in the Supreme Court on 8 January 2019.
pursuant to N.C. G.S. § 7A-30(2) from the decision of a
divided panel of the Court of Appeals, 817 S.E.2d 18 ( N.C.
Ct. App. 2018), reversing an order for satellite-based
monitoring entered on 26 August 2016 by Judge Phyllis M.
Gorham in Superior Court, New Hanover County.
H. Stein, Attorney General, by Teresa M. Postell, Assistant
Attorney General, and Joseph Finarelli, Special Deputy
Attorney General, for the State-appellant.
Gerding, Appellate Defender, and Lewis Everett for
Christopher Brook for American Civil Liberties Union of North
Carolina Legal Foundation; and Nathan Freed Wessler, pro hac
vice, and Brandon J. Buskey, pro hac vice, for American Civil
Liberties Union Foundation, amici curiae.
Fourth Amendment protects "[t]he right of the people to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures" by the
government. U.S. Const. amend. IV. The United States Supreme
Court has determined that North Carolina's
satellite-based monitoring (SBM) of sex offenders, which
involves attaching an ankle monitor "to a person's
body, without consent, for the purpose of tracking that
individual's movements," constitutes a search within
the meaning of the Fourth Amendment. Grady v. North
Carolina, 135 S.Ct. 1368, 1370 (2015) (per curiam). The
Supreme Court remanded the case for an examination of
"whether the State's monitoring program is
reasonable-when properly viewed as a search."
Id. at 1371. In its per curiam opinion, the Supreme
Court noted, among other things, the following:
The State's program is plainly designed to obtain
information. And since it does so by physically intruding on
a subject's body, it effects a Fourth Amendment search.
That conclusion, however, does not decide the ultimate
question of the program's constitutionality. The Fourth
Amendment prohibits only unreasonable searches. The
reasonableness of a 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. See, e.g., Samson v.
California, 547 U.S. 843 (2006) (suspicionless search of
parolee was reasonable); Vernonia School Dist. 47J v.
Acton, 515 U.S. 646 (1995) (random drug testing of
student athletes was reasonable). The North Carolina courts
did not examine whether the State's monitoring program is
reasonable-when properly viewed as a search-and we will not
do so in the first instance.
Id. (citations omitted). In accordance with this
decision, this case was ultimately remanded to the superior
court, which entered an order determining the SBM program to
be constitutional. The Court of Appeals reversed, but only as
to Mr. Grady individually. We conclude that the Court of
Appeals erroneously limited its holding to the
constitutionality of the program as applied only to Mr.
Grady, when our analysis of the reasonableness of the search
applies equally to anyone in Mr. Grady's circumstances.
Cf. Graham v. Florida, 560 U.S. 48, 82 (2010)
(holding that state statutes mandating a sentence of life
imprisonment without the possibility of parole are
unconstitutional as applied to a specific group, namely
juveniles who did not commit homicide).
North Carolina, "SBM's enrollment population
consists of (1) offenders on parole or probation who are
subject to State supervision, (2) unsupervised offenders who
remain under SBM by court order for a designated number of
months or years, and (3) unsupervised offenders subject to
SBM for life, who are also known as 'lifetime
trackers.'" State v. Bowditch, 364 N.C.
335, 338, 700 S.E.2d 1, 3 (2010). Mr. Grady is in the third
of these categories in that he is subject to SBM for life and
is unsupervised by the State through probation, parole, or
post-release supervision. Additionally, Mr. Grady is a
"recidivist," which makes lifetime SBM mandatory as
to him without any individualized determination of the
reasonableness of this search. Because we conclude that the
relevant portions of N.C. G.S. §§ 14-208.40A(c) and
14-208.40B(c) are unconstitutional as applied to all
individuals who, like Mr. Grady, are in the third
Bowditch category and who are subject to mandatory
lifetime SBM based solely on their status as a
"recidivist," we modify and affirm the opinion of
the Court of Appeals.
Grady is required by North Carolina statute to enroll in the
SBM program and to wear an ankle monitor at all times for the
remainder of his life based on two sex crimes that he
committed when he was seventeen and twenty-six years old and
for which he has fully served his criminal sentences.
State v. Grady, 817 S.E.2d 18 ( N.C. Ct. App. 2018).
