please the court good morning the state of wisconsin asked this court to reverse the district court the state seeks to reduce the risk posed by small subset of people in this case a repeat child sex offender who poses ongoing risks through the use of g p s tracking state does not believe the constitution forbids that reasonable effort and therefore ask this court reverse on on all ground i'll begin with the fourth amendment part of the case as we know now from the us to grady case the question is under the totality of circumstances is what the state proposes to do reasonable the nature of the search the purpose and expectations of the of the plaintiff wisconsin proposes that and in these circumstances at least is that the tracking is reasonable we're talking about as i said as i stated in my beginning a subset of people these are serious child mr believes that serious child sex offender he was civilly committed because of a mental abnormality that predisposed him to do it again now it's true that you no longer has any more likely than not a chance of doing it again he is no he is no longer ones i know more likely than not chance of doing it and fifty one percent chance or more of doing it again and wisconsin going over with god's in wisconsin's the civil commitment statute you psychologist or psychiatrist says you're more likely than not fifty one percent or more to do it again based on a mental abnormality and do it again by means reoffend sexually and asked another child  that his his chances of reoffending had dropped meaning he no longer qualified to be and civil commitment evaluator found at that time got about a sixteen percent chance of refunding upon release when you say sixteen percent is that probability of being arrested for a future sex offense committed i believe that most of these offenses are not actually they're not actually once you drop below fifty percent so you could be theoretically for forty nine percent chance probability that you're to do it again and you would be let out of civil commitment and you would be in the similar situation as as the plaintiff here wisconsin would at that point propose to g p s monitor that person is everybody who's let out of civil commitment and a required to have this g p s that's correct you're on everybody yes and there's there are about two hundred people in wisconsin it is in the record reflects that fit the mold they're out there off they're off their sentences they're no longer on paper and probation or parole and they're they're being g p s monitored in this sort of passive way where they're i think i think maybe there's some pictures that mr that the plaintiff has put in in the record that the measurements about one and a half by two and a half by three and a half inches it's not it's biggest some of the other devices and in the cases you'll you'll read about that in the past  and i believe this is standard that issued from that vendor perhaps or other vendors other states might use that have different devices but it's not as far as i know especially given design just for our work is constant you know it's since we're talking about the device so getting back to what this program does the device has to stay on on the plaintiff all the time and wisconsin the department of corrections more specifically receives a signal what  you do if you take a shower that's fine it doesn't affect you guys in fact you can bathe in it and i believe the device comes with the fifteen feet range of i can go into water so it doesn't prevent any of those things and then it sends a signal back about once a minute no one's looking at it when it comes back to department of corrections usually every night someone looks to see all right was it was a track that dated at work usually it's  database so it's not it's out there the vendor tips the data so if someone wanted to go back and see where mr boone was yes that's correct your honor the idea the primary ideas of that wisconsin does not want this to happen again so the idea is that honor right so that might you know that as as your honor suggested you know some of these i don't know how many i guess no one knows somebody is going to go undetected but but these people these folks we know who are dangerous are going to have it in their heads that i'm not going to be one of those people they can get away with it because they're going to be able to know where i was if they need to so that potentially a powerful deterrent and let me think i don't think anyone argues that there's not a a social need to deter the offense of child sex offense it's a it's a devastating crime if it happens just one more time that it has to happen it's worth trying to reduce it wisconsin things at least in this subset of people the small subset it's reasonable to to do this tracking  we don't ask anything else of the plaintiff we don't ask him to do things like you would do on probation or parole we just want this tracking to take place so this deterrent effect happens and i get a number of other states have done there's this is not unique to wisconsin that's correct your honor there are variations that i would say that most states have something like this i don't i don't have a stat in front of me but the programs vary in little bits and pieces here and there but there are quite a few states that have it that have lifetime monitoring for the most serious sex offenders which is which is how that in the grady case that that issue first popped up in the supreme court level single is this reasonable and take a look at  it a few more points on it relevant to the fourth amendment issue the