   IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

                                         )
MARY DOE, JOHN DOE NO. 1, and            )
JOHN DOE NO. 2,                          )
                                         )
             Plaintiffs,                 )
                                         )
       v.                                )   C.A. No. 10983-VCMR
                                         )
ROBERT M. COUPE, solely in his           )
official capacity as Commissioner of the )
Delaware Department of Correction,       )
                                         )
              Defendant.                 )

                                  OPINION

                        Date Submitted: May 3, 2016
                        Date Decided: August 12, 2016


Richard H. Morse and Ryan Tack-Hooper, AMERICAN CIVIL LIBERTIES
UNION FOUNDATION OF DELAWARE, Wilmington, Delaware; Attorneys for
Plaintiffs.

Joseph C. Handlon and Roopa Sabesan, DELAWARE DEPARTMENT OF
JUSTICE, Wilmington, Delaware; Attorneys for Defendant.
      In this action, three convicted sex offenders challenge the constitutionality of

a Delaware statute that requires them to wear GPS monitors on their ankles at all

times as a condition of their parole or probation. The plaintiffs are Tier III sex

offenders, which means they were convicted of the sex crimes that the Delaware

General Assembly has deemed among the most serious. The challenged statute—

11 Del. C. § 4121(u) (“Section 4121(u)”)—mandates GPS monitoring of all Tier

III sex offenders granted parole or probation without reference to their individual

risks of recidivism. The plaintiffs claim that Section 4121(u) violates the Fourth

Amendment to and the Ex Post Facto Clause of the United States Constitution, as

well as Article I, § 6 of the Delaware Constitution.            The defendant—the

Commissioner of the Delaware Department of Correction, which administers

Delaware’s GPS monitoring program—maintains that Section 4121(u) is valid

under the United States and Delaware Constitutions.

      Both parties have moved for summary judgment. For the reasons stated in

this Opinion, I grant the defendant’s motion for summary judgment and deny the

plaintiffs’ motion for summary judgment.




                                          1
I.     BACKGROUND1

     A.      Parties
       Plaintiffs John Doe No. 1, John Doe No. 2, and Mary Doe (“Plaintiffs”) are

 citizens and residents of Delaware who previously were convicted of and

 incarcerated for sex crimes.2 Defendant Robert M. Coupe is the Commissioner of

 the Delaware Department of Correction.

      B.     Facts
            1.       Plaintiffs are convicted of and incarcerated for sex crimes
       In 1979, John Doe No. 1 was convicted of raping a forty-seven year old

 woman. He served thirty years in the Sussex Correctional Institution and was

 released on parole in 2009.      In 1992, Mary Doe was convicted of being an

 accomplice to the rape, sodomy, and robbery of a twenty-one year old woman in

 New York. She was incarcerated in New York from 1991 until 2010, when she

 was released on parole. In 2001, John Doe No. 2 pled guilty to second degree


 1
       The facts are drawn from the parties’ pleadings and the evidence submitted as
       appendices to the parties’ briefs. See Ct. Ch. R. 56(c). Of particular note are the
       depositions of John Sebastian, see App. to Pls.’ Opening Br., at P019-53
       (“Sebastian Dep.”), and Chrysanti S. Leon, Ph.D., J.D., see App. to Pls.’ Opening
       Br., at P076-110 (“Leon Dep.”). Sebastian is the Director of the Department of
       Correction’s Probation and Parole section. Leon is Plaintiffs’ expert witness and a
       tenured professor in the University of Delaware Department of Sociology and
       Criminal Justice, with secondary appointments in the Departments of Women and
       Gender Studies and Legal Studies.
 2
       On April 30, 2015, the Court granted Plaintiffs’ Motion for Leave to File and
       Proceed using pseudonyms. See Docket Item (“D.I.”) No. 2.

                                            2
unlawful sexual intercourse. He was released from prison in July 2009 and was

placed on probation.

      Despite their heinous crimes, John Doe No. 1 and Mary Doe each have

exhibited signs of successful rehabilitation. According to a deputy warden at the

Sussex Correctional Institution, John Doe No. 1 “made exceptional personal

change and growth during his incarceration at SCI. He has left behind the person

that he was.”3 That same deputy warden also stated that John Doe No. 1 “has

moved on to become the type of man who continually strives to improve himself

and his community, exactly the kind of person every community hopes to count

among its members.”4 Further, the Deputy Attorney General who prosecuted John

Doe No. 1—who now serves as a Delaware Superior Court Judge—wrote that

before meeting with John Doe No. 1, “I had my doubts as to the rehabilitative

prospects of a once violant [sic] offender. Now, I sincerely believe that [John Doe

No. 1] represents a person who is totally, firmly and truly rehabilitated. He is, in

brief, a changed person.”5

      While in prison, Mary Doe earned a GED, an Associate Degree, and a

Bachelor’s Degree in sociology. She will receive a Master’s Degree in psychology


3
      Compl. ¶ 28.
4
      Id.
5
      Id. ¶ 29.

                                         3
later this year. Mary Doe lives with her husband and three children and is the

Director of the Mental Health Court Peer Team, assigned to Superior Court Mental

Health Court in Wilmington. According to James Lafferty, the Executive Director

of the Mental Health Association in Delaware, Mary Doe is “a model of a person

who has not only succeeded in recovery but in rehabilitation.”6

            2.      Plaintiffs are Tier III sex offenders
      “In Delaware, after an individual is convicted of or adjudicated delinquent

for any offense enumerated in the statute, the trial court must conduct a hearing at

which the trial judge is required to designate the defendant as a sex offender.”7

The convicted sex offenders then are assigned to one of three Risk Assessment

Tiers of the sex offender registry—under 11 Del. C. § 4121—depending on the

severity of their crime.8

      “The sentencing court has no discretion in” assigning a convicted sex

offender to a Risk Assessment Tier.9 Instead, “[t]he statute [11 Del. C. § 4121]

clearly delineates the tier to which a sex offender is to be assigned based on the

particular offense for which that individual was convicted and mandates

6
      App. to Pls.’ Opening Br., at P157.
7
      Helman v. State, 784 A.2d 1058, 1066 (Del. 2001) (footnotes omitted) (citing 11
      Del. C. § 4121(c)).
8
      See 11 Del. C. § 4121(c)-(d).
9
      Helman, 784 A.2d at 1066.