On 13 September 2006, Grady pleaded guilty to indecent
liberties with a child and was sentenced to a minimum of
thirty-one and a maximum of thirty-eight months of
imprisonment. For felony sentencing purposes, Grady
stipulated to the aggravating factor that the
fifteen-year-old victim was impregnated as a result of his
crime, which occurred when he was twenty-six years old. He
also stipulated to certain prior convictions, including a 16
January 1997 plea of no contest to a second-degree sex
offense committed when he was seventeen years old and a 6
January 2004 plea of guilty to failure to register as a sex
offender. Grady was unconditionally released from prison on
25 January 2009 and received certification that his rights of
citizenship were "BY LAW AUTOMATICALLY RESTORED."
year later, on 12 March 2010, the North Carolina Department
of Correction (DOC) sent a letter to Grady informing him that
it had made an initial determination that he met the
statutory criteria of a "recidivist," which would
require his enrollment in the SBM program, and giving him
notice to appear at a hearing at which the court would
determine his eligibility for SBM. Before a hearing was held,
he pleaded guilty on 27 October 2010 to failure to maintain
his address with the sex offender registry and was sentenced
to twenty-four to twenty-nine months in prison. He served
that term of imprisonment and was again unconditionally
released on 24 August 2012. A new hearing was scheduled for
14 May 2013 in the Superior Court in New Hanover County to
determine if Grady should be required to enroll in the
State's SBM program.
Carolina's SBM Program
Carolina's SBM program for sex offenders became effective
on 1 January 2007 as a result of the ratification of "An
Act To Protect North Carolina's Children/Sex Offender Law
Changes," which directed the DOC to "establish a
sex offender monitoring program that uses a continuous
satellite-based monitoring system . . . . to monitor"
the locations of certain categories of sex offenders. An Act
To Protect North Carolina's Children/Sex Offender Law
Changes, ch. 247, sec. 15, 2005 N.C. Sess. Laws (Reg. Sess.
2006) 1065, 1074-79 (codified as amended at N.C. G.S.
§§ 14-208.40 to -208.45 (2017 & Supp. 1 2018));
see also Bowditch, 364 N.C. at 337, 700 S.E.2d at 3
("As authorized by the legislation, DOC established and
began administering the SBM program on 1 January
2007."). The General Assembly mandated that the
"[SBM] program shall use a system that provides . . .
[t]ime-correlated and continuous tracking of the geographic
location of the subject using a global positioning system
based on satellite and other location tracking
technology." Ch. 247, sec. 15. (a), 2005 N.C. Sess. Laws
(Reg. Sess. 2006) at 1075 (codified as amended at N.C. G.S.
general terms, North Carolina's statutory framework for
the satellite-based monitoring of convicted sex offenders
establishes that an offender who is (a) classified as a
sexually violent predator, (b) a recidivist, (c) convicted of
an aggravated offense, or (d) an adult convicted of statutory
rape of a child or statutory sex offense with a victim under
the age of thirteen must submit to SBM for life. See
N.C. G.S. §§ 14-208.40A(c), -208.40B(c) (2017). The
statutes provide for no individualized assessment of the
offender; the court has no discretion over whether to impose
SBM or for how long; and no court has the authority to
terminate SBM for these individuals. Id. All other
sex offenders may be ordered to submit to SBM if, based on a
risk assessment, the offender "requires the highest
possible level of supervision and monitoring."
Id. §§ 14-208.40A(d)-(e), -208.40B(c)
(2017). For these individuals the court specifies the period
of time that the offender must be enrolled in the SBM
program. Id. §§ 14-208.40A(e),
14-208.6(2b) of the North Carolina General Statutes defines a
"recidivist" as "[a] person who has a prior
conviction for an offense that is described in G.S.
14-208.6(4)," which, in turn, defines a "reportable
conviction." N.C. G.S. § 14-208.6(2b) (Supp. 1
2018). "Reportable convictions," which encompass a
range of statutorily defined sex crimes, including "[a]
final conviction for an offense against a minor,"
"a sexually violent offense," "or an attempt
to commit any of those offenses," id. §
14-208.6(4)(a) (Supp. 1 2018), are final convictions that
trigger the registration requirements of the "statewide
sex offender registry." See id. §
14-208.7(a) (2017) (stating that "[a] person who is a
State resident and who has a reportable conviction shall be
required to maintain registration with the sheriff of the
county where the person resides"). An individual who has
a prior conviction for a reportable offense, and therefore
meets the statutory definition of a "recidivist,"
must maintain registration with the sex offender registry for
life. Id. § 14-208.23 (2017).
individual who is subjected to lifetime SBM may file a
request with the Post-Release Supervision and Parole
Commission to terminate the SBM requirement. Such a request,
however, cannot be filed until at least one year after the
individual: "(i) has served his or her sentence for the
offense for which the satellite-based monitoring requirement
was imposed, and (ii) has also completed any period of
probation, parole, or post-release supervision imposed as
part of the sentence." Id. § 14-208.43(a)
(2017). If the individual has not been convicted of any
further reportable offenses and "has substantially
complied with the provisions of this Article ["Sex
Offender and Public Protection Registration Programs"],
the Commission may terminate the monitoring requirement if
the Commission finds that the person is not likely to pose a
threat to the safety of others." Id. §
14-208.43(b) (2017). An individual enrolled in the SBM
program "shall cooperate with the Division . . . and the
requirements of the [SBM] program." Id. §
14-208.42 (2017). Moreover, the Division
shall have the authority to have contact with the offender at
the offender's residence or to require the offender to
appear at a specific location as needed for the purpose of
enrollment, to receive monitoring equipment, to have
equipment examined or maintained, and for any other purpose
necessary to complete the requirements of the [SBM] program.
