               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-1077

                              Filed: 4 September 2018

Forsyth County, Nos. 15 CRS 58663-4

STATE OF NORTH CAROLINA

              v.

AARON LEE GORDON, Defendant.


        Appeal by defendant from order entered 13 February 2017 by Judge Susan E.

Bray in Forsyth County Superior Court. Heard in the Court of Appeals 22 March

2018.


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

        Appellate Defender Glenn Gerding, by Assistant Appellate Defender Michele A.
        Goldman, for defendant-appellant.


        ZACHARY, Judge.


        The trial court ordered Defendant Aaron Lee Gordon to enroll in lifetime

satellite-based monitoring following his eventual release from prison. Defendant

appeals. Because the State cannot establish at this time that Defendant’s submission

to satellite-based monitoring will constitute a reasonable Fourth Amendment search

in the future, upon Defendant’s release from prison, we vacate the trial court’s civil

order mandating satellite-based monitoring.
                                     STATE V. GORDON

                                     Opinion of the Court



                                      Background

I. Satellite-Based Monitoring

      Our General Assembly has described the legislative purpose of sex-offender

registration programs as follows:

             . . . the General Assembly recognizes that law enforcement
             officers’ efforts to protect communities, conduct
             investigations, and quickly apprehend offenders who
             commit sex offenses or certain offenses against minors are
             impaired by the lack of information available to law
             enforcement agencies about convicted offenders who live
             within the agency’s jurisdiction. . . .

             Therefore, it is the purpose of this Article to assist law
             enforcement agencies’ efforts to protect communities by
             requiring persons who are convicted of sex offenses or of
             certain other offenses committed against minors to register
             with law enforcement agencies, to require the exchange of
             relevant information about those offenders among law
             enforcement agencies, and to authorize the access to
             necessary and relevant information about those offenders
             to others as provided in this Article.

N.C. Gen. Stat. § 14-208.5 (2017).

      In furtherance of these objectives, the General Assembly enacted “a sex

offender monitoring program that uses a continuous satellite-based monitoring

system . . . designed to monitor” the locations of individuals who have been convicted

of certain sex offenses. N.C. Gen. Stat. § 14-208.40(a) (2017). The present satellite-

based monitoring program provides “[t]ime-correlated and continuous tracking of the

geographic location of the subject using a global positioning system based on satellite



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and other location tracking technology.” N.C. Gen. Stat. § 14-208.40(c)(1) (2017). The

reporting frequency of a subject’s location “may range from once a day (passive) to

near real-time (active).” N.C. Gen. Stat. § 14-208.40(c)(2) (2017).

      After determining that an individual falls within one of the three categories of

offenders to whom the program applies, see N.C. Gen. Stat. § 14-208.40(a)(1)-(3), the

trial court must conduct a hearing in order to determine the constitutionality of

ordering the targeted individual to enroll in the satellite-based monitoring program.

Grady v. North Carolina, 575 U.S. ___, ___, 191 L. Ed. 2d 459, 462 (2015) (“Grady I”);

State v. Blue, ___ N.C. App. ___, ___, 783 S.E.2d 524, 527 (2016). The trial court may

order a qualified individual to enroll in the satellite-based monitoring program during

the initial sentencing phase pursuant to N.C. Gen. Stat. § 14-208.40A (2017), or at a

later time during a “bring-back” hearing pursuant to § 14-208.40B (2017). For an

individual ordered to enroll in the satellite-based monitoring program at the

sentencing hearing, the monitoring begins after service of the individual’s active

sentence.

II. Defendant’s Enrollment

      In February 2017, Defendant pleaded guilty to statutory rape, second-degree

rape, taking indecent liberties with a child, assault by strangulation, and first-degree

kidnapping. Defendant was sentenced to 190 to 288 months’ imprisonment and

lifetime sex-offender registration. The trial court also ordered, pursuant to N.C. Gen.



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Stat. § 14-208.40(a)(1) and § 14-208.6(1a), that Defendant enroll in the satellite-based

monitoring program for the remainder of his natural life upon his release from prison.

      The State’s only witness at Defendant’s satellite-based monitoring hearing was

Donald Lambert, a probation and parole officer in the sex-offender unit. Lambert

explained that the satellite-based monitoring device currently in use is “just basically

like having a cell phone on your leg.” The device requires two hours of charging each

day, which must occur while the device remains attached to Defendant’s leg. The

charging cord is approximately eight to ten feet long. Defendant must also allow an

officer to enter his home in order to inspect the device every 90 days.

