132 F. Supp. 3d 1085
E.D. Wis.2015Background
- Michael Belleau, convicted in the late 1980s of child sexual assaults, completed his criminal sentences (last expired 2005) and was civilly committed under Wis. Stat. Ch. 980 until discharged in 2010 after the State stipulated it could not prove he remained sexually dangerous.
- Wisconsin enacted Wis. Stat. § 301.48 (effective July 1, 2007) requiring lifetime GPS tracking for certain serious child sex offenders; the statute authorizes DOC to attach ankle GPS devices, create exclusion/inclusion zones, and assess monitoring fees.
- DOC agents forcibly attached an ankle GPS device to Belleau on July 7, 2010, and he has been required to wear it continuously and pay monthly monitoring fees (ultimately $50/month), under criminal penalties for tampering.
- The device records minute-by-minute locations, requires daily charging (about 1 hour/day), can cause physical discomfort and public exposure, and enables DOC retrospective and alert-based monitoring; DOC can share GPS data with law enforcement.
- Belleau sued (initially pro se; later represented) seeking declaratory and injunctive relief, alleging violations of the Ex Post Facto Clause and the Fourth and Fourteenth Amendments; cross-motions for summary judgment were filed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §301.48's application to Belleau is retroactive and thus implicates the Ex Post Facto Clause | Belleau: statute applies retroactively to convictions from the 1980s because it attaches new punishment based on past offenses | State: statute applies because of his 2010 discharge from civil commitment (post-enactment event), so not retroactive as to him | Court: Application is retroactive — underlying convictions triggered the statute and Ex Post Facto analysis applies |
| Whether §301.48 is punitive in effect (Ex Post Facto) | Belleau: lifetime GPS monitoring is sufficiently punitive (restraint, shaming, fine-like fees), so retroactive application increases punishment | State: legislature intended a civil, nonpunitive public-safety regulation; statute serves public-protection and investigatory goals | Court: Held punitive in effect under Mendoza‑Martinez factors; retroactive application violates Ex Post Facto Clause |
| Whether forced lifetime GPS monitoring without warrant or individualized present-danger finding violates the Fourth Amendment | Belleau: attaching and continuously monitoring a body-worn GPS is a search; no probable cause or adequate special-needs showing; intrusion is severe and ongoing | State: special-needs/supervisory interests justify warrantless monitoring to prevent recidivism of serious sex offenders | Court: Held GPS monitoring of Belleau is a Fourth Amendment search and unreasonable here (no diminished privacy expectation, no warrant/probable cause or adequate special-needs justification), so unconstitutional |
| Remedy / scope: Can State impose GPS as part of sentence or supervision? | Belleau: not applicable — he completed sentence and commitment; lifetime monitoring now is additional punishment | State: GPS could permissibly be imposed as a condition while under supervision or as part of a criminal sentence | Court: Observed GPS could constitutionally be imposed as punishment or supervision prospectively, but cannot be retroactively forced on Belleau; relief granted (declaratory and injunctive) |
Key Cases Cited
- Weaver v. Graham, 450 U.S. 24 (constitutional prohibition on ex post facto laws; fairness and reliance rationale)
- Smith v. Doe, 538 U.S. 84 (civil labeling vs punitive effect framework for retroactive sex‑offender regulations)
- Johnson v. United States, 529 U.S. 694 (initial offense conduct can trigger ex post facto analysis even if subsequent events occur)
- Kennedy v. Mendoza‑Martinez, 372 U.S. 144 (factors to assess whether a regulatory scheme is punitive in effect)
- Kansas v. Hendricks, 521 U.S. 346 (civil commitment of sexually violent predators upheld where procedural and substantive safeguards met)
- Kansas v. Crane, 534 U.S. 407 (civil commitment requires proof of mental disorder causing serious difficulty in controlling behavior)
- United States v. Jones, 132 S. Ct. 945 (attaching a GPS device and monitoring constitutes a Fourth Amendment search)
- Samson v. California, 547 U.S. 843 (reduced privacy expectations justify suspicionless searches of parolees under statutory conditions)
- Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (special‑needs balancing for suspicionless drug testing of student athletes)
- Grady v. North Carolina, 135 S. Ct. 1368 (per curiam: person‑worn GPS monitoring effects a Fourth Amendment search; remanded to assess reasonableness)