In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐3225
MICHAEL J. BELLEAU,
Plaintiff‐Appellee,
v.
EDWARD F. WALL, et al.,
Defendants‐Appellants.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 12‐CV‐1198‐WCG — William C. Griesbach, Chief Judge.
____________________
ARGUED JANUARY 8, 2016— DECIDED JANUARY 29, 2016
____________________
Before BAUER, POSNER, and FLAUM, Circuit Judges.
POSNER, Circuit Judge. In 1992 the plaintiff, who was then
48 years old, was convicted in a Wisconsin state court of
having sexually assaulted a boy repeatedly for five years be‐
ginning when the boy was eight years old. (The plaintiff was
and is a resident of that state and his crimes occurred there.)
Oddly, he was given only a year in jail and probation for
these assaults, but before the period of probation expired he
was convicted of having in 1988 sexually assaulted a nine‐
2 No. 15‐3225
year‐old girl. Sentenced to 10 years in prison for that crime,
he was paroled after 6 years. But his parole was revoked a
year later after he admitted that he had had sexual fantasies
about two girls, one four years old and the other five, and
that he had “groomed” them for sexual activities and would
have molested them had he had an opportunity to do so.
Scheduled to be released from prison in 2005, instead he
was civilly committed to the Sand Ridge Secure Treatment
Center in 2004 as a “sexually violent person,” Wis. Stat. ch.
980, after a civil trial in which he was found to be “danger‐
ous because he … suffers from a mental disorder that makes
it likely that [he] will engage in one or more acts of sexual
violence.” Wis. Stat. §§ 980.01(7), 980.06; see id. §§ 980.01(2),
(6). He was released in 2010 on the basis of the opinion of a
psychologist that he was no longer more likely than not to
commit further sexual assaults. But in 2006 Wisconsin had
enacted a law requiring that persons released from civil
commitment for sexual offenses wear a GPS monitoring de‐
vice 24 hours a day for the rest of their lives. Wis. Stat.
§ 301.48. The statute applied to any sex offender released
from civil commitment on or after the first day of 2008 and
thus applied (and continues to apply) to the plaintiff. And
therefore ever since his release from civil commitment he has
been forced to wear an ankle bracelet that contains a GPS
monitoring device.
His suit, which is against officials of the Wisconsin De‐
partment of Corrections who administer the monitoring
statute, claims that the statute violates both the Fourth
Amendment to the Constitution and Article I, § 10, cl. 1 of
the Constitution, the latter being the prohibition of states’
enacting ex post facto laws—laws that either punish people
No. 15‐3225 3
for conduct made criminal only after they engaged in it or
increase the punishment above the maximum authorized for
their crime when they committed it. (In the district court he
also argued that he’d been denied equal protection of the
laws, but he’s abandoned that argument on appeal.) The dis‐
trict judge held the Wisconsin monitoring statute unconstitu‐
tional on both grounds, precipitating this appeal by the de‐
fendants (in effect by the state). Although the judge wrote a
long opinion, it omits what seem to us the crucial considera‐
tions in favor of the constitutionality of Wisconsin’s requir‐
ing the plaintiff to wear the ankle bracelet for the rest of his
life.
Anyone who drives a car is familiar with GPS technolo‐
gy, which enables the driver to determine his geographical
location, usually within a few meters. The GPS ankle brace‐
let (more commonly referred to as an ankle monitor or an‐
klet monitor; we’ll use the latter term), shown below, like‐
wise determines the geographical location of the person
wearing it, within an error range of no more than 30 meters.
The most common use of such monitors is to keep track of
persons on probation or parole; the device that Wisconsin
uses is advertised specifically for those purposes. But such
devices are also used by some parents to keep track of their
kids or elderly relatives and by some hikers and mountain
climbers to make sure they know where they are at all times
or to track their speed.
The type of anklet worn by the plaintiff is waterproof to
a depth of fifteen feet, so one can bathe or shower while
wearing it. It must however be plugged into a wall outlet for
an hour each day (while being worn) in order to recharge it.
There are no restrictions on where the person wearing the
4 No. 15‐3225
anklet can travel, as long as he has access to an electrical out‐
let. Should he move away from Wisconsin, he ceases having
to wear it. And while he’s supposed to pay a monthly fee to
compensate for the cost of the anklet, the plaintiff in this case
does not pay it and the Department of Corrections appears
not to have tried to compel him to do so.
When the ankleted person is wearing trousers the anklet
is visible only if he sits down and his trousers hike up sever‐
al inches and as a result no longer cover it. The plaintiff
complains that when this happens in the presence of other
people and they spot the anklet, his privacy is invaded, in
violation of the Fourth Amendment, because the viewers as‐
sume that he is a criminal and decide to shun him. Of course
the Fourth Amendment does not mention privacy or create
any right of privacy. It requires that searches be reasonable
but does not require a warrant or other formality designed
to balance investigative need against a desire for privacy; the
only reference to warrants is a prohibition of general war‐
rants. And although the Supreme Court has read into the
amendment a qualified protection against invasions of pri‐
vacy, its recent decision in Grady v. North Carolina, 135 S. Ct.
1368, 1371 (2015) (per curiam), indicates that electronic mon‐
No. 15‐3225 5
itoring of sex offenders is permitted if reasonable, cf. Samson
v. California, 547 U.S. 843, 848–50 (2006); Vernonia School Dis‐
trict 47J v. Acton, 515 U.S. 646, 652–53 (1995); Skinner v. Rail‐
way Labor Executives’ Ass’n, 489 U.S. 602, 618–24 (1989)—and
that standard is satisfied in this case.
