Private: SCOTUS Says Ankle Monitoring of Sex Offender is a Search

by Leslie A. Shoebotham, Victor H. Schiro Distinguished Professor of Law, Loyola University New Orleans

This week, the U.S. Supreme Court in a per curiam opinion held that monitoring a recidivist sex offender via an ankle bracelet device was a “search” for Fourth Amendment purposes.  In Grady v. North Carolina, the Court concluded that United States v. Jones controlled the case – i.e., attachment of an ankle bracelet and monitoring of the device to determine Grady’s location was a “search,” just as the government’s attachment and monitoring of a Global Positioning System (GPS) device onto Jones’s vehicle was a Fourth Amendment search.  The Court issued a summary reversal of the North Carolina Supreme Court’s non-search decision and remanded the case to the state courts to determine whether the search is reasonable based on the totality of the circumstances.

Because of society’s strong interest in preventing child sexual abuse, as well as the overall contempt with which sex offenders are often viewed, it might be easy to assume that the North Carolina courts should find the search to be reasonable.  Don’t be lulled by the opprobrious nature of Grady’s prior crimes, however.  Based upon the facts in Grady, the ankle bracelet search at issue is premised on a future-looking ongoing search – a search that is conducted in the absence of probable cause, or even reasonable suspicion, that a crime will be committed.  If this search is upheld as reasonable, it opens the door to attachment of devices and monitoring in countless other situations.

Factual and Procedural Background

In 2006, Torrey Grady pleaded guilty to taking indecent liberties with a child.  He was sentenced to 31 to 38 months, which he served until his unconditional release in 2009.  In 2010, Grady was notified that the North Carolina Department of Correction regarded him as a recidivist sex offender based on his 2006 conviction, an earlier conviction in 1997 for a second-degree sexual offense, and his failure to maintain his address as required for the sex offender registry.  Grady served additional time for his failure to maintain his address but was unconditionally released again.

In 2013, the state notified Grady that under North Carolina’s satellite-based monitoring system for recidivist sex offenders, Grady was required to wear an ankle bracelet that would enable police to monitor his whereabouts.  North Carolina requires the Division of Adult Correction of the Department of Public Safety to use a “continuous satellite-based monitoring system” that provides “[t]ime-correlated and continuous tracking of the geographic location of the subject using [GPS]” and “[r]eporting of subjects’ violations of prescriptive and proscriptive schedule or location requirements.” 

In other words, the ankle bracelet would disclose to police, in real time, the wearer’s exact location at all times – including whether the wearer is allowed to be at that location – and this monitoring would be required for the rest of the person’s life.

In his Petition for Writ of Certiorari, Grady described the physical requirements of the ankle bracelet monitoring program:

The terms of the program are extreme.  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.

Grady argued that being forced to wear a tracking device at all times violated the Fourth Amendment.  Following a 20-minute hearing, however, the New Hanover County Superior Court dismissed Grady’s claim.  Grady appealed, but the North Carolina Court of Appeals affirmed, citing one of its earlier cases, State v. Jones.   

In State v. Jones – which is not to be confused with the Supreme Court’s Fourth Amendment decision in United States v. Jones – the North Carolina Court of Appeals considered the lifetime ankle bracelet monitoring requirement in another sex offender’s case.  In that case, the defendant had been convicted of two counts of taking liberties with a child and one count of failing to register as a sex offender.  At his hearing, Jones relied on the then-recent United States v. Jones, where the Court applied a property rights analysis in determining whether a warrant was required to attach a GPS to a vehicle and to monitor that device to discover the suspect’s location.  The North Carolina Court of Appeals rejected Jones’s Jones-based tracking device argument, however, due in large part to the civil nature of the ankle bracelet proceeding.  As the appeals court explained:

Defendant essentially argues that if affixing a GPS to an individual’s vehicle constitutes a search of the individual, then the arguably more intrusive act of affixing an ankle bracelet to an individual must constitute a search of the individual as well.  We disagree.  The context presented in this case – which involves a civil SBM proceeding – is readily distinguishable from that presented in Jones, where the Court considered the propriety of a search in the context of a motion to suppress evidence.  We conclude, therefore, that the specific holding in Jones does not control in the case sub judice.

