IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1295
Filed: 6 August 2019
Rowan County, Nos. 15 CRS 54421–22
STATE OF NORTH CAROLINA
v.
JESSE JAMES TUCKER
Appeal by defendant from order entered 4 April 2018 by Judge Anna Mills
Wagoner in Rowan County Superior Court. Heard in the Court of Appeals 5 June
2019.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Sonya
Calloway-Durham, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Heidi
Reiner, for defendant.
DIETZ, Judge.
Defendant Jesse James Tucker appeals the trial court’s imposition of lifetime
satellite-based monitoring. We vacate the trial court’s order for the reasons discussed
in State v. Griffin, __ N.C. App. __, 818 S.E.2d 336 (2018).
In Griffin, this Court held that the Fourth Amendment prohibits a trial court
from imposing lifetime satellite-based monitoring on a convicted sex offender unless
the State presents evidence that this type of monitoring “is effective to protect the
public from sex offenders.” Id. at __, 818 S.E.2d at 337. The Court further held that
STATE V. TUCKER
Opinion of the Court
the efficacy of satellite-based monitoring is not self-evident—that is, that the State
cannot rely solely on the common-sense assumption “that an offender’s awareness his
location is being monitored does in fact deter him from committing additional
offenses.” Id. at __, 818 S.E.2d at 341. Likewise, the Court held that the State cannot
rely on “decisions from other jurisdictions stating that [satellite-based monitoring]
curtails sex offender recidivism.” Id. Simply put, after Griffin, trial courts cannot
impose satellite-based monitoring unless the State presents actual evidence—such as
“empirical or statistical reports”—establishing that lifetime satellite-based
monitoring prevents recidivism. Id.
Here, the State did not present the sort of evidence required by Griffin—likely
because the hearing in this case occurred before this Court decided Griffin.
Nevertheless, Griffin is controlling precedent on direct appeal. Although the Supreme
Court stayed the judgment of this Court in Griffin, it did not stay our mandate. See
State v. Griffin, __ N.C. __, 817 S.E.2d 210 (2018). Moreover, Griffin largely relies on
the reasoning of State v. Grady, __ N.C. App. __, __, 817 S.E.2d 18, 27–28 (2018)
(Grady II), which the Supreme Court has not stayed. Thus, we are bound by the
Griffin holding in this appeal. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d
30, 37 (1989). We therefore vacate the imposition of lifetime satellite-based
monitoring in this case.
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STATE V. TUCKER
Opinion of the Court
We note that there is disagreement amongst the judges of this Court
concerning the holdings of Griffin and its companion cases, and that review of several
of those cases is pending in our Supreme Court. See, e.g., Griffin, __ N.C. App. at __,
818 S.E.2d at 342–44 (Bryant, J., dissenting); Grady, __ N.C. App. at __, 817 S.E.2d
at 28–31 (Bryant, J., dissenting); State v. Westbrook, __ N.C. App. __, 817 S.E.2d 794,
2018 WL 4200974, at *4–7 (2018) (Dillon, J. dissenting) (unpublished); State v. White,
__ N.C. App. __, 817 S.E.2d 795, 2018 WL 4200979, at *9 (2018) (Dillon, J., dissenting)
(unpublished); State v. Gordon, __ N.C. App. __, __, 820 S.E.2d 339, 349–50 (2018)
(Dietz, J., concurring in the judgment). Thus, although we reject the State’s
arguments as squarely precluded by Griffin and Grady II, we observe that the State
has preserved those arguments for further review in the Supreme Court.
VACATED.
Judge HAMPSON concurs.
Judge BERGER dissents with separate opinion.
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No. COA18-1295 – State v. Tucker
BERGER, Judge, dissenting in separate opinion.
This Court is compelled by Griffin to vacate the trial court’s order of lifetime
satellite-based monitoring in this case. In re Civil Penalty, 324 N.C. 373, 384, 379
S.E.2d 30, 37 (1989). “Our panel is following [Griffin], as we should. However, I write
separately to dissent because I believe [Griffin] is wrongfully decided[.]” Watson v.
Joyner-Watson, ___ N.C. ___, ___, 823 S.E.2d 122, 126, (Dillon, J., dissenting) (2018).1
Here, Defendant entered an Alford plea to two counts of indecent liberties with
a child. The State’s factual recitation during the plea tended to show that there were
two separate victims in this case, one was a seven year old girl and the other a nine
year old girl. Defendant exposed his penis to the seven year old victim and instructed
her to touch his penis. Defendant also pulled down the seven year old’s pants and
underwear and performed oral sex on the victim. As for the nine year old victim, the
State’s factual showing established that Defendant rubbed the girl’s vagina. In
1 Griffin misconstrued Grady II. Underlying the analysis in Grady II is a totality of the
circumstances approach for determining the reasonableness of imposing lifetime SBM, as instructed
by the U.S. Supreme Court. One factor that could be considered includes information regarding the
efficacy of North Carolina’s SBM program. But this is not the only means by which the State could
establish reasonableness. Griffin, however, effectively eliminated the individualized determinations
clearly called for in Grady II in favor of a single factor test that solely concerns efficacy showings
unique to North Carolina’s program.