      Lambert testified that under the current satellite-based monitoring program,

the device is “monitoring where you’re going at all times[.]” Once Defendant is

released from prison, “we [will] monitor [him] weekly. . . . [W]e just basically check

the system to see his movement to see where he is, where he is going weekly. . . . [W]e

review all the particular places daily where he’s been.” “[T]he report that can be

generated from that tracking[] gives that movement on a minute-by-minute position,”

as well as “the speed of movement at the time[.]” Under the current statutory regime,

this information can be accessed at any time; no warrant is required. The monitoring

system will also “immediately” alert the authorities if Defendant enters a restricted

area, such as driving past a school zone. In the event that this were to happen,




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Lambert testified that “What we normally do is we contact [the enrollee] by phone

immediately after they get the alert, ask where they are.”

          Lambert was asked what Defendant would have to do if “he had a traveling

sales job that covered, for instance, a regional area of Virginia, North Carolina and

South Carolina?” Lambert explained that the sheriff’s office “would have to approve

it.” Defendant would also “have to clear that with [the Raleigh office] as well. And

then he would have to notify the state that he’s going to if he was going to—and have

to decide whether or not he’d have to stay on satellite-based monitoring in another

state.”

          The State introduced Defendant’s Static-99 score at his satellite-based

monitoring hearing. Lambert explained that Static-99 is “an assessment tool that

they’ve been doing for years on male defendants over 18. It’s just a way to assess

whether or not they’ll commit a crime again of this [sexual] sort.” Lambert testified

that defendants are assigned “points” based on

                whether or not they’ve committed a violent crime, whether
                or not there was an unrelated victim, whether or not there
                was—there’s male victims. . . . Other than just the sexual
                violence, was there another particular part of violence in
                the crime—in the index crime? Also, [it] does take their
                prior sentencing dates into factor too.

Defendant received a “moderate/low” score on his Static-99, which Lambert explained

meant there was “a moderate to low [risk] that he would ever commit a crime like

this again.” Defendant did not have any convictions for prior sex offenses, but he was


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given a point for having previous violent convictions. Based on Defendant’s Static-99

assessment, Lambert agreed that “it’s not likely he’s going to do that [commit a sex

offense] again[.]” Other than Defendant’s Static-99 score, neither Lambert nor the

State were able to offer “any evidence . . . as to what the rate of recidivism is during—

even during [a] five-year period[.]”

      The purpose of the satellite-based monitoring program is “to monitor subject

offenders and correlate their movements to reported crime incidents.” N.C. Gen. Stat.

§ 14-208.40(d) (2017).     However, Lambert also noted that the satellite-based

monitoring program could potentially be of benefit to Defendant. As Lambert

explained, “if somebody takes charges out, it will show where they are. So it kind of—

it can help them as well, showing that they’ve been to particular places. If somebody

says he was over here doing this at a particular time, it will—it will show, hey, no, he

was over here.”

      After reviewing the evidence presented during the hearing, the trial court

recited the following:

             Let the record reflect we’ve had this hearing, and the Court
             is going to find by the preponderance of the evidence that
             the factors that the State has set forth—his previous
             assaults, the Static-99 history, the fact that this occurred
             in an apartment with other children present as well and
             the relatively minor physical intrusion on the defendant to
             wear the device—it’s small. It has to be charged two hours
             a day. But other than that, it can be used in water and
             other daily activities—so I am going to find . . . that he
             should enroll in satellite-based monitoring for his natural


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             life unless terminated.

      Defendant filed proper notice of appeal from the trial court’s satellite-based

monitoring order. On appeal, Defendant only challenges the constitutionality of the

satellite-based monitoring order as applied to him. He argues that the trial court

erred in ordering that he be subjected to lifetime satellite-based monitoring because

“[t]he state failed to meet its burden of proving that imposing [satellite-based

monitoring] on [Defendant] is reasonable under the Fourth Amendment.” We agree.

                               Standard of Review

      A trial court’s determination that satellite-based monitoring is a reasonable

search under the Fourth Amendment is reviewed de novo. State v. Martin, 223 N.C.

App. 507, 508, 735 S.E.2d 238, 238 (2012) (citing State v. Bare, 197 N.C. App. 461,

464, 677 S.E.2d 518, 522 (2009), disc. review denied, 364 N.C. 436, 702 S.E.2d 492

(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) (citations and quotation marks omitted).

                                       Discussion

I.

      The Fourth Amendment provides:

             The right of the people to be secure in their persons,
             houses, papers, and effects, against unreasonable searches
             and seizures, shall not be violated, and no Warrants shall
             issue, but upon probable cause, supported by Oath or


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             affirmation, and particularly describing the place to be
             searched, and the persons or things to be seized.

