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 [...]