At the tail end of March, the Supreme Court of the United States provided a little refresher on the relationship between modern technology and search-and-seizure law. In the case in question, the Court decided whether imposing a physical monitoring system on someone in order to collect data is a “search.”
The case, Grady v. North Carolina, involved a man (Grady) who had been convicted of sexual offenses in 1997 and 2006. After completing the sentence for the second offense, the issue was whether, under North Carolina law, Grady should have to undergo satellite-based monitoring (SBM) as a repeat sex offender. (The SBM program meant the attachment of a tracking bracelet to an offender’s ankle.)
Grady didn’t contend that he didn’t qualify as a repeat offender under the relevant law. Instead, he argued that the monitoring program violated the Fourth Amendment protection against unreasonable searches and seizures.
The Grady case piggybacks on couple recent Supreme Court decisions. In United States v. Jones, a 2012 case, the high court held that police installing a global positioning system (GPS) device on a suspect’s car and monitoring it constitutes a Fourth Amendment search. (See Can the police attach a GPS device to my car to track my whereabouts?) Then, in 2013’s Florida v. Jardines, the Court held that the police’s use of a trained dog to sniff around a suspect’s front porch was similarly a search.
In the Grady decision, the Court explained that Jones and Jardines lead to only one conclusion: The government’s attaching “a device to a person’s body, without consent, for the purpose of tracking that individual’s movements” is also a search. It didn’t matter to the Court that the North Carolina monitoring program was the product of the civil court system rather than a criminal punishment. That the SBM program gathers information “by physically intruding on a subject’s body” was enough for the Court.
Ultimately, the Court’s opinion isn’t too controversial. It simply reaffirms that a nonconsensual physical intrusion for purposes of gathering information is a search. In matters of the Fourth Amendment, that’s only the first part of the analysis.
The Amendment protects us from “unreasonable searches and seizures” by the government. So, Question 1 is whether there’s been a search. Question 2 is whether, assuming a search, that search is reasonable. A search’s reasonableness hinges on all the circumstances; relevant ones include the purpose of the search and how much it invades reasonable privacy expectations.
In Grady, the Court didn’t get to Question 2.