Id. An individual who "fails to enroll" or
"tampers with, removes, vandalizes, or otherwise
interferes with the proper functioning of a [monitoring]
device" is guilty of a felony, and it is a Class 1
misdemeanor for an individual to "fail[ ] to provide
necessary information . . . or fail[ ] to cooperate with the
. . . guidelines and regulations for the program." N.C.
G.S. § 14-208.44(a)-(c) (2017); see also id.
§ 14-208.44(d) (2017) ("For purposes of this
section, 'enroll' shall include appearing, as
directed . . . to receive the necessary equipment.").
individual is convicted of a reportable conviction and a
court has made no prior SBM determination, as was the case
with Grady, the Division of Adult Correction and Juvenile
Justice (the Division) is required to make an initial
determination whether the individual is required to enroll in
SBM, and, if so, to schedule a "bring back" hearing
for a court to determine by using the same criteria described
above whether the offender must enroll in SBM. Id.
nearly every state uses SBM to some degree. See
Avlana Eisenberg, Mass Monitoring, 90 S. Cal. L.
Rev. 123, 125 (2017). Only twelve states, however, allow
lifetime monitoring,  and of those, only two, North Carolina and
California, mandate lifetime monitoring without any
individualized assessment of risk, even for individuals who
have completed their sentences, and without meaningful
judicial review over time. See Cal. Penal Code
§ 3004(b) (West 2016); N.C. G.S. §§
14-208-40A, -208.40B, -208.43. Some states provide for both
individualized assessments to determine if lifetime SBM is
appropriate and the opportunity to petition a court to be
removed from SBM. See, e.g., La. Rev. Stat. Ann.
§ 15:560.5 (2016); Wis.Stat. § 301.48
(2016). Other states only apply lifetime SBM to
offenders who are subject to lifetime parole supervision or
who otherwise would receive a sentence of life imprisonment.
See, e.g., Fla. Stat. § 948.012 (2016); Kan.
Stat. Ann. § 22-3717(u) (2016); Mo. Rev. Stat. §
217.735 (2016); Or. Rev. Stat. § 144.103 (2016); 11 R.I.
Gen. Laws § 11-37-8.2.1 (2016). Still other states
provide for individualized assessments and sentencing
discretion. See, e.g., Md. Code Ann., Crim. Proc.
§ 11-723 (LexisNexis 2016); People v. Kern, 288
Mich.App. 513, 794 N.W.2d 362 (2010) (per curiam) (holding
that defendants put on probation or sent to a local jail as
opposed to the penitentiary are not subject to lifetime SBM
under Michigan's statute so that the defendant, who was
convicted of second-degree criminal sexual conduct, was,
because of his jail sentence, not subject to Michigan's
lifetime SBM program, citing Mich. Comp. Laws §§
750.520, 791.285). Finally, several states give offenders the
opportunity to petition a court to have the SBM requirement
lifted. See, e.g., Mo. Rev. Stat. § 217.735(5)
(2016); S.C. Code Ann. § 23-3-540(H) (Supp. 2018).
Another characteristic of most of the other eleven state
lifetime SBM programs is that, compared with North
Carolina's program, they apply to persons convicted of a
smaller category of offenses, which typically include only
the most egregious crimes involving child victims. As a
result, North Carolina makes more extensive use of lifetime
SBM than virtually any other jurisdiction in the country.
to the 14 May 2013 bring back hearing, Grady filed a motion
to deny the State's SBM application and to dismiss the
proceeding, in which he argued, inter alia, that
"the imposition of the monitoring upon Defendant
violates his rights to be free from unreasonable search and
seizure as guaranteed by the Fourth Amendment of the United
States Constitution and Article I, Section 20 of the North
Carolina Constitution." At the hearing, the State argued
that, based on the evidence of Grady's conviction for
taking indecent liberties with a child and his prior
conviction for second-degree sex offense, he met the
statutory definition of being a "recidivist"-that
is, a person who has a prior conviction for a reportable
offense. N.C. G.S. § 14-208.6(2b). Grady conceded that
he qualified as a recidivist under the statute but argued,
inter alia, that "the imposition of the GPS
monitoring device itself and the 24/7 tracking"
constitute an unreasonable search and seizure under both the
state and federal constitutions, and the statute subjecting
him to SBM is "unconstitutional on its face, and as it
applies to Mr. Grady." The trial court denied
Grady's motion, finding that the SBM program is not
unconstitutional. The trial court further found that Grady
met the statutory definition of "recidivist" and,
accordingly, ordered him to enroll in the SBM program
"for the remainder of the defendant's natural
life." Grady appealed the trial court's order
imposing lifetime SBM to the Court of Appeals.
