CopyCited 17 times | Published | Supreme Court of Georgia | Jun 19, 2017 | 801 S.E.2d 821
HINES, Chief Justice.
This is an appeal by the Sexual Offender Registration Review Board from a final order of the Superior Court of Fulton County declaring that OCGA §
42-1-14, which sets forth a procedure for the classification of sexual offenders according to their recidivism risks and in subsection (e) requires any “sexually dangerous predator” to wear and pay for an electronic GPS monitor for the rest of...
...For the reasons that follow, we vacate the superior court’s judgment and remand the case with direction that it be dismissed.
On April 5, 2006, Kenneth Berzett pled guilty to child molestation, and in 2009, the Board classified him as a sexually dangerous *392predator. See OCGA §
42-1-14 (a). In 2014, the Board granted Ber-zett’s request for an out-of-time reevaluation of his classification, but ultimately upheld its classification decision. See OCGA §
42-1-14 (b). Berzett then petitioned the superior court for judicial review of his classification, see OCGA §
42-1-14 (c), and, in a separate action, he simultaneously filed a petition for declaratory judgment, alleging that OCGA §
42-1-14 is unconstitutional and also seeking injunctive relief against enforcement or application of the electronic monitoring requirement....
...After the final decision on the petition for judicial review, the Board asserted in a supplement to its motion to dismiss that Berzett’s request for declaratory judgment had become moot because there was no longer an active controversy between Berzett and the Board, any ruling on the constitutionality of OCGA §
42-1-14 would have no practical effect on Berzett, and he no longer faces uncertainty as to any future undirected action....
...The superior court held that Berzett is not subject to the electronic monitoring obligations imposed on sexually dangerous predators and issued a writ of prohibition against the Board and its officers and agents that prohibited them from requiring Berzett to wear or pay for GPS monitoring pursuant to OCGA §
42-1-14 (e), from gathering, storing, or distributing any data regarding his movements obtained as a result of such monitoring, and from otherwise enforcing any provision of OCGA §
42-1-14 (e) as to Berzett.
On appeal, the Board contends that the trial court lacked subject matter jurisdiction over this petition for declaratory relief because no actual controversy existed between the Board and Berzett....
...epends.” ’ ” GeorgiaCarry.Org v. Atlanta Botanical Garden,
299 Ga. 26, 28 (1) (785 SE2d 874) (2016) (citation omitted).
The interest of the respondent to the petition for declaratory judgment in this case is statutorily determined. Under OCGA §
42-1-14 (a) and (b), the Board is required to make the initial risk assessment and classification of sexual offenders, to decide on petitions for reevaluation of the classification, and to make a risk assessment upon request of a superior court th...
...rior to his release from confinement or by the sheriff of the county of his residence, who explains its operation and cost; and a law enforcement official is designated to maintain and remove or replace the equipment. See OCGA §§
42-1-12 (i) (12),
42-1-14 (e)....
...Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Joseph J. Drolet, Senior Assistant Attorney General, Rebecca J. Dobras, Assistant Attorney General, for appellant.
McMillan & Rawlings, Thomas C. Rawlings; Mark A. Yurachek, for appellee.
OCGA §
42-1-14 (e) provides:
(e) Any sexually dangerous predator shall be required to wear an electronic monitoring system that shall have, at a minimum:
(1) The capacity to locate and record the location of a sexually dangerous predator by a link to a...
...ratory judgment, and a writ of prohibition could not have been entered independently of a proper declaratory judgment. This is true because, if for no other reason, Berzett’s entire case depended on a determination of the constitutionality of OCGA §
42-1-14, and the writ of prohibition itself “is not an appropriate remedy for testing the constitutionality of a law.” Buie v....
CopyCited 14 times | Published | Supreme Court of Georgia | Mar 21, 2016 | 784 S.E.2d 392
...r”
under the Georgia sexual offender registration laws, OCGA §
42-1-12 et seq.1
Scott Gregory is a convicted sexual offender, and in 2013, the Sexual Offender
Registration Review Board classified him as a sexually dangerous predator. See
OCGA §
42-1-14 (a). Gregory timely asked the Board to reevaluate his
classification, see OCGA §
42-1-14 (b), but the Board denied his request.
1
We are concerned today only with the process due under the Fourteenth Amendment
of the United States Constitution....
...I, no party to this case has advanced any argument on
appeal about the process due under the Georgia Constitution. See Barzey v. City of Cuthbert,
295 Ga. 641, 643 (2) (763 SE2d 447) (2014).
Gregory then petitioned the Superior Court of Fulton County for judicial review
of his classification, see OCGA §
42-1-14 (c), but the superior court affirmed
the decision of the Board....
