At 13 years old the respondent, in a Supreme Court case, began sexually assaulting a ten year old boy on the Fort Belknap Indian Reservation in Montana. The assaults continued for two years. In 2005 the respondent admitted to juvenile delinquency allegations in Federal Court. He was sentenced to two years of juvenile detention followed by juvenile supervision until his 21st birthday with the first six months of the supervision served in a prerelease center.

In 2006 Congress passed the Sex Offender Registration and Notification Act (SORNA) which requires sex offenders to register wherever they live, work or go to school. The attorney general determined that SORNA retroactively applied to convictions occurring prior to SORNA’s enactment.

In 2007 the respondent was found to be in violation of his prerelease conditions and he was sentenced to an additional six months and required to register as a sex offender at least until his 21st birthday.

He appealed the registration requirement. By the time the Ninth Circuit ruled on the appeal he was 22 years old. The Ninth Circuit ruled that “that applying SORNA to juvenile delinquents who committed their offenses before SORNA’s passage violates the Ex Post Facto Clause.”

The Supreme Court reversed, finding that at the time the Ninth Circuit ruled, the issue was moot. An issue is moot on appeal unless there is “an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.’ In most criminal cases at the time of the appeal the defendant is either incarcerated, on parole or on probation–all of which are considered “actual injuries.” In the present case there were two possible injuries. One was the confinement and supervision but that terminated prior to the Ninth Circuit decision and the other was the registration required which terminated at his 21st birthday. ¹ Thus the Supreme Court reversed the Ninth Circuit ruling. The only real effect of the reversal is that the Ninth Circuit decision does not serve as a precedent for future cases. ²

California state courts have been flooded with claims by people required to register as sex offenders challenging the residency restrictions of Jessica’s Law. Jessica’s Law mandated that registered sex offenders live at least 2000 feet from any school, playground or place where children congregate. While this may sound good in theory it has caused a lot of problems. For one thing, there are whole counties in the state which have no residences or very few places that meet this qualification. At the same time many registrants are under conditions of parole that they live within a certain county.

Last February, the Supreme Court in In Re E. J held that the constitutionality of the residency restriction must be decided on a case by case basis. Since then numerous suits have been filed by those required to register. While these suits can crawl along at a very slow pace many judges have restrained the state from enforcing the residency restrictions against the individuals who have sued and some judges have gone so far as to order countywide bans on enforcement. In Los Angeles County the Superior Court has prohibited enforcement of the registration requirement countywide until the individual suits have been decided.

California State Senator Mark Leno is attempting to terminate the residency ban in order to improve public safety. The ban forces many sex offenders to live on the street. As a result of the ban over 2100 sex offenders, statewide, are homeless. Approximately one third of the states paroled sex offenders are homeless. This makes it more difficult for law enforcement officials to keep track of the parolees. California’s version of Jessxica’s Law was passed as an initiative in 2006. Since that time the number of homeless sex offender parolees has increased by 24-fold. In San Francisco 80 per cent of sex offenders on parole are homeless. But Leno has an uphill battle. Since it was enacted as a statewide proposition it either requires another statewide vote or a two thirds majority in the legislature. Jessica’s Law still has strong support in the legislature where Democrats do not want to appear to be soft on crime and Republicans want to support law and order. In order to be successful Leno will have to show his fellow legislators that amending Jessica’s Law will improve public safety by getting sex offenders off the street and improving the ability of parole officers and police to keep track of sex offenders whereabouts.

The Court of Appeals of Virginia has joined a number of other courts in finding that attaching a GPS device to a car while it is parked on public property and maintaining contact with the car while a suspect is driving it is not a violation of the Fourth Amendment.

David L. Foltz is a convicted sex offender. He was employed and used a company truck in the course of his employment. He had permission to use the truck to drive to and from work and to stop to go to treatment meetings on his way home. The police knew that there was a series of sexual assaults in the area around his work and his meetings. They further knew that the modus operandi was similar to that used by Foltz in the past.

They attached a GPS unit under the bumper while the car was parked on the street near Foltz’s residence. The unit had the power to keep track of his travel and and to allow the police to track the vehicle in real time.

Five days later a sexual assault occurred. The police checked the GPS log and discovered that the truck was in the area of the crime. The following day they followed the van without using the GPS. They saw Foltz attempt to assault a woman and arrested him.

He was charged with abduction with intent to defile. He moved to suppress the evidence on Fourth Amendment grounds. The motion was denied. He went to trial and was sentenced to life in prison. On appeal the court upheld the denial of the suppression motion. The United State Supreme Court in United States v. Karo held in 1984 that it was not a violation of the Fourth Amendment for a supplier to put a beeper in an ether container and for the police to follow the vehicle by using the beeper.

The Virgina court and several other courts have found Karo to be precedent. They ruled that if it was not a violation of the Fourth Amendment to place a beeper in an ether container and follow the vehicle using the beeper, it is not a violation to attach a beeper to the bumper and electronically follow the vehicle. In both cases electronic devices are being use to accomplish a task that could be done with human eyes. If Foltz drove the truck where he could have been followed by the police in an unmarked vehicle then tracking the vehicle with an electronic device is not a violation of Foltz’s Fourth Amendment privacy rights.

The test for a Fourth Amendment violation is whether the government violates a subjective expectation of privacy that society recognizes as reasonable. While Foltz parked his car on the street, I suspect that if he knew that a GPS device was being attached to the vehicle he would have believed that his privacy was being violated. In fact, if I looked out my window and saw someone putting something under my bumper I would not only think that my privacy was being violated but I may think that it was a bomb and call the police. Certainly, if Foltz parked his car in his garage and officers entered the garage to place the GPS device on the vehicle we would all agree that Foltz had a legitimate expectation of privacy and that the government violated it. But because Foltz is not wealthy enough to have a garage the court finds that he does not have a legimate expectation of privacy. A Fourth Amendment right should not be based upon the wealth or poverty of the defendant.

