[00:00] Introduction: Welcome to Registry Matters, an independent production. Our views are solely our own. We’re thankful for the support of our patrons. You make what we do here possible. Join us as we dive into important discussions every week. And always remember FYP.
[00:23] Andy: Recording live from FYP Studios East and West. Transmitting across the Internet, this is episode 364 of Registry Matters. Larry, it is a fine Saturday evening. How are you?
[00:34] Larry: I’m nice and cool today. It’s, 19 degrees this morning, so it’s more like your weather now. That’s cold. Jeevers.
[00:43] Andy: Please, as always, in your podcast app, in your, YouTube videos, in your, I don’t care where it is. Thumbs up, like, subscribe, follow, five star rating. You know the drill. Especially, that is how you can support us and show the whole world that you are a fan of Registry Matters. And then, of course, we have the dozens of people that are patrons that are listening to us live. If you could why are you putting that in the chat, man? Anyway, become a generous patron over at patreon.com. If you’ve been listening for multiple years and we spend our time sharing it with you and you have the resources, it would be really helpful to help us out. Don’t you think, Larry? I think that’s a good idea. And I know there’s some people in that category. Alright. So tell us what we were doing. Was that too much on the nose?
[01:41] Larry: Well, we have some good news from the Supreme Judicial Court of Massachusetts in a case that involves GPS monitoring. And we have some listener questions, either two or three. One deals with a pilot and his need to travel outside The United States. The other deals with registration or moving from one state to another, which is really more of a comment on observation. And, if time permits, we have a third exchange of a segment of firsthand accounting from PFR civil commitment in the state of Iowa.
[02:14] Andy: Does anybody live in Iowa? Don’t they have, like, 45 people? A tad bit more than that. Jeepers, man. Those are those places where there’s far, far, far, like, the lowest population densities in The United States. Big ass open places and a handful of people live there.
[02:32] Larry: Well, but that’s where we have to get our food from. Remember?
[02:36] Andy: That’s true. It’s pretty important. So here is the first question slash comment. It says, good morning. Do we have a name for this person? Even like a first name? We did, but I didn’t put it in because I was afraid of re revealing it. By the way, Iowa has 3,200,000
[02:51] Larry: people.
[02:54] Andy: Alright. Well, so somebody is this person from Iowa? I don’t think so. Oh, alright. Well, good morning. Thank you for answering my question on the podcast. It is surprising to me how much, how each state has such different requirements. I live in Pennsylvania where tier one is a fifteen year term and automatically ends. There is no court petition or additional requirements. I am wondering if you or the audience knows of states that also end automatically after completing the term. Thank you for support. Well, I I know one of them. I don’t know of very many.
[03:30] Larry: What state do you know that automatically ends the term other than BA? Isn’t it Vermont that after 10 you’re removed from the registry? That would be one. Yes. There are others. That’s the only one I know of. Well, actually, yours truly, we do that here, but it’s only for a small list of offenses. But they automatically, in after ten years and some in in after twenty, automatically hear a no petition. They just send you a letter.
[03:55] Andy: Well, that’s kinda snazzy.
[03:58] Larry: And, like, that’s three. Three out of 50? No. There are others. I don’t have the complete list, but there are other states that automatically end. But the problem that this, lister may run into is if he were to try that in New Mexico, we have what’s called Regina’s Law here. And that’s, an invention of my part because of the former head of the registration for the state was named Regina. Okay. And Regina was tasked, her department was tasked with formulating, promulgating and formulating regulations to affect the Sex Offender Registration Notification Act. And she decided that since it says that you shall register for ten years after your initial registration and for ten or twenty, whichever the case may be in those instances, she s decided that that means, under Regina s interpretation of New Mexico code, you could theoretically finish your ten years in Vermont and come here. And under Regina’s law, you would start all over again with ten years again, if it was the ten year translated if the offense translated to ten years. Now, that would be funny if you moved here and then they told you, what? By the way, it’s not only not a ten year, it’s a lifetime or it’s a twenty year. You have to get start you have to start all over. You have to admit that’s funny. Right? That’s definitely funny. Hey, someone in chat says that, Washington state automatically
[05:16] Andy: ends if you’re convicted by the state, which I’m assuming the opposite would be if you were convicted by the feds?
[05:23] Larry: I don’t know why there would be any difference because the feds don’t control registration. But they could have incorporated in their law that that you get off automatically unless there’s a different term prescribed by the federal, sorter. They could have done that. But this answer, I’d like to add to it. The AWA, the horrible thing that everybody gripes about, it does not require nor does it even suggest that there should be a petition process at the end of the recommended tier terms. This is an invention of the states to create work for attorneys and to placate victims and their advocate, advocate apparatus.
[06:02] Andy: Well, this individual says, yes. PFRs convicted out of state or federally must petition in Washington.
[06:10] Larry: So, yeah, that’s all I did. It would be different, but that’s their prerogative to do that.
[06:15] Andy: And and I and I mistakenly said 50 states. Should I start saying 51? Because we’re gonna have that new giant territory to the Northeast.
[06:22] Larry: Yes. But also, we had 54 when Obama or was it 57 when he was president?
