IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
)
MARY DOE, JOHN DOE NO. 1, and )
JOHN DOE NO. 2, )
)
Plaintiffs, )
)
v. ) C.A. No. 10983-VCMR
)
ROBERT M. COUPE, solely in his )
official capacity as Commissioner of the )
Delaware Department of Correction, )
)
Defendant. )
OPINION
Date Submitted: May 3, 2016
Date Decided: August 12, 2016
Richard H. Morse and Ryan Tack-Hooper, AMERICAN CIVIL LIBERTIES
UNION FOUNDATION OF DELAWARE, Wilmington, Delaware; Attorneys for
Plaintiffs.
Joseph C. Handlon and Roopa Sabesan, DELAWARE DEPARTMENT OF
JUSTICE, Wilmington, Delaware; Attorneys for Defendant.
In this action, three convicted sex offenders challenge the constitutionality of
a Delaware statute that requires them to wear GPS monitors on their ankles at all
times as a condition of their parole or probation. The plaintiffs are Tier III sex
offenders, which means they were convicted of the sex crimes that the Delaware
General Assembly has deemed among the most serious. The challenged statute—
11 Del. C. § 4121(u) (“Section 4121(u)”)—mandates GPS monitoring of all Tier
III sex offenders granted parole or probation without reference to their individual
risks of recidivism. The plaintiffs claim that Section 4121(u) violates the Fourth
Amendment to and the Ex Post Facto Clause of the United States Constitution, as
well as Article I, § 6 of the Delaware Constitution. The defendant—the
Commissioner of the Delaware Department of Correction, which administers
Delaware’s GPS monitoring program—maintains that Section 4121(u) is valid
under the United States and Delaware Constitutions.
Both parties have moved for summary judgment. For the reasons stated in
this Opinion, I grant the defendant’s motion for summary judgment and deny the
plaintiffs’ motion for summary judgment.
1
I. BACKGROUND1
A. Parties
Plaintiffs John Doe No. 1, John Doe No. 2, and Mary Doe (“Plaintiffs”) are
citizens and residents of Delaware who previously were convicted of and
incarcerated for sex crimes.2 Defendant Robert M. Coupe is the Commissioner of
the Delaware Department of Correction.
B. Facts
1. Plaintiffs are convicted of and incarcerated for sex crimes
In 1979, John Doe No. 1 was convicted of raping a forty-seven year old
woman. He served thirty years in the Sussex Correctional Institution and was
released on parole in 2009. In 1992, Mary Doe was convicted of being an
accomplice to the rape, sodomy, and robbery of a twenty-one year old woman in
New York. She was incarcerated in New York from 1991 until 2010, when she
was released on parole. In 2001, John Doe No. 2 pled guilty to second degree
1
The facts are drawn from the parties’ pleadings and the evidence submitted as
appendices to the parties’ briefs. See Ct. Ch. R. 56(c). Of particular note are the
depositions of John Sebastian, see App. to Pls.’ Opening Br., at P019-53
(“Sebastian Dep.”), and Chrysanti S. Leon, Ph.D., J.D., see App. to Pls.’ Opening
Br., at P076-110 (“Leon Dep.”). Sebastian is the Director of the Department of
Correction’s Probation and Parole section. Leon is Plaintiffs’ expert witness and a
tenured professor in the University of Delaware Department of Sociology and
Criminal Justice, with secondary appointments in the Departments of Women and
Gender Studies and Legal Studies.
2
On April 30, 2015, the Court granted Plaintiffs’ Motion for Leave to File and
Proceed using pseudonyms. See Docket Item (“D.I.”) No. 2.
2
unlawful sexual intercourse. He was released from prison in July 2009 and was
placed on probation.
Despite their heinous crimes, John Doe No. 1 and Mary Doe each have
exhibited signs of successful rehabilitation. According to a deputy warden at the
Sussex Correctional Institution, John Doe No. 1 “made exceptional personal
change and growth during his incarceration at SCI. He has left behind the person
that he was.”3 That same deputy warden also stated that John Doe No. 1 “has
moved on to become the type of man who continually strives to improve himself
and his community, exactly the kind of person every community hopes to count
among its members.”4 Further, the Deputy Attorney General who prosecuted John
Doe No. 1—who now serves as a Delaware Superior Court Judge—wrote that
before meeting with John Doe No. 1, “I had my doubts as to the rehabilitative
prospects of a once violant [sic] offender. Now, I sincerely believe that [John Doe
No. 1] represents a person who is totally, firmly and truly rehabilitated. He is, in
brief, a changed person.”5
While in prison, Mary Doe earned a GED, an Associate Degree, and a
Bachelor’s Degree in sociology. She will receive a Master’s Degree in psychology
3
Compl. ¶ 28.
4
Id.
5
Id. ¶ 29.
3
later this year. Mary Doe lives with her husband and three children and is the
Director of the Mental Health Court Peer Team, assigned to Superior Court Mental
Health Court in Wilmington. According to James Lafferty, the Executive Director
of the Mental Health Association in Delaware, Mary Doe is “a model of a person
who has not only succeeded in recovery but in rehabilitation.”6
2. Plaintiffs are Tier III sex offenders
“In Delaware, after an individual is convicted of or adjudicated delinquent
for any offense enumerated in the statute, the trial court must conduct a hearing at
which the trial judge is required to designate the defendant as a sex offender.”7
The convicted sex offenders then are assigned to one of three Risk Assessment
Tiers of the sex offender registry—under 11 Del. C. § 4121—depending on the
severity of their crime.8
“The sentencing court has no discretion in” assigning a convicted sex
offender to a Risk Assessment Tier.9 Instead, “[t]he statute [11 Del. C. § 4121]
clearly delineates the tier to which a sex offender is to be assigned based on the
particular offense for which that individual was convicted and mandates
6
App. to Pls.’ Opening Br., at P157.
