Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 11/04/2024
E.g., 11/04/2024

(per curiam). Reversing the North Carolina courts, the Court held that under Jones and Jardines, satellite based monitoring for sex offenders constitutes a search under the Fourth Amendment. The Court stated: “a State … conducts a search when it attaches a device to a person’s body, without consent, for the purpose of tracking that individual’s movements.” The Court rejected the reasoning of the state court below, which had relied on the fact that the monitoring program was “civil in nature” to conclude that no search occurred, explaining: “A building inspector who enters a home simply to ensure compliance with civil safety regulations has undoubtedly conducted a search under the Fourth Amendment.” The Court did not decide the “ultimate question of the program’s constitutionality” because the state courts had not assessed whether the search was reasonable. The Court remanded for further proceedings.

The trial court did not err by ordering the defendant to submit to lifetime SBM after he pleaded guilty to first-degree forcible rape and other offenses.  In State v. Strudwick, 273 N.C. App. 676 (2020), the Court of Appeals reversed the trial court’s lifetime SBM order, relying on State v. Gordon, 270 N.C. App. 468 (2020) on its way to determining that the State did not demonstrate the reasonableness of the SBM search which would occur decades in the future.  In its opinion, the Court of Appeals indicated that “further guidance” about SBM procedure from the Supreme Court would be helpful.  The Court provided that guidance in this opinion, though it noted that S.L. 2021-138 made major revisions to the SBM program which are effective December 1, 2021. 

The Court first concluded that the SBM scheme, which requires a trial court to determine the reasonableness of an SBM search at the time of sentencing rather than at the time of the actual effectuation of the search, is not facially unconstitutional.  The Court noted that under G.S. 14-208.43 a defendant may petition for release from the SBM program, and further noted that a defendant potentially may be able to have a SBM order set aside through Rule 60 of the North Carolina Rules of Civil Procedure.  

The Court then turned to the reasonableness of the lifetime SBM order in this case, finding that the SBM program’s promotion of the “legitimate and compelling governmental interest” in preventing and prosecuting future crimes committed by the defendant outweighed the program’s “narrow, tailored intrusion into [the] defendant’s expectation of privacy in his person, home, vehicle, and location.”  The court explained, among other things, that the trial court found that the ET-1 SBM device is “relatively small” and “unobtrusive,” and that the SBM scheme only provides the State with the physical location of the defendant, who had a diminished expectation of privacy because of his status as a convicted felon sex offender, for use in the prevention and prosecution of future crimes he potentially could commit.  The Court noted that unlike Grady III, a State’s witness had testified in the defendant’s case “concerning situations in which lifetime SBM would be obviously effective in assisting law enforcement with . . . preventing and solving future crimes by sex offenders.”  Thus, the Court reversed the opinion of the Court of Appeals and kept the trial court’s lifetime SBM order in full effect.

Justice Earls, joined by Justices Hudson and Ervin, dissented.  Justice Earls described the majority’s view that “a court today can assess the reasonableness of a search [of lifetime duration] that will be initiated when (and if) [the defendant] is released from prison decades in the future” as a “remarkable conclusion” and “cavalier disregard” of constitutional protections.  Justice Earls went on to criticize the majority’s application and interpretation of Grady III as well as the majority’s analysis of whether the State had shown that the SBM search was reasonable.

In this case involving the trial court’s imposition of lifetime satellite-based monitoring (SBM) following the defendant’s conviction for an aggravated sex offense, the North Carolina Supreme Court held that the order imposing lifetime SBM effected a reasonable search under the Fourth Amendment and did not constitute a “general warrant” in violation of Article 1, Section 20 of the North Carolina Constitution. The Supreme Court thus reinstated the trial court’s order, modifying and affirming the portion of the Court of Appeals’ decision that upheld the imposition of SBM during post-release supervision, and reversing the portion of the decision that held the imposition of post-release SBM to be an unreasonable search. 

The defendant was convicted of first-degree statutory rape and first-degree statutory sex offense in 2007. He was released from imprisonment in 2017 and placed on post-release supervision for five years. He was prohibited from leaving Catawba County without first obtaining approval from his probation officer. He nevertheless traveled to Caldwell County on several occasions without that permission. While there, he sexually assaulted his minor niece. After the defendant was charged with indecent liberties based on that assault (but before he was convicted), the trial court held a hearing to determine whether the defendant should be required to enroll in SBM based on his 2007 convictions. The trial court ordered lifetime SBM based on its determination that the defendant had been convicted of an aggravated offense. The defendant appealed. A divided Court of Appeals upheld the imposition of SBM during the defendant’s post-release supervision as reasonable and thus constitutionally permissible but struck down as unreasonable the trial court’s imposition of SBM for any period beyond his post-release supervision. The State appealed.

The Supreme Court reinstated the trial court’s order, modifying and affirming the portion of the Court of Appeals’ decision that upheld the imposition of SBM during post-release supervision, and reversing the portion of the decision that held the imposition of post-release SBM to be an unreasonable search. 

The Court reasoned that State v. Grady, 372 N.C. 509 (2019) (Grady III), which held that it was unconstitutional to impose mandatory lifetime SBM for individuals no longer under State supervision based solely on their status as recidivists left unanswered the question of whether lifetime SBM was permissible for aggravated offenders. To resolve this issue, the Court applied the balancing test set forth in Grady v. North Carolina (Grady I), 575 U.S. 306 (2015) (per curiam) (holding that North Carolina’s SBM program effects a Fourth Amendment search). The Court determined that the State’s interest in protecting the public—especially children—from aggravated offenders is paramount. Citing authority that SBM helps apprehend offenders and studies demonstrating that SBM reduces recidivism, the court concluded that the SBM program furthers that interest by deterring recidivism and helping law enforcement agencies solve crimes. The Court stated that its recognition of SBM’s efficacy eliminated the need for the State to prove efficacy on an individualized basis. The Court then considered the scope of the privacy interest involved, determining that an aggravated offender has a diminished expectation of privacy both during and after any period of post-release supervision. The Court noted that sex offenders may be subject to many lifetime restrictions, including the ability to possess firearms, participate in certain occupations, registration requirements, and limitations on where they may be present and reside. Lastly, the Court concluded that lifetime SBM causes only a limited intrusion into that diminished privacy expectation. Balancing these factors, the Court concluded that the government interest outweighs the intrusion upon an aggravated offender’s diminished privacy interests. Thus, the Court held that a search effected by the imposition of lifetime SBM on the category of aggravated offenders is reasonable under the Fourth Amendment.