Court of Appeals, Grady argued that" 'the constant
GPS monitoring (and the imposition of the GPS equipment for
that purpose)' used in SBM violates his constitutional
protections against unreasonable searches and seizures,"
State v. Grady, 233 N.C.App. 788, 759 S.E.2d 712,
2014 WL 1791246, at *1 (2014) (unpublished), relying on the
United States Supreme Court's decision in United
States v. Jones, 565 U.S. 400, 404 (2012) ("We hold
that the Government's installation of a GPS device on a
target's vehicle, and its use of that device to monitor
the vehicle's movements, constitutes a
'search.'" (footnote omitted)). The Court of
Appeals, in an unpublished opinion, determined that it was
bound by the decision of a prior panel that had
"considered and rejected the argument that 'if
affixing a GPS to an individual's vehicle constitutes a
search of the individual, then the arguably more intrusive
act of affixing an ankle bracelet to an individual must
constitute a search of the individual as well.'"
Grady, 2014 WL 1791246, at *2 (quoting State v.
Jones, 231 N.C.App. 123, 127, 750 S.E.2d 883, 886
(2013)). After this Court dismissed defendant's appeal
and denied his petition for discretionary review, State
v. Grady, 367 N.C. 523, 762 S.E.2d 460 (2014), the
United States Supreme Court granted his petition for writ of
certiorari, Grady, 135 S.Ct. at 1371.
per curiam opinion, the Supreme Court stated that the Court
of Appeals' determination that North Carolina's
"system of nonconsensual satellite-based monitoring does
not entail a search within the meaning of the Fourth
Amendment" is "inconsistent with [the] Court's
precedents." Id. at 1370; see Jones,
565 U.S. at 406 n.3 ("Where, as here, the Government
obtains information by physically intruding on a
constitutionally protected area, . . . a search has
undoubtedly occurred."); see also Florida v.
Jardines, 569 U.S. 1, 11 (2013) (reaffirming that a
search occurs "when the government gains evidence by
physically intruding on constitutionally protected
areas" (citing Jones, 565 U.S. at 409)). The
Court opined that, in light of its previous decisions,
"it follows that a State also conducts a search when it
attaches a device to a person's body, without consent,
for the purpose of tracking that individual's
movements." Grady, 135 S.Ct. at 1370. The Court
noted, however, that this conclusion did not end the
analysis, because a search must be unreasonable in order to
be unconstitutional. Id. at 1371. Accordingly, the
Court granted defendant's petition for writ of
certiorari, vacated the Court of Appeals' decision, and
"remanded for further proceedings not inconsistent with
this opinion." Id.
June 2015, this Court issued an order remanding the matter to
the Court of Appeals for reconsideration in light of the
decision of the United States Supreme Court. On 23 October
2015, defendant filed in the Court of Appeals a "Motion
to Remand to Superior Court and to Stay the Order Imposing
[SBM]." The Court of Appeals issued an order on 6
November 2015 granting defendant's motion to remand the
case to superior court while denying his motion to stay SBM.
June 2016, the Superior Court in New Hanover County held a
remand hearing to determine whether subjecting defendant to
nonconsensual lifetime SBM constitutes a reasonable search
under the Fourth Amendment. At the hearing, the State
presented evidence, including: a certified copy of the
judgment and commitment for defendant's prior conviction
for second-degree sex offense; defendant's criminal
record; printouts of N.C. G.S. §§ 14-208.5 (stating
the "Purpose" of Article 27A) and 14-208.43
("Request for termination of satellite-based monitoring
requirement"); and two photographs of the equipment
currently used in the program: the ExacuTrack One ankle
monitor (or ET-1) and its accompanying "beacon"-a
device that must be placed in the home of the individual
subjected to SBM.
on the other hand, presented evidence that included
statistical reports tending to show that sex offenders are
less likely to reoffend than other categories of convicted
felons and that the vast majority of sex offenses are
committed against victims who know their offender,
statistical information about individuals currently enrolled
in the State's SBM program, the Policy and Procedure
Manual from the Department of Community Corrections governing
"Technology and Monitoring Programs," including
SBM, the ET-1's instructional "client guide"
provided to monitored individuals, the Division's
"Guidelines and Regulations" form that is required
to be signed by monitored individuals, and an excerpt from
the Division's "Train the Trainer" SBM training
only witness called by the State was Scott Pace, a probation
supervisor in the Division, who brought with him an ET-1 and
a beacon. Officer Pace testified to the operation of the SBM
equipment and to his understanding of the program. An
individual enrolled in the SBM program is not permitted to
remove the ET-1, which is required to be worn at all times,
and it is a felony to attempt to remove or interfere with it.