7
Helman v. State, 784 A.2d 1058, 1066 (Del. 2001) (footnotes omitted) (citing 11
Del. C. § 4121(c)).
8
See 11 Del. C. § 4121(c)-(d).
9
Helman, 784 A.2d at 1066.
4
assignment to that Tier level without any regard to the facts or circumstances of the
particular case.”10 Tier III is the most severe of the three Risk Assessment Tiers
and includes, for example, convictions for rape in the first degree, rape in the
second degree, unlawful sexual contact in the first degree, and sexual abuse of a
child under the age of 13.11 At the time they filed their verified complaint (the
“Complaint”), Plaintiffs were assigned to Risk Assessment Tier III.
3. As Tier III sex offenders, Plaintiffs are required to wear
GPS monitors as a condition of parole or probation
Coupe, as Commissioner of the Department of Correction, is responsible for
the oversight, operation, and administration of Delaware’s correctional system,
including the Department’s Probation and Parole (“P&P”) section. P&P administers
Section 4121(u), which requires that “any Tier III sex offender being monitored at
Level IV, III, II or I, shall as a condition of their probation, wear a GPS locator
ankle bracelet paid for by the probationer.”12 Thus, as Tier III sex offenders,
Plaintiffs were subject to Section 4121(u) at the time this action was filed and,
consequently, were required to wear GPS monitors on their ankles.13
10
Id.
11
11 Del. C. § 4121(d)(1).
12
Id. § 4121(u).
13
After Plaintiffs filed their Complaint, John Doe No. 2 was reincarcerated for
violating the terms of his probation. In addition, the New York Board of Parole
5
Although P&P supervises Tier III sex offenders in an individualized
manner,14 it has no discretion in determining whether an individual parolee or
probationer should be subject to GPS monitoring. As Sebastian testified, P&P
administers GPS monitoring for all Tier III sex offenders “because it’s required to
be done and the legislature has determined that it’s appropriate by making that
law.”15 Sebastian further explained that he has “never given great thought to . . .
whether it makes sense or doesn’t make sense or whether we should or shouldn’t
[monitor all Tier III sex offenders using GPS]. It’s a requirement, therefore, we do
it.”16
4. Plaintiffs complain that the GPS monitors cause them
substantial hardship
John Doe No. 1 described the embarrassment that the GPS monitor causes
him and the lengths to which he goes to avoid having to talk with other people
about it. He “wear[s] clothes that will cover the monitor as best [he] can whenever
[he is] outside [his] home in order to reduce the frequency with which people see
discharged Mary Doe from her parole, and she was dismissed from this action.
See Stipulation of Dismissal of Mary Doe, D.I. No. 61. As a result, only John Doe
No. 1 remains subject to GPS monitoring under Section 4121(u).
14
Leon Dep. 27:11-15, 34:14-35:23.
15
Sebastian Dep. 109:17-19.
16
Id. at 110:18-21.
6
the GPS monitor and question why [he is] wearing it.”17 The GPS monitor also
“caused [his] leg to become infected because it was too tightly affixed.”18
Although the infection went away after P&P loosened the GPS monitor, P&P still
had to move the monitor to John Doe No.1’s other leg “because it was injuring the
first leg.”19 Because John Doe No. 1 has to pay “$4.65 per day for the GPS
monitor,” he now has “an outstanding bill in excess of $11,000.”20
John Doe No. 2 also “incurred a debt of more than $11,000 for the
monitor.”21 Further, John Doe No. 2 “was employed by a temporary employment
company performing cleaning services inside a power plant.”22 John Doe No. 2
“was frequently instructed by [his] probation officer . . . to step outside the plant so
that the GPS satellite could pick up the signal from the monitor.” 23 Because of the
17
App. to Pls.’ Opening Br., at P135.
18
Id.
19
Id.
20
Id.
21
Id. at P149.
22
Id.
23
Id.
7
disruption that his frequent trips outside of the power plant caused, John Doe No. 2
“lost that work, and became unemployed.”24
Finally, Mary Doe complained that the GPS monitor on her ankle “rubbed
[her] skin to the point of soreness” and “caused [her] ankle to bruise.”25 Mary Doe
“wore slacks all of the time to work, church and whenever else [she] was out in
public” because she “did not want to deal with the public questioning that results
from having the monitor visible on [her] ankle.”26 The GPS monitor also
negatively impacted Mary Doe’s time with her family. Because Mary Doe was too
embarrassed to wear bathing suits, she was “prevented . . . from swimming with
[her family] on family vacations.”27 In addition to the physical pain and
embarrassment that the GPS monitor caused Mary Doe, she also “had to carry the
charger for the GPS monitor wherever [she] went in order to keep it charged.”28
C. Procedural History
On May 4, 2015, Plaintiffs filed their Complaint against Coupe, solely in his
official capacity as Commissioner of the Department of Correction. The
24
Id.
25
Id. at P152-53.
26
Id. at P153.
27
Id.
28
Id.
