Interesting And Unique To Catch A Predator Video

Words you don’t want to hear: “I’m with Chris Hansen from Dateline NBC with the show To Catch A Predator” and “Yes, you will be on TV”.

Men show up to meet an underaged girl, who gave her age as 13, but the men only find a TV camera crew as well as the police. These sting operations happened in Utah, but are not necessarily video taped. At about 6 minutes into the video there is a man who strips naked and then chases a cat around the house with a tub of cool whip.

Check out the interesting video below:

Police Officer Is Falsely Accused of Sex Abuse, But Video Shows Only Ordinary Traffic Stop

A woman is pulled over for a routine traffic stop in which she wasn’t even taken out of her car. This woman claims the police officer sexually assaulted her during that stop; however, video shows that no abuse occurred and the officer’s reputation is saved. The police officer was facing firing from his job, prison time and sex offender registration.

The woman who falsely accused the officer of sex abuse finally admitted the story was fabricated, when she was confronted with the video evidence. She explains why she made the story up:

Interviewer: “Why would you do something like this to somebody who didn’t do anything to you except write you a ticket?”

False Accuser: “I’ll explain why. If I would have been driving a Jaguar, if I had been driving a Mercedes, or anything along those lines I would have never been stopped. And I personally think he had a personal attack on me because of my character.”

Utah Definition of Object Rape

76-5-402.2. Object rape.
(1) A person who, without the victim’s consent, causes the penetration, however slight, of the genital or anal opening of another person who is 14 years of age or older, by any foreign object, substance, instrument, or device, including a part of the human body other than the mouth or genitals, with intent to cause substantial emotional or bodily pain to the victim or with the intent to arouse or gratify the sexual desire of any person, commits an offense which is a first degree felony, punishable by a term of imprisonment of:
(a) except as provided in Subsection (1)(b) or (c), not less than five years and which may be for life;
(b) except as provided in Subsection (1)(c) or (2), 15 years and which may be for life, if the trier of fact finds that during the course of the commission of the object rape the defendant caused serious bodily injury to another; or
(c) life without parole, if the trier of fact finds that at the time of the commission of the object rape, the defendant was previously convicted of a grievous sexual offense.
(2) If, when imposing a sentence under Subsection (1)(b), a court finds that a lesser term than the term described in Subsection (1)(b) is in the interests of justice and states the reasons for this finding on the record, the court may impose a term of imprisonment of not less than:
(a) 10 years and which may be for life; or
(b) six years and which may be for life.
(3) The provisions of Subsection (2) do not apply when a person is sentenced under Subsection (1)(a) or (c).
(4) Imprisonment under Subsection (1)(b), (1)(c), or (2) is mandatory in accordance with Section 76-3-406.

State of Utah v. Briggs: Failure to Register as a Sex Offender & Challenging the Designation of “Currently Dangerous Sex Offender”

In Utah, failure to register as a sex offender is a separate and distinct crime from the underlying sex crime, which required someone to register as a sex offender in the first place. Thus it is a crime not to comply with the requirements of the sex offender registry, which may include updating employment, residential and vehicle information.

However, a Utah sex offender may challenge his designation as a “currently dangerous offender” classification pursuant to State of Utah v. Briggs. In the Briggs case, a convicted sex offender served 15 years in the Utah State Prison for sexual abuse of a child. Before his release from prison Mr. Briggs was presented with the sex offender registration forms, which he refused to sign. The Salt Lake County district attorney’s office filed a failure to register as a sex offender charge against Mr. Briggs based upon his failure to sign the forms; however, because the defendant was in prison at the time and he was not actually required to sign the particular form he was presented with in prison, the case was initially dismissed.

Mr. Briggs was then release from jail; however, he then failed to register with the Utah Department of Corrections sex offender registry. The defendant was convicted and the Utah Supreme Court upheld his conviction. The full opinion is below.

STATE of Utah, Plaintiff and Appellee, v. Steven Arthur BRIGGS, Defendant and Appellant.

Utah Supreme Court decided: December 12, 2008

Mark L. Shurtleff, Att’y Gen., Laura B. Dupaix, Paul G. Amann, Asst. Att’ys Gen., Salt Lake City, for plaintiff.Lori J. Seppi, Teresa L. Welch, Salt Lake City, for defendant.

On Certification from the Utah Court of Appeals

INTRODUCTION

¶ 1 Steven Arthur Briggs was convicted for failure to register as a sex offender in violation of Utah Code section 77-27-21.5 (“registration statute” or “statute”).1  Briggs challenges the constitutionality of the statute and the sufficiency of the evidence supporting his conviction.   First, Briggs argues that the statute violates the non-delegation doctrine of the Utah Constitution because it delegates legislative power to the Department of Corrections (“DOC”), an executive agency.   Second, Briggs argues that the evidence presented at trial was insufficient to support a conviction that he “knowingly” failed to register.   Finally, Briggs argues that the statute violates his right to procedural due process because it designates him as a currently dangerous sex offender without notice and an opportunity to be heard on the validity of that designation.   We conclude that Briggs’s non-delegation and insufficiency of the evidence claims are without merit.   As to Briggs’s procedural due process argument, we hold that the provisions of the registration statute requiring him to register and requiring the DOC to publish information related to his prior convictions, current address, appearance, and other similar information do not violate his right to procedural due process.   Thus, we affirm his conviction for failure to register as a sex offender.   However, we hold that the provision in the registration statute that requires the DOC to publish his primary and secondary targets, implying that he is currently dangerous, violates his right to procedural due process unless the DOC provides him with notice and an opportunity to be heard as to whether he is currently dangerous.   Accordingly, the DOC may not publish information implying that Briggs is currently dangerous unless it proves as much at a hearing where Briggs has notice and an opportunity to be heard on the validity of that designation.

BACKGROUND

¶ 2 In 1986, Briggs was convicted of sexual abuse of a child and served fifteen years in prison.   A few days prior to Briggs’s release from prison in 2002, a DOC officer presented him with a form that included Briggs’s physical description, previous address, information on his conviction, and scheduled release date.   The form that Briggs was presented with provides, in large print at its center,

I have been notified of my responsibility to register as a sex offender as required by Utah Code Annotated 77-27-21.5. I have also been notified of my continuing responsibility to annually register with the Utah State Department of Corrections and again within 10 days of every change of my place of habitation.

¶ 3 The DOC officer requested that Briggs sign the form, but Briggs refused.   An investigator with the DOC, Agent Pepper, then met with Briggs to read and explain the form to him.   Agent Pepper explained to Briggs that he needed to sign the form and that it was against the law to refuse to sign it.   Briggs replied, “You’ll have to file charges against me if you can find me.”   After steadfastly refusing to sign the form, Briggs was sent back to his housing unit.   Agent Pepper noted on the registration form “Refused to sign @ 0820 hrs.”

¶ 4 At the time of his scheduled release, Briggs was again given an opportunity to sign the form, but he again refused.   Agent Pepper filed a case against Briggs, charging him with failure to register as a sex offender, and Briggs was taken from the prison directly to Salt Lake County Jail. The charge was dismissed on motion of the district attorney, who reasoned that signing the sex offender registration form is not a requirement of the registration statute or an element of failure to register as a sex offender.   Briggs was released.

¶ 5 After his release, Briggs moved to a Salt Lake City hostel and then, a month later, moved to a second Salt Lake City address where he has lived since.   There is no indication that Briggs was hiding his whereabouts from the DOC;  in fact, he included his first address in a letter he sent to the DOC Department of Adult Probation and Parole to inquire about property he lost when he was first incarcerated.   Additionally, Briggs spoke with and gave his name to a DOC officer who contacted him at his residence and to police officers who visited him at his residence while investigating neighborhood crimes.   During this period of time, Briggs was under the impression that he was registered as a sex offender because his attorney showed him his profile on the registry website during an office visit.   However, the registry lacked his current address information, a statutory registration requirement.2

¶ 6 In May 2005, Briggs came to the attention of an FBI agent, who, after an investigation, determined that Briggs was not registered as required by the statute.   The FBI agent contacted the DOC and verified that, although Briggs was supposed to register, he was not registered at that time.   The agent located Briggs at his residence using a subscription database and arrested him for failure to register as a sex offender.

¶ 7 At the bench trial, Briggs moved the court to declare the registration statute unconstitutional.   He asserted that the statute is unconstitutional because it violates the non-delegation doctrine of the Utah Constitution, violates his right to procedural due process, and is an ex post facto law.

¶ 8 The trial court denied the motion in a memorandum decision.   As for Briggs’s non-delegation claim, the court ruled that the DOC

has not been given the authority to determine if failure to register will constitute criminal behavior, or even what must be disclosed to the [DOC], and the [DOC] does not have the authority to determine the penalty for violation․ The [DOC] is charged simply with the task of setting up the procedures for registration to ensure that the process of registration is orderly.

The trial court, therefore, held that the registration statute does not violate the non-delegation doctrine of the Utah Constitution.

¶ 9 As to Briggs’s procedural due process claim, the trial court held that the United States Supreme Court’s decision in Connecticut Department of Public Safety v. Doe “already ruled that Utah’s and other similar states’ sex offender registration requirements do not violate federal due process requirements.” 3  It further held that “Defendant must show that Utah’s Constitution affords him greater protections than does the U.S. Constitution,” and that it was “not persuaded that Defendant’s procedural due process rights in the present circumstance are greater under the Utah Constitution than they are under the U.S. Constitution.”   The trial court dismissed Briggs’s ex post facto claim using the same reasoning, holding “that Defendant has not presented any reason why Utah would afford greater ex post facto protections than the federal Constitution.”

¶ 10 At the close of argument, Briggs moved for a directed verdict, alleging that the prosecution had presented insufficient evidence to support a finding that Briggs had “knowingly” failed to register.   The trial court denied the motion and found Briggs guilty of failing to register as a sex offender.   Briggs appeals his conviction, and we have jurisdiction pursuant to Utah Code section 78A-3-102(3)(j) (Supp.2008).

STANDARD OF REVIEW

 ¶ 11 A challenge to the constitutionality of a statute presents a question of law, which we review for correctness.4  In assessing a claim that there was insufficient evidence to support a trial court’s verdict, we “sustain the trial court’s judgment unless it is ‘against the clear weight of the evidence, or if [we] reach[ ] a definite and firm conviction that a mistake has been made.’ ” 5

ANALYSIS

¶ 12 We will first discuss Briggs’s argument that the registration statute violates the non-delegation doctrine inherent in article V, section 1 of the Utah Constitution, the separation of powers clause, by impermissibly delegating legislative authority to the DOC. Then we will discuss his claim that the State failed to produce sufficient evidence to support the trial court’s finding that he “knowingly” failed to register.   Finally, we will discuss his argument that his rights to procedural due process were violated because the statute does not provide for a hearing on the question of whether he is currently dangerous.