                                            4
assignment to that Tier level without any regard to the facts or circumstances of the

particular case.”10 Tier III is the most severe of the three Risk Assessment Tiers

and includes, for example, convictions for rape in the first degree, rape in the

second degree, unlawful sexual contact in the first degree, and sexual abuse of a

child under the age of 13.11 At the time they filed their verified complaint (the

“Complaint”), Plaintiffs were assigned to Risk Assessment Tier III.

            3.         As Tier III sex offenders, Plaintiffs are required to wear
                       GPS monitors as a condition of parole or probation
      Coupe, as Commissioner of the Department of Correction, is responsible for

the oversight, operation, and administration of Delaware’s correctional system,

including the Department’s Probation and Parole (“P&P”) section. P&P administers

Section 4121(u), which requires that “any Tier III sex offender being monitored at

Level IV, III, II or I, shall as a condition of their probation, wear a GPS locator

ankle bracelet paid for by the probationer.”12 Thus, as Tier III sex offenders,

Plaintiffs were subject to Section 4121(u) at the time this action was filed and,

consequently, were required to wear GPS monitors on their ankles.13



10
      Id.
11
      11 Del. C. § 4121(d)(1).
12
      Id. § 4121(u).
13
      After Plaintiffs filed their Complaint, John Doe No. 2 was reincarcerated for
      violating the terms of his probation. In addition, the New York Board of Parole
                                          5
         Although P&P supervises Tier III sex offenders in an individualized

manner,14 it has no discretion in determining whether an individual parolee or

probationer should be subject to GPS monitoring. As Sebastian testified, P&P

administers GPS monitoring for all Tier III sex offenders “because it’s required to

be done and the legislature has determined that it’s appropriate by making that

law.”15 Sebastian further explained that he has “never given great thought to . . .

whether it makes sense or doesn’t make sense or whether we should or shouldn’t

[monitor all Tier III sex offenders using GPS]. It’s a requirement, therefore, we do

it.”16

               4.      Plaintiffs complain that the GPS monitors cause them
                       substantial hardship
         John Doe No. 1 described the embarrassment that the GPS monitor causes

him and the lengths to which he goes to avoid having to talk with other people

about it. He “wear[s] clothes that will cover the monitor as best [he] can whenever

[he is] outside [his] home in order to reduce the frequency with which people see




         discharged Mary Doe from her parole, and she was dismissed from this action.
         See Stipulation of Dismissal of Mary Doe, D.I. No. 61. As a result, only John Doe
         No. 1 remains subject to GPS monitoring under Section 4121(u).
14
         Leon Dep. 27:11-15, 34:14-35:23.
15
         Sebastian Dep. 109:17-19.
16
         Id. at 110:18-21.

                                             6
the GPS monitor and question why [he is] wearing it.”17 The GPS monitor also

“caused [his] leg to become infected because it was too tightly affixed.”18

Although the infection went away after P&P loosened the GPS monitor, P&P still

had to move the monitor to John Doe No.1’s other leg “because it was injuring the

first leg.”19 Because John Doe No. 1 has to pay “$4.65 per day for the GPS

monitor,” he now has “an outstanding bill in excess of $11,000.”20

      John Doe No. 2 also “incurred a debt of more than $11,000 for the

monitor.”21 Further, John Doe No. 2 “was employed by a temporary employment

company performing cleaning services inside a power plant.”22 John Doe No. 2

“was frequently instructed by [his] probation officer . . . to step outside the plant so

that the GPS satellite could pick up the signal from the monitor.” 23 Because of the




17
      App. to Pls.’ Opening Br., at P135.
18
      Id.
19
      Id.
20
      Id.
21
      Id. at P149.
22
      Id.
23
      Id.

                                            7
disruption that his frequent trips outside of the power plant caused, John Doe No. 2

“lost that work, and became unemployed.”24

      Finally, Mary Doe complained that the GPS monitor on her ankle “rubbed

[her] skin to the point of soreness” and “caused [her] ankle to bruise.”25 Mary Doe

“wore slacks all of the time to work, church and whenever else [she] was out in

public” because she “did not want to deal with the public questioning that results

from having the monitor visible on [her] ankle.”26         The GPS monitor also

negatively impacted Mary Doe’s time with her family. Because Mary Doe was too

embarrassed to wear bathing suits, she was “prevented . . . from swimming with

[her family] on family vacations.”27         In addition to the physical pain and

embarrassment that the GPS monitor caused Mary Doe, she also “had to carry the

charger for the GPS monitor wherever [she] went in order to keep it charged.”28

     C.      Procedural History
      On May 4, 2015, Plaintiffs filed their Complaint against Coupe, solely in his

official capacity as Commissioner of the Department of Correction.              The