...additional dangerous sexual offenses. The sexual offender registration laws
require the Board14 to assess “the likelihood that a sexual offender will engage
in another crime against a victim who is a minor or a dangerous sexual offense,”
OCGA §
42-1-14 (a) (1), and to classify sexual offenders according to that
assessment. See OCGA §
42-1-14 (a) (2)....
...iety of
information provided by prosecuting attorneys, the Georgia Bureau of
Investigation, the State Board of Pardons and Paroles, the Department of
Corrections, the Department of Community Supervision, and the sexual offender
himself. See OCGA §
42-1-14 (a) (2)....
...Such information may include
“psychological evaluations, sexual history polygraph information, treatment
history, [] personal, social, educational, and work history,” criminal history, and
court records. Id.15 Although the sexual offender is entitled to submit any
15
In pertinent part, OCGA §
42-1-14 (a) (2) provides:
A sexual offender shall be placed into Level I risk assessment classification,
Level II risk assessment classification, or sexually dangerous predator
classification based upon the board’s assessment criteria and information
obtained and reviewed by the board....
...administrative evidentiary hearing in connection with the Board’s initial
assessment and classification of a sexual offender. See id. Upon making a
classification determination, the Board must notify a sexual offender of his
classification in writing. See OCGA §
42-1-14 (a) (3).
Sexual offenders classified as Level II risk assessments or sexually
dangerous predators may seek administrative reevaluation, and in connection
with that reevaluation, sexual offenders again have an opportunity to provid...
...nts within the time limits
provided, the classification shall be final. The board shall notify the
sexual offender by first-class mail of its decision on the petition for
reevaluation of risk assessment classification . . . .
OCGA §
42-1-14 (b)....
...The court may
uphold the classification of the board, or, if the court finds by a
preponderance of the evidence that the sexual offender is not placed
in the appropriate classification level, the court shall place the
sexual offender in the appropriate risk assessment classification. .
..
OCGA §
42-1-14 (c).
A sexually dangerous predator is subject to requirements and restrictions
in addition to those requirements and restrictions that apply to sexual offenders
generally. Most notably, OCGA §
42-1-14 (e) requires a sexually dangerous
predator to submit for the rest of his life to electronic monitoring and tracking
of his person and to pay the costs associated with that monitoring and tracking:...
...the electronic
monitoring system placed on the sexually dangerous predator.
14
In addition, sexually dangerous predators must register with their sheriffs more
frequently than other sexual offenders, see OCGA §
42-1-14 (f),16 and many
sexually dangerous predators are subject to an additional employment
restriction, prohibiting employment or volunteer work at any business located
within 1,000 feet of an area where minors congregate....
...residency and
employment restrictions, see OCGA §
42-1-19, the standard for release is, quite
understandably, more onerous for Level II risk assessments and sexually
dangerous predators. See OCGA §
42-1-19 (c) (2) (A-B).
16
OCGA §
42-1-14 (f) provides:
In addition to the requirements of registration for all sexual offenders, a
sexually dangerous predator shall report to the sheriff of the county where such
predator resides six months following his or her b...
...But Gregory does not rely on
stigma alone.
To the contrary, as Gregory notes, his classification as a sexually
dangerous predator affects him in other ways. For instance, sexually dangerous
predators must report to the sheriff more frequently than Level I and Level II
sexual offenders. See OCGA §
42-1-14 (f)....
...a hearing on the likelihood of a
sexual offender committing additional crimes are not significant enough to
justify the refusal of such a hearing. See Germane, 971 A2d at 582 (I) (A) (3);
Noble, 964 P2d at 996-997. In addition, we note that OCGA §
42-1-14 (c)
already provides that a superior court may hold a hearing on the question of
27
classification in any case in which the court sees fit to do so, without limitation,
suggesting that the Genera...
...offenders classified as sexually dangerous predators. We add, however, that we
see no reason why an evidentiary hearing would be required in both
administrative and judicial proceedings. See Germane, 971 A2d at 579 (I) (A)
(2) (a); Noble, 964 P2d at 997. As noted, OCGA §
42-1-14 (c) already provides
that “[t]he court may hold a hearing to determine the issue of classification.”
“Unlike a substantive due process claim, a constitutional violation of procedural
due process is not complete unless and until the State fails to provide due
process.” Atlanta City School Dist....
CopyCited 8 times | Published | Supreme Court of Georgia | Mar 4, 2019
MELTON, Chief Justice.
