This post is the second in a series examining the impact of Carpenter v. United States, 585 U.S. ___, 138 S.Ct 2206 (2018) on electronic surveillance and the obtaining of location and other types of information from third parties. The first post in this series summarized post-Carpenter decisions relating to surveillance by pole camera and tower dumps. This post examines post-Carpenter rulings on the obtaining of real-time surveillance information through satellite-based Global Positioning System data (GPS) or cell site location information (CSLI). The last post in this series will examine the use of cell site simulators and the obtaining of other information about a person’s on-line activities or accounts from third parties.
Tag Archives: gps
Conducting Surveillance and Collecting Location Data in a Post-Carpenter World, Part II
A bill has been introduced in the legislature that would allow for GPS tracking of domestic violence offenders. Has that been tried elsewhere? Would it be constitutional? Would it open the door to tracking other types of people? This post tackles those questions. Continue reading →
Authentication and GPS Tracking
I’ve had more and more questions about introducing GPS tracking data in criminal trials. When I think about digital evidence, I think about authentication as the first hurdle. This post summarizes the law regarding the authentication of GPS data.
GPS data may come into criminal cases in several ways: because law enforcement placed a tracking device on a suspect’s vehicle; because a suspect was wearing a GPS tracking bracelet as a condition of probation or pretrial release; because law enforcement seized a cell phone or other device containing GPS data from a suspect; and so on. Although each situation presents slightly different considerations, it should often be possible to authenticate such data under Rule 901(b)(1) (testimony of a witness with knowledge that the data is what it is claimed to be), Rule 901(b)(9) (concerning “[e]vidence describing a process or system used to produce a result and showing that the process or system produces an accurate result”), or some combination of the two.
The leading case in North Carolina is State v. Jackson, __ N.C. App. __, 748 S.E.2d 50 (2013). The defendant committed a sexual assault while wearing a GPS tracking device as a condition of his pretrial release. The supervisor of the electronic monitoring unit testified regarding how the tracking device worked. The defendant argued that the tracking data was not properly authenticated, but the court of appeals ruled to the contrary. However, the court did not analyze the authentication issue in detail — instead focusing mainly on whether the data were inadmissible hearsay — so the opinion is useful mainly for cases that have similar facts.
A few cases from other jurisdictions provide more general guidance. Most courts seem satisfied if a witness with a working familiarity with the GPS system explains how it works, how the data were collected, and what the data mean. See United States v. Espinal-Almeida, 699 F.3d 588 (1st Cir. 2012) (ruling that data taken from GPS device seized from boat used for drug trafficking were properly authenticated by the testimony of the lab analyst who examined the device; the analyst provided a “good amount of testimony about the processes employed by the GPS,” allowing the court to apply Fed. R. Evid. 901(b)(9), which permits a witness to describe a process or system and thereby authenticate the result of the process or system; the court ruled that expert testimony was not required to authenticate the data, noting that the analyst was “knowledgeable, trained, and experienced in analyzing GPS devices”).
Several cases have focused on the qualifications and experience necessary to authenticate the data. Courts generally have ruled that the witness need not be an expert so long as the witness is familiar with the technology. Id. See also United States v. Brooks, 715 F.3d 1069 (8th Cir. 2013) (a bank robber was apprehended based on a GPS device that was placed surreptitiously in the loot bag; the trial judge properly took judicial notice of the “accuracy and reliability of GPS technology” generally, and the testimony of an employee of the security company that supplied the device was sufficient to admit the data generated by the device in question; although the witness apparently lacked a “scientific background,” he had worked for the company for 18 years, “had been trained by the company . . . knew how the device worked, and . . . had demonstrated the device for customers dozens of times”); United States v. Thompson, 393 Fed. Appx. 852 (3d Cir. 2010) (unpublished) (a bank robber was apprehended based on a GPS device that was placed surreptitiously in the loot bag; the GPS data was authenticated at trial by an employee of the security company that supplied the device; he explained how the device worked, and he was properly permitted to testify as a lay witness rather than an expert given that his knowledge was based on his personal experience with such devices).
I’m interested in readers’ thoughts about this issue and experiences with different kinds of witnesses used to authenticate GPS data.