I. THE REGISTRATION STATUTE DOES NOT VIOLATE THE NON-DELEGATION DOCTRINE

 ¶ 13 Briggs challenges the constitutionality of the registration statute, arguing that it impermissibly delegates legislative power to the DOC. This, he claims, violates the non-delegation doctrine inherent in article V, section 1 of the Utah Constitution, the separation of powers clause, which provides,

The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial;  and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.6

¶ 14 We have held that the Utah Constitution “restrict[s] the ability of the legislature to delegate legislative functions to administrative agencies.” 7  While the legislature is not required to expressly authorize every administrative action, procedure, or rule, it is prohibited from delegating “core” or “essential” legislative power or functions.8  We have held that the “definition of a crime and the precise punishment therefor [are] essential legislative functions, which cannot be transferred.” 9

¶ 15 Briggs asserts that the registration statute violates the non-delegation doctrine because the DOC defines what constitutes “failure to register.”   In support, Briggs points out that the statute merely provides that “ ‘[r]egister’ means to comply with the rules of the department made under this section.” 10  Briggs argues that because the DOC prescribes the rules governing registration, it defines the elements of the crime of failure to register.

¶ 16 Briggs is incorrect.   Every element of failing to register is defined by the legislature in the statute.   The legislature defined “failure to register” as failing to “comply with the rules of the department made under this section,” meaning section 77-27-21.5.11 In that section, the legislature very precisely defines who must register,12 when they must register,13 for how long they must register,14 and the information they must provide to be registered.15  Subsection (9) requires sex offenders to register annually and within ten days of every change of habitation.16  Subsection (11) requires sex offenders to provide their name, any aliases by which they might be known, residential address, physical description, age, vehicle information, current photograph, and the names of any institution of higher education in which they are enrolled or employed.17  Thus the statute describes in great detail the requirements of “registration.”   The statute does not give the DOC discretion to add or remove any of these requirements;  it merely confers discretion to prescribe procedures for sex offenders to fulfil the statutory requirements.

¶ 17 Briggs points out that he was, in fact, arrested for failing to sign the form, and he notes that the statute does not contain any requirement that he sign the form.18  Utah Administrative Code rule 251-110-3(2), a DOC-made rule, provides that “[r]egistrants shall sign the Utah Sex Offender Registration Form and the Sex Offender Address Form upon each request.” 19  Briggs asserts that he cannot be convicted for failure to comply with this rule because it is not found in the statute.

¶ 18 But Briggs was not convicted for failure to sign the form.   In fact, the first case against Briggs was dismissed after the district attorney noted that signing a form was not a requirement of the statute.   Briggs became “unregistered” only after he moved to Salt Lake City and failed to provide his address to the DOC within ten days.   After moving a second time, he again failed to provide the DOC with his updated address.   If Briggs had met all of the statutory registration requirements but merely failed to sign the form, he would not be unregistered, and the State has not claimed otherwise.   Although the form prescribed by the DOC in Utah Administrative code rule 251-110-3(2) provides a convenient way for sex offenders to comply with the registration law, failure to use or sign the form is not a crime.   Thus, the statute does not give the DOC authority to define any element of the crime, and the DOC, by using the form, has not exceeded its authority in that respect.   Therefore, we affirm the trial court’s holding that the registration statute does not violate the non-delegation doctrine of the Utah Constitution.

¶ 19 We now turn to Briggs’s claim that the evidence presented against him at trial was insufficient to support his conviction for failure to register as a sex offender.

II. INSUFFICIENT EVIDENCE

¶ 20 Briggs argues that the trial court erred by convicting him because there was insufficient evidence to show that he “knowingly” failed to register under the registration statute.   He argues that certain facts demonstrate that, subsequent to leaving prison, he believed that he was in fact registered.   For example, he sent correspondence to the DOC, which included his first Salt Lake City address, to request information about property he lost when he was first incarcerated.   He received repeated visits from law enforcement officers at his residence, and he gave them his name.   During a visit with his attorney, his attorney showed him the registry, including Briggs’s photo and profile.

 ¶ 21 But the record clearly shows that Briggs was informed of his duty to provide the DOC with up-to-date address information and that he failed to do so.   The form that Agent Pepper read aloud to Briggs before his release clearly notified him of his responsibility to send his updated address and other information to the DOC annually and every time he changed addresses.   Agent Pepper explained that Briggs needed to sign the form and that it was against the law to refuse to do so.   Briggs replied, “You’ll have to file charges against me if you can find me.”   Even if Briggs’s refusal is viewed in the best possible light-meaning that he only refused to sign but not to complete the statutory requirements of registration-he was clearly informed that failure to update the DOC with his address every time he moved would be a chargeable offense.   He expressed his indifference that his failure to comply could result in charges being filed against him.   And although he lived in two different residences following his release from prison, Briggs never provided an updated address to the registry.

¶ 22 In light of the undisputed record, it is clear that Briggs knowingly refused to comply with his responsibility to register.   Briggs’s assertion that he did not want or need to sign the form or that he believed he was registered after leaving the prison, does not outweigh the testimony of Agent Pepper, who explained the requirements to him.   The verdict, therefore, was not “against the clear weight of the evidence.”   Having addressed Briggs’s separation of powers argument and his insufficiency of the evidence argument, we now turn to his argument that the registration statute violates his right to procedural due process.

III. PROCEDURAL DUE PROCESS

¶ 23 Briggs argues that the registration statute violates his right to procedural due process because it labels him as “currently dangerous” without providing a hearing to determine whether he is, in fact, currently dangerous.   We hold that the provisions of the registration statute that require him to register and that require the DOC to publish information related to his prior convictions, current address, appearance, and other similar information do not violate his right to procedural due process.   But to the extent that the registry implies that Briggs is currently dangerous without affording him a hearing on the accuracy of that designation, his right to procedural due process is violated.

A. Resolving Constitutional Issues With Reference to the Federal Constitution and the Utah Constitution

 ¶ 24 Both the federal Constitution and the Utah Constitution contain provisions safeguarding an individual’s right to due process of law.   The Utah Constitution provides that “[n]o person shall be deprived of life, liberty or property, without due process of law.” 20  The Fifth Amendment to the federal Constitution also provides that “[n]o person shall be ․ deprived of life, liberty, or property, without due process of law.” 21  While the text of the two provisions is identical, we do not presume that federal court interpretations of federal Constitutional provisions control the meaning of identical provisions in the Utah Constitution.22 In fact, we have not hesitated to interpret the provisions of the Utah Constitution to provide more expansive protections than similar federal provisions where appropriate.23

¶ 25 The order in which we address textually similar constitutional provisions-state before federal or vice versa-depends upon several factors and requires a case-by-case resolution.   Often the parties will frame their arguments entirely in terms of either the Utah Constitution or the federal Constitution.24 In some instances, resolving the case using the Utah Constitution renders the clearest result, and so we will resolve the case with reference only to the Utah Constitution.25

 ¶ 26 Nevertheless, the protections in the federal Constitution provide a constitutional floor, which, if Utah’s Constitution or laws provide a lesser level of protection, renders interpretation of Utah’s Constitution unnecessary.26  In other words, if the challenged state action violates the federal Constitution, we need not reach the question of whether the Utah Constitution provides additional protection;  we may instead resolve the case with reference only to the federal Constitution.

¶ 27 Such is the case here.   Briggs argues that we should examine the registration statute using the federal model, but that we should hold that the Utah Constitution provides a higher level of protection for Utah’s citizens.   Under the federal procedural due process analysis, he asserts, the government must provide a constitutionally adequate process before it deprives him of an interest in life, liberty, or property.27  He argues that the registration statute deprives him of his liberty interest in his reputation.   Because we hold that under federal procedural due process Briggs is entitled to a hearing prior to the DOC’s publishing any information related to his current dangerousness, it is unnecessary to reach the question of whether the Utah Constitution also requires the DOC to provide a hearing before publishing information related to his current dangerousness.28

B. Deprivation of a Protected Liberty Interest

¶ 28 Under the Due Process Clause of the federal Constitution, the government may not deprive individuals of their liberty interest in reputation without due process of law.

1. Damage to Reputation, When Accompanied by a Change in Legal Status, Constitutes a Deprivation of an Individual’s Liberty Interest

¶ 29 In Wisconsin v. Constantineau, the United States Supreme Court held that “[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” 29  In Constantineau, a statute authorized certain local officials or spouses of affected individuals to post in retail liquor stores the name of individuals who engaged in “excessive drinking” and became “dangerous to the peace of any community.” 30  The statute forbade the sale or gift of alcohol to the individuals whose names had been posted.31  The plaintiff in Constantineau, whose name was posted on such a list, challenged the statute on procedural due process grounds because the statute did not provide notice or a hearing before individuals’ names could be posted.32  The Supreme Court held that the statute was unconstitutional because it contained no provision for notice and a hearing before the state was permitted to attach a “badge of infamy” to the plaintiff.33

 ¶ 30 In Paul v. Davis, the Court clarified that damage to reputation alone is insufficient for a procedural due process claim without some further showing that the state action has “deprived the individual of a right previously held under state law.” 34  Therefore, the government must provide constitutionally adequate process before it deprives individuals of a reputational interest that affects their legal status.35

2. Briggs Argues That the Registration Statute Damages His Reputation and Changes His Legal Status, and that He Is, Therefore, Deprived of a Liberty Interest

¶ 31 Briggs asserts that the registration and notification provisions of the statute violate his procedural due process rights because he is listed on the registry without a hearing on whether he is currently dangerous.   He argues that the registration and publication of his information label him as a current danger to the community who is likely to reoffend.   This official designation potentially exposes him to vigilantism, police surveillance, ostracism, physical violence, and discrimination in housing and employment.   Briggs argues that for these reasons, he is entitled to a hearing to determine whether he is currently dangerous.

 ¶ 32 Briggs does not carefully differentiate between those provisions of the registration statute implying current dangerousness and those that only enumerate his past convictions, current address, appearance, and other similar information.36  We take care to distinguish between them.   We will separately analyze each component of the statute to determine whether it violates Briggs’s right to procedural due process.