The Court further held that because the SBM program provides a particularized statutory procedure for imposing SBM, including a judicial hearing where the State must demonstrate that the defendant qualifies for SBM, and for effecting an SBM search, the SBM program does not violate the prohibition against general warrants in Article 1, Section 20 of the North Carolina Constitution. 

Justice Earls, joined by Justice Hudson and Ervin, dissented. Justice Earls criticized the majority for its failure to account for 2021 amendments to the SBM statute “that likely obviate some of the constitutional issues” on appeal. Id. ¶ 43. Specifically, she reasoned that though the defendant currently is subject to lifetime SBM, he will not, as of December 1, 2021, be required to enroll in SBM for more than ten years. She also wrote to express her view that the majority’s decision could not be reconciled with the Fourth Amendment or with the Court’s holding in Grady III.

On appeal from a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 817 S.E.2d 18 (2018), the Supreme Court affirmed the Court of Appeals’ decision finding satellite-based monitoring (SBM) to be an unreasonable and therefore unconstitutional search in the defendant’s case. The court modified the lower court decision to apply it not just to the defendant, but also to all sex offenders subject to mandatory lifetime SBM based solely on their status as recidivists who are no longer on probation, parole, or post-release supervision. In this case, the trial judge conducting the defendant’s SBM determination hearing (on remand from the Supreme Court of the United States, Grady v. North Carolina, 135 S. Ct. 1368 (2015)), considered the State’s evidence of the defendant’s prior sex crimes, the defendant’s full criminal record, copies of G.S. 14-208.5 and -208.43, photographs of the equipment the State uses to administer the SBM program, and testimony from a probation supervisor on the operation of the SBM equipment and the nature of the program. The defendant presented statistical reports, Community Corrections policy governing SBM, and an excerpt of SBM training materials for probation staff. Based on the totality of the circumstances, the trial judge entered an order concluding that SBM was a reasonable search as applied to the defendant and that the statute is facially constitutional, and ordered the defendant to enroll in SBM for life.

On appeal, the Court of Appeals concluded that although the defendant’s expectation of privacy was appreciably diminished as a sex offender, the State failed to prove that SBM was a reasonable search as applied to him under the Fourth Amendment. The State appealed as of right.

The Supreme Court declined to address the facial constitutionality of North Carolina’s SBM program in its entirety, instead addressing the program as applied to the narrower category of recidivists to which the defendant belongs. The court rejected the State’s argument that SBM was valid as a special needs search, because the State never identified any special need beyond the normal need for law enforcement, and because the defendant was no longer on probation or parole.

The court also found SBM unconstitutional under a reasonableness analysis, concluding that, given the totality of the circumstances, SBM’s intrusion into the defendant’s Fourth Amendment interests outweighed its promotion of legitimate governmental interests. As to the nature of the privacy interest, the court deemed SBM to be uniquely intrusive—presenting even greater privacy concerns than the cell-site location information at issue in Carpenter v. United States, 138 S. Ct. 2206 (2018). The court rejected the State’s arguments that felons generally and sex offenders in particular who have fully served their sentences have a diminished expectation of privacy. Regarding the character of the complained of intrusion, the court noted the absence of front-end discretion on the part of the judge who imposes SBM and the limited relief available on the back end through the Post-Release Supervision and Parole Commission, which has thus far declined all sixteen requests to terminate SBM filed under G.S. 14-208.43. Finally, as to the nature and purpose of the search, the court noted the State’s failure to provide evidence about how successfully the SBM program advances its stated purpose of protecting the public or any evidence regarding the recidivism rates of sex offenders. The court contrasted that lack of evidence with the copious evidence of student drug use the Supreme Court of the United States found critical in upholding random drug screening in Vernonia School District 47J v. Acton, 515 U.S. 646 (1995). Balancing those factors, the court determined that the State did not meet its burden of establishing the reasonableness of SBM for recidivists who have completed their sentence. The court concluded by emphasizing the limited scope of its holding, reiterating that it does not apply to SBM enrollees in other categories (for example, those enrolled based on an aggravated offense), regardless of whether they also happen to be a recidivist, or to enrollees still on parole, post-release supervision, or probation.

Justice Newby dissented, joined by Justice Morgan, arguing that the State’s paramount interest in protecting children outweighed the intrusion into the defendant’s diminished Fourth Amendment privacy interests, and that the SBM program is thus constitutional, both facially and as applied to the defendant.

State v. Bursell [Duplicated], 258 N.C.App. 527, 813 S.E.2d 463 2018-03-20 aff’d in part, rev’d in part, 258 N.C.App. 527, 813 S.E.2d 463 (May 10 2019)

On an appeal from an order requiring the defendant to enroll in lifetime SBM, the court held--as conceded by the State--that the trial court erred by imposing lifetime SBM without conducting the required Grady hearing to determine whether monitoring would amount to a reasonable search under the Fourth Amendment. The court vacated the SBM order without prejudice to the State’s ability to file a subsequent SBM application.

