NC: State fails to show need for satellite based monitoring of sex offender who won’t be released from prison until 2032

The state fails to show the need for constant satellite based monitoring for defendant convicted sex offender who won’t even be released from prison until 2032. State v. Gordon, 2020 N.C. App. LEXIS 205 (Mar. 17, 2020):

The State has also failed, at this time, to present evidence adequately estimating the government’s need to search—i.e., the other side of the balancing test. See Grady III, 372 N.C. at 527, 831 S.E.2d at 557. The State merely asserts that “[i]f, as Defendant acknowledges, the State has ‘a substantial interest in preventing sexual assaults,’ then the State’s evidence amply demonstrated that Defendant warranted such concern in the future despite his Static-99 risk assessment score.” However, the State makes no attempt to distinguish this undeniably important interest from the State’s “normal need for law enforcement[.]” State v. Elder, 368 N.C. 70, 74, 773 S.E.2d 51, 54 (2015) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S. Ct. 3164, 97 L. Ed. 2d 709, 717 (1987)); see also Maryland v. King, 569 U.S. 435, 481, 133 S. Ct. 1958, 186 L. Ed. 2d 1, 41 (2013) (Scalia, J., dissenting) (“Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail.” (emphasis added)).

In addition, to the extent that the current satellite-based monitoring program is justified by the State’s interest in deterring future sexual assaults, the State’s evidence falls short of demonstrating what Defendant’s threat of reoffending will be after having been incarcerated for roughly fifteen years. See, e.g., Brown v. Peyton, 437 F.2d 1228, 1230 (4th Cir. 1971) (“One of the principal purposes of incarceration is rehabilitation ….”). The only individualized measure of Defendant’s threat of reoffending was the Static-99, which the State’s witness characterized as indicating that Defendant was “not likely” to recidivate. Lambert, the State’s sole witness, was asked whether there was any evidence, besides Defendant’s Static-99 score, “that would indicate the reason that the State of North Carolina would need to search his location or whereabouts on a regular basis[.]” Lambert responded, “I don’t have any information on that[.]”

Same: State v. Graham, 2020 N.C. App. LEXIS 211 (Mar. 17, 2020)*:

Before a trial court may order a defendant to participate in the SBM program for life, the State must prove that the SBM program is reasonable as applied to the defendant, considering the totality of the circumstances, the nature and extent to which it intrudes upon the defendant’s reasonable privacy interests, and the extent to which it furthers legitimate governmental interests. State v. Blue, 246 N.C. App. 259, 264-65, 783 S.E.2d 524, 527 (2016) (clarifying burden of proof at Grady hearing lies with State) (citing Grady, 575 U.S. at 310, 191 L. Ed. 2d at 462).

The State concedes that the trial court had insufficient evidence before it to support the SBM order. …