In Grady v. North Carolina, the United States Supreme Court unanimously decided that the government conducts a “search” implicating the protection of the Fourth Amendment when it monitors someone’s movements electronically without their consent. This ruling may have some implications for the government’s use of electronic surveillance techniques, but ultimately the reasoning for the decision is fairly narrow. It seems unlikely to significantly affect, for instance, the various widely reported NSA programs that monitor information about the American public.
Grady is an unsigned summary decision, issued without full briefing or oral argument, indicating that the Court viewed it as a minor clarification of existing law that caused no controversy among the Justices. Torrey Dale Grady is a twice-convicted sex offender who has served the sentences for his crimes. Under applicable North Carolina law, after Grady was released, the State obtained a civil court order that, because he is considered a recidivist sex offender, he must wear a GPS monitoring ankle bracelet (or similar monitoring device) for the rest of his life. Grady challenged this monitoring requirement as an unreasonable search under the Fourth Amendment. The North Carolina state courts determined that it was not a search, and so the Fourth Amendment was not implicated.
The Supreme Court disagreed. The Court relied primarily on a 2012 case, United States v. Jones, in which the Court found a search when police officers, without a warrant, secretly installed a GPS monitoring device on a suspect’s car. The rationale adopted by the majority in Jones was that the police had trespassed, i.e., intruded, on Jones’s property, and that courts going back hundreds of years would have recognized that this type of intrusion by the government falls within the scope of the Fourth Amendment. The next year, the Court similarly held in Florida v. Jardines that police conducted a search when they entered onto a subject’s front porch to allow a drug-sniffing dog to nose around the door. As Grady argued, if a minor intrusion on a person’s car or house constitutes a search, surely regulating what they can do with their body for the rest of their lives is a search. The Court agreed: “In light of these decisions, 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.”
But at the end, the Court limited the scope of its ruling: “That conclusion [that a search occurred], however, does not decide the ultimate question of the [monitoring] 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.” Thus, the Court sent the case back to the North Carolina courts to consider whether the search is reasonable.
The Court’s exclusive focus on the physical intrusion on Grady’s body is understandable, given the posture of the case, but it also underscores a division among the Justices on how the Fourth Amendment should apply in the context of modern technology. Though the application of Jones to this case is fairly straightforward, Jones itself sharply divided the Court. Four of the more conservative Justices, along with Justice Sotomayor, signed on to the majority opinion relying on the eighteenth-century concept of trespass. However, Justice Sotomayor wrote a separate opinion indicating that she was going along with that approach because it settled the case before the Court, but that it might be time for the Court to shift its jurisprudence about reasonable expectations of privacy in light of changes in society and technology. Moreover, Justice Alito, in an unusual coalition with three of the more liberal Justices, wrote a concurrence sharply critical of the majority’s reliance on “18th-century tort law” to settle an issue involving new 21st-century technology. He would have reached the same result through completely different reasoning, arguing that society would recognize it as reasonable to monitor someone’s car’s location on public roads for a relatively short amount of time (a few hours or days), but the monitoring in Jones, including all of the car’s movements for a month, crossed the line into a constitutionally protected area.
All Justices in Jones recognized that it did not resolve the questions that would arise if the government applied electronic monitoring without physical intrusion – which could involve monitoring devices that were already in the car, such as OnStar or LoJack type systems, or the GPS built into cell phones and other devices. The Court last year in Riley v. California signaled some willingness to reconsider old doctrines in light of new technology by holding that modern cell phones are subject to different rules for certain types of searches, given the huge volume of personal information they may contain. The basic principles of the Fourth Amendment may be in flux. Two different approaches – the bright-line, property and personal integrity analysis dating back centuries, and the more recent, flexible analysis based on reasonable expectations of privacy – are in play, and according to the majority in Jones, both still apply. Whether that continues to be true in the future remains to be seen. The Court saw Grady as an easy case, but its limited ruling highlights the more difficult cases to come as new technology collides with old principles of law.
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