For Luke Everett ’08 and Mark L. Hayes ’08, it took just
under a decade from when they first sat together in a law class to win a
Supreme Court case.
The impact of that decision, however, will probably last
far longer than a decade. The case, Grady
v. North Carolina, has the potential to change the way states across the
country — including North Carolina — use satellite technology to track
convicted criminals, even after they have completed their sentences.
The lawyers say the privacy rights of virtually anyone who
uses a smart phone or other GPS-equipped device are at stake.
“This is a win for everyone who’s in a noncriminal situation with GPS data,”
Two strikes and you’re out?
In 2013, Torrey Grady was ordered to submit to the
tracking. He was convicted of a sex offense as a teen in 1997 and of taking
indecent liberties with a child in 2006. By 2013, he had served his sentences.
In 2009, the state enacted a law requiring lifetime
monitoring for certain classes of sex offenders, including recidivists. Under
the statutes, offenders were required to wear a monitoring device 24 hours a
day for the rest of their lives. They were also required to plug in the device
for four to six hours each day to charge it.
Hayes, who was appointed to represent Grady by the N.C.
Public Defender’s office, appealed Grady’s case to the state Court of Appeals,
arguing that the lifetime monitoring was an unconstitutional search under the Fourth
Amendment. The appeals court denied the appeal, saying the law was a civil
statute, not criminal, and that therefore no Fourth Amendment issue existed.
A petition to the N.C. Supreme Court was denied. The last
available appeal was the U.S. Supreme Court.
The Public Defender’s office wouldn’t fund an appeal to
the Supreme Court, judging Hayes’ odds of prevailing as low. If Hayes were to
proceed, he needed help to share the workload and sharpen the argument enough
to get the attention of the nation’s top justices.
He thought of Everett, now a professor at UNC School of Law
and a practicing attorney. The two had remained friends since those first days
at law school and their children even attended the same school.
“After I dropped my kids off at elementary school one
morning, I flagged him down and we talked about the case,” Hayes says.
Everett agreed, taking on the case pro bono.
Going to the top
“I don’t know of any cases where the cops, by following the pings of the GPS,
were able to swoop in and stop a crime,”
Everett says. “And if they can’t do that,
then I don’t see what the benefit is."
The two lawyers researched precedents and crafted a simple
but compelling argument: the forced monitoring was a search under the Fourth
Amendment and therefore subject to the constitutional test of reasonableness.
Everett and Hayes filed their written arguments in
November. The state responded with its own arguments. Then everyone waited to
see if the nation’s highest court would even consider the case.
It did. On March 30, without even hearing oral argument, the
high court issued a unanimous written order stating that the lifetime
monitoring was a search and thus subject to Fourth Amendment protections.
The Supreme Court cited its own decisions, including the
2012 case United States v. Jones,
where federal and local investigators attached a GPS tracking device to a
suspect’s car without a warrant. In that case, the justices ruled 5-4 that
attaching a tracking device constituted a search under the Fourth Amendment.
Now, the Supreme Courts leave it to North Carolina courts
to decide whether the monitoring program is “reasonable."
Everett is concerned that state courts, whose judges must
run for election, will be hesitant to overturn a law that might be seen as
protecting crime victims. Even, he says, if there’s almost no evidence that
monitoring programs prevent crime.
“I think that the procedure, at the very least, is going
to have to change,” Everett says. “Courts will at least have to make sure that
the search itself is reasonable, which is a step in the right direction.”
-June 11, 2015