8
Complaint seeks a declaration that Section 4121(u) violates the United States and
Delaware Constitutions and an injunction ordering P&P to allow Plaintiffs to
remove their GPS monitors. On June 8, 2015, Coupe filed a motion to dismiss the
Complaint under Court of Chancery Rule 12(b)(1) for lack of subject matter
jurisdiction. Vice Chancellor Parsons issued a letter opinion on July 14, 2015
denying Coupe’s motion to dismiss on the grounds that “this Court does have
subject matter jurisdiction over Plaintiffs’ claims, because those claims truly seek
equitable relief and it is not clear that Plaintiffs could obtain an adequate remedy at
law.”29
On December 22, 2015, Coupe stipulated that he would not “argue that
anything particular or unique to Plaintiffs or anything in their histories (other than
their convictions) justifies that they be monitored” or “that particular
circumstances of the Plaintiffs (other than criminal convictions and concomitant
tiering of Plaintiffs) requires that they be monitored.”30 “After discovery was
completed, counsel notified the Court that they believed there was no dispute of
material fact and requested that the case go forward on cross motions [for summary
29
Doe v. Coupe, 2015 WL 4239484, at *2 (Del. Ch. July 14, 2015).
30
Stipulation & Proposed Order Governing Further Proceedings in this Action, D.I.
No. 55.
9
judgment].”31 The parties filed and briefed their cross motions for summary
judgment and, on May 3, 2016, I heard oral argument on those cross motions. This
Opinion contains my rulings on the parties’ cross motions for summary judgment.
D. Parties’ Contentions
Plaintiffs advance three separate arguments regarding Section 4121(u)’s
alleged invalidity. Plaintiffs claim that they are entitled to summary judgment
under any of those three arguments. First, Plaintiffs contend that Section 4121(u)
violates the Fourth Amendment to the United States Constitution (the “Fourth
Amendment”). As an initial matter, Plaintiffs highlight the United States Supreme
Court decision Grady v. North Carolina, which confirms that GPS monitoring of a
parolee or probationer “effects a Fourth Amendment search.”32 Plaintiffs then
point out that a search’s constitutionality under the Fourth Amendment is measured
by its reasonableness; if a search is unreasonable, then it is unconstitutional.
According to Plaintiffs, Section 4121(u) is unreasonable because its GPS
monitoring requirement significantly intrudes upon Plaintiffs’ privacy, and that
31
Pls.’ Opening Br. 2.
32
135 S.Ct. 1368, 1371 (2015).
10
intrusion is not outweighed by Section 4121(u)’s efficacy in satisfying the
government’s purported interest in avoiding recidivism by Tier III sex offenders.33
Second, Plaintiffs argue that Section 4121(u) violates Article I, § 6 of the
Delaware Constitution (“Article I, § 6”). Plaintiffs read relevant Delaware
Supreme Court precedent as indicating that Article I, § 6 “provides broader search
and seizure protections than the Fourth Amendment.”34 In particular, Plaintiffs
highlight cases that require an objective and particularized basis for suspecting
wrongdoing—i.e., reasonable suspicion—before performing a warrantless search
of a parolee or probationer.35 As such, Plaintiffs contend that because Section
4121(u) mandates GPS monitoring for all Tier III sex offenders without reference
to any individualized assessment, it violates Article I, § 6.
Third, and finally, Plaintiffs assert that Section 4121(u) violates the United
States Constitution’s Ex Post Facto Clause (the “Ex Post Facto Clause”).
Plaintiffs acknowledge that the Delaware Supreme Court, in Hassett v. State,
33
See, e.g., Pls.’ Answering Br. 10 (“The absence of any governmental interest in
focusing on people who do not pose a risk instead on those who do, together with
the intrusiveness of the GPS searches, renders §4121(u) invalid under the Fourth
Amendment.”).
34
Id. at 20.
35
Id. at 20-27 (citing Shepeard v. State, 133 A.3d 204, 2016 WL 690544, at *2 (Del.
Feb. 18, 2016) (TABLE); Murray v. State, 45 A.3d 670, 678 (Del. 2012); Sierra v.
State, 958 A.2d 825, 828 (Del. 2008); Donald v. State, 903 A.2d 315, 319 (Del.
2006)).
11
already has held that “the retroactive application of Section 4121(u) requiring
registered Tier III sex offenders to wear GPS monitoring bracelets while on
supervision at Levels IV–I does not implicate the ex post facto clause because the
statute is intended for public safety and is not punitive in nature.”36 Plaintiffs,
therefore, “[r]ecogniz[e] that [Hassett] binds this Court” and “address the [Ex Post
Facto Clause] question in [their] brief[s] in order to preserve the issue for
appeal.”37 “Plaintiffs also request that this Court address the Ex Post Facto claim,
so that the [Delaware] Supreme Court will have the benefit of this Court’s analysis
if an appeal is necessary.”38
Coupe agrees that GPS monitoring constitutes a “search” under the United
States and Delaware Constitutions. Coupe disagrees, however, that Section
4121(u) is violative of the Fourth Amendment, Article I, § 6, or the Ex Post Facto
Clause. As to the Fourth Amendment, Coupe argues that GPS monitoring under
Section 4121(u) is reasonable because parolees and probationers have diminished
expectations of privacy, and the Delaware government’s interest in avoiding
recidivism by Tier III sex offenders outweighs those diminished privacy
expectations. As to Article I, § 6, Coupe disputes Plaintiffs’ contention that the
36
12 A.3d 1154, 2011 WL 446561, at *1 (Del. Feb. 8, 2011) (TABLE).
37
Pls.’ Opening Br. 28.
38
Pls.’ Answering Br. 23.