Having to wear a GPS anklet monitor is less restrictive,
and less invasive of privacy, than being in jail or prison, or
for that matter civilly committed, which realistically is a
form of imprisonment. The plaintiff argues that because he is
not on bail, parole, probation, or supervised release, and so
is free of the usual restrictions on the freedom of a person
accused or convicted of a crime, there is no lawful basis for
requiring him to wear the anklet monitor. But this misses
two points. The first is the nature of the crimes he commit‐
ted—sexual molestation of prepubescent children. In other
words the plaintiff is a pedophile, which, as the psychologist
who evaluated him explained, “predisposes [the plaintiff] to
commit sexually violent acts. … [I]t is well understood in my
profession that pedophilia in adults cannot be changed, and
I concluded that Mr. Belleau had not shown that he could
suppress or manage his deviant desire.” The compulsive na‐
ture of such criminal activity is recognized in Rules 414 and
415 of the Federal Rules of Evidence, which in contrast to the
rules governing cases involving other crimes allow evidence
of the defendant’s other crimes, or acts, of sexual molestation
of children to be introduced in evidence in a criminal or civil
case in which the defendant is accused of such molestation.
The plaintiff in our case is about to turn 73, however,
and he argues that he has “aged out” of pedophilic acts.
There is evidence that the arrest rate of pedophiles declines
with age, and from this it can be inferred that pedophilic acts
probably decline with age as well, though there are no relia‐
6 No. 15‐3225
ble statistics on the acts, as distinct from the arrests for en‐
gaging in the acts. There is no reason to think that the acts
decline to zero. Most men continue to be sexually active into
their 70s, and many remain so in their 80s and even 90s. Sta‐
cy Tessler Lindau et al., “A Study of Sexuality and Health
among Older Adults in the United States,” 357 New England
J. Medicine 762–74 (Aug. 23, 2007). And even if not physically
capable of the common forms of male sexual activity, older
men can still molest and grope young children.
The psychologist who recommended that the plaintiff be
released from civil commitment opined that the risk of the
plaintiff’s being charged or convicted of further sex crimes
against young children had been 16 percent when he was
released from civil commitment and could be expected to be
about 8 percent at the time of the district judge’s summary
judgment order this past September. It is important to un‐
derstand however that such estimates, based on personal
characteristics, such as age, number of past convictions, and
type of victim, pertain only to the odds that the released of‐
fender will subsequently be arrested for or convicted of—in
short, detected—committing further sex crimes. Gregory
DeClue & Denis L. Zavodny, “Forensic Use of the Static‐99R:
Part 4. Risk Communication,” 1 Journal of Threat Assessment
& Management 145, 149 (2014). In the words of the psycholo‐
gist, “actuarial scales … underestimate the risk an offender
will commit an offense over [his] lifetime.”
There is serious underreporting of sex crimes, especially
sex crimes against children. A nationwide study based on
interviews with children and their caretakers found that 70
percent of child sexual assaults reported in the interviews
had not been reported to police. David Finkelhor, Heather
No. 15‐3225 7
Hammer, & Andrea J. Sedlak, “Sexually Assaulted Children:
National Estimates & Characteristics,” Juvenile Justice Bulletin
8 (August 2008). The true level of underreporting must be
even higher, because the study did not account for sexual
assaults that go unreported in the interviews. Another study
finds that 86 percent of sex crimes against adolescents go un‐
reported to police or any other authority, such as a child pro‐
tective service. U.S. Dept. of Justice, Office of Justice Pro‐
grams, “Youth Victimization: Prevalence and Implications”
6 (April 2003); see also Candace Kruttschnitt, William D.
Kalsbeek & Carol C. House (eds.), National Research Coun‐
cil, Estimating the Incidence of Rape and Sexual Assault 36–38
(2014).
And even if we credit the 8 and 16 percent figures the
plaintiff can’t be thought just a harmless old guy. Readers of
this opinion who are parents of young children should ask
themselves whether they should worry that there are people
in their community who have “only” a 16 percent or an 8
percent probability of molesting young children—bearing in
mind the lifelong psychological scars that such molestation
frequently inflicts. See, e.g., Christina Rainville, “Using Un‐
diagnosed Post‐Traumatic Stress Disorder to Prove Your
Case: A Child’s Story,” 31 Child Law Practice 97 (2012); Beth
E. Molnar, Stephen L. Buka & Ronald C. Kessler, “Child
Sexual Abuse and Subsequent Psychopathology: Results
from the National Comorbidity Survey,” 91 American J. Pub‐
lic Health 753 (2001). The Supreme Court in Smith v. Doe, 538
U.S. 84, 103 (2003), remarked on “the high rate of recidivism
among convicted sex offenders and their dangerousness as a
class. The risk of recidivism posed by sex offenders is
‘frightening and high.’ McKune v. Lile, 536 U.S. 24, 34 (2002);
see also id. at 33 (‘When convicted sex offenders reenter soci‐
8 No. 15‐3225
ety, they are much more likely than any other type of of‐
fender to be rearrested for a new rape or sexual assault’ (cit‐
ing U.S. Dept. of Justice, Bureau of Justice Statistics, Sex Of‐
fenses and Offenders 27 (1997); U.S. Dept. of Justice, Bureau of
Justice Statistics, Recidivism of Prisoners Released in 1983, p. 6
(1997))).”