According to Pace, the ET-1 weighs 8.7 ounces, "about
half a pound," and is "waterproof up to 15
feet," allowing the individual to shower, bathe, or swim
in a pool or the ocean. Pace explained that the individual is
responsible for maintaining the charge of the ET-1's
lithium battery and added that "if they're moving a
lot, if there's a lot of activity . . . the more battery
it uses." Moreover, Pace stated that "[t]he
batteries have a life span" and as the battery ages,
"it won't hold a charge as long." The
individual must charge the ET-1 two hours every day by
plugging it into an electrical outlet, during which time the
individual must remain tethered to the wall by the ET-1's
fifteen foot charging cord. According to Pace, "we tell
them to charge it two hours a day just so they don't lose
the charge. Failure to charge the monitor, we'll lose
signal, . . . and that is a violation."
the charge of the ET-1's battery runs low, Pace
explained, "the unit will actually talk to you and it
will say, 'low battery, go charge.'" "That
message will keep repeating itself until they
acknowledge" by placing a finger on a divot on the ET-1.
Pace explained that officers can send other messages to
individuals through the ET-1's audible message system,
such as "Call your officer," and that
"they're supposed to follow the message, whatever
the message may be." Similarly, the ET-1 plays a
repeating voice message when the signal is lost. Pace
testified that "there can be issues with equipment"
and the ET-1 can temporarily lose signal due to the
positioning of satellites. Moreover, "[h]omes with metal
roofs kind of interfere[ ] with the signal. Big buildings,
such as WalMart. When they go in places such as that it could
interfere with the signal." In those situations, Pace
explained, individuals are "supposed to go outside and
try to gain signal back" and to acknowledge the alert by
pressing the divot on the ET-1.
subjected to SBM must also submit to quarterly equipment
checks at their homes. Pace stated that every three months,
Division officers go to the individual's house to
"make sure that the equipment has not been tampered with
. . . and that it's in correct working order." Pace
testified that while an individual could technically refuse
entry into the home, "[w]e prefer to go in the
house" in order "to see where the beacon is at,
because it has to be situated a certain way."
Additionally, the Division's "Guidelines and
Regulations," which the individual is required to sign
upon enrollment, provide: "I understand a unit in the
home will be assigned to me and it will be necessary for a
designated representative of SCC to enter my residence or
other location(s) where I may temporarily reside to install,
retrieve, or periodically inspect the unit."
testified that the "mapping function" allows him to
retrieve historical location information "up to I think
it's six months, and after six months we can call [the
equipment provider], and back further than that they keep
them, and they can send them to us via email." The
mapping function also allows officers to observe monitored
individuals in real time. As Pace testified, "For SBM
cases, yes, it's 24-7, it's live, current
location." Regarding the accuracy of the location
information, Pace stated: "In my experience, it's
been pretty accurate. I mean, people that's taken it off,
I've gone right to the locations and retrieved units that
people's taken off and discarded on streets, trash cans,
in the woods. I mean, it's taken me right there to it,
receiving the evidence and considering the oral and written
arguments of the parties, the superior court entered an order
on 26 August 2016 upholding the imposition of lifetime SBM on
defendant. The court summarized the evidence at length. Among
other things, the trial court noted:
The ankle monitor does not monitor or reveal the activities
of the offender-it merely monitors his location. The device
does not confine the person to their residence or any other
specific location. The ankle monitor and related equipment
requires a quarterly (three months) review/inspection by the
State to ensure that the device is in proper working order.
In addition to Officer Pace's testimony, the State also
entered into evidence photographs of the SBM equipment,
certified copies of the judgments for the two sex offenses,
the defendant's criminal history, and statutory
provisions of Part 5 of Article 27A of Chapter 14 of N.C.
G.S. ("Sex Offender Monitoring"). In both his cross
examination of the State's witness Officer Pace and in
his case-in-chief, the defendant admitted into evidence,
among other exhibits, multiple studies of recidivism rates of
sex offenders versus other criminals; the State's policy,
procedures and rules governing SBM, and additional
photographs of the SBM equipment.
court ultimately concluded that
based on the totality of the circumstances analysis, . . .
satellite based monitoring of the defendant is a reasonable
The Court has considered defendant's argument that the
satellite based monitoring statute is facially
unconstitutional. The Court rejects this argument and finds
that the statute is constitutional on its face.
the trial court ordered defendant to enroll in SBM "for
the remainder of [his] natural life." Defendant appealed
the trial court's order to the Court of Appeals.
Court of Appeals, defendant argued that the State failed to
establish that the imposition of lifetime SBM is a reasonable
search. Grady, 817 S.E.2d at 22. In a divided
opinion filed on 15 May 2018, the Court of Appeals reversed
the trial court's SBM order. Id. at 28. The
Court of Appeals majority noted that the imposition of SBM
intruded upon defendant's Fourth Amendment interests by
the physical attachment of the ankle monitor to his body,
"a constitutionally protected area," and through
the monitor's continuous GPS tracking. Id. at 25
(quoting Jones, 565 U.S. at  n.3). The majority
determined that the physical intrusion caused by the
permanent attachment of the ankle monitor, along with its
audible voice messages and the necessity of charging it for
two hours daily, was "more inconvenient than intrusive,
in light of defendant's diminished expectation of privacy
as a convicted sex offender." Id. On the other
hand, the majority stated that the continuous GPS tracking
was "uniquely intrusive." Id. (quoting
Belleau v. Wall, 811 F.3d 929, 940 (7th Cir 2016)
(Flaum, J, concurring)). The majority acknowledged the
State's compelling interest in protecting the public from
sex offenders but determined that "the State failed to
present any evidence of [SBM's] efficacy in furtherance
of the State's undeniably legitimate interests."
