The Probationer, the Free Man, and the Fourth Amendment: Constitutional Protections for Those Who Have Served Their Sentences and Those Who Have Not

• Publication year: 2020

The Probationer, the Free Man, and the Fourth Amendment: Constitutional Protections for Those Who Have Served Their Sentences and Those Who Have Not

Rachel Ness-Maddox

[Page 1247]

The Probationer, the Free Man, and the Fourth Amendment: Constitutional Protections for Those Who Have Served Their Sentences and Those Who Have Not^*

by Rachel Ness-Maddox

I. Introduction

In Park v. State,¹ the Georgia Supreme Court evaluated whether persons convicted of sexual offenses and subsequently classified as "sexually dangerous predator[s]" may be required to wear Global Positioning System (GPS) tracking devices after serving their full sentences, including fulfilling probation or parole requirements.² The court held that, under the Fourth Amendment of the United States Constitution,³ such a requirement is invalid because it infringes on the right free people have against unreasonable searches and seizures executed by the state—no matter the crimes for which they were convicted or their status as registered sex offenders.⁴ However, the court made clear that this holding only applies to individuals who have

[Page 1248]

served their full sentences—nothing in the majority opinion indicated that individuals on probation or parole may not be subjected to long-term (or even lifelong) tracking requirements, and the concurring opinion specifically endorsed that punishment.⁵

The holding in this case is significant for three primary reasons. First, the court ruled that O.C.G.A. § 42-1-14(e)⁶ is unconstitutional to the extent that it permits tracking individuals who have already served their sentences.⁷ Through this holding, the court drew a line in the sand over which the state cannot step to continue punishing persons who have finished their official sentences, ensuring that even those convicted of the most serious offenses are entitled to constitutional protections. Second, through Park, the state of Georgia joined a national discussion of Fourth Amendment protections regarding the long-term GPS tracking of people at various stages of parole, probation, and freedom. Finally, despite these developments, the majority opinion implies,⁸ and the concurrence assures, that the General Assembly is welcome to make minor changes to O.C.G.A. § 42-1-14(e) to ensure the constitutionality of what amounts to the same form of punishment under a different name.⁹

II. Factual Background

In 2003, a jury convicted Joseph Park of ten counts of sexual crimes—one count of child molestation and several counts of sexually exploiting a minor. He was sentenced to serve eight years of a twelve-year prison sentence and was released from custody in 2011.¹⁰ Following the guidelines in O.C.G.A. § 42-1-14,¹¹ the Sexual Offender

[Page 1249]

Registration Review Board (SORRB) reviewed Park's case and classified him as a "sexually dangerous predator" under the same statute.¹² Under O.C.G.A. § 42-1-14(e), any convicted person classified as a sexually dangerous predator was required to wear an "electronic monitoring system . . . for the remainder of his or her natural life."¹³ Such persons were also required to "pay the cost of such system" while on probation, parole, and after fully serving any sentence.¹⁴

After receiving his classification, Park requested that SORRB reevaluate his case; SORRB complied but upheld his classification. His failed reevaluation was the first step of several administrative requirements to attempt to upend his classification.¹⁵ Next, in compliance with O.C.G.A. § 42-1-14(c),¹⁶ Park "sought judicial review of the agency decision," claiming that his classification and the accompanying tracking monitor requirement violated his due process rights and constituted ex post facto punishment.¹⁷ The Fulton County Superior Court upheld his classification, so Park made a discretionary appeal to the Georgia Supreme Court, which denied it. The supreme court's denial of his appeal left him to live with the superior court's ruling, and he remained classified as a sexually dangerous predator.¹⁸ From that point forward, Park was "required to wear a GPS monitoring device for the rest of his life."¹⁹

Park violated his parole later that year and returned to prison. After serving this new sentence, he was released from prison in 2015, and he again registered as a sex offender. In early 2016, police believed that Park tampered with his ankle monitor, and he was arrested and indicted for that offense.²⁰

At that point, Park filed a general demurrer and argued that O.C.G.A.§ 42-1-14, the validity of which was necessary for his prosecution for tampering with his ankle monitor, was unconstitutional both in its classification requirements and its requirement that sexually dangerous predators wear GPS devices after serving their sentences. The trial court found the statute constitutional and, in 2017, overruled

