Case Caption: Berthier v. People of the Virgin IslandsCase Number: SCT-CRIM-2021-0024Date: 12/05/2024Author: Cabret, Maria M. Citation: 2024 VI 35Summary: In an appeal from the Superior Court’s June 4, 2021, order denying a defendant’s motion to be relieved of pretrial electronic monitoring and the associated costs of an electronic monitoring device, the imposition of electronic monitoring as a condition of pretrial release is affirmed, but the imposition of its costs upon the defendant is reversed. Rule 5-1, which modernized former Superior Court Rules 141 through 147 on the setting of bail, requires the court to impose the least restrictive conditions of release that will reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process. The non-exhaustive range of conditions of release that the court can consider alone or in combination includes personal recognizance, an unsecured bail bond, travel restrictions, residence restrictions, custody with a designated person or organization, surety bond, and/or cash bail bond, as provided in Rule 5-1(b). While a judge must consider the least restrictive conditions to apply to defendants who are not charged with a capital offense, the court is not without the authority to order additional security or detention if a defendant violates – or is reasonably determined to be about to violate – the specified terms of release. The Superior Court must make an individualized determination of bail and release conditions to ensure that bail is not excessive and unconstitutional, and must state in writing, or orally on the record, the reasons for an order refusing or imposing conditions of release or ordering pretrial detention of a defendant in a criminal case. Rule 5-1 applies to motions to modify terms of pretrial release, while Rule 32.1 applies to violations of post-trial supervised release, wholly inapplicable to these proceedings. The Superior Court had express authority to order electronic monitoring because Rule 5-1(b)(3) explicitly authorizes the placement of restrictions on the travel, association, or place of abode of the defendant during the period of release and because electronic monitoring is itself a travel restriction. The argument that electronic monitoring violates an individual’s right to be free from unreasonable searches and seizures is rejected. Electronic monitoring does not violate a reasonable expectation of privacy under the Fourth Amendment because the system monitors only what can be readily gleaned to the public eye. Because a criminal defendant has a reduced expectation of privacy in the information gathered during pretrial release regarding compliance with court-ordered restrictions on travel, residence, and association, electronic monitoring does not constitute a “seizure” for Fourth Amendment purposes. GPS tracking is a “search” because it is a physical trespass with the intent to gain information, but here the reasonableness analysis has been preempted by the defendant’s explicit and implicit consent to electronic monitoring as a condition of his pretrial release. While the Legislature has clearly authorized this Court to impose any fee by order or rule, necessarily encompassing pretrial electronic monitoring fees, no order or rule has been issued to establish an electronic monitoring fee. Therefore, the Superior Court does not have the authority to impose the costs of pretrial electronic monitoring on a defendant, not because such fees must be set by the Legislature, but rather because the statutory authority to do so has been specifically vested to this Court and this Court has not yet ordered pretrial electronic monitoring fees.Attachment: Open Document or Opinion