Of child molesters released from prison in 1994, 39 per‐
cent were rearrested (though not necessarily for child moles‐
tation) within three years. U.S. Dept. of Justice, Bureau of
Justice Statistics, Recidivism of Sex Offenders Released from
Prison in 1994, p. 17, tab. 10 (Nov. 2003). Although non‐sex
offenders had a higher rearrest rate (68 percent) than sex of‐
fenders and only 3 percent of child molesters were rearrest‐
ed for a child‐molestation offense, id. at 14, 17, these num‐
bers don’t take account of the very high rate of underreport‐
ing of sex offenses. If only 20 percent of child molestations
result in an arrest, the 3 percent recidivism figure implies
that as many as 15 percent of child molesters released from
prison molest again. That’s a high rate when one considers
the heavy punishment they face if caught recidivating, and
thus is further evidence of the compulsive nature of their
criminal activity.
In short, the plaintiff cannot be certified as harmless
merely because he no longer is under any of the more famil‐
iar kinds of post‐imprisonment restriction. As for his civil
commitment having been terminated on the basis of a psy‐
chologist’s determination that he was not more likely than
not to molest children any longer, we doubt that the com‐
munity would or should be reassured by a psychologist’s
guess that a pedophile has “only” (say) a 49 percent chance
of reoffending, or even the 16 percent chance estimated in
No. 15‐3225 9
this case—especially given all the accompanying negatives
in the psychologist’s report. His affidavit states that the
plaintiff is a pedophile and that “pedophilia in adults cannot
be changed, and … [the plaintiff] had not shown that he
could suppress or manage his deviant arousal,” “had not re‐
duced his sexual deviance and had not shown that he could
suppress or manage his deviant arousal,” “had a mental dis‐
order that predisposed him to commit sexually violent acts,”
and “was not eligible for supervised release because he had
not made significant progress in treatment.” There is the fur‐
ther problem that the 16 percent figure is just a guess, and
the even more serious problem that the figure implies that of
every six pedophiles with characteristics similar to those of
the plaintiff in this case one will resume molesting children
after his release from prison. Assuming that the anklet
would (for reasons we’ll explain) deter that person, requir‐
ing that it be worn is a nontrivial protection for potential vic‐
tims of child molestation.
The focus must moreover be on the incremental effect of
the challenged statute on the plaintiff’s privacy, and that ef‐
fect is slight given the decision by Wisconsin—which he
does not challenge—to make sex offenders’ criminal records
and home addresses public. These records are downloaded
by private websites such as Family Watchdog that enable
anyone with access to the Internet to determine whether a
sex offender—more precisely anyone who has ever been
convicted of a sexual offense serious enough to be made
public by the state—lives near him. One of the members of
this appellate panel, out of curiosity stimulated by another
sex offender privacy case, visited Family Watchdog and
learned that there were several (one hopes reformed—but it
is only a hope) sex offenders living on his street.
10 No. 15‐3225
So the plaintiff’s privacy has already been severely cur‐
tailed as a result of his criminal activities, and he makes no
challenge to that loss of privacy. The additional loss from the
fact that occasionally his trouser leg hitches up and reveals
an anklet monitor that may cause someone who spots it to
guess that this is a person who has committed a sex crime
must be slight.
For it’s not as if the Department of Corrections were fol‐
lowing the plaintiff around, peeking through his bedroom
window, trailing him as he walks to the drug store or the lo‐
cal Starbucks, videotaping his every move, and through such
snooping learning (as the amicus curiae brief of the Electron‐
ic Frontier Foundation would have it) “whether he is a
weekly church goer, a heavy drinker, a regular at the gym,
an unfaithful husband,” etc. (quoting United States v.
Maynard, 615 F.3d 544, 562 (D.C. Cir. 2010)). The fruits of
such surveillance techniques would be infringements of pri‐
vacy that the Supreme Court deems serious. See, e.g., Kyllo v.
United States, 533 U.S. 27, 33–36 (2001); see also Katz v. United
States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring); United
States v. Jones, 132 S. Ct. 945, 954–56 (2012) (Sotomayor, J.,
concurring); id. at 963–64 (Alito, J., concurring). But nothing
of that kind is involved in this case, quite apart from the fact
that persons who have demonstrated a compulsion to com‐
mit very serious crimes and have been civilly determined to
have a more likely than not chance of reoffending must ex‐
pect to have a diminished right of privacy as a result of the
risk of their recidivating—and as Justice Harlan explained in
his influential concurrence in the Katz case, the only expecta‐
tion of privacy that the law is required to honor is an “expec‐
tation … that society is prepared to recognize as ‘reasona‐
ble.’” 389 U.S. at 361.
No. 15‐3225 11
Rather, every night the Department of Corrections
makes a map of every anklet wearer’s whereabouts that day
so that should he be present at a place where a sex crime has
been committed, or be hanging around school playgrounds
or otherwise showing an abnormal interest in children not
his own, the police will be alerted to the need to conduct an
investigation. But the main ”objective of the searches [the
mapping, in this case] was [not] to generate evidence for law
enforcement purposes,” as in Ferguson v. City of Charleston, 532
U.S. 67, 83 (2001) (emphasis in original), but instead to deter
future offenses by making the plaintiff aware that he is being
monitored and is likely therefore to be apprehended should
a sex crime be reported at a time, and a location, at which he
is present.
The plaintiff’s argument that his monitoring violates the
Fourth Amendment is further weakened when we consider
the concession by his lawyer at oral argument that the Wis‐
consin legislature could, without violating the Fourth
Amendment, make lifetime wearing of the anklet monitor a
mandatory condition of supervised release for anyone con‐
victed of sexual molestation of a child. That would be a like‐
ly, and seemingly an unassailable, response of the legislature
to a decision by this court upholding the district court’s in‐
validation of the GPS‐monitoring statute—which is to say
that for pedophiles to prevail in cases such as this would
give them only a hollow victory.
