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Park v. State

Supreme Court of Georgia

March 4, 2019

PARK
v.
THE STATE.

          MELTON, CHIEF JUSTICE.

         We granted an interlocutory appeal in this case to address Joseph Park's facial challenge to the constitutionality of OCGA § 42-1-14, which requires, among other things, that a person who is classified as a sexually dangerous predator - but who is no longer in State custody or on probation or parole - wear and pay for an electronic monitoring device linked to a global positioning satellite system ("GPS monitoring device") that allows the State to monitor that individual's location "for the remainder of his or her natural life." Id. at (e). For the reasons that follow, we conclude that OCGA § 42-1-14 (e), on its face, authorizes a patently unreasonable search that runs afoul of the protections afforded by the Fourth Amendment to the United States Constitution, and, as a result, subsection (e) of the statute is unconstitutional to the extent that it does so.[1]

         By way of background, in 2003, Park was convicted of child molestation and nine counts of sexual exploitation of a minor. Park was sentenced to twelve years in prison with eight years to serve. Upon his release from custody in April 2011, the Sexual Offender Registration Review Board ("SORRB") classified Park as a "sexually dangerous predator" under OCGA § 42-1-14 (a) (1), [2] which was a designation that required Park to wear and pay for an electronic monitoring system for the remainder of his natural life. Id. at (e).

         Following his release on probation, Park sought re-evaluation of his classification, but the SORRB upheld his classification. See OCGA § 42-1-14 (b). Park then sought judicial review of the agency decision in Fulton County Superior Court pursuant to OCGA § 42-1-14 (c), claiming that his classification violated his due process rights, and that the classification constituted ex post facto punishment because it would require him to be monitored through a wearable GPS monitoring device. The superior court upheld his classification, and Park's application for a discretionary appeal from the superior court's ruling was denied by this Court. With that, Park's classification as a sexually dangerous predator became final, and he is now required to wear a GPS monitoring device for the rest of his life.

         Following a violation of his probation in November 2011, Park's probation was revoked and he was returned to prison. Park completed the remainder of his sentence and he was released from custody in April 2015. Thereafter, he registered as a sex offender with the DeKalb County Sheriff's Office pursuant to OCGA § 42-1-12 (e) and (f), and he was fitted with a GPS monitoring device pursuant to OCGA § 42-1-14 (e).[3] In February 2016, Park was arrested and indicted for tampering with his ankle monitor, in violation of OCGA § 16-7-29 (b) (5) (prohibiting removal, destruction, or circumvention of a monitor worn pursuant to OCGA § 42-1-14). Park filed a general demurrer, arguing that he could not be prosecuted under OCGA § 16-7-29 (b) (5) because the predicate statute, OCGA § 42-1-14, was unconstitutional. Some of the grounds upon which Park challenged OCGA § 42-1-14 related to his 2011 classification as a sexually dangerous predator.[4] However, he also raised constitutional claims challenging the required electronic monitoring imposed by OCGA § 42-1-14 (e) with respect to those who have been classified as sexually dangerous predators.[5] Following a September 26, 2017 hearing, the trial court found OCGA § 42-1-14 to be constitutional and overruled Park's demurrer, but granted a certificate of immediate review. We granted Park's application for an interlocutory appeal to determine whether the trial court erred in rejecting Park's claim that OCGA § 42-1-14 is unconstitutional.

         1. As an initial matter, Park's constitutional claims relating to his classification as a sexually dangerous predator are barred by res judicata, and they will not be addressed on the merits here. Park raised constitutional due process and ex post facto claims with regard to his classification under OCGA § 42-1-14 in his failed 2011 petition to be re-evaluated. Indeed, he specifically raised these constitutional challenges in this Court when he filed an application to appeal from the denial of his petition, and this Court declined to review those challenges. Because those claims were already decided against him, and his additional "constitutional challenges to the statutory provisions regarding classification . . . could and should have been raised in [Park's] petition for judicial review of the Board's classification," he is precluded from raising them here. See Sexual Offender Registration Review Bd. v. Berzett, 301 Ga. 391, 394 (801 S.E.2d 821) (2017). See also Coen v. CDC Software Corp., 304 Ga. 105, 112 (2) (816 S.E.2d 670) (2018). Accordingly, those portions of the trial court's order relating to the classification procedures of OCGA § 42-1-14 are affirmed.

         2. Turning to the constitutional issue properly before us, Park contends that OCGA § 42-1-14 (e) is unconstitutional on its face because it authorizes an unreasonable lifelong warrantless search of sex offenders who are classified as sexually dangerous predators by requiring such offenders to wear and be monitored at all times through a GPS monitoring device. In evaluating this claim,

we recognize at the outset that all presumptions are in favor of the constitutionality of an Act of the legislature and that before an Act of the legislature can be declared unconstitutional, the conflict between it and the fundamental law must be clear and palpable and this Court must be clearly satisfied of its unconstitutionality. Moreover, because statutes are presumed to be constitutional until the contrary appears, the burden is on the party alleging a statute to be unconstitutional to prove it.

(Citation and punctuation omitted.) JIG Real Estate, LLC v. Countrywide Home Loans, Inc., 289 Ga. 488, 490 (2) (712 S.E.2d 820) (2011). Furthermore,

outside the First Amendment overbreadth context, a plaintiff can succeed in a facial challenge only by establishing that no set of circumstances exists under which the statute would be valid, i.e., that the law is unconstitutional in all of its applications, or at least that the statute lacks a plainly legitimate sweep.

(Citation and punctuation omitted.) Blevins v. Dade Cty. Bd. of Tax Assessors, 288 Ga. 113, 118 (3) (702 S.E.2d 145) (2010). With these principles in mind, we turn to the constitutional question at issue.

(a) Does the required GPS monitoring authorized by OCGA § 42-1-14 (e) qualify as a search under the Fourth Amendment?

         To begin our analysis, we must first address whether the requirements of OCGA § 42-1-14 (e) create a search for purposes of the Fourth Amendment. Subsection (e) states:

Any sexually dangerous predator shall be required to wear an electronic monitoring system that shall have, at a minimum:
(1) The capacity to locate and record the location of a sexually dangerous predator by a link to a global positioning satellite [GPS] system;
(2) The capacity to timely report or record a sexually dangerous predator's presence near or within a crime scene or in a prohibited area or the sexually dangerous predator's departure from specific geographic locations; and
(3) An alarm that is automatically activated and broadcasts the sexually dangerous predator's location if the global positioning satellite monitor is removed or tampered with by anyone other than a law enforcement official designated to maintain and remove or replace the equipment.
Such electronic monitoring system shall be worn by a sexually dangerous predator for the remainder of his or her natural life. The sexually dangerous predator shall pay the cost of such system to the Department of Community Supervision if the sexually dangerous predator is under probation or parole supervision and to the sheriff after the sexually dangerous predator completes his or her term of probation and parole or if the sexually dangerous predator has moved to this state from another state, territory, or country. The electronic monitoring system shall be placed upon the sexually dangerous predator prior to his or her release from confinement. If the sexual offender is not in custody, within 72 hours of the decision classifying the sexual offender as a sexually dangerous predator in accordance with subsection (b) of this Code ...

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