The Volokh Conspiracy
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The case is Grady v. North Carolina. Held: Forcing someone to wear an ankle bracelet to monitor location is a Fourth Amendment search. The new decision extends the Jones search doctrine to searches of persons, and it provides more opportunity to ponder what the Jones test means. I'll start with the history, then discuss the new decision, and then offer some thoughts on the new case.
I. A Brief History of Fourth Amendment Searches
First, some Fourth Amendment history. As I explained in this article, the Supreme Court had not identified a clear test for what counts as a Fourth Amendment "search" until Katz v. United States (1967). In Silverman v. United States (1961), the Court had indicated that a physical intrusion was enough to be a search but left open what beyond physical intrusion counted. In Katz, the government had taped a microphone to the top of a public phone booth and listened to the microphone feed from a listening station nearby when Katz placed a call. The Court in Katz announced that it could no longer follow earlier caselaw, which it claimed had imposed a trespass test. The Court held that the government's conduct triggered the Fourth Amendment:
The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth, and thus constituted a "search and seizure" within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance.
Justice Harlan concurred. According to Harlan, the key was that Katz's expectation of privacy in the phone booth was one society was prepared to recognize as reasonable. When Katz went into the phone booth, closed the door, and put a coin in the coin slot, the phone booth became "a temporarily private place whose momentary occupants' expectations of freedom from intrusion are recognized as reasonable." The full Court later adopted Justice Harlan's concurring opinion, usually known as the "reasonable expectation of privacy test," or just as short hand, the Katz test. (I'm ignoring subjective expectations of privacy for reasons explained here.)
In United States v. Jones (2012) the Supreme Court held that the government conducted a search when it installed a GPS device to the underbody of a suspect's car to monitor his location over time with intent to get information. The Court reasoned that the trespass test that Katz said existed before Katz still existed, and that because installing a GPS device on a car is "trespassory," installing the GPS device was a trespass search without having to reach the issue of whether it violated a reasonable expectation of privacy under the Katz test. Because the trespass occurred with the intent to get information, it was a Fourth Amendment search.
As I detailed in this article and I have blogged about occasionally since then, this history leaves us unsure of what the Court thinks the Jones test is. Is the test physical intrusion as in Silverman, or is it trespass? If it's trespass, which kind of trespass, given that trespass is an accordian-like term that has both broad and narrow meanings? And if attaching a GPS device to the underbody of a car was "trespassory" in Jones, why wasn't taping a microphone to the top of a phone booth "trespassory" in Katz?
II. Grady v. North Carolina
That brings us to the new case. In Grady, the defendant is a recidivist sex offender who was ordered to wear an ankle bracelet that determines his location using GPS. The bracelet was installed against his consent, and he was ordered to wear it for life.
The defendant argued that this violated his Fourth Amendment rights under the Jones case, but the North Carolina Court of Appeals disagreed. First, it relied on its own precedent that had earlier rejected the analogy to Jones for a bizarre reason: Because Jones arose in a motion to suppress rather than a civil case, it was inapplicable and using the ankle bracelet was not a search. Second, the earlier precedent had relied post-Jones on dicta in a pre-Jones North Carolina Supreme Court case, Bowditch, that had suggested that sex offenders have a lesser expectation of privacy against monitoring.
Grady then filed a cert petition that raised the following Question Presented: "Does the State of North Carolina perform an unconstitutional search when it requires a citizen to wear a GPS monitoring ankle bracelet for the rest of his life based only on the citizen's status as a recidivist sex offender and where there is no finding that he is a threat to society?"
The U.S. Supreme Court granted cert and vacated and remanded without argument. The Court only reached the issue of whether a search had occurred; it did not touch whether the search was constitutionally unreasonable. The Court's analysis is sparse. After explaining the Jones case, and its subsequent application in Florida v. Jardines (2013), the Court stated:
In light of [Jones and Jardines], 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.
The State's program is plainly designed to obtain information. And since it does so by physically intruding on a subject's body, it effects a Fourth Amendment search.
The Court then vacated and remanded for additional proceedings in state court.
III. A Few Thoughts
1) Grady does extend the law slightly to say that the Jones test applies to searches of persons and not just of effects (in Jones) and houses (in Jardines). It's not a surprising extension, but it's still worth noting.
2) On the continuing question of whether the test in Jones is trespass or is physical intrusion—and if it's trespass, what kind of trespass—I think Grady just adds to the puzzle. On one hand, like Jardines, the Grady opinion never once mentions trespass. It doesn't even mention trespass in explaining the holding of Jones. At the same time, the Court does say that installing the bracelet is a search "by physically intruding on a subject's body." At first, that sounds like the physical intrusion test rather than the trespass test.
But if you think that Grady lends support to the test being physical intrusion, consider that the physical intrusion test recognized in Silverman was "actual intrusion into a constitutionally protected area." Note the language: Intrusion into. In Grady, on the other hand, the Court refers to intruding "on" the subject's body. There was no intrusion into the body here, unlike a case such as Winston v. Lee. Instead, there was an affixing around a body part. So I don't think we really know if the Court means to adopt a trespass or a physical intrusion test. Instead, the reasoning in Grady seems to be primarily analogical: If connecting the GPS device to a car was a search in Jones, connecting the GPS device to an ankle must be a search here. It's about as minimalist as you can get.
I wonder if the best way to make sense of the Jones test is that the test is physical intrusion into (Silverman) or affixing onto (Jones). Too early to say, at this point.
3) I've sometimes asked if there are any fact patterns in which there is no Katz search but there would be a Jones search. In other words, does Jones do any actual work, or does it just change labels around? It's somewhat plausible to argue that Grady is an example of such a fact pattern: Pre-Jones, I don't think I would have thought that affixing a bracelet around someone "searches" them. Or at least it wouldn't have been clear that it was the case.
4) If the facts of Katz came up today, would the Supreme Court say that government had conducted a Jones search, and that there was no reason to reach whether the government had also conducted a Katz search in Katz? After all, in Katz the agents taped a microphone to the top of the phone booth Katz was using. In the Jones/Grady sense, they had physically intruded onto the phone booth.
I suppose the difference is that, in Katz, the government installed the microphone when Katz was not using the phone booth. That is, the phone booth wasn't his at the time of installation. It didn't become Katz's phone booth until he entered, closed the door, and put in a coin to place a call. So maybe the real difference between Katz and Jones is that Jones applies to control or ownership at the moment of the affixing, while Katz applies to the monitoring after the affixing. Katz was decided under Katz, not physical trespass, because when Katz came into the phone booth it already had the microphone attached.
Maybe that's right, although it's worth noting that this explanation clashes with what Katz itself said concerning why the Silverman physical intrusion standard wasn't implicated in Katz. According to Katz, that was true because the microphone "did not happen to penetrate the wall of the booth." So Katz doesn't seem to recognize the distinction above. Although I suppose that clash is eliminated if the Jones test standard is now considered to be intrusion into (Silverman) plus affixing onto (Jones). At the time of Katz, there was only the intrusion into test, the thinking would go. When Jones then resurrected the Silverman intrusion standard, it then implicitly added the affixing onto test. Maybe.
Another way to think about this is that Katz actually raises two distinct questions. First, is a phone booth a place that can be searched—that is, to which a sufficient intrusion can count as a search? And second, was the government's act of taping the microphone to the phone booth and listening in on calls the kind of act that counted as a search if the phone booth is a place that can be searched? In the Jones world, the first question is defined by "persons, houses, papers, and effects," and the question of "search" is just about the second question. But I think that distinction is less clear in Katz, which tended to blend the two issues.