State v. Grady

372 N.C. 509

831 S.E.2d 542

STATE of North Carolina

v.Torrey GRADY

No. 179A14-3

Supreme Court of North Carolina.

Filed August 16, 2019

Joshua H. Stein, Attorney General, by Teresa M. Postell, Assistant Attorney General, and Joseph Finarelli, Special Deputy Attorney General, for the State-appellant.

Glenn Gerding, Appellate Defender, and Lewis Everett, Durham, for defendant-appellee.

Christopher Brook, Raleigh, Wake County, for American Civil Liberties Union of North Carolina Legal Foundation; and Nathan Freed Wessler, pro hac vice, and Brandon J. Buskey, pro hac vice, for American Civil Liberties Union Foundation, amici curiae.

EARLS, Justice.

The Fourth 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. The United States Supreme Court has determined that North Carolina's satellite-based monitoring (SBM) of sex offenders, which involves attaching an ankle monitor "to a person's body, without consent, for the purpose of tracking that individual's movements," constitutes a search within the meaning of the Fourth Amendment. Grady v. North Carolina , ––– U.S. ––––, 135 S. Ct. 1368, 1370, 191 L.Ed.2d 459 (2015) (per curiam). The Supreme Court remanded the case for an examination of "whether the State's monitoring program is reasonable—when properly viewed as a search." Id. at 1371. In its per curiam opinion, the Supreme Court noted, among other things, the following:

The State's program is plainly designed to obtain information. And since it does so by physically intruding on a subject's body, it effects a Fourth Amendment search.

That conclusion, however, does not decide the ultimate question of the program's constitutionality. 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. See, e.g. , Samson v. California , 547 U.S. 843 [126 S.Ct. 2193, 165 L.Ed.2d 250] (2006) (suspicionless search of parolee was reasonable); Vernonia School 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). The North Carolina courts did not examine whether the State's monitoring program is reasonable—when properly viewed as a search—and we will not do so in the first instance.

Id. (citations omitted). In accordance with this decision, this case was ultimately remanded to the superior court, which entered an order determining the SBM program to be constitutional. The Court of Appeals reversed, but only as to Mr. Grady individually. We conclude that the Court of Appeals erroneously limited its holding to the constitutionality of the program as applied only to Mr. Grady, when our analysis of the reasonableness of the search applies equally to anyone in Mr. Grady's circumstances. Cf. Graham v. Florida , 560 U.S. 48, 82, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (holding that state statutes mandating a sentence of life imprisonment without the possibility of parole are unconstitutional as applied to a specific group, namely juveniles who did not commit homicide).

In North Carolina, "SBM's enrollment population consists of (1) offenders on parole or probation who are subject to State supervision, (2) unsupervised offenders who remain under SBM by court order for a designated number of months or years, and (3) unsupervised offenders subject to SBM for life, who are also known as ‘lifetime trackers.’ " State v. Bowditch , 364 N.C. 335, 338, 700 S.E.2d 1, 3 (2010). Mr. Grady is in the third of these categories in that he is subject to SBM for life and is unsupervised by the State through probation, parole, or post-release supervision. Additionally, Mr. Grady is a "recidivist," which makes lifetime SBM mandatory as to him without any individualized determination of the reasonableness of this search. Because we conclude that the relevant portions of N.C.G.S. §§ 14-208.40A(c) and 14-208.40B(c) are unconstitutional as applied to all individuals who, like Mr. Grady, are in the third Bowditch category and who are subject to mandatory lifetime SBM based solely on their status as a "recidivist," we modify and affirm the opinion of the Court of Appeals.

Background

Mr. Grady is required by North Carolina statute to enroll in the SBM program and to wear an ankle monitor at all times for the remainder of his life based on two sex crimes that he committed when he was seventeen and twenty-six years old and for which he has fully served his criminal sentences. State v. Grady , 817 S.E.2d 18 (N.C. Ct. App. 2018). On 13 September 2006, Grady pleaded guilty to indecent liberties with a child and was sentenced to a minimum of thirty-one and a maximum of thirty-eight months of imprisonment. For felony sentencing purposes, Grady stipulated to the aggravating factor that the fifteen-year-old victim was impregnated as a result of his crime, which occurred when he was twenty-six years old. He also stipulated to certain prior convictions, including a 16 January 1997 plea of no contest to a second-degree sex offense committed when he was seventeen years old and a 6 January 2004 plea of guilty to failure to register as a sex offender. Grady was unconditionally released from prison on 25 January 2009 and received certification that his rights of citizenship were "BY LAW AUTOMATICALLY RESTORED."

