‹ Previous Page

Lifetime GPS monitoring a search?

Requiring a person to wear a GPS monitor 24/7 constitutes a search under the Fourth Amendment, according to a new decision from the United States Supreme Court.

Torrey Dale Grady was convicted of sex crimes in 1996 and again in 2006. Grady was sent to a North Carolina prison for three years. Upon release, the North Carolina Department of Correction asked a judge to order Grady to participate in the state’s GPS satellite-based monitoring program.

The judge ordered Grady to wear a monitor "for the remainder of his natural life."

Grady’s lawyers said that the enduring order violated his Fourth Amendment right to be free from unreasonable searches. His lawyer told the Supreme Court, "By any reckoning, the monitoring in this case is as invasive a trespass as any that this court has previously considered." Grady even had to wear the monitor while it recharged, meaning that he had to be connected to a wall socket for up to six hours.

The state claimed that Grady was a recidivist. Moreover, as a twice-convicted sex offender, Grady held a lesser expectation of privacy. Stacking that against the state’s duty to protect the community, and particularly children, from sexual predators trumped Grady’s Fourth Amendment rights.

The North Carolina Supreme Court upheld the order of life-long GPS monitoring, reasoning that the monitoring program was created as part of a civil statute and not a criminal statute that triggers Fourth Amendment protections. The U.S. Supreme Court summarily reversed the state high court in an unsigned per curiam opinion, meaning that there was no formal argument or briefing on the merits of the case.

The U.S. Supreme Court said that the Fourth Amendment limits on unreasonable searches apply to both civil and criminal statutory schemes. The Supreme Court did not ban lifetime GPS monitoring. Instead, the Supreme Court directed the North Carolina courts to resolve whether the lifetime monitoring is constitutionally reasonable in Grady’s case.

Over three dozen states allow GPS monitoring for sex offenders. North Carolina and seven other states provide for lifetime monitoring in some cases. Many states also impose GPS monitoring for persons convicted of domestic violence and gang crimes.

The Supreme Court cited its decisions in United States v. Jones and Florida v. Jardines. In Jones, a 2012 decision, the Court unanimously ruled that federal agents conducted an unconstitutional warrantless search when they installed an electronic monitoring device on a suspect’s car and monitored it for a month. In 2013, in Jardines, the Court held that taking a drug detector dog to the front door of a home constituted a search.

Other cases have signaled the Court's views on limiting government intrusion on a person's digital life. Last year, in two companion cases, Riley v. California and United States v. Wurie, the Court held that an arrestee’s cell phone can’t usually be searched (no data may be viewed) incident to an arrest. Those cases dealt only with data stored on the phone itself, not cloud content or historical data stored with a provider.

Grady’s lawyers will now have the opportunity to argue the reasonableness of the lifetime monitoring requirement. It is likely that the North Carolina officials will argue that Grady presents a danger to the community based on his recidivist behavior. Of course, should the North Carolina courts rule against Grady again, the matter may well return to the United States Supreme Court to be decided on the question of what circumstances could make lifetime monitoring for a sex offender constitutionally reasonable.

The case is Grady v. North Carolina.

For additional information on recent criminal procedure and public safety liability cases, subscribe to Xiphos, a monthly update newsletter service of Lexipol (www.Lexipol.com). Subscriptions are free for public safety personnel and public attorneys. Go to my Xiphos page and fill out the form.