12
Delaware Constitution imposes a “heightened standard of reasonableness” for
searches of parolees and probationers.39 Coupe maintains that individualized
findings as to each Tier III sex offender are unnecessary and contends that if a
search is reasonable under the Fourth Amendment, then it passes muster under
Article I, § 6 as well. And, as to the Ex Post Facto Clause, Coupe simply notes
that “this Court is bound by the Delaware Supreme Court’s decision in Hassett v.
State.”40 Thus, Coupe claims that he is entitled to summary judgment.
II. ANALYSIS
A. Standard of Review
“Summary judgment is granted if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.”41 On a motion for summary judgment, “the court
must view the evidence in the light most favorable to the non-moving party.”42
Under Court of Chancery Rule 56(h),
39
Def.’s Answering Br. 24.
40
Id. at 43 (citing 12 A.3d 1154, 2011 WL 446561).
41
Twin Bridges Ltd. P’ship v. Draper, 2007 WL 2744609, at *8 (Del. Ch. Sept. 14,
2007) (citing Ct. Ch. R. 56(c)).
42
Merrill v. Crothall-American, Inc., 606 A.2d 96, 99 (Del. 1992) (citing Adickes v.
S. H. Kress & Co., 398 U.S. 144, 157 (1970)).
13
[w]here the parties have filed cross motions for summary
judgment and have not presented argument to the Court
that there is an issue of fact material to the disposition of
either motion, the Court shall deem the motions to be the
equivalent of a stipulation for decision on the merits
based on the record submitted with the motions.43
In such situations, “the usual standard of drawing inferences in favor of the
nonmoving party does not apply.”44 Because the parties have not presented any
disputes of material fact, I treat their cross motions as a stipulation for decision on
the merits on the record submitted.45
B. Section 4121(u) Does Not Violate the Fourth Amendment
1. Legal standard for reasonableness under the Fourth
Amendment
GPS monitoring of Plaintiffs pursuant to Section 4121(u) is a Fourth
Amendment search.46 “The Fourth Amendment prohibits
only unreasonable searches.”47 Although “a search ordinarily must be based on
individualized suspicion of wrongdoing”48 and law enforcement officials generally
43
Ct. Ch. R. 56(h).
44
See Am. Legacy Found. v. Lorillard Tobacco Co., 886 A.2d 1, 18 (Del. Ch. 2005)
(citing Ct. Ch. R. 56(h)), aff’d, 903 A.2d 728 (Del. 2006).
45
Id.
46
Grady, 135 S.Ct. at 1370.
47
Id. at 1371.
48
Chandler v. Miller, 520 U.S. 305, 313 (1997).
14
are required to show “probable cause” before obtaining a judicial warrant to search
for evidence of criminal wrongdoing, “[a] search unsupported by probable cause
can be constitutional . . . ‘when special needs, beyond the normal need for law
enforcement, make the warrant and probable-cause requirement impracticable.’”49
In Griffin v. Wisconsin, the United States Supreme Court held that ‘[a] State’s
operation of a probation system, like its operation of a school, government office
or prison, or its supervision of a regulated industry, likewise presents
‘special needs’ beyond normal law enforcement that may justify departures from
the usual warrant and probable-cause requirements.”50 “When the subjects of
searches are probationers and parolees, . . . the Fourth Amendment suppl[ies] a
relaxed standard for reasonableness because of the special needs of parole and
probation supervision.”51
In Vernonia School District 47J v. Acton,52 the United States Supreme Court
articulated the three factor “special needs” test that applies to suspicionless
searches under the Fourth Amendment. “The first factor to be considered is the
49
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995) (quoting Griffin v.
Wisconsin, 483 U.S. 868, 873 (1987)).
50
483 U.S. at 873-74.
51
Pls.’ Opening Br. 21; accord Def.’s Answering Br. 13; see also Donald, 903 A.2d
at 318-19.
52
515 U.S. 646.
15
nature of the privacy interest upon which the search here at issue intrudes.”53 The
second factor is “the character of the intrusion that is complained of.”54 The third
factor is “the nature and immediacy of the governmental concern at issue [in the
case], and the efficacy of [the disputed] means for meeting it.”55 Evaluating those
three factors requires “a context-specific inquiry, examining closely the competing
private and public interests advanced by the parties,”56 and a court must consider
“the totality of the circumstances.”57
Finally, when making a facial challenge to a statute under the Fourth
Amendment, as Plaintiffs do here,58 “a plaintiff must establish that a ‘law is
unconstitutional in all of its applications.’”59 Such a challenge, therefore, is “the
most difficult challenge to mount successfully.”60
53
Id. at 654.
54
Id. at 658.
55
Id. at 660.
56
Chandler, 520 U.S. at 313.
57
Grady, 135 S.Ct. at 1371.
58
Oral Arg. Tr. 19 (Plaintiffs’ counsel agreeing that Plaintiffs’ challenge to Section
4121(u) is a facial challenge).
59
City of Los Angeles v. Patel, 135 S.Ct. 2443, 2451 (2015) (citing Washington State
Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008)).
60
U.S. v. Salerno, 481 U.S. 739, 745 (1987).
16
2. Section 4121(u) is reasonable under the Fourth Amendment
I address each of the three factors of the Vernonia special needs test in turn
to evaluate whether Section 4121(u) is reasonable under the Fourth Amendment.
