In a per curiam decision last week, the Court ruled that permanently affixing a satellite-based monitoring device to the person of an individual convicted of multiple sex crimes unequivocally constituted a search within the meaning of the Fourth Amendment.

The petitioner, Torrey Dale Grady, was convicted of two sex offenses in North Carolina, the first in 1997 and the second in 2006.  The North Carolina legislature, in a brilliant illustration of political overreach against the most misunderstood and brutally punished of criminal defendants, requires that “recidivist sex offenders” be monitored by the State via a G.P.S. device for the remainder of their natural lives.  N.C. Gen. Stat. Ann. §§ 14-208.40(a)(1), 14-208.40B (2013).  His public defender, in a creative maneuver, conceded that Mr. Grady’s convictions rendered him eligible for the G.P.S. monitoring program, but that the program itself constituted Fourth Amendment activity under United States v. Jones, 132 S. Ct. 935 (2012).  In that case, a majority of the Court concluded that attaching a G.P.S. monitoring device to a car constituted a search in the sense that it was a trespass on the defendant’s property.

The Court concluded last week that Mr. Grady’s lifetime monitoring must be a search a fortiori.  Surely, if securing a G.P.S. on an S.U.V. is a search, so to is forcibly affixing a similar device to Mr. Grady’s ankle.  The Court did not rule on the reasonableness of the search, however, remanding to the North Carolina courts to determine whether the search is reasonable.

Was the search reasonable?  Unfortunately for us (but fortunately for Mr. Jones), the Court deemed the question forfeited by the United States in Jones.  Id. at 944.  Consequently, we don’t have anything directly from the Court on the question whether such monitoring is a reasonable search.  Given that the Court made it clear in Jones that the “reasonable expectation of privacy test” articulated in Katz v. United States, 389 U.S. 347 (1967) has been added to the trespass test of Jones, see Jones, 132 S. Ct. at 952, the question will turn on whether Mr. Grady has a reasonable expectation of privacy, precisely, in his personal whereabouts for the remainder of his natural life.  It is important to note that the G.P.S. tracking at issue in Grady does not appear to be a condition of general parole, probation, or supervised release: under these circumstances, Mr. Grady very well may have a “diminished expectation of privacy.”  See, e.g., Samson v. California, 547 U.S. 843, 851 (parolees) and Griffin v. Wisconsin, 483 U.S. 868, 885 (1987) (probationers).  Consequently, it would seem that his expectations of privacy are coextensive with those of any other ex-offender, or, put another way, any other citizen free of state supervision.  If this is the case, lifetime monitoring (or conceivably any monitoring absent a specific term of parole or probation) must surely be unreasonable.