In this Forsyth County case, defendant appealed the imposition of lifetime satellite-based monitoring (SBM) after his classification as an aggravated offender for convictions for rape, indecent liberties with a child, assault by strangulation, and kidnapping. The Court of Appeals affirmed the imposition of lifetime SBM.

This matter first came before the Court of Appeals in 2018, after defendant appealed the trial court’s imposition of lifetime SBM. After the Court of Appeals’ decision, the North Carolina Supreme Court granted discretionary review based on the State’s petition, and remanded the case in 2019, directing the court to consider State v. Grady (Grady III), 372 N.C. 509 (2019). In 2020, the Court of Appeals issued its second opinion. The Supreme Court again granted discretionary review based on State’s petition, and remanded the case in 2021, directing the court to consider State v. Hilton, 378 N.C. 692 (2021), and State v. Strudwick, 379 N.C. 94 (2021), as well as the General Assembly’s 2021 amendments to the SBM program.

In the current opinion, the Court of Appeals considered the new caselaw and statutory requirements applicable to the imposition of defendant’s lifetime SBM. Applying Hilton, the court explained that lifetime SBM does not represent an unreasonable search for aggravated offenders like defendant. Slip Op. at ¶9. Additionally, the court referenced Strudwick when establishing that the State does not have to demonstrate the reasonableness of lifetime SBM after defendant’s release from prison at some date in the future, only the reasonableness of the imposition in the present. Slip Op. at ¶10. The court then performed a Fourth Amendment analysis in light of the changes to the SBM program and caselaw, determining that “the search of Defendant as imposed is reasonable and therefore withstands Fourth Amendment scrutiny.” Slip Op. at ¶21.

In this Forsyth County case, the defendant was convicted of multiple sex crimes in 2020. Based on a prior conviction from 2002, he was deemed to be a recidivist and ordered to enroll in satellite-based monitoring (SBM). Though the SBM statute in effect at the time would have required lifetime SBM, the trial court orally ordered SBM for five years as a condition of the defendant’s post-release supervision (PRS). In its written order, though, the trial court ordered SBM for life based on the defendant’s status as a recidivist. (The trial court did not note that the defendant was also statutorily eligible for lifetime SBM based on his conviction for statutory sexual offense with a child by an adult.) The trial court made findings as to the reasonableness of SBM in light of State v. Grady, 372 N.C. 509 (2019), but ultimately ordered that the defendant be brought back before the court at the conclusion of his lengthy active sentence for a determination of the reasonableness the search under then-existing circumstances and technology.

(1) On appeal, the defendant argued that the trial court erred by ordering lifetime SBM when the State failed to present evidence about reasonableness and the trial court did not conduct a formal hearing on the issue. The Court of Appeals disagreed. As to SBM ordered during the defendant’s term of PRS, the Court concluded that it was reasonable in light of a supervised offender’s diminished expectation of privacy. As to the SBM extending beyond the period of PRS, the Court concluded under the totality of the circumstances that it too was reasonable in light of the 10-year cap on monitoring under 2021 statutory amendments; the fact that the defendant here was not just a recidivist, but was also convicted of statutory sexual offense by an adult with a victim under the age of thirteen; and the fact that SBM was deemed effective without the need for an individualized determination in State v. Hilton, 378 N.C. 692 (2021). The Court thus affirmed the trial court order requiring lifetime SBM.

(2) The defendant also argued that the trial court was without authority to order a second SBM determination hearing upon the defendant’s release from prison. The Court of Appeals agreed that there was no statutory authority for the procedure, but noted that SBM, as a civil matter, could be modified under authority of Rule 60 of the Rules of Civil Procedure. The Court thus vacated the trial court’s order for a second SBM hearing upon the defendant’s release.

The defendant appealed from judgments entered upon his guilty pleas to second-degree rape and forcible sex offenses, second-degree kidnapping, assault on female, assault by strangulation, obstruction of justice, and intimidating a witness. The defendant appealed by writ of certiorari both the trial court’s imposition of lifetime SBM and the trial court’s imposition of duplicative court costs.

First, the Court of Appeals had to decide whether the defendant’s writs of certiorari properly conferred jurisdiction to the court. The defendant gave oral notice of appeal at his sex offender registration hearing, however he did not specifically raise the issue of court costs or later file a written notice of appeal. The court exercised its discretion to allow the defendant’s petition for writ of certiorari to review the lifetime SBM order because they are “authorized to issue a writ of certiorari ‘to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action[.]’ N.C. R. App. P. 21(a)(1).” Slip op. at 8. Next, the court dismissed the defendant’s oral notice of appeal and instead used its discretion under Rule 21(a)(1) to grant the defendant’s writ of certiorari because it was not the defendant’s fault because it was defendant’s trial counsel who failed to give proper notice of appeal.

(1) The defendant’s first argument on appeal was that the trial court erred in ordering the defendant to enroll in lifetime satellite-based monitoring (SBM) upon his release from prison and contends the state did not meet its burden of proving the imposition of lifetime SBM is a reasonable search under the Fourth Amendment. Slip op. at 7.

The Court of Appeals used Gordon and Griffin II as instructive in addressing Grady III’s application to defendants convicted of an aggravated offense and outside the recidivist context. The court stated that “as this Court did in Griffin II, we employ Grady III as a roadmap, ‘reviewing [d]efendant’s privacy interests and the nature of SBM’s intrusion into them before balancing those factors against the State’s interests in monitoring [d]efendant and the effectiveness of SBM in addressing those concerns.’ Griffin II, ___ N.C. App. at ___, 840 S.E.2d at 273.” Slip op. at 10-11.