But what I don’t understand is in many states, including Virginia, a defendant can be required to surrender his/her Fourth Amendment rights in order to be put on probation. If Foltz had been required to surrender his Fourth Amendment rights when he was put on probation prior to his current arrest he would not have been able to move to suppress the evidence and the GPS issue would not have been raised. In many states new laws mandate that sex offenders must wear a electronic monitor at all times allowing the authorities to keep track of them. Apparently this was not the law in Virginia at the time of Foltz’s arrest but it is certainly becoming more common. We will no doubt be seeing cases challenging these laws on Fourth Amendment grounds in the future.

The United States Supreme Court reversed a conviction for violating the Sex Offender Registration and Notification Act (SORNA). SORNA, passed by Congress in 2006 makes state sex offenders registration laws more uniform and effective. It makes it a Federal crime for 1) people who are required to register as a sex offender to (2) travel in interstate or foreign commerce, and (3) knowingly fail to register or update a registration.

The Seventh Circuit Court of Appeals ruled that a conviction could be upheld even though the required travel occurred prior to the passage of the act as long as the defendant had sufficient time after the passage of the act to register. The Supreme Court ruled that since the restriction on interstate travel only affects those who are required to register and since the Federal requirement to register did not occur before the passage of the act in 2006, the travel had to occur after the act’s passage. Furthermore the act uses the present tense to indicate the travel requirement and Congress thereby indicated that the travel that the travel could not occur before the act was imposed.

In May 2004 Thomas Carr plead guilty to first-degree sexual abuse in Alabama. Later that year or in the beginning of 2005 he moved to Indiana and failed to comply with Indiana’s registration requirements. Even though SORNA did not take effect until 2006 the United States Attorney charged him with violating the act when he failed to register after the act took effect. The Seventh Circuit Court of Appeals upheld the conviction based on the pre-enactment travel and the Supreme Court reversed.

By holding that the law requires that the travel occur after the enactment of the act the Court avoided considering whether or not the law violated the Constitution’s ex post facto clause which bans punishing people for acts committed before a law is passed making the act illegal.

In either case the decision is for the best. Otherwise people could be punished for acts that occurred many years ago. State registration statutes have been in effect for many years and the states are capable of punishing people who failed to register prior to 2006.

This is going too far. James Nichols was arrested for going to church.

Nichols is a convicted sex offender. North Carolina has a law that convicted sex offenders cannot come within 300 feet of any place intended primarily for the use, care or supervision of minors. Nichols was arrested on a Sunday afternoon after attending services at the Moncure Baptist Church. The Moncure Baptist Church has a daycare program for children.

Nichols’ arrest has three problems. The first is a factual issue. Can a church be a place intended primarily for the use, care or supervision of minors? I doubt it. The primary purpose of a church is to propagate religion and serve as a place of prayer. Second, it is vague. What is a place intended primarily for the use, care or supervision of minors? Would that include a residence where a family with children live? Would that include a courthouse which has a daycare center for children while their parents are in court? Would it include a public beach? Due process demands that laws be written in a way that people can know when they violate the law. Here there is no way to know what places the sex offender must avoid. Third and most important is that the law criminalizes First Amendment activity. The First Amendment states, in pertinent part:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .

The Fourteenth Amendment extended the First Amendment to the states and thus legislatures are prohibited from making any law which prohibits the the free exercise of religion. Nichols is challenging the arrest and the interpretation of the law. I hope he wins.

This is not to say that the church cannot forbid Nichols from joining the church or attending services. The minister or the congregation can ban him, although one of the goals of most churches is to bring sinners to religion. But the government cannot under the First Amendment prevent people from practicing their religion. Why don’t we leave the question to the minister and the congregation. They can determine whether they feel threatened by Nichols’ presence.

In People v. Nichols the California Court of Appeal for the Third Appellate District upheld a 28 years to life sentence for failure to register as a sex offender within five days of moving. Under the state’s Three Strike law David Allen Nichols was sentenced to 25 years of life for failing to register and an addition three years for three prison priors.

Despite appellate counsel’s inventiveness in raising insufficiency of the evidence, challenges to the trial court’s admission of evidence, cruel and unusual punishment and the refusal of the trial court to to dismiss the three strike allegations the Court of Appeals affirmed the lower court’s decision.

It found that there was no Romero error in the trial court’s refusal to strike the three strikes allegation since the trial court did not abuse its discretion in that Nichols deliberately violated the law by not registering his current address and by absconding from parole. In light of his prior crimes (robbery, bank robbery and oral copulation) he is a danger to society and his failure to register puts him within the spirit of the Three Strikes law and therefore the trial judge acted rationally and within the spirit of the Three Strikes law.

But putting Nichols away for 28 years to life, and in California with it’s reluctance to parole people it is a life sentence, really necessary considering that there are 150,000 prisoners in prisons built for 80,000 people. The Federal courts have ordered that California reduce its prison population by 40,000 in the next two years because the state cannot afford to provide medical care for 150,000 prisoners and it is cruel and unusual punishment to keep human beings in prison without reasonable medical care. The State has a 27 billion dollar deficit and is looking for ways to cut expenditure and it has no facilities or money to properly increase the prison medical budget. As the Federal courts have pointed out the lack of reasonable medical has led to the unnecessary deaths of all too many people in the California prisons and rulings like that in Nichols while legally justifiable will only lead to more deaths unless something is done to ameliorate the overcrowding of California prisons.