Balancing the safety interests of community members with the liberty interest of sex offenders who have “served their time” is a difficult dilemma for all levels of government including cities. 

Beginning in the mid-2000s numerous states adopted “Jessica’s” laws requiring GPS monitoring of certain sex offenders.  These statutes have been challenged on a number of grounds—including that they violate the Fourth Amendment’s prohibition against unreasonable searches.  Eight states, including North Carolina, monitor for life.             

In a per curiam (unauthored) opinion the Supreme Court concluded in Grady v. North Carolinathat satellite-based monitoring (SBM) for a recidivist sex offender is a “search” within the meaning of the Fourth Amendment.  The Court left it to the Fourth Circuit to decide whether it is an unreasonable, and therefore unconstitutional, search.

Torrey Dale Grady argued that North Carolina’s monitoring program for recidivist sex offenders, which would force him to wear a tracking devise at all times, violated his Fourth Amendment right to be free from unreasonable searches and seizures.  The Fourth Circuit distinguished Grady’s case from United States v. Jones, where the Supreme Court held that installing and monitoring a GPS devise on a suspect’s car is a Fourth Amendment search, based on circuit precedent that SBM monitoring is civil and not criminal. 

The Court relied on United States v. Jonesand Florida v. Jardines, where a “drug-sniffing dog nose[d] around a suspect’s front porch” to conclude a search occurred in this case.  In all three cases the government physically occupied private property to obtain information.  The fact that North Carolina’s SBM program was civil did not matter because “the government’s purpose in collecting information does not control whether the method of collection constitutes a search.”

The Supreme Court ruling that GPS monitoring of certain sex offenders is a Fourth Amendment search doesn’t invalidate these statutes.  But if the lower court—and ultimately the Supreme Court—rule GPS monitoring is an unreasonable Fourth Amendment search—state statutes nationwide could be unconstitutional.

It is possible that the Fourth Circuit’s ruling on the reasonableness of this search will end up at the Supreme Court as well.