301.48 Global positioning system tracking and residency requirement for certain sex offenders.

(1) Definitions. In this section:

(a) “Exclusion zone" means a zone in which a person who is tracked using a global positioning system tracking device is prohibited from entering except for purposes of traveling through it to get to another destination.

(b) “Global positioning system tracking" means tracking using a system that actively monitors and identifies a person's location and timely reports or records the person's presence near or at a crime scene or in an exclusion zone or the person's departure from an inclusion zone. “Global positioning system tracking" includes comparable technology.

(c) “Inclusion zone" means a zone in which a person who is tracked using a global positioning system tracking device is prohibited from leaving.

(cm) “Level 1 child sex offense" means a violation of s. 948.02 or 948.025 in which any of the following occurs:

1. The actor has sexual contact or sexual intercourse with an individual who is not a relative of the actor and who has not attained the age of 13 years and causes great bodily harm, as defined in s. 939.22 (14), to the individual.

2. The actor has sexual intercourse with an individual who is not a relative of the actor and who has not attained the age of 12 years.

(cn) “Level 2 child sex offense" means a violation of s. 948.02 or 948.025 in which any of the following occurs:

1. The actor has sexual intercourse, by use or threat of force or violence, with an individual who is not a relative of the actor and who has not attained the age of 16 years.

2. The actor has sexual contact, by use or threat of force or violence, with an individual who has not attained the age of 16 years and who is not a relative of the actor, and the actor is at least 18 years of age when the sexual contact occurs.

(d) “Lifetime tracking" means global positioning system tracking that is required for a person for the remainder of the person's life. “Lifetime tracking" does not include global positioning system tracking under sub. (2) (d), regardless of how long it is required.

(dm) “Passive positioning system tracking" means tracking using a system that monitors, identifies, and records a person's location.

(dr) “Relative" means a son, daughter, brother, sister, first cousin, 2nd cousin, nephew, niece, grandchild, or great grandchild, or any other person related by blood, marriage, or adoption.

(e) “Serious child sex offense" means a level 1 child sex offense or a level 2 child sex offense.

(f) “Sex offense" means any of the following:

1. A sex offense, as defined in s. 301.45 (1d) (b).

2. A crime under federal law or the law of any state that is comparable to a crime described in subd. 1.

(fm) “Sexual contact" has the meaning given in s. 948.01 (5).

(g) “Sexual intercourse" means vulvar penetration as well as cunnilingus, fellatio, or anal intercourse between persons or any intrusion of any inanimate object into the genital or anal opening either by the defendant or upon the defendant's instruction. The emission of semen is not required.

(2) Who is covered.

(a) Except as provided in subs. (2m), (6), (7), and (7m), the department shall maintain lifetime tracking of a person if any of the following occurs with respect to the person on or after January 1, 2008:

1. A court places the person on probation for committing a level 1 child sex offense.

1m. The person is convicted for committing a level 2 child sex offense and the court places the person on probation for committing the level 2 child sex offense.

2. The department releases the person to extended supervision or parole while the person is serving a sentence for committing a level 1 child sex offense.

2m. The person is convicted for committing a level 2 child sex offense and the department releases the person to extended supervision or parole while the person is serving the sentence for committing the level 2 child sex offense.

3. The department releases the person from prison upon the completion of a sentence imposed for a level 1 child sex offense.

3m. The person is convicted for committing a level 2 child sex offense and the department releases the person from prison upon the completion of the sentence imposed for the level 2 child sex offense.

4. A court that found the person not guilty of a serious child sex offense by reason of mental disease or mental defect places the person on conditional release.

5. A court that found the person not guilty of a serious child sex offense by reason of mental disease or mental defect discharges the person under s. 971.17 (6). This subdivision does not apply if the person was on conditional release immediately before being discharged.

6. The court places a person on lifetime supervision under s. 939.615 for committing a serious child sex offense and the person is released from prison.

7. A police chief or a sheriff receives a notification under s. 301.46 (2m) (am) regarding the person.

8. The department makes a determination under sub. (2g) that global positioning system tracking is appropriate for the person.

(b) Except as provided in subs. (7) and (7m), the department shall maintain lifetime tracking of a person if any of the following occurs with respect to the person on or after January 1, 2008:

1. A court places the person on supervised release under s. 980.08 (6m).

2. A court discharges the person under s. 980.09 (4). This subdivision does not apply if the person was on supervised release immediately before being discharged.