3. The Registration Statute Deprives Briggs of a Liberty Interest in Reputation

 ¶ 33 The Utah registration statute requires the DOC to publish two distinct types of information-information that implies that listed offenders are currently dangerous and information that does not.   Most of the information published on the registry, including the offender’s prior convictions, current address, appearance, and other similar information relates to the offender’s prior convictions or simply lists vital information, and does not impermissibly opine on the offender’s present likelihood of committing a crime.   The DOC’s publication of information related to appearance, address, and other similar information, standing alone, does not imply that the listed offender is currently dangerous.

 ¶ 34 But one section of Utah’s registration statute does require the DOC to publish information implying that the listed offender is currently dangerous.  Section 77-27-21.5(13)(a)(ii) requires the DOC to publish information related to the offender’s “primary and secondary targets.” 37  Neither the registration statute nor the registry defines what constitutes a “primary target” or a “secondary target.”   Webster’s New College Dictionary defines “target” as “an objective;  goal” or “someone or something that is the focus of attention, interest, etc.” 38 If the registry entry for a registered offender lists “minor females” under the heading “primary target,” it implies that the offender’s current goal, focus of attention, or interest is minor females.   Even if the DOC derives the listed offender’s primary target by reference to the offender’s past victims, the label is troubling in that it implies that the offender is presently focused on repeating past crimes with similar victims.   Anyone reading the registry would likely conclude that the offender’s primary target is the DOC’s prediction regarding the offender’s next victim.

¶ 35 In addition to primary target information, the Utah registration statute requires the DOC to publish information on the offender’s secondary targets.   While primary targets is troubling because it implies future dangerousness, the undefined nature of the term “secondary targets” raises even more concerns.   We presume that the offender’s primary targets are derived from a description of the victim of the offender’s past offense, but we are unable to discern how the DOC identifies the offender’s secondary targets.   This lack of structure for identifying secondary targets raises additional due process concerns because the offender does not even know what facts are relevant for determining secondary targets.

¶ 36 By including information implying that the offender is currently dangerous, Utah’s registry damages the offender’s reputation and changes his legal status, depriving him of a protected liberty interest in reputation.   Like the list of those who drank excessively in Constantineau, the statutorily mandated designation of “currently dangerous” changes the legal status of listed offenders.   The registry attaches a “badge of infamy,” officially designating listed offenders as prone to future criminality.

C. Constitutionally Adequate Process

¶ 37 The State first argues that offenders are not entitled to a hearing on current dangerousness because, whether currently dangerous or not, they are still required to register if they have been convicted of one of the offenses enumerated in Utah Code subsections 77-27-21.5(1)(f), (10)(c)(ii).   Second, the State argues that offenders received all the process that is due when they are convicted of one of the enumerated offenses at a full and fair trial.

1. The State Argues That Current Dangerousness Is Irrelevant to Whether Briggs Must Register Because the Registration Statute Requires All Sex Offenders to Register Without Regard to Current Dangerousness

¶ 38 The State argues that Briggs is not entitled to a hearing because the fact he seeks to establish in that hearing-that he is not currently dangerous-is irrelevant to whether he must register under the statute.   In fact, the registration statute requires offenders to register solely on the basis of their conviction of one or more of the enumerated offenses.39  The statute does not require that only currently dangerous offenders register.   Therefore, the State correctly notes, even if Briggs is adjudicated non-dangerous, he is still required to register under the terms of the statute.

¶ 39 The State relies on Connecticut Department of Public Safety v. Doe in which the United States Supreme Court rejected a similar challenge to Connecticut’s sex offender registration law.40  The plaintiff in that case, a convicted sex offender, argued that his right to procedural due process was violated because he had not had a hearing to determine whether he was currently dangerous before being listed on the registry.41  As is the case here, the Connecticut registration statute required all convicted sex offenders to register without regard to whether they were currently dangerous, and thus it provided no hearing.   The Supreme Court rejected the plaintiff’s challenge, holding that “any hearing on current dangerousness is a bootless exercise” because current dangerousness was irrelevant to the statutory registration requirement and the content of the registry.42  The only relevant fact was the plaintiff’s prior conviction-a fact that he had already had a procedurally safeguarded opportunity to contest at trial.43  Indeed, the Connecticut sex offender registry did not purport to predict the current dangerousness of any registered sex offender, and it contained a disclaimer that Connecticut “has made no determination that any individual included in the registry is currently dangerous.   Individuals included within the registry are included solely by virtue of their past conviction record and state law.” 44

¶ 40 The State argues that under Connecticut Department of Public Safety, Briggs is not entitled to a hearing on his current dangerousness because current dangerousness is not a statutorily enumerated criterion of registration.   According to the State, under Utah’s registration statute, the only criterion that need be met in order for registration to be required is that an individual has been convicted of one of the offenses enumerated in subsections 77-27-21.5(1)(f) or (10)(c)(ii), and, therefore, as in Connecticut Department of Public Safety, an inquiry into current dangerousness would be irrelevant.   Therefore, the State argues, the content or message of the registry on which the individual’s name will be listed is irrelevant.

2. The State Argues That Even If the Registration Statute Deprives Offenders of a Liberty Interest in Reputation, They Have Received Constitutionally Adequate Procedure at a Full and Fair Trial

¶ 41 The State argues that, to the extent the registry deprives offenders of their liberty interest in reputation, the trial at which they are convicted of the underlying offense is constitutionally adequate process.   The Court in Connecticut Department of Public Safety held that a hearing on whether the plaintiff in that case was currently dangerous was unnecessary because the registration requirements under Connecticut’s statute “turn on an offender’s conviction alone-a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest.” 45  Thus, the State argues, Briggs has already been given constitutionally adequate procedure at his trial for the underlying offense, the conviction for which requires him to register.

3. Under Connecticut Department of Public Safety, Briggs Is Not Entitled to Additional Procedure Before the DOC Publishes Information Related to His Past Convictions, but He Is Entitled to Additional Procedure Before the DOC Publishes Information Implying That he Is Currently Dangerous

¶ 42 We agree, in part, with the State’s arguments.   We agree that Connecticut Department of Public Safety is applicable to this case, and that, under that case, the registration and notification provisions requiring publication of offenders’ prior convictions, current address, appearance, and other similar information are constitutional.   Listed offenders have already had a procedurally safeguarded opportunity to contest their conviction at trial, and no more procedure is required before the DOC may publish that information.   The DOC’s publication of information related to appearance, address, and other similar information, standing alone, does not imply that any listed offender is currently dangerous.   Both the Utah statute and the Connecticut statute list this type of information.   But Utah’s registration statute is different from the statute in Connecticut Department of Public Safety in one key respect-Utah’s statute requires the DOC to publish information implying that the listed offender is currently dangerous.   Yet the offenders have not had an opportunity to be heard on the validity of that designation.

¶ 43 In Connecticut Department of Public Safety, the Supreme Court held that “[p]laintiffs who assert a right to a hearing under the Due Process Clause must show that the facts they seek to establish in that hearing are relevant to the statutory scheme.” 46  The Court found that current dangerousness was irrelevant to Connecticut’s statutory scheme because current dangerousness was not among the statutorily enumerated criteria for who must register and because the registry itself did not imply and, in fact, specifically disclaimed that Connecticut had determined that any listed individual was currently dangerous.47  In other words, current dangerousness was irrelevant both to the statutorily enumerated requirements of registration and to the content or message of the registry.48  Because the Connecticut statute and registry referred only to past convictions, a hearing on current dangerousness in that case was irrelevant.   The State argues that Connecticut Department of Public Safety mandates that we reach the same result here.   We disagree.   Indeed, Connecticut Department of Public Safety specifically provides that plaintiffs are entitled to a hearing if the facts they seek to establish in the hearing are relevant to the statutory scheme.

¶ 44 Such is the case here.   As noted above, section 77-27-21.5(13)(a)(ii) of Utah’s registration statute implies that listed individuals are currently dangerous by requiring the DOC to publish offenders’ “primary and secondary targets.” 49

 ¶ 45 Like the registry in Connecticut Department of Public Safety, Utah’s registry also contains a disclaimer, but Utah’s disclaimer does not effectively dispel the implication of current dangerousness.   The Utah registry’s disclaimer provides that “[t]he information contained on this site does not imply listed individuals will commit a specific type of crime in the future, nor does it imply that if a future crime is committed by a listed individual what the nature of that crime may be.” 50  While it disclaims the DOC’s ability to predict specifically which crime listed offenders will commit, it intimates that the offenders will commit some kind of crime in the future.   Unlike the clear and unambiguous disclaimer in Connecticut Department of Public Safety-“[Connecticut] has made no determination that any individual included in the registry is currently dangerous” 51 -the Utah registry’s disclaimer does not effectively dispel the impression that the listed individuals are currently dangerous.

¶ 46 Thus the question of current dangerousness is highly relevant to the content or message of the registry and thus relevant to Utah’s statutory scheme.   And the trial at which the offenders were convicted of an underlying offense does not provide a procedurally safeguarded opportunity to contest the fact of their current dangerousness.   Thus they have not had notice and an opportunity to be heard on the accuracy of that designation.

¶ 47 When ruling on the constitutionality of a statute, “ ‘the general rule is that statutes, where possible, are to be construed so as to sustain their constitutionality.   Accordingly, if a portion of the statute might be saved by severing the part that is unconstitutional, such should be done.’ ” 52  We hold, consistent with Connecticut Department of Public Safety, that those provisions of the registration statute requiring the DOC to publish information related to Briggs’s prior convictions, current address, appearance, and other similar information are constitutional, and no further process is required.   We therefore affirm Briggs’s conviction under Utah Code section 77-27-21.5 for failure to register as a sex offender.   But we further hold that section 77-27-21.5(13)(a)(ii), requiring the DOC to publish Briggs’s primary and secondary targets and thereby implying that he is currently dangerous, violates his right to procedural due process unless the DOC provides him a hearing.   The DOC may not publish information implying that Briggs is currently dangerous unless it proves as much at a hearing where Briggs has notice and an opportunity to be heard on the validity of that designation.

CONCLUSION

¶ 48 We hold that Briggs’s sufficiency of the evidence and non-delegation claims are without merit.   We further hold that the provisions of the registration statute that, without providing Briggs a hearing, require him to register and that require the DOC to publish information relating to his prior convictions, current address, appearance, and other similar information do not violate his right to procedural due process.   Accordingly, we affirm his conviction for failure to register as a sex offender.   However, we hold that section 77-27-21.5(13)(a)(ii) of the registration statute, requiring the DOC to publish Briggs’s primary and secondary targets and thereby implying that he is currently dangerous violates his right to procedural due process unless he is given a hearing as to whether he is currently dangerous.   Accordingly, we affirm Briggs’s conviction but reverse the trial court’s ruling as to the constitutionality of those portions of the registration statute requiring the DOC to publish, without according him a hearing, information implying that he is currently dangerous.   We remand for proceedings consistent with this opinion.

