On March 30, 2015, the United States Supreme Court decided the case of Grady v. North Carolina, 2015 WL 1400850 (2015). In Grady, the defendant was convicted of a sex offense with a child. After serving his sentence, he was designated as a recidivist sex offender and a hearing was held to determine whether he should be subject to satellite-based monitoring (SBM). The defendant argued that the monitoring would violate his Fourth Amendment right to be free from unreasonable searches and seizures. Nonetheless, the trial court ordered the defendant to wear an ankle bracelet and be monitored for the rest of his life.
On appeal, the defendant argued that United States v. Jones, 132 S.Ct. 945 (2012) precluded the warrantless, indefinite monitoring of him because such monitoring was an unconstitutional search. In deciding whether a search had occurred, the Court looked at Jones, where it 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, was a search, and Florida v. Jardines, 133 S.Ct. 1409, 1413-1414 (2013), which held that having a drug-sniffing dog’s nose around a suspect’s front porch was a search. The Court stated, “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.” The Court further stated, “The 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.”
The Court did not examine whether the search was constitutionally reasonable. On remand, the North Carolina court will be required to determine whether the search is reasonable under the Fourth Amendment. However, regardless of the way that court decides, this case is important because it paves the way for ex-offenders to challenge government surveillance of their activities through the use of ankle monitors by arguing that the search is unreasonable and therefore a violation of their Fourth Amendment rights. 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. Where, as here, the monitoring is to be conducted for life or for some other indefinite period of time, it will be harder for the State to prove that the search is constitutionally reasonable. Additionally, since a search warrant authorizing the use of such devices can only be issued upon a showing of present probable cause to believe a crime is occurring, it seems highly unlikely that the State will be able to meet its burden that the indefinite use of such device is reasonable under the Fourth Amendment. For this reason, it seems clear that the requirement that sex offenders wear such devices for their rest of their lives will not withstand judicial scrutiny. Grady is the first of what most likely will be many cases to develop the framework under which states will be required to limit the warrantless use of such devices.