              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA19-226

                                Filed: 19 May 2020

Catawba County, No. 05CRS8924

STATE OF NORTH CAROLINA

             v.

DONALD EUGENE HILTON


      Appeal by Defendant from order entered 10 May 2018 by Judge Daniel A.

Kuehnert in Catawba County Superior Court. Heard in the Court of Appeals 18

September 2019.


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

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas
      C. Woomer-Deters, for Defendant-Appellant.


      DILLON, Judge.


      Donald Eugene Hilton (“Defendant”) appeals from the trial court’s order

enrolling him in lifetime satellite-based monitoring (“SBM”), contending that the

imposition of SBM constitutes an unreasonable search.        We conclude that the

imposition of SBM on Defendant during the period of his post-release supervision

constitutes a reasonable search. However, we conclude that the imposition of SBM

thereafter is unreasonable and remand for additional findings. Accordingly, we affirm

in part, and reverse in part and remand.
                                       STATE V. HILTON

                                       Opinion of the Court



                                         I. Background

       In 2005, Defendant committed various sex crimes with a minor female. In

April 2007, Defendant pleaded guilty to statutory rape and to a statutory sexual

offense stemming from his 2005 conduct. He was sentenced to 144 to 182 months of

imprisonment. In his sentence, he was given credit for approximately 22 months for

his pre-sentence confinement, leaving a remaining sentence of approximately 122

months (or about 10 years) to 160 months (or about 13 years).

       In July 2017, approximately 122 months after being sentenced, Defendant was

released from prison, but subject to post-release supervision. As a condition of his

post-release supervision, Defendant was ordered not to leave Catawba County

without the consent of his probation officer.1

       During his post-release supervision period, Defendant violated a post-release

supervision condition by leaving Catawba County, traveling to Caldwell County,

without the knowledge or approval of his probation officer. He was subsequently

arrested for and charged with taking indecent liberties with his fifteen-year-old niece,

while absconding in Caldwell County.




       1  It appears from the record that Defendant was imprisoned for a total of about twelve (12)
years, as he was arrested in 2005 and released in 2017. We note that the trial court, in its order
imposing lifetime SBM found that Defendant “served a sentence of 15 years and two months.”
However, this finding is not supported by the record and appears to be a misstatement: 15 years and
two months (or 182 months) represents the maximum term of imprisonment Defendant was sentenced
to, not the term he had actually served.

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                                       Opinion of the Court



         In April 2018, following his arrest, Catawba County prosecutors noticed a

hearing for the trial court to consider whether Defendant should be required to enroll

in the SBM program based on his 2007 convictions, (not based on his post-conviction

absconding violation).      After a hearing on the matter, the trial court ordered

Defendant to enroll in the SBM program for the rest of his natural life.

         Defendant appeals.

                                        II. Jurisdiction

         An appeal of right lies with this Court pursuant to N.C. Gen. Stat. § 7A-27(b)

(2017). See State v. Singleton, 201 N.C. App. 620, 626, 689 S.E.2d 562, 566 (2010)

(“this    Court   has   jurisdiction    to   consider    appeals   from   SBM   monitoring

determinations under N.C. Gen. Stat. § 14-208.40B pursuant to N.C. Gen. Stat. § 7A-

27”).

                                 III. Standard of Review

         “An appellate court reviews conclusions of law pertaining to a constitutional

matter de novo.” State v. Bowditch, 364 N.C. 335, 340, 700 S.E.2d 1, 5 (2010).

                                         IV. Analysis

         The trial court mandated that Defendant be enrolled in lifetime SBM under

Section 14-208.40B. N.C. Gen. Stat. § 14-208.40B (2018).             Defendant makes no

argument that the trial court exceeded its authority under our General Statutes.

Indeed, the trial court acted within its statutory authority to impose lifetime SBM on



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                                    Opinion of the Court



Defendant in the callback hearing, as the trial court found that Defendant’s 2007

conviction was for an “aggravated offense.” See N.C. Gen. Stat. § 14-208.40B (“If the

court finds that . . . the conviction offense was an aggravated offense . . . the court

shall order the offender to enroll in satellite-based monitoring for life.”).

      Rather, Defendant argues that the trial court exceeded its constitutional

authority, that the imposition of lifetime SBM under Section 14-208.40B as applied

in his case constitutes an unreasonable search under the Fourth Amendment of the

United States Constitution.

      We conclude that the imposition of lifetime SBM under Section 14-208.40B is

unconstitutional as applied to this Defendant, in part. Specifically, we hold that the

imposition of SBM beyond the period of Defendant’s post-release supervision

constitutes an unreasonable search. However, the imposition of SBM during the

period of his post-release supervision is reasonable. During this period, Defendant’s

expectation of privacy is very low. And though the State failed to present evidence

showing the efficacy of SBM in solving sex crimes, it did present evidence showing

SBM’s efficacy in aiding the State in determining whether Defendant is violating the

condition of his post-release supervision, that he remain within Catawba County.

See, e.g., State v. Griffin, ___ N.C. App. ___, ___, 2020 N.C. App. LEXIS 139 at *17

(N.C. Ct. App. Feb. 20, 2020) (recognizing that a sex-offender’s rights are “appreciably




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                                  Opinion of the Court



diminished during his [] term of post-release supervision, that is not true for the

remaining [term] of SBM imposed [after the post-release supervision terminates]”).

      We hold that the “for life” language contained in Section 14-208.40B is

severable from the rest of that statute. It is, therefore, appropriate for us to affirm

that portion of the trial court’s order which imposes SBM under Section 14-208.40B

for the remainder of the period that Defendant is subject to post-release supervision.

Indeed, our Supreme Court has recognized that “if the invalid part [of a statute] is

severable from the rest, the portion which is constitutional may stand while that

which is unconstitutional is stricken out[.]” State v. Fredell, 283 N.C. 242, 245, 195

S.E.2d 300, 302 (1973). The Court explained that a provision is severable if the

remaining provisions “are operative and sufficient to accomplish” the General

Assembly’s purpose in enacting the statute. Id. at 245, 195 S.E.2d at 302. We do not

believe that it offends the General Assembly’s purpose in enacting Section 208.40B if

it is applied for some period less than a defendant’s life.      Rather, the General

Assembly’s purpose in enacting this Section is better served if SBM can be imposed

for some period of time rather than not at all, where it has been determined that a

defendant has committed an aggravated sexual offense and that the imposition for at

least some period of time would not offend the Fourth Amendment. This situation is

similar to a situation where a defendant commits a crime and is sentenced to a term

that is later determined by a court to violate the Eighth Amendment’s prohibition



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                                  Opinion of the Court



against cruel and unusual punishments. In that situation, the reviewing court does

not order the defendant released, but reduces the sentence to comply with the Eighth

Amendment.

                          A. Reasonableness of the Search

      The United States Supreme Court held that the imposition of SBM effects a

continuous warrantless search. Grady v. North Carolina, 575 U.S. 306, 310, 191

L.Ed.2d 459, 462-63 (2015).     But the Court noted that an SBM “search” is not

necessarily unconstitutional. Id. at 310, 191 L.E.2d at 462-63. Rather, the imposition

of SBM is unconstitutional only if it is unreasonable, and the Court held that the

reasonableness of an SBM search is to be determined based on the “totality of the

circumstances[.]” Id. at 310, 191 L.E.2d at 462-63. In considering the totality of the

circumstances, the Court stated that a reviewing court is to consider, among other

things, “the nature and purpose of the search” and “the extent to which the search

intrudes upon reasonable expectations of privacy.” Id. at 310, 191 L.E.2d at 462.