¶ 50 I concur in the result of the majority opinion, and have no quarrel with its analysis of the federal due process question.   I believe, however, that in addressing the federal constitutional challenge before the state constitutional challenge, the opinion overlooks the proper order of analysis.   See, e.g., West v. Thomson Newspapers, 872 P.2d 999, 1006 (Utah 1994).

¶ 51 Conceptually, there will be no claim of a violation of federal rights requiring redress if state law prohibits the challenged action.   See, Hans Linde, E Pluribus-Constitutional Theory and State Courts, 18 Ga. L.Rev. 165, 178 (1984).   Thus, if a state statute, common law rule, or constitutional provision is dispositive of a claim before us, federal analysis need not be undertaken as part of a “dual sovereignty” approach.   Cf., Robert Utter, Swimming in the Jaws of the Crocodile:  State Court Comment on Federal Constitutional Issues when Disposing of Cases on State Constitutional Grounds, 63 Tex. L.Rev. 1025, 1047 (1985) (“[W]hen the state court finds that the state constitutional provision condemns the challenged conduct ․ the state constitution will have resolved the issue in controversy;  analysis of the federal provision will not be necessary to the case.”).

¶ 52 The failure to undertake independent state analysis in cases where state law is argued contributes to a paucity of precedent and the absence of an independent and adequate state ground for our holding.   This result is occasionally thrust upon us by parties who fail to raise state constitutional questions, see Brigham City v. Stuart, 2005 UT 13, ¶¶ 12-14, 122 P.3d 506, rev’d., 547 U.S. 398, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), but I think it is unfortunate when we embrace it ourselves.

FOOTNOTES

1.  Section 77-27-21.5 has been amended six times between 2000 and 2007.   For simplicity and because none of the amendments are material to our analysis, we refer to the 2007 version of the statute throughout this opinion.

2.  Utah Code Ann. § 77-27-21.5(11) (Supp.2007).

3.  538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003).

4.  State v. Holm, 2006 UT 31, ¶ 10, 137 P.3d 726.

5.  State v. Goodman, 763 P.2d 786, 786 (Utah 1988) (quoting State v. Walker, 743 P.2d 191, 193 (Utah 1987)).

6.  Utah Const. art. V, § 1.

7.  Robinson v. State, 2001 UT 21, ¶ 14, 20 P.3d 396.

8.  See Salt Lake City v. Ohms, 881 P.2d 844, 848 (Utah 1994).

9.  State v. Gallion, 572 P.2d 683, 689 (Utah 1977) (holding that the Utah Controlled Substances Act impermissibly delegated the power to define a controlled substance and the punishment for the crime of possession of a controlled substance to the attorney general);  see also State v. Johnson, 44 Utah 18, 137 P. 632, 634 (1913) (holding that this court will not engage in “judicial legislation” by defining the elements of a crime).

10.  Utah Code Ann. § 77-27-21.5(1)(d) (Supp.2007).

11.  Id. (emphasis added).

12.  Id. § 77-27-21.5(1)(e).

13.  Id. § 77-27-21.5(5)-(8).

14.  Id. § 77-27-21.5(9).

15.  Id. § 77-27-21.5(11).

16.  Id. § 77-27-21.5(9).

17.  Id. § 77-27-21.5(11).

18.  See id. § 77-27-21.5.

19.  Utah Admin. Code r. 251-110-3(2) (2008).

20.  Utah Const. art. I, § 7.

21.  U.S. Const. amend. V.

22.  State v. Tiedemann, 2007 UT 49, ¶ 37, 162 P.3d 1106.

23.  See, e.g., State v. Larocco, 794 P.2d 460, 464-65, 467-71 (Utah 1990) (plurality opinion) (holding that the search and seizure provisions of the Utah Constitution provided broader protection than those in the federal Constitution and concluding that the search was reasonable under the federal Constitution but not under the Utah Constitution);  see also State v. DeBooy, 2000 UT 32, ¶ 12, 996 P.2d 546.

24.  Tiedemann, 2007 UT 49, ¶ 33, 162 P.3d 1106 (holding that the order in which we address state and federal Constitutional provisions turns, in part, on “the way in which such issues have been framed by the parties”).

25.  E.g., State v. Watts, 750 P.2d 1219, 1221 n. 8 (Utah 1988) (holding that “choosing to give the Utah Constitution a somewhat different construction [than the federal Constitution] may prove to be an appropriate method for insulating the state’s citizens from the vagaries of inconsistent interpretations given to the fourth amendment by the federal courts”).

26.  Bracy v. Gramley, 520 U.S. 899, 904, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997) (holding that the Due Process Clause of the Fourteenth Amendment, through which the federal Constitution’s protections are applied to the states, establishes a constitutional floor, but not a uniform standard);  West v. Thomson Newspapers, 872 P.2d 999, 1007 (Utah 1994).

27.  See Gray v. Dep’t of Employment Sec., 681 P.2d 807, 816, 819, 820 (Utah 1984);  see also Kentucky Dep’t of Corrs. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (holding that this analysis applies to claims brought under the Due Process Clause of the federal Constitution) overruled in part on other grounds, Abner v. Dir., TDCJ-CID, 2006 WL 1472376, 2006 U.S. Dist. LEXIS 36830.

28.  We do note, however, that we have previously held as follows with respect to due process analysis under the federal and Utah constitutions:Utah’s constitutional guarantee of due process is substantially the same as the due process guarantees contained in the Fifth and Fourteenth amendments to the United States Constitution.   Therefore, our analysis of questions concerning procedural due process under the due process provisions of the United States and Utah constitutions are [sic] also substantially the same.Bailey v. Bayles, 2002 UT 58, ¶ 11 n. 2, 52 P.3d 1158 (citations and internal quotation marks omitted).

29.  400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971).

30.  Id. at 434 n. 2, 91 S.Ct. 507.

31.  Id. at 436, 91 S.Ct. 507.

32.  Id. at 434 n. 2, 91 S.Ct. 507.

33.  Id. at 437, 91 S.Ct. 507.

34.  424 U.S. 693, 708, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976);  see also Jensen v. Redevelopment Agency, 998 F.2d 1550, 1558 (10th Cir.1993) (“To be successful on their claim for deprivation of a liberty interest in their reputations, plaintiffs must allege and establish that there was information published that was false and stigmatizing.   Moreover, it is necessary that the alleged stigmatization be entangled with some further interest.” (citations and internal quotation marks omitted)).

35.  See Bd. of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

36.  In addition, we note that Briggs has not claimed that the registration statute violates his right to substantive due process;  Briggs asserts only that it violates his right to procedural due process.   Substantive due process and procedural due process are fundamentally different.   Importantly, the remedies that a plaintiff may seek differ under the two theories.  McKinney v. Pate, 20 F.3d 1550, 1558, 1560 (11th Cir.1994).   The remedies for violations of substantive due process include damages to compensate for the deprivation or injunctive relief to prevent further deprivation.  Id. at 1557-58.   The remedies for violations of procedural due process include damages or a constitutionally adequate procedure.  Id. at 1560.   In this case, Briggs has asserted that he is entitled to an additional procedure-an evidentiary hearing where he would have an opportunity to prove that he is no longer dangerous.   His proposed remedy-and, therefore, his asserted constitutional deficiency-is strictly procedural.   Briggs did not make a substantive due process argument to the trial court, nor has he made the argument to us on appeal, and, consequently, it is not properly before us.   We therefore do not decide today whether any aspect of the registration statute violates substantive due process.

37.  Utah Code Ann. § 77-27-21.5(13)(a)(ii) (Supp.2007).

38.  Webster’s New College Dictionary 1465 (2007).

39.  Id. § 77-27-21.5(1)(f), (10)(c)(ii).

40.  538 U.S. 1, 7-8, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003).

41.  Id. at 4-6, 123 S.Ct. 1160.

42.  Id. at 7-8, 123 S.Ct. 1160.

43.  Id. at 7, 123 S.Ct. 1160.

44.  Id. at 5, 123 S.Ct. 1160 (internal quotation marks omitted).

45.  Id. at 7, 123 S.Ct. 1160.

46.  Id. at 8, 123 S.Ct. 1160 (emphasis added).

47.  Id. at 7, 123 S.Ct. 1160.

48.  The State’s reading of Connecticut Department of Public Safety-that a hearing is required only where the fact to be determined at the hearing is relevant to the statutorily enumerated registration criteria and that the message conveyed by the registry is irrelevant to the question of whether a hearing is required-does not comport with the Supreme Court’s citation with approval of Wisconsin v. Constantineau in that same case.  Id. at 7, 123 S.Ct. 1160. As noted above, the statute in Constantineau authorized the government to post the plaintiff’s name in liquor stores, damaging her reputation without providing her an opportunity to contest the relevant facts.  Constantineau, 400 U.S. at 434 n. 2, 91 S.Ct. 507. On its face, the statute did not require any judicial determination that the plaintiff engaged in “excessive drinking.”  Id. But the Supreme Court in Constantineau held that the message conveyed by posting the plaintiff’s name in liquor retail stores was “a stigma or badge of disgrace.”  Id. at 436, 91 S.Ct. 507.   As is the case here, the fact to be determined at the hearing in Constantineau was irrelevant to the statutorily enumerated criteria allowing an individual’s name to be posted.   Nevertheless, the Supreme Court held that the plaintiff was entitled to a hearing because the fact to be determined at the requested hearing was relevant to the message conveyed by the posting.

49.  Utah Code Ann. § 77-27-21.5(13)(a)(ii).

50.  Utah’s registration statute requires the DOC to post a disclaimer on the website informing the public that(a) the information contained on the site is obtained from sex offenders and the department does not guarantee its accuracy;(b) members of the public are not allowed to use the information to harass or threaten sex offenders or members of their families;  and(c) harassment, stalking, or threats against sex offenders or their families are prohibited and doing so may violate Utah criminal laws.Utah Code Ann. § 77-27-21.5(22).The website, however, contains the following additional disclaimers:The information contained on this site does not imply listed individuals will commit a specific type of crime in the future, nor does it imply that if a future crime is committed by a listed individual what the nature of that crime may be and the Department makes no representation as to any offender’s likelihood of re-offending.Utah Department of Corrections-SONAR-Sex Offender Notification and Registration, http://​corrections.​utah.​gov/​asp-​bin/​sonar.​asp.

51.  538 U.S. at 5, 123 S.Ct. 1160 (internal quotation marks omitted).

