State v. Grady

IN THE SUPREME COURT OF NORTH CAROLINA

No. 179A14-3

Filed 16 August 2019

STATE OF NORTH CAROLINA

v.

TORREY GRADY

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, 817 S.E.2d 18 (N.C. Ct. App. 2018), reversing an order for

satellite-based monitoring entered on 26 August 2016 by Judge Phyllis M. Gorham

in Superior Court, New Hanover County. Heard in the Supreme Court on 8 January

2019.

Joshua H. Stein, Attorney General, by Teresa M. Postell, Assistant Attorney
General, and Joseph Finarelli, Special Deputy Attorney General, for the State-
appellant.

Glenn Gerding, Appellate Defender, and Lewis Everett for defendant-appellee.

Christopher Brook for American Civil Liberties Union of North Carolina Legal
Foundation; and Nathan Freed Wessler, pro hac vice, and Brandon J. Buskey,
pro hac vice, for American Civil Liberties Union Foundation, amici curiae.

EARLS, Justice.

The Fourth Amendment protects “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures” by

the government. U.S. Const. amend. IV. The United States Supreme Court has

determined that North Carolina’s satellite-based monitoring (SBM) of sex offenders,
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which involves attaching an ankle monitor “to a person’s body, without consent, for

the purpose of tracking that individual’s movements,” constitutes a search within the

meaning of the Fourth Amendment. Grady v. North Carolina, 135 S. Ct. 1368, 1370

(2015) (per curiam). The Supreme Court remanded the case for an examination of

“whether the State’s monitoring program is reasonable—when properly viewed as a

search.” Id. at 1371. In its per curiam opinion, the Supreme Court noted, among

other things, the following:

The State’s program is plainly designed to obtain
information. And since it does so by physically intruding
on a subject’s body, it effects a Fourth Amendment search.

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. See, e.g., Samson v.
California, 547 U.S. 843 (2006) (suspicionless search of
parolee was reasonable); Vernonia School Dist. 47J v.
Acton, 515 U.S. 646 (1995) (random drug testing of student
athletes was reasonable). The North Carolina courts did
not examine whether the State’s monitoring program is
reasonable—when properly viewed as a search—and we
will not do so in the first instance.

Id. (citations omitted). In accordance with this decision, this case was ultimately

remanded to the superior court, which entered an order determining the SBM

program to be constitutional. The Court of Appeals reversed, but only as to Mr. Grady

individually. We conclude that the Court of Appeals erroneously limited its holding

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to the constitutionality of the program as applied only to Mr. Grady, when our

analysis of the reasonableness of the search applies equally to anyone in Mr. Grady’s

circumstances. Cf. Graham v. Florida, 560 U.S. 48, 82 (2010) (holding that state

statutes mandating a sentence of life imprisonment without the possibility of parole

are unconstitutional as applied to a specific group, namely juveniles who did not

commit homicide).

In North Carolina, “SBM’s enrollment population consists of (1) offenders on

parole or probation who are subject to State supervision, (2) unsupervised offenders

who remain under SBM by court order for a designated number of months or years,

and (3) unsupervised offenders subject to SBM for life, who are also known as ‘lifetime

trackers.’ ” State v. Bowditch, 364 N.C. 335, 338, 700 S.E.2d 1, 3 (2010). Mr. Grady

is in the third of these categories in that he is subject to SBM for life and is

unsupervised by the State through probation, parole, or post-release supervision.

Additionally, Mr. Grady is a “recidivist,” which makes lifetime SBM mandatory as to

him without any individualized determination of the reasonableness of this search.

Because we conclude that the relevant portions of N.C.G.S. §§ 14-208.40A(c) and 14-

208.40B(c) are unconstitutional as applied to all individuals who, like Mr. Grady, are

in the third Bowditch category and who are subject to mandatory lifetime SBM based

solely on their status as a “recidivist,” we modify and affirm the opinion of the Court

of Appeals.