24
      Id.
25
      Id. at P152-53.
26
      Id. at P153.
27
      Id.
28
      Id.

                                         8
Complaint seeks a declaration that Section 4121(u) violates the United States and

Delaware Constitutions and an injunction ordering P&P to allow Plaintiffs to

remove their GPS monitors. On June 8, 2015, Coupe filed a motion to dismiss the

Complaint under Court of Chancery Rule 12(b)(1) for lack of subject matter

jurisdiction. Vice Chancellor Parsons issued a letter opinion on July 14, 2015

denying Coupe’s motion to dismiss on the grounds that “this Court does have

subject matter jurisdiction over Plaintiffs’ claims, because those claims truly seek

equitable relief and it is not clear that Plaintiffs could obtain an adequate remedy at

law.”29

      On December 22, 2015, Coupe stipulated that he would not “argue that

anything particular or unique to Plaintiffs or anything in their histories (other than

their convictions) justifies that they be monitored” or “that particular

circumstances of the Plaintiffs (other than criminal convictions and concomitant

tiering of Plaintiffs) requires that they be monitored.”30 “After discovery was

completed, counsel notified the Court that they believed there was no dispute of

material fact and requested that the case go forward on cross motions [for summary




29
      Doe v. Coupe, 2015 WL 4239484, at *2 (Del. Ch. July 14, 2015).
30
      Stipulation & Proposed Order Governing Further Proceedings in this Action, D.I.
      No. 55.

                                          9
judgment].”31   The parties filed and briefed their cross motions for summary

judgment and, on May 3, 2016, I heard oral argument on those cross motions. This

Opinion contains my rulings on the parties’ cross motions for summary judgment.

     D.     Parties’ Contentions
      Plaintiffs advance three separate arguments regarding Section 4121(u)’s

alleged invalidity. Plaintiffs claim that they are entitled to summary judgment

under any of those three arguments. First, Plaintiffs contend that Section 4121(u)

violates the Fourth Amendment to the United States Constitution (the “Fourth

Amendment”). As an initial matter, Plaintiffs highlight the United States Supreme

Court decision Grady v. North Carolina, which confirms that GPS monitoring of a

parolee or probationer “effects a Fourth Amendment search.”32 Plaintiffs then

point out that a search’s constitutionality under the Fourth Amendment is measured

by its reasonableness; if a search is unreasonable, then it is unconstitutional.

According to Plaintiffs, Section 4121(u) is unreasonable because its GPS

monitoring requirement significantly intrudes upon Plaintiffs’ privacy, and that




31
      Pls.’ Opening Br. 2.
32
      135 S.Ct. 1368, 1371 (2015).

                                       10
intrusion is not outweighed by Section 4121(u)’s efficacy in satisfying the

government’s purported interest in avoiding recidivism by Tier III sex offenders.33

      Second, Plaintiffs argue that Section 4121(u) violates Article I, § 6 of the

Delaware Constitution (“Article I, § 6”).         Plaintiffs read relevant Delaware

Supreme Court precedent as indicating that Article I, § 6 “provides broader search

and seizure protections than the Fourth Amendment.”34 In particular, Plaintiffs

highlight cases that require an objective and particularized basis for suspecting

wrongdoing—i.e., reasonable suspicion—before performing a warrantless search

of a parolee or probationer.35 As such, Plaintiffs contend that because Section

4121(u) mandates GPS monitoring for all Tier III sex offenders without reference

to any individualized assessment, it violates Article I, § 6.

      Third, and finally, Plaintiffs assert that Section 4121(u) violates the United

States Constitution’s Ex Post Facto Clause (the “Ex Post Facto Clause”).

Plaintiffs acknowledge that the Delaware Supreme Court, in Hassett v. State,


33
      See, e.g., Pls.’ Answering Br. 10 (“The absence of any governmental interest in
      focusing on people who do not pose a risk instead on those who do, together with
      the intrusiveness of the GPS searches, renders §4121(u) invalid under the Fourth
      Amendment.”).
34
      Id. at 20.
35
      Id. at 20-27 (citing Shepeard v. State, 133 A.3d 204, 2016 WL 690544, at *2 (Del.
      Feb. 18, 2016) (TABLE); Murray v. State, 45 A.3d 670, 678 (Del. 2012); Sierra v.
      State, 958 A.2d 825, 828 (Del. 2008); Donald v. State, 903 A.2d 315, 319 (Del.
      2006)).

                                          11
already has held that “the retroactive application of Section 4121(u) requiring

registered Tier III sex offenders to wear GPS monitoring bracelets while on

supervision at Levels IV–I does not implicate the ex post facto clause because the

statute is intended for public safety and is not punitive in nature.”36 Plaintiffs,

therefore, “[r]ecogniz[e] that [Hassett] binds this Court” and “address the [Ex Post

Facto Clause] question in [their] brief[s] in order to preserve the issue for

appeal.”37 “Plaintiffs also request that this Court address the Ex Post Facto claim,

so that the [Delaware] Supreme Court will have the benefit of this Court’s analysis

if an appeal is necessary.”38

      Coupe agrees that GPS monitoring constitutes a “search” under the United

States and Delaware Constitutions.      Coupe disagrees, however, that Section

4121(u) is violative of the Fourth Amendment, Article I, § 6, or the Ex Post Facto

Clause. As to the Fourth Amendment, Coupe argues that GPS monitoring under

Section 4121(u) is reasonable because parolees and probationers have diminished

expectations of privacy, and the Delaware government’s interest in avoiding

recidivism by Tier III sex offenders outweighs those diminished privacy

expectations. As to Article I, § 6, Coupe disputes Plaintiffs’ contention that the


36
      12 A.3d 1154, 2011 WL 446561, at *1 (Del. Feb. 8, 2011) (TABLE).
37
      Pls.’ Opening Br. 28.
38
      Pls.’ Answering Br. 23.

                                        12
 Delaware Constitution imposes a “heightened standard of reasonableness” for

 searches of parolees and probationers.39       Coupe maintains that individualized

 findings as to each Tier III sex offender are unnecessary and contends that if a

 search is reasonable under the Fourth Amendment, then it passes muster under

 Article I, § 6 as well. And, as to the Ex Post Facto Clause, Coupe simply notes

 that “this Court is bound by the Delaware Supreme Court’s decision in Hassett v.