52.  Midvale City Corp. v. Haltom, 2003 UT 26, ¶ 53, 73 P.3d 334 (quoting State v. Lopes, 1999 UT 24, ¶ 18, 980 P.2d 191).

DURRANT, Associate Chief Justice:

¶ 49 Justice WILKINS and Justice NEHRING concur in Associate Chief Justice DURRANT’S opinion.¶ 53 Justice PARRISH concurs in Chief Justice DURHAM’s opinion.

Lifetime Sex Offender GPS Monitoring Law Stricken Down As Unconstitutional By S. C. Supreme Court

The South Carolina Supreme Court, in a split decision, declared a lifetime sex offender GPS monitoring unconstitutional. The defendant argued that the “satellite monitoring for the rest of her natural life” violated her “substantive due process rights” including her right to procedural due process and her freedom from Ex Post Facto punishment. The court held that “the mandatory imposition of lifetime satellite monitoring violates [the defendants] substantive due process rights…”

The entire opinion is found below:

THE STATE OF SOUTH CAROLINA
In The Supreme Court

The State, Respondent,

v.

Jennifer Rayanne Dykes, Appellant.

Appeal from Greenville County
Charles B. Simmons, Jr., Special Circuit Court Judge

Opinion No. 27124
Heard September 22, 2011 – Filed May 9, 2012

REVERSED AND REMANDED

Christopher D. Scalzo, Greenville County Public Defender’s Office, of Greenville, and Deputy Chief Appellate Defender Wanda H. Carter, of South Carolina Commission on Indigent Defense, of Columbia, for Appellant.

Assistant Deputy Director J. Benjamin Aplin, and Legal Counsel Tommy Evans, Jr., of South Carolina Department of Probation, Parole, and Pardon Services, both of Columbia, for Respondent.

JUSTICE HEARN:[1] Jennifer Rayanne Dykes appeals the circuit court’s order that she be subject to satellite monitoring for the rest of her natural life pursuant to Section 23-3-540(C) of the South Carolina Code (Supp. 2010). She lodges five constitutional challenges to this statute: it violates her substantive due process rights, her right to procedural due process, the Ex Post Facto clause, the Equal Protection Clause, and her right to be free from unreasonable searches and seizures. We hold the mandatory imposition of lifetime satellite monitoring violates Dykes’ substantive due process rights and reverse and remand for further proceedings.

FACTUAL/PROCEDURAL BACKGROUND

Dykes was indicted for lewd act on a child under the age of sixteen in violation of Section 16-15-140 of the South Carolina Code (2003) as a result of her relationship with a fourteen-year-old girl while Dykes was twenty-six years old. The two met when Dykes was working at a local discount store and developed an eight month relationship. Dykes ultimately pled guilty to lewd act and was sentenced to fifteen years’ imprisonment, suspended upon the service of three years and five years’ probation. Because her offense predated the satellite monitoring statute, she was not subject to monitoring at the time of her plea.

Prior to her release from prison, Dykes was evaluated pursuant to the Sexually Violent Predator Act and found not to meet the definition of a sexually violent predator. Accordingly, no civil commitment proceedings were initiated, and she was released on probation. At the time of her release, she was notified verbally and in writing that pursuant to section 23-3-540(C) she would be placed on satellite monitoring if she were to violate the terms of her probation.

Soon after Dykes’ release, five citations and arrest warrants were issued to her for various probation violations: a citation pertaining to her relationship with a convicted felon whom Dykes met while incarcerated and with whom she was then residing; an arrest warrant for Dykes’ continued relationship with that individual; a citation for drinking an alcoholic beverage; a citation for being terminated from sex offender counseling after she cancelled or rescheduled too many appointments; and an arrest warrant for failing to maintain an approved residence and changing her address without the knowledge or consent of her probation agent. Dykes did not contest any of these violations, but she did offer a context to each one in mitigation.

The State recommended a two-year partial revocation of Dykes’ probation and mandatory life-time satellite monitoring. When an individual has been convicted of engaging in or attempting criminal sexual conduct with a minor in the first degree (CSC-First)[2] or lewd act, the court must order that person placed on satellite monitoring. S.C. Code Ann. § 23-3-540(A). Likewise, if a person has been convicted of those offenses before the effective date of the statute and violates a term of his probation, parole, or supervision program, he too must be placed on satellite monitoring. See id. § 23-3-540(C). Once activated, the monitor can pinpoint the individual’s location to within fifteen meters. The individual must remain on monitoring for as long as he is to remain on the sex offender registry, id. § 23-3-540(H), which is for life, id. § 23-3-460. There is no statutory mechanism to petition the court for relief from this lifetime monitoring.

In contrast, if a person is convicted of committing or attempting any of the following offenses, or was previously convicted of one and violates a term of his probation, parole, or supervision, the court has discretion[3] with respect to whether the individual should be placed on satellite monitoring: criminal sexual conduct with a minor in the second degree; engaging a child for sexual performance; producing, directing, or promoting sexual performance by a child; assaults with intent to commit criminal sexual conduct involving a minor; violation of the laws concerning obscenity, material harmful to minors, child exploitation, and child prostitution; kidnapping of a person under the age of eighteen unless the defendant is a parent; and trafficking in persons under the age of eighteen if the offense includes a completed or attempted criminal sexual offense. Id. § 23-3-540(B), (D), (G)(1).

After ten years, an individual who has committed the above-stated crimes may petition the court to have the monitoring removed upon a showing by clear and convincing evidence that he has complied with the monitoring requirements and there is no longer a need to continue monitoring him. Id. § 23-3-540(H). If the court denies his petition, he may petition again every five years. Id. As long as the individual is being monitored, he must comply with all the terms set by the State, report damage to the device, pay for the costs of the monitoring (unless he can show severe hardship), and not remove or tamper with the device; failure to follow these rules may result in criminal penalties. Id. §§ 23-3-540(I) to (L).

Furthermore, the satellite monitoring program places restrictions on the subject’s movements as well. In response to a question from the bench during oral argument concerning Dykes’ ability to travel outside the State of South Carolina while wearing the device, counsel for the Department of Probation, Parole, and Pardon Services-who appeared on behalf of the State-represented that out-of-state travel was not restricted. However, following oral argument, counsel corrected this error in a letter to this Court stating that the department’s policy for monitoring “restricts travel outside the State of South Carolina unless there is approval by the supervising agent. This plan will not allow for overnight travel except in the case of an emergency, and must be approved by the Regional Director.” Thus, a person subject to satellite monitoring may not leave the State without prior approval and may only be gone overnight in the case of an emergency. For Dykes, this restriction on her right to travel freely in this country would, pursuant to the policy, extend throughout her life, without any possibility of petitioning the court for relief.

At her probation revocation hearing, Dykes objected to the constitutionality of mandatory lifetime monitoring. In support of her arguments, Dykes presented expert testimony that she personally poses a low risk of reoffending and that one’s risk of reoffending cannot be determined solely by the offense committed. Thus, the core of Dykes’ constitutional challenge is that the State cannot monitor someone who poses a low risk of reoffending. Dykes’ expert, however, did acknowledge that there is at least some risk that everyone will reoffend.

The circuit court found Dykes to be in willful violation of her probation and that she had notice of the potential for satellite monitoring. While the court clearly was troubled by the scope and breadth of section 23-3-540(C), it denied Dykes’ constitutional challenges and found it was statutorily mandated to impose satellite monitoring without making any findings as to Dykes’ likelihood of reoffending. The court also revoked Dykes’ probation for two years, but it ordered that her probation be terminated upon release. This appeal followed.

LAW/ANALYSIS

Dykes argues that requiring she submit herself to lifetime satellite monitoring when she poses a low risk of reoffending violates her substantive due process rights under the Fourteenth Amendment to the United States Constitution. We agree.

“[A]ll statutes are presumed constitutional and, if possible, will be construed to render them valid.” Curtis v. State, 345 S.C. 557, 569, 549 S.E.2d 591, 597 (2001). Accordingly, we will not find a statute unconstitutional unless “its repugnance to the Constitution is clear and beyond a reasonable doubt.” Id. at 570, 549 S.E.2d at 597. The party challenging the validity of a statute bears the burden of proving it is unconstitutional. See Knotts v. S.C. Dep’t of Natural Res., 348 S.C. 1, 6, 558 S.E.2d 511, 513 (2002).

The Constitution’s provision that “[n]o state shall . . . deprive any person of life, liberty, or property without due process of law,” U.S. Const. amend. XIV, § 1, guarantees more than just fair process; it “cover[s] a substantive sphere as well, ‘barring certain government actions regardless of the fairness of the procedures used to implement them,'” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 840 (1998) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). The core of the Due Process Clause, therefore, is the protection against arbitrary governmental action. Id. at 845. Substantive due process in particular protects against the arbitrary infringement of “fundamental rights that are so ‘implicit in the concept of ordered liberty’ that ‘neither liberty nor justice would exist if they were sacrificed.'” Doe v. Moore, 410 F.3d 1337, 1343 (11th Cir. 2005) (quoting Palko v. Connecticut, 302 U.S. 319, 325-26 (1937), overruled on other grounds by Benton v. Maryland, 395 U.S. 784 (1969)).

However, one does not have a general liberty interest simply in being free from arbitrary and capricious government action. Hawkins v. Freeman, 195 F.3d 732, 749 (4th Cir. 1999) (en banc). Rather, “the substantive component of the due process clause only protects from arbitrary government action that infringes a specific liberty interest.” Id. If the interest infringed upon is a fundamental right, the statute must be “narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 302 (1993); see also In re Treatment and Care of Luckabaugh, 351 S.C. 122, 140, 568 S.E.2d 338, 347 (2002). If the right is not a fundamental one, the statute is only subject to rational basis review. Luckabaugh, 351 S.C. at 140, 568 S.E.2d at 347. Dykes does not argue South Carolina’s satellite monitoring scheme fails the lesser rational basis review, choosing instead to rely exclusively on strict scrutiny. Accordingly, we proceed only under this heightened review and must first determine whether the alleged right the statute infringes upon is fundamental.

Before analyzing the right argued by Dykes, we note that we must tread carefully in this arena. Over the years, the Supreme Court of the United States has expanded the liberty interest protected by the Due Process Clause beyond the specific freedoms contained in the Bill of Rights. Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (noting that the Supreme Court has found the right to marry, have children, direct the education of one’s children, marital privacy, use contraception, retain bodily integrity, and receive an abortion are all protected). The Supreme Court, however, “has always been reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this uncharted area are scarce and open-ended.” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). Furthermore, when a court deems a right fundamental under the umbrella of substantive due process, it effectively removes the matter from discussion and legislative debate. Glucksberg, 521 U.S. at 720. We must therefore “exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.” Id. (internal citations and quotations omitted).

