Sex Offender Challenges GPS Monitoring

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Sex Offender Challenges GPS Monitoring

Special Report - November 15, 2007
A federal lawsuit was filed on November 2 by a registered sex offender challenging North Carolina’s new law requiring that the worst sex offenders wear GPS monitoring devices. The law, which passed during the 2006 Legislative Session, requires the use of satellites to track sex offenders who are sexually violent predators, habitual sex offenders, or are convicted of “aggravated offenses.”

The lawsuit was filed in federal court by Jay Usategui of Hope Mills who was charged in 2003 with the statutory rape of a 15-year old girl, three counts of statutory sexual offense, taking indecent liberties with a child, first degree kidnapping, and communicating threats. According to the lawsuit, Mr. Usategui was accused of kidnapping the 15-year old girl with three other men, and repeatedly having sex with her under duress. Mr. Usategui entered into a plea bargain agreement whereby the statutory rape and kidnapping charges were dropped in exchange for a guilty plea to the other offenses. Sentenced to probation for two years, Mr. Usategui violated the terms of his probation, and was subsequently sentenced to prison for more than one year. The new sex offender law passed before Usategui was released from prison. Prior to his release, he received notice from the Department of Correction that he was classified as having committed a “reportable conviction” and that he was required to register as a convicted sex offender. After his release, Mr. Usategui received a letter from the Sheriff of Cumberland County informing him that because of recent legislative changes, his offense was being “upgraded” to an “aggravated offense.”

The petition in the lawsuit alleges that because of the upgrade in his offense, Mr. Usategui was forced by the Department of Correction to participate in satellite-based GPS monitoring for life. This means that he must wear an ankle bracelet and carry a two-pound monitored tracking device 24-hours-a-day, seven-days-a-week, 52-weeks-a-year. He also is required to remain within his home from midnight until 6:00 a.m. and cannot leave the State of North Carolina. Mr. Usategui alleges that the GPS device has malfunctioned from time to time, is bulky, and has interfered with the quality of his life.

Mr. Usategui’s lawsuit claims the satellite-based GPS monitoring law has been applied to him retroactively and thus constitutes an unconstitutional ex post facto law. Furthermore, he claims that the law violates the Fourteenth Amendment by restricting his right to travel between states and within the state of North Carolina free from government interference. Finally, he claims the lifetime application of the law is an unconstitutional search and seizure at a time when he is no longer subject to probation, parole, or supervised release. He seeks to have the law declared unconstitutional on its face and as applied to him.