GPS TRACKING OF CONVICTED PERSON MAY BE UNCONSTITUTIONAL
On March 30, 2015, the United States Supreme Court held, in Grady v. North Carolina, that placing a GPS on a recidivist sex offender may be an unconstitutional search. However, the Court noted, “(t)he Fourth Amendment prohibits only unreasonable searches.” Therefore the issue is whether the placement of a GPS on the person is reasonable?
Facts
“Petitioner Torrey Dale Grady was convicted in North Carolina trial courts of a second degree sexual offense in 1997 and of taking indecent liberties with a child in 2006.” After serving his sentence for the 2006 crime, a hearing was held and determined that he was a recidivist sex offender and, under North Carolina’s law, would be subjected to satellite based monitoring.
He argued that, although he conceded that he was a recidivist, “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 and seizures. [T]he trial court ordered Grady to enroll in the program and be monitored for the rest of his life.”
He appealed, relying on the U.S. Supreme Court’s decision in United States v. Jones, 132 S.Ct. 945 (2012), where the Court held “that police officers had engaged in a ‘search’ within the meaning of the Fourth Amendment when they installed and monitored a Global Positioning System (GPS) tracking device on a suspect’s car.”
The North Carolina Court of Appeals rejected his argument, based on a prior North Carolina case, State v. Jones, which it distinguished from the (unrelated) U.S. Supreme Court Jonesdecision. The North Carolina Supreme Court, thereafter, dismissed his appeal and the U.S. Supreme Court accepted it for review.
The U.S. Supreme Court found that the “only theory we discern in [the Jones decision by the North Carolina court] 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.’ We stressed the importance of the fact that the Government had ‘physically occupied private property for the purpose of obtaining information.’”
The Court stated, further, that it “reaffirmed this principle in Florida v. Jardines, 133 S.Ct. 1409 (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.’”
Noting that the state court relied on the fact that their monitoring program was civil in nature, the Supreme Court held that “the Fourth Amendment’s protection extends beyond the sphere of criminal investigations, and the government’s purpose in collecting information does not control whether the method of collection constitutes a search.”
Finally, “(t)he State’s program is plainly designed to obtain information. And since it does so by physically intruding on a subject’s body, it effects a Fourth Amendment search.”
HOW THIS AFFECTS YOUR AGENCY
As noted above, the U.S. Supreme Court held that this decision “does not 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.”
The Court gave two examples of where searches were found to be reasonable: the suspicion less search of a parolee, and the suspicion less, random, drug testing of student athletes.
“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.” As such, the judgment of the North Carolina Supreme Court was vacated and “the case is remanded for further proceedings not inconsistent with this opinion.”
As with all legal issues, it is necessary to seek out advice and guidance from your agency’s legal counsel. However, if you wish to discuss this case in greater detail, feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.
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