Again, Grady appealed.  But the North Carolina Supreme Court summarily dismissed Grady’s appeal.  Grady then filed a writ of certiorari with the Court asking the Court to determine whether “the State of North Carolina perform[s] an unconstitutional search when it requires a citizen to wear a GPS monitoring ankle bracelet for the rest of his life based only on the citizen’s status as a recidivist sex offender and where there is no finding that he is a threat to society.”

The Supreme Court’s Per Curiam Opinion

The Court granted Grady’s petition for certiorari, vacated the North Carolina Supreme Court’s judgment – which the Court treated as a decision on the merits – and remanded Grady’s case to the North Carolina courts for further proceedings.  The Court decided the case and wrote its five-page per curiam opinion in an astonishing period of just three days after the case was most recently distributed for conference on March 27, 2015.

Not surprisingly, Grady relied heavily on United States v. Jones.  The Supreme Court’s Jones decision determined that police engaged in a search when they physically attached a GPS tracker onto Jones’s car and then monitored the vehicle’s movements.  Justice Scalia penned the Jones decision.  There, he harkened back to the common law trespass theory that dominated Fourth Amendment jurisprudence prior to Katz’s more recent privacy-based Fourth Amendment analysis.  But, as we were reminded, privacy never supplanted trespass.  Indeed, Jones did not decide whether police infringed on Jones’s reasonable expectation of privacy.  By attaching the GPS device onto Jones’s car and monitoring it, the police engaged in a warrantless search in violation of the Fourth Amendment.

In addition to Jones, Grady cited to and quoted from Florida v. Jardines.  In Jardines, police brought a detection dog onto the curtilage of a private home – to the home’s front door – in order to perform a canine drug-detection sniff.  Relying in large part on the detection dog’s alert, police obtained a warrant to search the home and uncovered Jardines’s indoor marijuana-grow operation.  Jardines held that police violated the Fourth Amendment when they “gathered . . . information by physically entering and occupying the [curtilage of the house] to engage in conduct not explicitly or implicitly permitted by the homeowner.”

Based on Jones, Jardines, and the common law trespass origins of the Fourth Amendment, Grady arrived at a logical conclusion: “[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.”

Conclusion

On remand, the North Carolina courts will be asked to determine whether the ankle bracelet “search” should nevertheless be upheld as reasonable under the Fourth Amendment.  Although the state has a substantial governmental interest in preventing sex offenses, the future-looking nature of this ongoing search may make it difficult for the state to establish the search’s reasonableness.  As Justice Scalia observed in his Maryland v. King dissent, “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence.”

The future-looking search – made possible by the nonconsensual attachment of an ankle monitor – is an anticipatory search in the most troubling sense of the word.  As explained in United States v. Grubbs, all search warrants are, in a sense, anticipatory because “the magistrate’s determination that there is probable cause for the search amounts to a prediction that the item will still be there when the warrant is executed.”  However, unlike most situations involving an anticipated event, there is no probable cause or even reasonable suspicion in Grady to believe that the anticipated event might occur.  Although the presence of an ankle bracelet might incentivize its wearer to avoid situations that could cause him or her to reoffend, that government interest is a far cry from the sort of probable cause determination regarding a future condition’s occurrence (a la Grubbs) that the Fourth Amendment has traditionally required.  Finally, the burdens of this ankle bracelet search are in no way comparable to the quick and painless collection of the arrestee’s DNA in King, where the majority said, “The fact that an intrusion is negligible is of central relevance to determining its reasonableness, although it is still a search as the law defines that term.”

If the search in Grady is upheld as reasonable, look for the government to seek attachment of intrusive monitoring devices in less reprehensible circumstances.  Consider, for example, how many people die each year in speed-related automobile accidents.  Perhaps the government will assert that it should be entitled to access and monitor the microchip data from the vehicles of repeat traffic offenders, i.e., those convicted of more than three traffic violations . . . And that’s just the tip of the iceberg.

Criminal Justice, National Security and Civil Liberties, Search and Seizure, Supreme Court, Technology Law and Intellectual Property