Background

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Mr. Grady is required by North Carolina statute to enroll in the SBM program

and to wear an ankle monitor at all times for the remainder of his life based on two

sex crimes that he committed when he was seventeen and twenty-six years old and

for which he has fully served his criminal sentences. State v. Grady, 817 S.E.2d 18

(N.C. Ct. App. 2018). On 13 September 2006, Grady pleaded guilty to indecent

liberties with a child and was sentenced to a minimum of thirty-one and a maximum

of thirty-eight months of imprisonment. For felony sentencing purposes, Grady

stipulated to the aggravating factor that the fifteen-year-old victim was impregnated

as a result of his crime, which occurred when he was twenty-six years old. He also

stipulated to certain prior convictions, including a 16 January 1997 plea of no contest

to a second-degree sex offense committed when he was seventeen years old and a 6

January 2004 plea of guilty to failure to register as a sex offender. Grady was

unconditionally released from prison on 25 January 2009 and received certification

that his rights of citizenship were “BY LAW AUTOMATICALLY RESTORED.”

Over a year later, on 12 March 2010, the North Carolina Department of

Correction (DOC) sent a letter to Grady informing him that it had made an initial

determination that he met the statutory criteria of a “recidivist,” which would require

his enrollment in the SBM program, and giving him notice to appear at a hearing at

which the court would determine his eligibility for SBM. Before a hearing was held,

he pleaded guilty on 27 October 2010 to failure to maintain his address with the sex

offender registry and was sentenced to twenty-four to twenty-nine months in prison.

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He served that term of imprisonment and was again unconditionally released on 24

August 2012. A new hearing was scheduled for 14 May 2013 in the Superior Court

in New Hanover County to determine if Grady should be required to enroll in the

State’s SBM program.

North Carolina’s SBM Program

North Carolina’s SBM program for sex offenders1 became effective on 1

January 2007 as a result of the ratification of “An Act To Protect North Carolina’s

Children/Sex Offender Law Changes,” which directed the DOC to “establish a sex

offender monitoring program that uses a continuous satellite-based monitoring

system . . . . to monitor” the locations of certain categories of sex offenders. An Act

To Protect North Carolina’s Children/Sex Offender Law Changes, ch. 247, sec. 15,

2005 N.C. Sess. Laws (Reg. Sess. 2006) 1065, 1074–79 (codified as amended at

N.C.G.S. §§ 14-208.40 to -208.45 (2017 & Supp. 1 2018)); see also Bowditch, 364 N.C.

at 337, 700 S.E.2d at 3 (“As authorized by the legislation, DOC established and began

administering the SBM program on 1 January 2007.”). The General Assembly

mandated that the “[SBM] program shall use a system that provides . . . [t]ime-

correlated and continuous tracking of the geographic location of the subject using a

global positioning system based on satellite and other location tracking technology.”

1 North Carolina law also provides for the use of SBM with individuals sentenced to
house arrest as a condition of probation, see N.C.G.S. § 15A-1343(a1) (2017), or post-release
supervision, see id. § 15A-1368.4(e)(13) (2017). All references to “the SBM program” herein
are only to the statutory framework for sex offenders that is codified as amended at N.C.G.S.
§§ 14-208.40 to -208.45 (2017 & Supp. 1 2018).

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Ch. 247, sec. 15.(a), 2005 N.C. Sess. Laws (Reg. Sess. 2006) at 1075 (codified as

amended at N.C.G.S. § 14-208.40(c)(1)).

In general terms, North Carolina’s statutory framework for the satellite-based

monitoring of convicted sex offenders establishes that an offender who is (a) classified

as a sexually violent predator, (b) a recidivist, (c) convicted of an aggravated offense,

or (d) an adult convicted of statutory rape of a child or statutory sex offense with a

victim under the age of thirteen must submit to SBM for life. See N.C.G.S. §§ 14-

208.40A(c), -208.40B(c) (2017). The statutes provide for no individualized assessment

of the offender; the court has no discretion over whether to impose SBM or for how

long; and no court has the authority to terminate SBM for these individuals. Id. All

other sex offenders may be ordered to submit to SBM if, based on a risk assessment,

the offender “requires the highest possible level of supervision and monitoring.” Id.

§§ 14-208.40A(d)-(e), -208.40B(c) (2017). For these individuals the court specifies the

period of time that the offender must be enrolled in the SBM program. Id. §§ 14-

208.40A(e), -208.40B(c).

