North Carolina Lawyers Weekly
On remand for reconsideration in light of State v. Grady, 372 N.C. 509, 831 S.E.2d 542 (2019) (Grady III), in which our Supreme Court held that mandatory lifetime satellite-based monitoring (SBM) under G.S. §§ 14-208.40A(c) and 14-208.40B(c) was unconstitutional as to all unsupervised defendants who received mandatory lifetime SBM solely on the basis of recidivism, we hold that the 30-year term of SBM applied to defendant under G.S. § 14-208.40(a)(2) is also an unreasonable search under the Fourth Amendment.
We reverse the trial court’s order imposing a 30-year term of SBM.
SBM is a condition of defendant’s five-year parole. Defendant challenges only the 25-year balance of the SBM term.
As a registered sex offender, defendant has a diminished expectation of privacy. However, his appearance on the sex-offender registry does not mean that his rights to privacy in his person, his home, and his movements are forever forfeit. The physical qualities of the monitoring device itself meaningfully conflict with defendant’s physical privacy rights.
Although, unlike in Grady, defendant had the benefit of a risk assessment and a determination by the trial court that he “[requires] the highest possible level of supervision and monitoring,” the 30-year order, unlike a lifetime order, is not subject to periodic challenge and review. Defendant will not have the opportunity to later petition the Post-Release Supervision and Parole Commission for relief.
On the other hand, the state has legitimate interests in favor of SBM: protecting the public from sex offenders, reducing recidivism, solving crimes, and deterring criminality. However, the state did not introduce any record evidence before the trial court showing SBM is effective in accomplishing any of the state’s legitimate interests. The state failed to carry its burden to produce evidence that the 30-year term of SBM imposed in this case is effective to serve legitimate interests.
The totality of the circumstances discloses that the order for 30 years of SBM in this case constitutes an unreasonable warrantless search in violation of the Fourth Amendment. We therefore hold, consistent with the balancing test employed in Grady III, that the imposition of SBM under § 14-208.40(a)(2) as required by the trial court’s order is unconstitutional as applied to defendant and must be reversed.
State v. Griffin (Lawyers Weekly No. 011-048-20, 21 pp.) (Lucy Inman, J.) (Wanda Bryant, J., concurring in the result only without separate opinion) Appealed from Craven County Superior Court (Benjamin Alford, J.) On remand from the Supreme Court. Joseph Finarelli for the state; James Grant for defendant. N.C. App.