[06:30] Andy: Alright. Moving on. Weird world. I have been contemplating contacting you for a number of years. It is finally time, and I am ready to ask whether my experience might be appropriate for discussion on registry matters. That’s us. I am a registered individual who works as a professional pilot. I started my career as a US Air Force pilot. Since release from a military brig in 2015, I have been continuously employed in aviation. I currently serve as the head of an aviation department for a private company. My work occasionally requires international travel on short notice. In practice, the twenty one day international travel notification requires, excuse me, requirement makes it impossible for me to reliably perform essential parts of my job. Aviation does not operate on fixed timelines, emergencies, weather, and business needs often require immediate decisions. When that happens, I am forced to choose between declining critical work, imposing significant costs on my employer, or risking a technical violation. I want to be clear that I am not attempting to change what foreign countries do. My concern is with US law and how it operates domestically. I often hear people like me free to travel, but that are, that is not completely true. During those twenty one days, I am not free to travel for work, family, or emergencies without fear of investigation or prosecution. This situation has had serious psychological impact. The constant fear of inadvertent noncompliance combined with the responsibility of transporting others safely has been exhausting. It has affected my mental health, my family, and my professional stability. I’m not seeking sympathy, and I’m not disputing my past. I’m trying to understand whether others are experiencing similar employment based harms and whether these laws are being examined for their real world consequences. If this sounds like something that may be useful to discuss, I would be open to open to sharing more details. I have also recently contacted NARSOL to inquire about possible legal avenues. Thank you for all the work you do. Best regards.
[08:32] Larry: Okay. Well, we deliberately omitted that name because this individual is very unique in many ways. We’ll call him John as in John Doe. Well, or William or some very common name. But but, the first thing that was odd about him is he actually answered his phone. After I responded to his email, I told him, I need to answer the phone because I don’t play tag and he answered it. So I gave him kudos for that. But beyond that, he’s amazingly articulate. I think he’s, in his prior life, he was at broadcasting. Okay. And, and he has an amazing ability to communicate in a way that is very disarming, which has prevented him from being in what would have been a troubling situation for others. So this person has a lot of potential in many regards. And, but as we batted this around on the hour conversation we had, I think that he does have some avenues. I’ve always thought of the international travel twenty one day advance notice. I think it is constitutional, but I think it has to provide for exigent circumstances, which it does not. So, therefore, I believe that if they would barely focus a challenge on that and a couple of provisions of IML, you might be able to gain traction because you do have a right to travel. You are only in a civil regulatory scheme, and this prevents all but three week in advance planned travel, which is not what our travel right entails. It has to be you have complete freedom to travel. So, therefore, it’s infringing on his constitutional right to travel. You agree with that? I believe I do, especially the way that we talked about it. But, I think that after batting this around in my head and with you and with him, I think that he actually does have something that could be taken to court. And, I explained to the individual that part of the problem is lack of resources. There are a lot of things that are good challenges legally, but we just don’t have the monetary resources in the registrar community. We do not have the ability to draw money from private foundations. We do not have the ability to get government grants for our work. Our government grants are non existent. Our money comes directly from you, the registrant community, and from cases we win and if we are able to collect prevailing party fees. So registrants, hear that very carefully. What keeps us from being able to litigate is oftentimes that we don’t have the money, and oftentimes a lot of you that could don’t contribute. And but I think his pathway would be a a petition for declaratory judgment. Damn. You’ve heard that before, haven’t you? I hear it for but here you usually say it in a very disdained kind of framing, almost like a summary judgment. Yes. Well, in this case, it’s a good tool to use. It’s the right vehicle when you’re asking a court to establish what your laws and what your responsibilities are under a particular law and whether you’re covered by a particular law. And I think that where I’m confused is I haven’t had enough time to cogitate about whether we would file it in federal court or state court. My inclination is we would file it in state court because this particular thing is something that’s been imposed by the nameless state that he lives in that I’m not gonna, disclose right now. Yes. But it’s it’s similar to many other states that have adopted that recommendation from the Adam Walsh Act that you have to require your PFRs to give twenty one days written notice to the registrar in the state that he lives in has done that. But since it’s a state law at the behest of federal law, that the federal law is clearly not enforceable in my mind, if it’s not in your state law because you haven’t received the requisite notice, that you’re obligated to do that. And since you have to report it to your registrar, your registrar doesn’t collect it. I don’t know how you would report it. But I think he would probably I’m leaning towards he would file a petition for declaratory judgment in the state where he resides and ask a trial level court to determine that under the scenario to which he’s traveling, he’s basically not traveling in my estimation. Yes, he is moving across Earth, in the air, and he is crossing international boundaries. But he’s not entering these foreign nations, per se, as a visitor. He’s dropping off passengers and picking up passengers and delivering freight and equipment, and he’s entering the country only briefly and departing, which is not what the IML, that notification, is intended to do. It’s intended to prevent people from lurking around the country undetected preying on vulnerable victims. Well, he’s not lurking around the country. So, I think he might have a shot at getting a declaration that he is not actually traveling internationally even though he’s crossing international boundaries. I know it sounds crazy, but I think he might be able to do it.