Testimony about Tracking
More and more criminal cases involve electronic tracking. Sometimes the defendant is tracked using GPS, other times using cell site location information. Either way, interesting evidentiary questions arise. May an officer who knows how to use a tracking device testify about tracking, even if she doesn’t know much about how the underlying technology works? Who can testify about cellular towers and how cellular telephones connect to them? Is such testimony lay witness testimony or expert testimony?
GPS tracking. The recent case of State v. Jackson, __ N.C. App. __, 748 S.E.2d 50 (2013), provides helpful guidance regarding GPS tracking. The defendant in that case sexually assaulted a woman on the street. He was wearing an ankle bracelet, apparently as a condition of pretrial release on other charges. At trial, the supervisor of the Charlotte-Mecklenburg Police Department’s electronic monitoring unit testified about the ankle bracelet and introduced a video tracking the defendant’s movements during the time period in question. On appeal, the defendant contended that “the State failed to establish a proper foundation to verify the authenticity and trustworthiness of the data” and needed to verify the accuracy of the data before it could be admitted, but the court ruled that the officer’s “testimony established a sufficient foundation of trustworthiness.” The court also stated that the officer’s testimony was admissible as lay witness testimony based on his review of the tracking data, rather than as expert testimony. Both the fact that the court approved of testimony from an officer – rather than a scientist or an engineer – and the fact that the court deemed the testimony lay testimony are significant.
As an aside, Jackson makes an interesting contrast to State v. Meadows, 201 N.C. App. 707 (2010), where the court of appeals ruled that an officer could not testify as an expert regarding the use of the NarTest machine to identify controlled substances, because there was insufficient evidence of the machine’s reliability and the officer had no training in chemistry to allow him to assess the functioning of the machine.
Cell site tracking. I’m not aware of a North Carolina appellate case addressing the evidence issues surrounding cell site tracking testimony. However, there are some relevant cases from appellate courts around the country. Some cases involve officer witnesses, while others involve witness from telecommunications service providers. Let’s look at those cases separately.
Testimony by officers. Several courts have allowed officers to testify as lay witnesses regarding at least basic cell site tracking procedures. See, e.g., United States v. Feliciano, 300 Fed. Appx. 795 (11th Cir. 2008) (unpublished) (holding that a trial judge did not abuse his discretion in allowing an officer to testify “about cell tower sites”; the officer “simply reviewed the cellular telephone records . . . which identified cellular towers for each call, and based on his personal knowledge concerning the locations of certain cellular towers, testified that, at the time of the call [a specific phone was not near a specific location]”); United States v. Evans, 892 F.Supp.2d 949 (N.D. Ill. 2012) (holding that an officer would be allowed to testify as a lay witness regarding the location of cell towers and regarding which towers the defendant’s cell phone used at what time, and that the officer would be allowed to plot the towers on a map without qualifying as an expert; however, any testimony about how cellular networks work and “granulization theory” would require qualification as an expert). On the other hand, Wilder v. State, 991 A.2d 172 (Md. Ct. App. 2010), ruled that “the use of cell phone site location evidence and the accompanying testimony of a law enforcement officer who explain[s] its use require the qualification of the sponsoring witness as an expert.” It seems to me that the more technical and complicated the tracking procedure is, the more likely a court would be to require an officer to qualify as an expert in order to testify about it.
Testimony by employees of telecommunications service providers. Courts have also considered testimony from employees of cellular service providers. Most courts seem to have allowed relatively low-level employees to testify as lay witnesses about cell site tracking. See, e.g., Gosciminski v. State, __ So.3d __, 2013 WL 5313183 (Fla. Sept. 12, 2013) (a Nextel engineer testified during a murder case regarding “maps of the cell towers, the coverage areas of the towers, propagation information, and specific cell phone calls made or received by [the defendant]” and introduced diagrams regarding tower locations and sector information; this was properly admitted and did not require that the engineer be qualified as an expert because “such information is understood by the average juror who owns a cell phone”); Woodward v. State, __ So.3d __, 2011 WL 6278294 (Ala. Ct. Crim. App. Dec. 16, 2011) (lay witnesses employed by cell phone company were properly allowed to testify that cell phone records “indicated the locations of the callers at certain times”; the testimony did not require specialized knowledge and was limited to information regarding “cell towers used during certain phone calls”); Malone v. State, 73 So.3d 1197 (Miss. Ct. App. 2011) (cell phone company employees properly testified as lay witnesses regarding cell phone records, tower locations, tower coverage information, and tower usage; none of this was “so complex or technical as to render it expert testimony”). Again, the more complex the testimony is, the stronger the argument for requiring the witness to qualify as an expert.
