Feb. 2, 2016 – In 2004, Michael Belleau was civilly committed as a “sexually violent person,” after serving prison time for sexually assaulting children. When released in 2010, Wisconsin law required him to wear a GPS monitoring device for the rest of his life. Recently, a federal appeals court upheld the state law, reversing a lower court.

Belleau argued that Wisconsin’s lifetime GPS monitoring law was unconstitutional, a violation of the Fourth Amendment. He also said the law violated the Ex Post Facto Clause, because the state enacted the lifetime monitoring ban after he was convicted.

The U.S. District Court for the Eastern District of Wisconsin agreed with Belleau. The court ruled that Wis. Stat. section 301.48, which requires the lifetime GPS tracking of persons convicted of certain child sex crimes, violates constitutional protections.  

But in Belleau v. Wall, No. 15-3225 (Jan. 29, 2016), a three-judge panel for the U.S Court of Appeals for the Seventh Circuit reversed, finding no constitutional problems.

“The plaintiff argues that monitoring a person’s movements requires a search warrant. That’s absurd,” wrote Judge Richard Posner in the majority opinion.

Posner noted that conditions of probation or parole usually require persons to submit to warrantless searches, “and the Supreme Court has held that such warrantless searches do not violate the Fourth Amendment as long as they are reasonable.”

The panel noted that the GPS monitoring law aims to deter future sex offenses against children, not to generate evidence of crimes. The panel also noted that police are free to reasonably surveil people, especially sex offenders who have lost certain privacy rights.

“We conclude that there was no violation of the Fourth Amendment, and so we turn to whether the GPS-monitoring statute is an ex post facto law, as it took effect after the plaintiff had committed the crimes for which had been convicted,” Posner wrote. 

Ex Post Facto Law?

Belleau, 48 years old at the time, was first convicted in 1992 for sexually assaulting a minor boy repeatedly over a five-year period. But he only served a year in jail. Before his probation ended, he was convicted of a 1988 crime, sexual assault of a minor girl.

He received a 10-year prison sentence, but was paroled after six years. His parole was revoked within a year when he admitted having sexual fantasies about young girls, ages four and five, and said he would have molested them if given the opportunity.

In 2004, rather than sending him back to prison, the state successfully petitioned for his civil commitment as a “sexually violent person.” In 2010, he was released, based on testimony that he was no longer “more likely than not” to repeat his sex crimes.

By that time, Wisconsin had enacted a lifetime GPS monitoring law for those who commit certain sex crimes. The law took effect in 2006, after Belleau was convicted. Thus, Belleau argued that Wisconsin’s law was an ex post facto law, as applied to him.

The panel did not agree. “A statute is an ex post facto law only if it imposes punishment,” Posner wrote. “The monitoring law is not punishment; it is prevention.

“[I]f civil commitment is not punishment, as the Supreme Court has ruled, then a fortiori neither is having to wear an anklet monitor. It is not ‘excessive with respect to [the nonpunitive] purpose … for Wisconsin to conclude that all formerly committed sex offenders pose too great a risk to the public to be released without monitoring.'”

Posner noted the testimony of the psychologist, who recommended Belleau’s release and said there was just a 16 percent chance that Belleau would repeat sex crimes against children, down to eight percent at the time of the district court’s judgment.

“Readers of this opinion who are parents of young children should ask themselves whether they should worry that there are people in their community who have ‘only’ a 16 percent or an 8 percent probability of molesting young children,” Judge Posner wrote.

Concurrence

Judge Joel Flaum wrote a concurring opinion, concluding that Wisconsin’s law requiring lifetime GPS monitoring of child sex offenders did not violate Belleau’s Fourth Amendment rights or his rights under the Ex Post Facto Clause.

But he took a different course in reaching his conclusion. “I believe that Wisconsin’s GPS monitoring program is a reasonable special needs search,” he wrote.

“The special needs doctrine applies to suspicionless searches designed to serve needs beyond the need of normal law enforcement.”

Judge Flaum noted that Wisconsin’s GPS monitoring law allows the state to reduce recidivism rates by offenders who know they are being monitored.

“Information gathered from this program may, at some later time, be used as evidence in a criminal prosecution, but that is not the primary purpose of the program,” he wrote.

Flaum also examined the competing private and public interests advanced, noting the privacy interests at stake. But he concluded that Wisconsin’s monitoring scheme “constitutes a special needs search” and does not violate the Fourth Amendment.

He agreed with the majority that Wisconsin’s GPS tracking law is not a violation of the Ex Post Facto Clause because it is “not punitive in purpose or effect.” Flaum also noted that Belleau is no longer subject to Wisconsin’s monitoring law if he moves out of state.