Hence, the Due Process Clause only “protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” See id. at 720-21 (internal citations and quotations omitted). To guard against unwarranted expansions of protected liberty interests, we must give a “careful description” of the asserted right, using this country’s history and traditions as “the crucial guideposts for responsible decisionmaking.” Id. at 721 (internal citations and quotations omitted). The Supreme Court’s

substantive-due-process jurisprudence . . . has been a process whereby the outlines of the “liberty” specially protected by the Fourteenth Amendment-never fully clarified, to be sure, and perhaps not capable of being fully clarified-have at least been carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition. This approach tends to rein in the subjective elements that are necessarily present in due-process judicial review.

Id. at 722. With that in mind, we turn to the right Dykes alleges has been infringed upon.

Dykes asserts that the State’s continuous monitoring of her location violates her fundamental right “to be let alone.” However, this broad statement is an “issue-begging generalization[] that cannot serve the inquiry” of delineating the precise contours of the asserted right. See Hawkins, 195 F.3d at 747. When viewed in light of the facts of this case and the authorities relied upon by Dykes, the narrow right on which she relies is the right of a convicted sex offender who has been released from prison and not serving a probationary term to be free from satellite monitoring for the rest of her life absent a demonstration that she is likely to reoffend.

Although Dykes has overstated the exact right on which she relies, traditional notions of liberty and the right to be let alone are instructive for they provide the context within which we must analyze Dykes’ specific right. William Blackstone, in his landmark Commentaries on the Laws of England, noted that man is generally endowed with free will, but that freedom is not absolute and each of us relinquishes some of it to be part of an organized society:

The absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature: being a right inherent in us by birth, and one of the gifts of God to man at his creation, when He endued him with the faculty of freewill. But every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. And this species of legal obedience and conformity is infinitely more desirable, than that wild and savage liberty which is sacrificed to obtain it.

1 William Blackstone, Commentaries *121. Blackstone also found, however, that the government’s right to restrict an individual’s free will is not immutable:

Political therefore, or civil, liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public. Hence we may collect that the law, which restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind: but every wanton and causeless restraint on the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny. Nay, that even laws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are laws destructive of liberty[.] . . . So that laws, when prudently framed, are by no means subversive but rather introductive of liberty; for (as Mr. Locke has well observed) where there is no law, there is no freedom. But then, on the other hand, that constitution or frame of government, that system of laws, is alone calculated to maintain civil liberty, which leaves the subject entire master of his own conduct, except in those points wherein the public good requires some direction or restraint.

Id. at *121-22.

Thus, the concept of liberty as being unrestrained except as necessary to provide order in society is deeply rooted in the foundations of our common law system, and any further restriction would be tyranny. Indeed, Blackstone’s commentary reflects our substantive due process milieu, where the core rights of freedom and liberty can only be limited when sufficiently necessary to advance the public good. Furthermore, various members of the Supreme Court have voiced their views that the government has a very limited ability to infringe on one’s liberty. Louis Brandeis, before he became a Justice, wrote in a law review article,

[T]here came a recognition of man’s spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life, – the right to be let alone; the right to liberty secures the exercise of extensive civil privileges . . . .

Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 193 (1890). After he joined the Supreme Court, Justice Brandeis noted that the Founding Fathers

recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men.

Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting), overruled in part by Berger v. New York, 388 U.S. 41 (1967) and Katz v. United States, 389 U.S. 347 (1967).

Not long thereafter, a majority of the Supreme Court stated,

[T]he domain of liberty, withdrawn by the Fourteenth Amendment from encroachment by the states, has been enlarged by latter-day judgments to include liberty of the mind as well as liberty of action. The extension became, indeed, a logical imperative when it was recognized, as long ago as it was, that liberty is something more than exemption from physical restraint . . . .

Palko, 302 U.S. at 327.

Additionally, in an oft-quoted dissent in Poe v. Ullman, 367 U.S. 497 (1961), Justice Harlan wrote,

[T]he full scope of liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.

Id. at 543 (Harlan, J., dissenting).[4] These words “eloquently” describe the Court’s role in the substantive due process inquiry. Moore v. City of East Cleveland, 431 U.S. 494, 501 (1977).

In Glucksberg, however, the Supreme Court admonished overreliance on these vague and free-flowing concepts of liberty in the due process analysis. Although the Supreme Court has, in the past, relied in particular on Justice Harlan’s dissent in Poe in its fundamental rights analysis, at no point has the Court jettisoned its “established approach” of searching for concrete examples of the claimed right in the Court’s jurisprudence. Glucksberg, 521 U.S. at 721-22 & n.17. In the context of this case, the Court’s reaffirmance of the historical approach to fundamental rights presents us with an interesting quandary. While we must search for historical examples of the claimed right in order to find it one deeply rooted in our legal tradition and therefore fundamental, the ability to track an individual’s precise location is a relatively recent technological innovation without a historical antecedent.

Nevertheless, we believe the mere fact that something is a new invention does not preclude the finding that it implicates a fundamental right. Constitutional principles cannot be “entirely unaffected by the advance of technology,” Kyllo v. United States, 533 U.S. 27, 33-34 (2001), and courts must be able to incorporate new innovations into our existing constitutional framework.[5] Glucksberg strongly reminded courts to avoid a generous application of the Due Process Clause to state actions and insisted on a historical focus as a check. Here, however, there is no history for us to examine, not because the claimed right is not deeply rooted in our traditions, but instead because satellite monitoring is a new invention the Founding Fathers could not have envisioned. In the absence of a history to rely on in similar circumstances, the Court has resorted to examining more traditional notions of liberty. Cf. Griswold, 381 U.S. at 482-86 (detailing general concepts of privacy under the Constitution and concluding that proscribing the use of contraception “is repulsive to the notions of privacy surrounding the marriage relationship”). At this point, a careful delineation of the exact nature of the claimed right serves to prevent the gratuitous expansion of fundamental rights. Thus, while we proceed without much history on which we can rest our analysis, narrowly defining the right Dykes argues has been infringed upon acts as the sort of check and guidepost the Court emphasized in Glucksberg.

As we previously stated, the right at issue in this case is the right of a convicted sex offender who is not under any probationary or similar restrictions to be free from continuous satellite monitoring for life when she poses a low risk of reoffending. We begin first by examining the general impact of the satellite monitoring scheme. Recently, the Supreme Court had the opportunity to address a similar issue in United States v. Jones, No. 10-1259, 2012 WL 171117 (Jan. 23, 2012), albeit in a different context. At issue in Jones was whether the government’s surreptitious placement of a GPS tracking device on Jones’s car without a warrant was an unconstitutional search. 2012 WL 171117, at *2. The majority held that it was because the attachment of the monitor to the car was a physical trespass on personal property for the purpose of obtaining information. Id. at *3.

In his concurring opinion, Justice Alito tackled the thornier question of whether this satellite monitoring violated an individual’s reasonable expectation of privacy. Justice Alito aptly observed that recent technological advancements have placed vast swaths of information into the public realm, a development which “will continue to shape the average person’s expectations about the privacy of his or her daily movements.”[6] Id. at *17 (Alito, J., concurring). With that in mind, he concluded monitoring one’s movements on a public street for a relatively short period of time would not violate an individual’s reasonable expectations of privacy. Id. (citing United States v. Knotts, 460 U.S. 276, 281-82 (1983)). When that monitoring becomes long-term, however, the nature of the invasion changes:

But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would-and indeed, in the main, simply could not-secretly monitor and catalogue every single movement of an individual’s car for a very long period.

Id. Applying this principle to the four-week monitoring at issue in Jones, Justice Alito concluded, “We need not identify with precision the point at which the tracking of th[e] vehicle became a search, for the line was surely crossed before the 4-week mark.” Id.

Justice Sotomayor similarly noted we live in an age so inundated with technology that we may unwittingly “reveal a great deal of information about [our]selves to third parties in the course of carrying out mundane tasks.” Id. at *10 (Sotomayor, J., concurring). In that vein, she agreed with Justice Alito’s concerns about the intrusiveness of satellite monitoring: “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”[7] Id. at *9. Thus, satellite monitoring invites the State into the subject’s world twenty-four hours per day, seven days per week, and it provides the State with a precise view of her intimate habits, whether she is in public or not. If we are not careful about and cognizant of this fact, “the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse” and “may ‘alter the relationship between citizen and government in a way that is inimical to democratic society.'” Id. (quoting United States v. Cuevas-Perez, 640 F.3d 272, 285 (7th Cir. 2011) (Flaum, J., concurring)).

Although these cases were decided under the rubric of the Fourth Amendment, we nevertheless find them instructive here. As Justice Alito and Justice Sotomayor incisively observed, the very concept of what we as citizens view as private is called into question by technology which facilities unprecedented oversight of our lives. More importantly, at issue in this case is not just the tracking of individuals for a period of time while they are being investigated for a specific crime-as with a Fourth Amendment search-but the statutorily mandated monitoring of certain individuals for as long as they live with no ability to have it removed. See United States v. Pineda-Moreno, 617 F.3d 1120, 1124 (9th Cir. 2010) (Kozinski, J., dissenting from the denial of rehearing en banc) (“By holding that this kind of surveillance doesn’t impair an individual’s reasonable expectation of privacy, the panel hands the government the power to track the movements of every one of us, every day of our lives.”). We must not forget that “liberty is something more than exemption from physical restraint” and includes a “liberty of the mind.” Palko, 302 U.S. at 327. As our history from Blackstone to Jones accordingly makes clear, the Constitution guarantees a certain freedom from government intrusion into the day-to-day order of our lives which lies at the heart of a free society. In our opinion, “neither liberty nor justice would exist” if the government could, without sufficient justification, monitor the precise location of an individual twenty-four hours a day until he dies.

