State v. Gordon, COA17-1077

Docket NºNo. COA17-1077
Citation372 N.C. 722, 261 N.C.App. 247, 820 S.E.2d 339
Case DateSeptember 04, 2018
CourtCourt of Appeal of North Carolina (US)

372 N.C. 722
261 N.C.App.
820 S.E.2d 339

STATE of North Carolina
Aaron Lee GORDON, Defendant.

No. COA17-1077

Court of Appeals of North Carolina.

Filed: September 4, 2018

Attorney General Joshua H. Stein, by Special Deputy Attorney General Joseph Finarelli, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Michele A. Goldman, for defendant-appellant.


261 N.C.App. 248

The trial court ordered Defendant Aaron Lee Gordon to enroll in lifetime satellite-based monitoring following his eventual release from prison. Defendant appeals. Because the State cannot establish at this time that Defendant's submission to satellite-based monitoring will constitute a reasonable Fourth Amendment search in the future, upon Defendant's release from prison, we vacate the trial court's civil order mandating satellite-based monitoring.


I. Satellite-Based Monitoring

Our General Assembly has described the legislative purpose of sex-offender registration programs as follows:

... the General Assembly recognizes that law enforcement officers’ efforts to protect communities, conduct investigations, and quickly apprehend offenders who commit sex offenses or certain offenses against minors are impaired by the lack of information available to law enforcement agencies about convicted offenders who live within the agency's jurisdiction. ...

Therefore, it is the purpose of this Article to assist law enforcement agencies’ efforts to protect communities by requiring persons who are convicted of sex offenses or of certain other offenses committed against minors to register with law enforcement agencies, to require the exchange of relevant information about those offenders among law enforcement agencies, and to authorize the access to necessary and relevant information about those offenders to others as provided in this Article.

N.C. Gen. Stat. § 14-208.5 (2017).

In furtherance of these objectives, the General Assembly enacted "a sex offender monitoring program that uses a continuous satellite-based

261 N.C.App. 249

monitoring system ... designed to monitor" the locations of individuals who have been convicted of certain sex offenses. N.C. Gen. Stat. § 14-208.40(a) (2017). The present satellite-based monitoring program 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." N.C. Gen. Stat. § 14-208.40(c)(1) (2017). The reporting frequency of a subject's location "may range from once a day (passive) to near real-time (active)." N.C. Gen. Stat. § 14-208.40(c)(2) (2017).

After determining that an individual falls within one of the three categories of offenders to whom the program applies, see N.C. Gen. Stat. § 14-208.40(a)(1)-(3), the trial

820 S.E.2d 342

court must conduct a hearing in order to determine the constitutionality of ordering the targeted individual to enroll in the satellite-based monitoring program. Grady v. North Carolina , 575 U.S. ––––, ––––, 135 S.Ct. 1368, 191 L.Ed.2d 459, 462 (2015) (" Grady I "); State v. Blue , 246 N.C. App. 259, 783 S.E.2d 524, 527 (2016). The trial court may order a qualified individual to enroll in the satellite-based monitoring program during the initial sentencing phase pursuant to N.C. Gen. Stat. § 14-208.40A (2017), or at a later time during a "bring-back" hearing pursuant to § 14-208.40B (2017). For an individual ordered to enroll in the satellite-based monitoring program at the sentencing hearing, the monitoring begins after service of the individual's active sentence.

II. Defendant's Enrollment

In February 2017, Defendant pleaded guilty to statutory rape, second-degree rape, taking indecent liberties with a child, assault by strangulation, and first-degree kidnapping. Defendant was sentenced to 190 to 288 months’ imprisonment and lifetime sex-offender registration. The trial court also ordered, pursuant to N.C. Gen. Stat. § 14-208.40(a)(1) and § 14-208.6(1a), that Defendant enroll in the satellite-based monitoring program for the remainder of his natural life upon his release from prison.

The State's only witness at Defendant's satellite-based monitoring hearing was Donald Lambert, a probation and parole officer in the sex-offender unit. Lambert explained that the satellite-based monitoring device currently in use is "just basically like having a cell phone on your leg." The device requires two hours of charging each day, which must occur while the device remains attached to Defendant's leg. The charging cord is approximately eight to ten feet long. Defendant must also allow an officer to enter his home in order to inspect the device every 90 days.