Section 14-208.6(2b) of the North Carolina General Statutes defines a

“recidivist” as “[a] person who has a prior conviction for an offense that is described

in G.S. 14-208.6(4),” which, in turn, defines a “reportable conviction.” N.C.G.S. § 14-

208.6(2b) (Supp. 1 2018). “Reportable convictions,” which encompass a range of

statutorily defined sex crimes, including “[a] final conviction for an offense against a

minor,” “a sexually violent offense,” “or an attempt to commit any of those offenses,”

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id. § 14-208.6(4)(a) (Supp. 1 2018), are final convictions that trigger the registration

requirements of the “statewide sex offender registry.” See id. § 14-208.7(a) (2017)

(stating that “[a] person who is a State resident and who has a reportable conviction

shall be required to maintain registration with the sheriff of the county where the

person resides”). An individual who has a prior conviction for a reportable offense,

and therefore meets the statutory definition of a “recidivist,” must maintain

registration with the sex offender registry for life. Id. § 14-208.23 (2017).

An individual who is subjected to lifetime SBM may file a request with the

Post-Release Supervision and Parole Commission to terminate the SBM requirement.

Such a request, however, cannot be filed until at least one year after the individual:

“(i) has served his or her sentence for the offense for which the satellite-based

monitoring requirement was imposed, and (ii) has also completed any period of

probation, parole, or post-release supervision imposed as part of the sentence.” Id. §

14-208.43(a) (2017). If the individual has not been convicted of any further reportable

offenses and “has substantially complied with the provisions of this Article [“Sex

Offender and Public Protection Registration Programs”], the Commission may

terminate the monitoring requirement if the Commission finds that the person is not

likely to pose a threat to the safety of others.” Id. § 14-208.43(b) (2017). An individual

enrolled in the SBM program “shall cooperate with the Division . . . and the

requirements of the [SBM] program.” Id. § 14-208.42 (2017). Moreover, the Division

shall have the authority to have contact with the offender

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at the offender’s residence or to require the offender to
appear at a specific location as needed for the purpose of
enrollment, to receive monitoring equipment, to have
equipment examined or maintained, and for any other
purpose necessary to complete the requirements of the
[SBM] program.

Id. An individual who “fails to enroll” or “tampers with, removes, vandalizes, or

otherwise interferes with the proper functioning of a [monitoring] device” is guilty of

a felony, and it is a Class 1 misdemeanor for an individual to “fail[ ] to provide

necessary information . . . or fail[ ] to cooperate with the . . . guidelines and regulations

for the program.” N.C.G.S. § 14-208.44(a)-(c) (2017); see also id. § 14-208.44(d) (2017)

(“For purposes of this section, ‘enroll’ shall include appearing, as directed . . . to

receive the necessary equipment.”).

If an individual is convicted of a reportable conviction and a court has made no

prior SBM determination, as was the case with Grady, the Division of Adult

Correction and Juvenile Justice (the Division) is required to make an initial

determination whether the individual is required to enroll in SBM, and, if so, to

schedule a “bring back” hearing for a court to determine by using the same criteria

described above whether the offender must enroll in SBM. Id. § 14-208.40B.

Today nearly every state uses SBM to some degree. See Avlana Eisenberg,

Mass Monitoring, 90 S. Cal. L. Rev. 123, 125 (2017). Only twelve states, however,

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allow lifetime monitoring,2 and of those, only two, North Carolina and California,

mandate lifetime monitoring without any individualized assessment of risk, even for

individuals who have completed their sentences, and without meaningful judicial

review over time. See Cal. Penal Code § 3004(b) (West 2016); N.C.G.S. §§ 14-208-

40A, -208.40B, -208.43. Some states provide for both individualized assessments to

determine if lifetime SBM is appropriate and the opportunity to petition a court to be

removed from SBM. See, e.g., La. Rev. Stat. Ann. § 15:560.5 (2016); Wis. Stat. §

301.48 (2016).3 Other states only apply lifetime SBM to offenders who are subject to