[14:04] Andy: And and and I hope that, the example that I gave, if if you are flying from New York to Los Angeles and you have a layover in Chicago, do you have to then immediately hop off the plane, go down to the registry office and tell them that you’re here because you have landed there for two hours? The answer is no. Or if you’re driving, I used to travel a lot and drive from Georgia to some other place, and I didn’t visit every state along the way. How is this like I’ve realized international boundaries are different, but this sounds incredibly similar to that.
[14:37] Larry: It does indeed. Now, I would push back slightly on the airport. Theoretically, if you’re in Chicago’s or here airport, you might be able to do some inappropriate stuff because that is a busy place. Airports are busy. But, if you’re sitting on the tarmac in PODUC City, you name a country in Latin America because that’s where I think he flies typically to, maybe Mexico or some other countries. If you’re flying onto a facility there and you’re not ever actually getting out of the aircraft and they’re coming to the plane and they’re saying, hey, I need to see your whatever, all that they collect. And this is where we need our, our patron Brian to explain what all they would collect. But if he’s never leaving the aircraft, he has not actually entered the country per se for what they were trying to prevent. If you’re in Chicago at the airport, you you actually have entered the airport. There are minors in the building. But he doesn’t have any he doesn’t have any opportunity to do any of that stuff. Yeah. He’s just whatever, like, handing paperwork over to the flight crew, refueling, whatever, and then out the door he goes. I think that he’s got a justiciable contra controversy, and I think he’s got a small to moderate probability of success. I would need to talk with an open minded, attorney or two and figure out what the pros and cons would be of going into federal court versus state court. Right now, I want to do state court, but he told me that his state is so conservative that he doesn’t believe that, that any court would give him a fair shot. And, of course, that narrows it down to about half of our states that are very conservative.
[16:22] Andy: I mean, at least that. Sure. So, but Now can I can I kinda put you out just, what does a declaratory judgment say? Does it just say, I, judge so and so, declare that William, John, whatever name we’re using, when he travels for work in this manner, is not traveling regarding to IML,
[16:44] Larry: signed judge so and so? Is that it? That would be yeah. It would be a petition. It would be styled petition for declaratory judgment. It would cite the section of the law of the state that allows you to bring such an action. It would cite the facts of why you’re asking for the declaration from the judge. And the judge would simply say that under the interpretation here that this person, if they’re on a tarmac in a foreign nation, they have not entered for purposes of the you wouldn’t use IML, you would say the state registry. So, if you were to file it in the state of Alabama or the state of Colorado or whatever, you would say that under Colorado law under this section, the judge would proclaim that simply stopping over at an airport facility does not constitute entering that nation. Therefore, he is not obligated to report that. That’s what that’s the limit of that declaratory action. It would not say that he’s not subject to IML reporting requirements. It would just say that that does not constitute international travel as defined in that section of law.
[17:48] Andy: I would even want to extend this one step further, Larry. I’m gonna guess, like, the guy probably has a passport and v and a visa, depending on whatever. But he probably doesn’t need one to do this. He has one for personal purposes, but he doesn’t have one for this. Therefore, that further supports the whole idea that he’s not, quote unquote, traveling regarding IML kind of obligations?
[18:17] Larry: I don’t know if he has to show that that when they when they come up to the window of the plane, and I don’t think they actually come up to the window, but however they exchange documents, I doubt they they probably do ask for a passport, but I don’t know that for sure. Again, it’s out of merit of expertise. I’ve never left US borders. But, if he’s there as a passing through simply to fuel, pick up a passenger, and return to The United States.
[18:47] Andy: I don’t think he entered that nation. I really don’t. I agree. Yeah. I agree with you. I completely agree with you. It’s interesting. Very interesting. And and I’m sure that this was never even brought up when they were talking about IML. What happens
[19:02] Larry: if we have this pilot who’s going to do something? Who would have ever thought to to Nobody would even thought of it. Stupid Mike Smith from his from New Jersey. Yeah. But but nobody would ever thought of this question. And that’s why the PFR community needs to be present when these things are debated because you would give testimony about how this has not been addressed. And there’s a gap in the law, and it’s gonna cause confusion and unequal enforcement and all sorts of problems. But since you weren’t there when it was debated, there was nobody speaking on your behalf explaining these nuances.
[19:35] Andy: I’m with you. Alright.
