State v. Ross

• Decision Date: 13 June 2018
• Docket Number: Opinion No. 27815,Appellate Case No. 2016-000738
• Citation: 815 S.E.2d 754
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. David Wilkins ROSS, Appellant.

423 S.C. 504

815 S.E.2d 754

The STATE, Respondent,

v.David Wilkins ROSS, Appellant.

Appellate Case No. 2016-000738

Opinion No. 27815

Supreme Court of South Carolina.

Heard March 6, 2018

Filed June 13, 2018

Appellate Defender LaNelle Cantey DuRant, of Columbia, for Appellant.

Matthew C. Buchanan, South Carolina Department of Probation, Parole and Pardon Services, of Columbia, for Respondent.

JUSTICE FEW :

David Wilkins Ross pled guilty in 1979 to lewd act upon a child. Thirty-two years later, he was convicted in magistrate's court of misdemeanor failure to register as a sex offender. Ross argues the automatic imposition of lifetime electronic monitoring required by subsection 23-3-540(E) of the South Carolina Code (Supp. 2017) as a result of his failure to register is an unreasonable search under the Fourth Amendment. Addressing only this particular subsection of 23-3-540, we agree. We reverse the circuit court's order automatically imposing electronic monitoring, and remand for an individualized inquiry into whether the imposition of monitoring in Ross's circumstances is reasonable under the Fourth Amendment.

I. Facts and Procedural History

When Ross pled guilty to lewd act upon a child in 1979, the trial court—the late Honorable Frank Eppes—sentenced Ross to six years in prison, but suspended all of the active prison time upon Ross's successful service of five years of probation. Less than two years later, Judge Eppes revoked Ross's probation for being convicted of alcohol-related offenses in municipal court. His conviction for lewd act—which is now reclassified as criminal sexual conduct (CSC) with a minor in the third degree¹ —is the only sexual offense of which Ross has been convicted.

In 1994, our General Assembly enacted the Sex Offender Registry Act. See S.C. Code Ann. §§ 23-3-400 to -555 (2007 & Supp. 2017). Subsection 23-3-430(A) (2007) provides, "Any person, regardless of age, residing in the State of South Carolina who in this State ... pled guilty ... to an offense described below, ... shall be required to register" as a sex offender. Subsection 23-3-430(C)(6) includes "criminal sexual conduct with minors, third degree" as an offense requiring registration. "A person required to register pursuant to this article is required to register biannually for life." § 23-3-460(A) (Supp. 2017).

Ross was convicted in 2011 in magistrate court for failing to register. See § 23-3-470(A) (Supp. 2017) ("If an offender fails to register ..., he must be punished as provided in subsection (B)."); § 23-3-470(B)(1) ("A person convicted for a first offense is guilty of a misdemeanor...."). The details of Ross's failure to comply with subsection 23-3-470(A) are not in the record.

Under subsection 23-3-540(E), the automatic, mandatory consequence of Ross's failure to register is lifetime electronic monitoring. In particular, subsection 23-3-540(E) provides,

A person who is required to register pursuant to this article for committing ... criminal sexual conduct with a minor in the third degree, ... and who violates a provision of this article, must be ordered by the court to be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.

To enforce this requirement, the Department brought an action in circuit court seeking an order to place Ross on electronic monitoring. At the hearing before the circuit court, Ross argued automatic, mandatory electronic monitoring pursuant to subsection 23-3-540(E) is an unconstitutional search under the Fourth Amendment. Ross argued the "must be ordered" language in subsection 23-3-540(E) prohibits the court from considering his unique circumstances, which in turn renders the required electronic monitoring unreasonable. See Samson v. California , 547 U.S. 843, 848, 126 S.Ct. 2193, 2197, 165 L.Ed.2d 250, 256 (2006) (stating the Fourth Amendment requires courts to " ‘examin[e] the totality of the circumstances’ to determine whether a search is reasonable" (alteration in original) (quoting United States v. Knights , 534 U.S. 112, 118, 122 S.Ct. 587, 591, 151 L.Ed.2d 497, 505 (2001) ) ). To support his argument, Ross presented expert testimony from Dr. William Burke, whom the circuit court qualified as an expert in "psychosexual evaluation and treatment." Dr. Burke testified he evaluated Ross and determined he is in the "lowest category of risk" of reoffending.

The circuit court disagreed with Ross and found that an order placing Ross on electronic monitoring was automatic and mandatory under subsection 23-3-540(E). Ross appealed to the court of appeals. We certified the case for our review pursuant to Rule 204(b) of the South Carolina Appellate Court Rules.

