in the Supreme Court on 28 August 2018.
pursuant to N.C. G.S. § 7A-30(2) from the decision of a
divided panel of the Court of Appeals, __ N.C.App. __, 813
S.E.2d 463 (2018), vacating an order for satellite-based
monitoring entered on 10 August 2016 by Judge Ebern T. Watson
III in Superior Court, New Hanover County.
H. Stein, Attorney General, by Teresa M. Postell, Assistant
Attorney General, for the State-appellant.
Adelle Jones for defendant-appellee.
merits, this case asks whether the trial court erred when it
failed to determine if the lifetime satellite-based
monitoring (SBM) imposed upon defendant constitutes a
reasonable search under the Fourth Amendment. Contrary to the
Court of Appeals' conclusion, however, defendant failed
to specifically object to the imposition of SBM on
constitutional grounds, thereby waiving his ability to raise
that issue on appeal. Nonetheless, where the State concedes
that the trial court committed error relating to a
substantial right, the Court of Appeals did not abuse its
discretion when it invoked Appellate Rule 2 to review the
unpreserved constitutional issue. Accordingly, we reverse in
part and affirm in part the decision of the Court of Appeals.
August 2016, defendant Joseph Charles Bursell pled guilty to
statutory rape and taking indecent liberties with a minor. At
the sentencing hearing, the State requested that the court
find that defendant committed an aggravated, sexually violent
offense and order lifetime registration as a sex offender and
lifetime SBM. Defendant's counsel objected to the
State's request concerning the imposition of lifetime sex
offender registration and lifetime SBM:
[Defense Counsel]: . . . I would object on two grounds. I
know the status of the law is pretty clear as to the [sex
offenders] register, but for purposes of preserving any
record if that were to change, I would submit that it is
insufficient under Fourth Amendment grounds and due process
grounds to place him on the registry in its entirety.
Alternatively, that the lifetime requirement be a little
excessive in this case and would ask you to alternatively
consider putting him on the 30-year list.
As to satellite-based monitoring, I think the Court needs to
hear some additional evidence other than the [recitation] of
the facts from the attorney or from the district attorney as
to satellite-based monitoring. And since that evidentiary
issue has not been resolved, there [aren't] any
statements from the victim or otherwise from law enforcement
that you ought not to order satellite-based monitoring in
this case, and that the registry alternative would satisfy
those concerns. And we leave it at that, your Honor.
trial court responded:
All noted exceptions made on the record by [defense counsel]
on behalf of the defendant as to his constitutional standing,
as to the standing of the current law, and as to the future
references in implication that you have made in your
arguments. All those are noted for the record. All of those
at this point in time are taken under consideration by the
trial court sentenced defendant to 192 to 291 months of
imprisonment. Finding that he had committed an aggravated,
sexually violent offense, the court further ordered defendant
to register as a sex offender for life and enroll in SBM for
life upon his release from prison unless monitoring is
terminated under N.C. G.S. § 14-208.43. Defendant
appealed from the trial court's order regarding the
registry and SBM.
the Court of Appeals, defendant argued that the trial court
improperly imposed lifetime SBM because it failed to
determine whether the monitoring effectuated a reasonable
search under the Fourth Amendment. See Grady v. North
Carolina, __ U.S. __, 135 S.Ct. 1368, 191 L.Ed.2d 459
(2015) (per curiam) (holding that the State's SBM program
"effects a Fourth Amendment search" that implicates
the privacy expectations of the defendant and therefore must
be reasonable to withstand constitutional scrutiny). The
State asserted that defendant failed to preserve this Fourth
Amendment challenge below, thereby waiving his ability to
challenge the issue on appeal. The State noted, however, that
if defendant properly preserved this argument, it would
concede that the SBM order should be vacated and remanded for
a determination of reasonableness consistent with
divided decision, the Court of Appeals concluded that
defendant had properly preserved the issue of whether his SBM
was reasonable under the Fourth Amendment. State v.
Bursell, __ N.C.App. __, __, 813 S.E.2d 463, 468 (2018).
Alternatively, the Court of Appeals majority determined that
"[a]ssuming, arguendo, this objection was
inadequate to preserve a constitutional Grady
challenge for appellate review, in our discretion we would
invoke Rule 2 to relax Rule 10's issue-preservation
requirement and review its merits." Id. at __,
813 S.E.2d at 466-67. As a result, the Court of Appeals
vacated the SBM order "without prejudice to the
State's ability to file a subsequent SBM
application." Id. at __, 813 S.E.2d at 468. The
dissent argued that defendant failed to properly preserve the
constitutional issue for appeal and further ...