[19:38] Larry: Time for the main event. Alright. You Before before we go to the main event, sometimes things seem absurd. And this is no longer the case, but just to show you how things can be absurd. When I moved to this state forty plus years ago, technology wasn’t what it is today. And, when you got a traffic ticket, the police could not log in to computer systems and the court system in the eighties when I arrived here. That that technology didn’t exist. So they gave you a, a citation and the citation said you need to set up a court date within ten days. I believe it was what it said. You know, you’ve got ten days to set up a court date. Well, that was not an order of the court because you had never appeared in court. That was merely a direction from the police officer. Well, people didn’t bother to appear in court. And, I got rear ended by a guy with a big old Chevy van when I was driving a little tiny vehicle and he got got hurt. I wanted justice and I was, not understanding why he did a hit and run and then he didn’t fail he failed to appear after they tracked him down at the hit and run. They gave him a citation for hit and run and he didn’t appear. And, they explained to me, when there was no warrant issued for him not appearing, they explained to me that he had not failed to appear. I said, well, you people told him that on the on the summons that he had ten days to appear, and he didn’t appear. And, they said that is correct, but that was the police giving him the direction to appear and set a court date. He never set a court date, so it’s not failure to appear unless you appear and then stop appearing. He had never appeared at the direction of a court, so he had not failed to appear because the court had ordered him to appear. So, you have to appear first, under the the way the the system worked back then, and then you had to stop appearing. That was failure to appear after the court had set a date for you. But the the officer telling you, you need to get down to the court, set a date. It was not failure to appear if you never appeared. Right. Well, can you at least admit that’s funny? Definitely the funniest thing ever. Yeah. Well, I couldn’t understand it, but they changed the law now because of technology when you when you get a citation. Just by the way, don’t sign the title citation. Don’t accept the penalty points. There are too many things that can go wrong in the case that can go right for you. It doesn’t do the officer any favor. The officer hates it when you sign the type of citation. At least here they do because they will get overtime to appear in court. They they are vomiting all over themselves when you sign the the citation at bit guilt. They want you to say, set a court date, but now they issue you a court date right on the spot. And And it’s under the authority seal of the of the court. And they hand it to you and say you have been ordered since you plead not guilty to appear in court. And now it is failure to appear if you don’t appear. But back then, if you never appeared, it wasn’t failure to appear.
[22:41] Andy: I gotcha. Alright. Well, you have this case in here from the Supreme Judicial Court of Massachusetts, and I’m assuming that’s the state’s highest, tribunal? That would be correct. And this is the Commonwealth versus Arnold decided right before Christmas. Did we win? We did. Alright. Peace out. We’re we’re done. Good news. Good night. Alright. My research shows that general laws chapter two sixty five subsection, something provides that a defendant convicted of a certain PFR type crime shall be subject to global positioning system monitoring at all times for the length of his probation. That’s the law. Has it been previously upheld as written?
[23:31] Larry: No. It has not. Back in 2019 in the case of Commonwealth versus Feliz, 41, Massachusetts, 689690 To 91. And it’s also in the Northeastern reporter and blah, blah, blah. The court held it mandatory imposition of GPS monitoring as a condition of probation without an individualized determination as to the reasonableness of such of such a search violates article 14 of the Massachusetts declaration of rights.
[24:03] Andy: Alright. Well, here we go again. A bunch of liberal pointy headed judges overruled the will of the people and legislated, from the bench back in 2019. I should have figured that would be the case. Well, it seems to me that legislating from the bench is wonderful when you agree with the what the black robes choose to legislate from the bench. It’s amazing that the people don’t like it except for when they like it. I I like it when I like it. The appeal raises questions concerning the duration of GPS monitoring. The court stated, for reasons we elaborate on today, the reasonableness of GPS monitoring as a probation condition turns in part on its duration. A judge conducting the individualized determination required that feliz, therefore, must consider the duration of GPS monitoring condition. Moreover, as a result of our holding in feliz, a judge may order GPS monitoring of a defendant under subsection 47 only for a duration, if any, that the judge determines to be reasonable. Tell us about this defendant.
[25:06] Larry: Well, in March 2012, Arnold plead guilty to one count of rape of a child, two counts of rape of a child aggravated by age, which means the child was younger, two counts of incest, and one count of indecent assault and battery on a child around the age of 14. The victims were the defendant’s own children. Other details had to be admitted due to being rather graphic, and we can’t do that on family pro program. But the the victims disclosed this information when they were still minors, and the defendant was 53 years old. Now in some of the Southern states, that list of charge for that severity, he would never be breathing free air again.
[25:47] Andy: Definitely not. Definitely not. Arnold received concurrent said sentences on the six charges amounting to a total of from ten years to ten years and one day in a state prison followed by ten years of probation. His conditions of probation included GPS monitoring for the entire period of probation under subsection 47. The GPS exclusion zones required by subsection 47 were not established at the time of his sentencing. The reference section requires the commissioner of probation to establish, defined geographic exclusion zones including, but not limited to, the area in and around the victim’s residence, place of employment and school, and other areas defined to minimize the probationer’s contact with the children’s, if applicable. How did Arnold get this matter before the state state’s highest court?
[26:38] Larry: Well, he, he he did it very carefully. In September 2021, Arnold had completed his prison sentence and began his probationary term subject to the monitoring. In February 2024, he filed a motion seeking the individualized determination required by feliz of whether the GPS monitoring condition was reasonable. He argued that the condition violated his rights under the Fourth Amendment of the U. S. Constitution and Article 14 of the State Constitution because the intrusion of his privacy interests interests were not sufficiently justified by their countervailing government interests and because the ten year duration was arbitrary and excessive, which it was, they just simply matched it to his term of probation. In support of his argument, he pointed to his compliance thus far with all conditions of probation, the reduced risk of recidivism generally posed by a person of his age, which was then 65, assessments conducted by his counseling program concluded that he posed a very low risk of reoffense, notwithstanding his level three classification by the Sex Offender Review Board. And the lack of defined exclusionary zones to protect the victims such that the defendant, such as he what his name was Arnold, such as Arnold argued, the GPS monitor and served, no meaningful purpose.
