Supreme Court Says Lifetime GPS Monitoring Of Sex Offenders May Be Unconstitutional

Most people would agree that cops slapping a GPS device on a suspect’s vehicle for months or years at a time would have Fourth Amendment implications. It’s often the length of the intrusion that has bothered courts the most (and mostly at state level, not federal), not the initial surreptitiousness of the GPS placement. Once it starts resembling a long-term tracking of a person’s movements, some courts (including the Supreme Court) have declared a warrant requirement should be in place.

When it comes to tracking recidivist sex offenders for the rest of their lives, most people — and most courts — don’t see this as much of an issue. Both involve the long-term tracking of individuals, but more people can stomach the idea of permanent tab-keeping on known sex offenders than on people only suspected of criminal activity.

The context matters — at least in terms of how much of the population views the potential intrusion. But context doesn’t matter when it comes to the Fourth Amendment, as the US Supreme Court recently ruled.

If the government puts a GPS tracker on you, your car, or any of your personal effects, it counts as a search—and is therefore protected by the Fourth Amendment.

The Supreme Court clarified and affirmed that law on Monday, when it ruled on Torrey Dale Grady v. North Carolina, before sending the case back to that state’s high court. The Court’s short but unanimous opinion helps make sense of how the Fourth Amendment, which protects against unreasonable search and seizure, interacts with the expanding technological powers of the U.S. government.

What’s interesting about this recent unanimous ruling is that it extends Fourth Amendment protections to convicted criminals, rather than just to suspected criminals. It’s also a very short opinion — partially due to the lack of dissent — that gets straight to the heart of why the lower court’s decision was wrong, starting with its rejection of the ruling in US v. Jones.

The only explanation provided below for the rejection of Grady’s challenge is the quoted passage from State v. Jones. And the only theory we discern in that passage is that the State’s system of nonconsensual satellite-based monitoring does not entail a search within the meaning of the Fourth Amendment. That theory is inconsistent with this Court’s precedents.

The State further argued that the Jones decision did not apply because the monitoring program is civil in nature, rather than criminal. The Supreme Court corrects this misconception.

It is well settled,” however, “that the Fourth Amendment’s protection extends beyond the sphere of criminal investigations,” Ontario v. Quon, 560 U. S. 746, 755 (2010), and the government’s purpose in collecting information does not control whether the method of collection constitutes a search. A building inspector who enters a home simply to ensure compliance with civil safety regulations has undoubtedly conducted a search under the Fourth Amendment.

More ridiculously, the State tried to claim that a lifetime monitoring program may not actually collect information about the subject’s movements and whereabouts — a non-conclusion it reached by dumping the burden of proof on the plaintiff. This, too, is treated harshly by the Justices.

Without evidence that it is acting to obtain information, the State argues, “there is no basis upon which this Court can determine whether North Carolina conducts a ‘search’ of an offender enrolled in its SBM program.” Ibid. (citing Jones, 565 U. S., at ___, n. 5 (slip op., at 7, n. 5) (noting that a government intrusion is not a search unless “done to obtain information”)). In other words, the State argues that we cannot be sure its program for satellite-based monitoring of sex offenders collects any information. If the very name of the program does not suffice to rebut this contention, the text of the statute surely does:

“The satellite-based monitoring program shall use a system that provides all of the following:

“(1) Time-correlated and continuous tracking of the geographic location of the subject . . . .

“(2) Reporting of subject’s violations of prescriptive and proscriptive schedule or location requirements.” N. C. Gen. Stat. Ann. §14–208.40(c).

The State’s program is plainly designed to obtain information. And since it does so by physically intruding on a Cite as: 575 U. S. ____ (2015) 5 Per Curiam subject’s body, it effects a Fourth Amendment search.

While the Supreme Court didn’t go so far as to rule all such tracking programs as Fourth Amendment searches, it did vacate the state Supreme Court’s decision and makes it clear that lower courts are to address this issue, rather than gloss over potential Fourth Amendment ramifications.

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