*150We granted an interlocutory appeal in this case to address Joseph Park's facial challenge to the constitutionality of OCGA §
42-1-14, which requires, among other things, that a person who is classified as a sexually dangerous predator - but who is no longer in State custody or on probation or parole - wear and pay for an electronic monitoring device linked to a global positioning satellite system ("GPS monitoring device") that allows the State to monitor that individual's location "for the remainder of his or her natural life." Id. at (e). For the reasons that follow, we conclude that OCGA §
42-1-14 (e), on its face, authorizes a patently unreasonable search that runs afoul of the protections afforded by the Fourth Amendment to the United States Constitution, and, as a result, subsection (e) of the statute is unconstitutional to the e...
...on of a minor. Park was sentenced to twelve years in prison with eight years to serve. Upon his release from custody in April 2011, the Sexual Offender Registration Review Board ("SORRB") classified Park as a "sexually dangerous predator" under OCGA §
42-1-14 (a) (1),2 which was a designation that required Park to wear and pay for an electronic monitoring system for the remainder of his natural life. Id. at (e).
Following his release on probation, Park sought re-evaluation of his classification, but the SORRB upheld his classification. See OCGA §
42-1-14 (b). Park then sought judicial review of the agency decision in Fulton County Superior Court pursuant to OCGA §
42-1-14 (c), claiming that his classification violated his due process rights, and that the classification constituted ex post facto punishment because it would require him to be monitored through a wearable GPS monitoring device....
...Park completed the remainder of his sentence and he was released from custody in April 2015. Thereafter, he registered as a sex offender with the DeKalb County Sheriff's Office pursuant to OCGA §
42-1-12 (e) and (f), and he was fitted with a GPS monitoring device pursuant to OCGA §
42-1-14 (e).3 In February 2016, Park was arrested and indicted for tampering with his ankle monitor, in violation of OCGA §
16-7-29 (b) (5) (prohibiting removal, destruction, or circumvention of a monitor worn pursuant to OCGA §
42-1-14 ). Park filed a general demurrer, arguing that *151he could not be prosecuted under OCGA §
16-7-29 (b) (5) because the predicate statute, OCGA §
42-1-14, was unconstitutional. Some of the grounds upon which Park challenged OCGA §
42-1-14 related to his 2011 classification as a sexually dangerous predator.4 However, he also raised constitutional claims challenging the required electronic monitoring imposed by OCGA §
42-1-14 (e) with respect to those who have been classified as sexually dangerous predators.5 Following a September 26, 2017 hearing, the trial court found OCGA §
42-1-14 to be constitutional and overruled Park's demurrer, but granted a certificate of immediate review. We granted Park's application for an interlocutory appeal to determine whether the trial court erred in rejecting Park's claim that OCGA §
42-1-14 is unconstitutional.
1....
...As an initial matter, Park's constitutional claims relating to his classification as a sexually dangerous predator are barred by res judicata, and they will not be addressed on the merits here. Park raised constitutional due process and ex post facto claims with regard to his classification under OCGA §
42-1-14 in his failed 2011 petition to be re-evaluated....
...See Sexual Offender Registration Review Bd. v. Berzett,
301 Ga. 391, 394,
801 S.E.2d 821 (2017). See also Coen v. CDC Software Corp.,
304 Ga. 105, 112 (2),
816 S.E.2d 670 (2018). Accordingly, those portions of the trial court's order relating to the classification procedures of OCGA §
42-1-14 are affirmed.
2. Turning to the constitutional issue properly before us, Park contends that OCGA §
42-1-14 (e) is unconstitutional on its face because it authorizes an unreasonable lifelong warrantless search of sex offenders who are classified as sexually dangerous predators by requiring such offenders to wear and be monitored at all times through a GPS monitoring device....
...(Citation and punctuation omitted.) Blevins v. Dade Cty. Bd. of Tax Assessors,
288 Ga. 113, 118 (3),
702 S.E.2d 145 (2010). With these *152principles in mind, we turn to the constitutional question at issue.
(a) Does the required GPS monitoring authorized by OCGA §
42-1-14 (e) qualify as a search under the Fourth Amendment?
To begin our analysis, we must first address whether the requirements of OCGA §
42-1-14 (e) create a search for purposes of the Fourth Amendment....
...ection, the sexually dangerous predator shall report to the sheriff of the county of his or her residence for purposes of having the electronic monitoring system placed on the sexually dangerous predator.
(Emphasis supplied.)