 State.”40 Thus, Coupe claims that he is entitled to summary judgment.

II.    ANALYSIS
      A.      Standard of Review
       “Summary judgment is granted if the pleadings, depositions, answers to

 interrogatories and admissions on file, together with the affidavits, show that there

 is no genuine issue as to any material fact and that the moving party is entitled to a

 judgment as a matter of law.”41 On a motion for summary judgment, “the court

 must view the evidence in the light most favorable to the non-moving party.”42

 Under Court of Chancery Rule 56(h),



 39
       Def.’s Answering Br. 24.
 40
       Id. at 43 (citing 12 A.3d 1154, 2011 WL 446561).
 41
       Twin Bridges Ltd. P’ship v. Draper, 2007 WL 2744609, at *8 (Del. Ch. Sept. 14,
       2007) (citing Ct. Ch. R. 56(c)).
 42
       Merrill v. Crothall-American, Inc., 606 A.2d 96, 99 (Del. 1992) (citing Adickes v.
       S. H. Kress & Co., 398 U.S. 144, 157 (1970)).

                                           13
             [w]here the parties have filed cross motions for summary
             judgment and have not presented argument to the Court
             that there is an issue of fact material to the disposition of
             either motion, the Court shall deem the motions to be the
             equivalent of a stipulation for decision on the merits
             based on the record submitted with the motions.43

In such situations, “the usual standard of drawing inferences in favor of the

nonmoving party does not apply.”44 Because the parties have not presented any

disputes of material fact, I treat their cross motions as a stipulation for decision on

the merits on the record submitted.45

     B.      Section 4121(u) Does Not Violate the Fourth Amendment
            1.         Legal standard for reasonableness under the Fourth
                       Amendment
      GPS monitoring of Plaintiffs pursuant to Section 4121(u) is a Fourth

Amendment            search.46       “The      Fourth       Amendment        prohibits

only unreasonable searches.”47 Although “a search ordinarily must be based on

individualized suspicion of wrongdoing”48 and law enforcement officials generally



43
      Ct. Ch. R. 56(h).
44
      See Am. Legacy Found. v. Lorillard Tobacco Co., 886 A.2d 1, 18 (Del. Ch. 2005)
      (citing Ct. Ch. R. 56(h)), aff’d, 903 A.2d 728 (Del. 2006).
45
      Id.
46
      Grady, 135 S.Ct. at 1370.
47
      Id. at 1371.
48
      Chandler v. Miller, 520 U.S. 305, 313 (1997).

                                          14
are required to show “probable cause” before obtaining a judicial warrant to search

for evidence of criminal wrongdoing, “[a] search unsupported by probable cause

can be constitutional . . . ‘when special needs, beyond the normal need for law

enforcement, make the warrant and probable-cause requirement impracticable.’”49

In Griffin v. Wisconsin, the United States Supreme Court held that ‘[a] State’s

operation of a probation system, like its operation of a school, government office

or prison, or its supervision of a regulated industry, likewise presents

‘special needs’ beyond normal law enforcement that may justify departures from

the usual warrant and probable-cause requirements.”50 “When the subjects of

searches are probationers and parolees, . . . the Fourth Amendment suppl[ies] a

relaxed standard for reasonableness because of the special needs of parole and

probation supervision.”51

      In Vernonia School District 47J v. Acton,52 the United States Supreme Court

articulated the three factor “special needs” test that applies to suspicionless

searches under the Fourth Amendment. “The first factor to be considered is the


49
      Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995) (quoting Griffin v.
      Wisconsin, 483 U.S. 868, 873 (1987)).
50
      483 U.S. at 873-74.
51
      Pls.’ Opening Br. 21; accord Def.’s Answering Br. 13; see also Donald, 903 A.2d
      at 318-19.
52
      515 U.S. 646.

                                         15
nature of the privacy interest upon which the search here at issue intrudes.”53 The

second factor is “the character of the intrusion that is complained of.”54 The third

factor is “the nature and immediacy of the governmental concern at issue [in the

case], and the efficacy of [the disputed] means for meeting it.”55 Evaluating those

three factors requires “a context-specific inquiry, examining closely the competing

private and public interests advanced by the parties,”56 and a court must consider

“the totality of the circumstances.”57

      Finally, when making a facial challenge to a statute under the Fourth

Amendment, as Plaintiffs do here,58 “a plaintiff must establish that a ‘law is

unconstitutional in all of its applications.’”59 Such a challenge, therefore, is “the

most difficult challenge to mount successfully.”60




53
      Id. at 654.
54
      Id. at 658.
55
      Id. at 660.
56
      Chandler, 520 U.S. at 313.
57
      Grady, 135 S.Ct. at 1371.
58
      Oral Arg. Tr. 19 (Plaintiffs’ counsel agreeing that Plaintiffs’ challenge to Section
      4121(u) is a facial challenge).
59
      City of Los Angeles v. Patel, 135 S.Ct. 2443, 2451 (2015) (citing Washington State
      Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008)).
60
      U.S. v. Salerno, 481 U.S. 739, 745 (1987).

                                           16
           2.        Section 4121(u) is reasonable under the Fourth Amendment
      I address each of the three factors of the Vernonia special needs test in turn

to evaluate whether Section 4121(u) is reasonable under the Fourth Amendment.

