              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-151

                               Filed: 6 December 2016

New Hanover County, No. 15 CRS 50624

STATE OF NORTH CAROLINA

             v.

JOSHUA ADAM STROESSENREUTHER


      Appeal by defendant from order entered 29 October 2015 by Judge John E.

Nobles, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals

10 August 2016.


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

      The Law Office of Sterling Rozear, PLLC, by Sterling Rozear, for defendant.


      DIETZ, Judge.


      Defendant Joshua Stroessenreuther appeals from the trial court’s order

imposing satellite-based monitoring. Relying on the U.S. Supreme Court’s recent

decision in Grady v. North Carolina, 135 S. Ct. 1368 (2015), which held that satellite-

based monitoring implicates the Fourth Amendment, Stroessenreuther argues that

our State’s satellite-based monitoring laws are facially unconstitutional or,

alternatively, unconstitutional as applied to him.

      We reject Stroessenreuther’s facial challenge. That challenge is premised on

the notion that, because the satellite-based monitoring statute does not expressly
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                                   Opinion of the Court



authorize trial courts to consider the reasonableness of the monitoring under the

Fourth Amendment, the law is facially unconstitutional. But the statute neither

permits nor prohibits trial courts from addressing this constitutional argument—it is

simply silent. As a result, trial courts are free to address this Fourth Amendment

issue, and hold a hearing if necessary, when defendants assert it. Indeed, this Court

has issued several recent decisions discussing the procedures trial courts should use

when a Fourth Amendment argument is raised under Grady.                  These decisions

confirm that trial courts can (and must) consider a Fourth Amendment challenge to

satellite-based    monitoring    when    a    defendant   raises   it.      Accordingly,

Stroessenreuther’s facial challenge is meritless.

      The     State   concedes   that   Stroessenreuther’s   as-applied    challenge   is

meritorious, and we agree. Under Grady, the trial court was required to consider the

reasonableness of the satellite-based monitoring when Stroessenreuther challenged

that monitoring on Fourth Amendment grounds. The trial court did not conduct that

inquiry in this case, and we must therefore vacate the imposition of satellite-based

monitoring.    We remand this case for the trial court to conduct the necessary

reasonableness inquiry described in our decisions in State v. Blue, __ N.C. App. __,

__, 783 S.E.2d 524, 527 (2016) and State v. Morris, __ N.C. App. __, __, 783 S.E.2d

528, 530 (2016).




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                                  Opinion of the Court



                          Facts and Procedural History

      On 29 October 2015, Defendant Joshua Stroessenreuther entered an Alford

plea to one count of indecent liberties with a child and one count of sex offense with

a child as an adult offender. Stroessenreuther stipulated to a prior conviction for sex

offense with a child as an adult offender. The trial court sentenced him to 300 to 420

months of imprisonment and ordered lifetime sex offender registration.

      At the sentencing hearing, the State also requested lifetime satellite-based

monitoring because Stroessenreuther had been convicted of a reportable offense

under N.C. Gen. Stat. § 14–208.6 and qualified as a recidivist based on his prior

conviction.

      Stroessenreuther argued that “[t]he satellite-based monitoring statute violates

the Federal and State Constitutions based both on their face and as applied to this

Defendant” because “[t]he imposition of satellite-based monitoring violates the

defendant’s right to be free from unreasonable searches and seizures.” He relied on

the U.S. Supreme Court’s recent ruling in Grady. In Grady, the Supreme Court held

that North Carolina’s satellite-based monitoring program implicates the Fourth

Amendment. 135 S. Ct. at 1371.

      The State responded that there was no need to address the reasonableness of

the monitoring under the Fourth Amendment because imposition of lifetime

monitoring was required by the applicable statute. The trial court responded “I



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understand” and entered an order imposing lifetime satellite-based monitoring

without       addressing       Stroessenreuther’s          Fourth       Amendment           argument.

Stroessenreuther timely appealed.