In simpler terms, OCGA §
42-1-14 (e) requires all sex offenders classified as sexually dangerous predators to wear a GPS monitoring device that locates, records, and reports their location to State authorities, even after they have completed their criminal sentences....
...conducts a search when it attaches a device to a person's body, without consent, for the purpose of tracking that individual's movements."). See also Gregory v. Sexual Offender Registration Review Bd.,
298 Ga. 675, 688 (3),
784 S.E.2d 392 (2016). Based on the Grady decision, OCGA §
42-1-14 (e), on its face, authorizes a search that implicates the Fourth Amendment. Grady, supra, --- U.S. ----,
135 S.Ct. at 1371.
(b) Is the search reasonable?
Next, we must determine whether "no set of circumstances exists under which [ OCGA §
42-1-14 (e) ] would" allow for a reasonable search that does not run afoul of Fourth Amendment protections. See Blevins, supra,
288 Ga. at 118 (3),
702 S.E.2d 145. In other words, the fact that OCGA §
42-1-14 (e) creates a program for tracking individuals through worn GPS monitoring devices and qualifies as a search under the Fourth Amendment
does not decide the ultimate question of the program's constitutionality....
...n reasonable privacy expectations.
*153(Citations and emphasis omitted.) Grady, supra, --- U.S. ----,
135 S.Ct. at 1371. Accordingly, we must determine if a lifelong search of the individuals required to wear a GPS monitoring device pursuant to OCGA §
42-1-14 (e) is reasonable. As explained more fully below, we find that the specific search created by OCGA §
42-1-14 (e) cannot stand under the Fourth Amendment, at least with respect to individuals who have completed their criminal sentences.
In order to address this issue, we must keep in mind that the Fourth Amendment to the United States Constitutio...
...g the place to be searched, and the persons or things to be seized.").
Pursuant to the Grady decision, supra, there are two relevant issues that must be addressed here in order for us to determine whether the warrantless searches authorized by OCGA §
42-1-14 (e) may be permissible: (1) whether the searches involved may be reasonable under the Fourth Amendment due to the individuals being searched having a diminished expectation of privacy, and (2) whether the warrantless searches authorized by...
...acy by virtue of their status alone"). However, the Supreme Court cases cited by the State concern individuals who are still serving a criminal sentence , either on probation or on parole. Those cases have no application here to the extent that OCGA §
42-1-14 (e) specifically and expressly authorizes a lifelong GPS search of individuals, like Park, who have already served their entire sentences and are no longer on probation or parole , via the attachment of an electronic monitoring device to t...
...Special Needs Searches
Although individuals classified as sexually dangerous predators do not have a diminished expectation of privacy after they have served the entirety of their sentences, this does not end our inquiry, as we still must determine if the GPS monitoring requirements of OCGA §
42-1-14 (e) may be proper as a reasonable "special needs" search....
...o which it is needed for the promotion of legitimate governmental interests." (Citation and punctuation omitted.) United States v. Knights,
534 U.S. 112, 119,
122 S.Ct. 587,
151 L.Ed.2d 497 (2001).
The State contends that the GPS monitoring of OCGA §
42-1-14 (e) serves a primary purpose that is distinguishable from a general interest in crime control, because the statute serves to prevent recidivism against minor victims or dangerous sexual offenses rather than control criminal activity. See, e.g., Knights,
534 U.S. at 120,
122 S.Ct. 587. However, the plain language of OCGA §
42-1-14 (e) reveals that this purpose is not "divorced from the State's general interest in law enforcement" Ferguson, supra, 532 U.S....
...may employ to pursue a given purpose.' " Id. at 86 (III),
121 S.Ct. 1281 (quoting Edmond,
531 U.S. at 42-43,
121 S.Ct. 447 ). In other words, even if the primary purpose of the statute is to prevent specific types of recidivism, because, under OCGA §
42-1-14 's design, that purpose is not "divorced from the State's general interest in law enforcement" ( Ferguson, supra, 532 U.S....
...carry arms or are involved in drug interdiction deemed reasonable).
Finally, even if we assume, arguendo, that the State's general interest in crime control and detection is distinguishable from the primary purpose of the search authorized by OCGA
42-1-14 (e), thereby meeting the requirements for a special need, the statute still fails to pass constitutional muster....
...information about any person whom the Government, in its unfettered discretion, chooses to track - may alter the relationship between citizen and government in a way that is inimical to democratic society.") (citation and punctuation omitted). 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. Because the privacy interests involved with respect to Fourth Amendment searches of the individuals covered by OCGA §
42-1-14 (e) who are no longer serving any portion of their sentences is by no means minimal, for that reason alone, the search authorized by the statute cannot be classified as a reasonable "special needs" search....
