              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-837

                               Filed: 15 March 2016

Harnett County, No. 06CRS50138

STATE OF NORTH CAROLINA

             v.

MALCOLM SINCLAIR BLUE, Defendant.


      Appeal by defendant from Order entered 6 April 2015 by Judge C. Winston

Gilchrist in Harnett County Superior Court. Heard in the Court of Appeals 13

January 2016.


      Attorney General Roy Cooper, by Special Deputy Attorney General Joseph
      Finarelli, for the State.

      Meghan Adelle Jones for defendant.


      ELMORE, Judge.


      Malcolm Sinclair Blue (defendant) appeals from the trial court’s order

requiring him to enroll in Satellite-Based Monitoring (SBM) and to register as a sex

offender for his natural life. After careful review, we reverse and remand.

                                  I. Background

      In 2006, the North Carolina General Assembly established a sex offender

monitoring program that uses a continuous satellite-based monitoring system to

monitor three categories of sexual offenders. N.C. Gen. Stat. § 14-208.40 et seq.
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                                   Opinion of the Court



(2015). For nearly a decade, the SBM program survived constitutional challenges.

See, e.g., State v. Bowditch, 364 N.C. 335, 352, 700 S.E.2d 1, 13 (2010) (“[S]ubjecting

defendants to the SBM program does not violate the Ex Post Facto Clauses of the

state or federal constitution.”); State v. Martin, 223 N.C. App. 507, 509, 735 S.E.2d

238, 239 (2012) (“[O]ur Supreme Court considered the fact that offenders subject to

SBM are required to submit to visits by DCC personnel and determined that this type

of visit is not a search prohibited by the Fourth Amendment.”); see also State v. Jones,

231 N.C. App. 123, 127, 750 S.E.2d 883, 886 (2013) (“The context presented in the

instant case—which involves a civil SBM proceeding—is readily distinguishable from

that presented in [United States. v. Jones]” “where the Court held that the

Government’s installation of a GPS device on a target’s vehicle, and its use of that

device to monitor the vehicle’s movements, constitutes a ‘search’ within the meaning

of the Fourth Amendment.”) (citing United States v. Jones, 565 U.S. ___, 181 L. Ed.

2d 911 (2012)), abrogated by Grady v. North Carolina, 575 U.S. ___, 191 L. Ed. 2d 459

(2015).

      In State v. Grady, No. COA13-958, 2014 WL 1791246 (N.C. Ct. App. May 6,

2014), appeal dismissed, review denied, 367 N.C. 523, 762 S.E.2d 460 (2014), cert.

granted, judgment vacated, 575 U.S. ___, 191 L. Ed. 2d 459 (2015), this Court, relying

on State v. Jones, overruled the defendant’s argument that “SBM required him to be

subject to an ongoing search of his person.” The North Carolina Supreme Court



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                                 Opinion of the Court



denied review, and the Supreme Court of the United States granted certiorari. Grady

v. North Carolina, 575 U.S. ___, 191 L. Ed. 2d 459 (2015). On 30 March 2015, the

Court held in a per curiam opinion that North Carolina’s SBM program “effects a

Fourth Amendment search.” Id. at ___, 191 L. Ed. 2d at ___.

      The Court stated, “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.” Id. at ___, 191 L.

Ed. 2d at ___. The Court, acknowledging the stated “civil nature” of the program,

explained, “It is well settled . . . that the Fourth Amendment’s protection extends

beyond the sphere of criminal investigations, Ontario v. Quon, 560 U.S. 746, 177 L.

Ed. 2d 216 (2010), and the government’s purpose in collecting information does not

control whether the method of collection constitutes a search.” Grady, 575 U.S. at

___, 191 L. Ed. 2d at ___ (internal quotations omitted). Ultimately, the case was

remanded to the New Hanover County Superior Court to determine if, based on the

above framework, the SBM program is reasonable.

      In the case sub judice, defendant pleaded guilty to second-degree rape in May

2006, and the trial court sentenced him to 80 to 105 months imprisonment. After

defendant completed his sentence, the Harnett County Superior Court held a



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                                  Opinion of the Court



Determination Hearing on 6 April 2015 to decide if defendant shall register as a sex

offender and enroll in SBM for his natural life. During the hearing, the following

colloquy took place:

             THE COURT: Okay. Reading between the lines—I’ll be
             glad to hear you, Mr. Jones, but I assume your position is
             that satellite-based monitoring program is unreasonable
             search or seizure under 4th Amendment, and that issue not
             having been decided by the state courts yet?

