On March 30, the U.S. Supreme Court, in Grady v. North Carolina, held that requiring sex offenders to submit to GPS monitoring is a “search” under the Fourth Amendment. But the Court left open the larger question of whether or when such monitoring is constitutionally “reasonable.”
Facts: Grady was convicted of sex offenses in 1997 and 2006. A North Carolina statute required him to submit to lifetime satellite-based GPS monitoring as a recidivist offender. Grady argued that requiring him to wear a tracking device violated his Fourth Amendment right to be free from unreasonable searches and seizures. The North Carolina courts ruled that the Fourth Amendment was not implicated because GPS monitoring was not a search, and such monitoring was civil, not criminal.
Holding: The Supreme Court held that Fourth Amendment protections apply because attaching a GPS device to a person is a “search.”
Relying on recent cases finding Fourth Amendment violations where police attached a GPS device to a car, and entered a house’s curtilage with a drug dog, the Court noted that a “search” occurs whenever “the Government obtains information by physically intruding on a constitutionally protected area.” Under such circumstances, an expectation-of-privacy analysis is irrelevant.
Since attaching a GPS monitor is a physical intrusion to a person’s body, it is a “search.”
The Court rejected the argument that the Fourth Amendment was not implicated because the GPS monitoring program was “civil” in nature. Fourth Amendment protection extends beyond criminal investigations. Moreover, “the government’s purpose in collecting information does not control whether the method of collection constitutes a search.”
Ultimate Question Left Open: While the GPS monitoring program is a “search,” the Court expressly left open the larger question of whether the program is constitutional. “The Fourth Amendment prohibits only unreasonable searches,” the Court said. That 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 remanded for consideration of those issues.
Implications for Defense Counsel: Defense counsel faced with GPS monitoring of a client will need to show that the nature, purpose or extent of monitoring of their particular client is unreasonable. In addition to raising issues such as whether lifetime monitoring is, per se, unreasonable and whether such monitoring can be imposed retroactively on clients convicted before such requirements were enacted, counsel should consider issues such as:
Does permanently wearing a GPS device cause physical pain or irritation to the skin or body?
Does the GPS device require the client to be plugged into a wall for hours a day to recharge the GPS device’s battery?
Does the GPS device prevent the client from going to certain locations because satellite monitoring is not available in all areas?
Does the GPS device prevent daily activities like work, sleep, or hygiene?
Will the GPS device subject the client to public humiliation, threats or danger?
Is GPS monitoring warranted by the nature and circumstances of the client’s offense?
Is GPS monitoring warranted considering the client’s physical characteristics, condition, or age? It may be less reasonable to require monitoring of an elderly, disabled client confined to a bed than a mobile, healthy client.
Is GPS monitoring warranted considering the age of the offense and the client’s subsequent history? It may be less reasonable to monitor a client who was convicted decades ago with good behavior since, than a client with a more recent conviction.
These factors – and others – may convince some courts that GPS monitoring is not “reasonable” for some clients.
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Story by Greg Mermelstein, Appellate-Postconviction Director, Missouri State Public Defender System