Plaintiffs’ “status as [parolees and probationers] subject to a search condition

informs” each of the three factors of the “special needs” test of Section 4121(u)’s

reasonableness.61

                    a.    The nature of Plaintiffs’ privacy interest
      As to the first Vernonia factor, “[t]he Fourth Amendment does not protect all

subjective expectations of privacy, but only those that society recognizes as

‘legitimate.’”62 Probationers who agree to warrantless searches as a condition of

their probation have “significantly diminished . . . reasonable expectation[s] of

privacy.”63 Further, “parolees have [even] fewer expectations of privacy than

probationers, because parole is more akin to imprisonment than probation is to

imprisonment.”64 In U.S. v. Knights and Samson v. California, probationers and

parolees accepted warrantless and suspicionless search requirements as conditions




61
      U.S. v. Knights, 534 U.S. 112, 119 (2001).
62
      Vernonia, 515 U.S. at 654.
63
      Knights, 534 U.S. at 119-20.
64
      Samson v. California, 547 U.S. 843, 850 (2006).

                                          17
of their probation or parole.65 In those cases, the Court found it “salient” that the

probationers and parolees were “unambiguously aware” of the warrantless and

suspicionless search requirements as a condition of their probation or parole.66 The

Court concluded, therefore, that those probationers and parolees “did not have an

expectation of privacy that society would recognize as legitimate.”67

      Similarly, Plaintiffs voluntarily accepted Section 4121(u)’s GPS monitoring

requirement as a condition of their probation or parole to avoid further prison time.

And, Plaintiffs cannot seriously contend that they were unaware that their locations

were being tracked because the GPS monitors were physically attached to their

ankles.   Thus, “[e]xamining the totality of the circumstances pertaining to

[Plaintiffs’] status as [parolees and probationers], ‘an established variation on

imprisonment,’ . . . [Plaintiffs] [do] not have an expectation of privacy that society

would recognize as legitimate.”68

                  b.      The character of Section 4121(u)’s privacy intrusion
      As to the second Vernonia factor, I recognize that GPS monitoring

necessarily intrudes upon an individual’s privacy. Plaintiffs describe the physical


65
      See Samson, 547 U.S. at 852; Knights, 534 U.S. at 119.
66
      Samson, 547 U.S. at 852; Knights, 534 U.S. at 119.
67
      Samson, 547 U.S. at 852; accord Knights, 534 U.S. at 119-20.
68
      Samson, 547 U.S. 852.

                                         18
burdens, the embarrassment and shame, and the occupational inconvenience that

they have experienced as a result of wearing the GPS monitors on their ankles.

And, in State v. Holden, the Superior Court noted the extent to which continuous

GPS monitoring can intrude upon an individual’s privacy:

             The whole of a person’s progress through the world, into
             both public and private spatial spheres, can be charted
             and recorded over lengthy periods possibl[y] limited only
             by the need to change the transmitting unit’s batteries.
             Disclosed in the data retrieved from the transmitting unit,
             nearly instantaneously with the press of a button on the
             highly portable receiving unit, will be trips the
             indisputably private nature of which takes little
             imagination to conjure: trips to the psychiatrist, the
             plastic surgeon, the abortion clinic, the AIDS treatment
             center, the strip club, the criminal defense attorney, the
             by-the-hour motel, the union meeting, the mosque,
             synagogue, or church, the gay bar and on and on. What
             the technology yields and records with breathtaking
             quality and quantity is a highly detailed profile, not
             simply of where we go, but by easy inference, of our
             associations-political, religious, amicable and amorous,
             to name a few-and of the pattern of our professional and
             advocational pursuits.69

That said, however, while I do recognize that Section 4121(u)’s GPS monitoring

requirement limits Plaintiffs’ privacy, I also recognize that, undoubtedly, “[h]aving




69
      54 A.3d 1123, 1130 (Del. Super. 2010) (quoting People v. Weaver, 909 N.E.2d
      1195, 1199-1200 (N.Y. 2009)).

                                         19
to wear a GPS anklet monitor is less restrictive, and less invasive of privacy, than

being in jail or prison.”70

      Further, in evaluating the character of a search’s intrusion upon an

individual’s privacy, “[t]he focus must . . . be on the incremental effect of the

challenged statute on the plaintiff’s privacy.”71 P&P does not track Plaintiffs while

they are inside their own homes.72 The GPS monitor is “[w]aterproof to 15 feet,”73

so Plaintiffs can bathe and swim while it is on their ankles. To the extent that

Plaintiffs are embarrassed by or ashamed of their GPS monitors,74 their status as

Tier III sex offenders already requires them to notify the community of their

criminal history.75 Such notification “may include door-to-door appearances, mail,

telephone, newspapers or notices to schools and licensed day care facilities within

the community, or any combination thereof,” and “may also include a photograph

of the offender.”76 A Tier III sex offender also must publicly register as a sex



70
      Belleau v. Wall, 811 F.3d 929, 932 (7th Cir. 2016).
71
      Id. at 934-35.
72
      Sebastian Dep. 56:15-24.
73
      App. to Def.’s Opening Br., at D111.
74
      Pls.’ Opening Br. 14 (“Like a modern day Scarlett Letter, they embarrass the
      wearer and his or her family. When a pants leg raises, the casual observer can see
      the device and know that the wearer is being surveilled by the authorities.”).
75
      See Helman, 784 A.2d at 1066-67.