It’s untrue that “the GPS device burdens liberty … by its
continuous surveillance of the offender’s activities,” Com‐
monwealth v. Cory, 911 N.E.2d 187, 196–97 (Mass. 2009); it just
identifies locations; it doesn’t reveal what the wearer of the
device is doing at any of the locations. And its “burden”
12 No. 15‐3225
must in any event be balanced against the gain to society
from requiring that the anklet monitor be worn. It is because
of the need for such balancing that persons convicted of
crimes, especially very serious crimes such as sexual offenses
against minors, and especially very serious crimes that have
high rates of recidivism such as sex crimes, have a dimin‐
ished reasonable constitutionally protected expectation of
privacy.
So let’s recapitulate the gain to society from GPS moni‐
toring of convicted sexual molesters. Every night as we said
a unit of the Department of Corrections downloads the in‐
formation collected that day by the anklet monitor and cre‐
ates a map showing all the locations at which the wearer was
present during the day and what time he was present at each
location. Should a sexual offense be reported at a location
and time at which the map shows the person wearing the
anklet to have been present, he becomes a suspect and a
proper target of investigation. But by the same token if he
was not at the scene of the crime when the crime was com‐
mitted, the anklet gives him an ironclad alibi. Missing this
point, the amicus curiae brief of the Electronic Frontier
Foundation in support of the plaintiff criticizes anklet moni‐
toring for its accuracy!
A study of similar GPS monitoring of parolees in Cali‐
fornia found that they were half as likely as traditional pa‐
rolees to be arrested for or convicted of a new sex offense.
Stephen V. Gies, et al., “Monitoring High‐Risk Sex Offenders
with GPS Technology: An Evaluation of the California Su‐
pervision Program,” Final Report, pp. 3‐11, 3‐13 (March
2012). There is no reason to think that GPS monitoring of
No. 15‐3225 13
convicted child molesters in Wisconsin is any less effica‐
cious.
Given how slight is the incremental loss of privacy from
having to wear the anklet monitor, and how valuable to so‐
ciety (including sex offenders who have gone straight) the
information collected by the monitor is, we can’t agree with
the district judge that the Wisconsin law violates the Fourth
Amendment. The plaintiff argues that monitoring a person’s
movements requires a search warrant. That’s absurd. The
test is reasonableness, not satisfying a magistrate. Consider a
neighborhood in which illegal drug dealing is common.
There will be an enhanced police presence in the neighbor‐
hood and, probably more important, several former or pre‐
sent drug dealers whom the police have enlisted as under‐
cover agents. The result will be surveillance of the drug sce‐
ne. No one (unless it’s the plaintiff’s lawyer in this case)
thinks that such surveillance requires a warrant.
Or suppose police place hidden cameras in traffic lights
to detect drivers who run red lights. That is investigative
surveillance similar to what the Wisconsin Department of
Corrections is doing with regard to potential sex offenders,
yet no warrant is required for traffic surveillance. It would
be odd to think that the Department of Corrections could not
use GPS monitoring to determine the plaintiff’s location at
all times, but could have one of its agents follow him when‐
ever he left his house.
It would be particularly odd to think that all searches re‐
quire a warrant just because most of them invade privacy to
a greater or lesser extent. The terms of supervised release,
probation, and parole often authorize searches by probation
officers without the officers’ having to obtain warrants, and
14 No. 15‐3225
the Supreme Court has held that such warrantless searches
do not violate the Fourth Amendment as long as they are
reasonable. Samson v. California, supra; United States v.
Knights, 534 U.S. 112, 118–120 (2001). The “search” conduct‐
ed in this case via the anklet monitor is less intrusive than a
conventional search. Such monitoring of sex offenders is
permissible if it satisfies the reasonableness test applied in
parolee and special‐needs cases. Grady v. North Carolina, su‐
pra, 135 S. Ct. at 1371. Wisconsin’s ankle monitoring of Bel‐
leau is reasonable.
We conclude that there was no violation of the Fourth
Amendment, and so we turn to whether the GPS‐monitoring
statute is an ex post facto law, as it took effect after the plain‐
tiff had committed the crimes for which he had been con‐
victed. A statute is an ex post facto law only if it imposes
punishment. Smith v. Doe, supra, 538 U.S. at 92–96. The moni‐
toring law is not punishment; it is prevention. See, e.g., id. at
97–106; Mueller v. Raemisch, 740 F.3d 1128, 1133–35 (7th Cir.
2014); Doe v. Bredesen, 507 F.3d 998 (6th Cir. 2007); cf. Con‐
necticut Dept. of Public Safety v. Doe, 538 U.S. 1 (2003); City of
Indianapolis v. Edmond, 531 U.S. 32, 44–46 (2000); Michigan
Dept. of State Police v. Sitz, 496 U.S. 444 (1990); Skinner v.
Railway Labor Executives’ Ass’n, supra, 489 U.S. at 620–21, 630.
