              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-846

                                Filed: 15 March 2016

Harnett County, No. 06CRS55854

STATE OF NORTH CAROLINA

             v.

CHARLES MORRIS, Defendant.


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

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

January 2016.


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

      Meghan Adelle Jones for defendant.


      ELMORE, Judge.


      Charles Morris (defendant) appeals from the trial court’s order requiring him

to enroll in Satellite-Based Monitoring (SBM) and to register as a sex offender for his

natural life. After careful review, we reverse and remand.

                                   I. Background

      On 27 June 2007, defendant waived a bill of indictment and agreed that one

count of first-degree sex offense and three counts of indecent liberties with a child

could be tried upon information. That same day, defendant pleaded guilty to three
                                         STATE V. MORRIS

                                         Opinion of the Court



counts of indecent liberties with a child, and the trial court sentenced him to three

periods of confinement to be served consecutively: twenty to twenty-four months,

twenty to twenty-four months, and seventeen to twenty-one months.

       After defendant completed his sentence, the Harnett County Superior Court

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

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

following colloquy took place:

                MS. GROH: And your Honor, that’s correct. I would agree
                that, as the statute reads now, those do fit under as him
                being a recidivist although, your Honor, my argument is
                going to be the same as Mr. Jones1 in that I would argue
                that is [sic] unreasonable search and seizure. I would like
                that—knowing what you will do, I would just like that
                objection noted for the record, your Honor.

                THE COURT: Okay.

                MS. GROH: Or that argument, for the record.

                THE COURT: Anything else that you want to offer?

                MS. GROH: No, your Honor.

                THE COURT: Anything else the State wants to offer?

                MR. BAILEY: No, your Honor.

                ....


1 Mr. Jones represented the defendant in State v. Blue, ___ N.C. App. ___, ___ S.E.2d ___ (No. COA
15-837) (2016) in a SBM hearing in front of Judge Gilchrist immediately before defendant’s hearing.
In Blue, the trial court concluded that “lifetime satellite-based monitoring is reasonable and necessary
and required by the statute.” Id.

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                                  Opinion of the Court



             THE COURT: All right. The Court has considered the case
             of Grady v. North Carolina. Court evaluates the issue of
             satellite-based monitoring, recognizing that such
             monitoring constitutes a search or seizure under the 4th
             Amendment of the United States constitution and under
             equivalent provisions of North Carolina constitution.
             Court finds the defendant has previously been convicted of
             a second-degree sex offense, is that right, Mr. Bailey?

             MR. BAILEY: That’s correct.

             THE COURT: Court finds defendant has been so convicted,
             and the current conviction, the most recent conviction for
             the defendant is for indecent liberties, also a sexually
             violent offense. Court finds the defendant is a recidivist
             under the North Carolina statutes. That lifetime
             registration is required. Such registration and lifetime
             satellite-based monitoring constitutes a reasonable search
             or seizure of the person, and both lifetime registration and
             lifetime satellite-based monitoring. Defendant’s objections
             and exceptions previously stated are noted for the record
             and overruled. State requesting any further findings?

             MR. BAILEY: No, sir.

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

offender and enroll in SBM for the remainder of his natural life. Defendant gave oral

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

for writ of certiorari, which we granted on 30 December 2015.

                                    II. Analysis

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

Supreme Court of the United States held that North Carolina’s SBM program “effects

a Fourth Amendment Search.” It stated, “That conclusion, however, does not decide


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                                 Opinion of the Court



the ultimate question of the program’s constitutionality. The Fourth Amendment

prohibits only unreasonable searches. The reasonableness of a search depends on the

totality of the circumstances, including the nature and purpose of the search and the

extent to which the search intrudes upon reasonable privacy expectations.” Id. at

___, 191 L. Ed. 2d at ___. Ultimately, the case was remanded to the New Hanover

County Superior Court to determine if, based on the above framework, the SBM

program is reasonable.

      Like the defendant in State v. Blue, ___ N.C. App. ___, ___ S.E.2d ___ (No.

COA 15-837) (2016), defendant argues that “the trial court erred in concluding that

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

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

State argues that it did not bear the burden of proving the reasonableness of the

search imposed by SBM, and defendant failed to satisfy his burden of establishing

that the search is unreasonable. The State, however, concedes the following:

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




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                                  Opinion of the Court



      The trial court erred as it did not analyze the “totality of the circumstances,

including the nature and purpose of the search and the extent to which the search

intrudes upon reasonable privacy expectations.” Grady, 575 U.S. at ___, 191 L. Ed.

2d at ___. Rather, the trial court simply “considered the case of Grady v. North

Carolina,” and summarily concluded that “registration and lifetime [SBM]

constitutes a reasonable search or seizure of the person” and is required by statute.

      The trial court failed to follow the mandate of the Supreme Court of the United

States and determine, based on the totality of the circumstances, if the SBM program

is reasonable when properly viewed as a search. Grady, 575 U.S. at ___, 191 L. Ed.

2d at ___; see Samson v. California, 547 U.S. 843, 848, 165 L. Ed. 2d 250, 256 (2006)

(“Whether a search is reasonable is determined by assessing, on the one hand, the

degree to which it intrudes upon an individual’s privacy and, on the other, the degree

to which it is needed for the promotion of legitimate governmental interests.”)

(internal quotations and citations omitted); Vernonia Sch. Dist. 47J v. Acton, 515 U.S.

646, 652–53, 132 L. Ed. 2d 564, 574 (1995). On remand, the State shall bear the

burden of proving that the SBM program is reasonable. State v. Blue, ___ N.C. App.

___, ___ S.E.2d ___ (No. COA 15-837) (2016).

                                  III. Conclusion

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

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



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                                 Opinion of the Court



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

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

      REVERSED AND REMANDED.

      Judges STROUD and DIETZ concur.




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