In evaluating the defendant’s privacy interests, the court determined the defendant has a diminished expectation of privacy in some respects, such as the privacy of his address or matters material to his voluntary participation in certain activities, because the defendant must submit to lifetime sex offender registration and post-release supervision upon release from prison. However, the court found that the defendant’s expectation of privacy would not always be so severely diminished and following the termination of post-release supervision, the defendant’s constitutional privacy rights will be restored and that will occur at some point before the end of the lifetime SBM order. Therefore, the court found that the “[d]efendant will enjoy ‘appreciable, recognizable privacy interests that weigh against the imposition of SBM for the remainder of’ [d]efendant’s lifetime. Griffin II, ___ N.C. App. at ___, 840 S.E.2d at 274.”

The court next evaluated the intrusive nature of SBM and found that “SBM’s ability to track Defendant’s location is ‘uniquely intrusive’, and thus weighs against the imposition of SBM.” Slip op. at 12 (citation omitted).

In considering the state’s interest, the court determined that the state failed to produce evidence that the lifetime SBM, in this case, effectively served legitimate interests such as preventing recidivism. The court explained that the state did not put forth any evidence showing that SBM served those interests and only provided legal conclusions. Therefore, the court determined “the state’s interest in monitoring [d]efendant by SBM during post-release supervision is already accomplished by a mandatory condition of post-release supervision imposing that very thing.” Slip op. 14.

Finally, the court considered the reasonableness of SBM under the totality of the circumstances and balancing the previously mentioned factors. The court decided that in this case, a lifetime SBM order is an unreasonable warrantless search in violation of the Fourth Amendment and therefore unconstitutional. The court determined that the defendant’s privacy rights, although diminished during post-release supervision, were substantially infringed upon by the lifetime SBM order and the defendant’s interests were not outweighed by a legitimate state interest because the state failed to provide evidence that a legitimate interest would be served by requiring the defendant be subject to lifetime SBM. 

(2) The defendant next argued that the trial court erred by entering duplicative court costs. The court determined the duplicative costs were error because, following Rieger, “when multiple criminal charges arise from the same underlying event or transaction and are adjudicated together in the same hearing or trial, they are part of a single ‘criminal case’ for the purposes of N.C. Gen. Stat. § 7A-304(a).” Slip op. at 15.

Judge Tyson dissented because he did not think the defendant’s petition for writ of certiorari concerning the lifetime SBM order should have been granted because it was meritless. Judge Tyson also dissented from the writ of certiorari concerning the imposition of duplicative court costs because the judgements were not part of a “single criminal case.”

The defendant appealed from his convictions for first degree rape, first degree sexual offense, and taking indecent liberties with a child. The defendant also challenged a civil order requiring lifetime SBM. Defendant was charged with first degree rape of a child, first degree sex offense with a child, and taking indecent liberties with a child that allegedly occurred in 2007 or 2008. The victim told no one about what had happened to her until June 2017, when she was asked if she had ever been raped during the intake process for juvenile justice. The defendant was found guilty of all charges and sentenced to 240-297 months. Following release, the defendant would be required to register as a sex offender for life and to enroll in SBM for life.

(1) The defendant first argued that the trial court committed plain error by allowing that state’s expert witness, who conducted a forensic interview of the victim, to describe the victim’s claim that she was raped as a “disclosure,” and if this vouching for truthfulness had not occurred, then the victim would have been a less credible witness. The court of appeals first noted that the defendant did not object to the use of the word “disclosure” at trial and therefore his argument is reviewed for plain error.

The court explained that North Carolina case law makes it clear that experts cannot vouch for a child sexual abuse victim’s credibility when there is no evidence of physical abuse. The defendant argued the dictionary definition of disclose is “to make known (as information previously kept secret).” Slip op. at 4. The court acknowledged that the word may have that connotation at times, but its use must be considered in the specific context of the evidence in this case. After examining the testimony of the expert, the court determined that the use of the word “disclose” during the testimony “simply does not have the connotation of exposing a previously hidden truth as argued by [d]efendant.” Slip op. at 5. The court came to this conclusion because in this context the “use of the word ‘disclosure’ was simply as part of the description of the interview method and was not “vouching” for the truth of what an alleged victim reveals. Slip op. at 7.

(2) The court of appeals next noted that the defendant had waived his right to argue constitutional issues on appeal because no objection on constitutional grounds was made by defendant’s trial counsel and no notice of appeal was given from the SBM order. However, the court of appeals determined that because a substantial right of the defendant was affected, it was appropriate for the court to invoke Rule 2 to prevent a manifest injustice and thus review the constitutionality of the SBM order. Id. at 15.

The defendant argued that the trial court erred in ordering lifetime SBM because the state presented no evidence that lifetime SBM was a reasonable Fourth Amendment search of the defendant. The court reviewed the issue de novo and under the Grady III framework. The framework involves “reviewing Defendant’s privacy interests and the nature of SBM’s intrusion into them before balancing those factors against the State’s interests in monitoring Defendant and the effectiveness of SBM in addressing those concerns.” Id. at 16. The court of appeals found that the state presented no evidence showing how the lifetime SBM would reduce recidivism and therefore, the state “failed to meet its burden of establishing that lifetime satellite-based monitoring following [d]efendant’s eventual release from prison is a reasonable search in [d]efendant’s case.” Slip op. at 19.

In a prior opinion, the Court of Appeals held that the state failed to meet its burden of showing the reasonableness of ordering the defendant to enroll in lifetime satellite-based monitoring (SBM) following his conviction for rape. The matter was before the court again for reconsideration in light of State v. Grady, ___ N.C. ___, 831 S.E.2d 542(2019). The appellate court first reviewed Grady’s holding that SBM was unconstitutional, but noted that “the decision was specific to those defendants enrolled in SBM exclusively on the basis of having attained the status of a recidivist, and for no other reason.” In the present case, the defendant was placed on SBM for committing an aggravated offense, not for being a recidivist, and the appellate court’s earlier decision to reverse the trial court’s order was “premised upon the State’s failure to meet its evidentiary burden” of showing that the “defendant posed a threat of reoffending, such that SBM would be reasonable.” Concluding that Grady was therefore inapplicable to the defendant’s case, the appellate court affirmed its earlier ruling to reverse the trial court’s order for the same reasons stated in its earlier opinion.