The plaintiff does not quarrel with his civil commitment;
even though it took away his freedom and was in most re‐
spects indistinguishable from confining him in prison, it was
not ex post facto punishment because the aim was not to en‐
hance the sentences for his crimes but to prevent him from
continuing to molest children. In Kansas v. Hendricks, 521
U.S. 346, 368–69 (1997), the Supreme Court held that civil
commitment of sex offenders who have completed their
prison sentences but are believed to have a psychiatric com‐
No. 15‐3225 15
pulsion to repeat such offenses is not punishment as under‐
stood in the Constitution; it is prevention. The aim of the an‐
klet monitor statute is the same, and the difference between
having to wear the monitor and being civilly committed is
that the former measure is less likely to be perceived as pun‐
ishment than is being imprisoned in an asylum for the crim‐
inally insane. So if civil commitment is not punishment, as
the Supreme Court has ruled, then a fortiori neither is having
to wear an anklet monitor. It is not “excessive with respect to
[the nonpunitive] purpose,” Smith v. Doe, supra, 538 U.S. at
97, for Wisconsin to conclude that all formerly committed
sex offenders pose too great a risk to the public to be re‐
leased without monitoring.
Having to wear the monitor is a bother, an inconven‐
ience, an annoyance, but no more is punishment than being
stopped by a police officer on the highway and asked to
show your driver’s license is punishment, or being placed on
a sex offender registry, held by the Supreme Court in Smith
v. Doe, supra, and by our court in Mueller v. Raemisch, supra,
740 F.3d at 1133, not to be punishment. But while citing
Smith v. Doe the district judge in this case did not properly
apply that decision, but instead embraced the hyperbolic
statement in Riley v. New Jersey State Parole Bd., 98 A.3d 544,
559 (N.J. 2014), that “the tracking device attached to Riley’s
ankle identifies Riley as a sex offender no less clearly than if
he wore a scarlet letter.” No, the aim of requiring a person
who has psychiatric compulsion to abuse children sexually
to wear a GPS monitor is not to shame him, but to discour‐
age him from yielding to his sexual compulsion, by increas‐
ing the likelihood that if he does he’ll be arrested because the
Department of Corrections will have incontestable evidence
16 No. 15‐3225
that he was at the place where and at the time when a sexual
offense was reported to have occurred.
To return to our traffic analogy briefly: no one thinks
that a posted speed limit is a form of punishment. It is a pun‐
ishment trigger if the police catch you violating the speed
limit, but police are not required to obtain a warrant before
stopping a speeding car. The anklet monitor law is the same:
it tells the plaintiff—if you commit another sex offense,
you’ll be caught and punished, because we know exactly
where you are at every minute of every day. Similar statutes
in other states have reduced sex‐crime recidivism. And
though no one doubts the propriety of parole supervision of
sex criminals though it diminishes parolees’ privacy, a study
by the National Institute of Justice finds that GPS monitoring
of sex criminals has a greater effect in reducing recidivism
than traditional parole supervision does. Gies et al., supra, at
vii, 3‐11, 3‐13.
REVERSED
No. 15‐3225 17
FLAUM, Circuit Judge, concurring in the judgment.
I concur in the judgment that the Wisconsin GPS moni‐
toring statute, Wis. Stat. § 301.48, does not violate the Fourth
Amendment or the Ex Post Facto Clause as applied to Mi‐
chael Belleau.
The challenge presented by this appeal requires address‐
ing substantial competing interests: an individual’s right to
privacy from government monitoring, on the one hand, and
the state’s interest in protecting children from sexual abuse,
on the other. Both the Fourth Amendment and the Ex Post
Facto Clause require balancing these respective interests, the
difficulty of which is reflected by the split of appellate courts
that have faced constitutional challenges to similar laws. See
Doe v. Bredesen, 507 F.3d 998 (6th Cir. 2007) (upholding Ten‐
nessee’s GPS monitoring law); Riley v. New Jersey State Parole
Bd., 98 A.3d 544 (N.J. 2014) (striking down New Jersey’s
monitoring law); State v. Bowditch, 700 S.E.2d 1 (N.C. 2010)
(upholding North Carolina’s monitoring law); Commonwealth
v. Cory, 911 N.E.2d 187 (Mass. 2009) (striking down Massa‐
chusetts’s monitoring law).
For the following reasons, I have determined that Wis‐
consin’s law is constitutional. My analysis is shaped by two
overriding considerations. First, sex offenders who target
children pose a uniquely disturbing threat to public safety.
Their crimes are especially destructive and their rate of re‐
cidivism is particularly high. These sexual predators victim‐
ize children, who may suffer from trauma from the assault
for the rest of their lives. The nature of these offenses, thus,
places the state’s interest in combating these particular sex
offenses beyond that of general crime control. Because the
state’s strong interest in protecting children from sexual
18 No. 15‐3225
predators is paramount, I conclude that the balance should
tip in favor of these laws.
Second, I am mindful that the burden imposed by the
law at issue is affected by the technology that enables it. As
GPS technology becomes more available and affordable, we
should approach the government’s use of it with caution, to
ensure that it does not upset the balance of rights bestowed
by the Constitution. “GPS monitoring—by making available
at a relatively low cost such a substantial quantum of inti‐
mate 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.’” United States v. Jones, 132 S.
Ct. 945, 956 (2012) (Sotomayor, J., concurring) (quoting Unit‐
ed States v. Cuevas‐Perez, 640 F.3d 272, 285 (7th Cir. 2011)
(Flaum, J., concurring)).
By the same token, GPS technology has the potential to
facilitate effective public policy. Used appropriately, GPS de‐
vices can replace more invasive forms of supervision, as well
as long prison sentences, benefiting convicted criminals as
well as society. And as technology advances, many of the
current incidental burdens imposed by devices like this
one—such as wearing a bulky ankle bracelet and charging
the device for an hour each day—will fall away, leaving only
the burden on privacy. Although privacy is a value of consti‐
tutional magnitude, it must yield, on occasion, to the state’s
substantial interest to protect the public through reasonable
regulations in appropriate circumstances. This case presents
one of those circumstances.