             MR. JONES: That’s correct, your Honor. What I would ask
             your Honor is to stay making any ruling on this, based on
             Grady v. North Carolina . . . . If you read the last
             paragraph, it says the North Carolina courts did not
             examine whether the state’s monitoring program is
             reasonable when properly viewed as a search and will not
             do so in this first instance. . . . Your Honor, what I think,
             from reading that case, the only judicially efficient thing to
             do is stay these cases until you get that ruling because they
             are now saying it is a search. Our Supreme Court said it
             was a civil matter. . . . So we ask your Honor to stay this
             until we get some type of ruling from either our Supreme
             Court, the United States Supreme Court, or maybe
             possibly the attorney general’s office, how they are going to
             proceed in this.

             ....

             THE COURT: . . . State want to be heard any further or
             offer any evidence?

             MR. BAILEY: Well, can I address Mr. Jones’s comments,
             your Honor?

             THE COURT: You certainly can. Let me tell you what I
             am inclined to do. I understand the Grady case says, at
             least I think I do, Grady case does not strike down the
             satellite-based monitoring system that the General


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                     Opinion of the Court



Assembly has passed in North Carolina. It simply says
that such a program is a search of the person, which seems
logical. Of course, it says some corollary things as well, but
it does not strike down the statute. So what I am inclined
to do is, consistent with the existing state of North Carolina
law, which is binding on me, I’m inclined to order the
lifetime monitoring. Clearly under the existing law, this is
an aggravated offense. Obviously, if the courts strike the
program down, it would invalidate this Court’s order, but I
think it’s incumbent upon me at this point in time to follow
the law in this state as I understand it to be if there is no
federal law overriding those decisions or invalidating the
satellite-based monitoring statute in North Carolina. So
that’s my inclination. Anything else the State wants to be
heard about?

MR. BAILEY: No, sir.

MR. JONES: I would ask, your Honor, state at this time,
because we’re opposing the satellite-based monitoring, is
that the State needs to put on some evidence to show that
it’s reasonable and that it complies with the constitution,
based on Grady v. North Carolina. We would like to have
some type of evidentiary hearing because my client is not
agreeing to be placed on satellite-based monitoring.

THE COURT: Well, do you have any witnesses that you
want to call or any evidence that you want to offer beyond
a reasonable doubt, beyond the file, beyond the fact that
his conviction beyond a reasonable doubt is second-degree
rape?

MR. BAILEY: I don’t have any other evidence to offer,
Judge Gilchrist. . . .

THE COURT: Okay.

MR. JONES: We’re objecting to its constitutionality based
on this, your Honor.



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                                   Opinion of the Court



             ....

             THE COURT: Okay. All right. Well, Court finds satellite-
             based monitoring is required in this case for the lifetime of
             the defendant and orders the same. Defendant’s objections
             and exceptions are noted for the record. Court specifically
             finds that it has taken into consideration that the
             imposition of lifetime satellite-based monitoring
             constitutes a search or seizure of the defendant under the
             4th Amendment to the United States constitution and
             equivalent provisions under the state constitution. Court
             finds that such search and seizure is reasonable. Court
             finds the defendant has been convicted beyond a
             reasonable doubt of second-degree rape. Based upon that
             conviction, and upon the file as a whole, lifetime satellite-
             based monitoring is reasonable and necessary and required
             by the statute. The State request any further findings or
             conclusions?

             MR. BAILEY: I don’t, your Honor.

      The Honorable C. Winston Gilchrist ordered defendant to register as a sex

offender and enroll in SBM for his natural life. Defendant gave oral notice of appeal,

filed written notice of appeal on 16 June 2015, and filed a petition for writ of

certiorari, which we granted on 30 December 2015.

                                     II. Analysis

      Defendant’s argument is twofold: “The trial court failed to exercise its

discretion and therefore erred as a matter of law in denying [defendant’s] request for

a stay, in light of Grady v. North Carolina[;]” and “the trial court erred in concluding

that continuous [SBM] is reasonable and a constitutional search under the Fourth

Amendment in the absence of any evidence from the State as to reasonableness.”