Plaintiffs’ “status as [parolees and probationers] subject to a search condition
informs” each of the three factors of the “special needs” test of Section 4121(u)’s
reasonableness.61
a. The nature of Plaintiffs’ privacy interest
As to the first Vernonia factor, “[t]he Fourth Amendment does not protect all
subjective expectations of privacy, but only those that society recognizes as
‘legitimate.’”62 Probationers who agree to warrantless searches as a condition of
their probation have “significantly diminished . . . reasonable expectation[s] of
privacy.”63 Further, “parolees have [even] fewer expectations of privacy than
probationers, because parole is more akin to imprisonment than probation is to
imprisonment.”64 In U.S. v. Knights and Samson v. California, probationers and
parolees accepted warrantless and suspicionless search requirements as conditions
61
U.S. v. Knights, 534 U.S. 112, 119 (2001).
62
Vernonia, 515 U.S. at 654.
63
Knights, 534 U.S. at 119-20.
64
Samson v. California, 547 U.S. 843, 850 (2006).
17
of their probation or parole.65 In those cases, the Court found it “salient” that the
probationers and parolees were “unambiguously aware” of the warrantless and
suspicionless search requirements as a condition of their probation or parole.66 The
Court concluded, therefore, that those probationers and parolees “did not have an
expectation of privacy that society would recognize as legitimate.”67
Similarly, Plaintiffs voluntarily accepted Section 4121(u)’s GPS monitoring
requirement as a condition of their probation or parole to avoid further prison time.
And, Plaintiffs cannot seriously contend that they were unaware that their locations
were being tracked because the GPS monitors were physically attached to their
ankles. Thus, “[e]xamining the totality of the circumstances pertaining to
[Plaintiffs’] status as [parolees and probationers], ‘an established variation on
imprisonment,’ . . . [Plaintiffs] [do] not have an expectation of privacy that society
would recognize as legitimate.”68
b. The character of Section 4121(u)’s privacy intrusion
As to the second Vernonia factor, I recognize that GPS monitoring
necessarily intrudes upon an individual’s privacy. Plaintiffs describe the physical
65
See Samson, 547 U.S. at 852; Knights, 534 U.S. at 119.
66
Samson, 547 U.S. at 852; Knights, 534 U.S. at 119.
67
Samson, 547 U.S. at 852; accord Knights, 534 U.S. at 119-20.
68
Samson, 547 U.S. 852.
18
burdens, the embarrassment and shame, and the occupational inconvenience that
they have experienced as a result of wearing the GPS monitors on their ankles.
And, in State v. Holden, the Superior Court noted the extent to which continuous
GPS monitoring can intrude upon an individual’s privacy:
The whole of a person’s progress through the world, into
both public and private spatial spheres, can be charted
and recorded over lengthy periods possibl[y] limited only
by the need to change the transmitting unit’s batteries.
Disclosed in the data retrieved from the transmitting unit,
nearly instantaneously with the press of a button on the
highly portable receiving unit, will be trips the
indisputably private nature of which takes little
imagination to conjure: trips to the psychiatrist, the
plastic surgeon, the abortion clinic, the AIDS treatment
center, the strip club, the criminal defense attorney, the
by-the-hour motel, the union meeting, the mosque,
synagogue, or church, the gay bar and on and on. What
the technology yields and records with breathtaking
quality and quantity is a highly detailed profile, not
simply of where we go, but by easy inference, of our
associations-political, religious, amicable and amorous,
to name a few-and of the pattern of our professional and
advocational pursuits.69
That said, however, while I do recognize that Section 4121(u)’s GPS monitoring
requirement limits Plaintiffs’ privacy, I also recognize that, undoubtedly, “[h]aving
69
54 A.3d 1123, 1130 (Del. Super. 2010) (quoting People v. Weaver, 909 N.E.2d
1195, 1199-1200 (N.Y. 2009)).
19
to wear a GPS anklet monitor is less restrictive, and less invasive of privacy, than
being in jail or prison.”70
Further, in evaluating the character of a search’s intrusion upon an
individual’s privacy, “[t]he focus must . . . be on the incremental effect of the
challenged statute on the plaintiff’s privacy.”71 P&P does not track Plaintiffs while
they are inside their own homes.72 The GPS monitor is “[w]aterproof to 15 feet,”73
so Plaintiffs can bathe and swim while it is on their ankles. To the extent that
Plaintiffs are embarrassed by or ashamed of their GPS monitors,74 their status as
Tier III sex offenders already requires them to notify the community of their
criminal history.75 Such notification “may include door-to-door appearances, mail,
telephone, newspapers or notices to schools and licensed day care facilities within
the community, or any combination thereof,” and “may also include a photograph
of the offender.”76 A Tier III sex offender also must publicly register as a sex
70
Belleau v. Wall, 811 F.3d 929, 932 (7th Cir. 2016).
71
Id. at 934-35.
72
Sebastian Dep. 56:15-24.
73
App. to Def.’s Opening Br., at D111.
74
Pls.’ Opening Br. 14 (“Like a modern day Scarlett Letter, they embarrass the
wearer and his or her family. When a pants leg raises, the casual observer can see
the device and know that the wearer is being surveilled by the authorities.”).
75
See Helman, 784 A.2d at 1066-67.
20
offender and is subject to the registration and community notification requirements
“for the remainder of his or her life.”77 The incremental imposition into Plaintiffs’
privacy caused by Section 4121(u)’s GPS monitoring requirement, therefore, is not
unduly burdensome.
c. The nature and immediacy of Delaware’s
governmental concern and Section 4121(u)’s efficacy
for meeting it
Finally, as to the third Vernonia factor, Plaintiffs do not dispute that the
Delaware state government has a legitimate interest in avoiding recidivism by sex
offenders. Instead, Plaintiffs contend that Section 4121(u)’s mandated GPS
monitoring of all Tier III sex offenders—without reference to the actual risk posed
by any individual sex offender—is not an efficacious means by which to satisfy
that interest.78 To support that position, Plaintiffs rely heavily on Leon’s testimony
and expert report. Leon testified that, generally, “sex offenders have a low rate of
recidivism compared to other offenders.”79 According to Leon’s expert report,
“[t]he only peer-reviewed empirical study to date of GPS surveillance of registered
76
11 Del. C. § 4121(a)(1).
77
Helman, 784 A.2d at 1067 (citing 11 Del. C. § 4121(f)(1)).