lifetime parole supervision or who otherwise would receive a sentence of life

2 These states are California, Florida, Kansas, Louisiana, Maryland, Michigan,
Missouri, North Carolina, Oregon, Rhode Island, South Carolina, and Wisconsin. Cal. Penal
Code § 3004(b) (West 2016); Fla. Stat. § 948.012(4) (2016); Kan. Stat. Ann. § 22-3717(u)
(2016); La. Rev. Stat. Ann. § 15:560.3(A)(3) (2016); Md. Code Ann., Crim. Proc. § 11-
723(d)(3)(i) (LexisNexis 2016); Mich. Comp. Laws § 750.520n (2016); Mo. Rev. Stat. §
217.735(4) (2016); N.C.G.S. §§ 14-208.40A(c), -208.40B(c); Or. Rev. Stat. §§ 137.700, 144.103
(2016); 11 R.I. Gen. Laws § 11-37-8.2.1 (2016); S.C. Code Ann. § 23-3-540 (Supp. 2018); Wis.
Stat. § 301.48 (2016). See generally Comment: Tracking the Constitution - the Proliferation
and Legality of Sex-Offender GPS-Tracking Statutes, 42 Seton Hall L. Rev. 1169, 1172–90
(2012) (categorizing types of GPS monitoring statutes). Georgia’s lifetime monitoring statute,
Ga. Code Ann. § 42-1-14(e) (2016), was declared unconstitutional by that state’s Supreme
Court. See Park v. State, 305 Ga. 348, 360–61, 825 S.E.2d 147, 158 (2019).

3 The dissent refers to Wisconsin’s SBM statute as “functionally identical” to North
Carolina’s statute, quoting Belleau v. Wall, 811 F.3d 929, 939 (7th Cir. 2016) (Flaum, J.,
concurring). While the two statutes may be identical in the sense that they involve GPS
monitoring using an ankle bracelet, they do not establish functionally identical programs.
Wisconsin’s program subjects only child sex offenders to lifetime SBM; individualized
assessments are required before some offenders can be enrolled in the program; the
department administering the program can substitute passive position system monitoring
for active SBM; and both the offender and the department can apply to a court to request
termination of lifetime tracking. See Wis. Stat. § 301.48 (2016).

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imprisonment. See, e.g., Fla. Stat. § 948.012 (2016); Kan. Stat. Ann. § 22-3717(u)

(2016); Mo. Rev. Stat. § 217.735 (2016); Or. Rev. Stat. § 144.103 (2016); 11 R.I. Gen.

Laws § 11-37-8.2.1 (2016). Still other states provide for individualized assessments

and sentencing discretion. See, e.g., Md. Code Ann., Crim. Proc. § 11-723 (LexisNexis

2016); People v. Kern, 288 Mich. App. 513, 794 N.W.2d 362 (2010) (per curiam)

(holding that defendants put on probation or sent to a local jail as opposed to the

penitentiary are not subject to lifetime SBM under Michigan’s statute so that the

defendant, who was convicted of second-degree criminal sexual conduct, was, because

of his jail sentence, not subject to Michigan’s lifetime SBM program, citing Mich.

Comp. Laws §§ 750.520, 791.285). Finally, several states give offenders the

opportunity to petition a court to have the SBM requirement lifted. See, e.g., Mo. Rev.

Stat. § 217.735(5) (2016); S.C. Code Ann. § 23-3-540(H) (Supp. 2018). Another

characteristic of most of the other eleven state lifetime SBM programs is that,

compared with North Carolina’s program, they apply to persons convicted of a smaller

category of offenses, which typically include only the most egregious crimes involving

child victims. As a result, North Carolina makes more extensive use of lifetime SBM

than virtually any other jurisdiction in the country.