No. 15‐3225 19
I.
In Grady v. North Carolina, 135 S. Ct. 1368 (2015) (per curi‐
am), the Supreme Court considered whether North Caroli‐
na’s GPS monitoring statute, which is functionally identical
to the one at issue in this case, effected a search under the
Fourth Amendment. The Court concluded that GPS monitor‐
ing by means of an ankle bracelet constitutes such a search.
Id. at 1371. However, Grady left open the question of whether
this search was unreasonable, and thus, whether it violated
the Fourth Amendment:
The Fourth Amendment prohibits only unrea‐
sonable searches. The 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. See, e.g.,
Samson v. California, 547 U.S. 843 (2006) (suspi‐
cionless search of parolee was reasonable);
Vernonia School Dist. 47J v. Acton, 515 U.S. 646
(1995) (random drug testing of student athletes
was reasonable). The North Carolina courts
did not examine whether the State’s monitor‐
ing program is reasonable—when properly
viewed as a search—and we will not do so in
the first instance.
Id. (parallel citations omitted). Hence, Grady directs us to ex‐
amine whether the search is reasonable by pointing to two
threads of Fourth Amendment case law: searches of individ‐
uals with diminished expectation of privacy, such as parol‐
ees, and “special needs” searches.
20 No. 15‐3225
I believe that Wisconsin’s GPS monitoring program is a
reasonable special needs search. The special needs doctrine
applies to suspicionless searches designed to serve needs be‐
yond the normal need of law enforcement. Vernonia Sch. Dist.
47J v. Acton, 515 U.S. 646, 653 (1995). A program does not
serve a special need when the primary purpose “is to uncov‐
er evidence of ordinary criminal wrongdoing” or “is ulti‐
mately indistinguishable from the general interest in crime
control.” City of Indianapolis v. Edmond, 531 U.S. 32, 42, 44
(2000).
In Green v. Berge, 354 F.3d 675 (7th Cir. 2004), this Court
upheld Wisconsin’s DNA collection law, which permitted the
state to collect and store DNA samples from all prisoners
convicted of felonies. Id. at 676. After examining the Su‐
preme Court’s jurisprudence on special needs searches, we
adopted the view that a program satisfies a special need if
the program “is not undertaken for the investigation of a
specific crime.” Id. at 678. Because the DNA law’s primary
purpose was “not to search for ‘evidence’ of criminal
wrongdoing,” but rather “to obtain reliable proof of a felon’s
identity,” the program satisfied a special need. Id.
Wisconsin’s GPS program is also designed to serve a spe‐
cial need. The program reduces recidivism by letting offend‐
ers know that they are being monitored and creates a reposi‐
tory of information that may aid in detecting or ruling out
involvement in future sex offenses. These goals are not fo‐
cused on obtaining evidence to investigate a particular
crime. Information gathered from this program may, at some
later time, be used as evidence in a criminal prosecution, but
that is not the primary purpose of the program. Indeed, the
No. 15‐3225 21
program is setup to obviate the likelihood of such prosecu‐
tions.
Even if the program does serve a special need, one must
still “undertake a context‐specific inquiry, examining closely
the competing private and public interests advanced by the
parties.” Chandler v. Miller, 520 U.S. 305, 314 (1997). Turning
first to the public interest, in this case, the state’s interest can
hardly be overstated. One of the government’s fundamental
responsibilities is to protect the public. That interest is par‐
ticularly strong when the threat of criminal conduct is so ob‐
viously harmful to juvenile victims, who are innocent and
defenseless. See McKune v. Lile, 536 U.S. 24, 32–33 (2002)
(emphasizing the seriousness of the threat posed by sex of‐
fenders and noting the government’s “vital interest in reha‐
bilitating convicted sex offenders”).
On the other hand, the privacy interest at issue here is al‐
so strong. GPS data allow the government to “reconstruct
someone’s specific movements down to the minute,” gener‐
ating “a wealth of detail about her familial, political, profes‐
sional, religious, and sexual associations.” Riley v. California,
134 S. Ct. 2473, 2490 (2014) (quoting Jones, 565 U.S. at 955
(Sotomayor, J., concurring)). Further, the GPS monitoring
provided under the Wisconsin law occurs constantly, lasts
indefinitely, and is the subject of periodic government scru‐
tiny. Accordingly, this monitoring program is uniquely in‐
trusive, likely more intrusive than any special needs pro‐
gram upheld to date by the Supreme Court. See, e.g., Michi‐
gan Dept. of State Police v. Sitz, 496 U.S. 444 (1990) (sobriety
checkpoints); Skinner v. Railway Labor Executives’ Ass’n, 489
U.S. 602 (1989) (drug testing for railway employees involved
22 No. 15‐3225
in train accidents); New York v. Burger, 482 U.S. 691 (1987)
(administrative inspection of a closely regulated business).
Nevertheless, the weight of this privacy interest is some‐
what reduced by Belleau’s diminished expectation of priva‐
cy. The Supreme Court has established that parolees and
probationers have a diminished expectation of privacy. See
Samson v. California, 547 U.S. 843, 850 (2006); United States v.
Knights, 534 U.S. 112, 119–121 (2001). Because of their status,
parolees and probations may be subject to highly intrusive
searches, including suspicionless searches of their person
and warrantless searches of their homes, at any time. See
Samson, 547 U.S. at 852.
