An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d   u    r   e   .



                              NO. COA13-958
                     NORTH CAROLINA COURT OF APPEALS

                             Filed:    6 May 2014


STATE OF NORTH CAROLINA

      v.                                 New Hanover County
                                         No. 06 CRS 52283
TORREY GRADY,
     Defendant.


      Appeal by defendant from order entered 14 May 2013 by Judge

Reuben F. Young in New Hanover County Superior Court.                 Heard in

the Court of Appeals 17 March 2014.


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

      Mark L. Hayes, for defendant–appellant.


      MARTIN, Chief Judge.


      Defendant Torrey Grady appeals from the trial court’s order

requiring him to enroll in a satellite-based monitoring (“SBM”)

program for the duration of his natural life.             We affirm.

      On 13 September 2006, defendant was convicted upon a guilty

plea of taking indecent liberties with a child in violation of

N.C.G.S. § 14-202.1.         On 15 March 2010, defendant acknowledged
                                                    -2-
receipt    of     a    letter          from    the        North    Carolina         Department        of

Correction       notifying         him        to    appear        at    an    SBM    determination

hearing.       The letter informed defendant that the Department made

an   initial      determination                that       he    met      the    criteria         of   a

recidivist      based       on     a    prior       1997       conviction       in    New   Hanover

County    of    second-degree            sexual        offense,         and    notified      him      to

appear at the SBM determination hearing so that the trial court

in his county of residence could make a determination as to

whether defendant “shall be required to enroll in [SBM].”

     The       trial       court       conducted          defendant’s         SBM    determination

hearing on 14 May 2013 in accordance with N.C.G.S. § 14-208.40B,

during    which       it    also       considered          defendant’s         “Motion      to    Deny

[SBM] Application and Dismiss Proceeding,” filed almost one week

earlier.       In the motion and at the hearing, defendant’s counsel

argued that SBM violated defendant’s constitutional right to be

free from unreasonable searches and seizures.                                   The trial court

denied    defendant’s            motion        to     dismiss          the    SBM    determination

proceeding, determined that defendant qualified as a recidivist,

and ordered defendant to enroll in SBM for the remainder of his

natural life.          Defendant filed timely written notice of appeal.

                              _________________________

     Defendant contends the trial court erred by denying his

motion to dismiss the SBM determination proceeding.                                      Defendant
                                         -3-
argues that “the constant GPS monitoring (and the imposition of

the GPS equipment for that purpose)” used in SBM violates his

constitutional       protections     against         unreasonable    searches        and

seizures.     We must disagree.

       In support of his argument, defendant relies on the United

States     Supreme   Court’s      decision      in    United   States      v.   Jones,

565 U.S.    __,   181 L. Ed. 2d      911       (2012),    which    held    that      “the

Government’s [warrantless] 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.’”       Id.      at    __,

181 L. Ed. 2d at 918 (footnote omitted).                    Defendant draws our

attention to the Court’s application of the plain text of the

Fourth     Amendment   of    the    U.S.       Constitution,       which   expressly

“provides in relevant part that [t]he right of the people to be

secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated,” id.

at __, 181 L. Ed. 2d at 917 (alteration in original) (internal

quotation marks omitted), and emphasizes the Court’s rejection

of   the   applicability     of    the     reasonable-expectation-of-privacy

test     articulated    in   Katz    v.      United      States,    389 U.S.         347,

19 L. Ed. 2d 576 (1967), to the issue before it.                     United States

v. Jones, 565 U.S. at __, 181 L. Ed. 2d at 918–23.

