Thursday, April 16, 2015

SCOTUS Addresses Fourth Amendment Implications of Satellite-Based Tracking

By John M. Fitzgerald
Partner, Tabet DiVito & Rothstein LLC

In Grady v. North Carolina, 575 U.S. ___ (per curiam) (decided March 30, 2015), the U.S. Supreme Court confirmed the scope of its recent jurisprudence concerning the Fourth Amendment implications of law enforcement’s use of satellite-based technology, and important for appellate practitioners, also reiterated that the reasonableness or unreasonableness of a search generally is not an issue that can be suitably resolved in the first instance on appeal.

Under North Carolina law, a recidivist sex offender may be ordered by a court to wear a satellite-based tracking device at all times. Torrey Dale Grady, a recidivist sex offender, argued that this monitoring would violate his Fourth Amendment rights. The trial court rejected his argument. So did the North Carolina Court of Appeals, apparently on the theory “that the State’s system of nonconsensual satellite-based monitoring does not entail a search within the meaning of the Fourth Amendment.” (Slip Op. at 2.) The North Carolina Supreme Court declined to hear Grady’s appeal.

When Grady petitioned the U.S. Supreme Court for certiorari, the State of North Carolina did not file any substantive response until the Court ordered it to do so. Then, in a single per curiam decision, the U.S. Supreme Court not only granted certiorari, but also vacated the North Carolina Supreme Court’s judgment and remanded the case for further proceedings, even without entertaining merits briefing or hearing oral argument.

As the Court explained, the “theory” that forced satellite-based monitoring does not constitute a search “is inconsistent with this Court’s precedents.” (Slip Op. at 2-3.) In United States v. Jones, 565 U.S. ___ (2012), the Court had held that the Government’s installation of a GPS tracking device on a vehicle constituted a search for Fourth Amendment purposes because, when it installed the device, the Government “physically occupied private property for the purpose of obtaining information.” (Slip Op. at 3 (quoting Jones)). Similarly, in Florida v. Jardines, 569 U.S. ___ (2013), the Court applied the same standard and concluded that the State of Florida had engaged in a search when its drug-sniffing dog sniffed around someone’s front porch. In that case, the State likewise had obtained information “by physically entering and occupying” private property. (Slip Op. at 3 (quoting Jardines)). “In light of these decisions,” the Grady Court explained, “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.” (Slip Op. at 3.)

The Court easily dispensed with the arguments raised in the State’s response to Grady’s certiorari petition. Contrary to the State’s argument, it did not matter whether the forced monitoring was deemed civil, as opposed to criminal, in nature. (Slip Op. at 3-4.) The State also attempted to create some ambiguity as to whether “its program for satellite-based monitoring of sex offenders collects any information.” (Slip Op. at 4 (emphasis in original)).

That argument, unsurprisingly, was not persuasive. The obvious point of the monitoring was to gather information about the whereabouts of sex offenders.

Thus, the satellite-based monitoring constituted a search for Fourth Amendment purposes. But that finding did not resolve the case. Of course, the “Fourth Amendment prohibits only unreasonable searches.” (Slip Op. at 5 (emphasis in original)). Because the “reasonableness of a search depends on the totality of the circumstances,” and because the Court was unwilling to make findings on the search’s reasonableness in the first instance on appeal, the Court remanded the case for further proceedings.

Now the focus will shift to whether the satellite-based monitoring of a recidivist sex offender’s movements is a reasonable search. Grady’s victory may turn out to be short-lived.

Recommended Citation: John M. Fitzgerald, SCOTUS Addresses Fourth Amendment Implications of Satellite-Based Tracking, The Brief, (April 16, 2015),

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