Grady’s SBM Claims

Prior to the 14 May 2013 bring back hearing, Grady filed a motion to deny the

State’s SBM application and to dismiss the proceeding, in which he argued, inter alia,

that “the imposition of the monitoring upon Defendant violates his rights to be free

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from unreasonable search and seizure as guaranteed by the Fourth Amendment of

the United States Constitution and Article I, Section 20 of the North Carolina

Constitution.” At the hearing, the State argued that, based on the evidence of Grady’s

conviction for taking indecent liberties with a child and his prior conviction for

second-degree sex offense, he met the statutory definition of being a “recidivist”—that

is, a person who has a prior conviction for a reportable offense. N.C.G.S. § 14-

208.6(2b). Grady conceded that he qualified as a recidivist under the statute but

argued, inter alia, that “the imposition of the GPS monitoring device itself and the

24/7 tracking” constitute an unreasonable search and seizure under both the state

and federal constitutions, and the statute subjecting him to SBM is “unconstitutional

on its face, and as it applies to Mr. Grady.” The trial court denied Grady’s motion,

finding that the SBM program is not unconstitutional. The trial court further found

that Grady met the statutory definition of “recidivist” and, accordingly, ordered him

to enroll in the SBM program “for the remainder of the defendant’s natural life.”

Grady appealed the trial court’s order imposing lifetime SBM to the Court of Appeals.

At the Court of Appeals, Grady argued 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,” State v.

Grady, 233 N.C. App. 788, 759 S.E.2d 712, 2014 WL 1791246, at *1 (2014)

(unpublished), relying on the United States Supreme Court’s decision in United

States v. Jones, 565 U.S. 400, 404 (2012) (“We hold that the Government’s installation

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of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s

movements, constitutes a ‘search.’ ” (footnote omitted)). The Court of Appeals, in an

unpublished opinion, determined that it was bound by the decision of a prior panel

that had “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.’ ” Grady, 2014 WL 1791246, at *2 (quoting State v. Jones,

231 N.C. App. 123, 127, 750 S.E.2d 883, 886 (2013)). After this Court dismissed

defendant’s appeal and denied his petition for discretionary review, State v. Grady,

367 N.C. 523, 762 S.E.2d 460 (2014), the United States Supreme Court granted his

petition for writ of certiorari, Grady, 135 S. Ct. at 1371.

In a per curiam opinion, the Supreme Court stated that the Court of Appeals’

determination that North Carolina’s “system of nonconsensual satellite-based

monitoring does not entail a search within the meaning of the Fourth Amendment”

is “inconsistent with [the] Court’s precedents.” Id. at 1370; see Jones, 565 U.S. at 406

n.3 (“Where, as here, the Government obtains information by physically intruding on

a constitutionally protected area, . . . a search has undoubtedly occurred.”); see also

Florida v. Jardines, 569 U.S. 1, 11 (2013) (reaffirming that a search occurs “when the

government gains evidence by physically intruding on constitutionally protected

areas” (citing Jones, 565 U.S. at 409)). The Court opined that, in light of its previous

decisions, “it follows that a State also conducts a search when it attaches a device to

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a person’s body, without consent, for the purpose of tracking that individual’s

movements.” Grady, 135 S. Ct. at 1370. The Court noted, however, that this

conclusion did not end the analysis, because a search must be unreasonable in order

to be unconstitutional. Id. at 1371. Accordingly, the Court granted defendant’s

petition for writ of certiorari, vacated the Court of Appeals’ decision, and “remanded

for further proceedings not inconsistent with this opinion.” Id.

On 11 June 2015, this Court issued an order remanding the matter to the Court

of Appeals for reconsideration in light of the decision of the United States Supreme

Court. On 23 October 2015, defendant filed in the Court of Appeals a “Motion to

Remand to Superior Court and to Stay the Order Imposing [SBM].” The Court of

Appeals issued an order on 6 November 2015 granting defendant’s motion to remand

the case to superior court while denying his motion to stay SBM.

On 16 June 2016, the Superior Court in New Hanover County held a remand

hearing to determine whether subjecting defendant to nonconsensual lifetime SBM

constitutes a reasonable search under the Fourth Amendment. At the hearing, the

State presented evidence, including: a certified copy of the judgment and

commitment for defendant’s prior conviction for second-degree sex offense;

defendant’s criminal record; printouts of N.C.G.S. §§ 14-208.5 (stating the “Purpose”

of Article 27A) and 14-208.43 (“Request for termination of satellite-based monitoring

requirement”); and two photographs of the equipment currently used in the program:

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the ExacuTrack One ankle monitor (or ET-1) and its accompanying “beacon”—a

device that must be placed in the home of the individual subjected to SBM.

