NC: The state bears the burden of proof of reasonableness under Grady and it failed here

NC recognizes that its case law is in vast disarray since Grady v. North Carolina, and it’s tough to sort out. The state bears the burden of proof on reasonableness of satellite based monitoring of a sex offender. Here, the state failed to prove it. State v. Lopez, 2019 N.C. App. LEXIS 279 (Mar. 19, 2019):

2. Reasonableness Inquiry

We now address whether the trial court properly determined that SBM was a reasonable Fourth Amendment search of Defendant. “The State bears the burden of proving that enrollment in satellite-based monitoring is a permissible Fourth Amendment search of each particular defendant targeted.” State v. White, ___ N.C. App. ___, ___, 820 S.E.2d 116, 121 (2018).

In the present case, the State initiated the discussion about reasonableness and the Fourth Amendment. The State asked the trial court to balance the invasion of privacy against the State’s compelling interest, and to find that the imposition of SBM on Defendant was not an unreasonable search. The State requested that the trial court consider the evidence of the case and that: (1) “the United States Supreme Court has recognized the dangers of recidivism in cases of sex offenders and that when sex offenders reenter society they are much more likely than any other type of offender to be arrested for a new rape or sexual assault;” and (2) based on the State’s observation, Defendant does not “get[] it,” which makes the State “concerned that the level of ability to re-offend and recidivate is much higher.” The trial court announced from the bench that, after considering the totality of the circumstances, Defendant’s enrollment in SBM was “appropriate and necessary.”

It is apparent from the transcript that the State had both the knowledge of its burden and the opportunity to put on sufficient evidence to satisfy its burden. Cf. Id. at ___, 820 S.E.2d at 122 (vacating and remanding an SBM order when “[t]he trial court did not afford the State an opportunity to present evidence in order to establish the constitutionality of enrolling [the d]efendant in satellite-based monitoring”). In the present case, the State failed to carry its burden of proving SBM of Defendant was a reasonable Fourth Amendment search because it did not put on any evidence regarding reasonableness. See Greene, ___ N.C. App. at ___, 806 S.E.2d at 345-46 (reversing the trial court’s order because “the nature of the State’s burden was no longer uncertain at the time of defendant’s satellite-based monitoring hearing. [Previous cases from this Court] made clear that a case for satellite-based monitoring is the State’s to make”). Therefore, because “the State will have only one opportunity to prove that SBM is a reasonable search of the defendant[,]” and, in the present case, the State was previously afforded such an opportunity and failed to prove that SBM is a reasonable search of Defendant, we reverse the trial court’s SBM order. State v. Grady, ___ N.C. App. ___, ___, 817 S.E.2d 18, 28 (2018)