Judge Stroud concurred in part and dissented in part, citing to State v. Hilton, ___ N.C. App. ___, 845 S.E.2d 81 (2020), and would have affirmed the portion of the trial court’s order that imposed SBM during the period of time when the defendant is on post-release supervision, while still reversing the imposition of SBM beyond that period.

The defendant was convicted at trial of numerous sex offenses against minor children, including statutory sex offense, sexual activity by substitute parent, and sale of controlled substances to minors in Cleveland County. He was sentenced to a minimum of 600 months and ordered to enroll in satellite-based monitoring (“SBM”) for life upon release based on the convictions relating to one victim, with an additional 10 year term of SBM for the other victim. The defendant properly appealed his convictions but failed to give notice of appeal of the SBM orders. In its discretion, the Court of Appeals granted his petition for writ of certiorari to review that issue.

(1) A therapist for one of the minor victims testified as an expert in childhood and teen trauma for the State at trial. She testified that the child had post-traumatic stress disorder (“PTSD”) and major depression and relayed to the jury disclosures by the victim of instances of sexual abuse by the defendant. This testimony was offered for corroborative purposes. The defendant did not object, and no limiting instruction about the testimony was given to the jury. The court therefore reviewed for plain error only. The North Carolina Supreme Court has held that it is improper to admit evidence of a PTSD diagnosis for substantive purposes. See State v. Hall, 330 N.C. 808, 821 (1992). However, such testimony may be admitted to corroborate substantive evidence, to rebut defense evidence of consent, or to explain why disclosure of the crime was delayed. When such evidence is admitted, the trial court should provide a limiting instruction to the jury regarding the use of the testimony. Failure to give the limiting instruction is not error, however, if the defendant fails to request one. Here, the testimony was properly admitted for corroborative purposes. Further, “even if a limiting instruction were required in the absence of a specific request by defendant, defendant was not prejudiced by the omission such that it would amount to fundamental error.” Thompson Slip op. at 8. There was therefore no plain error in the admission of the therapist’s diagnosis of PTSD.

(2) The defendant failed to raise a Fourth Amendment objection during the SBM hearing. However, because the State raised the constitutional issue and it was considered by the trial court in its ruling, the issue was preserved for appellate review. (2a) Here, the defendant’s enrollment in SBM would not occur until at least the expiration of his minimum term of imprisonment, at least 50 years from the time of judgment. As in State v. Gordon, 840 S.E.2d 907 (2020), “it is therefore difficult to assess the reasonableness of subjecting him to SBM given the unknown future circumstances of the program.” Thompson Slip op. at 16. Finding that the State failed to meet its burden to show that the lifetime SBM search was reasonable under the Fourth Amendment, the trial court’s order of lifetime SBM was reversed.

(2b) The second SBM order requiring the defendant to enroll in SBM for a term of 10 years was proper. The evidence supported the finding that the offenses involved the sexual abuse of a minor child, and the trial court properly considered the relationship between the victim and defendant, the offenses, and the age of the victims. The defendant’s risk assessment indicated he was “low-risk,” but the trial judge was free to make its own determination of the defendant’s risk based on the totality of evidence, as it did here. Furthermore, “ten years is not ‘significantly burdensome and lengthy,’ especially given that the defendant will be subject to post-release supervision for half of that time period.” Id. at 20. The trial court committed a mere clerical error in failing to make a finding that the defendant required the highest possible level of supervision. This SBM order was therefore affirmed and remanded for correction of the clerical error.

Judge Berger concurred with the majority opinion as to the criminal judgment and concurred in result with the SBM portion of the opinion, joined by Judge Dietz. These judges would have found that the precedent by which the majority found the defendant’s Fourth Amendment challenge preserved (based on the State’s act of raising the constitutional issue) was inconsistent with the preservation requirements under the Rules of Appellate Procedure. However, given the uncertain and evolving nature of SBM case law in the State, as well as the fact that the SBM order here was issued before Gordon was decided, the concurring judges would have found that the defendant could not have preserved his constitutional arguments [and presumably would have found the issue preserved on that basis, rather than the precedent relied upon by the majority.]

In this rape and sex offense case, the Court of Appeals reversed the trial court’s order imposing lifetime SBM.  First addressing its appellate jurisdiction, the court explained that it allowed the defendant’s petition for writ of certiorari in its discretion, notwithstanding procedural defects in his notice of appeal, because of the “meritorious nature” of the defendant’s argument regarding SBM and the current “tumultuous” state of the law.  Before turning to the merits of the SBM issue, the court also dismissed a portion of the defendant’s appeal having to do with attorney’s fees because an order for those fees had not been entered as a civil judgment. 

