New SCOTUS Case Will Have Big Impact on Some Georgia Sex Offenders

Jonathan McIntosh Flickr CC

In a per curium opinion (pdf), the United States Supreme Court has held that the placement of a tracking device on a person is a search within the meaning of the Fourth Amendment, even if the person is compelled for life to wear the device as part of a sentence. As summarized by Robinson Meyer in The Atlantic Monthly, “[i]f the government puts a GPS tracker on you, your car, or any of your personal effects, it counts as a search—and is therefore protected by the Fourth Amendment.” This opinion could spell changes for Georgia’s regime of tracking persons in Georgia who have been designated as Sexually Dangerous Predators.

In Grady v. North Carolina, the Petitioner challenged a court order requiring him to wear a GPS tracking device for life as a violations of his right to be free from unreasonable search and seizure. The North Carolina courts rejected his claim, reasoning that the placement t of a tracking device was not a search. The United States Supreme Court’s per curium opinion held that the placement of a tracking device on the person of Mr. Grady was a search as defined by the Fourth Amendment. But the Court remanded the case for a determination of whether the search was an unreasonable one. This case could make its way back to the Supreme Court eventually.

What is the possible consequence for Georgia? Consider first the comparison between the way GPS tracking for sex offenders works in in North Carolina versus Georgia.

• Under North Carolina law, a person convicted as a recidivist sex offender goes before a judge where, after a hearing, the decision may be made to place a lifetime tracking device on the person. In Georgia, all sex offenders with convictions, a move to Georgia, or a release from prison after 2006, will be reviewed by Georgia’s Sexual Offender Registration Review Board. The offender never has the right to a hearing.
• The SORRB can choose to classify even a first-time offender as a Sexually Dangerous Predator and force the offender to wear a GPS monitor for life. And the SORRB can, and often does, rely upon police reports and other hearsay materials in reaching its conclusion. In North Carolina, GPS tracking for sex offenders does not become an issue until there is recidivist treatment.
• In Georgia, there is an opportunity for judicial review in a Superior Court. However, the judge who considers the case may deny the petitioner the right to a hearing. In that case, the judge who decides whether to make a person wear an ankle monitor for life relies upon the hearsay that the SORRB used as well as the hearsay analysis that the SORRB prepared and sent over to the court. It will be interesting to see how those orders stand up in the wake of Grady.

For Georgia lawyers going forward,  a claim under Grady can be made on SDP appeals. And for folks who have already passed that point, there is room for a HABEAS challenge raising Fourth amendment grounds. As the process is set up in Georgia, with little meaningful judicial scrutiny, it would be hard for the government to demonstrate that the decision to violate a person’s Fourth Amendment rights was reasonable. After all, even for something as routine as a search warrant, a magistrate hears or considers sworn testimony. Not so in many SORRB SDP cases. For more on that process, consider my previous post.