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H.R. v. New Jersey State Parole Board

Superior Court of New Jersey, Appellate Division

December 20, 2018

H.R., Plaintiff-Appellant,
v.
THE NEW JERSEY STATE PAROLE BOARD, Defendant-Respondent. and I.R., Plaintiff, H.R., Plaintiff, and I.R., Plaintiff-Respondent,
v.
THE NEW JERSEY STATE PAROLE BOARD, Defendant-Appellant.

          Argued May 21, 2018

          On appeal from Superior Court of New Jersey, Chancery Division, Mercer County, Docket No. C-000048-15.

          Fletcher C. Duddy, Deputy Public Defender, argued the cause for appellant H.R. in A-2843-16 and respondent I.R. in A-2987-16 (Joseph E. Krakora, Public Defender, attorney; Fletcher C. Duddy, of counsel and on the briefs; Jesse M. DeBrosse, Assistant Deputy Public Defender, on the briefs).

          Christopher C. Josephson, Deputy Attorney General, argued the cause for the New Jersey State Parole Board, respondent in A-2843-16 and appellant in A-2987-16 (Gurbir S. Grewal, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Christopher C. Josephson, on the briefs).

          Before Judges Ostrer, Rose and Firko.

          OPINION

          OSTRER, J.A.D.

         In these two appeals, which we consolidate for purposes of our opinion, we address whether the State Parole Board violated the rights of two sex offenders, H.R. and I.R., to be free from unreasonable searches under Article I, Paragraph 7 of our State Constitution.[1] Plaintiffs H.R. and I.R. complain the Board did so by subjecting them to continuous satellite-based monitoring under the Sex Offender Monitoring Act (SOMA), N.J.S.A. 30:4-123.89 to -123.95. The trial court held that the monitoring was a "special needs search," relying on principles expressed in State v. O'Hagen, 189 N.J. 140 (2007). On cross-motions for summary judgment, the court held that the governmental need to monitor convicted sex offenders outweighed the privacy interests of H.R., whose expectation of privacy was already reduced because he was serving parole supervision for life (PSL) for third-degree attempted luring, N.J.S.A. 2C:13-6. But, the government's needs did not outweigh the privacy interests of I.R., who had completed his sentence for second-degree endangering the welfare of a child involving depictions of a child engaging in or simulating a prohibited sexual act, N.J.S.A. 2C:24-4(b)(5)(a).[2] I.R.'s sentence did not include PSL.

         In H.R.'s appeal from judgment in the Board's favor, and in the Board's appeal from the judgment in I.R.'s favor, the parties dispute whether satellite-based monitoring is a special needs search, and whether the court properly weighed the governmental interest in monitoring and the offenders' interests in privacy. Reviewing the trial court's order de novo, see Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010), we affirm, consistent with the reasons expressed in the cogent written opinion of Judge Paul Innes.

         The trial court reviewed the essentially undisputed material facts. After completing their respective terms of incarceration, both plaintiffs were designated Tier III offenders under Megan's Law, as posing a high risk of re-offending. See N.J.S.A. 2C:7-8(c). The Parole Board thereafter placed both of them on global positioning system (GPS) monitoring, as SOMA mandates. See N.J.S.A. 30:4-123.91(a)(1) (stating a "'monitored subject' [is] a person whose risk of reoffense has been determined to be high pursuant to . . . [N.J.S.A.] 2C:7-8"); Riley v. N.J. State Parole Bd., 219 N.J. 270, 283 (2014) (stating that assignment to Tier III made an offender "automatically subject to GPS monitoring under SOMA"); N.J.A.C. 10A:72-11.2(a) (same).[3]

          The monitoring device is an ankle bracelet. As plaintiffs recounted in their depositions, the monitoring device affects their privacy in two ways. It enables the Board to monitor their movements and, consequently, their activities and associations, twenty-four hours a day, seven days a week. It is also visibly and audibly obtrusive, and requires daily recharging, thereby limiting plaintiffs' daily activities. Plaintiffs state that they find it humiliating and degrading. Furthermore, plaintiffs complain that the device itself is physically uncomfortable.

         The trial court correctly concluded - and the State does not dispute - that attaching a device to a sex offender's body and tracking his or her movements is a search, citing Grady v. North Carolina, 135 S.Ct. 1368 (2015); see also State v. Earls, 214 N.J. 564, 586-88 (2013) (noting that Article I, Paragraph 7 protects a person's privacy interests in the locational data disclosed by cell-phone tracking technology).

         The trial court also reasoned that the searches fell within the special needs exception to the warrant requirement, citing O'Hagen, 189 N.J. At 158. In determining whether a suspicionless search is an unreasonable one, our Supreme Court eschewed a simple balancing of governmental and personal interests under the totality of circumstances as authorized under the Fourth Amendment. O'Hagen, 189 N.J. at 157-58. Instead, the Court held that our State Constitution requires a more demanding showing that a warrantless, suspicionless search serve a "special need." Ibid.

         H.R. and I.R. both contend the trial court erred in finding a special needs search. They argue that the monitoring is a search that is prompted without any suspicion of unlawful activity, and is designed to gather evidence to enforce criminal laws. If they were correct, then the searches would be unconstitutional, because "suspicionless searches are unconstitutional if the immediate purpose is to gather evidence against the individual for general crime control purposes." Id. at 160.

         "On the other hand, if the core objective of the police conduct serves a special need other than immediate crime detection, the search may be constitutional." Ibid. The government's "'special needs' beyond normal law enforcement . . . may justify departures from the usual warrant and probable-cause requirements." Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 620-21 (1989) (approving drug testing of railroad employees after major accidents and other circumstances) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1987)). However, the special needs exception does not apply to "a program whose primary purpose is ultimately indistinguishable from the general interest in crime control." City of Indianapolis v. Edmond, 531 U.S. 32, 44 (2000) (finding checkpoint set up to interdict drugs was not a special needs search). In O'Hagen, the court upheld as a special needs search the collection of DNA samples from convicted persons. 189 N.J. ...


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