Conclusion. The evidence issues surrounding tracking technology may prove difficult to settle. In part, this is because tracking technology itself changes so rapidly that decisional law struggles to keep up. But it is also because the line dividing lay and expert testimony is unstable. A witness must testify as an expert if the witness’s testimony involves “scientific, technical or other specialized knowledge,” N.C. R. Evid. 702, that is beyond the experience of a typical juror. But a typical juror today knows far more about GPS satellites and cellular towers than a typical juror a decade ago. And of course, tomorrow’s jurors likely will know even more.
Yesterday, the United States Supreme Court decided United States v. Jones, the important GPS tracking case I previously blogged about here. (The case was captioned United States v. Maynard at that time.)
In brief, Washington, DC officers suspected that the defendant was a drug dealer. They wanted to track his movements, so they obtained a search warrant that allowed them to install and monitor a GPS tracking device on a Jeep owned by the defendant’s wife but driven exclusively by the defendant. However, while the warrant authorized installation of the device in DC within 10 days, the officers didn’t complete the installation until the 11th day, in Maryland. They then tracked the defendant for 28 days. Among other things, they determined that he had visited a stash house in which the officers ultimately found large quantities of money and cocaine.
Facing drug charges, the defendant moved to suppress the tracking data. Because the officers had failed to comply with the terms of the warrant, the district court treated the officers’ conduct as being warrantless activity. (All subsequent courts followed suit on this point.) Nonetheless, it mostly denied the defendant’s motion, concluding that the defendant had no reasonable expectation of privacy in his travels on the public roads, and therefore, that the officers’ conduct was not a “search” for Fourth Amendment purposes. The government introduced the tracking data at trial and the defendant was ultimately convicted.
He appealed. The DC Circuit reversed, holding that prolonged GPS monitoring is a Fourth Amendment search. Distinguishing United States v. Knotts, 460 U.S. 276 (1983), which held that the short-term use of electronic “beepers” to track a suspect’s movements on the public roads did not intrude upon a reasonable expectation of privacy, the court wrote that “no single journey reveals the habits and patterns that mark the distinction between a day in the life and a way of life . . . . Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble.”
Some commentators called this the “mosaic theory” of the Fourth Amendment. Critics wondered how an accumulation of things that were not themselves searches could sum up to a search, and wondered how to draw the line between permissible warrantless short-term monitoring and improper warrantless long-term monitoring.
The government petitioned for certiorari, and the Supreme Court took the case. It affirmed the court of appeals. Justice Scalia wrote the majority opinion, which holds that “the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’” However, the majority’s reasoning differs substantially from that endorsed by the DC Circuit. According to Justice Scalia, the key to the case is that “[t]he Government physically occupied private property for the purpose of obtaining information.” That is, the government trespassed when it undertook the “physical intrusion” of installing the device. And a trespass “conjoined with . . . an attempt to find something or to obtain information” constitutes a search for Fourth Amendment purposes. Indeed, according to Justice Scalia, such an intrusion onto private property for the purpose of gathering information was exactly the type of conduct the Framers of the Fourth Amendment intended to prevent.
This emphasis on trespass has roots in the Court’s precedents. As Justice Scalia notes, “our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century.” However, in recent years, the Court has analyzed virtually all Fourth Amendment cases under the “reasonable expectation of privacy” rubric first enunciated in Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347 (1967). The majority does not repudiate that test – indeed, it explicitly reaffirms that governmental conduct that intrudes upon such an expectation is a search – but finds that the trespass analysis survives Katz as an alternative way of establishing that officers are undertaking a search regulated by the Fourth Amendment. And because the majority resolves the case under the trespass analysis, it declines to reach the issue of whether GPS tracking is a search under the expectation of privacy analysis.
Justice Alito concurred in the judgment, and wrote an opinion joined by three other Justices. His opinion argues that the expectation of privacy analysis in Katz supplanted, rather than supplemented, the trespass approach to the Fourth Amendment. In support of this claim, the opinion quotes several excerpts from Katz and later cases to the effect that a physical trespass is neither necessary nor sufficient to establish a Fourth Amendment violation. Thus, Justice Alito views Justice Scalia’s emphasis on the law of trespass as archaic and unhelpful. Analyzing the matter exclusively under the expectation of privacy test, Justice Alito finds that the officers’ conduct amounted to a search essentially for the reasons given by the court of appeals: “[R]elatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. . . . But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.”
