Satellite-Based Monitoring after Grady

In Grady v. North Carolina, 575 U.S. __, 135 S. Ct. 1368 (2015), the Supreme Court concluded that North Carolina’s satellite-based monitoring (SBM) program for sex offenders is a search. The Court left to the lower courts the question of whether the search is “unreasonable” under the Fourth Amendment. The lower courts have started to answer it.

As discussed here, Grady said SBM is a search despite being part of a civil (not criminal) regime. The Court noted that it is “well-settled” that the “Fourth Amendment’s protection extends beyond the sphere of criminal investigations” and that “the government’s purpose in collecting information does not control whether the method of collection constitutes a search.” Id. at 1371. But the Fourth Amendment prohibits only unreasonable searches. To analyze the reasonableness of a search—including a search conducted as part of civil regime like SBM—the Court directed lower courts to look to “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.” Id.

What is the right way to do that? The Court of Appeals of North Carolina decided two cases in March that offer some direction. Both cases came from the same trial court on the same day and involved essentially the same issue.

State v. Blue. In State v. Blue, the defendant was before the court for an SBM determination hearing under G.S. 14-208.40B—a so-called bring-back hearing—stemming from his 2006 conviction for second-degree rape. The court found the rape to be an aggravated offense and, as required by statute, ordered him to enroll in SBM for life. The defendant objected in light of Grady, first asking the court to stay the matter until other courts or the Attorney General’s office gave some guidance on the reasonableness of SBM. The trial judge replied that, in the absence of “federal law . . . invalidating the [SBM] statute in North Carolina,” he felt obliged to order SBM for life. The defendant then asked for an evidentiary hearing at which the State might put on evidence of the reasonableness of SBM. The State did not offer additional evidence at that point. The court concluded, based on the defendant’s conviction “and upon the file as a whole” that lifetime SBM was reasonable under the Fourth Amendment.

The court of appeals reversed, concluding that the trial court failed to conduct the appropriate analysis. The trial court did not—as commanded by the Supreme Court in Grady—analyze 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.” Notably, the appellate court assigned to the State the burden of proving that the SBM program is reasonable. Slip op. at 9.

State v. Morris. In State v. Morris, the defendant was before the court for a bring-back hearing stemming from his 2007 convictions for indecent liberties with a child. Based on the defendant’s earlier conviction of second-degree sexual offense, the court found him to be a recidivist and, as required by statute, ordered him to enroll in SBM for life. The defendant objected, arguing that SBM would be an unconstitutional search under Grady. The trial judge noted the objection but—without any additional information from the State—concluded that SBM was a reasonable search.

For the same reasons stated in Blue, the court of appeals reversed. The trial court erred by failing to consider totality of the circumstances. The court remanded for a proper analysis.

But, again, what is the right way to do it? The Supreme Court (and the court of appeals) cited two cases that shed some light.

The first is Samson v. California, 547 U.S. 843 (2006). In Samson, the Court analyzed the reasonableness of a warrantless, suspicionless search of a parolee by a law enforcement officer using the “totality of the circumstances” approach. Whether the search was reasonable, the Court said, is determined by balancing “the degree to which it intrudes upon an individual’s privacy” against “the degree to which it is needed for the promotion of legitimate governmental interests.” Id. at 848 (citing United States v. Knights, 534 U.S. 112 (2001) (upholding a warrantless search of a probationer by a law enforcement officer who had reasonable suspicion that the offender was engaged in criminal activity)).

On the privacy side of the balance, the court concluded that a parolee generally enjoys less liberty than the average citizen, and that whatever privacy interest Samson may have had was further diminished by the fact that he was subject to a warrantless search condition of which he was unambiguously informed. Based on his parole status and the plain language of the search condition, the court concluded that Samson “did not have an expectation of privacy that society would recognize as legitimate.” Id. at 852.

As to the governmental interest, the court concluded that it was “overwhelming,” because “parolees . . . are more likely to commit future criminal offenses.” Id. at 853 (“The empirical evidence presented in this case clearly demonstrates the significance of these interests to the State of California.”).

Weighing the overwhelming government interest against the virtual absence of a privacy interest, the Court unsurprisingly concluded that the parolee search was reasonable.

The second case cited by the Court is Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), a case involving warrantless drug testing of high school student-athletes. In Acton, the Court evaluated the reasonableness of the search by considering three factors: the nature of the privacy interest, the intrusiveness of the search, and the nature and immediacy of the governmental concern. The Court deemed the privacy interest to be significantly diminished for a school student—particularly a student-athlete accustomed to locker room culture. The search method—urinalysis—was found to be generally non-intrusive, in that collection was conducted in a reasonable manner and samples were examined only for drugs (and not, for example, for pregnancy or other medical issues). And the governmental interest was deemed “important” in light of the health risks to children who use drugs, and the particular school district’s demonstrated drug problem. Weighing these factors, the Court upheld the search regime.

It seems that a trial court ruling on the reasonableness of SBM will need to walk through an analysis similar to those in Samson and Acton. Of course, SBM is not perfectly analogous to either context, but you can imagine how the arguments will go. Do SBM enrollees, like parolees, have a diminished expectation of privacy? They know they are wearing the thing, of course. Is the GPS device, like urinalysis, collecting only the information needed for the regime, or does it collect too much? Is the government interest underlying SBM legitimate? Nobody would contest that protecting citizens from sex crimes is important, but are there data that actually show, for example, higher recidivism rates among sex offenders? And so on. After Blue and Morris, the burden is on the State to marshal the data that will inform each factor in the analysis. And the analysis will not necessarily be the same for every defendant. What might be a reasonable search for a recidivist offender with multiple crimes against strangers in public places may not be reasonable for the offender convicted of incest in the home.

At least one federal court of appeals has conducted an analysis along these lines after Grady. In Belleau v. Wall, 811 F.3d 929 (7th Cir. 2016), the plaintiff-sex offender, a 73-year-old man no longer under formal community supervision, argued that Wisconsin’s monitoring regime violated his Fourth Amendment rights. The Seventh Circuit disagreed and concluded that the search was reasonable and permissible. Judge Posner’s majority opinion hits all the key points described above: the invasiveness of the search; studies on sex offender recidivism; and the reasonableness of the sex offender’s expectation of privacy. It is worth a look to anyone working through Grady issues here in North Carolina.