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Criminal Practice – Search & Seizure – SBM’s Efficacy – No Evidence

Where the state presented no evidence that the satellite-based monitoring program is effective in protecting the public from sex offenders, ordering satellite-based monitoring of defendant violates his rights under the Fourth Amendment.

We reverse the trial court’s order requiring defendant to submit to satellite-based monitoring (SBM).

Unless SBM is found to be effective to actually serve the purpose of protecting against recidivism by sex offenders, it is impossible for the state to justify this intrusion of continuously tracking an offender’s location for any length of time, much less for 30 years.

When the state has presented no evidence that could possibly support a finding necessary to impose SBM, the appropriate disposition is to reverse the trial court’s order rather than to vacate and remand the matter for re-hearing.

Reversed.

Dissent

(Bryant, J.) While State v. Grady, COA17-12, 2018 WL 2206344 (15 May 2018) (Lawyers Weekly No. 011-174-18), concluded “that the State failed to carry its burden,” the court did not say the state’s burden of proof to establish that SBM was reasonable included establishing the efficacy of SBM in curbing sex offender recidivism for every SBM case; it was simply a consideration amongst the totality of the circumstances.

Here, the majority bases the reasonableness of the SBM search of defendant solely on its holding that the state presented no evidence of the efficacy or effectiveness of the program. Such reasoning unnecessarily imposes upon trial courts a standard other than that which is required by Fourth Amendment jurisprudence: to determine whether a search is reasonable based on 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.

State v. Griffin (Lawyers Weekly No. 011-256-18, 18 pp.) (Lucy Inman, J.) (Wanda Bryant, J., dissenting) Appealed from Craven County Superior Court (Benjamin Alford, J.) Joseph Finarelli for the state; James Grant for defendant. N.C. App.

 

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