer, 408 U.S. 471, 478 (1972). The Seventh Circuit
erred in finding that persons with past convictions
lack a reasonable expectation of privacy in not being
subjected to GPS monitoring for life, absent individualized consideration.
For all of these reasons, the Seventh Circuit’s decision is in conflict with this Court’s Fourth Amendment
precedents regarding the totality of the circumstances
analysis.
B. The Seventh Circuit’s Decision Conflicts
with this Court’s Special Needs Jurisprudence
Under this Court’s special needs doctrine, an analysis of whether a suspicionless search applied to a
group of persons on a categorial basis is constitutional
has two distinct parts. First, a determination has to
be made that the search serves a special need “beyond
21
the normal needs of law enforcement.” See New Jersey
v. T.L.O., 469 U.S. 325, 351 (1985). Second, if a special
need is shown to exist beyond the normal needs of law
enforcement, then a balancing analysis is undertaken
to “balance the governmental and privacy interests”
affected by the search. Skinner v. Ry. Labor Exec.
Ass’n, 489 U.S. 602, 619 (1989).
The Seventh Circuit disregarded this Court’s special needs precedents in two principal ways. First,
given that Wisconsin’s scheme involves a programmatic, suspicionless searches the analysis of its validity calls for application of the special needs test, but
the Seventh Circuit did not apply it here. Second, under a proper application of this Court’s special needs
cases, the Seventh Circuit should have found this law
unconstitutional.
1. The Seventh Circuit Misidentified the
Proper Test
The Seventh Circuit held that the relevant test for
whether Wisconsin’s lifetime GPS monitoring scheme
is constitutional is a “reasonableness” analysis pursuant to which “[w]arrantless monitoring of post-supervision sex offenders is reasonable under the Fourth
Amendment if the government’s interest in monitoring these offenders outweighs the privacy expectations of those who must comply with the program.”
App. 7a.
In exclusively focusing its attention on the reasonableness of the search and weighing the state interests against the monitored individuals’ privacy interests, the decision departed from this Court’s
22
precedents regarding programmatic, suspicionless
searches. Under this Court’s precedents, programmatic, suspicionless searches are ordinarily unconstitutional unless they serve special needs divorced from
the regular needs of law enforcement. In particular,
the special needs doctrine provides a narrow exception
to the “general rule that a search must be based on
individualized suspicion of wrongdoing” where a
search is “performed for reasons unrelated to law enforcement.” Edmond, 531 U.S. at 54; see also Ferguson
v. City of Charleston, 532 U.S. 67, 80 n.17 (2001) (describing the special needs doctrine as a “closely
guarded” exception to the requirement of individualized suspicion). For the special needs exception to apply, the purpose advanced to justify the search must
be “divorced from the State’s general interest in law
enforcement.” Ferguson, 532 U.S. at 79.
In other words, a court should only reach the balancing of governmental interests against individual
privacy interests if it first finds that the search serves
“special needs.” Programmatic, suspicionless searches
that do not serve “special needs” are unconstitutional,
notwithstanding what government interests might be
advanced by the searches. See, e.g., Edmond, 531 U.S.
at 47-48 (“When law enforcement authorities pursue
primarily general crime control purposes … stops can
only be justified by some quantum of individualized
suspicion. … Because the primary purpose of the Indianapolis checkpoint program is ultimately indistinguishable from the general interest in crime control,
the checkpoints violate the Fourth Amendment.”)
The Seventh Circuit disregarded this precedent,
holding that that Wisconsin’s GPS monitoring law,
23
which authorizes suspicionless, programmatic
searches, is constitutional without undertaking any
consideration of whether the search fell under the
“special needs” exception. See App. 7a – 12a (engaging
in a balancing analysis without first considering
whether the search serves “special needs” apart from
investigating and solving crimes).6
GPS monitoring is clearly connected to the State’s
interest in law enforcement, thus placing this case beyond the proper scope of the “special needs” exception.
In the district court, Wisconsin conceded that its GPS
monitoring program serves the purpose of “gathering
information to solve future crimes.” R.17 at 39. This is
a quintessential law enforcement function. See State
v. Grady, 372 N.C. 509, 527 (N.C. 2019) (“Grady III”)
The risks of expanding the exception to the requirement of
individualized suspicion beyond the narrow confines of special
needs searches has been identified by the dissenting justices in
Samson and King—namely, that a free-ranging “reasonableness”
inquiry that balances the benefits and costs of programmatic,
suspicionless searches will lead to courts’ countenancing serious
intrusions on the privacy of citizens in the absence of individualized suspicion. See Samson, 547 U.S. at 866 (Stevens, J., dissenting) (“The requirement of individualized suspicion, in all its iterations, is the shield the Framers selected to guard against the
evils of arbitrary action, caprice, and harassment. To say that
those evils may be averted without that shield is, I fear, to pay
lipservice to the end while withdrawing the means.”) (citations
and quotations omitted); King, 569 U.S. at 482 (Scalia, J., dissenting) (“Today’s judgment will, to be sure, have the beneficial
effect of solving more crimes; then again, so would the taking of
DNA samples from anyone who flies on an airplane …, applies
for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that
the proud men who wrote the charter of our liberties would have
been so eager to open their mouths for royal inspection.”) (citations and quotations omitted).
