The Supreme Court took on a number of cases this year which have attracted a lot of media and legal attention. The case involving same-sex marriage has already garnered many headlines and at last count over one hundred ten amicus curaie briefs, while the case discussing tax subsidies in the Affordable Health Care Act has widespread political and economic implications. In contrast, this term’s criminal procedure cases deal with narrow, technical issues that have mostly flown under the media radar. But even in a relatively obscure group, the case of Grady v. North Carolina, which was quietly decided in a brief five-page per curia decision last week, surely ranks as the most obscure. Grady dealt with an interesting Fourth Amendment question: whether attaching an GPS-tracking ankle bracelet to a convicted sex offender constitutes a “search” under the Fourth Amendment. But the ultimate decision in the case turned on a relatively obvious and well-established point of law: that the Fourth Amendment applies to civil as well as criminal cases (see Ontario v. Quon and Camara v. Municipal Court), and so the North Carolina court was in error when it dismissed the case merely because it was civil in nature. Thus, the per curiam decision and the dearth of outside interest in the case.
Nevertheless, the Grady decision has a couple of interesting aspects to it. First, it is now the third case to apply the “property rights” test for a search (after Jones, which held that attaching a GPS device to a car was a search; and Jardines, which held that bringing a drug dog to the front porch to sniff for contraband was a search). (The property rights test defines a search as “physical occupation of private property by the government with the intent to gather information,” which surely applies in Grady). And unlike Jones and Jardines, the majority decision does not even mention the Katz test with regard to Grady’s challenge, even to say (as it did in the plurality in Jones and the majority in Jardines) that it need not reach the question of whether the government action invaded the defendant’s reasonable expectation of privacy. And unlike Jones and Jardines, there was no concurrence specifically describing how the government action would fare under the Katz test. As the Court stated in Jardines, “[o]ne virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy.” In this case, the property-rights test made the case so easy that there was no need to even refer to the more traditional Katz test when deciding the case.
The Justices’ decision to not mention the traditional Katz test does not mean the Katz test has any less support than before, of course–in both Jones and Jardines, the Court mentioned that the property rights test was meant to supplement, not replace, the reasonable expectation of privacy test. And there are plenty of recent cases (such as Riley v. California or Maryland v. King) which relied on the Katz test. But anyone who thought (or hoped) the property rights test would fall into disuse will now be sorely disappointed–it has now been used to decide three Fourth Amendment cases in the last four years.
Grady re-affirms the property rights test, it also unintentionally highlights the absurdity of using the test when the Katz test could just as easily–and more intuitively–resolve the case. This absurdity was present in Jones, which held that the Fourth Amendment violation occurred when the government “physically intruded” by attaching of a small device to the underside of the defendant’s car, rather than when the government monitored every location the car travelled to for the next twenty-eight days. It was present in Jardines, when the Court held that the police officer violated the defendant’s rights when he stood on the porch with a dog, rather than (as in Kyllo) when he used an unusual tool to gather private information about the inside of the defendant’s home. But the absurdity is most obvious in Grady. Here is an individual whose location–in public and in private–will be tracked by the government for the rest of his life. And yet the Supreme Court has held that his Fourth Amendment rights would be violated because the government spent a few seconds attaching a bracelet to his ankle. Almost anyone who reads this case–lawyer or lay person–will be surprised that this is now the focus of Fourth Amendment jurisprudence. This case is just as “easy” to decide when using the Katz test; there is no question that monitoring a person’s movements in private violates that person’s reasonable expectation of privacy. But the Court seems determined to always use the Jones property rights analysis first, even if it seems counter-intuitive to do so.
None of this helps Mr. Grady, of course. Although the Court held that attaching the ankle monitor was a search, it remanded the case to determine whether attaching such a a monitor to a convicted sex offender is reasonable. Given the Court’s recent decisions on reasonableness and on sex offenders, Grady should not be too hopeful.
