Block on Trump's Asylum Ban Upheld by Supreme Court
An ankle bracelet is more than a fashion statement: it's a search. At least according to the Supreme Court's holding in Grady v. North Carolina, which found that a state conducts a Fourth Amendment search when it affixes a device to an individual's body, sans consent, for the purposes of monitoring them.
The case involves Torrey Grady, a "recidivist sex offender" who was ordered to wear a tracking device at all times, much to his dislike. Grady's cert. petition asked the Court to decide whether the monitoring bracelet was an unconstitutional search, in violation of the offender's Fourth Amendment rights. The Court didn't go that far, however, content on ruling on the search issue alone.
Searching to Define Search
SCOTUS hasn't established a clear test for determining what counts as a "search" under the Fourth Amendment. A police dog sniffing out your heroin probably isn't a search, though it can be if the dog is poking around your home. Bugging a public phone booth is a search, as is tracking a suspect's car using a GPS monitor. In general, courts must examine an individual's expectation of privacy or whether the government has "trespassed" on another's property. This is why a drug dog on your porch, where you expect privacy, is a search, while a dog in the airport is not (your public scents can't be trespassed upon).
Grady ads a new layer to the Court's search jurisprudence. The Court found in a "trespassory" search United States v. Jones, the car tracking case, and a violation of privacy in Florida v. Jardiners, the drug dog on the porch case. Grady extends the logic of those rulings from an individual's property to his or her body.
A search exists when the state "attaches a device to a person's body without consent, for the purpose of tracking the individual's movements." Physically intruding onto someone's body for the purpose of obtaining information makes the state's actions a search.
Trespass or Intrusion?
The Supreme Court of North Carolina had ruled previously in the litigation that the monitor did not constitute a search, differentiating it from Jones on the ground that Jones involved a motion to suppress evidence, not a civil proceeding. The civil nature of a proceeding makes no difference, the Court noted. The information gathering does.
Professor Orin Kerr observes on The Volokh Conspiracy that the Grady decision does not mention trespass once. Like Jardines, it focuses on physical intrusion, but one which is onto, rather than in to. According to Kerr, this "onto" at least implicates trespass, though the reasoning is more of an analogy than a developed test.