IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-837
Filed: 15 March 2016
Harnett County, No. 06CRS50138
STATE OF NORTH CAROLINA
v.
MALCOLM SINCLAIR BLUE, 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.
Malcolm Sinclair Blue (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
In 2006, the North Carolina General Assembly established a sex offender
monitoring program that uses a continuous satellite-based monitoring system to
monitor three categories of sexual offenders. N.C. Gen. Stat. § 14-208.40 et seq.
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Opinion of the Court
(2015). For nearly a decade, the SBM program survived constitutional challenges.
See, e.g., State v. Bowditch, 364 N.C. 335, 352, 700 S.E.2d 1, 13 (2010) (“[S]ubjecting
defendants to the SBM program does not violate the Ex Post Facto Clauses of the
state or federal constitution.”); State v. Martin, 223 N.C. App. 507, 509, 735 S.E.2d
238, 239 (2012) (“[O]ur Supreme Court considered the fact that offenders subject to
SBM are required to submit to visits by DCC personnel and determined that this type
of visit is not a search prohibited by the Fourth Amendment.”); see also State v. Jones,
231 N.C. App. 123, 127, 750 S.E.2d 883, 886 (2013) (“The context presented in the
instant case—which involves a civil SBM proceeding—is readily distinguishable from
that presented in [United States. v. Jones]” “where the Court 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’ within the meaning
of the Fourth Amendment.”) (citing United States v. Jones, 565 U.S. ___, 181 L. Ed.
2d 911 (2012)), abrogated by Grady v. North Carolina, 575 U.S. ___, 191 L. Ed. 2d 459
(2015).
In State v. Grady, No. COA13-958, 2014 WL 1791246 (N.C. Ct. App. May 6,
2014), appeal dismissed, review denied, 367 N.C. 523, 762 S.E.2d 460 (2014), cert.
granted, judgment vacated, 575 U.S. ___, 191 L. Ed. 2d 459 (2015), this Court, relying
on State v. Jones, overruled the defendant’s argument that “SBM required him to be
subject to an ongoing search of his person.” The North Carolina Supreme Court
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Opinion of the Court
denied review, and the Supreme Court of the United States granted certiorari. Grady
v. North Carolina, 575 U.S. ___, 191 L. Ed. 2d 459 (2015). On 30 March 2015, the
Court held in a per curiam opinion that North Carolina’s SBM program “effects a
Fourth Amendment search.” Id. at ___, 191 L. Ed. 2d at ___.
The Court stated, “That conclusion, however, does not decide 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 ___. The Court, acknowledging the stated “civil nature” of the program,
explained, “It is well settled . . . that the Fourth Amendment’s protection extends
beyond the sphere of criminal investigations, Ontario v. Quon, 560 U.S. 746, 177 L.
Ed. 2d 216 (2010), and the government’s purpose in collecting information does not
control whether the method of collection constitutes a search.” Grady, 575 U.S. at
___, 191 L. Ed. 2d at ___ (internal quotations omitted). 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.
In the case sub judice, defendant pleaded guilty to second-degree rape in May
2006, and the trial court sentenced him to 80 to 105 months imprisonment. After
defendant completed his sentence, the Harnett County Superior Court held a
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Opinion of the Court
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:
THE COURT: Okay. Reading between the lines—I’ll be
glad to hear you, Mr. Jones, but I assume your position is
that satellite-based monitoring program is unreasonable
search or seizure under 4th Amendment, and that issue not
having been decided by the state courts yet?
MR. JONES: That’s correct, your Honor. What I would ask
your Honor is to stay making any ruling on this, based on
Grady v. North Carolina . . . . If you read the last
paragraph, it says the North Carolina courts did not
examine whether the state’s monitoring program is
reasonable when properly viewed as a search and will not
do so in this first instance. . . . Your Honor, what I think,
from reading that case, the only judicially efficient thing to
do is stay these cases until you get that ruling because they
are now saying it is a search. Our Supreme Court said it
was a civil matter. . . . So we ask your Honor to stay this
until we get some type of ruling from either our Supreme
Court, the United States Supreme Court, or maybe
possibly the attorney general’s office, how they are going to
proceed in this.
....
THE COURT: . . . State want to be heard any further or
offer any evidence?
MR. BAILEY: Well, can I address Mr. Jones’s comments,
your Honor?
THE COURT: You certainly can. Let me tell you what I
am inclined to do. I understand the Grady case says, at
least I think I do, Grady case does not strike down the
satellite-based monitoring system that the General
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Opinion of the Court
Assembly has passed in North Carolina. It simply says
that such a program is a search of the person, which seems
logical. Of course, it says some corollary things as well, but
it does not strike down the statute. So what I am inclined
to do is, consistent with the existing state of North Carolina
law, which is binding on me, I’m inclined to order the
lifetime monitoring. Clearly under the existing law, this is
an aggravated offense. Obviously, if the courts strike the
program down, it would invalidate this Court’s order, but I
think it’s incumbent upon me at this point in time to follow
the law in this state as I understand it to be if there is no
federal law overriding those decisions or invalidating the
satellite-based monitoring statute in North Carolina. So
that’s my inclination. Anything else the State wants to be
heard about?