6
24
(“[T]he primary purpose of [GPS monitoring] is to
solve crimes. ... Because the State has not proffered
any concerns other than crime detection, the ‘special
needs’ doctrine is not applicable here.”) Because Wisconsin’s scheme of GPS monitoring serves general law
enforcement interests, it fails scrutiny under the special needs test.
2. Under Proper Application of this
Court’s Special Needs Cases, Wisconsin’s Scheme Fails
Even if the Court finds that Wisconsin’s GPS monitoring program serves a “special need” apart from
general law enforcement, the law still fails when subjected to the second prong of the special needs analysis—that is, whether the invasion of Petitioners’ privacy interests is reasonable when weighed against the
public interest served. See Chandler v. Miller, 520
U.S. 305, 314 (1997) (holding that even if a search
serves a special need, a court must still “undertake a
context-specific inquiry, examining closely the competing private and public interests advanced by the
parties.”). Wisconsin’s GPS monitoring scheme intrudes severely on Petitioners’ reasonable expectations of privacy in the absence of evidence that it will
meaningfully advance public safety goals. See discussion in §I(A), supra.
3. The Doctrine Is in Disarray
Implicit in whether the special needs doctrine applies to this case is the question of what constitutes a
search “unrelated to law enforcement.” Edmond, 531
U.S. at 54. This Court’s pronouncements on this point
25
are far from clear and lower courts have diverged
widely on what they deem to be a “law enforcement
purpose.” Compare Grady III, 372 N.C. at 526 (finding
“solv[ing] crimes” is a law enforcement purpose) with
Kaufman v. Walker, 2018 WI App 37, ¶39, 382 Wis. 2d
774, 792 (Wis. App. 2018) (finding that “gathering information needed to solve [crimes]” is not a law enforcement purpose). Scholars have long identified a
lack of clarity about what constitutes a “law enforcement purpose” as a source of confusion and inconsistency in the lower courts.7
This Court should grant this petition to clarify that
where, as here, a law subjects a group of citizens to
suspicionless searches on a categorial basis, courts
should apply the special needs analysis and to clarify
what constitutes a “law enforcement purpose” under
the special needs test.
See, e.g., Joshua Dressler, Understanding Criminal Procedure, 323 (3rd Ed. 2002) (“the line between ... a criminal investigation and ... searches and seizures designed primarily to serve
noncriminal law enforcement goals, is thin and, quite arguably,
arbitrary.”); Edwin J. Butterfoss, A Suspicionless Search And
Seizure Quagmire: The Supreme Court Revives The Pretext Doctrine and Creates Another Fine Fourth Amendment Mess, 40
Creighton L. Rev. 419, 421 (2007) (“[Edmond] only adds to the
jurisprudential mess in this area, creating nothing less than a
suspicionless search quagmire.”); Antoine McNamara, The “Special Needs” of Prison, Probation, and Parole, 82 N.Y.U. L.R.
209, 245 n.235 (2007) (“[T]he doctrinal distinction between law
enforcement and non-law enforcement needs is somewhat tenuous.”); Stephen J. Schulhofer, On The Fourth Amendment
Rights of the Law-Abiding Public, 1989 Sup. Ct. Rev. 87, 88-89
(1989) (describing “doctrinal incoherence” related to what constitutes a non-law-enforcement objective).
7
26
II. Certiorari Should Be Granted Because There
Is a Split in Authority on Important and Recurring Questions of Law
The Court should also grant certiorari under Supreme Court Rule 10(a) because there is a split of authority between the Seventh Circuit and several state
courts of last resort on important and recurring questions of federal law—namely, whether the categorical
imposition of GPS monitoring on persons with past
sex offense convictions violates the Fourth Amendment and what standards govern the analysis of
whether such schemes are constitutional.
