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GPS, Searches, and Civil v. Criminal

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The U.S. Supreme Court summarily reversed a decision of a North Carolina court regarding GPS monitoring of sex offenders and the Fourth Amendment.  The North Carolina court's error illustrates once again how far too many lawyers in the post-Mapp world have come to view the Fourth Amendment and the exclusionary rule as the same thing.  They are not.  Not even close.
Torrey Grady was convicted of "taking indecent liberties with a child" in 2006.  It was not his first sex offense.  After he got out, a North Carolina court ordered him to submit to GPS monitoring.  North Carolina law subjects him to this monitoring for the rest of his life.

Grady objected that the monitoring was an unreasonable search, citing the U.S. Supreme Court's 2012 decision in United States v. Jones for the proposition that GPS monitoring is a search.  Instead of holding, "yes, but this is a reasonable search, since you are a recidivist sex offender," the court said it is not a search at all.  The North Carolina Supreme Court precedent on point said:

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 the instant case--which involves a civil SBM [satellite based monitoring] proceeding--is readily distinguishable from that presented in [United States v.] Jones, where the Court considered the propriety of a search in the context of a motion to suppress evidence.
How does the definition of what is a "search" for the purpose of the Fourth Amendment vary depending on whether the question does or does not arise in the context of a motion to suppress evidence?  It doesn't.

When I took Criminal Procedure in law school (a misnamed course that actually should have been titled Constitutional Law (Criminal)), we studied case after case on Fourth Amendment questions, nearly all involving clearly guilty criminals trying to suppress evidence.  I understand it's still pretty much the same.  So it is not too surprising that a great many lawyers who do not think more than an inch below the surface have come to regard the exclusionary rule and the Fourth Amendment as the same thing.  Hence, any call to cut back on or abolish the exclusionary rule is reflexively regarded as an attack on the Fourth Amendment.  Here we see that shallow thinking operating in the other direction, with a precedent on point brushed off on the theory that it is distinguishable as an exclusionary rule case.

The U.S. Supreme Court summarily and unanimously reversed today in Grady v. North Carolina, No. 14-593.  Of course this is a search under Jones.  Now go back and decide if it's reasonable.

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.

That conclusion, however, does not decide the ultimate question of the program's constitutionality. The Fourth Amendment prohibits only unreasonable searches. 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. See, e.g., Samson v. California, 547 U. S. 843 (2006) (suspicionless search of parolee was reasonable); Vernonia School Dist. 47J v. Acton, 515 U. S. 646 (1995) (random drug testing of student athletes was reasonable). The North Carolina courts did not examine whether the State's monitoring program is reasonable--when properly viewed as a search--and we will not do so in the first instance.

Update:  Orin Kerr has this post on the case at the Volokh Conspiracy.

1 Comment

I have zero sympathy for most sex offenders, and this particular felon seems pretty bad. However, the guy has done his time, and the state seems to think it can simply force him to wear a monitor for the rest of his life (with penalties if he doesn't) even though that wasn't part of his punishment.

If this is all "civil," what can the rest of us be dragooned into doing under the guise of "civil?"

Until very recently, no one would have thought by the mere fact of one's existence that one would have to purchase health insurance. And on top of that, there's the tax headaches, which have caused many of our fellow citizens to have to spend hours and hours trying to clear up government mistakes.

The march of statism continues. And sex offenders are a very very convenient camel nose.

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