State v. Griffin, No. COA17-386-2

• Docket Nº: No. COA17-386-2
• Citation: 840 S.E.2d 267, 270 N.C.App. 98
• Case Date: February 18, 2020
• Court: Court of Appeal of North Carolina (US)

270 N.C.App. 98
840 S.E.2d 267

STATE of North Carolina
v.
Thomas Earl GRIFFIN, Defendant.

No. COA17-386-2

Court of Appeals of North Carolina.

Filed: February 18, 2020

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

Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R. Grant, for Defendant-Appellant.

INMAN, Judge.

840 S.E.2d 269

270 N.C.App. 98

Following the Supreme Court of North Carolina's decision in State v. Grady , 372 N.C. 509, 831 S.E.2d 542 (2019) ( Grady III ), we hold that the trial court's order imposing satellite based monitoring ("SBM") of

270 N.C.App. 99

a sex offender for thirty years, considering the totality of the circumstances of this case, is unreasonable and violates the Fourth Amendment to the United States Constitution.

In State v. Griffin , 260 N.C. App. 629, 636–38, 818 S.E.2d 336, 342 (2018) ( Griffin I ), this Court held that the State failed to demonstrate the reasonableness of a warrantless search of Defendant Thomas Earl Griffin ("Defendant") through imposition of SBM for a term of thirty years in violation of the Fourth Amendment to the United States Constitution. Our holding was based on this Court's decision in State v. Grady , 259 N.C. App. 664, 817 S.E.2d 18 (2018) (" Grady II "), holding that lifetime SBM was unconstitutional as applied to a recidivist defendant because the State "failed to present any evidence of [SBM's] efficacy in furtherance of the State's undeniably legitimate interests." 259 N.C. App. at 674–75, 817 S.E.2d at 27.

After Griffin I was filed, the Supreme Court of North Carolina modified and affirmed Grady II , holding in Grady III that lifetime SBM was unconstitutional as applied to Mr. Grady and all defendants who were not on probation or post-release supervision but subject to lifetime SBM solely on the basis of recidivism. Grady III , 372 N.C. at 591, 831 S.E.2d at 572. Griffin I was then remanded to this Court by order of the Supreme Court "for further consideration in light of ... [ Grady III ]."

After careful review following the decision in Grady III , supplemental briefing, and oral argument, we again hold that the imposition of SBM under N.C. Gen. Stat. § 14-208.40(a)(2) per the trial court's order is unconstitutional as applied to Defendant.¹ We again reverse the trial court's order.

I. FACTUAL AND PROCEDURAL HISTORY

The facts of this case are fully described in Griffin I . 260 N.C. App. at 629–33, 818 S.E.2d at 337-39. However, since those facts do not render Grady III entirely dispositive of this appeal and the resolution of an as-applied challenge "is strongly influenced by the facts in a particular case[,]" State v. Packingham , 368 N.C. 380, 393, 777 S.E.2d 738, 749 (2015), rev'd and remanded on other grounds , 582 U.S. ––––, 137 S.Ct. 1730, 198 L. Ed. 2d 273 (2017), we recite pertinent details.

270 N.C.App. 100

In 2004, Defendant entered an Alford plea to one count of first-degree sex offense with a child. Griffin I , 260 N.C. App. at 629–30, 818 S.E.2d at 337. At sentencing, Defendant admitted to the digital and penile penetration of his girlfriend's minor daughter over the course of three years. Id. at 630–31, 818 S.E.2d at 338. The trial court sentenced Defendant to imprisonment for 144 to 182

840 S.E.2d 270

months and recommended the completion of SOAR, a sex offender treatment program. Id.

Eleven years after his conviction, in 2015, Defendant was released from prison on a five-year term of post-release supervision. Id. Three months later, the State sought SBM of Defendant under N.C. Gen. Stat. § 14-208.40(a)(2), as he had been sentenced for a reportable sex offense as defined by N.C. Gen. Stat. § 14-208.6(4) and therefore could be subject to SBM if ordered by a court. Id.

Defendant appeared before the trial court at a "bring-back" hearing in August 2016, where a "Revised STATIC-99 Coding Form" ("Static-99"), prepared by the Division of Adult Correction and Juvenile Justice and designed to estimate the probability of recidivism, was entered into evidence. Id. According to the Static-99, Defendant presented a "moderate-low" risk, the second lowest of four possible categories. Id.

