Grady v. North Carolina – Satellite-Based Monitoring of Sex Offenders Can Violate Fourth Amendment Rights

The United States Supreme Court decided Grady v. North Carolina on March 30, 2015.  After completing his prison term for sex offenses, the State determined that Grady was a recidivist sex offender, and wanted to place him on satellite-based monitoring.  Grady argued that the monitoring program, which required him to wear a monitoring device at all times, violated his Fourth Amendment right to be free from unreasonable searches and seizures.  Grady’s argument was based on U.S. v. Jones, where the Supreme Court held that installing a GPS tracking device on a suspect’s car was a “search” within the meaning of the Fourth Amendment.  The State courts rejected Grady’s argument, finding that the monitoring program at issues was not a Fourth Amendment search.  This conclusion was based, apparently in large part, upon the view that the proceeding giving rise to the monitoring was civil in nature, whereas Jones was a criminal case, which entailed different (higher) legal standards.

The Supreme Court rejected the reasoning of the State courts.  First, the monitoring program was a “search” because it enabled the State to “physically intrude on a constitutionally protected area … [A] State 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 fact that the monitoring program was civil in nature was rendered meaningless by settled law establishing “that the Fourth Amendment’s protection extends beyond the sphere of criminal investigations [] and the government’s purpose in collecting information does not control whether the method of collection constitutes a search.”

Ultimately, however, the Court observed that the Fourth Amendment protects only against unreasonable searches and seizures.  Thus, it remanded the matter to the North Carolina courts to determine whether the monitoring program was reasonable when viewed as a search.The decision, standing by itself, is positive because it potentially broadens protections against unreasonable searches and seizures.  But it also reminds us that there are many problems with current State sex offender supervision policies and procedures that continue to be ignored.

First, the proceedings in Grady were civil. Issues relating to sex offender supervision that arise after any criminal proceedings (including any prison sentence) are typically characterized as civil, as opposed to criminal, with the result that it becomes much easier for the State to justify its actions and resolve issues against the offender.  Putting aside the completely ridiculous argument that sex offender supervision is not a criminal matter because it is not punitive in nature, labeling these proceedings as civil completely ignores the fact that the offender is subject to supervision only because of criminal charges that gave rise to a criminal case that was resolved in a criminal court in accordance with  criminal laws, rules and procedures.  The offender would not be in the purportedly civil matter but for criminal conduct and the resulting criminal conviction.  Indeed, the facts, circumstances and result of the criminal case continually come up in proceedings relating to offender supervision, and are used to decide supervision-related issues.  Re-characterizing the supervision phase as civil significantly reduces the State’s burden, and therefore makes it easier for the State to justify actions that are patently unreasonable (or even abusive and sadistic.  Please see my prior post discussing, among other things, the conduct of some parole officers responsible for offender supervision).  True – the Supreme Court noted that the civil nature of the proceedings and the State’s reasons for gathering the information were not dispositive, and that the conduct complained of could still amount to an unreasonable search under the Fourth Amendment.  Nevertheless, the Court fell far short of calling sex offender supervision proceedings what they really are – a continuation of the underlying criminal case.  I guess none of the Justices ever represented sex offenders in proceedings related to supervision issues, such as a tiering proceeding where the vast majority of the discussion and debate, and virtually all of the decisions made, are based upon issues and events that arose in the prior criminal action.

And, of course, the decision does nothing to call any attention to the practical fact that State sex offender supervision systems cost a substantial amount to operate, but there is no proof that they provide any benefit.

On balance, Grady is a welcome development.  But the existing policies and procedures for supervising most convicted sex offenders still require extensive revision.



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