      In the recent seminal case on our State’s SBM program, our Supreme Court

held that the imposition of SBM is unconstitutional as applied to a particular class of

defendants:   sexual offenders who are no longer under any form of post-release

supervision, parole or probation and who meet the statutory definition of a

“recidivist.” State v. Grady, 372 N.C. 509, 545, 831 S.E.2d 542, 568-69 (2019). Though

the holding was limited to a subset of unsupervised, convicted sex offenders, the



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                                   Opinion of the Court



Grady holding appears to impose a high standard on the State to meet in order to

show reasonableness when imposing SBM on any convicted sex offender who is not

under any form of State supervision, mainly because of the high burden of showing

the efficacy of SBM in helping solve future crimes.

      In its analysis, though, our Supreme Court recognized that the calculus of

reasonableness is different when a defendant is subject to State supervision. See id.

at 526, 831 S.E.2d at 556 (differentiating its holding to cases where there is an

“ongoing supervisory relationship between defendant and the State”). For instance,

in the Conclusion section, the Court emphasized that its holding does not enjoin all

of the SBM program’s applications, in part, “because this provision is still enforceable

against a [sex offender] during the period of his or her State supervision[.]” Id. at

547, 831 S.E.2d at 570 (emphasis added).

      In the present case, the trial court concluded that the imposition of SBM would

be reasonable and would be so for the remainder of Defendant’s natural life. In

support of its conclusion, the trial court found: that Defendant had been convicted of

aggravated sexual offenses in 2007; that he was released in 2017; that he violated the

terms of his post-release supervision by leaving Catawba County without notifying

his parole/probation officer; that the SBM device is not overly intrusive; that the SBM




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                                         Opinion of the Court



device monitors Defendant’s location at all times; and that there does not currently

exist any similar forms of monitoring available.2

       Based on Grady, we must conclude that the trial court’s imposition of SBM on

Defendant for any period beyond his period of post-release supervision is

unreasonable. For the following reasons, though, we conclude that the imposition of

SBM during Defendant’s post-release supervision period is reasonable.

  1. Intrusion Upon Reasonable Privacy Interests- Nature of the Privacy Interest.

       As our Supreme Court instructs in Grady, “the first factor to be considered is .

. . the scope of the legitimate expectation of privacy at issue.” Id. at 527, 831 S.E.2d

at 557. The Court held that the defendant’s expectation of privacy in Grady was only

slightly more diminished than an average citizen’s who had never committed a felony:

“[E]xcept as reduced for possessing firearms and by providing certain specific

information and materials to the sex offender registry, defendant’s constitutional

privacy rights, including his Fourth Amendment expectations of privacy, have been

restored.” Id. at 534, 831 S.E.2d at 561. In support of that proposition, the Court

recognized that the expectation of privacy for a defendant who is still under a form of



       2  We note that the trial court also found that “the defendant admitted to sexually assaulting
more than one minor child” prior to his conviction for the 2005 conduct and that he is currently facing
charges for taking indecent liberties with a minor for alleged conduct which occurred recently when
Defendant had left Catawba County without his parole/probation officer’s knowledge. However, we
caution that these “findings” are not findings that Defendant actually engaged in any other
inappropriate sexual behavior beyond the 2005 incidents for which he was convicted in 2007. The trial
court could have expressly found, by a preponderance of the evidence, that Defendant had engaged in
other acts to support a determination that he is a recidivist, but the trial court did not do so.

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                                  Opinion of the Court



State supervision is extremely low, but that one “enjoy[s] the full protection of the

Fourth Amendment [once] probation ha[s] been discharged. Id. at 533, 831 S.E.2d at

561 (quoting Trask v. Franco, 446 F.3d 1036, 1043-44 (10th Cir. 2006)).

      We, therefore, conclude that Defendant’s expectation of privacy is presently

significantly diminished and will remain so while Defendant continues to be under

post-release supervision.

 2. Intrusion Upon Reasonable Privacy Expectations -- Character of the Intrusion
                                Complained of

      Our Supreme Court next analyzed “the character of the intrusion” which

“contemplates the ‘degree’ of and ‘manner’ in which the search intrudes upon

legitimate expectations of privacy.” Id. at 534, 831 S.E.2d at 561.

      The Court noted that the SBM device creates quite a burden on a defendant,

certainly conflicting what the trial court in this case found concerning the burden of

wearing an SBM device. The Court noted that the device “require[s] defendant to be

tethered to a wall [each day for two hours so that the device can recharge] for what

amounts to one month out of every year[.]” Id. at 536, 831 S.E.2d at 562-63.

      While the intrusion is great, we conclude it is not as great as in Grady where

the imposition is only for the remainder of the period that Defendant is subject to

supervision.

      We note our Supreme Court’s statement that the lack of judicial oversight

weighed heavily against the constitutionality of lifetime SBM in Grady. Id. at 535,


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                                   Opinion of the Court



831 S.E.2d at 562. The Court pointed to the fact that the SBM statutes empower the

Parole Commission to terminate a monitoring requirement early. Id. at 535, 831

S.E.2d at 562 (citing N.C. Gen. Stat. § 14-208.43(c)). However, we also note there is

nothing in Section 14-208.43 which strips a trial court of any authority to entertain

a motion to terminate the monitoring in the future before Defendant’s post-release

supervision period ends if it determines that the SBM “search” is no longer

constitutionally reasonable. See N.C. Gen. Stat. § 14-208.43(d1).

                         3. Nature and Purpose of the Search

      Having considered the extent of the intrusion of Defendant’s expectation of

privacy, we now balance that expectation “against the extent to which the SBM

program sufficiently promotes . . . legitimate governmental interests to justify the

search[.]” Id. at 538, 831 S.E.2d at 564 (internal quotation marks omitted) (citation

omitted).

      In Grady, the Court recognized that “solving crimes” is a legitimate purpose of

SBM, but that the State in that case failed to show how the SBM program is effective

“in apprehending or exonerating a suspected sex offender in North Carolina, or

anywhere else [and, therefore, the] State’s 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.



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                                           Opinion of the Court



        In the present case, though, there is a justification for SBM during Defendant’s

post-release supervision period, apart from any ability to help law enforcement

determine whether Defendant is committing other sex crimes. SBM is effective in

helping law enforcement determine whether Defendant is violating the condition of

his post-release supervision that he remain in Catawba County. Indeed, the State

did make an argument at the hearing regarding this efficacy in solving absconding

violations and that this efficacy makes SBM reasonable during the period of post-

release supervision.3 The trial court, in its order, found that Defendant was under

post-release supervision; that, as a condition, he could not leave Catawba County

without permission; that he, in fact, did leave Catawba County without permission;

and that the SBM device allows Defendant’s probation/parole officer to detect

Defendant’s location at all times. We conclude that these findings are supported by

the evidence presented at the hearing. We note that Defendant does not make any

argument that these findings are not supported by the evidence.




        3 The State argued at the hearing that “[t]he testimony, even the defendant’s own evidence,
would indicate that he did, in fact, leave this county, went to Caldwell County without the permission
of his probation officer. The probation officer indicated that if he was subjected to satellite-based
monitoring, he would have known about that.” The State further argued that “I realize that the
physical observation in our county, as far as supervised probation, isn’t for someone to keep eyes on
this defendant at all times. It’s a situation where the defendant has to report. A situation where the
probation officer will go to the home. It is just not feasible to have somebody sit outside his home at
all times and follow him around. That is not the type of resources that we have. But, with satellite-
based monitoring, in some respects, it does the same thing as that, plus a little bit further. . . . I think
[SBM] is reasonable in that the testimony was not all probation officers will have access to where this
defendant is located [at all times].”

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                                   Opinion of the Court



      It may be that the State is unable to show that the imposition of SBM is

effective in solving sex crimes in that most sex crimes are committed against known

victims, such that the defense is not “I wasn’t there,” but rather “I was there, but that

did not happen.” But with absconding violations, the main issue to be proved is

simply whether Defendant was in a place he was not allowed to be. Therefore, we

conclude that the findings in the trial court’s order establish that the imposing of

SBM on Defendant in this case for the remainder of his post-release supervision

furthers the State’s interest in “solving crimes,” specifically, whether Defendant has

violated a condition of his post-release supervision by absconding.