                                              Analysis

    I.       Facial Challenge

         Stroessenreuther first argues that our State’s satellite-based monitoring

statute is facially unconstitutional because it requires the trial court to impose

satellite-based monitoring without permitting the trial court to consider whether that

monitoring is reasonable under the Fourth Amendment. This, Stroessenreuther

argues, violates the Supreme Court’s holding in Grady, which held that satellite-

based monitoring implicates the Fourth Amendment. As explained below, we reject

this facial challenge because trial courts are capable of addressing any Fourth

Amendment concerns raised by defendants before imposing satellite-based

monitoring.1

         “An individual challenging the facial constitutionality of a legislative act must

establish that no set of circumstances exists under which the act would be valid.”


         1Section 1–267.1(a1) of our General Statutes provides that “any facial challenge to the validity
of an act of the General Assembly shall be transferred . . . to the Superior Court of Wake County and
shall be heard and determined by a three-judge panel of the Superior Court of Wake County.” But
subsection (d) of the statute provides that this rule “applies only to civil proceedings” and “[n]othing
in this section shall be deemed to apply to criminal proceedings.” N.C. Gen. Stat. § 1–267.1(d).
Although imposition of satellite-based monitoring is civil, not criminal, in nature, this satellite-based
monitoring issue arose during a criminal sentencing proceeding. We interpret Section 1–267.1 to
permit a criminal defendant to assert this type of constitutional challenge before a single trial judge
during sentencing without having to transfer the issue to a three-judge panel.

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State v. Whiteley, 172 N.C. App. 772, 778, 616 S.E.2d 576, 580 (2005). “The standard

of review for alleged violations of constitutional rights is de novo.” State v. Graham,

200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009).

      Stroessenreuther contends that, in our State’s satellite-based monitoring laws,

“there is no opportunity provided for the state to present evidence to meet its burden

of proving that the imposition of [satellite-based monitoring] is reasonable under the

Fourth Amendment” and “no provision allowing the trial court to consider the

reasonableness of [satellite-based monitoring] under the Fourth Amendment.”

      We agree with Stroessenreuther that the satellite-based monitoring statute

does not expressly set out a procedure for hearing a Fourth Amendment argument

challenging the reasonableness of the monitoring. See N.C. Gen. Stat. § 14–208.40A.

But the statute also does not prohibit a trial court from hearing and considering that

Fourth Amendment argument. This is a critical distinction. If the statute precluded

trial courts from considering the reasonableness of the monitoring, the statute would

be unconstitutional on its face. Grady, 135 S. Ct. at 1371. But merely lacking an

express procedure for evaluating the reasonableness of the monitoring does not

render the statute facially unconstitutional. There are countless examples of courts

considering constitutional arguments despite no formal process for doing so. See, e.g.,

City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015); State v. Davis, 96 N.C. App. 545,

386 S.E.2d 743 (1989).



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         Indeed, this Court has vacated and remanded several satellite-based

monitoring cases to permit trial courts to engage in the proper analysis required by

Grady. See Blue, __ N.C. App. at __, 783 S.E.2d at 527; Morris, __ N.C. App. at __,

783 S.E.2d at 530; State v. Collins, __ N.C. App. __, __, 783 S.E.2d 9, 16 (2016). These

cases illustrate that trial courts can, and must, engage in that reasonableness inquiry

when the defendant asserts a Fourth Amendment challenge, regardless of whether

the statute sets out an express procedure for doing so. As a result, Stroessenreuther’s

facial challenge to our State’s satellite-based monitoring statute is meritless.

   II.      As-Applied Challenge

         Stroessenreuther next argues that the satellite-based monitoring program is

unconstitutional as applied to him because the trial court imposed that monitoring

without first considering whether it was reasonable under the Fourth Amendment.

The State concedes that, in light of Grady, the trial court erred by failing to engage

in a reasonableness inquiry once Stroessenreuther asserted his Fourth Amendment

claim. We agree. As in Blue and Morris, we vacate the order imposing satellite-based

monitoring and remand for a new hearing in which the trial court can engage in the

analysis outlined by this Court in those cases. See Morris, __ N.C. App. at __, 783

S.E.2d at 530; Blue, __ N.C. App. at __, 783 S.E.2d at 527.




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                                 Opinion of the Court



                                   Conclusion

      We vacate the trial court’s order imposing satellite-based monitoring and

remand for further proceedings consistent with this opinion.

      VACATED AND REMANDED.

      Judges ELMORE and DAVIS concur.




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