...1295 (for special needs doctrine to be applicable, privacy interests implicated in the search must be "minimal").
3. Statutes authorizing a lifelong GPS search of persons classified as sexually dangerous predators have passed constitutional muster in a few other jurisdictions, but OCGA §
42-1-14 (e) is distinguishable from those statutory schemes. For example, §
42-1-14 (e) does not include the GPS monitoring of sexually dangerous predators as part of the offenders' actual sentences (see People v....
...555, 873 N.W.2d 811 (2015), rev'd in part on other grounds, 499 Mich. 879, 876 N.W.2d 523 (2016) (Michigan statutes at issue specifically included lifetime GPS monitoring as part of the sex offender's actual sentence for the crime or crimes committed )). Nor does OCGA §
42-1-14 (e) on its face allow for individuals classified as sexually dangerous predators to be removed from the GPS monitoring requirements at any point after the classification has become final.6 See N.C....
...one year after the offender: (i) has served his or her sentence for the offense for which the satellite-based monitoring requirement was imposed, and (ii) has also completed any period of probation, parole, or post-release supervision imposed as part of the sentence")).7 Instead, OCGA §
42-1-14 (e), on its face, simply allows for warrantless searches of individuals - that these individuals must pay for8 -*158to find evidence of possible criminality for the rest of their lives, despite the fact that they have completed serving their entire sentences and have had their privacy rights restored. See OCGA §
42-1-14 (e) (3).
We find such searches to be patently unreasonable, and therefore conclude that OCGA §
42-1-14 (e) is unconstitutional on its face to the extent that it authorizes such searches of individuals, like Park, who are no longer serving any part of their sentences in order to find evidence of possible criminal conduct....
...e and review" under North Carolina law).
Judgment affirmed in part and reversed in part.
Nahmias, P.J., Benham, Blackwell, Boggs, Peterson, Bethel, Ellington, JJ., and Judge Wade Padgett concur. Warren, J., disqualified.
Because we find that OCGA §
42-1-14 (e) is unconstitutional to the extent that it runs afoul of the Fourth Amendment, we need not address the additional grounds upon which Park challenges the constitutionality of the electronic monitoring requirements created by the statute.
The SORRB classifies sexual offenders based on how likely they are "to engage in another crime against a victim who is a minor or a dangerous sexual offense." OCGA §
42-1-14 (a) (1). Although OCGA §
42-1-14 was amended in 2012, 2013, 2015, and 2016, the 2011 version under which Park was classified is identical to the current version of the statute for classification purposes.
The specific device was an ankle monitor that was designed to trac...
...tor was not designed to be submerged in water on a constant basis. Park also had to charge the ankle monitor at least twice a day for a minimum of thirty minutes per day.
These claims included assertions that the classification procedure under OCGA §
42-1-14 deprived him of due process, the statute deprived him of equal protection by treating him differently from other convicted criminals, the statute was unconstitutionally vague with respect to the standard for designating an individual as a...
...dator, the classification constituted ex post facto punishment, and the statute violated double jeopardy principles by subjecting Park to additional punishment that had not been imposed in his original sentence.
Specifically, Park claimed that OCGA §
42-1-14 (e) violated his right against unlawful search and seizure under the Fourth Amendment to the United States Constitution and under the Georgia Constitution, violated his right to privacy under the Georgia Constitution, violated his right ag...
...right against cruel and unusual punishment, was an ex post facto law, and created an unlawful taking by requiring him to pay for the electronic monitoring.
Once an individual's classification as a sexually dangerous predator has become final, OCGA §
42-1-14 does not, on its face, provide any method for that individual to be removed from that category of offenders and reclassified in a way that would relieve that person of wearing a GPS monitoring device "for the remainder of his or her natural life." Id....
...to the reasonableness of the actual search conducted through a GPS monitoring device, both the Wisconsin and Georgia monitoring statutes contain terms that deal with a sex offender's responsibility to pay for the GPS monitoring device. Compare OCGA §
42-1-14 (e) with Wis. Stat. Ann. § 301.48. However, unlike OCGA §
42-1-14 (e), which simply states that the monitored individual "shall pay the cost of such [GPS] system," Wis....
CopyCited 2 times | Published | Supreme Court of Georgia | Mar 4, 2019
305 Ga. 348
FINAL COPY
S18A1211. PARK v. THE STATE.
MELTON, Chief Justice.