MR. BAILEY: No, sir.
MR. JONES: I would ask, your Honor, state at this time,
because we’re opposing the satellite-based monitoring, is
that the State needs to put on some evidence to show that
it’s reasonable and that it complies with the constitution,
based on Grady v. North Carolina. We would like to have
some type of evidentiary hearing because my client is not
agreeing to be placed on satellite-based monitoring.
THE COURT: Well, do you have any witnesses that you
want to call or any evidence that you want to offer beyond
a reasonable doubt, beyond the file, beyond the fact that
his conviction beyond a reasonable doubt is second-degree
rape?
MR. BAILEY: I don’t have any other evidence to offer,
Judge Gilchrist. . . .
THE COURT: Okay.
MR. JONES: We’re objecting to its constitutionality based
on this, your Honor.
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Opinion of the Court
....
THE COURT: Okay. All right. Well, Court finds satellite-
based monitoring is required in this case for the lifetime of
the defendant and orders the same. Defendant’s objections
and exceptions are noted for the record. Court specifically
finds that it has taken into consideration that the
imposition of lifetime satellite-based monitoring
constitutes a search or seizure of the defendant under the
4th Amendment to the United States constitution and
equivalent provisions under the state constitution. Court
finds that such search and seizure is reasonable. Court
finds the defendant has been convicted beyond a
reasonable doubt of second-degree rape. Based upon that
conviction, and upon the file as a whole, lifetime satellite-
based monitoring is reasonable and necessary and required
by the statute. The State request any further findings or
conclusions?
MR. BAILEY: I don’t, your Honor.
The Honorable C. Winston Gilchrist ordered defendant to register as a sex
offender and enroll in SBM for 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
Defendant’s argument is twofold: “The trial court failed to exercise its
discretion and therefore erred as a matter of law in denying [defendant’s] request for
a stay, in light of Grady v. North Carolina[;]” and “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.”
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Opinion of the Court
First, defendant argues that because “SBM is a civil, regulatory scheme subject
to the rules applicable to other civil matters,” the trial court had discretion to enter a
stay. On appeal, defendant maintains that the trial court erred in failing to exercise
discretion under Rule 62(d) of our Rules of Civil Procedure. At the hearing, counsel
for defendant requested that the court “stay making any ruling on this,” “stay these
cases until you get that ruling,” “stay this until we get some type of ruling,” “stay it,”
and “stay them all.” Per the plain language of Rule 62(d), “[w]hen an appeal is taken,
the appellant may obtain a stay of execution.” N.C. Gen. Stat. § 1A-1, Rule 62 (2015).
Accordingly, it would not have applied to stay defendant’s SBM hearing. Defendant
presents no other authority on why the trial court erred in denying his request.
Second, defendant argues, “Determining the reasonableness of a search
requires detailed analysis of the nature and purpose of the search and the privacy
expectations at stake.” He claims that the trial court’s analysis was conclusory and
was based upon no findings as to the reasonableness of the search. Defendant argues,
“It was the State’s burden to prove by a preponderance of the evidence that the
challenged search was reasonable and constitutional[,]” yet the State presented no
evidence.
The State denies that it has the burden of proving the reasonableness of SBM
because SBM is a “civil, regulatory scheme.” Thus, the State argues, “Defendant
became a movant seeking a declaration that the search imposed by SBM is
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Opinion of the Court
unreasonable and in violation of the Fourth Amendment and, so, voluntarily assumed
the burden of proof. See, e.g., N.C.G.S. § 1A-1, Rule 56(a)[.]” 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[.]
As the State notes in its concession above, the trial court erred by failing to
conduct the appropriate analysis. Regardless of who has the burden of proof, the trial
court 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 acknowledged that SBM constitutes a search and summarily concluded
it is reasonable, stating that “[b]ased upon [the second-degree rape] conviction, and
upon the file as a whole, lifetime satellite-based monitoring is reasonable and
necessary and required by the statute.”
Accordingly, 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
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Opinion of the Court
___, 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, we conclude that the State shall bear the burden of proving that
the SBM program is reasonable. State v. Wade, 198 N.C. App. 257, 270, 679 S.E.2d
484, 492 (2009) (“Warrantless searches are presumed to be unreasonable and
therefore violative of the Fourth Amendment of the United States Constitution.”)
(citing State v. Logner, 148 N.C. App. 135, 139, 557 S.E.2d 191, 194 (2001)).
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
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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