Justice Sotomayor joined Justice Scalia’s majority opinion, but wrote a separate concurrence that strikes me as very important. She agreed that the case was properly resolved under the trespass analysis. But she plainly indicated that she would also have found a Fourth Amendment search even absent a trespass. That is to say, she “agree[d] with Justice Alito that, at the very least, ‘longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.’” That’s significant because it means that there are five votes – Justice Sotomayor plus the four Justices who signed Justice Alito’s opinion – for the view that prolonged GPS tracking is a search even if it can be done without a trespass, for example, by concealing a tracking device inside an object and then convincing the suspect to accept the object into his vehicle, or perhaps by using a vehicle’s built-in GPS system. (Justice Sotomayor also suggested that even short-term GPS tracking might be a search, and that the Court should reconsider the doctrine that a suspect’s disclosure of information to a third party destroys his expectation of privacy in that information vis-à-vis the police, though no other Justice joined her in expressing those sentiments.)
Newspaper coverage of the case is here. Orin Kerr, a leading scholar in this area whose article was cited by both the majority and the principal concurrence, has been posting like crazy at the Volokh Conspiracy. Rather than link to his many posts individually, I’ll just link to the front page of the blog and you can scroll through. I may have more thoughts about this case later, and if so I will do a follow-up post. Stay tuned.
Remember United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010)? That’s the drug case in which the D.C. Circuit held that “prolonged GPS monitoring [of a suspect] defeats an expectation of privacy that our society recognizes as reasonable,” and therefore typically requires a warrant. I blogged about Maynard here. The circuit court subsequently denied rehearing en banc by a divided vote. United States v. Jones, 625 F.3d 766 (D.C. Cir. 2010) (en banc).
On Friday, the Department of Justice filed this petition for certiorari, asking the United States Supreme Court to review the case. The question presented by the petition is “whether the warrantless use of a tracking device on petitioner’s vehicle to monitor its movements on public streets violated the Fourth Amendment.” (As an aside, the question contains an embarrassing mistake, which I identify after the break. Think about it for a minute before you click — you already have enough information to catch it yourself.)
Here is the introduction to, and summary of, the section of the petition that argues for the necessity of Supreme Court review:
The decision of the court of appeals conflicts with this Court’s longstanding precedent that a person traveling on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another, even if “scientific enhancements” allow police to observe this public information more efficiently. See United states v. Knotts, 460 U.S. 276, 282-284 (1983). The decision also creates a square conflict among the courts of appeals. The Seventh and Ninth Circuits have correctly concluded that prolonged GPS monitoring of a vehicle’s movements on public roads is not a “search” within the meaning of the Fourth Amendment. The Eighth Circuit, in rejecting a challenge to GPS tracking, stated that a person has no reasonable expectation of privacy in his public movements, and it upheld tracking for a reasonable period based on reasonable suspicion. At a minimum, if GPS tracking were (incorrectly) deemed a search, the tracking in this case was likewise reasonable.
Prompt resolution of this conflict is critically important to law enforcement efforts throughout the United States. The court of appeals’ decision seriously impedes the government’s use of GPS devices at the beginning stages of an investigation when officers are gathering evidence to establish probable cause and provides no guidance on the circumstances under which officers must obtain a warrant before placing a GPS device on a vehicle. Given the potential application of the court of appeals’ “aggregation” theory to other, non-GPS forms of surveillance, this Court’s intervention is also necessary to preserve the government’s ability to collect public information during criminal investigations without fear that the evidence will later be suppressed because the investigation revealed “too much” about a person’s private life. Because the question presented in this case is important, and because the court of appeals’ decision is wrong, this Court should intervene to resolve the conflict.
Perhaps the Court will prefer to let the issue percolate more in the lower courts, but there are quite a few opinions on point already, and the Court very often grants petitions by the government, so it seems to me that there’s a pretty good chance that the Court will agree to hear the case. I hope it does. It’s an interesting and important issue. You can read a little more about the petition and the case here, here, and here. And don’t forget to check the jump to see if you correctly identified the embarrassing mistake in the question presented.
