State v. Grady, COA17-12
| Docket Nº | No. COA17-12 |
| Citation | 259 N.C.App. 664, 817 S.E.2d 18 |
| Case Date | May 15, 2018 |
| Court | Court of Appeal of North Carolina (US) |
259 N.C.App. 664
817 S.E.2d 18
STATE of North Carolina
v.
Torrey GRADY
No. COA17-12
Court of Appeals of North Carolina.
Filed: May 15, 2018
Attorney General Joshua H. Stein, by Special Deputy Attorney General Joseph Finarelli, for the State.
Appellate Defender Glenn Gerding, and Everett & Everett, Attorneys at Law, Elkin, by Lewis ("Luke") Everett, for defendant-appellant.
CALABRIA, Judge.
Torrey Grady ("defendant") appeals from the trial court's order determining that satellite-based monitoring ("SBM") of defendant is a
reasonable search under the Fourth Amendment. After careful review, we conclude that the State failed to prove the reasonableness of imposing SBM for defendant's lifetime. Accordingly, we reverse.
I. Factual and Procedural Background
In 1997, defendant pleaded no contest to a second-degree sex offense, and in 2006, he pleaded guilty to taking indecent liberties with a child. The trial court never made an SBM determination at either of defendant's sentencing hearings for these offenses. However, on 14 May 2013, the trial court held an SBM "bring-back" hearing pursuant to N.C. Gen. Stat. § 14-208.40B (2017). The court found that defendant's convictions were both "sexually violent offenses" pursuant to N.C. Gen. Stat. § 14-208.6(5), and therefore, defendant met the criteria of a "recidivist" under N.C. Gen. Stat. § 14-208.6(2b). Accordingly, the trial court ordered defendant to enroll in SBM for the remainder of his natural life, as required by N.C. Gen. Stat. § 14-208.40B(c).
Defendant appealed that order to this Court, arguing that SBM violated his right to freedom from unreasonable searches and seizures, as provided by the Fourth Amendment to the United States Constitution. In an unpublished decision filed 6 May 2014, we affirmed the trial court's order, concluding that we were bound by our Court's rejection of a nearly identical argument in State v. Jones , 231 N.C. App. 123, 750 S.E.2d 883 (2013). State v. Grady , 233 N.C. App. 788, 759 S.E.2d 712 (2014) (unpublished). After our Supreme Court dismissed defendant's appeal and denied discretionary review, State v. Grady , 367 N.C. 523, 762 S.E.2d 460 (2014), the United States Supreme Court granted defendant's petition for writ of certiorari.
The United States Supreme Court held that despite its civil nature, North Carolina's SBM program "effects a Fourth Amendment search." Grady v. North Carolina , 575 U.S. ––––, ––––, 135 S.Ct. 1368, 1371, 191 L.Ed.2d 459, 462 (2015) (per curiam). However, since "[t]he Fourth Amendment prohibits only unreasonable searches[,]" the Supreme Court remanded the case for North Carolina courts to "examine whether the State's monitoring program is reasonable—when properly viewed as a search ...." Id . at ––––, 135 S.Ct. at 1371, 191 L.Ed.2d at 463.
On 16 June 2016, the trial court held a remand hearing on the reasonableness of defendant's lifetime enrollment in SBM. Officer Scott Pace, a probation supervisor for the Department of Public Safety, Division of Adult Correction, testified as the State's sole witness at the hearing. In addition to Officer Pace's testimony, the State presented photographs of the SBM equipment currently used to monitor offenders; certified copies
of the two sex offense judgments; and defendant's criminal record. At the close of the State's evidence, defendant moved for a directed verdict and dismissal, arguing that the State had failed to prove that SBM is a reasonable search under the Fourth Amendment. See State v. Blue , ––– N.C. App. ––––, ––––, 783 S.E.2d 524, 527 (2016) (concluding that "the State shall bear the burden of proving that the SBM program is reasonable"). In response, the State offered arguments about the dangers of recidivism and the State's interest in protecting the public from sex offenders. After considering both parties' arguments, the trial court denied defendant's motion for a directed verdict. Defendant then presented evidence, but did not testify, and subsequently renewed his motion for judgment as a matter of law. The trial court determined that it would rule on defendant's motion out of term, subject to the parties' submission of briefs.