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                                   Opinion of the Court



      First, defendant argues that because “SBM is a civil, regulatory scheme subject

to the rules applicable to other civil matters,” the trial court had discretion to enter a

stay. On appeal, defendant maintains that the trial court erred in failing to exercise

discretion under Rule 62(d) of our Rules of Civil Procedure. At the hearing, counsel

for defendant requested that the court “stay making any ruling on this,” “stay these

cases until you get that ruling,” “stay this until we get some type of ruling,” “stay it,”

and “stay them all.” Per the plain language of Rule 62(d), “[w]hen an appeal is taken,

the appellant may obtain a stay of execution.” N.C. Gen. Stat. § 1A-1, Rule 62 (2015).

Accordingly, it would not have applied to stay defendant’s SBM hearing. Defendant

presents no other authority on why the trial court erred in denying his request.

      Second, defendant argues, “Determining the reasonableness of a search

requires detailed analysis of the nature and purpose of the search and the privacy

expectations at stake.” He claims that the trial court’s analysis was conclusory and

was based upon no findings as to the reasonableness of the search. Defendant argues,

“It was the State’s burden to prove by a preponderance of the evidence that the

challenged search was reasonable and constitutional[,]” yet the State presented no

evidence.

      The State denies that it has the burden of proving the reasonableness of SBM

because SBM is a “civil, regulatory scheme.” Thus, the State argues, “Defendant

became a movant seeking a declaration that the search imposed by SBM is



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                                  Opinion of the Court



unreasonable and in violation of the Fourth Amendment and, so, voluntarily assumed

the burden of proof. See, e.g., N.C.G.S. § 1A-1, Rule 56(a)[.]” The State, however,

concedes the following:

             If this Court concludes that the State bears the burden of
             proving the reasonableness of the search imposed by
             satellite-based monitoring, the State agrees with
             Defendant that the trial court erred by failing to conduct
             the appropriate analysis. As a result, this case should be
             remanded for a new hearing where the trial court will be
             able to take testimony and documentary evidence
             addressing the “totality of the circumstances” vital in an
             analysis of the reasonableness of a warrantless search[.]

      As the State notes in its concession above, the trial court erred by failing to

conduct the appropriate analysis. Regardless of who has the burden of proof, the trial

court did not analyze 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.” Grady, 575 U.S. at ___, 191 L. Ed. 2d at ___. Rather, the trial

court simply acknowledged that SBM constitutes a search and summarily concluded

it is reasonable, stating that “[b]ased upon [the second-degree rape] conviction, and

upon the file as a whole, lifetime satellite-based monitoring is reasonable and

necessary and required by the statute.”

      Accordingly, the trial court failed to follow the mandate of the Supreme Court

of the United States and determine, based on the totality of the circumstances, if the

SBM program is reasonable when properly viewed as a search. Grady, 575 U.S. at



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                                  Opinion of the Court



___, 191 L. Ed. 2d at ___; see Samson v. California, 547 U.S. 843, 848, 165 L. Ed. 2d

250, 256 (2006) (“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.”) (internal quotations and citations omitted); Vernonia Sch. Dist. 47J v.

Acton, 515 U.S. 646, 652–53, 132 L. Ed. 2d 564, 574 (1995).

      On remand, we conclude that the State shall bear the burden of proving that

the SBM program is reasonable. State v. Wade, 198 N.C. App. 257, 270, 679 S.E.2d

484, 492 (2009) (“Warrantless searches are presumed to be unreasonable and

therefore violative of the Fourth Amendment of the United States Constitution.”)

(citing State v. Logner, 148 N.C. App. 135, 139, 557 S.E.2d 191, 194 (2001)).

                                  III. Conclusion

      We reverse the trial court’s order and remand for a new hearing in which the

trial court shall determine if SBM is reasonable, based on the totality of the

circumstances, as mandated by the Supreme Court of the United States in Grady v.

North Carolina, 575 U.S. ___, 191 L. Ed. 2d 459 (2015).

      REVERSED AND REMANDED.

      Judges STROUD and DIETZ concur.




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