       However, in State v. Jones, __ N.C. App. __, 750 S.E.2d 883
                                             -4-
(2013),     this     Court    considered        the      precise     issue        on     appeal

presented by defendant in the present case.                              See id. at __,

750 S.E.2d at 885–86.             The State v. Jones defendant argued, as

this defendant argues now, that SBM required him to be “subject

to   an    ongoing       search   of   his     person,”      that    such     a     “physical

intrusion onto a person’s body [wa]s far more serious than the

placement of a transmitter on a car”——as was the case in United

States      v.    Jones——and      that    SBM       caused    the        State      v.      Jones

defendant to be “subject to random searches for his location at

any time, without any particularized showing of why that search

need[ed] to be conducted.”               He further argued, as this defendant

argues now, that this Court should rely on the same analysis as

that articulated in United States v. Jones, one “[c]onsistent

with      th[e]    understanding”        that       “[t]he    text       of      the     Fourth

Amendment         reflects    its      close       connection       to    property”           and

recognizes        that    “Fourth      Amendment        jurisprudence         was      tied    to

common-law trespass, at least until the latter half of the 20th

century.”           See    United      States      v.    Jones,      565 U.S.          at     __,

181 L. Ed. 2d at 918.               Nevertheless, in State v. Jones, this

Court rejected defendant’s argument and concluded that United

States v. Jones did not control, and that our decision in State

v. Martin, __ N.C. App. __, 735 S.E.2d 238 (2012),1 required us

1
    In Martin, this Court rejected a defendant’s challenge to SBM
                                           -5-
to overrule the defendant’s argument on appeal.                              See State v.

Jones, __ N.C. App. at __, 750 S.E.2d at 885–86.

       Defendant        argues   that   this      Court      erroneously          relied     on

Martin in State v. Jones because Martin did not address the same

violative     intrusion      challenged      by       the    defendant       in    State      v.

Jones, and because Martin “only held that no Fourth Amendment

violation had occurred as contemplated by the Katz test, while

[this    defendant]       has    contended       in    the    case      at   bar    that      a

violation      has      occurred     pursuant         to     the     trespassory            test

enunciated in [United States] v. Jones.”                           Despite defendant’s

protestations to the contrary, in State v. Jones, this Court

considered and rejected the argument that “if affixing a GPS to

an individual’s vehicle constitutes a search of the individual,

then    the   arguably      more    intrusive         act    of    affixing       an    ankle

bracelet      to   an    individual     must      constitute        a   search         of   the

individual     as    well.”        State   v.     Jones,      __ N.C.        App.      at    __,

750 S.E.2d at 886.          This Court determined that United States v.

Jones was “readily distinguishable” and “d[id] not control” in

as violative of his Fourth Amendment rights based on his
assertion that SBM “would require . . . [him] to allow DOC
officials to make routine warrantless entries into his home,”
Martin, __ N.C. App. at __, 735 S.E.2d at 238 (alteration and
omission in original) (internal quotation marks omitted), and
that SBM “place[d] him in a position where he [wa]s forced to
choose between forever waiving his Fourth Amendment rights or
face criminal prosecution for failing to cooperation [sic] with
the DOC.”    Id. at __, 735 S.E.2d at 238 (internal quotation
marks omitted).
                                   -6-
that case.    Id.    Thus, we must conclude that, in State v. Jones,

this Court “decided the same issue” that defendant presents for

review in the present appeal.      See In re Civil Penalty, 324 N.C.

373, 384, 379 S.E.2d 30, 37 (1989).         We, as “a subsequent panel

of the same court [are] bound by that precedent, unless it has

been overturned by a higher court.”         See id.    Because State v.

Jones was filed after United States v. Jones, we continue to be

bound by State v. Jones.       See State v. Jones, 358 N.C. 473, 487,

598 S.E.2d 125, 134 (2004) (“While . . . a panel of the Court of

Appeals may disagree with, or even find error in, an opinion by

a prior panel and may duly note its disagreement or point out

that error in its opinion, the panel is bound by that prior

decision     until   it   is   overturned    by   a   higher   court.”).

Accordingly, we conclude that the trial court did not err when

it denied defendant’s motion to dismiss the SBM determination

proceeding and we overrule this issue on appeal.

    Our disposition on this issue renders it unnecessary to

address defendant’s additional arguments with respect to this

issue on appeal and we decline to do so.

    Affirmed.

    Judges McGEE and CALABRIA concur.

    Report per Rule 30(e).