As the defendant was not a recidivist and, consequently, the order requiring lifetime SBM was not facially unconstitutional under State v. Grady, 259 N.C. App. 664 (2018) (“Grady III”), the court conducted a reasonableness analysis guided by the principles of Grady III, namely that it is the State’s burden to show that under the totality of the circumstances lifetime SBM is reasonable because its intrusion upon Fourth Amendment interests is balanced by its promotion of legitimate government interests.  As to the intrusion side of the analysis, the court likened this case to State v. Gordon, ___ N.C. App. ___, 840 S.E.2d 907 (2020) where it explained that the State’s ability to show the reasonableness of lifetime SBM is hampered in situations where it is imposed at sentencing but will not be implemented upon the defendant until he or she is released after a lengthy prison sentence.  The court also noted the deeply intrusive nature of the ET-1 monitoring device at issue and the fact that the defendant’s privacy interests will be less diminished following his completion of PRS.  As to the State’s interest in SBM and its efficacy, the court rejected the State’s argument that SBM would discourage recidivism, saying that the State had not presented evidence to support that assertion, either generally or with respect to the defendant specifically.  The court also rejected the State’s argument that lifetime SBM would serve the purpose of keeping the defendant out of “exclusion zones,” noting that his status as a registered sex offender already barred him from many such zones and that his offense involved an adult roommate.  For a lack of evidence, the court also rejected the argument that lifetime SBM would ensure that he abided by an order to have no contact with the victim.  Under the totality of the circumstances, the State did not show that lifetime SBM was a reasonable warrantless search in this case.

The defendant pleaded guilty in 2017 to multiple sexual offenses and was sentenced to 190-288 months. After determining that the convictions qualified as “aggravated offenses” under G.S. 14-208.6(1A), the court conducted a satellite-based monitoring (SBM) hearing. Evidence at the hearing showed that the defendant had a moderate to low Static-99 score (indicating a lower likelihood of re-offending) and only one prior offense, but based on the facts of the underlying case and testimony from the state’s witness that the device was a relatively minor intrusion, the trial court ordered that he be monitored for life upon his release. The defendant appealed the order, arguing the state had failed to show that imposing monitoring on him was reasonable under the Fourth Amendment.

Based on prior decisions that culminated in Grady v. North Carolina, 575 U.S. 306 (2015) (“Grady I”) and State v. Grady, 817 S.E.2d 18 (N.C. App. 2018) (“Grady II”), the appellate court vacated the monitoring order in this case in an earlier opinion (820 S.E.2d 329) filed on September 4, 2018, finding that the state had failed to meet its burden of showing that monitoring this defendant would be a reasonable search 15 or 20 years in the future. The state sought discretionary review of that decision at the North Carolina Supreme Court, but after issuing its opinion in State v. Grady, 372 N.C. 509 (2019) (“Grady III”), the state supreme court remanded this matter back to the appellate court for reconsideration in light of that decision. Grady III applied the earlier rulings finding that SBM is a “search” under the Fourth Amendment, and then used a totality of the circumstances test to decide if the search was reasonable, balancing the defendant’s privacy interest against the legitimate government interest in tracking the defendant. Grady III concluded that SBM was unconstitutional as applied to any unsupervised person ordered to enroll in monitoring solely on the basis of being a recidivist offender, but left open the possibility that defendants placed on SBM for other reasons (such as commission of an aggravated offense) might be permissible.

Reconsidering the instant case in light of Grady III, the appellate court conducted a totality of the circumstances analysis and weighed the defendant’s Fourth Amendment and privacy rights against the legitimate government interest in preventing sexual assaults, and once again held that the state had failed to meet its burden of showing that lifetime SBM was a reasonable search of this defendant. Compared to the high degree of intrusion into the defendant’s privacy, the state could not forecast either the need or scope of such monitoring 15 or 20 years in the future, whether the defendant would be supervised or unsupervised at that time, or even whether the same technology would still be in use, and the state failed to demonstrate that the monitoring would achieve its stated goal of preventing future sexual assaults. The trial court’s order imposing lifetime SBM on the defendant was therefore reversed.

In State v. Grady, 372 N.C. 509 (2019), the North Carolina Supreme Court held that lifetime satellite- based monitoring (SBM) is unconstitutional as applied to any person who is ordered to enroll in SBM because he or she is a recidivist. The Court held that SBM in those circumstances constitutes an unreasonable search in violation of the Fourth Amendment. [Note: For a further discussion of the Grady decision, see Jamie Markham, Satellite-Based Monitoring Is Unconstitutional for All Unsupervised Recidivists (Sept. 12, 2019).] The Court of Appeals in this case considered the constitutionality of a 30- year SBM order against a person who was not a recidivist and not automatically subject to SBM. The defendant was convicted of first-degree sex offense with a child and was sentenced to 144 to 182 months in prison. On his release from prison in 2015, he was placed on a five-year term of post-release supervision. The State sought SBM under G.S. 14-208.40(a)(2), which allows a judge to impose SBM for a term of years against a person who has committed an offense involving the physical, mental, or sexual abuse of a minor. Following a hearing, the trial judge ordered the defendant to submit to SBM for 30 years. The defendant did not contest the imposition of SBM for the five-year period of post-release supervision but argued that the imposition of SBM for an additional 25 years was unconstitutional. Applying the reasoning of Grady, the Court of Appeals agreed. It found first that the imposition of SBM for 25 years, although less than the lifelong term at issue in Grady, constituted a significantly lengthy and burdensome warrantless search. It found further that the State did not meet its burden of showing SBM’s efficacy in meeting its professed aims, having failed to offer any evidence that SBM is effective in apprehending sex offenders, preventing new sex offenses, or otherwise protecting the public. The Court also found that the trial judge’s findings in imposing SBM in this case—that the defendant had betrayed the minor victim’s trust, had not completed a sex offender treatment program (SOAR) in prison, and had a moderate-low risk of reoffending based on the Static-99—did not support imposition of SBM. One judge concurred in the result only.

This case was before the Court of Appeals for reconsideration in light of State v. Grady, ___ N.C. ___, 831 S.E.2d 542 (2019). The court’s prior opinion is State v. Dravis, ___ N.C. App. ___, 817 S.E.2d 796 (2018) (unpublished).

The Court of Appeals again concluded that the findings of the trial court were not sufficient to support a conclusion that lifetime satellite-based monitoring (SBM) was a reasonable warrantless search. The court explained that the State did not provide sufficient evidence to show how the efficacy of SBM helped solve sex offense crimes. Thus, it reversed the trial court’s order imposing lifetime SBM.