U.S. Const. amend. IV. A “search” will be found to have occurred so as to trigger

Fourth Amendment protections where the government “physically occupie[s] private

property for the purpose of obtaining information[,]” United States v. Jones, 565 U.S.

400, 404, 181 L. Ed. 2d 911, 918 (2012), or where government officers are shown to

have “violate[d] a person’s ‘reasonable expectation of privacy[.]’ ” Id. at 406, 181 L.

Ed. 2d at 919 (quoting Katz v. United States, 389 U.S. 347, 360, 19 L. Ed. 2d 576, 587

(1967)) (other citations omitted).

      In Grady I, the United States Supreme Court held that enrollment of an

individual in North Carolina’s satellite-based monitoring program constitutes a

search for purposes of the Fourth Amendment. Grady, 575 U.S. at ___, 191 L. Ed. 2d

at 461-62. In so concluding, the Supreme Court explained:

                    In United States v. Jones, we held that “the
             Government’s installation of a GPS device on a target’s
             vehicle, and its use of that device to monitor the vehicle’s
             movements, constitutes a ‘search.’ ” We stressed the
             importance of the fact that the Government had “physically
             occupied private property for the purpose of obtaining
             information.” Under such circumstances, it was not
             necessary to inquire about the target’s expectation of
             privacy in his vehicle’s movements in order to determine if
             a Fourth Amendment search had occurred. “Where, as
             here, the Government obtains information by physically
             intruding on a constitutionally protected area, such a
             search has undoubtedly occurred.”

                    We reaffirmed this principle in Florida v. Jardines,


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             [569 U.S. 1, 185 L. Ed. 2d 495] (2013)[.] . . . In light of these
             decisions, it follows that a State also conducts a search
             when it attaches a device to a person’s body, without
             consent, for the purpose of tracking that individual’s
             movements.

Id. at ___, 191 L. Ed. 2d at 461-62 (quoting Jones, 565 U.S. at 404, 406 n.3, 181 L.

Ed. 2d at 918, 919 n.3).

      Nevertheless, the Supreme Court in Grady I made clear that its determination

that the defendant had been subjected to a search was only the first step in the overall

Fourth Amendment inquiry, noting that “[t]he Fourth Amendment prohibits only

unreasonable searches.” Id. at ___, 191 L. Ed. 2d at 462. The Supreme Court

explained that whether an individual’s enrollment in the satellite-based monitoring

program constitutes a reasonable Fourth Amendment search will “depend[] 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. (citing

Samson v. California, 547 U.S. 843, 165 L. Ed. 2d 250 (2006) and Vernonia Sch. Dist.

47J v. Acton, 515 U.S. 646, 132 L. Ed. 2d 564 (1995)). However, as our courts had not

yet conducted that inquiry, the Supreme Court declined to “do so in the first instance.”

Id. The Supreme Court concluded only that the satellite-based monitoring program

constituted a search, leaving it to our courts to determine the “ultimate question of

the program’s constitutionality.” Id.




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                                        Opinion of the Court



       On remand from Grady I, this Court held that the defendant’s enrollment in

the satellite-based monitoring program was not a reasonable Fourth Amendment

search.1 State v. Grady, ___ N.C. App. ___, ___ S.E.2d ___, 2018 N.C. App. LEXIS 460

(“Grady II”). We noted that, notwithstanding the defendant’s appreciably diminished

expectation of privacy by virtue of his status as a convicted sex-offender, satellite-

based monitoring was highly intrusive and unlike any other search the United States

Supreme Court had upheld thus far. Despite the fact that satellite-based monitoring

was “uniquely intrusive,” id. at *15, “the State failed to present any evidence of its

need to monitor [the] defendant, or the procedures actually used to conduct such

monitoring[.]” Id. at *21-22. Accordingly, we concluded that the State had failed to

meet its burden of proving that satellite-based monitoring would constitute a

reasonable Fourth Amendment search under the totality of the circumstances. This

was particularly so in light of the fact that “law enforcement is not required to obtain

a warrant in order to access [the] defendant’s . . . location data.” Id. at *17. Indeed,

it has long been “determined that ‘where a search is undertaken by law enforcement

officials to discover evidence of criminal wrongdoing, . . . reasonableness generally

requires the obtaining of a judicial warrant.’ ” Riley v. California, ___ U.S. ___, ___,

189 L. Ed. 2d 430, 439 (2014) (quoting Vernonia Sch. Dist. 47J, 515 U.S. at 653, 132

L. Ed. 2d at 574).


       1 This Court reached a similar conclusion more recently in State v. Griffin, ___ N.C. App. ___,
___ S.E.2d ___, 2018 N.C. App. LEXIS 792.