Id. at 27. Accordingly, the majority concluded that
although, based solely on his status as a sex offender,
"defendant's expectation of privacy is appreciably
diminished as compared to law-abiding citizens," the
State failed to establish "that lifetime SBM of
defendant is a reasonable search under the Fourth
Amendment." Id. at 28.
separate opinion, one member of the panel dissented from the
majority's conclusion that lifetime SBM of defendant is
unreasonable and thus would have affirmed the trial
court's order. Id. (Bryant, J., dissenting).
Believing that "the majority asks the State to meet a
burden of proof greater than our General Assembly envisioned
as necessary and greater than Fourth Amendment jurisprudence
requires," id., the dissenting judge concluded
that under the totality of the circumstances, "the
degree to which SBM participation promotes legitimate
governmental interests-the prevention of criminal conduct or
the apprehension of defendant should he reoffend,"
outweighed "the degree to which participation in the SBM
program intrudes upon defendant's privacy."
Id. at 31.
June 2018, the State filed a notice of appeal as of right
based on the dissenting opinion in the Court of Appeals
pursuant to N.C. G.S. § 7A-30(2).
reviewing a trial court order, "we are 'strictly
limited to determining whether the trial judge's
underlying findings of fact are supported by competent
evidence, . . . and whether those factual findings in turn
support the judge's ultimate conclusions of
law.'" State v. Williams, 362 N.C. 628,
632, 669 S.E.2d 290, 294 (2008) (quoting State v.
Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)).
We review decisions of the Court of Appeals for errors of
law. State v. Romano, 369 N.C. 678, 685, 800 S.E.2d
644, 649 (2017) (citing State v. Brooks, 337 N.C.
132, 149, 446 S.E.2d 579, 590 (1994)).
a statute is constitutional is a question of law that this
Court reviews de novo." Id. at 685, 800 S.E.2d
at 649. "In exercising de novo review, we presume that
laws enacted by the General Assembly are constitutional, and
we will not declare a law invalid unless we determine that it
is unconstitutional beyond [a] reasonable doubt."
Cooper v. Berger, 370 N.C. 392, 413, 809 S.E.2d 98,
111 (2018) (quoting State ex rel. McCrory v. Berger,
368 N.C. 633, 639, 781 S.E.2d 248, 252 (2016)). "The
presumption of constitutionality is not, however, and should
not be, conclusive." Moore v. Knightdale Bd. of
Elections, 331 N.C. 1, 4, 413 S.E.2d 541, 543 (1992).
Defendant argues that North Carolina's SBM program
effects an unreasonable search and is unconstitutional both
on its face and as applied to him under the Fourth Amendment
to the United States Constitution. In light of our analysis
of the program and the applicable law, we conclude that the
State's SBM program is unconstitutional in its
application to all individuals in the same category as
defendant-specifically, individuals who are subject to
mandatory lifetime SBM based solely on their status as a
statutorily defined "recidivist" who have
completed their prison sentences and are no longer supervised
by the State through probation, parole, or post-release
supervision. We decline to address the application of SBM
beyond this class of individuals.
facial challenge is an attack on a statute itself as opposed
to a particular application." City of Los Angeles v.
Patel, 135 S.Ct. 2443, 2449 (2015); see also
id. (explaining that facial challenges to "statutes
authorizing warrantless searches" can be brought under
the Fourth Amendment). A party making a facial challenge
"must establish that a 'law is unconstitutional in
all of its applications.'" Id. at 2451
(quoting Wash. State Grange v. Wash. State Republican
Party, 552 U.S. 442, 449 (2008)). In contrast, "the
determination whether a statute is unconstitutional as
applied is strongly influenced by the facts in a particular
case." State v. Packingham, 368 N.C. 380, 393,
777 S.E.2d 738, 749 (2015), rev'd and remanded,
137 S.Ct. 1730 (2017). This case was remanded by the United
States Supreme Court with instructions to "examine
whether the State's monitoring program is
reasonable." Grady, 135 S.Ct. at 1371. While
this directive could be interpreted as instructing us to
address the facial constitutionality of the State's SBM
program in its entirety, we address instead the
constitutionality of the SBM program as applied to the
narrower category of recidivists to which defendant belongs.
See Bulova Watch Co. v. Brand Distribs. of N. Wilkesboro,
Inc., 285 N.C. 467, 472, 206 S.E.2d 141, 145 (1974)
("[W]hen asked to determine the constitutionality of a
statute, the Court will do so only to the extent necessary to
determine that controversy. It will not undertake to pass
upon the validity of the statute as it may be applied to
factual situations materially different from that before
it." (citations omitted)).
