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SCOTUS: Satellite-based sex offender monitoring is a “search” under the 4th Amendment

Grady v. North Carolina, USSC No. 14-593, 2015 WL 1400850, 3/30/15 (per curiam), reversing State v. Grady, 762 S.E.2d 460 (2014) (unpublished order); docket

The Supreme Court holds that a state conducts a search within the meaning of the Fourth Amendment when it attaches a device like a GPS bracelet to a person’s body without consent for the purpose of tracking the person’s movements.

Grady, a twice-convicted sex offender, challenged an order subjecting him to lifetime satellite-based monitoring (SBM) under state statutes, §§ 14-208.40(a)(1) and 14-208.40B. He claimed the monitoring program—under which he would be forced to wear tracking devices at all times—would violate his Fourth Amendment right to be free from unreasonable searches. The state courts rejected his claim, citing state precedent that held affixing a GPS device to a person as part of a civil SBM proceeding was different than using one in a criminal investigation. State v. Jones, 750 S.E.2d 883 (N.C. Ct. App. 2013). This logic is roundly rejected by the Supreme Court:

The only explanation provided below for the rejection of Grady’s challenge is the quoted passage from State v. Jones. And the only theory we discern in that passage is that the State’s system of nonconsensual satellite-based monitoring does not entail a search within the meaning of the Fourth Amendment. That theory is inconsistent with this Court’s precedents.
In United States v. Jones, we held that “the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’” 565 U.S., at___ [132 S.Ct. 945, 949 (2012)]. We stressed the importance of the fact that the Government had “physically occupied private property for the purpose of obtaining information.” Id., at ___. Under such circumstances, it was not necessary to inquire about the target’s expectation of privacy in his vehicle’s movements in order to determine if a Fourth Amendment search had occurred. “Where, as here, the Government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred.” Id., at ___, n. 3 [132 S.Ct. at 950, n. 3].
We reaffirmed this principle in Florida v. Jardines, 569 U.S. ___, ___-___ [133 S.Ct. 1409, 1413–1414] (2013), where we held that having a drug-sniffing dog nose around a suspect’s front porch was a search, because police had “gathered … information by physically entering and occupying the [curtilage of the house] to engage in conduct not explicitly or implicitly permitted by the homeowner.” … In light of these decisions, it follows that a State also conducts a search when it attaches a device to a person’s body, without consent, for the purpose of tracking that individual’s movements. (Slip op. at 2-3).

Nor does the putatively civil nature of the state’s SBM procedure make any difference because the Fourth Amendment’s protection extends beyond the sphere of criminal investigations, City of Ontario, Cal. v. Quon, 560 U.S. 746, 755 (2010), and the government’s purpose in collecting information does not control whether the method of collection constitutes a search. (Slip op. at 3-4).

That the SBM program effects a Fourth Amendment search does not, however, decide the ultimate question of the program’s constitutionality:

The Fourth Amendment prohibits only unreasonable searches. The reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations. See, e.g., Samson v. California, 547 U.S. 843 (2006) (suspicionless search of parolee was reasonable); Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995) (random drug testing of student athletes was reasonable). The North Carolina courts did not examine whether the State’s monitoring program is reasonable—when properly viewed as a search—and we will not do so in the first instance. (Slip op. at 5).

The case is therefore remanded for the state courts to address reasonableness.

An interesting development in the challenges to sex offender tracking, though a cynic might say it won’t be hard for a court to find this kind of search to be reasonable. Wisconsin’s GPS tracking statute, § 301.48, is certainly susceptible to the same challenge. For more ideas and background on Fourth Amendment and other challenges, see Eric M. Dante, Tracking the Constitution—The Proliferation and Legality of Sex-Offender GPS-Tracking Statutes, 42 Seton Hall Law Review 1169 (2012).

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