State v. Strudwick, ___ N.C. ___, 2021-NCSC-127 (Oct. 29, 2021)

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.