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II.

       In the instant case, pursuant to the satellite-based monitoring statutes, the

State submitted an application for the general authority to collect and access

Defendant’s location information on a continuing basis. Defendant’s location

information would be accessed in order to determine whether Defendant has traveled

to a restricted area and, more broadly, to “correlate [his] movements to reported crime

incidents.” N.C. Gen. Stat. § 14-208.40(c)(2), (d) (2017). This is in accordance with

the underlying purpose of the satellite-based monitoring program, which is quite

plainly “to discover evidence of criminal wrongdoing[.]” Vernonia Sch. Dist. 47J, 515

U.S. at 653, 132 L. Ed. 2d at 574.

       The State filed its satellite-based monitoring application at the time of

Defendant’s sentencing, pursuant to N.C. Gen. Stat. § 14-208.40A. Because of

Defendant’s active sentence, the trial court’s order granting the State’s application

will allow the State the authority to search Defendant—i.e., to “physically occup[y]

private property for the purpose of obtaining information”—beginning in 2032.2

Jones, 565 U.S. at 404, 181 L. Ed. 2d at 918. Thus, in the instant case, Defendant

has yet to be searched.




       2 The trial court sentenced Defendant to 190 to 288 months’ imprisonment. Defendant was
given credit for 426 days spent in confinement prior to the date judgment was entered against him in
February 2017.

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       Nevertheless, solely by virtue of his status as a convicted sex-offender, the trial

court’s order has vested in the State the authority to access the sum of Defendant’s

private life once he is released from prison. Grady II, 2018 LEXIS 460, at *15-16

(quoting Jones, 565 U.S. at 415, 181 L. Ed. 2d at 925 (Sotomayor, J., concurring)) (“

‘GPS monitoring generates a precise, comprehensive record of a person’s public

movements that reflects a wealth of detail about [his] familial, political, professional,

religious, and sexual associations.’ [T]hrough analysis of [satellite-based monitoring]

location data, the State could ascertain whether an offender was regularly visiting a

doctor’s office, an ABC store, or a place of worship.”). Lambert testified that pursuant

to the satellite-based monitoring order, his office will “monitor [Defendant] weekly. .

. . [W]e just basically check the system to see his movement to see where he is, where

he is going weekly. . . . [W]e review all the particular places daily where he’s been.”

Neither the State’s application nor the trial court’s order place limitations on the

State’s ability to access this information. The trial court’s order resembles, in essence,

a general warrant.

       A “general warrant” has traditionally been described as one “that gives a law-

enforcement officer broad authority to search and seize unspecified places or persons;

a . . . warrant that lacks a sufficiently particularized description of the . . . place to be

searched.”   General Warrant, BLACK’S LAW DICTIONARY (8th ed. 2014).                General

warrants also include those that are not “supported by showings of probable cause



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that any particular crime ha[s] been committed.” State v. Richards, 294 N.C. 474,

491-92, 242 S.E.2d 844, 855 (1978) (citations omitted).         In other words, general

warrants are “not limited in scope and application.” Maryland v. King, 569 U.S. 435,

466, 186 L. Ed. 2d 1, 32 (2013) (Scalia, J., dissenting). It is in the context of a warrant

to search, however, that the State must make a proper showing of individualized

suspicion and abide by “[t]he requirements of particularity of descriptions[,]” which

are met only “when the warrant on its face leaves nothing to the discretion of the

officer executing the warrant as to the premises to be searched and the activities or

items which are the subjects of the proposed search.” Brooks v. Taylor Tobacco

Enters., Inc., 298 N.C. 759, 762, 260 S.E.2d 419, 422 (1979) (citation omitted);

Richards, 294 N.C. at 491-92, 242 S.E.2d at 855. The requirements of individualized

suspicion and particularity operate precisely to prevent the government’s use of

general warrants—as our Supreme Court has noted, general warrants have been

“abhorred since colonial days and [are] banned by both the Federal and State

Constitutions.” Richards, 294 N.C. at 491, 242 S.E.2d at 855 (citation and quotation

marks omitted).

      The satellite-based monitoring program grants a similarly expansive authority

to State officials. State officials have the ability to access the details of a monitored

defendant’s private life whenever they see fit. A defendant’s trip to a therapist, a

church, or a family barbecue are revealed in the same manner as an unauthorized



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                                    Opinion of the Court



trip to an elementary school. At no point are officials required to proffer a suspicion

or exigency upon which their searches are based or to submit to judicial oversight.