[27:59] Andy: Well, then how did the state attempt to justify the long period of GPS monitoring? Obviously, they knew about feliz.
[28:06] Larry: Well, they did. They introduced statements from the victims expressing their ongoing fear of Arnold and describing harms they continue to suffer as a result of of the crimes. These harms included, among others, post traumatic stress, chronic anxiety disorders, insomnia and night terrors, and feeling haunted and a constant state of crippling stress and anxiety at the thought of contact with Arnold. The Commonwealth argued that imposition of the GPS monitoring was required to protect the public given the nature and gravity of his offenses and his level three SORB classification and also urged that the exclusion zone should be established to protect the victims.
[28:49] Andy: So how did that argument go?
[28:52] Larry: Well, very well for the state. In a memorandum decision, an order entered on 06/05/2024, the judge denied Arnold’s motion for relief from GPS monitoring from that condition. The judge also directed that the GPS exclusionary zones be established for both victims and instructed the parties to file a motion with the court by 06/28/2024, if there were any inability to set exclusionary zones or abide by them due to present residences or employment. According to the court, no such motion was filed.
[29:26] Andy: Arnold appealed judge’s order, and the state’s highest court allowed his application for direct appellate review. That seems like that would be something that’s unusual.
[29:36] Larry: It normally would be, but based on Feliz, they decided that, hey. We need to nip this in the bud. So we’ve already ruled on this before. So but, yes, that would normally not be the trajectory. He would have had to have waited for an for a mid level appellate review before getting to the Supreme Judicial Court.
[29:52] Andy: Arnold argued that the ten year duration of his GPS monitoring condition originally sent sent excuse me, originally set at his sentencing under subsection 47 to match his ten year probationary term is an arbitrary and unreasonable duration that violates his unconstitutional rights under the fourth amendment and article 14 and that the motion judge who declined to vacate the condition upon, conducting the individualized determination required by Feliz erred in failing to evaluate the duration of the condition. Now I read in the decision that they normally use the abuse of discretion standard when reviewing the denial of a condition of probation. Now that’s a really high standard to meet. How did Arnold overcome that?
[30:36] Larry: Well, you’re correct. That’s what he would have been required to do with most situations because judges have broad discretion. But the court riveted that. They stated, although ordinarily, we review a judge’s decision on a motion to vacate a condition of probation for abuse of discretion, which is an extremely high standard. We conduct an independent review, whereas here the judge’s decision is based on a constitutional determination, meaning completely different framework if you simply don’t like that they gave you a curfew. Well, that’s not a decent description. But this sounds like then GPS monitoring is not a search. It is a search. That’s that’s the reason why this this track it’s a search and seizure of of the most private information you have. Yeah. Like your whereabouts.
[31:22] Andy: Where are you now?
[31:24] Larry: So it is indeed a search. The court stated GPS monitoring is a search under the fourth amendment and article 14 of the state constitution. And they cited feliz again, and I got all that citation there. And they also cited Grady versus North Carolina. We saw a US Supreme court decision in 2015. And, they concluded that it’s a warrantless search, and that it’s and all warrantless searches are presumptively unreasonable, and and, are not presumptively reasonable. They’re presumptively unreasonable, and therefore, presumptively unconstitutional.
[31:57] Andy: What is the burden on the state of Massachusetts that they must overcome to justify the monitoring?
[32:04] Larry: Well, to prove reasonableness of the GPS monitoring as a probation condition, the Commonwealth must establish that the government interest imposing GPS monitoring outweighs the privacy intrusion occasioned by GPS monitoring. Again, going back on police. And then because because reasonableness depends on the totality of the circumstances, no one factor will be positive of every case, and they quote a Grady. That’s a Supreme Court case. The Government’s interest in opposing GPS monitoring depends on the extent which the search advances a legitimate Government interest. The Commonwealth must establish how GPS monitoring of this particular defendant furthers its interest and then the court considers the weight of this interest. So they just can’t say, well, you know, it’s just to keep the victim safe. You can’t just do that. You’ve got to give particularity. You’ve got to have a bill of particulars, so to speak.
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[33:46] Andy: Now the court recognized that the Commonwealth invoked two legitimate government interest in GPS monitoring of Arnold. First, the government has a valid interest in deterrence where the Commonwealth provides sufficient evidence that a defendant poses a demonstrable risk of reoffending. And as the judge did here, a judge may rely solely on Sorb’s classification of a defendant as sufficient evidence to establish such a risk. Also, where the crime of which a defendant has been convicted was committed against a specific identified victim, the Commonwealth may have a strong interest in enforcing exclusion zones in order to prevent further victimization of that individual. The court noted that exclusion zones ensure that defendants stay away from victims, thereby protecting victims’ safety provide by providing them with a safe haven. How are those interests then balanced against the defendant’s privacy rights?