On 26 August 2016, the trial court entered an order concluding that (1) based on the totality of the circumstances, SBM of defendant is a reasonable search; and (2) the SBM statute is facially constitutional. Defendant appeals.
II. Standard of Review
"An appellate court reviews conclusions of law pertaining to a constitutional matter de novo." State v. Bowditch , 364 N.C. 335, 340, 700 S.E.2d 1, 5 (2010) (citation omitted). "The trial court's findings of fact are binding on appeal if they are supported by competent evidence, and they must ultimately support the trial court's conclusions of law." Id. (citation and quotation marks omitted).
III. Constitutionality
The Fourth Amendment, applied to the States through the Fourteenth Amendment,
protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" by the government. U.S. Const. amend. IV. It is clear that SBM "effects a Fourth Amendment search." Grady , 575 U.S. at ––––, 135 S.Ct. at 1371, 191 L.Ed.2d at 462. Accordingly, the only remaining issue for the trial court to determine was whether SBM is reasonable under the Fourth Amendment.
On appeal, defendant first contends that the State failed to prove that lifetime SBM is a reasonable search of defendant. We agree.
"The reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations." Id. (citations omitted). "Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, ...
reasonableness generally requires the obtaining of a judicial warrant" issued upon a showing of probable cause. Vernonia Sch. Dist. 47J v. Acton , 515 U.S. 646, 653, 115 S.Ct. 2386, 2390, 132 L.Ed.2d 564, 574 (1995). "But a warrant is not required to establish the reasonableness of all government searches; and when a warrant is not required (and the Warrant Clause therefore not applicable), probable cause is not invariably required either." Id. "In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement." Riley v. California , 573 U.S. ––––, ––––, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430, 439 (2014).
Grady directs us to consider two approaches for our analysis of the warrantless search in this case: (1) a "general Fourth Amendment approach" based on diminished expectations of privacy, and (2) "special needs" searches. See 575 U.S. at ––––, 135 S.Ct. at 1371, 191 L.Ed.2d at 462-63 (citing Samson v. California , 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (suspicionless search of parolee was reasonable); Vernonia Sch. Dist. 47J v. Acton , 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (random drug testing of student athletes was reasonable) ). Under either approach, we use the same context-specific balancing test to determine the reasonableness of the search. Compare Samson , 547 U.S. at 848, 126 S.Ct. 2193, 165 L.Ed.2d at 256 ("Whether a search is reasonable is determined by assessing on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." (citation and quotation marks omitted) ), with Vernonia Sch. Dist. , 515 U.S. at 652-53, 115 S.Ct. 2386, 132 L.Ed.2d at 574 ("[W]hether a particular search meets the reasonableness standard is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." (citation and quotation marks omitted) ).
However, because the special needs doctrine is typically used to uphold sweeping programmatic searches, it is a "closely guarded" exception to the warrant requirement, which only applies to a limited "class of permissible suspicionless searches." Ferguson v. City of Charleston , 532 U.S. 67, 80 n.17, 121 S.Ct. 1281, 149 L.Ed.2d 205, 218 n.17 (2001). In order for the exception to apply, the "special need" advanced to justify dispensing with a warrant or individualized suspicion must be "divorced from the State's general interest in law enforcement." Id. at 79, 121 S.Ct. at 1289, 149 L.Ed.2d at 217.1
A. Special Needs
On appeal, the State contends that SBM is a reasonable special needs search. However, according to the record, it does not appear that the trial court considered this argument, as neither the hearing transcript
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