Grady, on the other hand, presented evidence that included statistical reports

tending to show that sex offenders are less likely to reoffend than other categories of

convicted felons and that the vast majority of sex offenses are committed against

victims who know their offender, statistical information about individuals currently

enrolled in the State’s SBM program, the Policy and Procedure Manual from the

Department of Community Corrections governing “Technology and Monitoring

Programs,” including SBM, the ET-1’s instructional “client guide” provided to

monitored individuals, the Division’s “Guidelines and Regulations” form that is

required to be signed by monitored individuals, and an excerpt from the Division’s

“Train the Trainer” SBM training session.

The only witness called by the State was Scott Pace, a probation supervisor in

the Division, who brought with him an ET-1 and a beacon. Officer Pace testified to

the operation of the SBM equipment and to his understanding of the program. An

individual enrolled in the SBM program is not permitted to remove the ET-1, which

is required to be worn at all times, and it is a felony to attempt to remove or interfere

with it. According to Pace, the ET-1 weighs 8.7 ounces, “about half a pound,” and is

“waterproof up to 15 feet,” allowing the individual to shower, bathe, or swim in a pool

or the ocean. Pace explained that the individual is responsible for maintaining the

charge of the ET-1’s lithium battery and added that “if they’re moving a lot, if there’s

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a lot of activity . . . the more battery it uses.” Moreover, Pace stated that “[t]he

batteries have a life span” and as the battery ages, “it won’t hold a charge as long.”

The individual must charge the ET-1 two hours every day by plugging it into an

electrical outlet, during which time the individual must remain tethered to the wall

by the ET-1’s fifteen foot charging cord. According to Pace, “we tell them to charge it

two hours a day just so they don’t lose the charge. Failure to charge the monitor,

we’ll lose signal, . . . and that is a violation.”4

When the charge of the ET-1’s battery runs low, Pace explained, “the unit will

actually talk to you and it will say, ‘low battery, go charge.’ ” “That message will keep

repeating itself until they acknowledge” by placing a finger on a divot on the ET-1.

Pace explained that officers can send other messages to individuals through the ET-

1’s audible message system, such as “Call your officer,” and that “they’re supposed to

follow the message, whatever the message may be.” Similarly, the ET-1 plays a

repeating voice message when the signal is lost. Pace testified that “there can be

issues with equipment” and the ET-1 can temporarily lose signal due to the

positioning of satellites. Moreover, “[h]omes with metal roofs kind of interfere[ ] with

the signal. Big buildings, such as WalMart. When they go in places such as that it

could interfere with the signal.” In those situations, Pace explained, individuals are

4 This instruction is reflected in the Division’s “Train the Trainer” materials
introduced into evidence by defendant, which states: “Charge for 2 hours per day.”

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“supposed to go outside and try to gain signal back” and to acknowledge the alert by

pressing the divot on the ET-1.

Individuals subjected to SBM must also submit to quarterly equipment checks

at their homes. Pace stated that every three months, Division officers go to the

individual’s house to “make sure that the equipment has not been tampered with . . .

and that it’s in correct working order.” Pace testified that while an individual could

technically refuse entry into the home, “[w]e prefer to go in the house” in order “to see

where the beacon is at, because it has to be situated a certain way.” Additionally, the

Division’s “Guidelines and Regulations,” which the individual is required to sign upon

enrollment, provide: “I understand a unit in the home will be assigned to me and it

will be necessary for a designated representative of SCC to enter my residence or

other location(s) where I may temporarily reside to install, retrieve, or periodically

inspect the unit.”

Pace testified that the “mapping function” allows him to retrieve historical

location information “up to I think it’s six months, and after six months we can call

[the equipment provider], and back further than that they keep them, and they can

send them to us via email.” The mapping function also allows officers to observe

monitored individuals in real time. As Pace testified, “For SBM cases, yes, it’s 24-7,

it’s live, current location.” Regarding the accuracy of the location information, Pace

stated: “In my experience, it’s been pretty accurate. I mean, people that’s taken it off,

I’ve gone right to the locations and retrieved units that people’s taken off and

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discarded on streets, trash cans, in the woods. I mean, it’s taken me right there to it,

you know.”