3. The department of health services places the person on parole or discharges the person under ch. 975. This subdivision does not apply unless the person's commitment was based on his or her commission of a serious child sex offense.

(d) If, on or after January 1, 2008, a person is being placed on probation, extended supervision, parole, or lifetime supervision for committing a sex offense and par. (a) or (b) does not apply, the department may have the person tracked using a global positioning system tracking device, or passive positioning system tracking, as a condition of the person's probation, extended supervision, parole, or lifetime supervision.

(2g) Department determination. If a person who committed a serious child sex offense, or a person under supervision under the interstate corrections compact for a serious child sex offense, is not subject to lifetime tracking under sub. (2), the department shall assess the person's risk using a standard risk assessment instrument to determine if global positioning system tracking is appropriate for the person.

(2m) Passive positioning system tracking. If a person who is subject to lifetime tracking under sub. (2) (a) 1., 1m., 2., 2m., 3., or 3m. completes his or her sentence, including any probation, parole, or extended supervision, the department may use passive positioning system tracking instead of maintaining lifetime tracking.

(3) Functions and operation of tracking program.

(a) Except as provided in sub. (2m), the department shall implement a continuous global positioning tracking system to electronically monitor the whereabouts of persons who are subject to this section. The system shall do all of the following:

1. Use field monitoring equipment that supports cellular communications with as large a coverage area as possible and shall automatically provide instantaneous information regarding the whereabouts of a person who is being monitored, including information regarding the person's presence in an exclusion zone established under par. (c) or absence from an inclusion zone established under par. (c).

2. Use land line communications equipment to transmit information regarding the location of persons who are subject to this section when they are in areas in which no commercial cellular service is available.

3. Immediately alert the department and the local law enforcement agency having jurisdiction over the exclusion or inclusion zone if the person stays in any exclusion zone for any longer period than the time needed to travel through the zone to get to another destination or if the person leaves any inclusion zone.

(b) The department shall contract with a vendor using a competitive process under s. 16.75 to provide staff in this state to install, remove, and maintain equipment related to global positioning system tracking and passive positioning system tracking for purposes of this section. The term of the contract may not exceed 7 years.

(c) For each person who is subject to global positioning system tracking under this section, the department shall create individualized exclusion and inclusion zones for the person, if necessary to protect public safety. In creating exclusion zones, the department shall focus on areas where children congregate, with perimeters of 100 to 250 feet, and on areas where the person has been prohibited from going as a condition of probation, extended supervision, parole, conditional release, supervised release, or lifetime supervision. In creating inclusion zones for a person on supervised release, the department shall consider s. 980.08 (9).

(d) If a person who is on supervised release or conditional release is being tracked, the department shall notify the department of health services, upon request, of any tracking information for the person under any of the following circumstances:

1. The department of corrections has been alerted under par. (a) 3. that the person being tracked has improperly stayed in an exclusion zone or improperly left an inclusion zone.

2. The person being tracked fails to make a payment to the department under sub. (4) (b).

(4) Costs.

(a) The department shall determine all of the following for each person tracked:

1. The cost of global positioning system tracking or passive positioning system tracking for the person.

2. How much of the cost under subd. 1. the person is able to pay based on the factors listed in par. (d).

(b) If required by the department, a person who is subject to global positioning system tracking or passive positioning system tracking shall pay for the cost of tracking up to the amount calculated for the person under par. (a) 2. The department shall collect moneys paid by the person under this paragraph and credit those moneys to the appropriation under s. 20.410 (1) (gk).

(c) The department of health services shall pay for the cost of tracking a person to whom sub. (2) (a) 4. or 5. or (b) applies while the person is on conditional release or supervised release to the extent that the cost is not covered by payments made by the person under par. (b).

(d) In determining how much of the costs the person is able to pay, the department may consider the following:

1. The person's financial resources.

2. The present and future earning ability of the person.

3. The needs and earning ability of the person's dependents.

4. Any other costs that the person is required to pay in conjunction with his or her supervision by the department or the department of health services.

5. Any other factors that the department considers appropriate.

(6) Offender's petition to terminate lifetime tracking.