Rather, the extent of the State’s ability to rummage through a defendant’s private

life are left largely to the searching official’s discretion, constrained only by his or her

will. See, e.g., State v. White, 322 N.C. 770, 774, 370 S.E.2d 390, 393 (1988) (quoting

Coolidge v. New Hampshire, 403 U.S. 443, 467, 29 L. Ed. 2d 564, 583 (1971)) (“ ‘The

second, distinct objective [of the warrant requirement] is that those searches deemed

necessary should be as limited as possible. Here, the specific evil is the “general

warrant” abhorred by the colonists, and the problem is not that of intrusion per se,

but of a general, exploratory rummaging in a person’s belongings.’ ”). Thus, it is all

the more critical that the State meet the requirement of otherwise showing the

reasonableness of the satellite-based monitoring search.

       This Court will not exhibit a more generous faith in our government’s benign

use of general warrants than did the Founders. In the Declaration of Rights of the

North Carolina Constitution, the use of general warrants is explicitly condemned as

“dangerous to liberty” and the Constitution mandates that general warrants “shall

not be granted.” N.C. Const. art. I, § 20. The Framers of the Fourth Amendment to

the United States Constitution sought to prevent the use of general warrants as well.

See Payton v. New York, 445 U.S. 573, 583, 63 L. Ed. 2d 639, 649 (1980) (“It is familiar

history that indiscriminate searches and seizures conducted under the authority of



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‘general warrants’ were the immediate evils that motivated the framing and adoption

of the Fourth Amendment.”); see also Thomas Y. Davies, Recovering the Original

Fourth Amendment, 98 MICH. L. REV. 547, 590 (1999) (“[The Framers] were concerned

about a specific vulnerability in the protections provided by the common law; they

were concerned that legislation might make general warrants legal in the future, and

thus undermine the right of security in person and house. Thus, the framers adopted

constitutional search and seizure provisions with the precise aim of ensuring the

protection of person and house by prohibiting legislative approval of general

warrants.”). As pointed out in an unrelated case by Justice Newby of our Supreme

Court, “the purpose of the Fourth Amendment is to impose a standard of

reasonableness upon the exercise of discretion by governmental officials . . . in order

to safeguard the privacy and security of individuals against arbitrary invasions[.]”

State v. Heien, 366 N.C. 271, 278-279, 737 S.E.2d 351, 356 (2012) (citation and

quotation marks omitted).

        Given the unlimited and unfettered discretion afforded to State officials with

the satellite-based monitoring system, the State’s burden of establishing that the use

of satellite-based monitoring will comply with the Fourth Amendment’s demand that

all searches be “reasonable” is especially weighty.3


        3“The[] words [of the Fourth Amendment] are precise and clear. They reflect the determination
of those who wrote the Bill of Rights that the people of this new Nation should forever ‘be secure . . . ’
from intrusion . . . by officers acting under the unbridled authority of a general warrant. Vivid in the



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III.

        In the case at bar, the State has failed to meet its burden of showing that the

implementation of satellite-based monitoring of this Defendant will be reasonable

notwithstanding the level of discretion afforded. That is, the State has not established

the circumstances necessary for this Court to determine the reasonableness of a

search fifteen to twenty years before its execution.4

        We note that because the stated purpose of the satellite-based monitoring

program is to discover evidence of criminal wrongdoing, Defendant’s enrollment in

that program cannot be said to be reasonable in light of the “special needs” exception

to the warrant requirement, Vernonia Sch. Dist. 47J, 515 U.S. at 652-53, 132 L. Ed.




memory of the newly independent Americans were those general warrants known as writs of
assistance under which officers of the Crown had so bedeviled the colonists. The hated writs of
assistance had given customs officials blanket authority to search where they pleased for goods
imported in violation of the British tax laws. They were denounced by James Otis as ‘the worst
instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles
of law, that ever was found in an English law book,’ because they placed ‘the liberty of every man in
the hands of every petty officer.’ The historic occasion of that denunciation, in 1761 at Boston, has
been characterized as ‘perhaps the most prominent event which inaugurated the resistance of the
colonies to the oppressions of the mother country. “Then and there,” said John Adams, “then and there
was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there
the child Independence was born.” ’ ” Stanford v. Texas, 379 U.S. 476, 481-82, 13 L. Ed. 2d 431, 435
(1965) (quoting Boyd v. United States, 116 U.S. 616, 625, 29 L. Ed. 746, 749 (1886)).
         4 The merits of this issue have not yet come before this Court. To date, we have only assessed