We turn next, as we must, to whether Dykes’ status as a convicted sex offender alters this result. Although the concurrence believes it does, we disagree for the reasons below. The State first argues that satellite monitoring is akin to sex offender registration and is, indeed, less intrusive than registration. Numerous courts, including this Court, have routinely held that convicted sex offenders do not have a fundamental liberty interest to be free from registration requirements. E.g., Doe v. Mich. Dep’t of State Police, 490 F.3d 491, 500 (6th Cir. 2007); Doe v. Tandeske, 361 F.3d 594, 597 (9th Cir. 2004); Ark. Dep’t of Corr. v. Bailey, 247 S.W.3d 851, 861 (Ark. 2007); State v. Germane, 971 A.2d 555, 584 (R.I. 2009); Hendrix v. Taylor, 353 S.C. 542, 552, 579 S.E.2d 320, 325 (2003); McCabe v. Commonwealth, 650 S.E.2d 508, 512 (Va. 2007). However, a requirement that a person register is qualitatively different than a requirement that a person submit to mandatory satellite monitoring of his location for the rest of his life. The State argues that the inverse is true and that it is the sex offender registry which is more invasive. In particular, the State points out that the registry provides the public with the offender’s full name, address, and offense history. Furthermore, the registry contains a photograph of the individual in addition to a physical description, complete with a list of tattoos and scars. In contrast, information obtained through satellite monitoring of that individual is limited to only the person’s location and is not available to the public.

While all of this may be true, the State misapprehends the thrust of Dykes’ argument. She does not contend public availability of the information implicates a fundamental right, but rather that citizens have a right to be free from state monitoring of their every movement. This sort of constant surveillance reveals the intimate details of her private life by compiling a complete picture of her movements in public and in private that tells the story of how she lives her life, information not available through the registry. It is this invasion of privacy and infringement of an individual’s freedom from government interference with the liberty of the mind that implicates substantive due process. Additionally, Dykes is no longer on probation and therefore is not subject to the limited liberty interest courts recognize for those serving probationary terms. See Griffin v. Wisconsin, 483 U.S. 868, 874 (1987) (noting that offenders on probation “do not enjoy ‘the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions.'” (alteration in original) (quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972)).

It is true that convicted felons do not have the same constitutional liberties as those who have not been convicted of a felony. See State v. Bowditch, 700 S.E.2d 1, 12 (N.C. 2010); cf. Wesley v. Collins, 791 F.2d 1255, 1261 (6th Cir. 1986) (“It is undisputed that a state may constitutionally disenfranchise convicted felons, and that the right of felons to vote is not fundamental.”). The State accordingly argues, and the concurrence agrees, that Dykes does not enjoy the full liberty interest described above because she is a convicted sex offender.

However, this misses the nature of the right in question. The precise right Dykes claims is fundamental is the right of a convicted sex offender who is not under any probationary or similar restrictions and who poses a low risk of reoffending to be free from continuous satellite monitoring. In our opinion, if Dykes poses a low risk of reoffending, then her status as a convicted sex offender is no longer a compelling reason to impair her constitutional rights in this regard. As we discuss below, a sex offender’s likelihood of reoffending is the impetus for imposing satellite monitoring; as the risk of reoffending diminishes, so too does the rationale for monitoring her. Therefore, while Dykes’ status as a convicted felon may impair her rights to some degree, we do not believe the fact that she stands convicted of a sex crime, by itself, is sufficient to warrant lifetime continuous government tracking of her location. If Dykes does pose a low risk of reoffending, it accordingly is clear to us beyond a reasonable doubt that section 23-3-540(C) would infringe on her fundamental rights. See State v. Stines, 683 S.E.2d 411, 413 (N.C. Ct. App. 2009) (finding satellite monitoring implicates a liberty interest).

We are also deeply troubled by the policy restricting the interstate travel of the subject being monitored. “The right to travel is inherent in the concept of our country as a federal union; hence the right to travel is a fundamental constitutional right under the federal constitution.” Mitchell v. Steffen, 504 N.W.2d 198, 200 (Minn. 1993); see also Pelland v. Rhode Island, 317 F. Supp. 2d 86, 90 (D.R.I. 2004) (“American citizens enjoy the constitutionally protected liberty to travel across state borders.”). Where an individual is still under a probationary or similar term, a state may constitutionally restrict his right to travel. See Pelland, 317 F. Supp. 2d at 91; see also United States v. Crandon, 173 F.3d 122, 128 (3d Cir. 1999) (recognizing conditions of release may curtail certain fundamental rights). However, it is a different situation when a person is not on probation. Requirements that a sex offender notify officials when he leaves the state have been upheld as not sufficiently burdening interstate travel. See, e.g., United States v. Shenandoah, 595 F.3d 151, 162-63 (3d Cir. 2010); State v. Wigglesworth, 63 P.3d 1185, 1190 (Or. Ct. App. 2003). Far from being a mere notification requirement, the policy here is a flat prohibition against crossing state lines absent government approval. We can see few clearer burdens on interstate travel than having to seek prior permission from the State to leave South Carolina and permitting overnight stays only in emergency situations and with approval solely by the regional director.

Next, we must determine whether section 23-3-540(C) is narrowly tailored to serve a compelling state interest, thus surviving strict scrutiny.[8] One cannot “minimize the importance and fundamental nature of [an individual’s liberty interest]. But, as our cases hold, this right may, in circumstances where the government’s interest is sufficiently weighty, be subordinated to the greater needs of society.” United States v. Salerno, 481 U.S. 739, 750-51 (1987). For as Blackstone so eloquently wrote, “[T]his species of legal obedience and conformity is infinitely more desirable[] than that wild and savage liberty which is sacrificed to obtain it.” 1 William Blackstone, Commentaries *121. Dykes concedes that protecting the public from sex offenders who pose a high risk of reoffending is a compelling state interest; she steadfastly maintains, however, that protecting the public from those who have a low risk of reoffending is not a compelling state interest. We agree.

It is beyond question that “[s]ex offenders are a serious threat in this Nation.” McKune v. Lile, 536 U.S. 24, 32 (2002). In fact, “the victims of sexual assault are often juveniles,” and “[w]hen convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” Id. at 33. Thus, the General Assembly noted “[s]tatistics show that sex offenders often pose a high risk of re-offending,” S.C. Code Ann. § 23-3-400 (2007), prompting it to enact provisions “to protect the public from those sex offenders who may re-offend,” State v. Walls, 348 S.C. 26, 31, 558 S.E.2d 524, 526 (2002). However, imposing measures which are justified, at least substantially in part, by the possibility that an individual may reoffend without any actual consideration of his likelihood to reoffend is incongruous and arbitrary. Monitoring sex offenders who pose a low risk of reoffending for the rest of their lives is not “sufficiently weighty” such that the subject’s liberty interest in being free from government monitoring must be “subordinated to the greater needs of society.” See Salerno, 481 U.S. at 750-51. The same is true with respect to the State’s travel policy for it unquestionably infringes on Dykes’ fundamental right to travel without any consideration of whether such a restriction is warranted.

We therefore hold that requiring Dykes, a convicted sex offender who is under no probationary or similar restrictions, to submit to satellite monitoring for the rest of her life if she poses a low risk of reoffending violates her substantive due process rights. To paraphrase Blackstone, section 23-3-540(C)’s application to Dykes has the potential to decrease her natural liberty without any attendant increase in overall civil liberty. However, because the circuit court made no findings as to Dykes’ chance of reoffending, a remand is in order for that determination.

We emphasize that our holding today is a narrow one and the satellite monitoring provisions remain largely intact.[9] First, we do not suggest that satellite monitoring as a whole is unconstitutional. Rather, it is only the mandatory monitoring of those who pose a low risk of reoffending that violates due process. Furthermore, our holding only extends to those who are not under any term of probation, parole, or similar restrictions; we express no opinion as to whether mandatory monitoring those who are on probation, parole, or community supervision implicates substantive due process. Our holding also only applies to those who have no mechanism to have the monitoring removed because they have a conviction of CSC-First or lewd act. Given the manner in which Dykes framed this issue to us and the strictures of Glucksberg, we also do not reach today the issue of whether those individuals who are found to pose a high risk of reoffending have a due process right to discretionary imposition or periodic review of their lifetime monitoring.

Accordingly, the circuit court on remand will exercise discretion to determine Dykes’ risk of reoffending. If it finds she has a low risk of re-offending but nevertheless imposes monitoring, Dykes will be able to petition for release from the monitoring after ten years, consistent with section 23-3-540(H).

CONCLUSION

For the foregoing reasons, we reverse the order of the circuit court and remand for proceedings consistent with this opinion.[10]

BEATTY, J., concurs. KITTREDGE, J., concurring in a separate opinion in which TOAL, C.J. and PLEICONES, J., concur. JUSTICE KITTREDGE: I concur in result. I commend my learned colleague for her scholarly research, and I agree with the majority’s general proposition that persons have a fundamental right “to be let alone.” But I respectfully disagree that Appellant, as a convicted child sex offender, possesses a right that is fundamental in the constitutional sense. I do not view Appellant’s purported right as fundamental. I would find Appellant possesses a liberty interest entitled to constitutional protection, for all persons most assuredly have a liberty interest to be free from unreasonable governmental interference. I would find that the challenged mandatory lifetime, non-reviewable satellite monitoring provision in section 23-3-540(C) is arbitrary and fails the minimal rational relationship test.[11]

I.

I begin with the premise that satellite monitoring is predominantly civil. See Smith v. Doe, 538 U.S. 84 (2003) (noting that whether a statute is criminal or civil primarily is a question of statutory construction). Where, as here, the legislature deems a statutory scheme civil, “only the clearest proof” will transform a civil regulatory scheme into that which imposes a criminal penalty. Id. at 92 (quoting Hudson v. United States, 522 U.S. 93, 100 (1997)) (internal quotations omitted).

The General Assembly expressly stated its intent:

The intent of this article is to promote the state’s fundamental right to provide for the public health, welfare, and safety of its citizens [by] . . . provid[ing] law enforcement with the tools needed in investigating criminal offenses. Statistics show that sex offenders often pose a high risk of reoffending. Additionally, law enforcement’s efforts to protect communities, conduct investigations, and apprehend offenders who commit sex offenses are impaired by the lack of information about these convicted offenders who live within the law enforcement agency’s jurisdiction.

S.C. Code Ann. § 23-3-400 (2007). This Court has examined this language and held “it is clear the General Assembly did not intend to punish sex offenders, but instead intended to protect the public from those sex offenders who may re-offend and to aid law enforcement in solving sex crimes.” State v. Walls, 348 S.C. 26, 31, 558 S.E.2d 524, 526 (2002). Thus, a likelihood of re-offending lies at the core of South Carolina’s statutory scheme.

II.

The United States Supreme Court has cautioned restraint in the recognition of rights deemed to be fundamental in a constitutional sense. Washington v. Glucksberg, 521 U.S. 702 (1997). Courts must “exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of [members of the judiciary].” Id. at 720. The Due Process Clause protects only “those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition.'” Id. at 720-21 (internal citations omitted). I would not hold that a convicted child sex offender has a fundamental right to be “let alone” that is “deeply rooted in this Nation’s history and tradition.” Given the civil nature of satellite monitoring and the clear authority of the legislature to impose such a regulatory scheme, I respectfully reject the suggestion that a convicted child sex offender’s limited liberty interest morphs into a fundamental right when the active sentence comes to an end.