78
Pls.’ Opening Br. 23 (“In this case, the governmental interest in preventing future
sex offenses is great, but the efficacy of the monitoring scheme required by §
4121(u) for that purpose is non-existent, as the undisputed facts make clear.”).
79
Leon Dep. 37:14-17.
21
sex offenders finds that those under GPS surveillance in California were less likely
to be charged with failing to register or absconding, but finds no evidence that GPS
surveillance reduces any form of sexual offending.”80 Leon’s expert report also
states that “[n]o research connects failure to register with future sexual
offending.”81 As to Section 4121(u)’s blanket GPS monitoring mandate for all
Tier III sex offenders, Leon testified that “the tiers do not accurately represent . . .
people’s risks for new sexual offending, and we can come closer to an accurate
prediction of who is going to commit a new sexual offense by using risk
assessment tools.”82 In other words, Leon posits that “[t]he best approach to
promote public safety is to make sure we focus our resources on the people who
present the highest risk” based on individualized assessments as opposed to
focusing solely on Risk Assessment Tiers.83
Plaintiffs also highlight portions of Sebastian’s testimony, in which he
conceded that he has “never given great thought to . . . whether” Section 4121(u)’s
GPS monitoring requirement for all Tier III sex offenders “makes sense or doesn’t
80
App. to Pls.’ Opening Br., at P124 (citing Susan Turner et al., Does GPS Improve
Recidivism among High Risk Sex Offenders? Outcomes for California’s GPS
Pilot for High Risk Sex Offender Parolees, 10 Victims & Offenders 1, 6 (2015)).
81
Id. at P125.
82
Leon Dep. 107:1-11.
83
Id. at 38:1-9.
22
make sense or whether [P&P] should or shouldn’t” be monitoring all Tier III sex
offenders.84 And, Plaintiffs point out that as of January 2014, P&P was monitoring
855 sex offenders. Of those 855 sex offenders, 217 were subject to GPS
monitoring and only sixty were designated as “high risk” according to an
assessment performed by one of P&P’s consultants.85
Although Coupe quibbles with certain of Plaintiffs’ statistics regarding sex
offender recidivism rates,86 I need not resolve the parties’ dispute as to that issue.
The facts that sex offenders may recidivate at a lower rate than other criminals and
that P&P would reduce overall recidivism more effectively by focusing on higher
risk individuals are not dispositive as to whether Section 4121(u)’s GPS
monitoring requirement is reasonable. Here, the record indicates that Section
4121(u)’s GPS monitoring requirement has at least some benefits in terms of
reducing the rate of or mitigating the harm from recidivism by Tier III sex
offenders.87 Even if sex offenders do recidivate at a lower rate than other
84
Sebastian Dep. 110:18-20.
85
App. to Pls.’ Opening Br., at P60-61; Sebastian Dep. 74:1-20, 91:17, 96:4-97:20.
86
See, e.g., Def.’s Answering Br. 19 (“The State’s interest to reduce this [recidivism]
risk is even more critical for sex offenses, which, as research shows, are four
times as likely to be committed by sex offenders than by other probationers and
parolees.”).
87
See generally Griffin, 483 U.S. at 882 (“Supervision also provides a crucial means
of advancing rehabilitation by allowing a probation agent to intervene at the first
23
criminals, the Delaware General Assembly reasonably may view sex crimes as
more detrimental to public safety than other crimes and “could also have
concluded that any sex offender recidivism is more egregious than recidivism of
other crimes.”88 And, because even the most advanced risk assessment metrics
sign of trouble.”); Belleau, 811 F.3d at 935 (noting that the purpose of
Wisconsin’s GPS monitoring program for convicted sex offenders is 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”). As noted above, Leon testified that an empirical
study of California’s GPS surveillance of registered sex offenders found no
evidence that such surveillance reduced sexual offenses. See supra note 80 and
accompanying text. As Coupe notes, however, one of the sources that Leon cites
in her expert report also studied California’s GPS surveillance program and
concluded that “subjects in the GPS group demonstrate significantly better
outcomes for both compliance and recidivism.” STEPHEN V. GIES ET AL., U.S.
DEP’T OF JUSTICE, MONITORING HIGH-RISK SEX OFFENDERS WITH GPS
TECHNOLOGY: AN EVALUATION OF THE CALIFORNIA SUPERVISION PROGRAM
FINAL REPORT vii (2012); see also Belleau, 811 F.3d at 936 (“A study of similar
GPS monitoring of parolees in California found that they were half as likely as
traditional parolees to be arrested for or convicted of a new sex offense.” (citing
GIES ET AL., supra, at 3-11, 3-13)). Further, as to Delaware’s GPS monitoring
program under Section 4121(u), Sebastian testified that “it’s a means of deterrence
that would keep the offenders from committing a new offense if they know
someone is watching.” Sebastian Dep. 47:11-16. Sebastian also described one
specific instance in which P&P utilized the GPS monitor to discover that a Tier III
sex offender was violating the terms of his parole or probation. See Sebastian
Dep. 47:18-48:9 (“There is one case where I’m aware of an offender was located
using WIFI in a parking lot and they’re prohibited from having a computer device
and they were located by the officers. The offender was located with his zipper
down, computer out and reviewing porn. Sex offender on GPS and they found
him using the GPS system. . . . By reviewing the mapping information, monitoring
information, they noticed he was going to McDonald’s on a routine basis and
spending a large portion of time there. So, they went to do surveillance and see
why he was there.”).
