May 21, 2018
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).
Judges Ostrer, Rose and Firko.
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. 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). I.R.'s
sentence did not include PSL.
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.
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)
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.
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).
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
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.
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. ...