State v. Anthony, ___ N.C. App. ___, 831 S.E.2d 905 2019-08-20 review granted, ___ N.C. ___, 835 S.E.2d 448 (Aug 30 2019)

The court reversed the trial court’s order requiring the defendant to submit to lifetime satellite-based monitoring (SBM) on the basis that it ordered an unreasonable search. Though the State mentioned statistics and studies related to the risk of recidivism posed by sex offenders in its argument, it did not present those studies to the trial court, and they were not subject to judicial notice under Rule 201. In addition, the State presented no evidence on the efficacy of SBM to reduce recidivism. 

Over a dissent in this SBM case, the court relied on State v. Griffin, ___ N.C. App. ___, 818 S.E.2d 336 (2018) to vacate the trial court’s imposition of lifetime satellite-based monitoring of the defendant.  Under Griffin, “trial courts cannot impose satellite-based monitoring unless the State presents actual evidence—such as ‘empirical or statistical reports’—establishing that lifetime satellite-based monitoring prevents recidivism.”  Here, the State did not produce the sort of evidence required by Griffin.  The court noted that Griffin and several related cases were pending in the North Carolina Supreme Court.  A dissenting judge criticized Griffin and would have held that imposition of lifetime SBM in this case was reasonable under the circumstances and thus was reasonable under the Fourth Amendment.

In a case where the defendant was convicted of taking indecent liberties with a child, the court held that the State failed to meet its burden of showing the reasonableness of the SBM program as applied to the defendant by failing to produce evidence concerning the efficacy of the program. It thus reversed the trial court’s order requiring lifetime SBM.

In this second-degree rape case, the trial court erred by ordering lifetime SBM where the State did not meet its burden of proving that SBM was a reasonable Fourth Amendment search. The United States Supreme Court has held that SBM is a search. Therefore, before subjecting a defendant to SBM, the trial court must first examine whether the monitoring program is reasonable. Here, the State failed to carry its burden of proving the SBM was a reasonable Fourth Amendment search where it failed to put on any evidence regarding reasonableness. The State will have only one opportunity to prove that SBM is a reasonable search. Here, because it failed to do so, the court reversed the trial court’s SBM order.

Citing prior case law, the court held that because the trial court failed to conduct a hearing to determine whether it would be constitutional to subject the defendant to SBM upon his release from a prison sentence for rape, the trial court’s order enrolling the defendant in SMB for life must be vacated and the matter remanded for a hearing. The court rejected the defendant’s argument that the appropriate remedy was to reverse without remanding for a hearing, noting that in this case no hearing whatsoever had been held on the matter.

State v. Gordon, ___ N.C. App. ___, 820 S.E.2d 339 2018-09-04 temp. stay granted, ___ N.C. ___, 818 S.E.2d 112 (Sep 21 2018)

The court vacated the trial court’s order requiring lifetime SBM, concluding that the State cannot establish, at this time, that the defendant’s submission to SBM will constitute a reasonable fourth amendment search when the defendant is eventually released from prison. After the defendant pleaded guilty to statutory rape and other charges, the trial court sentenced the defendant and ordered him to enroll in lifetime SBM upon his release from prison. At the SBM hearing, a probation and parole officer in the sex offender unit explained, among other things, how the SBM device currently in use operates. The defendant’s Static-99 score was moderate/low and the officer agreed that based on that score it was not likely that the defendant would commit another sex crime. On appeal the defendant argued that the trial court erred by ordering lifetime SBM because the State failed to meet its burden of proving that imposing SBM was reasonable under the fourth amendment. The court agreed. Because enrollment in the SBM program constitutes a fourth amendment search, the reasonableness of the search must be assessed to determine its constitutionality. The court viewed the SBM order as a general warrant. It explained:

The satellite-based monitoring program grants . . . expansive authority to State officials. State officials have the ability to access the details of a monitored defendant’s private life whenever they see fit. A defendant’s trip to a therapist, a church, or a family barbecue are revealed in the same manner as an unauthorized trip to an elementary school. At no point are officials required to proffer a suspicion or exigency upon which their searches are based or to submit to judicial oversight. Rather, the extent of the State’s ability to rummage through a defendant’s private life are left largely to the searching official’s discretion, constrained only by his or her will.

The court noted that it “will not exhibit a more generous faith in our government’s benign use of general warrants than did the Founders,” and concluded that “Given the unlimited and unfettered discretion afforded to State officials with the satellite-based monitoring system, the State’s burden of establishing that the use of satellite-based monitoring will comply with the Fourth Amendment’s demand that all searches be ‘reasonable’ is especially weighty.”

            Here, the State failed to meet its burden of showing that SBM of the defendant will be reasonable. Specifically, the State did not establish the circumstances necessary for the court to determine the reasonableness of a search 15 to 20 years before its execution. The general balancing approach ordinarily involves examination of the circumstances existing at the time of the search, including the nature of the privacy interest upon which the search intrudes; the character of the intrusion itself and the information it discloses; as well as the nature and immediacy of the government concerns at issue and the efficacy of the means for meeting it. In prior decisions the court was able to determine the reasonableness of SBM orders because the defendants had already become subject to the monitoring at the time of the court’s decisions. Thus, the court could examine the totality of the circumstances to determine the reasonableness of the search. Here, there is a lack of knowledge concerning the future circumstances relevant to the analysis. For example, the court explained, we do not yet know the extent of the invasion that the search will entail when the SBM eventually is implemented on the defendant. The State focuses on the limited impact of the monitoring device itself, but provides no indication that the monitoring device currently in use will be similar to that which may be used 15 to 20 years in the future. Additionally, the State has been unable to adequately establish the government’s need to conduct the search. Among other things, the State’s evidence “falls short of demonstrating what Defendant’s threat of recidivating will be after having been incarcerated for roughly [15] years.” The only individualized measure of the defendant’s risk of reoffending was the Static-99, which the State’s witness characterized as indicating that the defendant was not likely to recidivate. The court concluded:

Without reference to the relevant circumstances that must be considered, the State has not met its burden of establishing that it would otherwise be reasonable to grant authorities unlimited discretion in searching—or “obtaining”—Defendant’s location information upon his release from prison. Authorizing the State to conduct a search of this magnitude fifteen to twenty years in the future based solely upon scant references to present circumstances would defeat the Fourth Amendment’s requirement of circumstantial reasonableness altogether. (citation omitted).