88
Def.’s Answering Br. 21.
24
have subjective components,89 the General Assembly validly exercised its
legislative discretion in using the severity of a sex offender’s crime as a proxy for
that individual’s future risk to society, even if P&P would more effectively reduce
sex offender recidivism by deciding whether to use GPS monitors based on
individual risk assessments.90 “Plaintiffs cite no authority for their assertion that
89
See Leon Dep. 123:24-124:6-17 (agreeing that risk assessment scores are
subjective and imperfect estimates of an individual’s threat to society).
90
See Helman, 784 A.2d at 1068 (acknowledging that acts of the Delaware General
Assembly enjoy a “presumption of constitutionality” and that courts reviewing the
constitutionality of a statute should defer “to legislative judgment in matters ‘fairly
debatable’” (quoting Wilm. Med. Ctr., Inc. v. Bradford, 382 A.2d 1338, 1342 (Del.
1978)) (citing New Castle Cty. Council v. State, 688 A.2d 888, 891 (Del. 1996))).
In Helman v. State, the Delaware Supreme Court upheld the constitutionality of
Delaware’s Sex Offender Registration against a challenge by a juvenile sex
offender. In so ruling, the Delaware Supreme Court directly addressed the
Delaware General Assembly’s choice to impose post-conviction requirements on
sex offenders based on the severity of their offense:
The General Assembly enacted the Sex Offender Registration
Statute in an effort to protect society from both the adult and
the youthful sex offender. We recognize that sexual offenses
encompass a range of very different kinds of conduct
implying varying degrees of seriousness and that recidivism
rates may change significantly depending on the offender's
circumstances. The Delaware General Assembly chose to
condition application of the statute on the seriousness of the
offense committed. Whether application of the statute should
be contingent upon the juvenile’s age, or whether age is a
factor in determining tier assignment is essentially a policy
determination best left to the legislature.
Id. at 1079. Similarly, deciding whether to impose a post-incarceration GPS
monitoring requirement on probationers and parolees based on the severity of their
offense—as opposed to based on an individual risk assessment—“is essentially a
policy determination best left to the legislature.” Id.
25
recidivism can only be reduced through individualized assessments, or that the
State is required to use the least intrusive means in accomplishing it.”91 On the
contrary, the United States Supreme Court has “repeatedly refused to declare that
only the ‘least intrusive’ search practicable can be reasonable under the Fourth
Amendment.”92 Hence, the threat of Section 4121(u) being overly inclusive—
thereby subjecting to GPS monitoring certain Tier III sex offenders who, like John
Doe No. 1 and Mary Doe, have exhibited signs of rehabilitation—does not render
it unreasonable.
d. Balancing Vernonia’s three factors
I concluded above that (1) Plaintiffs do not have a legitimate privacy interest
that suffices to shield them from GPS monitoring, (2) the incremental infringement
on Plaintiffs’ privacy imposed by Section 4121(u)’s GPS monitoring requirement
is not unduly burdensome, and (3) Section 4121(u) is relatively efficacious in
advancing the Delaware government’s legitimate interest in reducing sex offender
recidivism. Taking all of those conclusions into account, I hold that the Delaware
government’s legitimate interest and chosen means for advancing that interest—
i.e., GPS monitoring under Section 4121(u)—outweigh Plaintiffs’ interest in
91
Def.’s Answering Br. 22.
92
Vernonia, 515 U.S. at 663 (citing Skinner v. Railway Labor Execs.’ Ass’n, 489
U.S. 602, 629 n.9 (1989)).
26
avoiding a relatively slight intrusion into their diminished privacy. Plaintiffs,
therefore, have failed to demonstrate that Section 4121(u) “is unconstitutional in
all of its applications.”93 Consequently, Coupe is entitled to summary judgment as
to Section 4121(u)’s reasonableness under the Fourth Amendment.
C. Section 4121(u) Does Not Violate Article I, § 6
Having concluded that Section 4121(u) does not violate the Fourth
Amendment, I must determine whether Section 4121(u) violates Article I, § 6. The
threshold determination that I must make is whether Article I, § 6 provides greater
protection against searches than does the Fourth Amendment. If it does not, then
my conclusion as to Section 4121(u)’s constitutionality under the Fourth
Amendment applies to Article I, § 6 with equal force.
As I noted above, Plaintiffs interpret a series of Delaware Supreme Court
decisions as indicating that the Delaware Constitution requires an objective and
particularized basis for suspecting wrongdoing—i.e., reasonable suspicion—before
performing any warrantless search of a parolee or probationer.94 This is in contrast
to the series of United States Supreme Court decisions that explicitly have found
suspicionless searches constitutional under the Fourth Amendment when certain
93
Patel, 135 S.Ct. at 2451.
94
See supra note 35 and accompanying text.
27
“special needs” are present.95 Upon reviewing those Delaware Supreme Court
decisions, I disagree with Plaintiffs’ interpretation.
