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State v. Grady

Supreme Court of North Carolina

August 16, 2019


          Heard in the Supreme Court on 8 January 2019.

          Appeal 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.

          Joshua H. Stein, Attorney General, by Teresa M. Postell, Assistant Attorney General, and Joseph Finarelli, Special Deputy Attorney General, for the State-appellant.

          Glenn Gerding, Appellate Defender, and Lewis Everett for defendant-appellee.

          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.

          EARLS, JUSTICE.

         The 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).

         In 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.


          Mr. 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."

         Over a 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.

         North Carolina's SBM Program

         North Carolina's SBM program for sex offenders[1] 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. § 14-208.40(c)(1)).

         In 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), -208.40B(c).

         Section 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).

         An 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.").

         If an 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. § 14-208.40B.

         Today 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, [2] 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).[3] 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.

         Grady's SBM Claims

         Prior 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.

         At the 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.

         In a 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.

         On 11 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.

         On 16 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.

         Grady, 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 session.

         The 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."[4]

         When 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.

         Individuals 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."

         Pace 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, you know."

         After 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.

         The court ultimately concluded[5] that

based on the totality of the circumstances analysis, . . . satellite based monitoring of the defendant is a reasonable search.
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.

         Accordingly, 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.

         At the 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 [407] 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.

         In a 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.

          On 19 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).

         Standard of Review

         In 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)).

         "Whether 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"[6] 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.

         "A 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)).

         The "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."' "[7] 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)).

         The 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.[8] 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).

         Nonetheless, "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, 51 (1951)).

         Additionally, 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)).

         Here 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.[9] 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)).[10] "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).

         Although the State asserts, somewhat ambiguously, that SBM is "in full accord with the analysis applicable to special needs searches," the State never actually identifies[11] 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).

         On the contrary, as Officer Pace testified and as the State repeatedly made clear in its brief[12] and at oral arguments, [13] 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).

         We 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.

         I. Intrusion Upon Reasonable Privacy Expectations

         A. Nature of the Privacy Interest

         In 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.

         First, 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).

         The 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 ...

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