State v. Gordon, ___ N.C. App. ___, 820 S.E.2d 339 (Sept. 4, 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.