[Page 1250]

Park's demurrer. The court did grant his certificate of immediate review, however, and the Georgia Supreme Court granted his application for interlocutory appeal to determine the constitutionality of O.C.G.A. § 42-1-14(e).²¹

At that point, Park brought multiple claims against the statute's constitutionality, but the supreme court only addressed its validity under the Fourth Amendment, as his claims regarding due process and ex post facto punishment were barred by res judicata as a result of his other appeals.²² Based solely on Park's Fourth Amendment claim, the supreme court determined that O.C.G.A. § 42-1-14(e) was facially unconstitutional because its lifelong GPS requirement required a constant, ongoing, unreasonable searches of people like Park who had finished their sentences, including probation and parole.²³

III. Legal Background

A. Reasonableness Under the Fourth Amendment and the Parolee & Probationer Exception

The Bill of Rights was ratified in 1791, and the Fourth Amendment of the United States Constitution has famously protected individuals from the State's "unreasonable searches and seizures"²⁴ since 1961.²⁵ Since then, a litany of cases and theories have developed around that simple phrase, defining what constitutes an unreasonable search or seizure.

All statutes are presumed constitutional and, "before an Act of the legislature can be declared unconstitutional, the conflict between it and the fundamental law must be clear and palpable."²⁶ As a result, the law enforcement action in question must qualify as a "search" to merit consideration under the Fourth Amendment.²⁷

[Page 1251]

In 2015, the Supreme Court of the United States held in Grady v. North Carolina²⁸ that GPS tracking systems which individuals are legally required to wear constitute searches of those individuals, no matter what the government's purpose is in collecting the information.²⁹ The Court did not hold that such searches are inherently unreasonable, but that, like other searches, the reasonableness of tracking monitor searches "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."³⁰

In 1997, the Court in Chandler v. Miller³¹ specified that, to be reasonable, most searches require "individualized suspicion of wrongdoing"—the suspicion of a particular person for a particular act, rather than the general idea that someone may have done something warranting a search.³² Warrantless searches with the intent (or effect) of pursuing criminal activity without any individual suspicion are, as a general rule, unreasonable.³³ Ten years after Chandler, the Supreme Court held that the "gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose," meaning that law enforcement officers may not execute suspicionless searches solely on the basis of the seriousness of the potential criminal activity.³⁴

Some individuals—specifically parolees and probationers—have a diminished expectation of privacy, and, as a result, are not entitled to the same individualized treatment as other persons.³⁵ This principal is best articulated in the Supreme Court's 2006 decision in Samson v. California,³⁶ in which the Court held that a condition of a parolee or probationer's release from prison "can so diminish or eliminate a released prisoner's reasonable expectation of privacy that a suspicionless search by a law enforcement officer would not offend the

[Page 1252]

Fourth Amendment."³⁷ This holding was not without its critics, though. Justice Stevens dissented.³⁸ Joined by Justice Souter and Justice Breyer, Stevens lamented the loss of privacy citizens would face as a result of the majority's decision.³⁹ Stevens warned that the majority in Samson opened the door for "an unprecedented curtailment of liberty" and that the suspicionless searches sanctioned by the decision were "the very evil the Fourth Amendment was intended to stamp out."⁴⁰

The dissenters' forebodings quickly materialized in Jones v. State,⁴¹ in which the Georgia Supreme Court held that suspicionless and warrantless searches of probationers and parolees are acceptable when the individual subjected to the search has notice that he or she is subject to warrantless searches as part of a parole arrangement.⁴²

The holding in Samson helped develop the concept of probationers as quasi-prisoners, with probation being more of an extension of prison than the halfway point to freedom.⁴³ As the Court articulated in Griffin v. Wisconsin,⁴⁴ parolees "do not enjoy 'the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions.'"⁴⁵ Following this line of thinking, the Court further held that if there is a state regulation requiring probationers to submit to warrantless searches, the searches conducted via that regulation do not need to be related to the reason for which the individual being searched is on probation.⁴⁶

[Page 1253]

Despite the...