State v. Gordon

• Decision Date: 17 March 2020
• Docket Number: No. COA17-1077-2,COA17-1077-2
• Citation: 840 S.E.2d 907,270 N.C.App. 468
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Aaron Lee GORDON

270 N.C.App. 468

840 S.E.2d 907

STATE of North Carolina

v.Aaron Lee GORDON

No. COA17-1077-2

Court of Appeals of North Carolina.

Filed: March 17, 2020

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

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

ZACHARY, Judge.

Defendant Aaron Lee Gordon timely appealed from the trial court's order requiring him to enroll in lifetime satellite-based monitoring following his eventual release from prison. On 4 September 2018, this Court filed a published opinion vacating the trial court's civil order mandating satellite-based monitoring. See State v. Gordon , 261 N.C.App. 247, 820 S.E.2d 339 (2018). The State subsequently filed a petition for discretionary review with the North Carolina Supreme Court. On 4 September 2019, the Supreme Court allowed the State's petition for discretionary review for the limited purpose of remanding to this Court for reconsideration in light of the Supreme Court's decision in State v. Grady , 372 N.C. 509, 831 S.E.2d 542 (2019) (" Grady III "). Upon reconsideration, we reverse the trial court's civil order mandating satellite-based monitoring.

Background

I. Satellite-Based Monitoring

Our General Assembly enacted "a sex offender monitoring program that uses a continuous satellite-based 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) (2019). 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." Id. § 14-208.40(c)(1). The reporting frequency of an offender's location "may range from once a day (passive) to near real-time (active)." Id. § 14-208.40(c)(2).

After determining that an individual meets the criteria for one of three categories of offenders subject to the satellite-based monitoring program, see id. § 14-208.40(a)(1)-(3), the trial 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. 306, 310, 135 S.Ct. 1368, 1371, 191 L. Ed. 2d 459, 462 (2015) (" Grady I "); State v. Blue , 246 N.C. App. 259, 264, 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, or, under certain circumstances, at a later time during a "bring-back" hearing pursuant to N.C. Gen. Stat. § 14-208.40B. For an individual for whom satellite-based monitoring is imposed during the defendant's sentencing hearing pursuant to N.C. Gen. Stat. § 14-208.40A, monitoring shall begin upon the defendant's release from prison.

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 190-288 months’ imprisonment and ordered to submit to lifetime sex-offender registration. After determining that Defendant was convicted of an "aggravated offense" under N.C. Gen. Stat. § 14-208.6(1A), the trial court then ordered 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 Forsyth County sex-offender unit. Lambert explained that the device currently used to monitor offenders enrolled in satellite-based monitoring is "just basically like having a cell phone on your leg." The battery requires two hours of charging each day, which requires that Defendant plug the charging cord into an electric outlet while the device remains attached to his leg. The charging cord is approximately eight to ten feet long. Every 90 days, Defendant must also allow a monitoring officer to enter his home in order to inspect and service the device.

Lambert testified that the device currently in use monitors an offender's location "at all times[.]" Once Defendant is released from prison and enrolled in satellite-based monitoring, "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, a monitoring officer may access an offender's location data at any time without obtaining a search warrant. If Defendant enters a restricted area—for example, if he drives past a school zone—the monitoring system will immediately alert the relevant authorities. Lambert explained that in such an event, monitoring officers typically "contact [the enrollee] by phone immediately after they get the alert, ask where they are."

When asked what would happen if Defendant "had a traveling sales job that covered" a regional territory and required travel to multiple states, Lambert explained that the sheriff's office "would have to approve it." "He would also be monitored through the Raleigh office where the satellite-based monitoring is. He would have to clear that with them 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 [convicted of reportable sex offenses] 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 offenders 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, [Static-99 assessment] 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 prior convictions for sex offenses, but he was assessed one point for having prior convictions for violent offenses. Lambert agreed that Defendant's Static-99 score indicated that "it's not likely he's going to [commit a sex offense] again[.]" However, the State failed to present any evidence "as to what the rate of recidivism is during—even during [a] five-year period[.]"

The general 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). However, Lambert also noted that the satellite-based monitoring program could potentially be beneficial to Defendant. As Lambert explained, "if somebody takes charges out, it will show where [the enrollee was]. 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 show, hey, no, he was over here."

After reviewing the evidence presented during the hearing, the trial court announced:

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 [D]efendant 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 timely appealed the trial court's satellite-based monitoring order to this Court. On appeal, Defendant only challenged the constitutionality of the satellite-based monitoring order as applied to him as one convicted of an aggravated offense. He argued that the trial court erred in ordering that he be subjected to lifetime satellite-based monitoring because "[t]he [S]tate failed to meet its burden of proving that imposing [satellite-based monitoring] on [Defendant] is reasonable under the Fourth Amendment."

In a published opinion filed on 4 September 2018, we vacated the trial court's civil order mandating satellite-based monitoring. Relying heavily on Grady I and State v. Grady , 259 N.C. App. 664, 817 S.E.2d 18 (2018) (" Grady II "), modified and aff'd , 372 N.C. 509, 831 S.E.2d 542 (2019), we held that the State had failed to meet its burden of showing that the implementation of satellite-based monitoring of this Defendant will be a reasonable search fifteen to twenty years before its execution. The State subsequently filed a petition for discretionary review with the North Carolina Supreme Court. The Supreme Court issued its opinion in Grady III on 16 August 2019. Thereafter, on 4 September 2019, the Supreme Court entered an order allowing the State's petition for discretionary review in the instant case for the limited purpose of remanding to this Court for reconsideration in light of the Supreme Court's decision in Grady III .

State v. Grady I

In Grady I , the United States Supreme Court made clear that its...