                     4. Conclusion on Reasonableness of Search

      The trial court had the statutory authority under Section 14-208.40B to impose

SBM on Defendant for the rest of his life. However, this authority is curtailed by the

Fourth Amendment requirement that individuals not be subject to unreasonable

searches. We conclude that, based on the trial court’s findings, the extent of the search

imposed by the trial court under Section 14-208.40B was unconstitutional, but that

such search is reasonable during the remainder of Defendant’s post-release

supervision. After this period of supervision, the imposition of SBM is no longer

reasonable, as Defendant’s expectation of privacy is too high and the State’s




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                                         Opinion of the Court



legitimate purpose in monitoring Defendant’s location – to determine whether

Defendant is absconding – is extinguished.4

                                        B. Facial Challenge

        “A facial challenge is an attack on a statute itself as opposed to a particular

application.” Los Angeles v. Patel, 576 U.S. 409, ___, 192 L. Ed. 2d 435, 443 (2015).

In a facial challenge, “a plaintiff must establish that a law is unconstitutional in all

of its applications.” Id. at ___, 192 L. Ed. 2d at 445 (internal quotation marks omitted)

(citation omitted).

        Defendant argues the State’s SBM program is facially unconstitutional

“because the State failed to demonstrate that SBM serves any legitimate

governmental interest.” Our Supreme Court in Grady declined to address the facial

validity of the SBM statutes, holding only that the statutes were unconstitutional as

applied to a particular class of defendants. In doing so, our Supreme Court noted,

though, “the State’s asserted interests here are without question legitimate.” Grady,

372 N.C. at 543, 831 S.E.2d at 568.

                Our earlier conclusion that the nature of the State’s
                concern was not beyond the normal need for law
                enforcement does not, of course, constitute a holding that
                the State’s interest in solving crimes and facilitating
                apprehension of suspects so as to protect the public from
                sex offenders is not compelling. Sexual offenses are among
                the most disturbing and damaging of all crimes, and

        4  We note that the Parole Commission could have imposed SBM as a condition of post-release
supervision under N.C. Gen. Stat. § 15A-1368.4(b1) (2018). However, in this case, SBM was imposed
by a trial court in the context of a callback hearing pursuant to its authority under Section 14-208.40B.

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                                   Opinion of the Court



             certainly the public supports the General Assembly’s
             efforts to ensure that victims, both past and potential, are
             protected from such harm.

Id. at 538, 831 S.E.2d at 564 (citation and internal quotation marks omitted).

      The General Assembly’s enactments are presumed to be constitutional. Our

Supreme Court recently decided the State’s interests in the SBM statute are “without

question legitimate.” Id. at 543, 831 S.E.2d at 568. Defendant cannot show “the State

failed to demonstrate that SBM serves a legitimate governmental interest.” We

conclude that the SBM is facially valid, at least to the extent that it can be applied to

defendants under State supervision.

                                 C. General Warrant

      Defendant argues that the imposition of SBM constitutes a general warrant,

in violation of our North Carolina Constitution. We conclude, however, that the

imposition of SBM on individuals who are otherwise under State post-release

supervision does not violate our Constitution.

                                     V. Conclusion

      We affirm the trial court’s order to the extent that it imposes SBM on

Defendant for the remainder of his post-release supervision. However, we reverse

the trial court’s order to the extent that the order imposes SBM beyond Defendant’s

period of post-release supervision. We remand for further proceedings consistent

with this opinion.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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                        Opinion of the Court



Judge TYSON concurs.

Judge BROOK concurs in result in part and dissents in part by separate

opinion.




                               -2-
 No. COA19-226 – State v. Hilton



         BROOK, Judge, concurring in the result in part and dissenting in part.


         I concur in the result insomuch as the majority reverses the order imposing

SBM beyond the time Defendant is subject to post-release supervision. Otherwise, I

respectfully dissent. Controlling precedent requires full reversal of the SBM order at

issue.

                                        I. Facts

         Defendant was indicted for first-degree statutory rape and first-degree

statutory sexual offense on 5 July 2005. Defendant pleaded guilty to these charges

on 26 April 2007 and was sentenced in the mitigated range to 144 to 182 months in

prison. The court considered, as a mitigating factor, among others, that “[D]efendant

was suffering from a mental condition that was insufficient to constitute a defense

but significantly reduced the defendant’s culpability” and that Defendant possessed

a “limited mental capacity[.]”

         Defendant was released from prison on 9 July 2017 and placed on post-release

supervision for a period of five years. Probation Officer Travis Osborne was assigned

to supervise Defendant.      Defendant began living with his sister, Kathy Owens,

following his release. While on post-release supervision, in April of 2018, Defendant

was charged in Caldwell County with taking indecent liberties with a child. The

charges arose out of allegations made by Ms. Owens’s minor granddaughter during

an interview by a social worker and forensic interviewer. The interviewer testified
                                      STATE V. HILTON

               BROOK, J., concurring in the result in part and dissenting in part



that the minor alleged that Defendant “kissed her on the lips[,] [k]issed her on her

forehead[,] . . . placed his hands down her . . . panties, . . . in her groin area and also

her buttocks.” She alleged that the conduct she described occurred at her home,

which is located in Caldwell County.

       Defendant was not permitted, under the conditions of his post-release

supervision, to leave Catawba County. However, Ms. Owens testified that Defendant

had traveled “a few times” to Caldwell County to help a family member repair a

trailer. Ms. Owens testified that she was not aware of this condition of Defendant’s

post-release supervision, and that she believed Defendant did not know of this

condition because “he has a hard time understanding and you have to talk to him in

a lower level.” Officer Osborne testified that Defendant signed a form acknowledging

this condition of his post-release supervision.

       During the pendency of Defendant’s case in Caldwell County, the State

initiated proceedings to enroll Defendant in SBM. A hearing was held on 19 April

2018 before the Honorable Daniel A. Kuehnert during the 16 April 2018 session of

Catawba County Superior Court. The hearing was continued to 10 May 2018.

       The State presented evidence regarding the operation of the device used to

monitor an individual’s location at the May 2018 hearing. Officer Osborne testified

that the monitoring device is two inches wide and is worn on the ankle. He testified

that the monitor sends a satellite signal to a private company that contracts with the



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                                      STATE V. HILTON

               BROOK, J., concurring in the result in part and dissenting in part



State to monitor offenders, and that the device “tracks every movement they make,

[and] how long they’re staying in one location.” He further testified that the company

shares that information with the offender’s supervising officer. The State offered no

testimony regarding in what form or how frequently the company shares location

data with a supervising officer. Officer Osborne testified that the monitor is battery-

operated and must be charged “at least two hours a day” to “stay fairly charged.”

While the monitor is being charged, the individual wearing it must be “within a cord’s

length of an outlet[.]” When the device loses its charge, it makes a sound to alert the

wearer that can be heard up to 100 feet away.

      At the hearing, the State did not present evidence regarding when the incident

in Caldwell County was alleged to have occurred, nor did the State present evidence

regarding whether the incident was alleged to have occurred during Defendant’s first

unauthorized trip to Caldwell County or during a subsequent trip. The State also did

not present any evidence that SBM in general effectively prevents crime or assists

the State in solving crimes.

      The State did present testimony about what Officer Osborne “would have done

. . . would [he] have known that [Defendant] was going to Caldwell County the first

time he went to Caldwell County[.]” Officer Osborne testified that he “would have

notified the Parole Commission and most likely requested that he be placed on the

monitoring.”   He further testified that “[w]e could request a warrant for that;



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                                     STATE V. HILTON

              BROOK, J., concurring in the result in part and dissenting in part



however, I don’t think the parole commission would have issued a warrant. That’s

why we would have requested that we added the conditions of being submitted to

electronic monitoring.” Counsel for the State and Officer Osborne had the following

exchange:

            [PROSECUTOR]: [O]f course, you don’t know which
            particular time he went to Caldwell County these
            allegations stemmed from?

