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Doe v Prosecutor, Marion CountyDoe v Prosecutor, Marion County

6-24-2008 Indiana:

Doe v Prosecutor, Marion County
566 F.Supp.2d 862 (2008)

In 2008 the Indiana General Assembly enacted Public Law 119, which amended many of the requirements imposed upon those persons who must register with the state as sex offenders and violent offenders. This case presents a challenge to one of the new requirements as it would apply to those who have completed their sentences and are no longer on parole, probation, or any other form of court supervision. Under the new statute, set to take effect on July 1, 2008, all those who must register must also consent to the search of their personal computers or devices with internet capability at any time, and they must consent to installation on the same devices, at their expense, of hardware or software to monitor their internet use. Ind. P.L. 119-2008 § 6 (2008) (SEA 258), to be codified in Ind. Code § 11-8-8-8(b) (effective July 1, 2008). Failure to “consent” to these measures is itself a felony.

Pursuant to the parties’ stipulation, the court certified a plaintiff class under Rule 23(b)(2) of the Federal Rules of Civil Procedure. Plaintiffs are a class of “all persons, current and future, who are required to register as sex or violent offenders pursuant to Indiana law and who are not currently on parole or probation or court supervision.” Plaintiffs allege that the new law violates their rights under the Fourth Amendment to the United States Constitution prohibiting unreasonable searches and requiring probable cause for issuance of a warrant. Plaintiffs seek a declaration that the new consent-to-search requirements are unconstitutional and an injunction against their enforcement. The court heard argument on a stipulated factual record on May 30, 2008, and now states its findings of fact and conclusions of law pursuant to Rules 52 and 65 of the Federal Rules of Civil Procedure. Substance shall govern whether an item is deemed a finding of fact or conclusion of law.

Section 8(b), however well intentioned, seeks to achieve law enforcement goals with means that violate the Fourth Amendment, at least as applied to the plaintiff class, offenders who have completed their criminal sentences and who are no longer under any form of parole, probation, or other court supervision. These plaintiffs have rights under the Fourth Amendment. The State may not force them to waive those rights under threat of criminal prosecution for failing or refusing to do so. Final declaratory relief should be sufficient here, in a case brought as a Rule 23(b)(2) class action against all prosecuting attorneys in Indiana, to protect the plaintiffs’ Fourth Amendment rights. The court does not see a need at this time for the somewhat more intrusive relief of a permanent injunction. See generally Dickinson v. Indiana State Election Bd., 933 F.2d 497, 503 (7th Cir. 1991) (comparing declaratory and injunctive relief); see also 28 U.S.C. § 2202 (authorizing further “necessary or proper relief” based on declaratory judgment); Pro-Eco, Inc. v. Board of Commissioners of Jay County, 57 F.3d 505 (7th Cir. 1995) (affirming denial of damages for plaintiff after original declaratory judgment had sufficed to prevent enforcement of invalid ordinance). The court will enter a final declaratory judgment stating that the newly enacted Indiana Code § 11-8-8-8(b) may not be applied to members of the plaintiff class.

Federal court sides with ACLU in sex offender consent-to-search case

6-24-2008 Indiana:

INDIANAPOLIS - A federal judge has ruled that a recently-passed state law to monitor the computer habits of sex offenders long after they have served their sentences is unconstitutional.

U.S. District Court Judge David Hamilton in Indianapolis ruled Tuesday in favor of the plaintiffs in the class-action lawsuit that was brought April 3 by the American Civil Liberties Union of Indiana.

The ACLU had challenged as unconstitutional a law the Legislature passed this year, Senate Enrolled Act 258. It was supposed to take effect July 1 and would have required convicted sex offenders, who already have to sign the state's sex-offender registry, to also provide authorities with their email addresses and Internet usernames.

Offenders also would have had to sign a consent form allowing police to search their computers or other Web-ready devices at any time, and to install software that monitored such activity, the law said.

The ACLU sued on behalf of two convicted sex offenders, one in Marion County and one in Scott County. It named all 92 county prosecutors as defendants.

In a 52-page ruling issued late today, federal judge Hamilton ruled that the new statute, as written, is unconstitutional.

"The new law forces an unconstitutional choice upon these plaintiffs. They must choose now between committing a new crime by refusing to consent and giving up their Fourth Amendment rights to privacy and security in their homes, their 'papers,' and their effects," Hamilton wrote. "The unprecedented new law, however well-intentioned it may be, violates the Fourth Amendment rights of the plaintiff class, who have completed their sentences and are no longer on probation, parole, or any other kind of court supervision."

Hamilton issued a declaratory judgment stating the consent to search requirements may not be applied to convicted sex offenders.

The state could appeal the ruling to the U.S. 7th Circuit Court of Appeals. ...News Source... by Courier-Press Staff Reports

Attorney General Steve Carter says Appeal not Prudent
on a Law Recently Declared Unconstitutional by a Federal District Court

(INDIANAPOLIS, IN) - Attorney General Steve Carter will not appeal a federal district court’s ruling that a new law requiring registered sex offenders to consent to the unlimited search of their computers is unconstitutional.

"The court found the statute's authorization of unlimited searches of home computers without a warrant or probable cause to be unconstitutionally broad,” said Carter. “As we strive to create a safer online environment for our kids, we must identify more targeted investigative approaches and the attorney general’s office will work with legislators to do so in the session that convenes in November. We are all dedicated to protecting children from predators, but we must do so within the constitution.”

Additionally, Carter cites the need to balance the cost to taxpayers of an appeal. At this point in the controversy, taxpayers are responsible for thousands of dollars of attorney fees that will have to be paid to the American Civil Liberties Union.

“If we take the matter to the Court of Appeals and lose, that amount could approach $100,000 and the case would not be resolved when the legislature convenes in November. Legislators still would not have any further judicial guidance on how to modify the language that has been struck down” added Carter. “The better course is for the Attorney General’s Office to consult with legislators over the next few months to develop safeguards against predators that pass constitutional muster.”

Last month, United States District Court Judge David Hamilton issued an opinion stating that the new law, set to become effective July 1 was unconstitutional. In the Opinion he writes, “The unprecedented new law, however well-intentioned it may be, violates the Fourth Amendment rights of the plaintiff class, who have completed their sentences and are no longer on probation, parole, or any other kind of court supervision.”

Carter praised the other provisions of the new law enacted by the legislature that remain in effect. Those include the requirement for registered sex offenders to provide email addresses and Internet usernames to the Registry. Another provision makes Indiana the first state in the nation to ban registered offenders from using the same social networking sites that children use. The new statute makes it a felony if an offender is found using such sites. ..Source.. By Indiana AG Office

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