         The court vacated the trial court’s order and remanded with instructions for the trial court to dismiss the State’s application for SBM monitoring without prejudice to the State’s ability to reapply.

State v. Griffin, ___ N.C. App. ___, 818 S.E.2d 336 2018-08-07 temp. stay granted, ___ N.C. ___, 817 S.E.2d 210 (Aug 24 2018)

Following State v. Grady, __ N.C. App. __, __ S.E.2d __ (May 15, 2018), the court held, over a dissent, that absent any evidence that SBM is effective to protect the public from sex offenders, the trial court erred by imposing SBM for 30 years. The defendant proffered an Alford plea to first-degree sex offense with a child. The defendant was sentenced and released from prison. Eleven years later, he was subjected to a “bring-back” hearing to determine whether he would be required to participate in SBM. At that hearing, the trial court ordered the defendant to enroll in SBM for 30 years. The defendant appealed, arguing that the trial court violated his fourth amendment rights by ordering him to submit to SBM for 30 years. The court agreed. Grady held that absent evidence that SBM is effective in serving the State’s compelling interest in protecting the public from sex offenders, the State fails to meet its burden to prove that SBM is reasonable as required by the fourth amendment. Here, as in Grady, the State presented no evidence regarding the efficacy of the SBM program. Having found that the State failed to prove that SBM is a reasonable search compliant with the fourth amendment because it presented no evidence that the program is effective to serve the State’s interest in protecting the public against sex offenders, the court declined to reach the issue of whether the trial court’s order or the State’s evidence regarding the defendant’s individual threat of reoffending meets minimum constitutional standards.

The defendant failed to preserve the claim that the trial court erred by ordering him to enroll in SBM without conducting a Grady hearing to determine whether the monitoring was reasonable under the Fourth Amendment. After a jury convicted the defendant of taking indecent liberties with his daughter, the trial court ordered him to enroll in SBM for 30 years. The defendant did not challenge the trial court’s imposition of SBM on constitutional grounds at the hearing. Immediately after the sentence and SBM was imposed, the defendant entered a plea to two additional counts of indecent liberties with a child, evidence of which was uncovered during investigation with respect to his daughter. The trial court sentenced the defendant, found he qualified as recidivist, and ordered him to enroll in SBM for life. The defendant did not challenge this new SBM order on constitutional grounds. Nor did he timely appeal either of the SBM orders. He later filed a petition for writ of certiorari, asking the Court of Appeals to review the SBM orders. The court concluded that the defendant’s claim suffered from two separate preservation issues. First the defendant did not make the Grady constitutional argument before the trial court. Second, he did not timely appeal the SBM orders. The court went on to decline to consider the merits of his claim. 

(1) The trial court erred by ordering lifetime registration for the defendant. Although the defendant was convicted of reportable convictions and is therefore required to register as a sex offender, neither sexual offense with a child under G.S. 14-27.4A(a) nor sexual activity by a substitute parent under G.S. 14-27.7(a) constitute aggravated offenses requiring lifetime registration. (2) The trial court erred by ordering lifetime SBM without a determination that the program was a reasonable search as mandated under Grady v. North Carolina, __ U.S. __, 191 L. Ed. 2d 459 (2015). The parties agreed that no evidence was presented to demonstrate the reasonableness of lifetime SBM. The court thus reversed the SBM order and remanded for the reasonableness determination mandated by Grady.

In this appeal from the trial court’s order imposing SBM, the court rejected the defendant’s argument that the state’s SBM laws are facially unconstitutional but remanded for a determination of the reasonableness of the imposition of SBM. Before the trial court, the defendant argued that imposition of SBM violated his fourth amendment rights under Grady v. North Carolina, 135 S. Ct. 1368 (2015). The trial court accepted the State’s argument that there was no need to address reasonableness under the fourth amendment because SBM was required by the applicable statute. On appeal, the State conceded that the trial court erred by imposing SBM without first considering whether it was reasonable, once the defendant raised the fourth amendment issue. The court thus vacated the SBM order and remanded.

(1) The court rejected the defendant’s argument that because SBM is a civil, regulatory scheme, it is subject to the Rules of Civil Procedure and that the trial court erred by failing to exercise discretion under Rule 62(d) to stay the SBM hearing. The court concluded that because Rule 62 applies to a stay of execution, it could not be used to stay the SBM hearing. (2) With respect to the defendant’s argument that SMB constitutes an unreasonable search and seizure, the trial court erred by failing to conduct the appropriate analysis. The trial court simply acknowledged that SBM constitutes a search and summarily concluded that the search was reasonable. As such it failed to determine, based on the totality of the circumstances, whether the search was reasonable. The court noted that on remand the State bears the burden of proving that the SBM search is reasonable.

The trial court erred by failing to conduct the appropriate analysis with respect to the defendant’s argument that SMB constitutes an unreasonable search and seizure. The trial court simply acknowledged that SBM constitutes a search and summarily concluded that the search was reasonable. As such it failed to determine, based on the totality of the circumstances, whether the search was reasonable. The court noted that on remand the State bears the burden of proving that the SBM search is reasonable.

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