            [OFFICER OSBORNE]: Right.

            [PROSECUTOR]: However, if he would have done it the
            first time, if at that time he had no contact with this girl, it
            was the first time he was in Caldwell County, you would
            have been able to stop him from going any further times?

            [OFFICER OSBORNE]: Correct.

            [PROSECUTOR]: And so hypothetically if the first time he
            went to Caldwell County he had no contact with this girl,
            then you possibly, if in fact an assault did occur, you might
            have been able to avoid that with satellite-based
            monitoring?

            ...

            [OFFICER OSBORNE]: Yes.

            [PROSECUTOR]: Because you would have known he was
            leaving Catawba County and you would have intervened
            early on.

            [OFFICER OSBORNE]: Right.

      Based on the evidence presented at the hearing, the trial court found that the

offense of which Defendant was convicted in 2005 was an aggravated offense, and


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               BROOK, J., concurring in the result in part and dissenting in part



therefore that Defendant fell into at least one of the categories subject to satellite-

based monitoring under N.C. Gen. Stat. § 14-208.40.                The trial court made the

following additional findings:

             1. That the defendant admitted to sexually assaulting
             more than one minor child prior to being convicted of first
             degree rape and first degree sexual offense.

             2. That the defendant served a sentence of 15 years and
             two months for the crimes of first degree rape and first
             degree sexual offense.

             3. That probable cause has been found to currently charge
             the defendant with the crime of taking indecent liberties
             with a minor.

             4. That the defendant was charged with this crime just a
             couple months after being released from custody from
             serving his sentence for the crimes of first degree rape and
             first degree sexual offense.

             5. That the alleged victim in the pending charge is related
             to one of the victim’s [sic] associated with the defendant’s
             previous convictions of first degree rape and first degree
             sexual assault [sic].

             6. That the defendant has been monitored by probation
             and parole since his release from prison on July 9, 2017.

             7. That one of the conditions of defendant’s post release
             supervision is not to leave Catawba County without the
             permission of his probation/parole officer.

             8. That the defendant has violated this condition of post
             release supervision and has traveled to Caldwell County
             without the knowledge of probation and parole.

             9. That defendant’s current charge of taking indecent


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                        STATE V. HILTON

 BROOK, J., concurring in the result in part and dissenting in part



liberties with a minor is out of Caldwell County were [sic]
the alleged victim lives.

10. That the satellite based monitoring program in
Catawba County utilizes an ankle monitoring device to
detect the location of one subject to satellite based
monitoring through Global Positioning System.

11. That the ankle monitoring device is light weight, small
in size, can be adjusted for comfort and is of little intrusion
to the person wearing the device.

12. That the monitoring of this device is done by
authorized personnel from probation and parole that are
assigned to monitor a particular person subject to satellite
based monitoring.

13. That there are safe guards [sic] in place to protect a
person subject to satellite based monitoring in the case of
an emergency or malfunction of the equipment.

14. That there are no known circumstances regarding this
defendant that would cause a unique concern about his
ability to wear the ankle monitoring device whether it be
physical health, mental health, the defendant’s occupation,
the defendant’s leisure or otherwise.

15. That there does not currently exist any other way for
probation and parole to utilize satellite based monitoring
other than the current practice of using an ankle bracelet.

16. That there does not exist currently any other form of
monitoring available to probation and/parole [sic] other
than physical monitoring similar to what is understood as
supervised probation and satellite based monitoring as
described above.




                                 6
                                        STATE V. HILTON

                 BROOK, J., concurring in the result in part and dissenting in part



       Based on these findings, the trial court ordered Defendant to enroll in SBM for

the remainder of his natural life.5

                                    II. Standard of Review

        “An appellate court reviews conclusions of law pertaining to a constitutional

matter de novo.” State v. Bowditch, 364 N.C. 335, 340, 700 S.E.2d 1, 5 (2010). “Under

a de novo review, the court considers the matter anew and freely substitutes its own

judgment for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632-33, 669

S.E.2d 290, 294 (2008) (internal marks and citation omitted).

                                      III. Legal Overview

       Defendant argues that “[t]he trial court erred by ordering SBM in the absence

of sufficient evidence from the State addressing why continuous GPS tracking of Mr.

Hilton’s every movement for life was a reasonable search under the federal and state

constitutions.” This constitutional claim is best construed as an as-applied challenge.

Defendant further argues that “North Carolina’s SBM program is unconstitutional

on its face because the State failed to demonstrate that SBM serves any legitimate

governmental interest.”

       I agree with Defendant that the State failed to meet its burden of proving that

the SBM statute, as applied to Defendant, is a reasonable search under the Fourth

Amendment. While there is no bright line between as-applied and facial challenges,


       5  Before turning to the analysis, it bears repeating that SBM was imposed in this instance
solely pursuant to Article 27A of Chapter 14 of the General Statutes.

                                                 7
                                      STATE V. HILTON

               BROOK, J., concurring in the result in part and dissenting in part



see State v. Grady , 372 N.C. 509, 546, 831 S.E.2d. 542, 569 (2019) (“Grady III”), a

Court should “determine the constitutionality of a statute . . . only to the extent

necessary to determine that controversy. It will not undertake to pass upon the

validity of the statute as it may be applied to factual situations materially different

from that before it.” Bulova Watch Co. v. Brand Distribs. of N. Wilkesboro, Inc., 285

N.C. 467, 472, 206 S.E.2d 141, 145 (1974). Our Court should therefore begin the

inquiry with Defendant’s as-applied challenge, which resolves the current

controversy in his favor and renders consideration of his arguments as to facial

unconstitutionality unnecessary.

      To reach this conclusion, I first review the balancing test applicable to all

Fourth Amendment controversies. I then consider how this balancing test operates

in the particular case of North Carolina’s SBM regime. Applying this background to

the current controversy, I balance the nature and character of lifetime SBM’s

intrusion on Defendant’s Fourth Amendment rights against the State’s evidence that

lifetime SBM of Defendant promotes its legitimate governmental interests. After

careful consideration, I would hold that the absence of evidence supporting SBM’s

efficacy in this instance means that the State cannot justify this significant lifetime

intrusion on Defendant’s privacy interests.

                            A. Fourth Amendment Overview




                                               8
                                      STATE V. HILTON

               BROOK, J., concurring in the result in part and dissenting in part



      The Fourth Amendment “safeguard[s] the privacy and security of individuals

against arbitrary invasions by government officials.” Camara v. Mun. Ct. of City &

Cty. of San Francisco, 387 U.S. 523, 528, 87 S. Ct. 1727, 1730, 18 L. Ed. 2d 930, 935

(1967); see also Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826, 1834, 16

L. Ed. 2d 908, 917 (1966) (“The overriding function of the Fourth Amendment is to

protect personal privacy and dignity against unwarranted intrusion by the State.”);

Riley v. California, 573 U.S. 373, 403, 134 S. Ct. 2473, 2494, 189 L. Ed. 2d 430, 452

(2014) (“[T]he Fourth Amendment was the founding generation’s response to the

reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed

British officers to rummage through homes in an unrestrained search for evidence of

criminal activity.”).     “[T]he ultimate measure of the constitutionality of a

governmental search is ‘reasonableness,’” which we judge “by balancing [the search’s]

intrusion on the individual’s Fourth Amendment interests against its promotion of

legitimate governmental interests[.]” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646,

652-53, 115 S. Ct. 2386, 2390, 132 L. Ed. 2d 564, 574 (1995) (citation omitted). When

applying this balancing test in an as-applied challenge, “the determination whether

a statute is unconstitutional as applied 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, ___ U.S. ___, 137 S. Ct. 1730, 198 L.Ed. 2d 273

(2017).