II. Fourth Amendment

The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. amend. IV ; see also S.C. CONST. art. I, § 10. In Grady v. North Carolina , 575 U.S. ––––, 135 S.Ct. 1368, 191 L.Ed.2d 459 (2015), the Supreme Court of the United States clarified that electronic monitoring of sex offenders is a "search" under the Fourth Amendment. 575 U.S. at ––––, 135 S.Ct. at 1370, 191 L.Ed.2d at 461-62. The Court held "a State ... conducts a search when it attaches a device to a person's body, without consent, for the purpose of tracking that individual's movements." 575 U.S. at ––––, 135 S.Ct. at 1370, 191 L.Ed.2d at 461-62. For any search, "The ultimate standard set forth in the Fourth Amendment is reasonableness." Cady v. Dombrowski , 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706, 713 (1973). As the Court stated in Grady , "The Fourth Amendment prohibits only unreasonable searches. 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." 575 U.S. at ––––, 135 S.Ct. at 1371, 191 L.Ed.2d at 462.

A. Electronic Monitoring under the Sex Offender Registry

Section 23-3-400 (Supp. 2017) sets forth the purpose of the sex offender registry: "to provide for the public health, welfare, and safety of its citizens" and "provide law enforcement with the tools needed in investigating criminal offenses." As part of the sex offender registry, the General Assembly created a comprehensive scheme for electronic monitoring of certain sex offenders through the use of "an active electronic monitoring device." There are three different categories of events that trigger the electronic monitoring requirement. Persons newly convicted of sex offenses are governed by subsections 23-3-540(A) and (B);² persons who violate probation, parole, or community supervision are governed by subsections 23-3-540(C) and (D);³ and persons who violate the provisions of the registry itself are governed by subsections 23-3-540(E) and (F). When the underlying crime is CSC with a minor in the first or third degree, the electronic monitoring requirement is automatic and mandatory. § 23-3-540(A), (C), and (E). For all other offenses,⁴ the court "may" impose the electronic monitoring requirement. § 23-3-540(B), (D), and (F). The "active electronic monitoring device" required by section 23-3-540 uses "a web-based computer system that actively monitors and records a person's location at least once every minute twenty-four hours a day and that timely records and reports the person's presence near or within a prohibited area or the person's departure from a specified geographic location." § 23-3-540(P).

B. The Reasonableness of the Search

The State argues the automatic, mandatory requirement of electronic monitoring—triggered by Ross's failure to register in 2011—is reasonable under the Fourth Amendment, and "the trial court in this case did not need to conduct an individual assessment of reasonableness to order [Ross] to be electronically monitored." The State relies primarily on this Court's decision in State v. Dykes , 403 S.C. 499, 744 S.E.2d 505 (2013), in which we considered a Fourth Amendment challenge to automatic, mandatory electronic monitoring triggered pursuant to a different subsection—23-3-540(C)—by the offender's violation of her probation. 403 S.C. at 510 n.9, 744 S.E.2d at 511 n.9. While we upheld the requirement of electronic monitoring in Dykes , the situation we faced there was vastly different from the situation here. First, the primary legal challenge to electronic monitoring in Dykes was based on due process. 403 S.C. at 505, 744 S.E.2d at 508. We addressed the Fourth Amendment challenge only in a footnote, and only in the nature of a "memorandum" opinion pursuant to Rule 220 of the South Carolina Appellate Court Rules. 403 S.C. at 510 n.9, 744 S.E.2d at 511 n.9. Rule 220(a) specifically provides "memorandum opinions ... shall be of no precedential value."⁵

Second—and more importantly—the factual and legal context of our decision in Dykes was completely different. After the defendant pled guilty to lewd act upon a child, the court sentenced her to fifteen years in prison, but partially suspended the fifteen year term upon the service of three years of active prison time followed by five years of probation. 403 S.C. at 503, 744 S.E.2d at 507. The question of automatic, mandatory electronic monitoring arose after the defendant served the active portion of her prison sentence, and then "violated her probation in multiple respects," which triggered electronic monitoring under subsection 23-3-540(C). Id. The fact the defendant was on probation when the court imposed electronic monitoring is important. Probation is considered "an act of grace" given to a person who is still serving the sentence of the court, and "the revocation of this privilege of probation is more in the nature of an extension of the original proceedings." State v. Franks , 276 S.C. 636, 638, 281 S.E.2d 227, 228 (1981). In addition, section 24-21-410 of the South Carolina Code (Supp. 2017) provides, ...