cases as well is this really a special situation why aren't you doing it the normal way with the warrant probable cause stuff like that and we think this is a good example of a situation where you can't there's no way to use a probable cause warrant sort of framework to try to deter over a long period of time a very dangerous or sex offender who has a high risk to re offend against children because we don't think tomorrow you might do x in certain place against person y we just don't want ever to do it want to deter that that motivation so the motivation of reducing motivation to re offend doesn't work with the whole idea of trying to say if we need a warrant to do us this mention i would just be guessing but i would i would assume yes especially when we're talking about multiple offenders i don't know offhand or your honor  will mention one more topic on the fourth amendment and since we are talking about to tell the test and everything gets thrown into the mix attention late and so it want to make sure all of our points are in here about the seriousness of the offense to particular type of person we're looking at and dealing with here and having at point locations of folks that if something does happen someone commits a new crime this is a way that to check to see you know or exclude or include people say ok it's not this guy or maybe it's this guy so we can get him off the street or are to rule him out right away right away as a potential perpetrator as this court pointed out in green bird but that's not a that's special kind of situation that's a special needs type of search that is something that it's not like in the u s the jones u s supreme court case where you're going after a drug dealer you know you think it's the guy you're building a case against a guy you want to catch and dealing drugs that's not the kind of thing we're talking about so we hope we hope that you know she's been you know it's that you know it's there so it's going to be in his mind and we hope that that's enough to make a difference and there's some data out there that suggests it does make a difference not in wisconsin but some other states have studied it g monitoring high risk sex offenders out on probation or parole and they see it's a big drop in reset of as i'm thinking almost half as many people did it again in that particular california study that we cite in the brief there's a florida study at d c study it seems to make a difference and it's and lisa obviously rational that that would make a difference knowing that you would you would potentially get caught or would get caught really it makes it almost certainty if you do it again under the circumstances this court doesn't have further questions on that topic i'll touch on the ex post facto issue before my time here starts running out so the district court found two reasons that to invalidate wisconsin's monitoring at the point of the second one was ex post facto retroactive punishment that we disagree with that ground as well and you think there's a couple ways pick out of it maybe the most direct way given our time days is to go right to the the crux of the district court's decision which was about the effect we think that the court got it wrong when it when when decided that this was a a punishment in disguise the district court agreed the legislature did not intend to punish folks like like the pla f with this monitoring it's as we've been discussing it's meant to protect society going forward it's meant to deter the offense going forward in a difficult situation a small subset of people that's not a punishment it might be a burden it's certainly the plaintiff doesn't want to wear it but that doesn't make it a punishment and and i think if the court goes through the five factors that becomes apparent and i see my in my white light is on so if the court has no further questions right morning may please the court i'd like to start out by correcting a few factual statements that were made by the the defendants here first of all the  footnote to his i believe to his report about adjustments but he and his deposition he talks about i believe he talks about the study that was done by the same people who developed the static ninety nine which is goes into a database it's not then never accessed unless there's some question about a possible crime that has been committed in a location and they go and query the database that's not actually how it operates every night a group of people in the monitoring center look over the maps of g p s people on g p s like mr ballou and they record where they've back they look for things that they deem suspicious or of interest or not  right within a fairly easy was it an elementary school playground yes they can detect battle i know but that's exactly the sort of thing they want to know right that's what they want to know well is i thing wrong with that surely because if he's hanging around they do this repeatedly and so should there be an arrest complaint what have you of course you want to know who who among these sex offenders might have been denmark of u s canada and they have determined that there are certain characteristics that coral correlate to likelihood of refence and if you have certain of these there's no doubt that the idea of reason you know trying to prevent this is a legitimate purpose the problem is that there's absolutely no tailoring at all in this statute you come out of civil commitment or you come out of a criminal sentence basis they have for determining whether someone is really offended is if he's been arrested so these figures are figures about rearrest