                                               9
                                      STATE V. HILTON

               BROOK, J., concurring in the result in part and dissenting in part



                           B. North Carolina’s SBM Program

      In recent years, our Courts have produced a robust jurisprudence surrounding

our state’s SBM regime. I briefly review that case law below.

      The United States Supreme Court held in Grady v. North Carolina that

satellite-based monitoring of a sex offender constitutes a search and therefore must

comply with the reasonableness requirement of the Fourth Amendment. 575 U.S.

306, 309, 135 S. Ct. 1368, 1370, 191 L. Ed. 2d 459, 462 (2015) (per curiam). This

decision overruled State v. Grady, 233 N.C. App. 788, 759 S.E.2d 712, 2014 WL

1791246 (2014) (unpublished) (“Grady I”), which relied on the premise that constant

GPS monitoring of an individual did not constitute a search within the meaning of

the Fourth Amendment. Grady, 575 U.S. at 309, 135 S. Ct. at 1370-71. The United

States Supreme Court remanded the case for our Courts to determine the

reasonableness of the imposition of lifetime SBM on the Grady defendant. Id. at 311,

135 S. Ct. at 1371.

      While State v. Grady, 259 N.C. App. 664, 817 S.E.2d 18 (2018) (“Grady II”),

was pending on remand, this Court held in 2017 that where the State fails to bring

forward sufficient evidence to establish that the imposition of lifetime SBM

constitutes a reasonable search compliant with the Fourth Amendment, the State

shall not be “permitted to ‘try again’ by applying for yet another [SBM] hearing . . .




                                              10
                                      STATE V. HILTON

               BROOK, J., concurring in the result in part and dissenting in part



in the hopes of this time having gathered enough evidence.” State v. Greene, 255 N.C.

App. 780, 784, 806 S.E.2d 343, 345 (2017).

      The following year, this Court decided Grady II. Despite the fact that “the

SBM program had been in effect for approximately ten years[,] . . . the State failed to

present any evidence . . . of the general procedures used to monitor” offenders through

the program or “of its efficacy in furtherance of the State’s undeniably legitimate

interests.” Grady II at 674-75, 817 S.E.2d at 27. Under such circumstances, the

imposition of lifetime SBM on the defendant cannot constitute a reasonable search.

Id. at 676, 817 S.E.2d at 28.

      This Court then decided State v. Griffin, 260 N.C. App. 629, 818 S.E.2d 336

(2018) (“Griffin I”), holding that “unless SBM is found to be effective to actually

serve the purpose of protecting against recidivism by sex offenders, it is impossible

for the State to justify the intrusion of continuously tracking an offender’s location

for any length of time, much less for thirty years.” Id. at 636, 818 S.E.2d at 341. As

there was no such evidence presented, we held a trial court order requiring Defendant

to enroll in long-term SBM violated the Fourth Amendment. Id. at 637, 818 S.E.2d

at 342.

      That same year, this Court held that the imposition of lifetime SBM following

a defendant’s release from prison, when the order imposing lifetime SBM comes at

the beginning of a lengthy sentence, is unconstitutional without “an individualized



                                              11
                                      STATE V. HILTON

               BROOK, J., concurring in the result in part and dissenting in part



determination of reasonableness[.]” State v. Gordon, 261 N.C. App. 247, 261, 820

S.E.2d 339, 349 (2018) (“Gordon I”). Without such a showing that SBM served “the

State’s purpose of deterring future sexual assaults,” the State failed to meet its

burden. Id. at 260, 820 S.E.2d at 348.

      Our Supreme Court then affirmed Grady II as modified in Grady III. 372 N.C.

at 551, 831 S.E.2d at 572. The Court applied the Fourth Amendment reasonableness

test to the imposition of lifetime SBM on the defendant, holding that North Carolina’s

mandatory SBM statutes are unconstitutional as applied to all defendants who are

subject to such monitoring based solely on their status as recidivists. Id. It reached

this conclusion because “the State ha[d] not met its burden of establishing the

reasonableness of the SBM program under the Fourth Amendment balancing test

required for warrantless searches.” Id. at 544, 831 S.E.2d at 568. Integral to that

determination was the State’s failure to make “any showing . . . that the program

furthers its interest in solving [sex] crimes that have been committed, preventing the

commission of sex crimes, or protecting the public.” Id. at 544-45, 831 S.E.2d at 568.

      On the other side of the scale, Grady III made plain that it is difficult to

overstate the intrusion on privacy interests visited upon individuals by SBM. Grady

III instructed that SBM, which tracks the individual’s location constantly, implicates

an individual’s right to be secure in his person, id. at 527-28, 831 S.E.2d at 557, and

his house, id. at 528, 831 S.E.2d at 557, as well as his expectation of privacy in his



                                              12
                                         STATE V. HILTON

                 BROOK, J., concurring in the result in part and dissenting in part



“physical location and movements[,]” id. (citation omitted). The Court compared the

collection of SBM data to the government’s accessing cell-site location information

(“CSLI”) in Carpenter v United States, ___ U.S. ___, 138 S. Ct. 2206, 201 L. Ed. 2d 507

(2018). Grady III, 372 N.C. at 528, 831 S.E.2d at 557-58. However, the Court found

that “[t]he SBM program presents even greater privacy concerns than the CSLI

considered in Carpenter [because] [w]hile a cell phone . . . is almost a feature of human

anatomy, the ankle monitor becomes, in essence, a feature of human anatomy[.]” Id.

at 529, 831 S.E.2d at 558 (internal marks and citation omitted); see also Carpenter,

___ U.S. at ___, 138 S. Ct. at 2218 (“[W]hen the Government tracks the location of a

cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor

to the phone’s user.”).6 And, of course, that near perfect government surveillance

never ends in the case of lifetime SBM monitoring, with no meaningful review of its

ongoing need. Grady III, 372 N.C. at 534-35, 831 S.E.2d at 562.

       Our Court then decided State v. Anthony, ___ N.C. App. ___, 831 S.E.2d 905

(2019). Though filed four days after Grady III—meaning our Court did not have the

opportunity to consider the Supreme Court’s guidance in rendering our decision—



       6  Though generally consistent with our Court’s opinion in Grady II, the Supreme Court parted
company with the opinion below in characterizing the intrusiveness of SBM. Grady III, 372 N.C. at
535-36, 831 S.E.2d at 562-63 (“Mr. Grady, of course, must not only wear the half-pound ankle monitor
at all times and respond to any of its repeating voice messages, but he also must spend two hours of
every day plugged into a wall charging the ankle monitor. We cannot agree with the Court of Appeals
that these physical restrictions, which require defendant to be tethered to a wall for what amounts to
one month out of every year, are ‘more inconvenient than intrusive.’”) (quoting Grady II, 372 N.C. at
672, 817 S.E.2d at 25).

                                                 13
                                      STATE V. HILTON

               BROOK, J., concurring in the result in part and dissenting in part



Anthony is very much of accord with the approach taken in Grady III. In Anthony,

the State did argue for the efficacy of lifetime SBM based on various studies and

statistics; however, it did not present the studies to the defendant, to the trial court,

or include them in the record on appeal. Id. at ___, 831 S.E.2d at 909. The studies

were thus not subject to judicial notice. Id. at ___, 831 S.E.2d at 909-10. Without

such evidence or any other “evidence supporting the reasonableness of SBM as

applied to [d]efendant,” the imposition of lifetime SBM was unconstitutional. Id. at

___, 831 S.E.2d at 906. In balancing the State’s legitimate interests against the

defendant’s privacy interest, our Court spoke plainly about how an absence of

evidence of efficacy was fatal to the State’s case:

             Even if we assume sex offenders in general do have a
             higher rate of recidivism than those convicted of other
             crimes, and even if a defendant in particular has an
             increased likelihood of reoffending, if there is no evidence
             that SBM actually prevents recidivism, the State cannot
             show that imposing a continuous, life-time search is
             reasonable under the Fourth Amendment of the United
             States Constitution.

