On remand from Grady v. North Carolina, 135 S. Ct. 1368, 191 L. Ed. 2d 459 (2015), the state failed to prove that continuous realtime satellite based monitoring of defendant was unreasonable. The lack of a warrant requirement without any real justification of a risk of reoffending also was unreasonable. State v. Grady, 2018 N.C. App. LEXIS 460 (May 15, 2018) (Treatise § 34.04):
2. Continuous GPS Monitoring
In addition to physically intruding on defendant’s body, “a constitutionally protected area,” United States v. Jones, 565 U.S. 400, 406 n.3, 132 S. Ct. 945, 181 L. Ed. 2d 911, 919 n.3 (2012), the ET-1 also effects a continuous, warrantless search of defendant’s location through the use of GPS technology. Notwithstanding defendant’s diminished expectation of privacy, this aspect of SBM is “uniquely intrusive” as compared to other searches upheld by the United States Supreme Court. Belleau, 811 F.3d at 940 (Flaum, J., concurring).
As a recidivist sex offender, defendant is required by law to notify the State—and by extension, the public—whenever he moves to a new address, enrolls as a student, or obtains employment at an institution of higher education. N.C. Gen. Stat. § 14-208.9(a),(c),(d). Nevertheless, this type of static information is materially different from the continuous, dynamic location data SBM yields. “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” Jones, 565 U.S. at 415, 181 L. Ed. 2d at 924 (Sotomayor, J., concurring). At the hearing, Officer Pace acknowledged that through analysis of SBM location data, the State could ascertain whether an offender was regularly visiting a doctor’s office, an ABC store, or a place of worship.
However, the only portion of the trial court’s order which addresses GPS monitoring is the finding that the “ankle monitor does not monitor or reveal the activities of the offender—it merely monitors his location.” On appeal, the State contends that this aspect of SBM is similar to the compulsory drug testing of Oregon public high school student-athletes upheld in Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995). See id. at 658, 132 L. Ed. 2d at 578 (observing that one “privacy-invasive aspect of urinalysis is … the information it discloses concerning the state of the subject’s body, and the materials he has ingested”). We agree that the type of information disclosed through the search is certainly an important consideration. However, the State’s use of the information is also relevant. See id. (deeming it “significant” that, inter alia, the tests “look only for drugs, and not for whether the student is, for example, epileptic, pregnant, or diabetic[,]” and that the results were “not turned over to law enforcement authorities or used for any internal disciplinary function”).
Here, it is significant that law enforcement is not required to obtain a warrant in order to access defendant’s SBM location data. The ability to track a suspect’s whereabouts is an undeniably powerful tool in a criminal investigation. However, the State presented no evidence of defendant’s current threat of reoffending, and the record evidence regarding the circumstances of his convictions does not support the conclusion that lifetime SBM is objectively reasonable. Although the State has no guidelines for presentation of evidence at Grady hearings, nevertheless, there must be sufficient record evidence to support the trial court’s conclusion that SBM is reasonable as applied to this particular defendant.
In concluding that SBM is reasonable, the trial court heavily relied on Belleau v. Wall, 811 F.3d 929 (7th Cir. 2016). However, the circumstances in Belleau are starkly different from those in the instant case. In Belleau, the 7th Circuit upheld lifetime GPS monitoring of a 73-year-old man who, from 2004-2010, had been civilly committed as a “sexually violent person” by the state of Wisconsin. Id. at 931 (citing Wis. Stat. §§ 980.01(7), 980.06); see also id. at 935 (“[P]ersons who have demonstrated a compulsion to commit very serious crimes and have been civilly determined to have a more likely than not chance of reoffending must expect to have a diminished right of privacy as a result of the risk of their recidivating[.]”). In holding that “Wisconsin’s ankle monitoring of Belleau is reasonable[,]” id. at 937, the Court considered a plethora of record evidence regarding the plaintiff’s long history of molesting prepubescent children, id. at 931; his medical diagnosis as a pedophile and documented inability to “reduce his sexual deviance … [and] suppress or manage his deviant arousal,” id. at 934; the plaintiff’s statistical likelihood of reoffending, as determined by his evaluating psychologist, id.; and studies regarding the general recidivism rates of sex offenders and serious underreporting of sex crimes against children, id. at 933-34.
By contrast, here, the State failed to present any evidence concerning its specific interest in monitoring defendant, or of the general procedures used to monitor unsupervised offenders. Instead, the State submitted copies of the two sex offense judgments and defendant’s criminal record, arguing that defendant himself was “Exhibit Number 1” of SBM’s success in deterring recidivists, because “[s]ince he’s been monitored, guess what: He hasn’t recommitted, he hasn’t been charged with another sex offense.” However, Officer Pace, the State’s sole witness, testified that the ET-1 cannot actually prevent an offense from occurring. And although knowledgeable about the ET-1 and monitoring supervised offenders, Officer Pace was unaware of the procedures used to monitor unsupervised offenders such as defendant, “because [he] do[es]n’t deal with those” cases. “[P]eople out of Raleigh” monitor unsupervised offenders, and Officer Pace did not know “their requirements [for] checking their system.”
We acknowledge the State’s compelling interest in protecting the public, particularly minors, from dangerous sex offenders. Of course, it is axiomatic that “the sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people. And it is clear that a legislature may pass valid laws to protect children and other victims of sexual assault from abuse.” Packingham v. North Carolina, 582 U.S. __, __ , 137 S. Ct. 1730, 198 L. Ed. 2d 273, 281 (2017) (citations and quotation marks omitted). “The government, of course, need not simply stand by and allow these evils to occur. But the assertion of a valid governmental interest cannot, in every context, be insulated from all constitutional protections.” Id. (citations and quotation marks omitted); see also id. at __, 198 L. Ed. 2d at 283 (holding that N.C. Gen. Stat. § 14-202.5—banning registered sex offenders from accessing “a commercial social networking Web site” known to permit minors “to become members or to create or maintain personal Web
pages”—violates the First Amendment).
At the time of defendant’s remand hearing, the SBM program had been in effect for approximately ten years. However, the State failed to present any evidence of its efficacy in furtherance of the State’s undeniably legitimate interests. The State conceded this point on 8 August 2017 during oral arguments before this Court. Defendant, however, presented multiple reports authored by the State and federal governments rebutting the widely held assumption that sex offenders recidivate at higher rates than other groups. Although the State faulted defendant for presenting statistics about supervised offenders, the State bears the burden of proving reasonableness at Grady hearings. Blue, __ N.C. App. at __, 783 S.E.2d at 527. Here, we are compelled to conclude that the State failed to carry its burden.
We emphasize, however, that our holding is limited to the facts of this case. We reiterate the continued need for individualized determinations of reasonableness at Grady hearings. As we held in Greene, the State will have only one opportunity to prove that SBM is a reasonable search of the defendant. __ N.C. App. at __, 806 S.E.2d at 344-45 (reversing without remanding the lifetime SBM order where “[t]he State offered no further evidence beyond defendant’s criminal record”). And the defendant will have one opportunity to assert a Fourth Amendment challenge or risk appellate waiver of the issue. See Bishop, __ N.C. App. at __, 805 S.E.2d at 370 (“Bishop is no different from other defendants who failed to preserve their constitutional arguments in the trial court, and because he has not argued any specific facts that demonstrate manifest injustice if we decline to invoke Rule 2, we do not believe this case is an appropriate use of that extraordinary step.”).