261 N.C.App. 250

Lambert testified that under the current satellite-based monitoring program, the device is "monitoring where you're going at all times[.]" Once Defendant is released from prison, "we [will] monitor [him] weekly. ... [W]e just basically check the system to see his movement to see where he is, where he is going weekly. ... [W]e review all the particular places daily where he's been." "[T]he report that can be generated from that tracking[ ] gives that movement on a minute-by-minute position," as well as "the speed of movement at the time[.]" Under the current statutory regime, this information can be accessed at any time; no warrant is required. The monitoring system will also "immediately" alert the authorities if Defendant enters a restricted area, such as driving past a school zone. In the event that this were to happen, Lambert testified that "What we normally do is we contact [the enrollee] by phone immediately after they get the alert, ask where they are."

Lambert was asked what Defendant would have to do if "he had a traveling sales job that covered, for instance, a regional area of Virginia, North Carolina and South Carolina?" Lambert explained that the sheriff's office "would have to approve it." Defendant would also "have to clear that with [the Raleigh office] as well. And then he would have to notify the state that he's going to if he was going to—and have to decide whether or not he'd have to stay on satellite-based monitoring in another state."

The State introduced Defendant's Static-99 score at his satellite-based monitoring hearing. Lambert explained that Static-99 is "an assessment tool that they've been doing for years on male defendants over 18. It's just a way to assess whether or not they'll commit a crime again of this [sexual] sort." Lambert testified that defendants are assigned "points" based on

whether or not they've committed a violent crime, whether or not there was an unrelated victim, whether or not there was—there's male victims. ... Other than just the sexual violence, was there another particular part of violence in the crime—in the index crime? Also, [it] does take their prior sentencing dates into factor too.

Defendant received a "moderate/low" score on his Static-99, which Lambert explained meant there was "a moderate to low [risk] that he would ever commit a crime like this again." Defendant did not have any convictions for prior sex offenses, but he was given a point for having previous violent convictions.

820 S.E.2d 343

Based on Defendant's Static-99 assessment, Lambert agreed that "it's not likely he's going to do that [commit

261 N.C.App. 251

a sex offense] again[.]" Other than Defendant's Static-99 score, neither Lambert nor the State were able to offer "any evidence ... as to what the rate of recidivism is during—even during [a] five-year period[.]"

The purpose of the satellite-based monitoring program is "to monitor subject offenders and correlate their movements to reported crime incidents." N.C. Gen. Stat. § 14-208.40(d) (2017). However, Lambert also noted that the satellite-based monitoring program could potentially be of benefit to Defendant. As Lambert explained, "if somebody takes charges out, it will show where they are. So it kind of—it can help them as well, showing that they've been to particular places. If somebody says he was over here doing this at a particular time, it will—it will show, hey, no, he was over here."

After reviewing the evidence presented during the hearing, the trial court recited the following:

Let the record reflect we've had this hearing, and the Court is going to find by the preponderance of the evidence that the factors that the State has set forth—his previous assaults, the Static-99 history, the fact that this occurred in an apartment with other children present as well and the relatively minor physical intrusion on the defendant to wear the device—it's small. It has to be charged two hours a day. But other than that, it can be used in water and other daily activities—so I am going to find ... that he should enroll in satellite-based monitoring for his natural life unless terminated.

Defendant filed proper notice of appeal from the trial court's satellite-based monitoring order. On...

To continue reading

Request your trial
17 cases
  • State v. Strudwick, 334PA19-2
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 29, 2021 the time that a defendant is sentenced. Strudwick II , 273 N.C. App. at 681, 849 S.E.2d 891 (quoting State v. Gordon (Gordon I ), 261 N.C. App. 247, 261, 820 S.E.2d 339 (2018) ). According to the Court of Appeals majority's invocation of the Gordon lineage of cases, establishing the reas......
  • State v. Ricks, COA19-836
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • May 5, 2020
    ...831 S.E.2d 542 (2019) (" Grady III "), State v. Griffin , 260 N.C. App. 629, 818 S.E.2d 336 (2018), and State v. Gordon ("Gordon I "), 261 N.C. App. 247, 820 S.E.2d 339 (2018), all were published prior to Defendant's sentencing hearing. These cases make clear that the trial court must condu......
  • State v. Degraphenreed, COA17-1377
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • September 4, 2018
    ...Fourth Amendment warrant requirement, probable cause justified the officers in conducting the warrantless search of the Grand Marquis. 820 S.E.2d 339 See Baublitz , 172 N.C. App. at 808, 616 S.E.2d at 620 ("A warrant is not required to perform a lawful search of a vehicle on a public road w......
  • State v. Ricks, 233A20
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • September 24, 2021
    ...(quoting Grady III, 372 N.C. at 543-44)), review allowed, writ allowed, 854 S.E.2d 586 (N.C. Mar. 10, 2021); State v. Gordon (Gordon I), 261 N.C.App. 247, 257 (2018) ("[T]he State has failed to meet its burden of showing that the implementation of [SBM] of this Defendant will be reasonable ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT