               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA 19-787

                                Filed: 16 June 2020

Alamance County, No. 17 CRS 50680

STATE OF NORTH CAROLINA

              v.

RONNIE HUTCHENS, Defendant.


      Appeal by Defendant from orders entered 12 July 2018 by Judge Paul C.

Ridgeway in Alamance County Superior Court. Heard in the Court of Appeals 28

April 2020.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Sonya
      Calloway-Durham, for the State.

      Sarah Holladay for Defendant.


      INMAN, Judge.


      Ronnie Hutchens (“Defendant”), who raped his roommate and forced her to

perform oral sex, was sentenced to a prison term of roughly seven to fourteen years,

to be followed by five years of post-release supervision on conditions including

satellite-based monitoring (“SBM”). He appeals, by petition for writ of certiorari,

from an order requiring him to submit to SBM for the remainder of his life. We grant

Defendant’s petition in our discretion and, based on recent decisions from the
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Supreme Court of the United States and the North Carolina Supreme Court, reverse

the trial court’s order imposing lifetime SBM.

      Defendant also seeks review of an order assessing attorney’s fees against him

as part of his sentencing, and the State concedes error under State v. Friend, 257 N.C.

App. 516, 809 S.E.2d 902 (2018). But because no civil judgment for those attorney’s

fees has been entered, we dismiss this portion of Defendant’s appeal.

                  I. FACTUAL AND PROCEDURAL HISTORY

      The record on appeal discloses the following:

      On 9 July 2018, Defendant entered an Alford plea to second degree forcible

rape, second degree sex offense, and assault on a female. The trial court completed a

prior record level worksheet disclosing a lengthy history of felony and misdemeanor

convictions, consisting largely of larceny, breaking and entering, drug possession, and

forgery convictions between 1982 and 2016.           The worksheet also showed two

misdemeanor convictions for assault on a female from 1997 and 2015. In conjunction

with Defendant’s plea and prior record level, the trial court sentenced Defendant to

110 months to 192 months imprisonment. It also ordered Defendant to have no

contact with the victim.

      Because Defendant pled guilty to a sexually violent offense, the trial court held

a hearing on whether to impose lifetime SBM pursuant to N.C. Gen. Stat. § 14-

208.40A(c) (2017). At the hearing, the State introduced testimony from Brandon Cox,



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a probation officer, regarding the use of SBM to track defendants.          Officer Cox

testified that SBM is conducted via an ankle bracelet called an ET-1 that monitors a

defendant’s location and speed of travel. The device is waterproof, measures roughly

an inch-and-a-half wide and three inches tall, and must be plugged into an electrical

outlet to be recharged. Officer Cox also testified that his office checks the information

collected from the device at least three times a week to ensure that the offender is

“complying with their sex offender treatment classes or any other specific items on

their judgment . . . [and that] they’re not going to places they’re not supposed to be

going to and complying with all the conditions of the registry.” If the data discloses

that an offender has been in a prohibited place or attempted to remove the bracelet,

a probation officer is sent to investigate. Officer Cox acknowledged that although he

did not consider the “main objective” of SBM to “generate evidence for law

enforcement,” the data collected by his office can be used by police “to exonerate an

individual and/or it could be used against them.”

       The State also introduced a Static-99 into evidence.          Officer Cox, who

completed the form for Defendant, testified that it is used to “predict[] the sexual

recidivism for th[e] offender,” and that Defendant scored a 1, placing him in the “low

risk” category. According to Officer Cox, “[o]ffenders with the same score, in multiple

routine samples, have been found to sexually recidivate at 2.5 to . . . 5.8 percent after

five years.”



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      After the State’s presentation of evidence, Defendant argued that the

imposition of lifetime SBM was not a reasonable warrantless search under the Fourth

Amendment based on State v. Grady, 259 N.C. App. 664, 817 S.E.2d 18 (2018) (“Grady

II”), aff’d as modified, 372 N.C. 509, 831 S.E.2d 542 (2019) (“Grady III”). The State

argued that even though Defendant had scored in the low risk category on the Static-

99, he did so only because of his advanced age. The State pointed out that when

Defendant’s age was removed from the Static-99 risk assessment, Defendant scored

in the “moderate to high” risk level. Further, the State argued that Defendant’s first

violent offense, in 1997, indicated that his propensity for violence increased as he

aged. It also argued that Defendant’s privacy rights were appreciably diminished

because Defendant is a convicted felon, a registered sex offender, and will be subject

to post-release supervision for five years after his release from prison. The State

argued that SBM served a legitimate governmental interest because it promoted “re-

integration and positive . . . citizenship of individuals” by deterring defendants from

reoffending.   It also argued that SBM served a special need divorced from law

enforcement but, in doing so, proceeded to restate its earlier argument: “this is . . . to

help ensure that . . . they are continuing to comply with the law; they’re being law-

abiding citizens; that they’re not engaging in further conduct that has become a risk

factor[.] . . . We, as a society, have a vested interest in seeing that no further sex




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crimes occur.” The State did not introduce any evidence showing SBM was actually

effective in accomplishing those objectives.

      At the conclusion of the hearing, the trial court announced that lifetime SBM

constituted a reasonable search and served a special purpose “to ensure . . . that there

is not recidivism.” In support of its ruling, the trial court found that the SBM device

constituted “a relatively minimal intrusion upon individual privacy, particularly

those individuals who are convicted of sex offenses and are required to be on the

registry.” It further found “that the State has met, by the preponderance of evidence,

that the imposition of [SBM] does promote a governmental interest in this case; it is

accurate.” And it found that Defendant showed a sufficient risk of reoffending based

on his prior criminal history, as it demonstrated his “propensity to commit violent

offenses seems to have increased with age rather than diminished with age.”

      The trial court entered its SBM order and written judgment sentencing

Defendant on 9 July 2018. The criminal judgment also indicated that Defendant was

ordered to pay $1,200 in attorney’s fees, but the record on appeal does not include a

civil judgment entered in accordance with N.C. Gen. Stat. § 7A-455(b) (2017). Nor

does the record disclose that Defendant was given an opportunity to be heard on the

issue as required by Friend.

      Defendant did not seek to appeal any orders entered in his case until he sent

a letter dated 17 February 2019 to the Alamance County Clerk of Superior Court, in



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which he requested an appeal of his second degree rape conviction “on the grounds of

conflict of interest and ineffective assistance of counsel.” After the filing of appellate

entries and appointment of counsel, Defendant filed a petition for writ of certiorari

on 15 November 2019 requesting review of the SBM order.

                                    II. ANALYSIS

A. Appellate Jurisdiction

      1. SBM Order

      “A defendant must file a written notice of appeal from an SBM order pursuant

to Rule 3 of the Rules of Appellate Procedure because of the civil nature of SBM

proceedings.” State v. Lopez, ___ N.C. App. ___, ___, 826 S.E.2d 498, 503 (2019).

However, this Court has granted a defendant’s petition for writ of certiorari to review

a meritorious challenge to an SBM order notwithstanding his failure to file a written

notice of appeal—timely or otherwise. Id. at 504. We have done so even when the

defendant failed to give oral notice of appeal. See State v. Simmons, 253 N.C. App.

239, 798 S.E.2d 441, 2017 WL 1381810, *3 (2017) (unpublished) (granting certiorari

to review and reverse an SBM order when the defendant filed a written appeal from

his underlying convictions but did not appeal the SBM order orally or in writing).

Further, we have allowed certiorari review of an SBM order when the defendant filed

a defective pro se written notice of appeal that was not served on the State “ ‘[i]n the

interest of justice, and to expedite the decision in the public interest.’ ” State v.



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Robinson, 249 N.C. App. 568, 572, 791 S.E.2d 862, 865 (2016) (quoting State v. Brooks,

204 N.C. App 193, 195, 693 S.E.2d 204, 206 (2010)). Given the meritorious nature of

Defendant’s argument, and the current “tumultuous time in our case law regarding

the parties’ burdens and the role of the trial court in hearings on SBM,” Lopez, ___

N.C. App. at ___, 826 S.E.2d at 509, we allow his petition for writ of certiorari to

review the SBM order in our discretion.

      2. Attorney’s Fees

      Defendant acknowledges in his principal brief that the lack of a civil judgment

for fees deprives this Court of subject matter jurisdiction. State v. Jacobs, 361 N.C.

565, 565, 648 S.E.2d 841, 842 (2007). Defendant asks this Court to invoke Rule 2 of

the North Carolina Rules of Appellate Procedure to review the order on the merits or,

in the alternative, issue an extraordinary writ compelling entry of a civil judgment or

preventing collection of any attorney’s fees. We lack subject matter jurisdiction to

review an appeal from an order for attorney’s fees not entered as a civil judgment.

Defendant will not be prejudiced unless and until a civil judgment is entered. So we

decline to suspend the rules to review the order or issue either of the requested

extraordinary writs. See State v. Walker, 204 N.C. App. 431, 450, 694 S.E.2d 484, 497

(2010) (declining to review an indigent defendant’s appeal of a trial court’s

“recommendation” for attorney’s fees at sentencing when no civil judgment was

entered because “proceeding to rule on [the d]efendant’s challenge would put us in



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the position of evaluating the validity of a judgment that might, for all we know, have

never been entered”). This portion of Defendant’s appeal is dismissed.

B. Analysis

      This Court has faced no shortage of SBM appeals in the years since the

Supreme Court of the United States held in Grady v. North Carolina, 575 U.S. 306,

191 L. Ed. 2d 459 (2015) (“Grady I”), that its imposition constitutes a warrantless

search within the meaning of the Fourth Amendment and necessitates an inquiry

into reasonableness under the totality of the circumstances. 575 U.S. at 310, 191 L.

Ed. 2d at 462. Our Supreme Court has since addressed the question in Grady III,

holding that the imposition of mandatory lifetime SBM “is unconstitutional in its

application to all individuals in the same category as defendant—specifically,

individuals who are subject to mandatory lifetime SBM based solely on their status

as a statutorily defined ‘recidivist’ who have completed their prison sentences and are

no longer supervised by the State[.]” Grady III, 372 N.C. at 522, 831 S.E.2d at 553.

Although the Supreme Court limited the facial aspect of its holding to that singular

category of defendants, it did so after engaging in a reasonableness analysis under

the totality of the circumstances as required by the United States Supreme Court in

Grady I.

      Defendant is not a recidivist, so the order requiring Defendant to submit to

lifetime SBM is not facially unconstitutional under Grady III. We must conduct a



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reasonableness analysis anew. As recognized by both Defendant and the State, 1

Grady III—the most recent decision from our Supreme Court applying a

reasonableness analysis under the Fourth Amendment to an SBM order—provides

us with guidance as to the facts and factors to be included in the totality of the

circumstances we consider.              This approach is consistent with this Court’s

reconsideration of other non-recidivist SBM appeals following Grady III. See State v.

Griffin, No. COA 17-386-2, slip op. at 13, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___,

2020 WL 769356 (Feb. 18, 2020) (“Although Grady III does not compel the result we

must reach in this case, its reasonableness analysis does provide us with a roadmap

to get there. . . . Grady III offers guidance as to what factors to consider in

determining whether SBM is reasonable under the totality of the circumstances.”),

temp. stay allowed, ___ N.C. ___, 838 S.E.2d 460; State v. Gordon, No. COA 17-1077-

2, slip op. at 11-12, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (March 17, 2020)

(applying the reasonableness analysis employed in Grady III to a defendant convicted

of an aggravated offense and subject to lifetime SBM as a result), temp. stay allowed,

___ N.C. ___, 839 S.E.2d 351.

        We note that, following the Supreme Court’s orders temporarily staying this

Court’s decisions in both Griffin and Gordon, the precedential value of those decisions


        1 Defendant argues that “the rationale of Grady [III] requires relief for [Defendant,]” while the
State acknowledges that “[b]oth the United States Supreme Court in Grady I, and the North Carolina
Supreme Court in Grady III, have made clear that the test for constitutionality of SBM searches
‘includes’ certain factors.”

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is in limbo. While they are not controlling, neither have they been overturned. They

are instructive as the most recent published decisions of this Court addressing Grady

III’s application outside the recidivist context, particularly in light of the parties’

agreement that Grady III provides guidance in this case.

          In accordance with Grady III, we must consider the totality of the

circumstances to determine “whether the warrantless, suspicionless search here is

reasonable when ‘its intrusion on the individual’s Fourth Amendment interest’ is

balanced ‘against its promotion of legitimate governmental interests.’ ” Grady III,

372 N.C. at 527, 831 S.E.2d at 557 (quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S.

646, 652-53, 132 L. Ed. 2d 564, 574 (1995)). The State bears the burden of showing

the reasonableness of the search under this test. Id. at 543, 831 S.E.2d at 568.

          1. SBM’s Intrusion into Defendant’s Recognizable Privacy Interests

          Defendant’s SBM order was entered at the same time as his sentence, so he

will not be subject to SBM until he serves his prison term of roughly seven-and-a-half

to fourteen-and-a-half years.2 This Court addressed a similar situation in Gordon,

after the trial court imposed lifetime SBM on a defendant—convicted, as here, of an

aggravated offense—at sentencing, with monitoring set to begin on his release from

prison roughly fifteen to twenty years later. Gordon, slip op. at 11, ___ N.C. App. at

___, ___ S.E.2d at ___.             We noted that “the State’s ability to demonstrate


          2   Defendant was sentenced to 110 to 192 months imprisonment, with credit for 514 days
served.

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reasonableness is hampered by a lack of knowledge concerning the unknown future

circumstances relevant to that analysis.” Id., slip op. at 12, ___ N.C. App. at ___, ___

S.E.2d at ___. We continued:

             For instance, we are unable to consider ‘the extent to which
             the search intrudes upon reasonable privacy expectations’
             because the search will not occur until Defendant has
             served his active sentence.       The State . . . has [not]
             established that the nature and extent of the monitoring
             that is currently administered, and upon which the present
             order is based, will remain unchanged by the time that
             Defendant is released from prison.

             ....

             The State . . . provides no indication that the monitoring
             device currently in use will be the same as—or even similar
             to—the device that will be employed approximately two
             decades from now.

Id. at 12-13 (quoting Grady III, 372 N.C. at 527, 831 S.E.2d at 557) (additional

citations omitted). Here, as in Gordon, the State presented no evidence showing “that

the nature and extent of the monitoring that is currently administered, and upon

which the present order is based, will remain unchanged by the time that Defendant

is released from prison.” Id. at 12. Likewise, the State has not shown that the ET-1

monitoring device about which Officer Cox testified will be the device Defendant will

ultimately be required to wear once his lengthy prison sentence has run.

      Setting aside the above concerns does not meaningfully tilt this portion of the

analysis in favor of lifetime SBM. The Supreme Court in Grady III addressed the



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intrusiveness of the ET-1, holding that its physical restrictions, coupled with its

ability to constantly track the defendant’s location, constituted “a deep, if not unique,

intrusion[.]” 372 N.C. at 538, 831 S.E.2d at 564. In Griffin, this Court considered the

constitutionality of an order imposing thirty years of SBM on a defendant who, like

Defendant here, was also subject to a term of post-release supervision. Slip op. at 16,

___ N.C. App. at ___, ___ S.E.2d at ___. We acknowledged that the defendant’s “rights

to privacy in his person, his home, and his movements . . . may be appreciably

diminished during his five-year term of post-release supervision.” Id. (emphasis

added). By that same token, however, we held that the “[d]efendant’s ‘constitutional

privacy rights, including his Fourth Amendment expectations of privacy, [will] have

been restored’ one-sixth of the way into the warrantless search at issue. [The

d]efendant, then, will enjoy appreciable, recognizable privacy interests that weigh

against the imposition of SBM for the remainder of the thirty-year term.” Id. (quoting

Grady III, 372 N.C. at 534, 831 S.E.2d at 561).

      Here, while Defendant will have diminished privacy interests arising from his

offense for five years of post-release supervision, he will have no such diminished

interest for the remaining years of his natural life during which he must submit to

SBM. And while Defendant has an opportunity to seek relief from the SBM order by

petitioning the Post-Release Supervision and Parole Commission, N.C. Gen. Stat. §

14-208.43(c) (2017), such a procedure does not amount to “judicial review of the



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continued need for SBM [and] is contrary to the general understanding that judicial

oversight of searches and seizures, in the form of a warrant requirement, is an

important check on police power.” Grady III, 372 N.C. at 535, 831 S.E.2d at 562.

      2. The State’s Interest in and the Efficacy of SBM

      The State argued before the trial court that although Defendant was assessed

as a “low risk” by the Static-99, his propensity for violence and reoffending had

increased as he aged—and that SBM would discourage such recidivism. Defendant

was 56 years old when he was sentenced to prison for roughly seven to fourteen years

and SBM would not begin until his release. Thus, the State’s argument regarding

Defendant’s increasing propensity for violence with age assumes he will likely

continue his upward trajectory of violence even beyond age 70—his age upon release

if imprisoned for the maximum sentence—until his death. The State presented no

evidence to support such an assumption, which is contrary to the STATIC-99, an

instrument developed based upon statistical data and research regarding sex

offenders. Assuming arguendo that Defendant poses such a risk, we recognize that

the State’s interest in reducing recidivism is “without question legitimate.” Id. at

543, 831 S.E.2d at 568. And yet, the State introduced no evidence before the trial

court showing that SBM will actually prevent or reduce recidivism–either generally

or on the part of Defendant. Although counsel for the State argued at trial that

“knowing that this device is on you . . . is a deterrent[,]” it did so without introducing



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any supporting testimony or other evidence. Our Supreme Court has made clear that

such bald assertions cannot support the imposition of SBM. See id., 372 N.C. at 543-

44, 831 S.E.2d at 567-68 (“[T]he State has not presented any evidence demonstrating

that the SBM program is effective at deterring crime. Thus, the State’s deterrence

argument, like the other arguments it has advanced with respect to the efficacy issue,

fails for lack of evidentiary support. . . . We cannot simply assume that the program

serves its goals and purposes when determining whether the State’s interest

outweighs the significant burden that lifetime SBM imposes on the privacy rights of

recidivists subjected to it.” (citation omitted)); see also State v. Collins, 345 N.C. 170,

173, 478 S.E.2d 191, 193 (1996) (“[I]t is axiomatic that arguments of counsel are not

evidence.” (citations omitted)).

      On appeal, the State apparently acknowledges the immateriality of the special

needs doctrine to this case, writing in its brief that if the hearing had been conducted

after Grady III, “the words ‘special needs’ would have been absent from the trial

court’s holding.” The State instead argues that “the special need” identified below

was merely a different interest served by SBM to be considered under the totality of

the circumstances, namely “the State’s stated purpose [in] ensuring Defendant stays

away from places he should not be, e.g., exclusion zones[.]” Although the State

referenced this interest, it did so only in the context of reducing recidivism:

             [THE STATE]: . . . The purpose of [SBM] is not solely to
             investigate crimes. As Officer Cox said, law enforcement


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               cannot just sit there . . . and check all the times to see if
               they can catch a sex offender on a premise to which they
               cannot be.

               This is not something that [law enforcement] share[s] in
               probation and parole in looking at; this is something
               probation and parole is doing to help ensure that, as
               offenders are coming out of jail or having just been
               sentenced on probation on a device, that they are
               continuing to comply with the law; they’re being law-
               abiding citizens; that they’re not engaging in further
               conduct that has become a risk factor either from a
               previous conviction or has occurred since.

               And for these reasons, I think that . . . [SBM] does satisfy
               the special needs doctrine. We, as a society, have a vested
               interest in seeing that no further sex crimes occur.

Consistent with this argument, the “special need” identified by the trial court in

announcing its decision to impose SBM was “to ensure that . . . there is not

recidivism.”

      The State also argues that its interest in keeping Defendant out of “exclusion

zones” is another method of ensuring “public safety” and “[p]rotecting the public by

monitoring the whereabouts of aggravated sex offenders.” However, the State fails

to identify any record evidence showing that SBM of Defendant will serve such an

interest. As a registered sex offender, Defendant is statutorily excluded from schools,

nurseries, and other “place[s] intended primarily for the use, care, or supervision of

minors,” N.C. Gen. Stat. § 14-208.18(a)(1) (2017), but the State presented no evidence

showing Defendant will be inclined to violate that prohibition. Defendant committed



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a sexual offense against his adult roommate and he has no history of sexual offenses

or violence against children.

       The State also argues on appeal that SBM is reasonable in this case because

in sentencing Defendant, the trial court ordered him have no contact with his victim.

The no-contact order was entered prior to the SBM hearing. The State presented no

evidence or argument to the trial court that SBM would or could monitor Defendant’s

location relative to that of his victim.       Officer Cox testified that in monitoring

Defendant’s entry into prohibited areas, he would be checking “to ensure that they’re

not in a school zone or near a daycare or any other place [with] the primary purpose

of childcare[,]”and did not mention the no-contact order.

       The same lack of evidence plagues the State’s argument that “offenders who

are in places they should not be[ ] are more likely to offend.”3 Our Supreme Court

has held that the bald assertions of counsel regarding the function of SBM, even those

that appeal to general common sense, are no substitute for competent evidence. Cf.

Grady III, 372 N.C. at 544-45, 831 S.E.2d at 568 (holding the State failed to show

SBM was reasonable under the totality of the circumstances “without any showing

by the State that the program furthers its interest in solving crimes that have been

committed, preventing the commission of sex crimes, or protecting the public”).




       3 If anything, this suggests that this purported alternative basis for SBM is simply a
restatement of the State’s interest in combatting recidivism.

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      Ultimately, the State failed to introduce evidence that SBM would be effective

to prevent Defendant from reoffending, and, while not dispositive of our analysis, the

“inability to produce evidence of the efficacy of the lifetime SBM program in

advancing any of its asserted legitimate State interests weighs heavily against a

conclusion of reasonableness here.” Id. at 543, 831 S.E.2d at 567.

      3. Totality of the Circumstances

      Considering the factors discussed above under the totality of the circumstances

gleaned from the record evidence before us, we hold that the State has failed to satisfy

its burden of showing that generally, or with respect to Defendant, lifetime SBM is

reasonable, as the Fourth Amendment requires for warrantless searches. While it is

true that Defendant will be subject to post-release supervision for five years, that

supervisory interest will already be served through mandatory SBM imposed as a

condition of his release. See N.C. Gen. Stat. § 15A-1368.4(b1)(6) (2017) (requiring

persons convicted of an aggravated sexual offense to submit to SBM as a mandatory

condition of post-release supervision).        Thus, in addition to outlasting that

supervisory interest, the lifetime SBM order imposed here is unnecessary to satisfy

that aim for five years after Defendant’s release from prison. Defendant will enjoy

appreciable privacy interests following his term of post-release supervision, and those

interests will suffer “a deep, if not unique, intrusion[,]” Grady III, 372 N.C. at 538,

831 S.E.2d at 564, as a result of monitoring with an ET-1 bracelet—assuming that is,



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in fact, how Defendant will be monitored several years from now. As noted in Grady

III, the intrusion includes the physical imposition of a device connected to

Defendant’s body at all times to monitor Defendant’s location and travel 24 hours a

day. Id.

      Weighing the State’s failure to introduce any evidence showing that lifetime

SBM monitoring will advance its interest in reducing recidivism—or any other

argued interest—against Defendant’s constitutional privacy interests, we cannot

conclude that the State’s legitimate governmental concerns outweigh Defendant’s

cognizable Fourth Amendment privacy rights.

                               III. CONCLUSION

      We eagerly await further guidance from our Supreme Court regarding the

parameters of Grady III.    Until then, we must find our way using established

principles of appellate review and stare decisis. Because the State has not met its

burden of showing lifetime SBM constitutes a reasonable warrantless search based

on the record below, the trial court’s order imposing SBM is reversed.

      Because no civil judgment has been entered imposing the attorney’s fees which

Defendant seeks to challenge, we dismiss that portion of Defendant’s appeal.

      REVERSED IN PART; APPEAL DISMISSED IN PART.

      Judges STROUD and COLLINS concur.




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