                                          20
offender and is subject to the registration and community notification requirements

“for the remainder of his or her life.”77 The incremental imposition into Plaintiffs’

privacy caused by Section 4121(u)’s GPS monitoring requirement, therefore, is not

unduly burdensome.

                   c.     The nature and immediacy of Delaware’s
                          governmental concern and Section 4121(u)’s efficacy
                          for meeting it
      Finally, as to the third Vernonia factor, Plaintiffs do not dispute that the

Delaware state government has a legitimate interest in avoiding recidivism by sex

offenders.   Instead, Plaintiffs contend that Section 4121(u)’s mandated GPS

monitoring of all Tier III sex offenders—without reference to the actual risk posed

by any individual sex offender—is not an efficacious means by which to satisfy

that interest.78 To support that position, Plaintiffs rely heavily on Leon’s testimony

and expert report. Leon testified that, generally, “sex offenders have a low rate of

recidivism compared to other offenders.”79 According to Leon’s expert report,

“[t]he only peer-reviewed empirical study to date of GPS surveillance of registered



76
      11 Del. C. § 4121(a)(1).
77
      Helman, 784 A.2d at 1067 (citing 11 Del. C. § 4121(f)(1)).
78
      Pls.’ Opening Br. 23 (“In this case, the governmental interest in preventing future
      sex offenses is great, but the efficacy of the monitoring scheme required by §
      4121(u) for that purpose is non-existent, as the undisputed facts make clear.”).
79
      Leon Dep. 37:14-17.

                                          21
sex offenders finds that those under GPS surveillance in California were less likely

to be charged with failing to register or absconding, but finds no evidence that GPS

surveillance reduces any form of sexual offending.”80 Leon’s expert report also

states that “[n]o research connects failure to register with future sexual

offending.”81 As to Section 4121(u)’s blanket GPS monitoring mandate for all

Tier III sex offenders, Leon testified that “the tiers do not accurately represent . . .

people’s risks for new sexual offending, and we can come closer to an accurate

prediction of who is going to commit a new sexual offense by using risk

assessment tools.”82 In other words, Leon posits that “[t]he best approach to

promote public safety is to make sure we focus our resources on the people who

present the highest risk” based on individualized assessments as opposed to

focusing solely on Risk Assessment Tiers.83

      Plaintiffs also highlight portions of Sebastian’s testimony, in which he

conceded that he has “never given great thought to . . . whether” Section 4121(u)’s

GPS monitoring requirement for all Tier III sex offenders “makes sense or doesn’t


80
      App. to Pls.’ Opening Br., at P124 (citing Susan Turner et al., Does GPS Improve
      Recidivism among High Risk Sex Offenders? Outcomes for California’s GPS
      Pilot for High Risk Sex Offender Parolees, 10 Victims & Offenders 1, 6 (2015)).
81
      Id. at P125.
82
      Leon Dep. 107:1-11.
83
      Id. at 38:1-9.

                                          22
make sense or whether [P&P] should or shouldn’t” be monitoring all Tier III sex

offenders.84 And, Plaintiffs point out that as of January 2014, P&P was monitoring

855 sex offenders.      Of those 855 sex offenders, 217 were subject to GPS

monitoring and only sixty were designated as “high risk” according to an

assessment performed by one of P&P’s consultants.85

      Although Coupe quibbles with certain of Plaintiffs’ statistics regarding sex

offender recidivism rates,86 I need not resolve the parties’ dispute as to that issue.

The facts that sex offenders may recidivate at a lower rate than other criminals and

that P&P would reduce overall recidivism more effectively by focusing on higher

risk individuals are not dispositive as to whether Section 4121(u)’s GPS

monitoring requirement is reasonable. Here, the record indicates that Section

4121(u)’s GPS monitoring requirement has at least some benefits in terms of

reducing the rate of or mitigating the harm from recidivism by Tier III sex

offenders.87   Even if sex offenders do recidivate at a lower rate than other



84
      Sebastian Dep. 110:18-20.
85
      App. to Pls.’ Opening Br., at P60-61; Sebastian Dep. 74:1-20, 91:17, 96:4-97:20.
86
      See, e.g., Def.’s Answering Br. 19 (“The State’s interest to reduce this [recidivism]
      risk is even more critical for sex offenses, which, as research shows, are four
      times as likely to be committed by sex offenders than by other probationers and
      parolees.”).
87
      See generally Griffin, 483 U.S. at 882 (“Supervision also provides a crucial means
      of advancing rehabilitation by allowing a probation agent to intervene at the first
                                           23
criminals, the Delaware General Assembly reasonably may view sex crimes as

more detrimental to public safety than other crimes and “could also have

concluded that any sex offender recidivism is more egregious than recidivism of

other crimes.”88 And, because even the most advanced risk assessment metrics



      sign of trouble.”); Belleau, 811 F.3d at 935 (noting that the purpose of
      Wisconsin’s GPS monitoring program for convicted sex offenders is to “deter
      future offenses by making the plaintiff aware that he is being monitored and is
      likely therefore to be apprehended should a sex crime be reported at a time, and a
      location, at which he is present”). As noted above, Leon testified that an empirical
      study of California’s GPS surveillance of registered sex offenders found no
      evidence that such surveillance reduced sexual offenses. See supra note 80 and
      accompanying text. As Coupe notes, however, one of the sources that Leon cites
      in her expert report also studied California’s GPS surveillance program and
      concluded that “subjects in the GPS group demonstrate significantly better
      outcomes for both compliance and recidivism.” STEPHEN V. GIES ET AL., U.S.
      DEP’T OF JUSTICE, MONITORING HIGH-RISK SEX OFFENDERS WITH GPS
      TECHNOLOGY: AN EVALUATION OF THE CALIFORNIA SUPERVISION PROGRAM
      FINAL REPORT vii (2012); see also Belleau, 811 F.3d at 936 (“A study of similar
      GPS monitoring of parolees in California found that they were half as likely as
      traditional parolees to be arrested for or convicted of a new sex offense.” (citing
      GIES ET AL., supra, at 3-11, 3-13)). Further, as to Delaware’s GPS monitoring
      program under Section 4121(u), Sebastian testified that “it’s a means of deterrence
      that would keep the offenders from committing a new offense if they know
      someone is watching.” Sebastian Dep. 47:11-16. Sebastian also described one
      specific instance in which P&P utilized the GPS monitor to discover that a Tier III
      sex offender was violating the terms of his parole or probation. See Sebastian
      Dep. 47:18-48:9 (“There is one case where I’m aware of an offender was located
      using WIFI in a parking lot and they’re prohibited from having a computer device
      and they were located by the officers. The offender was located with his zipper
      down, computer out and reviewing porn. Sex offender on GPS and they found
      him using the GPS system. . . . By reviewing the mapping information, monitoring
      information, they noticed he was going to McDonald’s on a routine basis and
      spending a large portion of time there. So, they went to do surveillance and see
      why he was there.”).
88
      Def.’s Answering Br. 21.