[34:38] Larry: Well, the court answered that. They said with respect to a defendant’s privacy interests, although a probationer has a diminished gee, you’ve heard me say that. Diminished expectation of privacy relative to the general population. The government does not have unlimited ability to infringe upon it. She also said that too. They recognize that GPS monitoring results in a far greater intrusion on a probation or celebrity than that associated with traditional monitoring, meaning the probation officer may show up at 09:00 at night. It requires the probation department to attach a GPS device to the defendant’s person. Though you don’t wear it, they attach it in such a way that the defendant cannot remove the device, thereby significantly burdening the defendant’s liberty interest in, in bodily autonomy and integrity. If they attach something to your body, that’s pretty intrusive.
[35:29] Andy: Yeah. And it’s hard to go out and wear shorts and not have everyone know what is happening. Perhaps you could wear long pants and cover it, but not in the summertime when you’re wearing shorts and it’s a 100 degrees. Beyond that, they stated, the information exposed through GPS monitoring is uniquely revealing. It provides the government with a detailed encyclopedic, and effortlessly compiled log of the individual’s movements. As currently in use in the Commonwealth, GPS devices collect one data point of latitude and longitude per minute, as well as information about a wearer’s speed of travel such that it is possible to tell if a person is driving, running, or walking with data then stored for an indefinite amount of time. Now this sounds like the court understands the GPS more than most for real. It it does. A bunch of damn liberals say ought to be kicked out of office. They do. And they stated, we agree with the defendant.
[36:23] Larry: And that would be Arnold. That because of the nature of GPS monitoring as a search, a judge determining the reasonableness of a GPS monitoring condition must consider, among other circumstances, the duration of the monitoring. The appeals court recently expressly so held in Commonwealth v. Streed, which was a 2025 decision. A case also involving a defendant sentenced to ten years probation with GPS monitoring pursuant to subsection 47 prior to the lease. Stree dually recognized that a Judge must consider the incremental effect of GPS monitoring over time would have on, defendant’s liberty, weigh that against the government’s interest in monitoring and determine an appropriate period of monitoring. Folks, try to understand. You can’t do anything you want to do as long as you don’t use the blanket broad brush. If if you want to give somebody a GPS monitoring, set a specific period of time. State the reasons that are unique to that individual and it will withstand appellate scrutiny.
[37:28] Andy: The conclusion states whether GPS monitoring as a condition of probation is a reasonable search turns in part on its duration, and the Commonwealth bears the burden of demonstrating the GPS monitoring is reasonable for the entire ordered duration, notwithstanding the requirement in GLC what is GLC? General Pause, chapter two sixty five, subsection 47. Oh, that excuse me. So notwithstanding the requirement of general laws, that a defendant sentenced there under shall be subject to GPS monitoring at all times for the length of his probation. A judge may order GPS monitoring only for a duration, if any, that the judge determines to be reasonable even if the resulting period of GPS monitoring is shorter than the defendant’s probationary term. Now what will happen next for mister Arnold?
[38:19] Larry: Well, the court stated, and this is a little bit confusing to me, so I’m gonna leave it a little bit vague. We vacate the order to enter on June entered on 06/05/2024, and that was the order denying the defendant’s motion. Every man this matter to the Superior Court for further proceeding consistent with this opinion. In the proceedings on remand, the defendant shall be given notice of all locations of any GPS exclusion zones, but what they didn’t say was that the duration shall be set. It seems like to me that’s part and parcel to this whole thing. They have to give him those specific exclusion zones, which they didn’t do in 2024, and they have to set a duration that’s less than a ten years. But it didn’t say that. So let’s leave it at what they did say.
[39:02] Andy: Alright. Well, interesting. Sounds good.
[39:09] Larry: Alrighty.
[39:10] Andy: And this then applies to other people in other places, or does it only apply to this dude in Massachusetts?
[39:15] Larry: Oh, no. This applies to the entire state of Massachusetts. Cool. And, and and not only that, since it is a respected court at some level, particularly in parts of the country. I don’t know if it’d be respected in Alabama, but this is is, powerful, persuasive arguments for other states. In fact, Feliz, Street, and now this one is in my repertoire because I wanna do this litigation here. We have it in our state law that a person has to wear GPS for the entire period of their post prison parole. It’s in the statute. And I wanna knock that down, before I croak. I wanna get that taken down. And you you guys there can have,
[40:00] Andy: parole for a really long time.
[40:02] Larry: Indeed. It can be anywhere from five to 20 or in a few instances for certain offenses, it can be five to life. That’s that, that qualifies as a long time. And it’s not really parole because you have to serve all your time before you get to that. We just call it parole. I did know that. Yes. You serve all of your prison time, manage your good time, which is 15% for most sex offenses. And then you get released on, quote, parole, and then you have all this stuff to deal with.
[40:31] Andy: Interesting. Well, then what’s the difference between parole and probation in in New Mexico?