We granted an interlocutory appeal in this case to address Joseph Park’s
facial challenge to the constitutionality of OCGA §
42-1-14, which requires,
among other things, that a person who is classified as a sexually dangerous
predator — but who is no longer in State custody or on probation or parole —
wear and pay for an electronic monitoring device linked to a global positioning
satellite system (“GPS monitoring device”) that allows the State to monitor that
individual’s location “for the remainder of his or her natural life.” Id. at (e). For
the reasons that follow, we conclude that OCGA §
42-1-14 (e), on its face,
authorizes a patently unreasonable search that runs afoul of the protections
afforded by the Fourth Amendment to the United States Constitution, and, as a
result, subsection (e) of the statute is unconstitutional to th...
...or. Park was sentenced to twelve
years in prison with eight years to serve. Upon his release from custody in April
2011, the Sexual Offender Registration Review Board (“SORRB”) classified
Park as a “sexually dangerous predator” under OCGA §
42-1-14 (a) (1),2 which
was a designation that required Park to wear and pay for an electronic
monitoring system for the remainder of his natural life. Id. at (e).
Following his release on probation, Park sought reevaluation of his
classification, but the SORRB upheld his classification. See OCGA §
42-1-14
(b). Park then sought judicial review of the agency decision in Fulton County
Superior Court pursuant to OCGA §
42-1-14 (c), claiming that his classification
1
Because we find that OCGA §
42-1-14 (e) is unconstitutional to the
extent that it runs afoul of the Fourth Amendment, we need not address the
additional grounds upon which Park challenges the constitutionality of the
electronic monitoring requirements created by the statute.
The SORRB classifies sexual offenders based on how likely they are to
2
“engage in another crime against a victim who is a minor or a dangerous sexual
offense.” OCGA §
42-1-14 (a) (1). Although OCGA §
42-1-14 was amended in
2012, 2013, 2015, and 2016, the 2011 version under which Park was classified
is identical to the current version of the statute for classification purposes.
2
violated his due process...
...Park completed the
remainder of his sentence and he was released from custody in April 2015.
Thereafter, he registered as a sex offender with the DeKalb County Sheriff’s
Office pursuant to OCGA §
42-1-12 (e) and (f), and he was fitted with a GPS
monitoring device pursuant to OCGA §
42-1-14 (e).3 In February 2016, Park
3
The specific device was an ankle monitor that was designed to track
Park’s position at all times, and the device was provided by a private company
called VeriTrax....
...Park
could shower while wearing the device, but it was not recommended that he
3
was arrested and indicted for tampering with his ankle monitor, in violation of
OCGA §
16-7-29 (b) (5) (prohibiting removal, destruction, or circumvention of
a monitor worn pursuant to OCGA §
42-1-14). Park filed a general demurrer,
arguing that he could not be prosecuted under OCGA §
16-7-29 (b) (5) because
the predicate statute, OCGA §
42-1-14, was unconstitutional. Some of the
grounds upon which Park challenged OCGA §
42-1-14 related to his 2011
classification as a sexually dangerous predator.4 However, he also raised
constitutional claims challenging the required electronic monitoring imposed by
OCGA §
42-1-14 (e) with respect to those who have been classified as sexually
dangerous predators.5 Following a September 26, 2017 hearing, the trial court
swim with the device, as the monitor was not designed to be submerged in water
on a constant basis. Park also had to charge the ankle monitor at least twice a
day for a minimum of thirty minutes per day.
4
These claims included assertions that the classification procedure under
OCGA §
42-1-14 deprived him of due process, the statute deprived him of equal
protection by treating him differently from other convicted criminals, the statute
was unconstitutionally vague with respect to the standard for designating an
individual as a...
...ssification constituted ex
post facto punishment, and the statute violated double jeopardy principles by
subjecting Park to additional punishment that had not been imposed in his
original sentence.
5
Specifically, Park claimed that OCGA §
42-1-14 (e) violated his right
against unlawful search and seizure under the Fourth Amendment to the United
4
found OCGA §
42-1-14 to be constitutional and overruled Park’s demurrer, but
granted a certificate of immediate review. We granted Park’s application for an
interlocutory appeal to determine whether the trial court erred in rejecting Park’s
claim that OCGA §
42-1-14 is unconstitutional.
1....
...As an initial matter, Park’s constitutional claims relating to his
classification as a sexually dangerous predator are barred by res judicata, and
they will not be addressed on the merits here. Park raised constitutional due
process and ex post facto claims with regard to his classification under OCGA
§
42-1-14 in his failed 2011 petition to be reevaluated....
