in the Court of Appeals 6 September 2017.
by defendant from order entered 14 November 2016 by Judge
Jeffery B. Foster in Pitt County No. 14 CRS 55014-15 Superior
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Joseph Finarelli, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender James R. Grant, for defendant-appellant.
appeals the Satellite-Based Monitoring Order entered after
his Alford plea to two counts of taking indecent
liberties with a child. Defendant argues on appeal that the
trial court erred in ordering lifetime satellite-based
monitoring in the absence of evidence from the State that
this was a reasonable search of defendant. We agree, and
conclude that this matter must be reversed.
Linwood Earl Greene (defendant) was indicted on 27 October
2014 and on 14 July 2015 for sex offense with a 13, 14, or
15-year old child. On 15 August 2016, defendant entered an
Alford plea before the Honorable Walter H. Godwin,
Jr. to two counts of taking indecent liberties with a child.
Judge Godwin then entered an order sentencing defendant to an
active term of twenty-six to forty-one months'
imprisonment and requiring that defendant register as a sex
offender for the remainder of his natural life. No order
regarding satellite-based monitoring was entered on that day.
November 2016, a satellite-based monitoring determination
hearing was held upon the State's application before the
Honorable Jeffery B. Foster. Defendant filed a Motion to
Dismiss the State's Application for Satellite-Based
Monitoring prior to the hearing. At the satellite-based
monitoring hearing, the State put forth evidence establishing
that defendant had a prior conviction of misdemeanor sexual
battery, in addition to his conviction on 15 August 2016 of
two counts of taking indecent liberties with a child. The
State offered no further evidence beyond defendant's
trial court heard arguments from both parties. Referencing
his motion to dismiss, defendant challenged the
constitutionality of the lifetime satellite-based monitoring
enrollment by citing Grady v. North Carolina,
State v. Blue, and State v. Morris,
positing that the State had not met its burden of
establishing, under a totality of the circumstances, the
reasonableness of the satellite-based monitoring program in
light of both the State's interests and defendant's
privacy interests. The trial court denied defendant's
motion to dismiss, reasoning "that based on the fact
that this is the second conviction that . . . defendant has
accumulated of a sexual nature, . . . his privacy interests
are outweighed by the State's interest in protecting
future victims." Judge Foster then ordered that
defendant be enrolled in the satellite-based monitoring
program for the remainder of his natural life.
appeal, defendant argues that the trial court erred in
ordering lifetime satellite-based monitoring because the
State's evidence was insufficient to establish that the
enrollment constituted a reasonable Fourth Amendment search
under Grady v. North Carolina, State v.
Blue, and State v. Morris. The State has
conceded this point. However, the State contends that it
should have a chance to supplement its evidence, upon remand
from this Court, in order to support the finding that
enrolling defendant in lifetime satellite-based monitoring is
a reasonable Fourth Amendment search. Defendant argues that
this Court should reverse without remand. Accordingly, the
only issue before us involves the appropriate remedy.
United States Supreme Court has held that North
Carolina's satellite-based monitoring program constitutes
a search for purposes of the Fourth Amendment. Grady v.
North Carolina, 575 U.S.,, 191 L.Ed.2d 459, 462, (2015).
As such, North Carolina courts must first "examine
whether the State's monitoring program is reasonable-when
properly viewed as a search"-before subjecting a
defendant to its enrollment. Id. at, 191 L.Ed.2d at
463. This reasonableness inquiry requires the court to
analyze the "totality of the circumstances, including
the nature and purpose of the search and the extent to which
the search intrudes upon reasonable privacy
expectations." Id. at, 191 L.Ed.2d at 462.
These satellite-based monitoring proceedings, while seemingly
criminal in nature, are instead characterized as "civil
regulatory" proceedings. State v. Brooks, 204
N.C.App. 193, 194, 693 S.E.2d 204, 206 (2010).
the fact that satellite-based monitoring proceedings are
civil proceedings, the State argues that the civil bench
proceeding standard, pursuant to which "[a] dismissal
under Rule 41(b) should be granted if the plaintiff has shown
no right to relief[, ]"-is inapplicable here. Hill
v. Lassiter, 135 N.C.App. 515, 517, 520 S.E.2d 797, 800
(1999). In so arguing, the State reasons that in
satellite-based monitoring proceedings, the State is not
specifically referred to as "the plaintiff." This
reasoning is far too technical and detracts from the true
substance of satellite-based monitoring proceedings. Viewed