A. The Seventh Circuit Is in Conflict with
Four State Supreme Courts with Regard
to Whether Suspicionless GPS Tracking of
Persons with Sex Offense Convictions Violates the Fourth Amendment
In conflict with the Seventh Circuit, the Supreme
Courts of North Carolina, South Carolina, Georgia,
New Jersey and Massachusetts have concluded that
lifetime GPS monitoring schemes violate the Fourth
Amendment:
§
State v. Grady, 372 N.C. 509 (N.C. 2019)
(“Grady III”). The North Carolina Supreme
Court found that lifetime GPS tracking of individuals who are no longer under criminal justice supervision “based solely on their status as
a ‘recidivist,’” violates the Fourth Amendment;
§
Park v. State, 305 Ga. 348 (Ga. 2019): The Georgia Supreme Court found that a state law
27
authorizing lifetime satellite-based monitoring
of individuals who have been convicted of sex
offenses violates the Fourth Amendment on its
face because such individuals do not have a diminished expectation of privacy after completing their criminal sentences;
§
State v. Ross, 423 S.C. 504 (S.C. 2018): The
South Carolina Supreme Court found that automatic imposition of lifetime electronic monitoring on individuals who had been convicted of
qualifying sex offenses violated the Fourth
Amendment. Electronic monitoring could only
be ordered after a judicial determination that
monitoring was reasonable based on the totality of the circumstances of an individual case;
and
§
Commonwealth v. Feliz, 481 Mass. 689 (Mass.
2019): Massachusetts’ Supreme Court found
that automatic imposition of GPS monitoring
violated the state constitution’s search and seizure provision because “GPS monitoring will
not necessarily constitute a reasonable search
for all individuals convicted of a qualifying sex
offense.”
The decisions above are impossible to square with
the Seventh Circuit’s decision in Braam, in which the
court concluded that that GPS monitoring for life is
“reasonable” under the Fourth Amendment absent
any individualized consideration.
28
B. The Lower Courts Disagree About What
Legal Standards Govern the Analysis of
GPS Monitoring Schemes’ Constitutionality
There is good reason for the split in authority. The
Court’s decision in Grady left substantial ambiguity
about the Fourth Amendment standards applicable to
suspicionless, programmatic GPS monitoring.
In Grady, this Court wrote that an analysis of
whether a GPS monitoring scheme is constitutional
“depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations.” Grady, 575 U.S. at 310 (citing
Samson, 547 U.S. 843 and Vernonia, 515 U.S. 646).
One obvious source of the lower courts’ confusion is
that the Court’s explicit language in Grady refers to
the “totality of circumstances,” thus implying that totality of the circumstances is the applicable test;
whereas the citations are to a special needs case
(Vernonia) and to a case in which the Court recognized an exception to the requirement of individualized suspicion based on an individual’s diminished expectation of privacy while on parole (Samson). Grady
sent mixed messages about the proper test to use.
As a result, the lower courts have given a variety of
different interpretations to this language when analyzing the constitutionality of GPS monitoring laws.
Applying a hodgepodge of inconsistent standards, the
lower courts have reached a variety of different
29
conclusions about whether warrantless, suspicionless
GPS monitoring violates the Fourth Amendment.
Some courts have read Grady as requiring them to
first determine whether the GPS law serves a “special
need” or is justified by another recognized exception
to the general requirement of individualized suspicion
before weighing the private and public interests affected by the law. Park, 305 Ga. at 353 (striking down
statute authorizing lifetime GPS monitoring of individuals classified as “sexually dangerous predators”
under a “special needs” analysis); H.R. v. N.J. State
Parole Bd., 242 N.J. 271, 286 (N.J. 2020) (applying a
special needs analysis to uphold GPS monitoring of an
individual on parole supervision for life after having
been convicted of a sex offense).
Others, including the Seventh Circuit, have interpreted Grady as requiring only a balancing of the government purposes served by the GPS monitoring
against the burdens it places on the monitored individuals. State v. Hilton, 378 N.C. 692 (N.C. 2021) (upholding North Carolina’s GPS monitoring statute as
applied to persons convicted of “aggravated” sex offenses); Ross, 423 S.C. at 514 (applying a balancing
analysis to strike down a statute that required lifetime GPS monitoring of all persons convicted of failure
to register as a sex offender); Feliz, 481 Mass. 689 (applying a balancing analysis to strike down GPS monitoring as a condition of probation for individuals convicted of most sex offenses unless a judge conducts an
individualized balancing of the state’s “need to impose
30
GPS monitoring” and “the privacy invasion occasioned
by such monitoring.”)8
Others have applied a special needs analysis but
held that a suspicionless search that does not serve a
“special need” may still be permissible based on a balancing of an individual’s privacy interests with the
government’s interests. Grady III, 372 N.C. at 539.