                                           24
have subjective components,89 the General Assembly validly exercised its

legislative discretion in using the severity of a sex offender’s crime as a proxy for

that individual’s future risk to society, even if P&P would more effectively reduce

sex offender recidivism by deciding whether to use GPS monitors based on

individual risk assessments.90 “Plaintiffs cite no authority for their assertion that


89
      See Leon Dep. 123:24-124:6-17 (agreeing that risk assessment scores are
      subjective and imperfect estimates of an individual’s threat to society).
90
      See Helman, 784 A.2d at 1068 (acknowledging that acts of the Delaware General
      Assembly enjoy a “presumption of constitutionality” and that courts reviewing the
      constitutionality of a statute should defer “to legislative judgment in matters ‘fairly
      debatable’” (quoting Wilm. Med. Ctr., Inc. v. Bradford, 382 A.2d 1338, 1342 (Del.
      1978)) (citing New Castle Cty. Council v. State, 688 A.2d 888, 891 (Del. 1996))).
      In Helman v. State, the Delaware Supreme Court upheld the constitutionality of
      Delaware’s Sex Offender Registration against a challenge by a juvenile sex
      offender. In so ruling, the Delaware Supreme Court directly addressed the
      Delaware General Assembly’s choice to impose post-conviction requirements on
      sex offenders based on the severity of their offense:

             The General Assembly enacted the Sex Offender Registration
             Statute in an effort to protect society from both the adult and
             the youthful sex offender. We recognize that sexual offenses
             encompass a range of very different kinds of conduct
             implying varying degrees of seriousness and that recidivism
             rates may change significantly depending on the offender's
             circumstances. The Delaware General Assembly chose to
             condition application of the statute on the seriousness of the
             offense committed. Whether application of the statute should
             be contingent upon the juvenile’s age, or whether age is a
             factor in determining tier assignment is essentially a policy
             determination best left to the legislature.

      Id. at 1079. Similarly, deciding whether to impose a post-incarceration GPS
      monitoring requirement on probationers and parolees based on the severity of their
      offense—as opposed to based on an individual risk assessment—“is essentially a
      policy determination best left to the legislature.” Id.
                                            25
recidivism can only be reduced through individualized assessments, or that the

State is required to use the least intrusive means in accomplishing it.”91 On the

contrary, the United States Supreme Court has “repeatedly refused to declare that

only the ‘least intrusive’ search practicable can be reasonable under the Fourth

Amendment.”92 Hence, the threat of Section 4121(u) being overly inclusive—

thereby subjecting to GPS monitoring certain Tier III sex offenders who, like John

Doe No. 1 and Mary Doe, have exhibited signs of rehabilitation—does not render

it unreasonable.

                   d.    Balancing Vernonia’s three factors
      I concluded above that (1) Plaintiffs do not have a legitimate privacy interest

that suffices to shield them from GPS monitoring, (2) the incremental infringement

on Plaintiffs’ privacy imposed by Section 4121(u)’s GPS monitoring requirement

is not unduly burdensome, and (3) Section 4121(u) is relatively efficacious in

advancing the Delaware government’s legitimate interest in reducing sex offender

recidivism. Taking all of those conclusions into account, I hold that the Delaware

government’s legitimate interest and chosen means for advancing that interest—

i.e., GPS monitoring under Section 4121(u)—outweigh Plaintiffs’ interest in



91
      Def.’s Answering Br. 22.
92
      Vernonia, 515 U.S. at 663 (citing Skinner v. Railway Labor Execs.’ Ass’n, 489
      U.S. 602, 629 n.9 (1989)).

                                         26
avoiding a relatively slight intrusion into their diminished privacy.     Plaintiffs,

therefore, have failed to demonstrate that Section 4121(u) “is unconstitutional in

all of its applications.”93 Consequently, Coupe is entitled to summary judgment as

to Section 4121(u)’s reasonableness under the Fourth Amendment.

     C.      Section 4121(u) Does Not Violate Article I, § 6
      Having concluded that Section 4121(u) does not violate the Fourth

Amendment, I must determine whether Section 4121(u) violates Article I, § 6. The

threshold determination that I must make is whether Article I, § 6 provides greater

protection against searches than does the Fourth Amendment. If it does not, then

my conclusion as to Section 4121(u)’s constitutionality under the Fourth

Amendment applies to Article I, § 6 with equal force.

      As I noted above, Plaintiffs interpret a series of Delaware Supreme Court

decisions as indicating that the Delaware Constitution requires an objective and

particularized basis for suspecting wrongdoing—i.e., reasonable suspicion—before

performing any warrantless search of a parolee or probationer.94 This is in contrast

to the series of United States Supreme Court decisions that explicitly have found

suspicionless searches constitutional under the Fourth Amendment when certain




93
      Patel, 135 S.Ct. at 2451.
94
      See supra note 35 and accompanying text.

                                        27
“special needs” are present.95 Upon reviewing those Delaware Supreme Court

decisions, I disagree with Plaintiffs’ interpretation.