Id. at ___, 831 S.E.2d at 907.

      After Grady III, the Supreme Court reversed those SBM orders for defendants

in the same offender group as Grady and remanded to our Court those cases the

outcome of which was not directly controlled by the holding in Grady III. See, e.g.,

Order, State v. Dravis, No. 305P18 (2019); Order, State v. Griffin, No. 270A18 (2019);

Order, State v. Gordon, No. 312P18 (2019). Unsurprisingly, given the development


                                              14
                                      STATE V. HILTON

               BROOK, J., concurring in the result in part and dissenting in part



of the case law laid out above, our Court’s SBM case law has continued along this

same general trajectory since our Supreme Court’s decision in Grady III.

      First, upon remand from our Supreme Court, our Court again unanimously

reversed the imposition of lifetime SBM in State v. Dravis, ___ N.C. App. ___, 837

S.E.2d 384 (2020). Despite the fact that the defendant fell outside the offender

category involved in Grady III, the panel held the State had not carried its burden of

establishing the search was reasonable under the Fourth Amendment. Id. at ___, 837

S.E.2d at 385. Writing for the panel, Judge Dillon noted the “State did not provide

sufficient evidence to show how the efficacy of SBM . . . furthered a legitimate interest

of the State; e.g. to help solve sex offense crimes.” Id. (emphasis added).

      Our Court then again reversed the imposition of lifetime SBM in State v.

Griffin, ___ N.C. App. ___, ___, 840 S.E.2d 267 (2020) (“Griffin II”), with one judge

concurring in the result only. Id. at ___, 840 S.E.2d at 276. Our Court noted that the

“[d]efendant’s circumstances place him outside of the facial aspect of Grady III’s

holding[,]” but applied the Grady III reasonableness analysis, noting that, “[a]though

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.” Id. at ___, 840 S.E.2d at 273.

Applying that analysis, our Court concluded that the State “fail[ed] to meet its burden

[of] showing SBM’s efficacy in accomplishing the State’s professed aims” and




                                              15
                                      STATE V. HILTON

               BROOK, J., concurring in the result in part and dissenting in part



determined the order imposing 30 years of SBM was an unreasonable warrantless

search in violation of the Fourth Amendment. Id. at ___, 840 S.E.2d at 276.

      Our Court then again reversed the imposition of lifetime SBM in State v.

Gordon, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___, 2020 WL 1263993, at *7 (2020)

(“Gordon II”), with one judge concurring in the judgment. Applying the requisite

analysis from Grady III, our Court concluded that the State failed to meet its burden

of establishing that lifetime SBM after Defendant’s eventual release from prison—

some 15 to 20 years in the future—was a reasonable search. Id. at *6-7. We concluded

that where the State “makes no attempt to distinguish th[e] undeniably important

interest [in preventing sexual assaults] from the State’s normal need for law

enforcement[,]” id. at *6 (internal marks and citation omitted), the State fails to

demonstrate “the government’s need to search—i.e., the other side of the balancing

test[,]” id. (citing Grady III, 372 N.C. at 527, 831 S.E.2d at 557).

      Most recently, our Court invoked Rule 2 to address the merits of a defendant’s

appeal of the imposition of lifetime SBM in State v. Graham, ___ N.C. App. ___, ___,

___ S.E.2d ___, ___, 2020 WL 1263994, at *11 (2020), and State v. Ricks, ___ N.C. App.

___, ___, ___ S.E.2d ___, ___, 2020 WL 2121296, at *7 (2020). In both cases, our Court

concluded that the State failed to meet its burden of establishing the reasonableness

of SBM where the trial court failed to hold a Grady hearing and the State failed to

produce any evidence of the reasonableness of the lifetime warrantless search.



                                              16
                                      STATE V. HILTON

               BROOK, J., concurring in the result in part and dissenting in part



Graham, 2020 WL 1263994, at *12; Ricks, 2020 WL 2121296, at *10. Because the

requisite Grady hearings were not held, the orders were vacated without prejudice to

the State’s re-filing in the trial. Graham, 2020 WL 1263994, at *12 (“[T]he State has

not yet had its ‘first bite of the apple,’ and vacatur of the SBM order with remand for

an evidentiary hearing consistent with the most recent guidance from our Supreme

Court in State v. Grady is appropriate.”) (internal citation omitted); Ricks, 2020 WL

2121296, at *10 (citing Bursell I and II for the proposition that vacatur with remand

for hearing is the appropriate remedy where the trial court fails to hold a Grady

hearing on the reasonableness of imposing SBM).

                                        ********

      “[I]t is axiomatic that ‘the sexual abuse of a child is a most serious crime and

an act repugnant to the moral instincts of a decent people. And it is clear that a

legislature may pass valid laws to protect children and other victims of sexual assault

from abuse.’” Grady II, 259 N.C. App. at 675, 817 S.E.2d at 27. It is also plain from

the controlling case law that in assessing the validity of SBM’s imposition, we balance

the extent to which SBM effectively prevents sexual abuse against its “deep . . .

intrusion upon [an] individual’s protected Fourth Amendment interests.” Grady III,

372 N.C. at 538, 831 S.E.2d at 564.

                                      IV. Application

  A. Nature and Character of SBM’s Intrusion on Defendant’s Fourth Amendment
                                    Interests


                                              17
                                      STATE V. HILTON

               BROOK, J., concurring in the result in part and dissenting in part



       While there is no doubt that Defendant’s status as a sex offender diminishes

his expectation of privacy in certain contexts, it “does not mean that the Fourth

Amendment falls out of the picture entirely.” Id. at 534, 831 S.E.2d at 561 (citation

omitted). As a registered sex offender, Defendant must provide the State with certain

“limited information concerning his address, employment, and appearance, in

addition to his photograph and fingerprints[.]” Id. at 531, 831 S.E.2d at 560. But the

provision of this information does not “greatly diminish [his] . . . expectation of privacy

in every context.” Id., 831 S.E.2d at 559 (internal marks omitted) (emphasis added).

Relatedly, there is a

              substantial difference[] between, on the one hand, an
              individual having to register his address, photograph, and
              other limited details pertaining to himself and the offense
              or offenses for which he was convicted with the sheriff and,
              on the other hand, an individual being required to wear an
              ankle appendage, which emits repeating voice commands
              when the signal is lost or when the battery is low, and
              which requires the individual to remain plugged into a wall
              every day for two hours[.]

Id. at 536-37, 831 S.E.2d at 563.

       Defendant’s expectation of privacy is further diminished given that he was on

post-release supervision at the time of the SBM hearing. Though those subject to

State supervision have a diminished expectation of privacy, Samson v. California,

547 U.S. 843, 852, 126 S. Ct. 2193, 2199, 165 L. Ed. 2d 250, 259 (2006), their

expectation of privacy is not a nullity, Grady III, 372 N.C. at 534, 831 S.E.2d at 561.

Further, Defendant will not be supervised forever; thus, his current status does not

                                              18
                                       STATE V. HILTON

                BROOK, J., concurring in the result in part and dissenting in part



mean his expectation of privacy will remain “severely diminished” throughout the

course of his lifetime. Samson, 547 U.S. at 852, 126 S. Ct. at 2199; see Grady III, 372

N.C. at 555, 831 S.E.2d at 575; Gordon I, 261 N.C. App. at 259, 820 S.E.2d at 348

(“[T]he State’s ability to establish reasonableness is [] hampered by the lack of

knowledge concerning the future circumstances relevant to that analysis.”). Simply

put, “there is no precedent for the proposition that persons . . . who have served their

sentences and whose legal rights have been restored to them . . . nevertheless have a

diminished expectation of privacy in their persons and in their physical locations at

any and all times of the day or night for the rest of their lives.” Grady III, 372 N.C.

at 533, 831 S.E.2d at 561.