Over a year later, on 12 March 2010, the North Carolina Department of Correction (DOC) sent a letter to Grady informing him that it had made an initial determination that he met the statutory criteria of a "recidivist," which would require his enrollment in the SBM program, and giving him notice to appear at a hearing at which the court would determine his eligibility for SBM. Before a hearing was held, he pleaded guilty on 27 October 2010 to failure to maintain his address with the sex offender registry and was sentenced to twenty-four to twenty-nine months in prison. He served that term of imprisonment and was again unconditionally released on 24 August 2012. A new hearing was scheduled for 14 May 2013 in the Superior Court in New Hanover County to determine if Grady should be required to enroll in the State's SBM program.

North Carolina's SBM Program

North Carolina's SBM program for sex offenders¹ became effective on 1 January 2007 as a result of the ratification of "An Act To Protect North Carolina's Children/Sex Offender Law Changes," which directed the DOC to "establish a sex offender monitoring program that uses a continuous satellite-based monitoring system .... to monitor" the locations of certain categories of sex offenders. An Act To Protect North Carolina's Children/Sex Offender Law Changes, ch. 247, sec. 15, 2005 N.C. Sess. Laws (Reg. Sess. 2006) 1065, 1074–79 (codified as amended at N.C.G.S. §§ 14-208.40 to -208.45 (2017 & Supp. 1 2018)); see also Bowditch , 364 N.C. at 337, 700 S.E.2d at 3 ("As authorized by the legislation, DOC established and began administering the SBM program on 1 January 2007."). The General Assembly mandated that the "[SBM] program shall use a system that 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." Ch. 247, sec. 15.(a), 2005 N.C. Sess. Laws (Reg. Sess. 2006) at 1075 (codified as amended at N.C.G.S. § 14-208.40(c)(1) ).

In general terms, North Carolina's statutory framework for the satellite-based monitoring of convicted sex offenders establishes that an offender who is (a) classified as a sexually violent predator, (b) a recidivist, (c) convicted of an aggravated offense, or (d) an adult convicted of statutory rape of a child or statutory sex offense with a victim under the age of thirteen must submit to SBM for life. See N.C.G.S. §§ 14-208.40A(c), -208.40B(c) (2017). The statutes provide for no individualized assessment of the offender; the court has no discretion over whether to impose SBM or for how long; and no court has the authority to terminate SBM for these individuals. Id. All other sex offenders may be ordered to submit to SBM if, based on a risk assessment, the offender "requires the highest possible level of supervision and monitoring." Id. §§ 14-208.40A(d) - (e), -208.40B(c) (2017). For these individuals the court specifies the period of time that the offender must be enrolled in the SBM program. Id. §§ 14-208.40A(e), -208.40B(c).

Section 14-208.6(2b) of the North Carolina General Statutes defines a "recidivist" as "[a] person who has a prior conviction for an offense that is described in G.S. 14-208.6(4)," which, in turn, defines a "reportable conviction." N.C.G.S. § 14-208.6(2b) (Supp. 1 2018). "Reportable convictions," which encompass a range of statutorily defined sex crimes, including "[a] final conviction for an offense against a minor," "a sexually violent offense," "or an attempt to commit any of those offenses," id. § 14-208.6(4)(a) (Supp. 1 2018), are final convictions that trigger the registration requirements of the "statewide sex offender registry." See id. § 14-208.7(a) (2017) (stating that "[a] person who is a State resident and who has a reportable conviction shall be required to maintain registration with the sheriff of the county where the person resides"). An individual who has a prior conviction for a reportable offense, and therefore meets the statutory definition of a "recidivist," must maintain registration with the sex offender registry for life. Id. § 14-208.23 (2017).

An individual who is subjected to lifetime SBM may file a request with the Post-Release Supervision and Parole Commission to terminate the SBM requirement. Such a request, however, cannot be filed until at least one year after the individual: "(i) has served his or her sentence for...