Felons also are expected to forfeit some of their constitu‐
tional rights as result of their status. For example, felons
cannot legally own a firearm and they may be subject to dis‐
enfranchisement. As my colleague Judge Easterbrook has
suggested, a felon’s expectation of privacy lies somewhere
in‐between that of a parolee or probationer and an ordinary
citizen. See Green, 354 F.3d at 680 (Easterbrook, J., concur‐
ring) (“Established criminality may be the basis of legal obli‐
gations that differ from those of the general population.”).
This is clearly true of convicted sex offenders, who are com‐
monly subjected to restrictions beyond that of an ordinary
felon, such as mandatory registration laws and civil com‐
mitment.
As noted above, the special needs balancing inquiry is
context specific. See Skinner, 489 U.S. at 619 (“When faced
with such special needs, we have not hesitated to balance the
governmental and privacy interests to assess the practicality
of the warrant and probable‐cause requirements in the par‐
ticular context.”). Therefore, this inquiry must be sensitive to
No. 15‐3225 23
the particular purpose for which the program is designed in
assessing whether the traditional safeguards of probable
cause and a warrant should apply. Here, the program is de‐
signed to prevent and possibly solve sex offenses in the fu‐
ture. In this scenario, there is no specific crime to give rise to
probable cause, or even reasonable suspicion. Accordingly,
the traditional safeguards of the Fourth Amendment, such as
the warrant requirement, are unworkable.
Given the practical constraints to accomplishing the
state’s purposes, this program is relatively limited in its
scope. Police do not administer the program, or even access
the GPS data unless they have some reason to specifically
request it. Even the Department of Corrections does not re‐
view Belleau’s location in real‐time, but only at the end of
each day. Additionally, the program is narrowly designed
only to track Belleau’s location. It does not infringe on Bel‐
leau’s freedom of movement. Other than wearing the GPS
device at all times and charging it as needed, Belleau may go
where he pleases, when he pleases. In fact, Belleau may even
leave Wisconsin, at which point his GPS monitoring will
terminate.
Therefore, despite the constitutional magnitude of the
privacy interest at stake, the monitoring scheme constitutes a
reasonable special needs search. In my view, it does not vio‐
late the Fourth Amendment.
II.
The Ex Post Facto Clause provides that “No state shall …
pass any … ex post facto Law.” U.S. Const. art. I, § 10, cl. 1.
The Clause prohibits a state from enacting any law “which
imposes a punishment for an act which was not punishable
24 No. 15‐3225
at the time it was committed; or imposes additional punish‐
ment to that then prescribed.” Weaver v. Graham, 450 U.S. 24,
28 (1981) (quoting Cummings v. Missouri, 4 Wall. 277, 325–26,
(1866)). In short, to demonstrate that the monitoring law vio‐
lates the Ex Post Facto Clause, Belleau must show that it im‐
poses a retroactive punishment. See United States v. Leach, 639
F.3d 769, 772 (7th Cir. 2011).
Unquestionably, this law applies retroactively to Belleau.
A law is retroactive if it “changes the legal consequences of
acts completed before its effective date.” Weaver, 450 U.S. at
31. The monitoring law was enacted in 2006 and went into
effect in 2007, however, Belleau committed his crimes in the
1980s, he was convicted in the 1990s, and he completed his
sentence in 2005.
Defendants contend that the law does not apply retroac‐
tively because it was triggered by Belleau’s release from civil
commitment, which occurred in 2010, after the statute went
into effect. Not so. The burden imposed by the law is at‐
tributable to Belleau’s original convictions. Belleau could on‐
ly be placed in civil commitment in the first place because of
his convictions, which occurred years before the monitoring
law was enacted. See Wis. Stat. § 980.01(7) (requiring that a
person subject to civil commitment “has been convicted of a
sexually violent offense ….”). Hence, this law applies retro‐
actively.
Next, accepting retroactivity, one must address whether
the law imposes a punishment. The Supreme Court has es‐
tablished a two‐step framework for making this determina‐
tion. First, did the legislature intended to impose a punish‐
ment. Smith v. Doe, 538 U.S. 84, 92 (2003). “If the intention of
the legislature was to impose punishment, that ends the in‐
No. 15‐3225 25
quiry. If, however, the intention was to enact a regulatory
scheme that is civil and nonpunitive, we must further exam‐
ine whether the statutory scheme is so punitive either in
purpose or effect as to negate [the State’s] intention to deem
it civil.” Id. (internal quotation marks omitted) (alteration in
original).
Belleau contends that the legislature’s intent was puni‐
tive, not regulatory. An intent analysis examines the statute’s
text and structure to determine whether the legislature “in‐
dicated either expressly or impliedly a preference for one
label or the other.” Id. at 93 (internal quotation marks omit‐
ted). The Wisconsin legislature did not explicitly label this
statute as punitive or nonpunitive. Belleau correctly notes
that the Wisconsin Department of Correction, which tradi‐
tionally executes criminal sentences, administers the law. But
the Department of Corrections also administers Wisconsin’s
sex offender registry, which this Court held was not punitive
in Mueller v. Raemisch, 740 F.3d 1128, 1133 (7th Cir. 2014). In
fact, the monitoring statue at issue in this case is codified in
the same chapter as the registration law. See Smith, 538 U.S.
at 94 (“Other formal attributes of a legislative enactment,
such as the manner of its codification … are probative of the
legislature’s intent.”).
The language of the monitoring statute indicates that the
legislature’s objective was to protect children, not punish sex
offenders. See, e.g., Wis. Stat. § 301.48(7)(e) (“The court may
grant a petition filed … if it determines … that the person to
whom the petition relates is permanently physically incapac‐
itated so that he or she is not a danger to the public.” (emphasis
added)). A legislative restriction “incident of the State’s pow‐
er to protect the health and safety of its citizens … evi‐
26 No. 15‐3225
denc[es] an intent to exercise that regulatory power, and not
a purpose to add to the punishment of ex‐felons.” Flemming
v. Nestor, 363 U.S. 603, 616 (1960). Accordingly, I conclude
that the legislature did not intend to impose a punishment.