the reasonableness of a satellite-based monitoring order at the time the defendant had already been
subjected to monitoring. Grady II, 2018 N.C. App. LEXIS 460; Griffin, 2018 N.C. App. LEXIS 792.
This case presents the Court’s first analysis of the constitutionality of an order enrolling a defendant
in the satellite-based monitoring program several years prior to the time at which that monitoring is
expected to begin. E.g., State v. Greene, ___ N.C. App. ___, 806 S.E.2d 343 (2017) (unnecessary to
address the constitutionality of the trial court’s satellite-based monitoring order because the State
conceded that the evidence presented was insufficient to establish that the search was reasonable);
State v. Johnson, ___ N.C. App. ___, 801 S.E.2d 123 (2017) (remanding the satellite-based monitoring
order because the trial court did not conduct the appropriate reasonableness inquiry below).

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2d at 574, nor does the State argue such to be the case. Rather, if Defendant’s

continuous location accessing can be constitutional absent proper prior judicial

approval, it must be in light of its reasonableness pursuant to a general balancing

approach. See, e.g., Samson, supra. That analysis ordinarily involves an examination

of the circumstances existing at the time of the search, including “the nature of the

privacy interest upon which the search . . . intrudes”; “the character of the intrusion”

itself and “the information it discloses”; as well as “the nature and immediacy of the

governmental concern at issue . . . and the efficacy of th[e] means for meeting it.”

Vernonia Sch. Dist. 47J, 515 U.S. at 654, 658, 660, 132 L. Ed. 2d at 575, 577, 578,

579.

       This Court was able to determine the reasonableness of the trial court’s

satellite-based monitoring orders in Grady II and Griffin because the defendants had

already become subject to the monitoring at the time of our analyses. In Grady II, the

trial court ordered the defendant to enroll in satellite-based monitoring at a “bring-

back” hearing pursuant to N.C. Gen. Stat. § 14-208.40B, “more than three years

after” the defendant’s release. Grady II, 2018 LEXIS 460, at *11. We could thus

examine the totality of the circumstances in order to determine the reasonableness

of subjecting the defendant to satellite-based monitoring. For example, we considered

the characteristics of the monitoring device that was currently in use; the manner in

which the defendant’s location monitoring was conducted as well as the purpose for



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which that information was used under the current statute; and the State’s interest

in monitoring that particular defendant in light of his “current threat of

reoffending[.]” Id. at *13, 17. Based on these circumstances, we concluded that “the

State failed to prove, by a preponderance of the evidence, that lifetime [satellite-based

monitoring] of [the] defendant is a reasonable search under the Fourth Amendment.”

Id. at *22. Similarly, in Griffin, the “[d]efendant was instructed to appear for a ‘bring-

back’ hearing to determine whether he would be required to participate in [the

satellite-based monitoring] program.” Griffin, 2018 N.C. App. LEXIS 792, at *2. At

the hearing, the trial court “ ‘weighed the Fourth Amendment right of the defendant

to be free from unreasonable searches and seizures with the publics [sic] right to be

protected from sex offenders and . . . conclude[d] that the publics [sic] right of

protection outweigh[ed] the “de minimis” intrusion upon the defendant’s Fourth

Amendment rights.’ ” Id. at *5. However, on appeal, this Court noted that “unless

[satellite-based monitoring] 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 *11-12. We therefore concluded that “absent any

evidence that satellite-based monitoring . . . is effective to protect the public from sex

offenders, the trial court erred in imposing [satellite-based monitoring] on [the

defendant] for thirty years.” Id. at *1.



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       In the instant case, the State’s ability to establish reasonableness is further

hampered by the lack of knowledge concerning the future circumstances relevant to

that analysis. For instance, we are not yet privy to “the invasion which the search

[will] entail[].” Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 905 (1968) (alteration

omitted) (citation and quotation marks omitted). The State makes no attempt to

report the level of intrusion as to the information revealed under the satellite-based

monitoring program, nor has it established that the nature and extent of the

monitoring that is currently administered, and upon which the present order is based,

will remain unchanged by the time Defendant becomes subjected to the monitoring.

Cf. Vernonia Sch. Dist. 47J, 515 U.S. at 658, 132 L. Ed. 2d at 578 (“[I]t is significant

that the tests at issue here look only for drugs, and not for whether the student is, for

example, epileptic, pregnant, or diabetic. . . . And finally, the results of the tests . . .

are not turned over to law enforcement authorities or used for any internal

disciplinary function.”) (citations omitted). Instead, the State’s argument focuses

primarily on the “limited impact” of the monitoring device itself. The State, however,

provides no indication that the monitoring device currently in use will be similar to

that which may be used some fifteen to twenty years in the future. See State v.