[40:36] Larry: Well, the difference is who would be monitoring at the parole board administrative. You wouldn’t have an opportunity to go to court on violations like you go before a parole board hearing officer. In a court case of probation, you could appear before a court on violations. The rules of evidence would be different. The competency level of the, it would be much more formalized in court. Not completely formal. The rules of evidence in a probation revocation are somewhat relaxed, even in a real court. But at an administrative hearing, it’s Katie bar at the door. You don’t have you don’t have much in the way of due process.
[41:15] Andy: Do you wanna cover this final question? We’re at forty minutes. I think we should do it because you can read really, really fast. I can read significantly faster if I wanted to. So Alright. Well, this is question number three. Now this person asks, a couple years ago, I sent NARSAL a letter about the Iowa Civil Commitment Unit, a k a ccuso, in Cherokee, Iowa. Now I just recently heard it was printed or part of it since it gave you permission in the letter. My previous letter addressed the major issue we are facing with civil commitment here in Iowa. In this letter, I wanted to address the unconstitutional process of getting to a civil commitment trial here in Iowa. In my previous letter, I mentioned that on the tenth anniversary of the state’s civil commitment program, that only one person had successfully graduated and gave the many issues one faces in the failing program at CCUSO. The Cherokee newspaper where CCUSO is located had an article stating concern for CCUSO now that the civil commitment program is twenty five years old. I will enclose a copy of that article as they were concerned that now that the civil commitment unit which has over 300 men has only graduated 27 men in the twenty five year history. We have a facility that only manages to graduate an average of one person a year among the 300 men there. I will also enclose the enclose the newest statistics on CCUSO. In that statistic, you will see that since 2015, the number of men being civilly committed has skyrocketed. Now how does this continue?
[42:56] Larry: Because that’s what the voters at Iowa want. Alright then. Alright. Short segment again. Well, the writer also states, I want to address the unconstitutional process of getting a trial for civil commitment. Here in Iowa, before an offender is nearing release, the state has a multi discipline committee that meets and goes over the offender’s record and then makes a recommendation. The major problem is that the committee members are not professionals and most have little to no training in the field. Now that’s funny. They’re expected to make decisions that affect the rest of our lives. Seriously, and that’s a question mark. Then a recommendation is made to the attorney general’s office. This is when our own state codes and laws are not followed. No. They wouldn’t violate the law.
[43:45] Andy: I wanna drill down on what he stated about the laws not being followed. Now he said, first, most of the now former inmates had parole orders assigned and in hand when they are served papers holding them for a civil commitment trial. Second, offenders have not been charged with any new crimes yet were held without bail on the disciplinary unit at the Newton Correctional Facility until trial. Iowa code two two nine a point five is not followed by the state or the courts. Iowa code 2298.5 lists the following rights of one being detained as a safekeeper. A, to be provided with a prior notice of date, time, and location of the probable cause hearing which must be held within seventy two hours after detainment. There are not normally an issue with this being held timely. Now, b, to respond to the preliminary finding of probable cause, though it’s nice to get the process going within seventy two hours, it does not give us enough time to respond to the prosecution statement of probable cause and be ready for the hearing. C, to appear in person, we appear by video making it difficult to talk privately with our attorney. D, to be represented by counsel. Counsel’s automatically assigned to us from the special defense unit for the state of Iowa. Our attorneys warn us in advance not to speak at the hearing and to allow the attorney to do all the speaking. E, to present evidence on our own behalf. We are not allowed to present evidence on our behalf because personally or through our assigned attorney. Since the probable cause hearing must be held within seventy two hours, it would have been near impossible to gather or present evidence. A mutually agreed upon continuance should have been an order. Two more to go. F, to cross examine witnesses who testify against the respondent, we cannot call nor does the state call any witness. I have argued in my case that I had had I been able to present evidence, the court would not have had any reason to hold me. Same story with other safekeepers. And lastly, g, to view a copy of all petitions and reports on file with the court, a review of the record will will find I am not afforded the opportunity to speak at the hearing. I could not present evidence, cross examine, or raise any objection to the controversial accusations by the state prosecutor which heavily persuaded the judge to hold me for a civil commitment trial.
[46:13] Larry: K. Before I go to the script, I wanna push back just a bit on on number e, because he’s focusing on the probable cause hearing. I think he’s over reading that part there because the probable cause hearing doesn’t they’re not that in-depth because it’s such a low threshold that they’re having to meet. So probable cause hearing, yes, he technically what he and his attorney would have the right to do those things. But you’re gonna they’re gonna find probable cause in most cases because the so called experts that he described as not experts above, they’ve recommended it. And the attorney general has filed the petition based on that recommendation. So there’s where it breaks down to begin with. If those are true or not, professionals. And what’s even sadder about it now listen to what he said above. He said they filed this after you’ve been granted parole. So let’s assume that Iowa gives you parole after you’ve earned it by good behavior and doing all the compliant things, getting treatment. So they decide you’re safe enough and can be monitored safely in the community, and they agree to grant you conditional release on parole, and then a petition comes through your way. I mean, I can see his point, on that, but I just wanted to push back a tad, but that back down to the script. This is the foregone that you read is scary enough, but he went on to say, my counsel did not properly defend me in the probable cause hearing. This severely prejudiced me, resulting in the court ordering me to be held for a civil commitment trial, which took four and a half years to get to trial. Now, that’s the scary thing. If you’re gonna make a joke out of a probable cause hearing, then the the full adjudicatory hearing should happen rapidly, not four and a half years later, because you’re presumed you should be presumed that you’re ready for release and have have that four and a half years. I’d have to really find out why they did that. Again, reading on, he says again, four plus years sitting in prison, in a prison setting, when I could have been on parole and being a tax paying citizen and contributing to society. I don’t want to pontificate again, but that’s sad that that that that the professional parole board found him suitable for release, and then they they filed a civil commitment, proceeding and took four and a half years to to hear it.