       The life-long, near perfect surveillance of SBM weighs against validity in the

Fourth Amendment balancing test, even when considering individuals such as

Defendant who will have an undoubtedly diminished expectation of privacy for some

portion of their lives.

   B. State’s Evidence of SBM’s Promotion of Legitimate Governmental Interests

       Defendant argues that “the State failed to present evidence that the SBM

program is effective at preventing recidivism.” Our Court and our Supreme Court

have addressed a similar dearth of evidence in, among others, Grady III, Ricks,

Gordon II, Graham, Griffin II, Dravis, Anthony, Gordon I, Griffin I, Grady II, and

Greene. In each case in which the State failed to present any evidence of the efficacy



                                               19
                                      STATE V. HILTON

               BROOK, J., concurring in the result in part and dissenting in part



of SBM in furthering the State’s interests of protecting the public from sex offenders,

and reducing recidivism, we have held the imposition of lifetime or long-term SBM to

be unconstitutional. See Grady III, 372 N.C. at 521, 831 S.E.2d at 552-53 (“[T]he

State failed to present any evidence of [SBM’s] efficacy in furtherance of the State’s

undeniably legitimate interests.”) (quoting Grady II, 259 N.C. App. at 675, 817 S.E.2d

at 27); Ricks, 2020 WL 2121296, at *10 (“The State presented no evidence . . .

regarding the reasonableness of the search”); Gordon II, 2020 WL 1263993, at *6

(“[T]he State’s evidence falls short of demonstrating what Defendant’s threat of

reoffending will be”); Graham, 2020 WL 1263994, at *12 (“[T]he State notes that it

presented no . . . data on the extent to which the program advances legitimate

government interests.”); Griffin II, ___ N.C. App. at ___, 840 S.E.2d at 276 (holding

search unreasonable “given the State’s failure to meet its burden showing SBM’s

efficacy in accomplishing the State’s professed aims.”); Dravis, ___ N.C. App. at ____,

837 S.E.2d at 385 (2020) (“[T]he State did not provide sufficient evidence to show how

the efficacy of SBM [] furthered a legitimate interest of the State; e.g. to help solve

sex offense crimes.”); Anthony, ___ N.C. App. at ___, 831 S.E.2d at 907 (“[T]he State

did not attempt to present any evidence or request judicial notice of any studies

regarding the actual efficacy of its SBM program in preventing recidivism.”)

(emphasis in original); Gordon I, 261 N.C. App. at 260, 820 S.E.2d at 348 (“[T]he

State’s evidence falls short of demonstrating what Defendant’s threat of recidivating



                                              20
                                      STATE V. HILTON

               BROOK, J., concurring in the result in part and dissenting in part



will be”); Griffin I, 260 N.C. App. at 635, 818 S.E.2d at 340 (“[T]he State presented

no evidence regarding the efficacy of the SBM program.”); Grady II, 259 N.C. App. at

675, 817 S.E.2d at 27 (“[T]he State failed to present any evidence of [the SBM

program’s] efficacy in furtherance of the State’s undeniably legitimate interests.”);

Greene, 255 N.C. App. at 782, 806 S.E.2d at 344 (noting that the State conceded that

its “evidence was insufficient to establish that the enrollment constituted a

reasonable Fourth Amendment search”).

      Here, the trial court made no findings of fact regarding the efficacy of the

program in preventing or solving sex crimes. Nor did the State present any witnesses

to testify that SBM is an effective law enforcement tool. As in Grady III, the State

here presented no data or empirical studies to show that SBM is effective at

preventing recidivism or deterring sex crimes. Nor did it request that the trial court

take judicial notice of any studies or reports regarding the efficacy of SBM in reducing

recidivism. The State also put forth no evidence regarding general recidivism rates

of sex offenders to support the reasonableness of the intrusion. Similar to the case in

Grady III,

             the State has not directed this Court to, nor are we aware
             of, a single instance dating back to the initial
             implementation of the SBM program in January 2007 in
             which the SBM program assisted law enforcement in
             apprehending or exonerating a suspected sex offender in
             North Carolina, or anywhere else.




                                              21
                                      STATE V. HILTON

               BROOK, J., concurring in the result in part and dissenting in part



372 N.C. at 542-43, 831 S.E.2d. at 567. In short, the State introduced no evidence of

the SBM program’s efficacy.

      While the State put forth no evidence of the efficacy of SBM in general in

deterring sex crimes and preventing recidivism, it did attempt to put forth evidence

of the likelihood of SBM to prevent Defendant’s own recidivism.                     It did so by

attempting to illustrate how SBM could have prevented the conduct underlying

Defendant’s most recent charges. Counsel for the State asked Officer Osborne how

the State might have responded to discovering through SBM that Defendant was

traveling out of the county. Officer Osborne testified that he as the supervising officer

could have notified the parole commission, but that the parole commission likely

would not have issued a warrant. Officer Osborne testified that this is why the State

would have sought to electronically monitor Defendant; however, the officer failed to

explain how this would have furthered the State’s interests.

      The following exchange between counsel for the State and Officer Osborne

captures the conjectural and conclusory nature of the State’s evidence:

             [PROSECUTOR]: [O]f course, you don’t know which
             particular time he went to Caldwell County these
             allegations stemmed from?

             [OFFICER OSBORNE]: Right.

             [PROSECUTOR]: However, if he would have done it the
             first time, if at that time he had no contact with this girl, it
             was the first time he was in Caldwell County, you would
             have been able to stop him from going any further times?


                                              22
                                      STATE V. HILTON

               BROOK, J., concurring in the result in part and dissenting in part




             [OFFICER OSBORNE]: Correct.

             [PROSECUTOR]: And so hypothetically if the first time he
             went to Caldwell County he had no contact with this girl,
             then you possibly, if in fact an assault did occur, you might
             have been able to avoid that with satellite-based
             monitoring?

             ...

             [OFFICER OSBORNE]: Yes.

(Emphasis added.)

      Even if this evidence factored into the trial court’s findings in supporting

lifetime SBM—which it appears to have not, given that the trial court made no

findings of fact regarding this testimony—it does not provide the requisite evidence

“regarding the actual efficacy of [the State’s] SBM program in preventing recidivism.”

Anthony, ___ N.C. App. at ___, 831 S.E.2d at 907 (emphasis in original). Beyond the

leading questions and unexplained affirmative response from Officer Osborne, the

State offered no evidence for how monitoring could have prevented Defendant’s

alleged assault or in what form or how frequently the State might receive Defendant’s

location information.     Though the State’s assertion of efficacy appears to be

predicated on some State intervention, what that entails is left unexplained. This is

insufficient to carry the State’s burden. See Grady II, 259 N.C. App. at 675, 817

S.E.2d at 27-28 (holding that the State did not meet its burden of proving the efficacy




                                              23
                                      STATE V. HILTON

               BROOK, J., concurring in the result in part and dissenting in part



of SBM where it failed to present any evidence concerning how the procedures used

to monitor offenders could protect the public).

      The little evidence offered seems to undermine the conclusory assertion of

efficacy rather than support it.            Implicit in the above questioning is an

acknowledgement that SBM could not have prevented an assault that occurred on

Defendant’s first unauthorized trip to Caldwell County. And Officer Osborne testified

that he did not think that the parole commission would have issued a warrant had

the State learned of Defendant’s unauthorized travel, calling into question whether

subsequent trips to Caldwell County could have been prevented or would have

resulted in any consequences. Further, the State presented no evidence—and the

trial court made no findings—indicating SBM could have served a crime-solving

purpose. Finally, no findings or evidence offer any support for the efficacy of or need

for the lifetime monitoring imposed here.