...See Sexual Offender Registration Review Bd. v. Berzett,
301 Ga. 391, 394
(801 SE2d 821) (2017). See also Coen v. CDC Software Corp.,
304 Ga. 105,
112 (2) (816 SE2d 670) (2018). Accordingly, those portions of the trial court’s
order relating to the classification procedures of OCGA §
42-1-14 are affirmed.
2. Turning to the constitutional issue properly before us, Park contends
that OCGA §
42-1-14 (e) is unconstitutional on its face because it authorizes an
unreasonable lifelong warrantless search of sex offenders who are classified as
sexually dangerous predators by requiring such offenders to wear and be
monitored at all times through a GPS monitoring device....
...(Citation and punctuation omitted.) Blevins v. Dade County Bd. of Tax
Assessors,
288 Ga. 113, 118 (3) (702 SE2d 145) (2010). With these principles
in mind, we turn to the constitutional question at issue.
(a) Does the required GPS monitoring authorized by OCGA §
42-1-14
(e) qualify as a search under the Fourth Amendment?
To begin our analysis, we must first address whether the requirements of
OCGA §
42-1-14 (e) create a search for purposes of the Fourth Amendment.
Subsection (e) states:
Any sexually dangerous predator shall be required to wear an
electronic monitoring system that shall have, at a minimum:
(1)...
...sexually dangerous predator shall report to the sheriff of the county
of his or her residence for purposes of having the electronic
monitoring system placed on the sexually dangerous predator.
(Emphasis supplied.)
In simpler terms, OCGA §
42-1-14 (e) requires all sex offenders classified
as sexually dangerous predators to wear a GPS monitoring device that locates,
records, and reports their location to State authorities, even after they have
completed their criminal sentences....
...conducts a search when it attaches a device
to a person’s body, without consent, for the purpose of tracking that individual’s
movements.”). See also Gregory v. Sexual Offender Registration Review Bd.,
298 Ga. 675, 688 (3) (784 SE2d 392) (2016). Based on the Grady decision,
OCGA §
42-1-14 (e), on its face, authorizes a search that implicates the Fourth
Amendment. Grady, supra, U. S. 135 SCt at 1371.
(b) Is the search reasonable?
Next, we must determine whether “no set of circumstances exists under
which [OCGA §
42-1-14 (e)] would” allow for a reasonable search that does not
run afoul of Fourth Amendment protections. See Blevins, supra,
288 Ga. at 118
(3). In other words, the fact that OCGA §
42-1-14 (e) creates a program for
tracking individuals through worn GPS monitoring devices and qualifies as a
search under the Fourth Amendment
does not decide the ultimate question of the program’s
constitutionality....
...(Citations and emphasis omitted.) Grady, supra, U. S. 135 SCt at 1371.
9
Accordingly, we must determine if a lifelong search of the individuals required
to wear a GPS monitoring device pursuant to OCGA §
42-1-14 (e) is reasonable.
As explained more fully below, we find that the specific search created by
OCGA §
42-1-14 (e) cannot stand under the Fourth Amendment, at least with
respect to individuals who have completed their criminal sentences.
In order to address this issue, we must keep in mind that the Fourth
Amendment to the United States Con...
...to be
searched, and the persons or things to be seized.”).
Pursuant to the Grady decision, supra, there are two relevant issues that
must be addressed here in order for us to determine whether the warrantless
searches authorized by OCGA §
42-1-14 (e) may be permissible: (1) whether the
searches involved may be reasonable under the Fourth Amendment due to the
individuals being searched having a diminished expectation of privacy, and (2)
whether the warrantless searches authorized...
...expectations of privacy by virtue of their status alone”). However, the Supreme
Court cases cited by the State concern individuals who are still serving a
criminal sentence, either on probation or on parole. Those cases have no
application here to the extent that OCGA §
42-1-14 (e) specifically and
expressly authorizes a lifelong GPS search of individuals, like Park, who have
already served their entire sentences and are no longer on probation or parole,
via the attachment of an electronic monitoring device to...
...Although individuals classified as sexually dangerous predators do not
have a diminished expectation of privacy after they have served the entirety of
their sentences, this does not end our inquiry, as we still must determine if the
GPS monitoring requirements of OCGA §
42-1-14 (e) may be proper as a
reasonable “special needs” search....
...it is needed for the promotion of
legitimate governmental interests.” (Citation and punctuation omitted.) United
States v. Knights, 534 U. S. 112, 119 (122 SCt 587, 151 LE2d 497) (2001).
