Is Lifetime GPS Monitoring Reasonable?
In State v. Ross, decided last week, the SC Supreme Court held that the imposition of lifetime GPS monitoring based on a conviction for failure to register violates the Fourth Amendment as an unreasonable search unless the Court makes an individualized inquiry as to whether the imposition of monitoring is reasonable.
Is lifetime GPS monitoring ever reasonable? Maybe in the most extreme cases that involve repeat offenders. But, let’s consider Ross’s case:
- He was convicted of lewd act in 1979;
- The offense was later changed by the legislature to criminal sexual conduct with a minor in the third degree;
- The Sex Offender Registry Act was passed in 1994, requiring Ross to register as a sex offender for the rest of his life;
- Ross was convicted for failure to register in 2011; and
- Ordered to submit to lifetime GPS monitoring because of his failure to register. For a conviction that happened almost 40 years ago.
I’m going to go out on a limb here and say that Ross probably doesn’t feel like this is reasonable at all…
GPS monitoring requirements are extreme, but they can be reasonable – if they are based on a person’s likelihood to re-offend and if there is the opportunity for judicial review.
What is GPS Monitoring in SC?
A GPS monitor is worn on the ankle and can cause extreme discomfort, chafing, and rashes for some people who are forced to wear them. They must be kept charged constantly, and, if the battery goes dead, it is considered a violation.
The devices are monitored by the probation department, and they send a person’s exact location to a web-based computer system that updates every minute for 24 hours a day recording information about a person’s geographic location and sending an alert when the person enters a prohibited area.
When is Lifetime GPS Monitoring Ordered in SC?
There are several situations where lifetime GPS monitoring kicks in under SC law:
- When a person is convicted of CSC with a minor in the first or third-degree (SC Code sections 23-3-540(A) and (B));
- In the court’s discretion for other sex offenses (SC Code sections 23-3-540(B), (D), and (F));
- When a person convicted of a sex offense violates the terms of their probation, parole, or community supervision (SC Code sections 23-3-540(C) and (D)); or
- When a person violates the provisions of the Sex Offender Registry (for example, a conviction for failure to register) (SC Code Sections 23-3-540(E) and (F)).
What Did the Ross Case Decide?
Ross dealt only with the imposition of lifetime GPS monitoring based on a violation of the Sex Offender Registry’s requirements and held that there must be an individualized inquiry as to whether GPS monitoring is reasonable when it based solely on a failure to register – automatically requiring the imposition of a GPS monitor is an unconstitutional search under the Fourth Amendment.
If you are forced to wear a GPS monitor as a result of violating terms of probation or parole, or because of a conviction for CSC with a minor first or third degree, it is still automatic, and the Court does not need to consider your individual circumstances…
How Can I Get a GPS Monitor Removed in South Carolina?
If you are accused of failure to register on the Sex Offender Registry, get a Charleston criminal defense lawyer immediately – the Court must hold a hearing to determine whether your individual circumstances justify requiring a GPS monitor. If you don’t present evidence to show the Court that you are not likely to re-offend, the Court will most likely order you to wear a monitor. For the rest of your life…
Likelihood to Re-Offend
SC’s Supreme Court has held that you must be automatically required to wear a GPS monitor for life if you are convicted for CSC with a minor first or third degree or if you violate the terms of supervised release for a sex offense, without any determination as to your likelihood to re-offend.
You can also be required to wear a lifetime GPS monitor, in the Court’s discretion, for other sex offenses, without any determination as to your likelihood to re-offend.
If you are accused of failure to register, you can be required to wear a lifetime GPS monitor – but – you must have the opportunity to present evidence as to why it is not reasonable, including evidence and expert testimony as to your likelihood to re-offend.
But, What About State v. Dykes?
On the other hand, in State v. Dykes, the SC Supreme Court held in 2013 that, although the initial mandatory imposition of GPS monitoring for CSC first and third-degree is constitutional, it is unconstitutional to impose lifetime GPS monitoring unless there is an opportunity for judicial review.
I’m sure the Supreme Court was hoping that the legislature would fix this and enact a provision for judicial review – of course, that hasn’t happened.
In State v. Walls, in 2002, the SC Supreme Court said that the requirement of GPS monitoring is “intended to protect the public from those sex offenders who may re-offend and to aid law enforcement in solving sex crimes.” So, we should at least consider whether a person is likely to re-offend, right?
Pursuant to State v. Dykes, if a person is ordered to submit to lifetime GPS monitoring, they should be able to petition the Court to have the monitor removed after 10 years – they must be given the opportunity to show that they have complied with the monitoring requirements and that they are not likely to re-offend.
If that request is denied, they can then petition the Court every five years thereafter to remove the monitoring based on a showing that they are not likely to re-offend.
How Can I Prove that I am not Likely to Re-Offend?
Your attorney will help you to gather evidence and testimony that may help you, but you will most likely need an evaluation and expert testimony to make your case – we can help you to find the right expert, file the court action, and present your evidence to the Court.
If you are pleading guilty or if you are going to trial on a sex offense, you should also consider having an evaluation done to determine whether you are a risk to re-offend – if you are convicted of a sex offense where GPS monitoring is in the Court’s discretion, expert testimony about your likelihood to re-offend at your sentencing hearing could make the difference.
Sex Crimes Defense Lawyer in Charleston, SC
If you are facing charges for failure to register or for any sex offense where GPS monitoring is in the Court’s discretion, we can: 1) Fight the charges, attempt to get your case dismissed, and take your case to trial when necessary; and 2) Present evidence of likelihood to re-offend at any sentencing hearing so that the Court will be less likely to impose lifetime GPS monitoring.
If you were convicted of a sex offense more than 10 years ago and you are required to wear a GPS monitor, call Charleston criminal defense lawyer Grant B. Smaldone for a free, confidential evaluation as to whether you may be eligible to have your GPS monitor removed.
Call now at (843) 808-2100 or contact me online to find out how we can help.