(a) Subject to par. (b), a person who is subject to lifetime tracking may file a petition requesting that lifetime tracking be terminated. A person shall file a petition requesting termination of lifetime tracking with the circuit court for the county in which the person was convicted or found not guilty or not responsible by reason of mental disease or defect.

(b)

1. A person may not file a petition requesting termination of lifetime tracking if he or she has been convicted of a crime that was committed during the period of lifetime tracking.

2. A person may not file a petition requesting termination of lifetime tracking earlier than 20 years after the date on which the period of lifetime tracking began. If a person files a petition requesting termination of lifetime tracking at any time earlier than 20 years after the date on which the period of lifetime tracking began, the court shall deny the petition without a hearing.

3. A person described in sub. (2) (b) may not file a petition requesting termination of lifetime tracking.

(c) Upon receiving a petition requesting termination of lifetime tracking, the court shall send a copy of the petition to the district attorney responsible for prosecuting the serious sex offense that was the basis for the order of lifetime tracking. Upon receiving the copy of the petition, the district attorney shall conduct a criminal history record search to determine whether the person has been convicted of a criminal offense that was committed during the period of lifetime tracking. No later than 30 days after the date on which he or she receives the copy of the petition, the district attorney shall report the results of the criminal history record search to the court and may provide a written response to the petition.

(d) After reviewing a report submitted under par. (c) concerning the results of a criminal history record search, the court shall do whichever of the following is applicable:

1. If the report indicates that the person filing the petition has been convicted of a criminal offense that was committed during the period of lifetime tracking, the court shall deny the person's petition without a hearing.

2. If the report indicates that the person filing the petition has not been convicted of a criminal offense that was committed during the period of lifetime tracking, the court shall order the person to be examined under par. (e), shall notify the department that it may submit a report under par. (f) and shall schedule a hearing on the petition to be conducted as provided under par. (g).

(e) A person filing a petition requesting termination of lifetime tracking who is entitled to a hearing under par. (d) 2. shall be examined by a person who is either a physician or a psychologist licensed under ch. 455 and who is approved by the court. The physician or psychologist who conducts an examination under this paragraph shall prepare a report of his or her examination that includes his or her opinion of whether the person petitioning for termination of lifetime tracking is a danger to the public. The physician or psychologist shall file the report of his or her examination with the court within 60 days after completing the examination, and the court shall provide copies of the report to the person filing the petition and the district attorney. The contents of the report shall be confidential until the physician or psychologist testifies at a hearing under par. (g). The person petitioning for termination of lifetime tracking shall pay the cost of an examination required under this paragraph.

(f) After it receives notification from the court under par. (d) 2., the department may prepare and submit to the court a report concerning a person who has filed a petition requesting termination of lifetime tracking. If the department prepares and submits a report under this paragraph, the report shall include information concerning the person's conduct while on lifetime tracking and an opinion as to whether lifetime tracking of the person is still necessary to protect the public. When a report prepared under this paragraph has been received by the court, the court shall, before the hearing under par. (g), disclose the contents of the report to the attorney for the person who filed the petition and to the district attorney. When the person who filed the petition is not represented by an attorney, the contents shall be disclosed to the person.

(g) A hearing on a petition requesting termination of lifetime tracking may not be conducted until the person filing the petition has been examined and a report of the examination has been filed as provided under par. (e). At the hearing, the court shall take evidence it considers relevant to determining whether lifetime tracking should be continued because the person who filed the petition is a danger to the public. The person who filed the petition and the district attorney may offer evidence relevant to the issue of the person's dangerousness and the continued need for lifetime tracking.

(h) The court may grant a petition requesting termination of lifetime tracking if it determines after a hearing under par. (g) that lifetime tracking is no longer necessary to protect the public.

(i) If a petition requesting termination of lifetime tracking is denied after a hearing under par. (g), the person may not file a subsequent petition requesting termination of lifetime tracking until at least 5 years have elapsed since the most recent petition was denied.

(7) Department's petition to terminate lifetime tracking.

(a) The department may file a petition requesting that a person's lifetime tracking be terminated if the person is permanently physically incapacitated. The petition shall include affidavits from 2 physicians that explain the nature of the person's permanent physical incapacitation.