These inconsistent decisions reflect the ambiguity
of the Court’s Grady decision regarding the standards
applicable to programmatic, suspicionless GPS monitoring programs, whether such programs are properly
seen as serving “special needs” and whether GPS monitoring programs that do not serve special needs may
nonetheless be upheld if a court determines that they
serve sufficiently important government interests.
The lower courts are in urgent need of guidance because these questions are certain to recur as 13 states
have passed laws calling for lifetime monitoring of individuals who have been convicted of sex offenses. 9
Two other state Supreme Courts have upheld GPS monitoring of individuals on parole or supervision. Doe No. 1 v. Coupe,
143 A.3d 1266, 1274-1279 (Del. Ch. 2016), aff'd, 158 A.3d 449
(Del. 2017) (applying a “special needs” framework to determine
that mandatory GPS monitoring of “Tier III,” highest risk, sex
offenders was reasonable); State v. Smith, 2021 MT 148 (Mont.
2021) (upholding lifetime GPS monitoring where lifetime supervision was a mandatory part of the sentence for sexual abuse of
a minor).
8
These states are California, Florida, Kansas, Louisiana,
Maryland, Michigan, Missouri, North Carolina, Oregon, Rhode
Island, South Carolina, Wisconsin, and Georgia. Cal. Penal Code
§3004(b) (West 2016); Fla. Stat. §948.012(4) (2016); Kan. Stat.
Ann. §22-3717(u) (2016); La. Rev. Stat. Ann. §15:560.3(A)(3)
(2016); Md. Code Ann., Crim. Proc. §11-723(d)(3)(i) (LexisNexis
9
31
The Court should grant the petition to resolve these
important issues to provide necessary guidance to the
lower courts.
III. This Court Should Give Substance to Its
Admonition in Packingham
Finally, certiorari should be granted to give substance to this Court’s warning in Packingham v. North
Carolina, 137 S.Ct. 1730 (2017), that states may not
freely curtail the constitutional rights of persons who
have been convicted of sex offenses after they have discharged their sentences.
In Packingham, this Court noted the “troubling
fact” that a law imposed on people who have been convicted of sex offenses “imposes severe restrictions on
persons who already have served their sentence and
are no longer subject to the supervision of the criminal
justice system” and cautioned that, while “a legislature may pass valid laws to protect children and other
sexual assault victims ... the assertion of a valid governmental interest ‘cannot, in every context, be insulated from all constitutional protections.” Id. at 1737
(citation omitted).10
2016); Mich. Comp. Laws §750.520n (2016); Mo. Rev. Stat.
§217.735(4) (2016); N.C.G.S. §§14-208.40A(c),–208.40B(c); Or.
Rev. Stat. §§137.700, 144.103 (2016); R.I. Gen. Laws §11-37-8.2.1
(2016); S.C. Code Ann. §23-3-540 (Supp. 2018); Wis. Stat. §301.48
(2016). The Georgia Supreme Court found Georgia’s lifetime
monitoring statute, Ga. Code Ann. § 42-1-14(e) (2016), unconstitutional on its face. Park, 305 Ga. 348, 360–61, 825 S.E.2d 147,
158. See Grady at *10 n.2 (summarizing statutes).
10
Over the past several of decades, it is well documented that
states have imposed ever-increasingly harsh restrictions on
32
The Seventh Circuit dismissed this Court’s warning by noting the obvious: “That case involved an application of the First Amendment’s overbreadth doctrine. This is a Fourth Amendment case.” App. at 13a.
There is no indication in Packingham that this Court’s
concerns were limited to the First Amendment context.
This case presents an opportunity for the Court to
impose Fourth Amendment limits on states’ ability to
impose severe restrictions on persons convicted of sex
offenses who are no longer under supervision of the
criminal justice system.
individuals who have been convicted of sex offenses, including
registration requirements and onerous housing restrictions after
completion of their criminal sentences. See, e.g., Catherine L.
Carpenter & Amy E. Beverlin, The Evolution of Unconstitutionality of Sex Offender Laws, 63 Hastings L.J. 1071, 1076-1100
(2012) (tracing the escalating burdens of registration and notification schemes since they were first enacted in 1994); see also
Catherine L Carpenter, All Except For: Animus that Drives Exclusions in Criminal Justice Reform, 50 SW. L. REV. 1, 9-17
(2020) (showcasing a myriad of criminal justice reform efforts to
which those convicted of sex offenses were not entitled).
33
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
ADELE D. NICHOLAS
MARK G. WEINBERG
5707 W. Goodman Street
3612 N. Tripp Avenue
Chicago, Illinois 60630
Chicago, Illinois 60641
(847) 361-3869
(773) 283-3913
adele@civilrightschicago.com
Counsel for Petitioners
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.