It could be argued that this Court, upon a proper review, could simply take judicial notice that
the SBM program is beneficial in deterring sex offenders from re-offending. Upon such a finding,
Griffin would forever be satisfied. Such a result, however, would be contrary to the individualized
determinations called for by the Fourth Amendment, the U.S. Supreme Court’s directive in Grady I,
and this Court’s prior holding in Grady II.
STATE V. TUCKER
BERGER, J., dissenting
addition, Defendant admitted that he was a recidivist, having been previously
convicted of indecent liberties with a child in 2004.
When the trial court conducted a hearing on imposing lifetime SBM, the State
presented a host of statistical information which showed high rates of recidivism
among sex offenders. Relevant here, one study showed that sex offenders who
victimized children and had more than one prior arrest had a recidivism rate of 44.3
percent. In addition, the State provided a North Carolina recidivism study of 988 sex
offenders which showed 26 percent of registered sex offenders were rearrested. Based
upon this showing, the trial court found that Defendant was a recidivist and that he
committed a sexually violent offense; that the purpose of SBM was to deter future
criminal acts by Defendant against children; and that imposing lifetime SBM on
Defendant was reasonable.
In 2006, the General Assembly established the “continuous satellite-based
monitoring system” to monitor certain sex offenders. Individuals subject to SBM
include defendants who were convicted of “reportable convictions” and were (1)
classified as sexually violent predators, (2) recidivists, or (3) “convicted of an
aggravated offense.” N.C. Gen. Stat. § 14-208.40(a)(1) (2017). If a trial court
determines, based upon evidence presented by the prosecutor, that a convicted sex
offender was “classified as a sexually violent predator, is a recidivist, has committed
an aggravated offense, or was convicted of G.S. 14-27.23 or G.S. 14-27.28, the court
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STATE V. TUCKER
BERGER, J., dissenting
shall order the offender to enroll in a satellite-based monitoring program for life.”
N.C. Gen. Stat. § 14-208.40A (2017). By the plain language of Section 14-208.40A,
Defendant would be required to enroll in lifetime SBM.
However, the United States Supreme Court has stated that the government
“conducts a search when it attaches a device to a person's body, without consent, for
the purpose of tracking that individual's movements.” Grady v. North Carolina, 135
S. Ct. 1368, 1370, 191 L. Ed. 2d 459, 462 (2015). Thus, because North Carolina’s SBM
“program is plainly designed to obtain information[,]” monitoring through an ankle
bracelet pursuant to the program constitutes a search under the Fourth Amendment.
Id. at 1371, 191 L. Ed. 2d at 461 (2015). The Supreme Court stated in Grady that
“[t]he 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 1371, 191 L. Ed. 2d at 462.
Thus, the U.S. Supreme Court’s opinion in Grady v. North Carolina merely
applied the Fourth Amendment’s requirement of reasonableness to SBM decisions.
This should not have disturbed our SBM jurisprudence to the extent that it has.
However, Griffin seized upon the opportunity provided by Grady I and Grady II to
reimagine the Fourth Amendment, and this Court has been moving the goal posts for
trial judges and prosecutors at every turn.
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STATE V. TUCKER
BERGER, J., dissenting
Reasonableness under the Fourth Amendment is intended to be a totality of
the circumstances inquiry that includes consideration of “the nature and purpose of
the search and the extent to which the search intrudes upon reasonable privacy
expectations.” Id. This Court has acknowledged that recidivist sex offenders have
an expectation of privacy that is “appreciably diminished as compared to law-abiding
citizens.” Grady II ___ N.C. App. at ___, 817 S.E.2d at 28.
In Griffin, a case that did not involve a recidivist sex offender or lifetime SBM,
this Court abandoned the reasonableness requirement based upon the totality of the
circumstances familiar to Fourth Amendment inquiries, and instead manufactured a
singular means by which reasonableness could be established. Griffin’s new
requirement is not only contrary to Fourth Amendment jurisprudence, but as the
majority points out, lacking in common sense. Judge Bryant dissented in two recent
SBM cases, including Griffin. Her reasoning provides the proper framework for
analyzing SBM cases pursuant to the United States Supreme Court’s direction in
Grady. See Grady II, ___ N.C. App. ___, 817 S.E.2d 18 (Bryant, J., dissenting); Griffin,
___ N.C. App. ___, 818 S.E.2d 336 (Bryant, J., dissenting).
Here, Defendant is not simply susceptible of re-offending; Defendant actually
re-offended. Defendant is an admitted recidivist who victimized two more children.
Further, the trial court determined that Defendant engaged in a sexually violent
offense. Defendant has a diminished expectation of privacy, and use of an ankle
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STATE V. TUCKER
BERGER, J., dissenting
monitor is a lesser intrusive means of monitoring Defendant and collecting relevant
data. The State has a legitimate governmental interest in protecting children and
communities from convicted sex offenders, and the government’s interest outweighs
Defendant’s diminished privacy interests. Because imposition of lifetime SBM is
reasonable under the circumstances, and thus reasonable under the Fourth
Amendment, Griffin’s required showing is irrelevant to this individual defendant.
The trial court’s order of lifetime SBM for Defendant should be affirmed.
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