The State called Defendant's parole officer as a witness, who testified that Defendant failed to complete the SOAR program but had not violated any terms of his post-release supervision. Id. The officer also described the physical characteristics and operation of the SBM device. Id. The State did not introduce any evidence regarding how it would use the SBM data or whether SBM would be effective in protecting the public from potential recidivism by Defendant. Id.

After taking the matter under advisement, the trial court entered a written order imposing SBM on Defendant for thirty years. Id. at 630–33, 818 S.E.2d at 338-39. That order included the following findings of fact and conclusion of law:

1. The defendant failed to participate in and[/]or complete the SOAR program.

2. The defendant took advantage of the victim's young age and vulnerability: the victim was 11 years old [while] the defendant was 29 years old.

3. The defendant took advantage of a position of trust; the defendant was the live-in boyfriend of the victim's mother. The family had resided together for at least four years and [defendant] had a child with the victim's mother.

270 N.C.App. 101

4. Sexual abuse occurred over a three year period of time.

The court has weighed the Fourth Amendment right of the defendant to be free from unreasonable searches and seizures with the publics [sic] right to be protected from sex offenders and the court concludes that the publics [sic] right of protection outweighs the "de minimis" intrusion upon the defendant's Fourth Amendment rights.

Id. at 631–32, 818 S.E.2d at 339.

Based on the above record, we held in Griffin I that "because the State failed to present any evidence that SBM is effective to protect the public from sex offenders, this Court's decision in Grady II compels us to reverse the trial court's order requiring Defendant to enroll in SBM for thirty years." Id. at 637, 818 S.E.2d at 342.

II. ANALYSIS

We re-evaluate Defendant's appeal as directed by the Supreme Court, considering Grady III and determining whether that decision impacts our prior reversal of the SBM order. Because Grady III modifies and affirms Grady II , we look to both opinions to discern the scope, effect, and import of Grady III . We begin, then, with a review of Grady II .

A. Grady II

In Grady II , this Court determined whether lifetime SBM imposed on an unsupervised recidivist defendant was " ‘reasonable—when properly viewed as a search[.]’ " Grady II , 259 N.C. App. at 665, 817 S.E.2d at 21 (quoting Grady v. North Carolina , 575 U.S. 306, 310, 135 S.Ct. 1368, 1371, 191 L. Ed. 2d 459, 463 (2015) ). We ultimately held that Mr. Grady's diminished privacy expectations did not render lifetime SBM reasonable under the totality of the circumstances. Id. at 675–77, 817 S.E.2d at 28.

Our analysis in Grady II focused on four things: (1) the defendant's expectation of privacy as a convicted sex offender subject to registration, id. at 668–72, 817 S.E.2d at 23-25 ; (2) the physical intrusion of the SBM monitor itself, id. at 671–72, 817 S.E.2d at 25 ; (3) SBM's continuous intrusion into the defendant's locational privacy interest,

840 S.E.2d 271

id. at 671–74, 817 S.E.2d at 25-26 ; and (4) the State's interest in monitoring the defendant and whether lifetime SBM served that interest, id. at 674–77, 817 S.E.2d at 27-28.²

270 N.C.App. 102

As to the first circumstance, we held that registration on the sex offender registry meant the "[d]efendant's expectation of privacy [was] ... appreciably diminished as compared to law-abiding citizens." Id. at 670, 817 S.E.2d at 24. We next explained that the impact of the ankle monitor used to conduct SBM was "more inconvenient than intrusive, in light of [the] defendant's diminished expectation of privacy as a convicted sex offender." Id. at 672, 817 S.E.2d at 25. We also observed, however, that SBM's "continuous, warrantless search of defendant's location through the use of GPS technology .... is ‘uniquely intrusive’ as compared to other searches upheld by the United States Supreme Court." Id. at 672, 817 S.E.2d at 25-26 (quoting Belleau v. Wall , 811 F.3d 929, 940 (7th Cir. 2016) (Flaum, J., concurring)). Lastly, we recognized "the State's compelling interest in protecting the public, particularly minors, from dangerous sex offenders[,]" id. at 675, 817 S.E.2d at 27, but nonetheless held the SBM search unreasonable because "the State failed to present any evidence of its need to monitor defendant, or the procedures actually used to conduct such monitoring in unsupervised cases." Id. at 676, 817...