"basic purpose" of the Fourth Amendment "is to
safeguard the privacy and security of individuals against
arbitrary invasions by governmental officials."
Camara v. Mun. Court, 387 U.S. 523, 528 (1967);
see Schmerber v. California, 384 U.S. 757, 767
(1966) ("The overriding function of the Fourth Amendment
is to protect personal privacy and dignity against
unwarranted intrusion by the State."); see also
Riley v. California, 134 S.Ct. 2473, 2494 (2014)
("[T]he Fourth Amendment was the founding
generation's response to the reviled 'general
warrants' and 'writs of assistance' of the
colonial era, which allowed British officers to rummage
through homes in an unrestrained search for evidence of
criminal activity."). In reviewing the constitutionality
of a search, "the ultimate measure . . . is
'reasonableness, '" which"' "is
judged by balancing [the search's] intrusion on the
individual's Fourth Amendment interests against its
promotion of legitimate governmental interests."'
" Vernonia Sch. Dist. 47J v. Acton,
515 U.S. 646, 652-53 (1995) (quoting Skinner v. Ry. Labor
Execs.' Ass'n., 489 U.S. 602, 619 (1989)).
Supreme Court has explained that "[w]here a search is
undertaken by law enforcement officials to discover evidence
of criminal wrongdoing, . . . reasonableness generally
requires the obtaining of a judicial warrant" supported
by a showing of probable cause. Id. at 653 (citing
Skinner, 489 U.S. at 619); see Camara, 387
U.S. at 528-29 ("[O]ne governing principle . . . has
consistently been followed: except in certain carefully
defined classes of cases, a search of private property
without proper consent is 'unreasonable' unless it
has been authorized by a valid search warrant."
(citations omitted)). Therefore, we start with the
"basic Fourth Amendment principle" that warrantless
searches are presumptively unreasonable. United States v.
Karo, 468 U.S. 705, 714-15 (1984).
"there are exceptions to the warrant requirement. When
faced with special law enforcement needs, diminished
expectations of privacy, minimal intrusions, or the like, the
Court has found that certain general, or individual,
circumstances may render a warrantless search or seizure
reasonable." Illinois v. McArthur, 531 U.S.
326, 330 (2001) (citations omitted). Exceptions to the
warrant requirement "are 'jealously and carefully
drawn, '" and the "burden is on those seeking
the exemption to show the need for it." Coolidge v.
New Hampshire, 403 U.S. 443, 455 (1971) (first quoting
Jones v. United States, 357 U.S. 493, 499 (1958);
then quoting United States v. Jeffers, 342 U.S. 48,
in the absence of a warrant, "the Court has preferred
'some quantum of individualized suspicion . . . [as] a
prerequisite to a constitutional search or
seizure.'" Maryland v. King, 569 U.S. 435,
447 (2013) (alterations in original) (quoting United
States v. Martinez-Fuerte, 428 U.S. 543, 560 (1976));
see also Chandler v. Miller, 520 U.S. 305, 313
(1997) ("To be reasonable under the Fourth Amendment, a
search ordinarily must be based on individualized suspicion
of wrongdoing." (citing Vernonia, 515 U.S. at
652-53)). Yet individualized suspicion is not required in
every case, because "[t]he touchstone of the Fourth
Amendment is reasonableness, not individualized
suspicion." Samson v. California, 547 U.S. 843,
855 n.4 (2006); see also King, 569 U.S. at 447
("[T]he Fourth Amendment imposes no irreducible
requirement of [individualized] suspicion." (quoting
Martinez-Fuerte, 428 U.S. at 561)).
the State contends that the SBM program falls within a
category of "special needs" searches, described in
some cases as another exception to the requirement of an
individualized warrant. The Supreme Court has recognized that
programmatic searches performed in the absence of a warrant
or individualized suspicion may be permissible "in those
exceptional circumstances in which special needs, beyond the
normal need for law enforcement, make the warrant and
probable-cause requirement impracticable."
O'Connor v. Ortega, 480 U.S. 709, 720 (1987)
(quoting New Jersey v. T.L.O., 469 U.S. 325, 351
(1985) (Blackmun, J., concurring in judgment)). "When
such 'special needs'-concerns other than crime
detection-are alleged in justification of a Fourth Amendment
intrusion, courts must undertake a context-specific inquiry,
examining closely the competing private and public interests
advanced by the parties." Chandler, 520 U.S. at
314 (first citing Nat'l Treasury Emps. Union v. Von
Raab, 489 U.S. 656, 665-66 (1989); then citing
Skinner, 489 U.S. at 668).
the State asserts, somewhat ambiguously, that SBM is "in
full accord with the analysis applicable to special needs
searches," the State never actually
identifies any special need "beyond the normal
need for law enforcement." Griffin v.
