State v. Griffin, ___ N.C. App. ___, ___ S.E.2d ___ (Feb. 18, 2020)

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.