they're not a the basic figure the thirteen percent figure is about rearrest that's the static that's using the static ninety nine tables it gives you the figure for iraq's dr elwood used that those figures and then using his  approach it doesn't engender sense because he doesn't know anything about people who have three offended and have not been rearrested there have been studies done i am not familiar with how those studies worked but those studies took a look at likely other offenses that are not reported and i again i can't say exactly how those studies were done but they were done and that led to a twenty five percent increase in the estimated risk for public i'd also like to say that the fourth amendment issue in this case can't be decided without looking at the  decision which the defendants didn't cite didn't try to address ferguson says that the deterrent effect alone of a of a program is insufficient to insulate it from a fourth amendment challenge ferguson also says that the program has to have a purpose a principal purpose other than crime fighting and in this case and also that it can't just unless it falls within an exception and there are a number of exceptions including western is russia there be an exception for these sex offenders because they're so prone to recidivate and after all this being done here is to provide a map of people's where people are so that there is an incident at a place where they were at the time of the incident that then th as the article on the b i website talks about his mother at the nursing home says i don't want you to come anymore because the the residents up to the staff of the nursing home keep asking what is that on your ankle i mean this interferes with his yes with the full p s monitoring device which a lot of people where they were not steps that they're runners or they might have some kind of condition which requires monitoring you know people who have various types of heart disease and so on they have monitors that maybe that may be broadcasting you know hospital to make sure that their heart rhythm is proper right so those monitors are not strapped on an ankle there's a monitor that strapped on an ankle is it that way doesn't it into the technology being what it is we're on our way to probably a bracelet or something similar to a watch wouldn't you think that's probably what's out there for the you know decades from today or maybe or possibly is the legislature actually contemplated implanting a chip well i mean that's why they changed the statute yes ace comparable technology exactly so it so the argument about the pant leg may fall away you don't want to base it on that you know it's not it's not based entirely and i mean and i suppose if you have just something similar to a wrist watch it won't cause any attention right of course if it's a true wrist watch you can leave it behind but case apart from this pacific case if we are to lessen incarceration generally and that's a goal it seems to be of some national concern considering the stats we have among western countries wooden a monitoring system if not intrusive that's why i started by saying perhaps we'll get to the point think maybe the chip but but certainly maybe a bracelet or wrist where we could reduce incarceration rates because we have recidivism in areas other than those that are sexual offenders g when we be in a better position for in a broader sense of civil liberties if we had x villains monitored this way well side from cost absolutely if it's not if it's actually an alternative to a sentence that's chosen at the time of the sentencing don't you think legislatures for that pointing in the direction with the incarceration costs will we be pointing in the direction of this yes and i think that as an alternative to a yes but that's not what's happening here it what's happened is there was originally a sentence given in which this was not an option this you know lifetime g p s was not an option at the time that the sentencing judge sentenced him had it then he might have gotten a shorter sen instead now twenty five years more than twenty five years after he commits his offense but you want a legislature imposes an additional and essentially an extension of the supervision beyond the time that his sentence who we took the case because we were asked to take the case well mr judge but but nonetheless yes i think it does present important questions obviously the supreme court has considered your attorney and the attorney and judge flogs point on it because because he's saying that technology like this could lead to sure it says your saying you're implying that if we it could not be used as an alternative for a future sentence it could be it the problem is that resistor bellew has completed his study have all this stuff about how embarrassing it is to where this people see it they know it's a offender now you're saying it's fine as long as it's part of the sentence yes i mean criminals can be punished for things that they do with punishments that were available at the time that they committed their offenses so it's it is indeed i think punitive to have this visible device i mean it may not last forever that it that it that that particularly aspect of this scheme is problematic but it's certainly the intrusion is there and it could be imposed prospect of we end both i believe under both the fourth and then i mean under the fourth amendment you know the lesser includes the greater includes the last or if you could be put in the pan the literal in the case that the psychiatrist was the defendant's expert witness yes and the