Spinks, ___ N.C. App. ___, ___, 808 S.E.2d 350, 361 (2017) (Stroud, J., concurring)

(citing Riley, ___ U.S. at ___, 189 L. Ed. 2d at 446-47) (“The United States Supreme

Court has recognized in recent cases the need to consider how modern technology



                                           - 19 -
                                   STATE V. GORDON

                                   Opinion of the Court



works as part of analysis of the reasonableness of searches.”). Nor does the record

before this Court reveal whether Defendant will be on supervised or unsupervised

release at the time his monitoring is set to begin, affecting Defendant’s privacy

expectations in the wealth of information currently exposed. Samson, 547 U.S. at

850-52, 165 L. Ed. 2d at 258-59; Grady II, 2018 LEXIS 460, at * 11 (“Defendant is an

unsupervised offender. He is not on probation or supervised release[.] . . . Solely by

virtue of his legal status, then, it would seem that defendant has a greater expectation

of privacy than a supervised offender.”); see also Vernonia Sch. Dist. 47J, 515 U.S. at

654, 132 L. Ed. 2d at 575 (“[T]he legitimacy of certain privacy expectations vis-à-vis

the State may depend upon the individual’s legal relationship with the State.”).

      The State has also been unable at this point to adequately establish—on the

other side of the reasonableness balance—the government’s “need to search[.]” Terry,

392 U.S. at 21, 20 L. Ed. 2d at 905 (citation and quotation marks omitted). The State

asserts only that “[i]f, as Defendant acknowledges, the State has ‘a substantial

interest in preventing sexual assaults,’ then the State’s evidence amply demonstrated

that Defendant warranted such concern in the future despite his STATIC-99 risk

assessment score.” However, the State makes no attempt to distinguish this interest

from “ ‘the normal need for law enforcement[.]’ ” State v. Elder, 368 N.C. 70, 74, 773

S.E.2d 51, 54 (2015) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873, 97 L. Ed. 2d

709, 717 (1987)); see also King, 569 U.S. at 481, 186 L. Ed. 2d at 41 (Scalia, J.,



                                          - 20 -
                                         STATE V. GORDON

                                         Opinion of the Court



dissenting) (“Solving unsolved crimes is a noble objective, but it occupies a lower place

in the American pantheon of noble objectives than the protection of our people from

suspicionless law-enforcement searches. The Fourth Amendment must prevail.”)

(emphasis added).         In addition, to the extent that the current satellite-based

monitoring program is justified by the State’s purpose of deterring future sexual

assaults, the State’s evidence falls short of demonstrating what Defendant’s threat of

recidivating will be after having been incarcerated for roughly fifteen years.5 E.g.,

Brown v. Peyton, 437 F.2d 1228, 1230 (4th Cir. 1971) (“One of the principal purposes

of incarceration is rehabilitation[.]”). The only individualized measure of Defendant’s

threat of reoffending was the Static-99, which the State’s witness characterized as

indicating that Defendant was “not likely” to recidivate. Lambert, the State’s only

witness, was asked “what, if any, information do you have that would forecast—

besides the Static-99, which would seem to indicate [Defendant] has no real likelihood

of recidivism here, do you have any other evidence that would indicate the reason

that the State of North Carolina would need to search his location or whereabouts on

a regular basis?” Lambert responded, “I don’t have any information on that[.]”

        Without reference to the relevant circumstances that must be considered, the

State has not met its burden of establishing that it would otherwise be reasonable to



        5 We are cognizant of the fact that Defendant’s Static-99 score was based in part upon his age
at the likely time of release. However, this factor takes into account only Defendant’s age, and not how
long he will be incarcerated or his potential for rehabilitation while incarcerated.

                                                - 21 -
                                   STATE V. GORDON

                                   Opinion of the Court



grant authorities unlimited discretion in searching—or “obtaining”—Defendant’s

location information upon his release from prison. Jones, 565 U.S. at 404, 181 L. Ed.

2d at 918. Authorizing the State to conduct a search of this magnitude fifteen to

twenty years in the future based solely upon scant references to present

circumstances would defeat the Fourth Amendment’s requirement of circumstantial

reasonableness altogether.

