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25 Sep 2012

Classified Sex Offender, on Probation with a GPS Monitor, Allowed to Travel from Florida to California (Over Probation Officer’s Objection)

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S.O. is a pseudonym to protect his identity. S.O. was placed on sex offender probation in St. Lucie County with a condition of GPS monitoring. Since the probation occurred after July 1, 2005, there was a condition of mandatory electronic monitoring (EM).

S.O.’s son was to be married in Los Angeles, California. S.O.’s probation officer refused to give consent to travel based, in part, on the provision for mandatory electronic monitoring. The probation officer asserted that the Florida DOC contract for electronic monitoring did not provide for out-of-state travel. Therefore, the probation officer said that out-of-state travel was “out of the question”, because it would violate the provision for mandatory electronic monitoring.

Attorney Jeffrey H. Garland was retained in an attempt to solve this problem. How can the probationer be permitted to travel out-of-state, when DOC does not conduct out-of-state electronic monitoring?

The initial investigation focused on whether the provision for mandatory electronic monitoring actually applied to S.O. Several other lawyers had followed this path without success. Attorney Garland reasoned that the problem is not the mandatory requirement for EM, but DOC’s refusal to provide out-of-state electronic monitoring.

S.O. was an excellent probationer. He had scrupulously observed all the conditions of his sex offender probation for over three years. He was originally placed on probation for possession of computer pornography. At all times, he was cooperative with counseling and treatment. He had no prior record. The sentencing judge had initially sentenced him to “straight” probation over the strident objections of the prosecution.

Attorney Garland contacted the EM provider for Florida DOC, ProTech Monitoring, Inc., to inquire whether S.O. could pay an additional fee for out-of-state monitoring. Attorney Garland received an e-mail response from ProTech refusing to cooperate: “ProTech provides EM products and services directly to government agencies and does not contract with private parties.”

S.O. and Attorney Garland began to canvass police, probation and parole agencies in southern California which might be able to provide EM servicing. A variety of problems were discovered which precluded the use of such public agencies. The initial hurdle was that S.O. had not been ordered onto electronic monitoring by a California court, was not released onto parole by California DOC, and was not permanently transferred to California for probation supervision. S.O. would only be present in Los Angeles for temporary travel as defined under the Interstate Compact. Based on these circumstances, California public agencies could not provide the needed EM servicing.

The defense uncovered an additional problem in need of a solution. S.O.’s probation officer would not allow the Florida EM equipment to leave the State. He would demand the removal of the equipment before travel began. In addition, it was discovered that EM units are not permitted to be “active” on airliners under FAA rules.

Attorney Garland recognized that it would be necessary to approach the court for travel permission with a plan for non-stop electronic monitoring from the moment the Florida probation officer removed the Florida equipment until the Florida equipment is reattached after S.O.’s return. It would be necessary to obtain a credible proposal from an EM provider which could service in Florida, en route via airplane, in Los Angeles, and on the return. GPS Monitoring Solutions is a private company which was able to provide these services at a reasonable fee.

Attorney Garland filed a motion entitled “Motion to Permit Travel to Los Angeles to Attend Son’s Wedding”. The judge granted the motion subject to the following specific conditions:

  1. Although given permission to travel, S.O. would be subject to all remaining conditions of his probation.
  2. S.O. was required to file a formal waiver of extradition.
  3. S.O. was required to place $2,500.00 into Attorney Garland’s escrow account to defray the cost of extradition in the event that he would be arrested out-of-state for a violation of probation.
  4. Travel was conditioned upon continuous electronic monitoring by GPS Monitoring Solutions.
  5. GPS Monitoring Solutions was ordered to report any violation to the appropriate law enforcement agency in the State of California or elsewhere. The agency receiving such a report was authorized to arrest on probable cause without the need of a warrant.
  6. S.O. was forbidden from leaving the territorial limits of Los Angeles County. He was required to observe a 10:00 P.M. – 6:00 A.M. curfew at specific locations which were set forth in the Order.
  7. S.O.’s probation officer was authorized to monitor him through the GPS Monitoring Solutions’ system. The probation officer was authorized to contact any law enforcement agency in Florida, California, or elsewhere to have S.O. arrested without a warrant if there was probable cause to believe that a violation had occurred.
  8. S.O. signed a written consent to being arrested without warrant upon a violation of the conditions of his probation or the Order authorizing travel.

S.O. was able to attend his son’s wedding by virtue of the court’s travel permission and the services provided by GPS Monitoring Solutions. He returned to his Port St. Lucie home happy and without incident.

COMMENT: It is unlikely that sex offenders in Florida will be able to temporarily or permanently avoid electronic monitoring, if their electronic monitoring is a mandatory condition of probation. It is clear that the Florida DOC does not use the most advanced EM hardware or servicing. Careful research may locate private EM providers who are able to provide equivalent or better monitoring than DOC currently obtains via its contract with ProTech. While most probationers may feel restricted by electronic monitoring, Attorney Garland would suggest that EM may have certain benefits. State-of-the-art electronic monitoring can protect a probationer from false claims of probation violation or new crimes. Attorney Garland has twice obtained dismissal in such situations. In one, a person on pre-trial release was charged with violating curfew. The electronic monitoring was used to defeat eyewitness testimony. In another case, the person was arrested for a new crime, but the charge was dismissed when electronic monitoring records showed that he could not have committed the crime. In conclusion, it may be best for persons subject to electronic monitoring to use the most advanced software and hardware available

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