in the Court of Appeals 10 April 2019.
by Defendant from order entered 7 February 2018 by Judge
Joseph Crosswhite in Iredell County No. 17CRS51248 Superior
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Sonya Calloway-Durham, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Wyatt Orsbon, for the Defendant.
Kevin James Gambrell appeals from an order requiring him to
submit to satellite-based monitoring ("SBM") for
the rest of his natural life.
was charged with and pleaded guilty to taking indecent
liberties with a child. Defendant was sentenced in the
presumptive range. The State also sought to have Defendant
register as a sex-offender and to enroll in SBM. Defendant
motioned to dismiss the State's petition for SBM and to
declare such program unconstitutional. The trial court denied
Defendant's motion to dismiss and, in turn, ordered him
to submit to SBM for the rest of his natural life. Defendant
appeal, Defendant argues that the State's SBM program is
both unreasonable as applied to him and facially
unconstitutional. We review a trial court's determination
that SBM is reasonable de novo. State v.
Bare, 197 N.C.App. 461, 464, 677 S.E.2d 518, 522 (2009),
disc. review denied, 364 N.C. 436, 702 S.E.2d 492 (2010). We
also review alleged constitutional violations de
novo. Piedmont Triad Airport Auth. v. Urbine,
354 N.C. 336, 338, 554 S.E.2d 331, 332 (2001).
United States Supreme Court has determined that the
monitoring of an individual under North Carolina's SBM
program constitutes a continuous warrantless search of that
individual. Grady v. North Carolina, __ U.S. __, __,
135 S.Ct. 1368, 1371 (2015). That Court did not state that
monitoring an individual under the program was per
se unconstitutional, recognizing that "the Fourth
Amendment prohibits only unreasonable
searches." Id. (emphasis in original). Rather,
that Court stated that whether the enrollment of a particular
individual for monitoring under the program constitutes a
reasonable search "depends on 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. (emphasis
"totality of the circumstances" calculus includes
whether the sexual offender poses a threat to reoffend. The
calculus also includes whether an SBM search would be
effective in furthering the State interest in deterring the
offender from reoffending. See State v. Bowditch,
364 N.C. 335, 351, 700 S.E.2d 1, 12 (2010) ("The SBM
program is concerned with protecting the public against
recidivist tendencies of convicted sex offenders.").
present case, Defendant motioned to dismiss the State's
petition to enroll him in SBM. A hearing was held on
Defendant's motion. At the hearing, the only evidence
presented by the State was testimony from a probation officer
regarding Defendant's criminal record and the logistics
and procedure of SBM, namely that SBM would track the
movement of Defendant. While Defendant's status as a
recidivist was not disputed, Defendant argued that the State
failed to meet its burden to show that SBM was a reasonable
method to reduce recidivism in his case.
preventing recidivism among sex offenders is a government
interest. And while SBM is not 100% reliable to prevent
recidivism, it certainly acts as a deterrent to further
criminal conduct. See Bowditch, 364 N.C. at 351, 700
S.E.2d at 12 (acknowledging that the SBM program does not
prevent crime but does act as a deterrent); Bare,
197 N.C.App. at 476, 677 S.E.2d at 519 (stating that
"SBM could have a deterrent effect. Presumably, sex
offenders would be less ...