Update on GPS Tracking
About two years ago, I wrote a paper on GPS tracking. It’s available here. There have been a couple of major decisions in the area recently, so this post is a bit of an update to my earlier work.
I wrote in the paper that “[m]ost, but not all” courts have found that when the police use a GPS tracking device to monitor a suspect’s location, they are not conducting a Fourth Amendment search. Courts generally have based this conclusion on United States v. Knotts, 460 U.S. 276 (1983), which held that the police were not conducting a search when they used a radio “beeper” to help them track a vehicle. The Knotts Court said that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another,” given that those movements are open to the observation of anyone who cares to look. And police investigation that doesn’t intrude on a reasonable expectation of privacy, of course, doesn’t constitute a search.
“Most” courts doesn’t include the D.C. Circuit. A few weeks ago, it handed down United States v. Maynard, in which it distinguished Knotts and ruled that prolonged GPS surveillance does invade the subject’s reasonable expectation of privacy and so is a search for Fourth Amendment purposes. The unanimous opinion was written by Judge Ginsburg, and joined by Judges Tatel and Griffith. (For those keeping track, they were appointed by Presidents Reagan, Clinton, and Bush, respectively). It states:
[U]nlike one’s movements during a single journey, the whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil [and] the whole of one’s movements is not exposed constructively even though each individual movement is exposed, because that whole reveals more — sometimes a great deal more — than does the sum of its parts.
Further explaining the difference between short-term and long-term surveillance, the court said:
The difference is not one of degree but of kind, for no single journey reveals the habits and patterns that mark the distinction between a day in the life and a way of life . . . . Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble.
I found the opinion to be beautifully crafted and a joy to read. Of course, that doesn’t mean that it is legally correct. Indeed, some of the claims made in the opinion strike me as plainly incorrect, such as the court’s assertion that “every court to which the issue has been squarely presented” has found GPS tracking to constitute a Fourth Amendment search. (The quoted language is followed by a labored explanation of why at least half a dozen courts that have ruled the other way have failed to appreciate the arguments endorsed by the D.C. Circuit.) A thoughtful critical review of the opinion by Orin Kerr is here.
Among the courts that have ruled the other way is the Ninth Circuit. In United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010), the court followed Knotts, stated that GPS tracking of the defendant revealed only information “the agents could have obtained by following the car,” and held that the tracking therefore did not invade the defendant’s reasonable expectation of privacy and did not constitute a Fourth Amendment search. The opinion is brief, matter-of-fact, and attracted virtually no attention until the defendant sought rehearing en banc.
Although rehearing was denied, five judges dissented from the denial by published opinion, available here. The lead dissent was written by Chief Judge Kozinski, a leading conservative, and joined by, inter alia, Judge Reinhardt, widely viewed as the Ninth Circuit’s most influential liberal. As is typical of Chief Judge Kozinski’s opinions, his dissent from the denial of rehearing in Pineda-Moreno is colorful, pithy, and feisty. It’s not long, and it’s worth reading for lots of reasons — including his dismissal of the “common entranceway” exception to the rule that the curtilage is subject to a reasonable expectation of privacy. But as it pertains to GPS tracking, the core of his argument is that (1) GPS tracking is much more invasive than the use of beepers discussed in Knotts, which merely augmented visual surveillance actually being conducted by the police; (2) the combination of GPS tracking with other technologies in common use by law enforcement, such as cell phone tracking, amounts to a virtual dragnet in dire need of regulation by the courts; and (3) such “creepy and un-American” behavior should be checked by the Fourth Amendment. Citing various examples of police use of surveillance technology, Kozinski writes that “1984 may have come a bit later than predicted, but it’s here at last.”
One thing that Chief Judge Kozinski doesn’t do is lay out his preferred framework for addressing GPS tracking. That is, of course, appropriate for a dissent from a denial of rehearing: his whole point is that the issue merits further consideration. But it is hard to read the opinion without thinking that he would be sympathetic with at least some parts of the reasoning of Maynard. For whatever reason, Chief Judge Kozinski’s opinion has attracted considerable media attention — far more than the original panel opinion, which, it is worth remembering, is the law. Time magazine ran an opinion piece essentially parroting Kozinski’s arguments and many other media outlets have also covered the issue.