[48:31] Andy: And it appears that many of the civil commitment problems begin with the process it takes to be civilly committed.
[48:38] Larry: Indeed, it does. He states, we have men who pass treatment, have very low re offense scores, and so on, still being committed by the courts. I’ve I have only seen one person win at trial in the past four and a half years of civil commitment. And if you read the attached statistics, you will see now I don’t have those available, but but it it Gander, it looked like those statistics bear out what he says.
[49:05] Andy: Now, I had always been under the impression that the commitment, quote unquote, was for treatment, and the goal was to be released, release them back into society. Because I I bet you this is, like, god awful expensive. Forget $50,000 a year for, like, quote, unquote prison. This has gotta be way more expensive than that. So why wouldn’t we want to treat them and make them better and okay and say, have a nice day. You’ve graduated.
[49:30] Larry: Well, we would want to if we were true to those conservative beliefs that we claim that we hold, particularly in a state like Iowa. But, you’ve got an apparatus there that’s making its living off of these 300 men, so I would guarantee the staff as many dozens. To run a facility like that, they would have a significant sized staff. And it’s out of the boonies and it’s probably the major employer. Trying to dismantle that is a problem. But he also mentioned he stated, finally, while we’re on civil commitment, hold, and he calls that safekeeper status under Iowa code two twenty nine a, a. It’s very clear that we are to be held in the least restrictive environment since we are no longer inmates. The system does not follow this. Three years ago, they closed the house that they kept them in as safekeepers
[50:16] Andy: and they moved us to the main prison. And I’ll let you read what he says about what the prison confinement looks like. Alright. This sounds just like, you know, being in the hole as it were. So at the main prison, which is all PFRs, we face the following. Lockdown for twenty one hours a day, no contact with the inmates, special exercise yard away from general population, no religious services or bible studies, smaller portions at meals, and most recently a different menu. That one’s confusing. Why would they do that? But must be escorted everywhere we go, such as visits, medical appointments, or legal calls. Wow. This doesn’t sound at all very this just sounds like you are locked down. End of story. That’s exactly right.
[51:02] Larry: Therapeutic. Now I hate to I hate to say it’s funny because I do wanna agree. But what it appears that they have done is they have figured out a way to make civil commitment cheaper by putting them in the wing of a prison and keeping them there basically for the rest of their life and release one a year so they can say we’re releasing people. If all this is true and validated by evidence,
[51:25] Andy: this is despicable. That’s pretty bad. Alright, well, so what would someone do? I mean, how would some, how would they, I mean, they’re the ones with skin in the game, right? So who fixes this? The ACLU takes these people under their wing and tries to sue the state?
[51:42] Larry: Well, I don’t see the ACLU, like, being the likely it would be more likely us, you know, but, again, it’s always a resource problem. This is the same situation, very similar in Littlefield, Texas. Their civil commitment. This is not unusual in civil commitment. It’s not inherently unconstitutional to civil commit people. I think all 50 states do it. But the way this is being done is inherently unconstitutional. But it needs a big bank account and very competent attorneys that are in for a multi year fight, kind of like they did in Moose Lakes, where they fought it, they won, and it was overturned by the eighth circuit on appeal. It needs to be done all over again. And I’m not sure what circuit I was in. But if it’s in eighth circuit, it screws them up because they’ve already got bad case law in eighth circuit.
[52:32] Andy: Alrighty then. And any, soapboxes you wanna get on before we head out?
[52:39] Larry: No. I think we have covered it quite well other than reminder that we may not likely won’t be here next week because of the NARSAL annual strategic planning, which I’ll be on from Friday through Sunday afternoon.
[52:51] Andy: Right. I’m pretty sure we already decided that we wouldn’t record next week, so I’m I’m leaving the country. Just kidding. But we’re taking the week off.
[53:01] Larry: But you’ll still get your four sessions because there’s five Saturdays in January.
[53:06] Andy: Of course. Well, make sure that you head over to registrymatters.co for show notes and links to go everywhere. You can visit FYP education for that brand new snazzy search tool that I made. Head over to registrymatterscast@gmail.com, and you can send in some email that some folks did this week. You can leave an old fashioned voicemail, and that is at (747) 227-4477. And please consider becoming a patron even for a buck a month or more at patreon.com/registrymatters. Larry, I hope you have a fine fantabulous weekend and stay out of trouble and don’t do anything I wouldn’t do, which leaves you with a lot of options. And, hope you have a good weekend. Thank you. We’ll see you in two weeks. Take care, buddy.
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