Notwithstanding the absence of a fundamental right, I do believe lifetime imposition of satellite monitoring, with no consideration of likelihood of re-offending, implicates a liberty interest and invokes minimum due process protection.[12] See Commonwealth v. Cory, 911 N.E.2d 187 (Mass. 2009) (finding satellite monitoring burdens an offender’s liberty interest in two ways, by “its permanent, physical attachment to the offender, and by its continuous surveillance of the offender’s activities”). Thus, courts must “ensure[] that legislation which deprives a person of a life, liberty, or property right have, at a minimum, a rational basis, and not be arbitrary . . . .” In re Treatment and Care of Luckabaugh, 351 S.C. 122, 139-40, 568 S.E.2d 338, 346 (2002); see also Nebbia v. N.Y., 291 U.S. 502, 525 (1934) (“[T]he guarant[ee] of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary, or capricious . . . .”); Hamilton v. Bd. of Trs. of Oconee County Sch. Dist., 282 S.C. 519, 319 S.E.2d 717 (Ct. App. 1984) (holding that, to comport with due process, the legislation must have a rational basis for the deprivation and may not be “so inadequate that the judiciary will characterize it as arbitrary”).

Having served her sentence, I believe Appellant possesses a liberty interest that is violated by the mandatory, non-reviewable provisions of section 23-3-540(C). Applying the rational basis test to Appellant’s due process challenge, I would find the mandated lifetime satellite monitoring and absence of any judicial review related to an assessment of an individual’s likelihood of re-offending renders the challenged provision arbitrary. Further, in light of the legislature’s predication of the statutory scheme on the substantial purpose of protecting the public from sex offenders who may re-offend, I would find the lack of risk assessment within section 23-3-540(C) not rationally related to such purpose, and thus unconstitutional. See Addington v. Texas, 441 U.S. 418 (1979) (finding an individual’s liberty interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by clear and convincing proof); Kansas v. Hendricks, 521 U.S. 346 (1997) (upholding sexually violent predator commitment statute and emphasizing the role of the review to ensure commitment lasts only so long as it is necessary to protect the public); see also Lyng v. Int’l Union, 485 U.S. 360 (1988) (noting that although allegedly arbitrary legislation invokes the least intrusive rational basis test, that standard of review is “not a toothless one”); Luckabaugh, 351 S.C. at 139-40, 568 S.E.2d at 346 (finding due process ensures that a statute which deprives a person of a liberty interest has “at a minimum, a rational basis, and may not be arbitrary”).

I believe the finding of arbitrariness is additionally supported by the South Carolina Constitution, which, unlike the United States Constitution, has an express privacy provision. See S.C. Const. art. I, § 10 (“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated . . . .”). While our constitution’s privacy provision does not transform a purported privacy interest into a fundamental right for purposes of applying the strict scrutiny test, I believe it does inform the analysis of whether a state law is arbitrary and lends additional support to the conclusion that section 23-3-540(C) is unconstitutional. Cf. State v. Weaver, 374 S.C. 313, 649 S.E.2d 479 (2007) (holding that by articulating a specific prohibition against unreasonable invasions of privacy, the people of South Carolina have indicated a higher level of privacy protection than the federal Constitution).

Therefore, I concur in result to reverse and remand.

TOAL, C.J., and PLEICONES, J., concur.

[1] Because a majority of the Court has joined the separate concurring opinion of Justice Kittredge, his concurrence is now the controlling opinion in this case.

[2] Specifically, the individual must have engaged in a sexual battery with a victim who is less than eleven years old. S.C. Code Ann. § 23-3-540(A) (Supp. 2010) (cross-referencing id. § 16-3-655(A)(1) (Supp. 2010)).

[3] The statute does not provide any criteria to aid the court in determining whether to order monitoring for these individuals.

[4] The majority in Poe did not reach the substantive issue involved because it found the case to be nonjusticiable. Poe, 367 U.S. at 507-09.

[5] As Chief Justice Roberts stated in 2006, “the impact of technology across the law” is going to be the biggest challenge for the Court in the coming years. Chief Justice John G. Roberts, Jr., Address at the Charleston School of Law (Oct. 20, 2006) (video recording on file in the Charleston School of Law Sol Blatt, Jr., Law Library). Especially with respect to constitutional rights, the Court is going to be confronted with “the impact of technology on areas of the law that we thought had been pretty well settled and established and are going to have to be revisited and rethought in the light of the new science.” Id.

[6] In Jones, the monitor placed on underside of Jones’s car constantly tracked the car’s movements over a four-week period without his knowledge. 2012 WL 171117, at *2. The majority’s contention to the contrary, Justice Alito noted there is no eighteenth century analogue to this type of investigation, because that “would have required either a gigantic coach, a very tiny constable, or both-not to mention a constable with incredible fortitude and patience.” Id. at *11 n.3 (Alito, J., concurring).

[7] Justice Alito’s concurrence was joined by three other members of the Court, Justice Ginsburg, Justice Breyer, and Justice Kagan. After noting she shared the same concerns as Justice Alito, Justice Sotomayor wrote that “[r]esolution of these difficult questions . . . is unnecessary” at this time because the majority’s trespass theory was dispositive of the case. Jones, 2012 WL 171117, at *10 (Sotomayor, J., concurring).

[8] We note Dykes posits her argument of unconstitutionality solely in terms of strict scrutiny. With great respect for the concurrence, we do not believe Dykes’ repeated statements that the statute is arbitrary and capricious are sufficient to invoke the rational basis test. Rational basis review and strict scrutiny are merely the vehicles through which we determine whether a statute is arbitrary for due process purposes, and using the term “arbitrary” or “capricious” is not determinative of the level of review we apply. However, if we were to apply rational basis review, we would be inclined to find the statute constitutional. Absent the implication of a fundamental right, “[t]he impairment of a lesser interest . . . demands no more than a ‘reasonable fit’ between governmental purpose . . . and the means chosen to advance that purpose.” See Reno, 507 U.S. at 305. A law also “need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” Williamson v. Lee Optical of Okla., 348 U.S. 483, 487-88 (1955). The State undoubtedly has an important interest in investigating sexual assaults against children, and Dykes has not challenge this interest. Furthermore, we believe requiring those who have committed similar crimes in the past to be monitored is at least rationally related to that interest and not wholly arbitrary, especially if their right to be free from monitoring is not fundamental.

[9] Consistent with the severability clause found in 2006 Act No. 346-the act passing section 23-3-540-the only portions of the statute affected by our decision are that the court “must” order satellite monitoring for those convicted of CSC-First and lewd act and that these persons have no means of petitioning for relief from the monitoring. See 2006 Act No. 346 § 8 (stating that if a court were to find any portion of the statute unconstitutional, that holding does not affect the rest of the statute and the General Assembly would have passed it without that ineffective part); see also Dean v. Timmerman, 234 S.C. 35, 43, 106 S.E.2d 665, 669 (1959) (“When the residue of an Act, sans that portion found to be unconstitutional, is capable of being executed in accordance with the Legislative intent, independent of the rejected portion, the Act as a whole should not be stricken as being in violation of a Constitutional Provision.”).

[10] Because our conclusion here is dispositive of Dykes’ appeal, we do not reach her remaining challenges to section 23-3-540(C). See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (stating that a court need not reach remaining issues if one issue is dispositive of the appeal).

[11] Following the rape and murder of a nine year-old-girl by a convicted sex offender who lived across the street, Florida passed the Jessica Langford Act in 2005. This Act, referred to as “Jessica’s Law,” heightened criminal sentences and post-release monitoring of child sex offenders. Many states, including South Carolina, followed suit in adopting some version of Jessica’s Law. However, South Carolina’s requirement of mandatory lifetime monitoring without review is more severe than the statutory scheme of other jurisdictions. A common approach among other states that have adopted some form of “Jessica’s Law” is to require either a predicate finding of probability to re-offend or provide a judicial review process, which allows for, upon a proper showing, a court order releasing the offender from the satellite monitoring requirements. See generally, N.C. Gen. Stat. Ann. § 14-208.43 (West 2010) (providing a termination procedure one year after the imposition of the satellite based monitoring or a risk assessment for certain offenders). In accordance with the severability clause in South Carolina’s statutory scheme, I concur with the finding of the majority expressed in footnote 7 that the offenses of criminal sexual conduct in the first degree and committing or attempting a lewd act upon a child under sixteen must follow the process as outlined for the balance of child sex related offenses.

[12] In my opinion, although Appellant posited her main argument in terms of strict scrutiny, Appellant’s presentation of a due process challenge sufficiently permits the Court to consider such claim under the lesser levels of scrutiny. Indeed, Appellant’s final brief contains many assertions that fit the rational relationship test, for example:

Substantive due process protects citizens against arbitrary or capricious action by the government regardless of the procedures used to carry out that action. . . . In this case, appellant’s substantive due process rights were violated because §23-3-540(C) mandated [the trial judge] arbitrarily and capriciously imposed lifetime GPS monitoring on her. The imposition was arbitrary and capricious . . . . The substantive component of this right prohibits the state from arbitrarily or capriciously depriving a person of life, liberty, or property regardless of whether or not the way in which the government carries out this deprivation is, itself, ostensibly fair.

The concept of “arbitrary and capricious” lies at the heart of the rational relationship test. Therefore, I would find that the Court may properly consider Appellant’s due process challenge under the rational relationship test.

Can Utah Police Search My Home For Evidence In Sex Crime Like Possession Of Child Porn?

The United States Supreme Court has repeatedly held that a person’s home is subject to the greatest protection under the Fourth Amendment of the United States Constitution.

Before an officer may search a home for evidence of a sex crime, the officer must first secure a search warrant from a Judge. There are a few exceptions to this general rule but the exceptions are narrow. Even though an officer does not have a warrant, if the officer is attempting to search your home, you should not physically resist the officer. Instead, step out of the way and let the officer do what he or she is going to do. Do not consent to the search but do not physically resist it either. It is best to raise these issues in court rather than risk a confrontation between yourself and the police. Rarely does a citizen win in such situations and they are almost always a threat to your physical safety. If the officer asks you questions, you should respectfully decline to answer them. You are under no legal obligation to answer questions even if the officer has a warrant.

When dealing with the police remember the three golden rules:

1. Don’t trust or believe the police.

2. Don’t resist being handcuffed.

3. Don’t say a damn thing