      In each of the four cases that Plaintiffs cite, the challenged search was a

warrantless, administrative search of a probationer’s home or vehicle conducted

pursuant to the Delaware Department of Correction’s regulations, specifically

Probation and Parole Procedure 7.19 (“P&P Procedure 7.19”).96 P&P Procedure

7.19 requires that a probation officer have “reasonable suspicion” before

conducting a search of a probationer’s residence.97 It makes sense, therefore, that

even if a probationer agrees to warrantless, administrative searches under P&P

Procedure 7.19 as a condition of probation, those warrantless administrative

searches cannot be made without reasonable suspicion because P&P Procedure

7.19 explicitly requires such reasonable suspicion.98 Hence, although each of the



95
      See supra Section II.B.1.
96
      See Shepeard, 133 A.3d 204, 2016 WL 690544, at *1; Murray, 45 A.3d at 678;
      Sierra, 958 A.2d at 832-33; Donald, 903 A.2d at 318-19.
97
      Culver v. State, 956 A.2d 5, 15 (Del. 2008) (“Without reasonable suspicion
      determined in compliance with their duties under Procedure 7.19, the unlawfully
      seized evidence and the gun and Culver's oral statement inextricably linked to the
      seizure of the gun should have been suppressed.”).
98
      Both Knights and Samson support this position, as the constitutionality of the
      warrantless and suspicionless searches at issue in those decisions hinged, in part,
      on the Court’s finding that the plaintiffs had clear notice that their probation and
      parole were conditioned on such searches. See Samson, 547 U.S. at 852 (“[A]s we
      found ‘salient’ in Knights with respect to the probation search condition, the
      parole search condition under California law—requiring inmates who opt for
                                           28
four decisions admittedly do state that “reasonable suspicion” is required for a

warrantless search, the contexts in which those statements are made indicate that

such a rule is limited to administrative searches of probationers’ residences and

vehicles pursuant to P&P Procedure 7.19. Plaintiffs fail to offer any basis on

which I may extend that rule to the suspicionless searches that Plaintiffs agreed to

as a condition of their parole or probation under Section 4121(u).

      Further, three of the four cases that Plaintiffs cite do not even mention

Article I, § 6. Instead, each of those cases addresses only the Fourth Amendment

and P&P Procedure 7.19.99 The fourth case, Donald, only mentions Article I, § 6

in the context of equating the Delaware Constitution’s protections against searches

to the United States Constitution’s.100 It is unreasonable to infer that the Delaware



      parole to submit to suspicionless searches by a parole officer or other peace officer
      ‘at any time,’—was ‘clearly expressed’ to petitioner. He signed an order
      submitting to the condition and thus was ‘unambiguously’ aware of it.
      In Knights, we found that acceptance of a clear and unambiguous search condition
      “significantly diminished Knights’ reasonable expectation of privacy.” (citations
      omitted) (quoting Knights, 534 U.S. at 119)). Similarly, individuals that agree to
      warrantless, administrative searches under P&P Procedure 7.19 are on clear notice
      that their residences can be searched without probable cause. They are not on
      clear notice, however, as to the fact that their residences can be searched without
      reasonable suspicion.
99
      See Shepeard, 133 A.3d 204, 2016 WL 690544, at *2; Murray, 45 A.3d at 678;
      Sierra, 958 A.2d at 832-33.
100
      Donald, 903 A.2d at 318 & n.6 (“Both the United States and Delaware
      constitutions protect ordinary citizens from unreasonable searches and seizures.
      . . . We previously summarized the protections afforded by the federal and
      Delaware Constitutions against unreasonable searches in Scott v. State . . . .”).
                                           29
Supreme Court, through those decisions, intended to broaden the Delaware

Constitution’s protection against searches beyond the scope of the Fourth

Amendment either without even mentioning Article I, § 6 or by equating it directly

to the Fourth Amendment.101 Thus, because Article I, § 6 does not provide broader

search protections than the Fourth Amendment and because I concluded that

Section 4121(u) does not violate the Fourth Amendment, Coupe is entitled to

summary judgment as to Section 4121(u)’s validity under Article I, § 6.

      D.     Section 4121(u) Does Not Violate the Ex Post Facto Clause
       As I noted above, in Hassett, the Delaware Supreme Court held “that the

retroactive application of Section 4121(u) requiring registered Tier III sex

offenders to wear GPS monitoring bracelets while on supervision at Levels IV–I

does not implicate the ex post facto clause because the statute is intended for

public safety and is not punitive in nature.”102 Although Plaintiffs point out that

“[o]ther courts that have addressed the issue have concluded that GPS monitoring


101
       Indeed, in Dorsey v. State and Jones v. State, the Delaware Supreme demonstrated
       that when it intends to expand the Delaware Constitution’s protections against
       searches and seizures beyond the scope of the Fourth Amend, it does so explicitly,
       with clear references to Article I, § 6. See Dorsey, 761 A.2d 807, 814-821 (Del.
       2000) (performing a “comprehensive scholarly account of the historical
       differences in the search and seizure provisions in the Delaware and United States
       Constitution” to conclude that the Delaware Constitution provides greater
       protections against searches and seizures in certain situations); Jones, 745 A.2d
       856, 860-69 (Del. 1999).
102
       12 A.3d 1154, 2011 WL 446561, at *1.

                                           30
  requirements do implicate the ex post facto clause,”103 I decline to consider that

  issue because I am bound by the Delaware Supreme Court’s ruling in Hassett.

  Coupe, therefore, is entitled to summary judgment on this issue.

III.    CONCLUSION
        For the foregoing reasons, Coupe’s motion for summary judgment is granted

  and Plaintiffs’ motion is denied.

        IT IS SO ORDERED.




  103
        Pls.’ Opening Br. 28 (citing Riley v. New Jersey State Parole Bd., 98 A.3d 544,
        560 (N.J. 2014); Commonwealth v. Cory, 911 N.E.2d 187, 197 (Mass. 2009)).

                                           31