Wisconsin, 483 U.S. 868, 873 (1987) (quoting
T.L.O., 469 U.S. at 351). Because defendant is not
on probation or supervised release, but rather is
unsupervised, this is not a situation, as in
Griffin, in which there is any "ongoing
supervisory relationship" between defendant and the
State. Id. at 879; see also id. at 875
(stating that "[probation] restrictions are meant to
assure that the probation serves as a period of genuine
rehabilitation"). Nor is there any indication in the
record that the "primary purpose" of SBM is
anything other than to "advance the general interest in
crime control." City of Indianapolis v. Edmond,
531 U.S. 32, 44 n.1 (2000).
contrary, as Officer Pace testified and as the State
repeatedly made clear in its brief and at oral arguments,
the primary purpose of SBM is to solve crimes. This intent is
also reflected in the SBM program's enabling legislation,
see N.C. G.S. § 14-208.40(d) (providing that
the SBM program is designed to "monitor subject
offenders and correlate their movements to reported crime
incidents"); see also id. § 14-208.5
(2017) (providing that the purpose of the Article is to
assist "law enforcement officers' efforts to protect
communities, conduct investigations, and quickly apprehend
offenders"), as well as the statutory definition of
"satellite-based monitoring" in the Criminal
Procedure Act, see id. § 15A-101.1(3a)
(defining SBM as "monitoring with [a] . . . device . . .
that timely records and reports or records the person's
presence near or within a crime scene or prohibited area or
the person's departure from a specified geographic
location, and that has incorporated into the software the
ability to automatically compare crime scene data with
locations of all persons being electronically monitored so as
to provide any correlation daily or in real time").
Because the State has not proffered any "concerns other
than crime detection," Chandler, 520 U.S. at
314, the "special needs" doctrine is not applicable
here. Cf. Park v. State, 305 Ga. 348, 356, 825
S.E.2d 147, 155 (2019) (holding that Georgia's SBM
program is not "divorced from the State's general
interest in law enforcement" and therefore does not come
within the scope of the special needs exception).
cannot agree with defendant, however, that this determination
is dispositive of the reasonableness inquiry. On the
contrary, the Supreme Court instructed us that "[t]he
reasonableness of a 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." Grady, 135 S.Ct. at
1371. Therefore, we must consider whether the warrantless,
suspicionless search here is reasonable when "its
intrusion on the individual's Fourth Amendment
interests" is balanced "against its promotion of
legitimate governmental interests." Vernonia,
515 U.S. at 652-53.
Intrusion Upon Reasonable Privacy Expectations
Nature of the Privacy Interest
addressing the search's "intrusion on the
individual's Fourth Amendment interests,"
"[t]he first factor to be considered is the nature of
the privacy interest upon which the search here at issue
intrudes," or, in other words, "the scope of the
legitimate expectation of privacy at issue."
Id. at 652-54, 658. Notably, "[t]he Fourth
Amendment does not protect all subjective expectations of
privacy, but only those that society recognizes as
'legitimate, '" which "varies . . . with
context, . . . depending, for example, upon whether the
individual asserting the privacy interest is at home, at
work, in a car, or in a public park." Id. at
654 (quoting T.L.O., 469 U.S. at 338 (majority
opinion)). The SBM program implicates a number of
constitutionally-recognized privacy concerns.
the SBM program, which requires "attach[ing] a device to
a person's body, without consent," Grady,
135 S.Ct. at 1370, and which prohibits the removal of that
device, implicates defendant's Fourth Amendment interest
in "be[ing] secure in [his] person." U.S. Const.
amend. IV. The Supreme Court specifically noted that the SBM
program "is plainly designed to obtain information. And
since it does so by physically intruding on a subject's
body, it effects a Fourth Amendment search."
Grady, 135 S.Ct. at 1371. Additionally, the
equipment checks performed by government officers every three
months, during which defendant must allow them entrance into
his home, implicate his "right . . . to be secure in
[his] . . . house[ ]." U.S. Const. amend. IV; see
Silverman v. United States, 365 U.S. 505, 511 (1961)
(stating that "[a]t the very core" of the Fourth
Amendment "stands the right of a man to retreat into his
own home and there be free from unreasonable governmental
intrusion." (first citing Entick v. Carrington,
19 Howell's State Trials 1029, 1066 (1765); then citing
Boyd v. United States, 116 U.S. 616, 626-30 (1886)).
Finally, the search's GPS location monitoring implicates
an expectation of privacy recently addressed by the Supreme
Court in Carpenter v. United States-defendant's
"expectation of privacy in his physical location and
movements." 138 S.Ct. 2206, 2215 (2018).
Court in Carpenter, after analyzing two lines of
cases stemming from United States v. Knotts, 460
U.S. 276 (1983), and United States v. Jones, 565
U.S. 400 (2012), concluded that "when the Government
accessed CSLI [cell-site location information] from the
[petitioner's] wireless carriers, it invaded [the
petitioner's] reasonable expectation of privacy in the
whole of his ...