(b)

1. The department shall file a petition under par. (a) with the circuit court for the county in which the person was convicted or found not guilty or not responsible by reason of mental disease or defect or, in the case of a person described in sub. (2) (b), the circuit court for the county in which the person was found to be a sexually violent person.

2. The department shall send a copy of a petition filed under subd. 1. to the district attorney responsible for prosecuting the serious sex offense that was the basis for the order of lifetime tracking or, in the case of a person described in sub. (2) (b), the agency that filed the petition under s. 980.02.

(c) Upon its own motion or upon the motion of the party to whom the petition was sent under par. (b) 2., the court may order that the person to whom the petition relates be examined by a physician who is approved by the court. The physician who conducts an examination under this paragraph shall prepare a report of his or her examination that includes his or her opinion of whether the person is permanently physically incapacitated. The physician shall file the report of his or her examination with the court within 60 days after completing the examination, and the court shall provide copies of the report to the department and the party to whom the petition was sent under par. (b) 2. The contents of the report shall be confidential until the physician testifies at a hearing under par. (d). The department shall pay the cost of an examination required under this paragraph.

(d) The court shall conduct a hearing on a petition filed under par. (b) 1., but if the court has ordered a physical examination under par. (c), the hearing may not occur until after the examination is complete and a report of the examination has been filed as provided under par. (c). At the hearing, the court shall take evidence it considers relevant to determining whether the person to whom the petition relates is permanently physically incapacitated so that he or she is not a danger to the public. The department and the party to whom the petition was sent under par. (b) 2. may offer relevant evidence regarding that issue.

(e) The court may grant a petition filed under par. (b) 1. if it determines after a hearing under par. (d) that the person to whom the petition relates is permanently physically incapacitated so that he or she is not a danger to the public.

(7m) Termination if person moves out of state. If a person who is subject to being tracked under this section moves out of state, the department shall terminate the person's tracking. If the person returns to the state, the department shall reinstate the person's tracking except as provided under sub. (6) or (7).

History: 2005 a. 431; 2007 a. 20 ss. 3134m to 3165m, 9121 (6) (a); 2007 a. 96; 2009 a. 28, 180; 2017 a. 346.

Lifetime global positioning system (GPS) tracking is not a punishment such that due process requires a defendant be informed of it before entering a plea of guilty. Neither the intent nor effect of lifetime GPS tracking is punitive. Consequently, the defendant in this case was not entitled to withdraw his plea because the circuit court was not required to inform the defendant that his guilty plea would subject him to lifetime GPS tracking. State v. Muldrow, 2018 WI 52, 381 Wis. 2d 492, 912 N.W.2d 74, 16-0740.

A statute is an ex post facto law only if it imposes punishment. In Muldrow, 2018 WI 52, the court determined that neither the intent nor the effect of lifetime global positioning system (GPS) tracking is punitive. Thus, GPS tracking does not violate the ex post facto clause. Kaufman v. Walker, 2018 WI App 37, 382 Wis. 2d 774, 915 N.W.2d 193, 17-0085.

This section conditions global positioning system (GPS) tracking on a defendant's prior convictions, rather than current dangerousness. Therefore, due process does not entitle the defendant to more procedural protections. The defendant in this case was not entitled to a hearing to prove that he was not dangerous because his current state of dangerousness was immaterial to being subject to GPS monitoring. Kaufman v. Walker, 2018 WI App 37, 382 Wis. 2d 774, 915 N.W.2d 193, 17-0085.

Given how slight is the incremental loss of privacy from having to wear an anklet monitor, and how valuable to society the information collected by the monitor is, this section does not violate the 4th Amendment. The terms of supervised release, probation, and parole often authorize searches by probation officers without the officers' having to obtain warrants. Such warrantless searches do not violate the 4th Amendment as long as they are reasonable. The search conducted in this case via an anklet monitor is less intrusive than a conventional search. Such monitoring of sex offenders is permissible if it satisfies the reasonableness test applied in parolee and special-needs cases. Wisconsin's ankle monitoring of the defendant was reasonable. Belleau v. Wall, 811 F.3d 929 (2016).

This section was not an ex post facto law simply because it took effect after the plaintiff had committed the crimes for which he had been convicted. A statute is an ex post facto law only if it imposes punishment. This monitoring law is not punishment; it is prevention. Belleau v. Wall, 811 F.3d 929 (2016).