In any event, Belleau argues that the statute is punitive in
effect. “[O]nly the clearest proof will suffice to override leg‐
islative intent and transform what has been denominated a
civil remedy into a criminal penalty.” Smith, 538 U.S. at 92
(internal quotation marks omitted). In Smith, the Supreme
Court outlined five of the “Mendoza‐Martinez factors,” to de‐
termine the punitive effect of a statute. Id. at 97 (citing Ken‐
nedy v. Mendoza‐Martinez, 372 U.S. 144, 168–69 (1963)). These
factors examine whether, in effect, the regulatory scheme:
“has been regarded in our history and traditions as a pun‐
ishment; imposes an affirmative disability or restraint; pro‐
motes the traditional aims of punishment; has a rational
connection to a nonpunitive purpose; or is excessive with
respect to this purpose.” Id. They are neither exhaustive nor
dispositive, they merely supply useful guideposts. Id.
Taking these factors one by one, first, GPS tracking does
not appear similar to what is generally considered punish‐
ment. As an initial matter, GPS technology is relatively new
and this technology is essential to the operation of the stat‐
ute. For that reason, it is distinguishable from traditional
forms of punishment. Belleau argues that GPS surveillance
resembles forms of state supervision, such as probation, pa‐
role, and supervised release. But these forms of supervision
are quite unlike Wisconsin’s GPS monitoring program. His‐
torically, government supervision has functioned by impos‐
ing restrictions. See id. at 101 (“Probation and supervised re‐
lease entail a series of mandatory conditions and allow the
No. 15‐3225 27
supervising officer to seek the revocation of probation or re‐
lease in case of infraction.”). By contrast, Wisconsin’s law
imposes essentially no such meaningful restrictions.
Belleau also attempts to liken this law to public shaming,
such as branding. As in Smith, “[a]ny initial resemblance to
[these] punishments is, however, misleading.” Id. at 98. The
device is only noticeable in public at times, such as when
Belleau sits down or walks through a metal detector. But
these isolated instances are readily distinguishable from
shaming practices. Early forms of shaming were designed to
be noticeable, even prominent, while the GPS device is de‐
signed to be inconspicuous. The GPS device may “cause ad‐
verse consequences for the convicted defendant, running
from mild personal embarrassment to social ostracism. In
contrast to the colonial shaming punishments, however, the
State does not make the publicity and the resulting stigma
an integral part of the objective of the regulatory scheme.”
Id. at 99.
Second, the law does not impose a significant affirmative
disability or restraint. Here, any disability imposed by the
law is “minor and indirect” and thus the effect is unlikely to
be punitive. Id. at 100. Belleau is required to wear the GPS
device at all times and further, he must charge it by plugging
it into an electrical outlet for roughly one hour per day. The
restraint imposed by these requirements is minimal and in‐
cidental to the law’s actual purpose—tracking Belleau’s
whereabouts. Indeed, as GPS devices become smaller and
batteries last longer, any affirmative restraint imposed by
this law will, over time, become less and less burdensome.
Third, it is undisputed that the law promotes deterrence,
a classic aim of punishment. In fact, deterrence appears to be
28 No. 15‐3225
the primary purpose of the law. However, the fact that it
might deter future crimes is not dispositive. Id. at 102 (“Any
number of governmental programs might deter crime with‐
out imposing punishment.”). Like the sex offender registra‐
tion law at issue in Smith, the monitoring statute is not re‐
tributive because it imposes as little burden as possible on
the offender. See id. Therefore, the law is consistent with a
regulatory objective.
Fourth, the law is rationally related to a nonpunitive
purpose. This factor is perhaps the “[m]ost significant factor
in our determination that the statute’s effects are not puni‐
tive.” Id. (internal quotation marks omitted). As discussed
above, the law’s primary aim is to protect children, not to
punish sex offenders. Id. at 103 (recognizing public safety as
a valid, nonpunitive purpose).
Fifth, the law is not excessive in relation to this nonpuni‐
tive purpose. Belleau laments the lack of any individual tai‐
loring in imposing the GPS requirement; he must wear it
constantly without any possibility of having it removed. But
“[t]he State’s determination to legislate with respect to con‐
victed sex offenders as a class, rather than require individual
determination of their dangerousness, does not make the
statute a punishment under the Ex Post Facto Clause.” Id. at
104.
Further, as Belleau himself acknowledges, pedophilia is
a lifelong affliction for which there is no treatment. And such
sex offenders have a “frightening and high” rate of recidi‐
vism. Id. (internal quotation marks omitted). Coupled with
the particularly devastating consequences of their conduct,
these offenders pose a unique—and perhaps insurmounta‐
ble—challenge for conventional law enforcement techniques.
No. 15‐3225 29
Because “[t]he Ex Post Facto Clause does not preclude a State
from making reasonable categorical judgments that convic‐
tion of specified crimes should entail particular regulatory
consequences,” this program is not excessive in pursuing a
legitimate, nonpunitive purpose. Id. at 103–04.
In sum, an examination of the Mendoza‐Martinez factors
leads me to the conclusion that Wisconsin’s GPS monitoring
scheme is not punitive in purpose or effect. Therefore, in my
judgment, the law in question does not offend the Ex Post
Facto Clause.