      To its credit, the majority opinion acknowledges that the State has failed here

to make “any showing . . . that the program furthers its interest in solving [sex] crimes

that have been committed, preventing the commission of sex crimes, or protecting the

public.” Grady III, 372 N.C. at 545, 831 S.E.2d at 568. But the majority then asserts

that “there is a justification for SBM during Defendant’s post-release supervision

period, apart from any ability to help law enforcement determine whether Defendant

is committing other sex crimes.         SBM is effective in helping law enforcement



                                              24
                                      STATE V. HILTON

               BROOK, J., concurring in the result in part and dissenting in part



determine whether Defendant is violating the terms of his post-release supervision

by traveling outside Catawba County without permission.” Hilton, supra at ___

(emphasis in original). This approach does not withstand scrutiny.

      First, there is no support for the majority’s assertion that an interest in

preventing defendants from absconding has been used to or can in fact justify the

State’s SBM program. At oral argument before the Supreme Court in Grady III, the

State fully embraced the justification the majority rejects today:

             Q:     Just so I look at this correctly, what does the State
                    contend the specific purpose of this program is?

             A:     The specific purpose of this program is to allow law
                    enforcement to be able to investigate and quickly
                    apprehend sex offenders to protect the public from
                    sex offenders.

372 N.C. at 526 n.13, 831 S.E.2d at 556 n.13 (emphasis in original). The State has

taken the same tack throughout this case, again without reference to absconding; the

majority does not deign to explain why its absconding argument is properly before us.

See, e.g., United States v. Sineneng-Smith, ___ U.S. ___, ___, ___ S. Ct. ___, ___, ___

L. Ed. 2d ___, ___, 2020 WL 2200834, at *3 (2020) (vacating and remanding “for an

adjudication of the appeal attuned to the case shaped by the parties rather than the

case designed by the appeals panel.”); State v. Hardy, 242 N.C. App. 146, 152 n.2, 774

S.E.2d 410, 415 n.2 (2015) (treating as abandoned issue that neither the State nor




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                                          STATE V. HILTON

                  BROOK, J., concurring in the result in part and dissenting in part



the defendant raised on appeal) (citing N.C. R. App. 28(a)).7 And, in our Court’s first

post-Grady III decision, Judge Dillon, writing for a unanimous panel, reversed an

SBM order because “[t]he State did not provide sufficient evidence to show how the

efficacy of SBM [] furthered a legitimate interest of the State; e.g. to help solve sex

offense crimes.” Dravis, ___ N.C. App. at ___, 837 S.E.2d at 385 (emphasis added).

Not only did absconding go unmentioned in Dravis, but also it has not merited

mention in any opinion, be it majority, concurring, concurring in the result, or

dissenting, in Grady III, Ricks, Gordon II, Graham, Griffin II, Dravis, Anthony,

Gordon I, Griffin I, Grady II, and Greene. This track record does nothing to suggest

that absconding is a justification for the State’s seeking to impose SBM, let alone one

deemed persuasive by our Courts.




        7 The majority suggests that the State sought to justify the imposition of SBM via an
absconding argument at the trial court; this is not so. While the State did argue that SBM would have
allowed the probation officer to know if Defendant went to Caldwell County, this was not presented as
an end in itself. Instead, as was also the case before our Supreme Court in Grady III, the entire thrust
of the State’s trial court argument was that this information could have potentially helped solve a sex
crime. The pertinent quote presented by the majority in its fuller context bears this out:

                The testimony, even defendant’s own evidence, would indicate that he
                did, in fact, leave this county, went to Caldwell County without
                permission of his probation officer. The probation officer indicated that
                if he was subjected to satellite-based monitoring, he would have known
                about that.

                I think you’re right, Your Honor, we don’t know if that would have
                prevented this crime or not, but the possibility is that it could have.

Even if it were true, the majority’s assertion does not change the fact that the State has not argued
absconding as a justification on appeal nor, as discussed below, that it has never been countenanced
as an interest of sufficient weight to carry the State’s burden in imposing SBM.

                                                   26
                                      STATE V. HILTON

               BROOK, J., concurring in the result in part and dissenting in part



      And the majority seems to know its creation only bears so much weight,

acknowledging it can only justify SBM while a defendant is on post-release

supervision. This, however, raises another problem: the statute through which SBM

was imposed here refers only to “satellite-based monitoring for life.” N.C. Gen. Stat.

§ 14-208.40B(c) (2019) (emphasis added). The majority circumvents this obstacle by

rewriting the statute. It begins by rightly noting that there are occasions where our

courts have recognized an invalid portion of a statute can be “stricken out” while the

“constitutional [portion] may stand.” State v. Fredell, 283 N.C. 242, 245, 195 S.E.2d

300, 302 (1973). But the majority does not merely strike through “for life” but also

adds a wholly different temporal frame, “so long as the offender is on post-release

supervision” or some equivalent, to the statute in question.                As Justice Scalia

correctly noted, this is not our place: “The problem with this approach is the one that

inheres in most incorrect interpretations of statutes: It asks us to add words to the

law to produce what is thought to be a desirable result. That is [the legislature’s]

province.” E.E.O.C. v. Abercrombie & Fitch Stores, Inc., ___ U.S. ___, ___, 135 S. Ct.

2028, 2033, 192 L. Ed. 35, 42 (2015). And the legislature already allows the State to

seek to impose SBM for the duration of a defendant’s post-release supervision

through a statute not employed here, N.C. Gen. Stat. § 15A-1368.4(b1)(7). See Griffin

II, ___ N.C. App. at ___, 840 S.E.2d at 274 (“The thirty years of SBM at issue in this

appeal is unrelated to the State’s post-release supervision of Defendant. . . .



                                              27
                                      STATE V. HILTON

               BROOK, J., concurring in the result in part and dissenting in part



Defendant has not contested the imposition of SBM as a condition of post-release

supervision but has instead appealed an entirely different search lasting six times

the length of his supervisory relationship with the State.”). Though we may wish

SBM had been imposed as a condition of post-release supervision, we cannot change

the fact that it was instead imposed for life by rewriting N.C. Gen. Stat. § 14-

208.40B(c) to produce the desired result.

      The trial court did not find and the record provides no basis for concluding

SBM would have advanced the State’s undoubtedly legitimate interests here. Our

courts have long required something more concrete than the conjectural and

conclusory testimony proffered here by the State to justify the intrusion of

warrantless SBM. See Griffin I, 260 N.C. App. at 635, 818 S.E.2d at 341 (holding the

State cannot meet its burden of proof with a “lack of data, social science or scientific

research, legislative findings, or other empirical evidence” by instead “appeal[ing] to

anecdotal case law, as well as to logic and common sense.”) (internal marks and

citation omitted); Anthony, ___ N.C. App. at ___, 831 S.E.2d at 910 (holding

imposition unconstitutional where “State presented no evidence regarding the

efficacy of SBM.”) (emphasis in original). The State’s failure to carry its burden

necessitates reversal of the trial court’s SBM order here. Greene, 255 N.C. App. at

784, 806 S.E.2d at 345 (reversing SBM order because, where the State has failed to




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                                      STATE V. HILTON

               BROOK, J., concurring in the result in part and dissenting in part



meet its burden of proving reasonableness in a Grady hearing, it is not permitted to

“try again” in a new hearing).

                                       V. Conclusion

      Our binding precedent is clear:              the Fourth Amendment protects an

individual’s reasonable expectations of privacy. Reasonableness turns on balancing

a search’s promotion of legitimate governmental interests against its intrusion. “We

cannot simply assume that the program serves its goals and purposes” in weighing

the State’s interests. Grady III, 372 N.C. at 544, 831 S.E.2d at 568. And here the

State failed to bring forward any evidence that SBM would serve its stated purpose

of protecting the public. On the other side of the scale, Grady III, as well as its many

predecessor and successor cases, establish that “[t]he SBM program constitutes a

substantial intrusion into [protected] privacy interests[.]” Id. at 544-45, 831 S.E.2d

at 568. While diminished for a time in the case of individuals like Defendant, these

interests are never a nullity.

      I respectfully concur in the result in part and dissent in part.




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