      Nevertheless, our concurring colleague urges that our holding today “imposes

a burden on the State to predict the future.” This is not the case. It is the Fourth

Amendment that imposes a burden on the State to establish the reasonableness of its

searches, and an individualized determination of reasonableness in time, place, and

manner is a routine duty of judges. Our General Assembly in the instant case has

tasked the State, pursuant to N.C. Gen. Stat. § 14-208.40A, with meeting that burden

decades in the future. As “an error-correcting body, not a policy-making or law-

making one[,]” Fagundes v. Ammons Dev. Grp., Inc., ____ N.C. App. ___, ___, 796

S.E.2d 529, 533 (2017) (citation and quotation marks omitted), we are constrained to

follow precedent and statutes as written, and not as we might wish them to be.

Moreover, we do not hold that it is not possible for the State to meet this challenge.

Rather, our holding is simply that, in the case at bar, the State has failed to do so.

                                         Conclusion




                                          - 22 -
                                   STATE V. GORDON

                                   Opinion of the Court



      It may be that the trial court’s order would be reasonable in the year 2032. The

State, however, has failed to establish that to be the case. Accordingly, we necessarily

conclude that the trial court’s order enrolling Defendant in the satellite-based

monitoring program upon his eventual release from prison is unconstitutional as

applied to him. We therefore vacate the trial court’s order. Because the instant case

is the first in which this Court has addressed the merits of the reasonableness of an

order entered pursuant to N.C. Gen. Stat. § 14-208.40A, we remand with instructions

for the trial court to dismiss the State’s application for satellite-based monitoring

without prejudice to the State’s ability to reapply. Cf. State v. Greene, ___ N.C. App.

___, 806 S.E.2d 343 (2017).

      VACATED AND REMANDED.

      Judge HUNTER, JR. concurs.

      Judge DIETZ concurring in the judgment by separate opinion.




                                          - 23 -
 No. COA17-1077 – State v. Gordon


      DIETZ, Judge, concurring in the judgment.


      I agree with the majority that this case is controlled by our recent decisions in

State v. Griffin, __ N.C. App. __, __ S.E.2d __, 2018 N.C. App. LEXIS 792 (2018), and

State v. Grady, __ N.C. App. __, __ S.E.2d __, 2018 N.C. App. LEXIS 460 (2018) (Grady

II). Under this precedent, the State failed to meet its burden to justify satellite-based

monitoring in this case.

      I cannot join the majority’s decision to expand the reasoning of Griffin and

Grady II to require the State to address future, speculative facts that do not exist

today. That portion of the majority’s holding renders our State’s satellite-based

monitoring program unconstitutional in virtually every future case. This is so because

the statute requires the State to conduct the initial satellite-based monitoring

hearing at the time of criminal sentencing. N.C. Gen. Stat. § 14-208.40A.

      Satellite-based monitoring is imposed on offenders who commit heinous crimes

such as child sex offenses and sexually violent offenses. N.C. Gen. Stat. §§ 14-208.40,

14-208.6(4). These are not offenders who expect to be sentenced to time served or

immediately released on probation. Thus, in the vast majority of satellite-based

monitoring cases, the offender will first serve time in prison before being released and

subjected to monitoring.

      I disagree with the majority’s view that the State must divine all the possible

future events that might occur over the ten or twenty years that the offender sits in

prison and then prove that satellite-based monitoring will be reasonable in every one
                                   STATE V. GORDON

                                  DIETZ, J., concurring



of those alternate future realities. That is an impossible burden and one that the

State will never satisfy.

      Those convicted of crimes, “especially very serious crimes such as sexual

offenses against minors, and especially very serious crimes that have high rates of

recidivism such as sex crimes, have a diminished reasonable constitutionally

protected expectation of privacy.” Belleau v. Wall, 811 F.3d 929, 936 (7th Cir. 2016).

In my view, if the State can show, based on the facts that exist today, that a convicted

sex offender is so dangerous to society that satellite-based monitoring will be

necessary to protect the public upon that offender’s release, then imposition of

monitoring—even if it will not occur until some future time—can withstand

constitutional scrutiny. After all, if facts change in the ways the majority speculates—

the offender becomes disabled; technology radically changes; society becomes less

tolerant of government monitoring of convicted sex offenders—the defendant can

assert a Grady challenge at that time and the State will bear the burden of showing

reasonableness based on those new facts.

      The majority instead imposes a burden on the State to predict the future. The

Fourth Amendment does not require that level of clairvoyance. I believe society is

prepared to accept as reasonable the imposition of future satellite-based monitoring

on dangerous convicted sex offenders when the State has shown, based on the facts

known today, that those offenders likely will pose a threat to society upon their



                                           2
                                  STATE V. GORDON

                                  DIETZ, J., concurring



release—particularly when those offenders can challenge the reasonableness of that

monitoring if the facts change.




                                           3