The State contends that the GPS monitoring of OCGA §
42-1-14 (e)
serves a primary purpose that is distinguishable from a general interest in crime
control, because the statute serves to prevent recidivism against minor victims
or dangerous sexual offenses rather than control criminal activity. See, e.g.,
Knights, 534 U. S. at 120. However, the plain language of OCGA §
42-1-14 (e)
reveals that this purpose is not “divorced from the State’s general interest in law
enforcement.” Ferguson, supra, 532 U....
...law enforcement officers may
employ to pursue a given purpose.”’ Id. at 86 (III) (quoting Edmond, 531 U. S.
at 42-43). In other words, even if the primary purpose of the statute is to prevent
specific types of recidivism, because, under OCGA §
42-1-14’s design, that
purpose is not “divorced from the State’s general interest in law enforcement”
(Ferguson, supra, 532 U.S....
...or are involved in drug interdiction
deemed reasonable).
Finally, even if we assume, arguendo, that the State’s general interest in
crime control and detection is distinguishable from the primary purpose of the
search authorized by OCGA §
42-1-14 (e), thereby meeting the requirements for
19
a special need, the statute still fails to pass constitutional muster....
...intimate information about any person whom the Government, in its unfettered
discretion, chooses to track — may alter the relationship between citizen and
government in a way that is inimical to democratic society.”) (citation and
punctuation omitted). 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
20
entire prison sentence that reveals constant information about that person’s
whereabouts for the remainder of that person’s life. Because the privacy
interests involved with respect to Fourth Amendment searches of the individuals
covered by OCGA §
42-1-14 (e) who are no longer serving any portion of their
sentences is by no means minimal, for that reason alone, the search authorized
by the statute cannot be classified as a reasonable “special needs” search....
...at 314 (for special needs doctrine to be applicable,
privacy interests implicated in the search must be “minimal”).
3. Statutes authorizing a lifelong GPS search of persons classified as
sexually dangerous predators have passed constitutional muster in a few other
jurisdictions, but OCGA §
42-1-14 (e) is distinguishable from those statutory
schemes. For example, OCGA §
42-1-14 (e) does not include the GPS
monitoring of sexually dangerous predators as part of the offenders’ actual
sentences (see People v....
...555 (873 NW2d 811) (2015),
rev’d in part on other grounds, 499 Mich. 879 (876 NW2d 523) (2016)
(Michigan statutes at issue specifically included lifetime GPS monitoring as part
of the sex offender’s actual sentence for the crime or crimes committed)). Nor
does OCGA §
42-1-14 (e) on its face allow for individuals classified as sexually
21
dangerous predators to be removed from the GPS monitoring requirements at
any point after the classification has become final.6 See N.C. Gen. Stat. §
6
Once an individual’s classification as a sexually dangerous predator has
become final, OCGA §
42-1-14 does not, on its face, provide any method for
that individual to be removed from that category of offenders and reclassified
in a way that would relieve that person of wearing a GPS monitoring device “for
the remainder of his or her natural life.” Id....
...(Emphasis supplied.)
23
satellite-based monitoring requirement was imposed, and (ii) has also completed
any period of probation, parole, or post-release supervision imposed as part of
the sentence”).7 Instead, OCGA §
42-1-14 (e), on its face, simply allows for
7
We reject the reasoning in Belleau v....
... warrantless searches of individuals — that these individuals must pay for8 — to
find evidence of possible criminality for the rest of their lives, despite the fact
that they have completed serving their entire sentences and have had their
privacy rights restored. See OCGA §
42-1-14 (e) (3).
We find such searches to be patently unreasonable, and therefore conclude
that OCGA §
42-1-14 (e) is unconstitutional on its face to the extent that it
8
While not necessarily directly connected to the reasonableness of the
actual search conducted through a GPS monitoring device, both the Wisconsin
and Georgia monitoring statutes contain terms that deal with a sex offender’s
responsibility to pay for the GPS monitoring device. Compare OCGA §
42-1-14
(e) with Wis. Stat. Ann. § 301.48. However, unlike OCGA §
42-1-14 (e), which
simply states that the monitored individual “shall pay the cost of such [GPS]
system,” Wis....
...Warren, J., disqualified.
BLACKWELL, Justice, concurring.
The General Assembly has determined as a matter of public policy that
requiring some sexual offenders to wear electronic monitoring devices linked
to a global positioning satellite system promotes public safety, and it enacted
OCGA §
42-1-14 (e) to put that policy into practice....
...today have been raised in this and other cases. Our
decision expresses no opinion about whether those other concerns are well-founded.
3
Decided March 4, 2019.
OCGA §
42-1-14 (e); constitutionality....
