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Supreme Court Finds Sex Offender GPS Monitoring Unconstitutional

March 10, 2019

The Georgia Supreme Court has held that the requirement of lifetime GPS monitoring for all sexual offenders classified as Level 3 sexually dangerous predators is unconstitutional as it authorizes an unreasonable warrantless search in violation of the Fourth Amendment.

In Park v. State, it was argued by the defendant that the lifetime GPS monitoring requirement in Georgia’s sex offender registration statute constituted an unreasonable search as it authorized the State to track the whereabouts of these offenders without obtaining a search warrant.

The Court agreed with the defendant, first noting that the U.S. Supreme Court held in Grady v. North Carolina that the State “conducts a search when it attaches a device to a person’s body, without consent, for the purpose of tracking that individual’s movements.” As such, the Court concluded that the GPS monitoring in this case clearly constituted a search.

The next question for the Court was whether such a warrantless search was unreasonable. The Court recognized that the Fourth Amendment only prohibits unreasonable searches. Therefore, in order to determine the reasonableness of a search, the Court must weigh 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.”

The State argued that GPS monitoring in this case was reasonable because a sexually dangerous predator, who is already subject to Georgia’s sex offender registry, has a diminished expectation of privacy. The Court disagreed and found that a person who has already completed his sentence does not have a lesser expectation of privacy that would justify the State’s ability to monitor his whereabouts 24 hours a day.

The Court noted that while a few other states have found lifelong GPS monitoring for sexually dangerous predators to be constitutional, the statutes in those jurisdictions are distinguishable from Georgia’s. First, it was pointed out that the statutes in these other states imposed the GPS monitoring as part of the offender’s actual sentence. Also, as opposed to offenders in other states, those subject to the lifelong GPS monitoring requirement in Georgia have no mechanism to ever petition to be removed from the requirement once the sexually dangerous predator classification becomes final.

Therefore, the Court concluded that Georgia’s statute requiring lifelong GPS monitoring for those classified as sexually dangerous predators was unconstitutional to the extent that it authorizes unreasonable warrantless searches of people who are no longer serving their sentence.

It should be noted that the Georgia legislature is already working to find a way to address this decision and preserve its ability to still impose lifelong GPS monitoring for certain offenders. One shocking proposal is to amend the sentencing scheme for sex offenses across-the-board allowing courts to impose a life sentence for any offense regardless of the severity. It is doubtful that such a sentencing scheme would pass constitutional muster.

In the meantime, we will continue to monitor the legislature’s response to this decision and report what changes, if any, are enacted to the laws governing those subject to Georgia’s sex offender registration statute.

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