by Douglas Ankney

The Supreme Court of Georgia held the state statute authorizing the lifetime global positioning system (“GPS”) monitoring of persons determined to be a “Sexually Dangerous Person” (“SDP”) but who are no longer serving their sentences is unconstitutional.

In 2003, Joseph Park was convicted of numerous sexual offenses. In 2015, he completed his entire prison sentence. He was released without any probation or parole requirements. But because the Sexual Offender Registration Review Board had classified Park as an SDP, he was required to wear a GPS monitoring device for the rest of his natural life pursuant to OCGA § 42-1-14(e).

In February 2016, Park was indicted for tampering with his ankle monitor in violation of OCGA § 16-7-29(b), which prohibits the removal, destruction, or circumvention of a monitor worn in accordance with OCGA § 42-1-14(e). Park filed a demurrer, arguing he could not be prosecuted because OCGA § 42-1-14(e) is unconstitutional. The trial court overruled Park’s demurrer, determining that the statute is constitutional. The Georgia Supreme Court granted an interlocutory appeal to decide the constitutional issue.

Since Park contended the statute is unconstitutional because it authorizes an unreasonable lifelong search of individuals who were classified as an SDP by requiring them to wear a monitoring device for the rest of their natural life, the Court first addressed whether the requirements of OCGA § 42-1-14(e) constitute a search for Fourth Amendment purposes. The statute requires that SDPs wear a monitoring device at all times that locates, records, and reports their locations to state authorities, even after they have completed their sentences. That constitutes a search because “a State ... conducts a search when it attaches a device to a person’s body, without consent, for the purposes of tracking that individual’s movements.” Grady v. North Carolina, 135 S. Ct. 1368 (2015).

Because the Fourth Amendment prohibits only unreasonable searches, the Court had to determine whether the lifelong search of SDPs is reasonable. “The reasonableness of a search depends upon 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. “To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing.” Chandler v. Miller, 520 U.S. 305 (1997). This generally requires law enforcement to obtain a warrant based upon probable cause that a person to be seized has committed a crime or a place to be searched has evidence of a crime. Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602 (1989).

But warrantless searches may be reasonable if the individuals have a diminished expectation of privacy or if the search is based on “special needs.” Grady. The State argued that SVPs have a diminished expectation of privacy because their status makes them similar to persons on parole. Parolees who must submit to suspicionless searches from parole officers at any time “have severely diminished expectations of privacy by virtue of their status alone.” Samson v. California, 547 U.S. 843 (2006). The Court rejected that argument because OCGA § 42-1-14(e) explicitly authorizes lifelong searches of SVPs who have completed their sentences in their entirety and are no longer in custody; whereas, parolees are still in custody serving their sentences, albeit outside of prison. An SVP is a “free person” and cannot be subject to the same diminished expectation of privacy as a person still serving his or her sentence. The Court concluded SVPs do not have diminished expectations of privacy.
As for the “special needs” exception to the warrant requirement, it is “closely guarded” and applied only to a limited “class of permissible suspicionless searches.” Ferguson v. City of Charleston, 532 U.S. 67 (2001). The privacy interests implicated in the search must be minimal. Chandler. In this regard, it applies to search regimes where no warrant is ever required where “special needs ... make the warrant requirement impracticable.” Skinner. In order for the special needs exception to apply, the purpose advanced to justify it must be “divorced from the state’s general interest in law enforcement.” Ferguson.

The Court observed that the plain language of OCGA § 42-1-14(e) reveals that its purpose is not divorced from the State’s general interest in law enforcement. The statute requires monitoring by a system capable of timely reporting or recording an SVP’s presence near or within a crime scene. The information gathered is immediately reported to law enforcement and may be used as evidence that the monitored person committed a crime.

The Court went on to say, “OCGA § 42-1-14(e) authorizes a twenty-four-hour-a-day, seven-day-a-week, search of an individual who has already served his or her entire prison sentence that reveals constant information about that person’s whereabouts for the remainder of that person’s life.” The Court determined that the privacy interests of such persons with respect to the Fourth Amendment are by no means minimal, and for that reason alone, the searches cannot be classified as special needs under Chandler.

Thus, the Court found the searches to be “patently unreasonable” and concluded that OCGA § 42-1-14(e) is unconstitutional on its face to the extent that it authorizes searches of individuals who are no longer serving their sentences for the purpose of identifying evidence of criminal conduct. See: Park v. State, 2019 Ga. LEXIS 138 (2019). 

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