By Anna E. Bodi, ACLR Featured Online Contributor
In March, the United States Supreme Court reviewed a petition from a North Carolina sex offender who has served his prison time, but who nevertheless has been ordered to wear a GPS monitoring ankle bracelet for life.1 Torrey Grady, a recidivist sex offender, wanted the Court to decide whether forcing him to wear the ankle bracelet is an unconstitutional search.2 In considering the petition, the Court’s decision could have broad implications for Fourth Amendment privacy rights, extending from prior decisions such as United States v. Jones3 In Jones, the Court found that “[a]ttaching a GPS device to a vehicle and then using the device to monitor the vehicle’s movements constitutes a search under the Fourth Amendment.”4 In Grady’s case, the Court considered whether the principles of Jones should be extended to GPS tracking devices attached to people. On March 30, 2015, the Court granted Grady’s petition and issued a per curiam opinion. The Court found that the use of the GPS monitoring device constituted a search, but remanded for a determination as to whether or not the search was reasonable.5 Although the case poses not only Fourth Amendment issues but also considerations of due process, Grady’s prospects do not appear promising.
In May 2013, after a twenty-minute hearing, a North Carolina superior court ordered Grady to submit to an involuntary GPS monitoring program.6 The hearing occurred four years after Grady was released from prison, where he had served time for a 2006 conviction for “indecent liberties with a child.”7 Though Grady was not in custody or on probation at the time of the hearing, the Department of Correction had determined that he was recidivist based partly on a 1997 conviction for second-degree sexual offense.8 Because he was found to be a “sexual offender” and a “recidivist,” Grady was involuntarily placed in the state’s “Satellite-Based Monitoring Program (“SBM”).9 According to the Petitioner, the SBM program to which he was forced to submit imposes severe requirements:
For twenty-four hours every day, Petitioner must wear an ankle bracelet that transmits all of his movements and locations to agents of the State. He must maintain a GPS monitoring base station in his home, and State personnel can enter his home—with or without his permission—to maintain it. Petitioner must charge his bracelet daily, which requires him to be plugged into a wall outlet at least once a day for four to six hours at a time. These conditions will be imposed upon Petitioner, in perpetuity, for the rest of his life.10
Considering these conditions, Grady had a strong argument that the SBM Program constitutes a search comparable to Jones.
In Jones, attaching a GPS device to a car and tracking the vehicles movements was considered a search because it was a trespass for the purpose of gathering information.11 Using this physical intrusion approach, Grady seems comparable. The Fourth Amendment applies not only to “effects” (property), but also to “persons” themselves.12 The Court agreed that placing a GPS ankle device on Grady and using it to track his movements constitutes a search. This decision in favor of Grady extends the principle articulated in Jones in relation to vehicles and applies it to people. If anything, the search is more intrusive, limiting Grady’s personal liberty and privacy on a daily basis, in a civil rather than a criminal context.
Now the question for the state court is whether such a search of Grady’s person is reasonable. Whether a warrantless search is reasonable is determined “by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.”13 Grady asserts “a search that is exceeding broad and intrusive is unconstitutional, even when the subject has reduced privacy expectations and the state has a legitimate governmental interest.”14 He contends that the permanent requirement to live with a GPS device, based on past offenses, is so broad that it cannot pass constitutional muster as a reasonable search.15
While this argument is legitimate, it may not prevail. The state of North Carolina can present a strong counter-argument that the search was reasonable based on a legitimate governmental interest—public safety, particularly from sex offenders who have reoffended. The Court has already determined that perpetrators of sexual crimes who are considered dangerous can be placed under involuntary civil commitment after their prison terms, as long as certain minimal due process requirements are met.16 The same public policy underlies that practice, but GPS monitoring is arguably less extreme. While it tracks a person’s movement, a GPS device does not restrict where he or she can go.
The court could find that this governmental interest is legitimate without extending the holding to use of GPS monitoring broadly. Following the Supreme Court precedent supporting involuntary civil commitment, the state court could accept Grady’s Petition and rule narrowly, limiting its support to the use of GPS monitoring programs imposed on recidivist sex offenders.17
The Supreme Court’s conclusion that the use of GPS monitoring could be considered a search arguably provides protection against government intrusion for the average person, one who is not a repeat sex offender. Based on the Court’s initial determination that the use of the GPS anklet constitutes a search, it seems unlikely that the government would be able to place a GPS ankle monitor on a person without some equally or even more legitimate governmental interest supporting the monitoring, such as placing an individual under house arrest or criminal supervision. Despite the key Fourth Amendment issues at stake in Grady, it does not seem to be the right case to establish a new precedent for the constitutionality of the use of GPS monitoring devices for ex-offenders or non-criminals.