State v. Gordon, ___ N.C. App. ___, ___ S.E.2d ___ (Mar. 17, 2020)

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.

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