psychiatrist was also the psychiatrist who evaluated mr bellew and repeatedly and in fact if you look at the record he was said he cited a study that was cited by the state as well which is that the probably the leading study is a national institute of justice study done in california but that was a study what's in a very different people it's said that there was a reduction in re offense and it was a fairly substantial reduction refence but it was for people who were very different from mr bellew they were people who had static ninety nine scores of four or above ninety nine score is zero it was for people who were you were on probation and parole and were in only the first year of their probation and parole mr and so again what i would say is could wisconsin say that a mandatory condition of supervised release and all sex offenses is life time aren't going forward y recent cases on extended super conditions of extended supervision so i mean you have there has to be some rational no no no individual i don't know i'm talking about mandatory cases the optional supervised release there the judge has to give reasons when it's mandatory life can own a gun and so forth that the judge has no discretion that's why i'm suggesting then the legislature cracks down and never again is anybody is any or any of these people ever allowed to shake off the bridge i mean that would be an unfortunate consequence if footnote that this is the g p s monitoring of a car is like having a constable in the boot of a car actually it's not a car i think they were talking about a coach from the seventh century this is like having a constable strapped to your ankle but you say it's fine as long as it's done result of this but i also think that legislatures going forward that discretion isn't what we're talking about here we're talking about the two hundred or so some proportion of the two hundred people who have this imposed and then retrospectively after they are they have completed their sentences entirely and this is an intrusion that's beyond any other intrusion that's been countenanced by the courts and i think again just to go back i think ferguson is an essential case to look at because it it says unless it and in this case it is clearly being used to detect crime and that use takes it out of the the the doctrine except warrant exception or exception to the general warrant requirement for special needs this is not a special needs and ferguson says that the fact that there's some deterrent purpose or a fact in the ideas to deter people from using drugs during pregnancy is insufficient to take it out of the warrant requirement so i because if if there's a high crime neighborhood and the police department assigns a lot of police officers there that's going to that's a form of monitoring and will discourage corrective and you're saying that in draw distinction as as the court wryly talked about in the court in the majority of the justices in jones talked about there's there is the police that the simple economics of the situation mean that the police aren't going to be able to engage in dragnet surveillance of that sort they can only engage in it in very limited circumstances once you have this technology that makes it cheap and easy there's no longer any any limiting principle to what the government can do and so you know i'm not suggesting that they couldn't do that but again look at edmond which is another suppose it special needs case there they did in fact target certain areas where they were stopping cars they had a nine percent hit rate on finding narcotics and the court said that's not a good search you need so probable cause and they didn't actually talk about a warrant in that case but it was suspicion and they said you can't do that even though you've you know set these roadblocks up in areas where there are high drug drug trafficking the court said that is just a general interest in crime control that doesn't justify going outside of the warrant requirement and here we're talking about court talks about the program there quote its initial and continuing focus of the policy was on the arrest and prosecution of drug abusing mothers the initial and continuing focus of the policies on the rest that's not what we're talking about here with the monitoring as we discussed we're talking about no law enforcement involvement initially because we don't want to do it again we're trying to stop it from happening again it's much different idea and so i would point to court if there are the court would look at ferguson that eighty two and also eighty three there are some statements showing how that program is a much different idea just this is a point on ex post facto i suppose this just to make clear that posing council discussed this as a continuation of that it's just the tracking and this i suppose the final point i'd like to leave the court with is is this discussion of what the percentages mean whatever they mean they're significant in part to talk about other drugs but i mean if you've got somebody who's been convicted let's say three times for a felony you don't think the legislature might consider a program similar to  this i think it was the stats and recidivism of a certain percentage of people who commit multiple felonies is high your honor i hate to speak both legislature as an abstract but no as far as i know there's no interest in that the interest isn't it in keeping th controlled and small and focused on on this particular concerning subset of folks who we know are prone to do it again you have a condition that pushes in that direction so for the reasons i