In each of the four cases that Plaintiffs cite, the challenged search was a
warrantless, administrative search of a probationer’s home or vehicle conducted
pursuant to the Delaware Department of Correction’s regulations, specifically
Probation and Parole Procedure 7.19 (“P&P Procedure 7.19”).96 P&P Procedure
7.19 requires that a probation officer have “reasonable suspicion” before
conducting a search of a probationer’s residence.97 It makes sense, therefore, that
even if a probationer agrees to warrantless, administrative searches under P&P
Procedure 7.19 as a condition of probation, those warrantless administrative
searches cannot be made without reasonable suspicion because P&P Procedure
7.19 explicitly requires such reasonable suspicion.98 Hence, although each of the
95
See supra Section II.B.1.
96
See Shepeard, 133 A.3d 204, 2016 WL 690544, at *1; Murray, 45 A.3d at 678;
Sierra, 958 A.2d at 832-33; Donald, 903 A.2d at 318-19.
97
Culver v. State, 956 A.2d 5, 15 (Del. 2008) (“Without reasonable suspicion
determined in compliance with their duties under Procedure 7.19, the unlawfully
seized evidence and the gun and Culver's oral statement inextricably linked to the
seizure of the gun should have been suppressed.”).
98
Both Knights and Samson support this position, as the constitutionality of the
warrantless and suspicionless searches at issue in those decisions hinged, in part,
on the Court’s finding that the plaintiffs had clear notice that their probation and
parole were conditioned on such searches. See Samson, 547 U.S. at 852 (“[A]s we
found ‘salient’ in Knights with respect to the probation search condition, the
parole search condition under California law—requiring inmates who opt for
28
four decisions admittedly do state that “reasonable suspicion” is required for a
warrantless search, the contexts in which those statements are made indicate that
such a rule is limited to administrative searches of probationers’ residences and
vehicles pursuant to P&P Procedure 7.19. Plaintiffs fail to offer any basis on
which I may extend that rule to the suspicionless searches that Plaintiffs agreed to
as a condition of their parole or probation under Section 4121(u).
Further, three of the four cases that Plaintiffs cite do not even mention
Article I, § 6. Instead, each of those cases addresses only the Fourth Amendment
and P&P Procedure 7.19.99 The fourth case, Donald, only mentions Article I, § 6
in the context of equating the Delaware Constitution’s protections against searches
to the United States Constitution’s.100 It is unreasonable to infer that the Delaware
parole to submit to suspicionless searches by a parole officer or other peace officer
‘at any time,’—was ‘clearly expressed’ to petitioner. He signed an order
submitting to the condition and thus was ‘unambiguously’ aware of it.
In Knights, we found that acceptance of a clear and unambiguous search condition
“significantly diminished Knights’ reasonable expectation of privacy.” (citations
omitted) (quoting Knights, 534 U.S. at 119)). Similarly, individuals that agree to
warrantless, administrative searches under P&P Procedure 7.19 are on clear notice
that their residences can be searched without probable cause. They are not on
clear notice, however, as to the fact that their residences can be searched without
reasonable suspicion.
99
See Shepeard, 133 A.3d 204, 2016 WL 690544, at *2; Murray, 45 A.3d at 678;
Sierra, 958 A.2d at 832-33.
100
Donald, 903 A.2d at 318 & n.6 (“Both the United States and Delaware
constitutions protect ordinary citizens from unreasonable searches and seizures.
. . . We previously summarized the protections afforded by the federal and
Delaware Constitutions against unreasonable searches in Scott v. State . . . .”).
29
Supreme Court, through those decisions, intended to broaden the Delaware
Constitution’s protection against searches beyond the scope of the Fourth
Amendment either without even mentioning Article I, § 6 or by equating it directly
to the Fourth Amendment.101 Thus, because Article I, § 6 does not provide broader
search protections than the Fourth Amendment and because I concluded that
Section 4121(u) does not violate the Fourth Amendment, Coupe is entitled to
summary judgment as to Section 4121(u)’s validity under Article I, § 6.
D. Section 4121(u) Does Not Violate the Ex Post Facto Clause
As I noted above, in Hassett, the Delaware Supreme Court held “that the
retroactive application of Section 4121(u) requiring registered Tier III sex
offenders to wear GPS monitoring bracelets while on supervision at Levels IV–I
does not implicate the ex post facto clause because the statute is intended for
public safety and is not punitive in nature.”102 Although Plaintiffs point out that
“[o]ther courts that have addressed the issue have concluded that GPS monitoring
101
Indeed, in Dorsey v. State and Jones v. State, the Delaware Supreme demonstrated
that when it intends to expand the Delaware Constitution’s protections against
searches and seizures beyond the scope of the Fourth Amend, it does so explicitly,
with clear references to Article I, § 6. See Dorsey, 761 A.2d 807, 814-821 (Del.
2000) (performing a “comprehensive scholarly account of the historical
differences in the search and seizure provisions in the Delaware and United States
Constitution” to conclude that the Delaware Constitution provides greater
protections against searches and seizures in certain situations); Jones, 745 A.2d
856, 860-69 (Del. 1999).
102
12 A.3d 1154, 2011 WL 446561, at *1.
30
requirements do implicate the ex post facto clause,”103 I decline to consider that
issue because I am bound by the Delaware Supreme Court’s ruling in Hassett.
Coupe, therefore, is entitled to summary judgment on this issue.
III. CONCLUSION
For the foregoing reasons, Coupe’s motion for summary judgment is granted
and Plaintiffs’ motion is denied.
IT IS SO ORDERED.
103
Pls.’ Opening Br. 28 (citing Riley v. New Jersey State Parole Bd., 98 A.3d 544,
560 (N.J. 2014); Commonwealth v. Cory, 911 N.E.2d 187, 197 (Mass. 2009)).
31