Despite the renewed visibility of this issue, there’s still no North Carolina case on point. The basic analysis in my earlier paper remains correct, but the minority view — that GPS tracking is a Fourth Amendment search — seems to be gaining a bit of momentum. In any event, arguments about GPS tracking should be informed by these recent decisions. And of course, with a split of authority among the lower courts beginning to firm up, the Supreme Court may choose to weigh in at some point. Stay tuned.
Several stories of interest to readers of this blog have appeared over the last several days. First, the Winston-Salem Journal, in an editorial available here, is asking the General Assembly to take a close look at the death penalty, and to impose a moratorium while it does so. Of course, as the editorial notes, we already have a de facto moratorium. Even after the state supreme court’s recent decision, available here, holding that the North Carolina Medical Board can’t discipline physicians who participate in executions, there is still pending litigation over the state’s execution protocol and whether it was properly adopted by the Council of State.
Second, there has apparently been an explosion in the number of cell phones in prison. A story available here asserts that literally thousands of cell phones were confiscated in California’s prison system last year, and addresses possible solutions, including (1) stiffer penalties for those who use the phones, and (2) jamming cell phone signals within prisons. The issue apparently exists here in North Carolina, too, since S167, available here, would make it a crime to provide a prison inmate with a cell phone. One question I have about this whole issue is to what extent inmates use cell phones to avoid having their phone calls monitored, and to what extent they use them to avoid the incredibly high charges associated with prison pay phones. (An interesting story on the pricing issue is here — but I should add that my recollection from my time in private practice is that calls in North Carolina are significantly more expensive than the California calls described in the story.)
Third, a New York Times story, here, will be of interest to those concerned about forensic science. The gist of the article is that scientists are hard at work evaluating some of the techniques — such as fingerprint analysis — that have long been used but without much scientific validation. The article refers to a National Academy of Sciences report, about which I previously blogged here. Hopefully some of this new research will improve the reliability of forensic techniques used in criminal cases.
Finally, a Wisconsin court recently addressed a topic of particular interest to me, holding that the police may install a GPS tracking device on a vehicle and monitor it without committing a Fourth Amendment search, i.e., without a warrant or any level of individualized suspicion. Story here. This is consistent with what most other courts have done — see my paper on the use of GPS tracking devices, available here as a free download — though we are still awaiting the first North Carolina appellate case on point. Stay tuned.
GPS Tracking for Domestic Violence Offenders?
An interesting article in the New York Times, available here, talks about the increasing use of GPS tracking in domestic violence cases, either as a condition of pretrial release or as part of a probationary sentence. The story indicates that twelve states have passed legislation designed to enable the use of GPS in such cases. As far as I know, North Carolina’s not one of them. I did a quick search of proposed legislation last night, and it doesn’t appear that we are set to jump on the bandwagon this year, either.
I wonder, though, whether specific legislation is really necessary. Under G.S. 15A-534, a judicial official may impose “restrictions on the travel, associations [and] conduct . . . of the defendant” as conditions of pretrial release. And under G.S. 15A-1343(b1)(10), a judge may impose, as a condition of probation, “any . . . conditions determined by the court to be reasonably related to [the defendant’s] rehabilitation.” Perhaps those provisions are broad enough to encompass, for example, a ban on contact with the victim, enforced by the use of GPS monitoring.
In fact, it looks like GPS monitoring is regularly imposed by federal courts as a condition of pretrial release, even though the federal pretrial release staute, 18 U.S.C. § 3142, doesn’t mention GPS. Instead, it contains general language similar to that found in G.S. 15A-534, including a provision that the court may require the defendant to “abide by specified restrictions on personal associations, place of abode, or travel,” or require the defendant to “satisfy any other condition that is reasonably necessary.”
I’d love to know if GPS has been used as a condition of release here, and if so, in what kinds of cases. I’d also be interested to know whether it’s been used as part of a sentence, outside the sex offender context. Domestic violence cases are a logical application for the technology, but not the only one: a defendant who repeatedly trespasses on a particular public housing project, for example, might be sentenced to probation with GPS monitoring to ensure that he doesn’t reoffend. Please post a comment if you know of any cases in which GPS has been used, or, of course, if you have an opinion about its use.
The idea does raise a couple of interesting issues. One, given the budget crunch facing the state and most localities, GPS could be a significant money saver, since it might allow more defendants to be released on bond or to be sentenced to probation while still preserving community safety. Apparently, the jurisdictions that use it normally pass the costs of monitoring — eight or nine dollars per day seems to be the range — on to the defendant, making it even more of a bargain. But two, do we have the institutional capacity to use GPS, either pretrial or as a condition of probation? The federal courts have pretrial services offices that apparently have the ability to administer GPS monitoring imposed as a condition of pretrial release. Who would serve that role here? And can probation do it, for convicted defendants? Others will know more about this than I do, and I encourage you to contribute to the discussion.
Like about half the states, North Carolina monitors certain sex offenders by satellite. The General Assembly first enacted our satellite-based monitoring (SBM) program in 2006, requiring lifetime monitoring of recidivists, aggravated offenders, and sexually violent predators, and monitoring for a period of years determined by the court for offenders whose crime involved the physical, mental, or sexual abuse of a minor. Monitored offenders wear an ankle bracelet and carry a Walkman-sized GPS tracking device that transmits their whereabouts to DOC. I’ve left out a lot of the details, but suffice it to say the SBM regime raises some questions. To whom does the law apply? Is SBM a criminal punishment? And if it is, to what extent does it apply to offenders who committed their crimes before the law was passed? What do the statutory definitions of “recidivist” and “aggravated offender” mean? There are many more.
The Court of Appeals recently issued its decision in State v. Wooten, offering some preliminary guidance on how and to whom the law should be applied.
Defendant Robert Lee Wooten was ordered to enroll in SBM for life as a recidivist based on his two convictions for indecent liberties with a minor, one in 1989 and one in 2006. The defendant’s bring-back hearing was held on January 24, 2008—four days prior to his expected release from prison.
The defendant argued that the court lacked jurisdiction to hold the bring-back hearing because he did not receive notice of the hearing in the manner set out in 14-208.40B(b), that is, via certified mail “sent to the address provided by the offender pursuant to G.S. 14-208.7 [the sex offender registration statute].” Notice in this manner would have been impossible, of course, because Mr. Wooten had not yet been released from prison and therefore had yet to establish a registration address. The court held that the failure to follow the precise letter of the statute’s notice provisions—which were intended merely “to protect the due process rights of offenders who are not currently incarcerated”—did not amount to a jurisdictional flaw.
The defendant next argued that his 1989 conviction for indecent liberties should not qualify him as a recidivist because that conviction was not itself reportable (convictions for indecent liberties are reportable for those convicted or released from a penal institution on or after January 1, 1996). Though the defendant’s 1989 conviction did not fall within this definition, the court held that a prior conviction need only be “described” in the statute defining reportable offenses. Thus, a prior conviction can qualify a person as a recidivist no matter how far back in time it occurred.
In addition to clarifying the definition of a recidivist, the court also answered a broader question about the scope of SBM. The regime was initially enacted in 2006 (S.L. 2006-247) and made applicable to “any person sentenced to intermediate punishment on or after [August 16, 2006] and to any person released from prison by parole or post-release supervision on or after that date.” SBM “also applies to any person who completes his or her sentence on or after the effective date of this section who is not on post-release supervision or parole.” As originally enacted, the regime did not explicitly require a judicial determination of eligibility. Legislation enacted in 2007 fixed that omission by adding the hearing requirements set out in G.S. 14-208.40A & B, but those statutes were merely made “effective” December 1, 2007 (S.L. 2007-484, §15(l))—leaving it unclear whether they applied to offenses committed on or after that date, or whether they merely added a new procedural requirement for the same population covered by the 2006 legislation. The court’s opinion in Wooten suggests the latter, referring only to the 2006 enacting legislation and the August 16, 2006 effective date. Some interpretive questions remain about the 2006 law itself (for example, what does the session law mean by “any person who completes his or her sentence on or after [August 16, 2006]? Does that include offenders who complete a probationary sentence after that date, or just those released from prison?), but the court did not have to reach them in Wooten.
Finally, the court determined that the defendant’s third argument, that he received ineffective assistance of counsel when trial counsel failed to present a legally sound argument that the SBM regime violates the Ex Post Facto clauses of the United States and North Carolina constitutions, was not properly preserved for appellate review. The ex post facto issue was therefore not resolved in Wooten, but the same issue will be before the Court of Appeals in numerous other cases in the coming months. I’ll post on those decisions as they are issued. In the meantime, I welcome your questions and thoughts on how the law is being applied around the state.