After receiving the evidence and considering the oral and written arguments

of the parties, the superior court entered an order on 26 August 2016 upholding the

imposition of lifetime SBM on defendant. The court summarized the evidence at

length. Among other things, the trial court noted:

The ankle monitor does not monitor or reveal the activities
of the offender—it merely monitors his location. The device
does not confine the person to their residence or any other
specific location. The ankle monitor and related equipment
requires a quarterly (three months) review/inspection by
the State to ensure that the device is in proper working
order.

In addition to Officer Pace’s testimony, the State
also entered into evidence photographs of the SBM
equipment, certified copies of the judgments for the two sex
offenses, the defendant’s criminal history, and statutory
provisions of Part 5 of Article 27A of Chapter 14 of N.C.G.S.
(“Sex Offender Monitoring”). In both his cross examination
of the State’s witness Officer Pace and in his case-in-chief,
the defendant admitted into evidence, among other
exhibits, multiple studies of recidivism rates of sex
offenders versus other criminals; the State’s policy,
procedures and rules governing SBM, and additional
photographs of the SBM equipment.

The court ultimately concluded5 that

5To determine the appropriate legal test of reasonableness under the Fourth
Amendment, the trial court relied on two cases from other jurisdictions, People v. Hallak, 310
Mich. App. 555, 873 N.W.2d 811 (2015), rev’d in part and remanded, 499 Mich. 879, 876
N.W.2d 523 (2016) (per curiam order), and Belleau v. Wall, 811 F.3d 929 (7th Cir. 2016). To
assess North Carolina’s interest in preventing recidivism, the trial court relied on Smith v.

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based on the totality of the circumstances analysis, . . .
satellite based monitoring of the defendant is a reasonable
search.

The Court has considered defendant’s argument
that the satellite based monitoring statute is facially
unconstitutional. The Court rejects this argument and
finds that the statute is constitutional on its face.

Accordingly, the trial court ordered defendant to enroll in SBM “for the remainder of

[his] natural life.” Defendant appealed the trial court’s order to the Court of Appeals.

At the Court of Appeals, defendant argued that the State failed to establish

that the imposition of lifetime SBM is a reasonable search. Grady, 817 S.E.2d at 22.

In a divided opinion filed on 15 May 2018, the Court of Appeals reversed the trial

court’s SBM order. Id. at 28. The Court of Appeals majority noted that the imposition

of SBM intruded upon defendant’s Fourth Amendment interests by the physical

attachment of the ankle monitor to his body, “a constitutionally protected area,” and

through the monitor’s continuous GPS tracking. Id. at 25 (quoting Jones, 565 U.S. at

[407] n.3). The majority determined that the physical intrusion caused by the

permanent attachment of the ankle monitor, along with its audible voice messages

and the necessity of charging it for two hours daily, was “more inconvenient than

intrusive, in light of defendant’s diminished expectation of privacy as a convicted sex

Doe, 538 U.S. 84, 103 (2003) (“The risk of recidivism posed by sex offenders is ‘frightening
and high.’ ” (quoting McKune v. Lile, 536 U.S. 23, 34 (2002) (plurality opinion)), and McKune,
536 U.S. at 32–33 (“Sex offenders are a serious threat in this Nation. . . . When convicted sex
offenders reenter society, they are much more likely than any other type of offender to be
rearrested for a new rape or sexual assault.”)).

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offender.” Id. On the other hand, the majority stated that the continuous GPS

tracking was “uniquely intrusive.” Id. (quoting Belleau v. Wall, 811 F.3d 929, 940

(7th Cir. 2016) (Flaum, J., concurring)). The majority acknowledged the State’s

compelling interest in protecting the public from sex offenders but determined that

“the State failed to present any evidence of [SBM’s] efficacy in furtherance of the

State’s undeniably legitimate interests.” Id. at 27. Accordingly, the majority

concluded that although, based solely on his status as a sex offender, “defendant’s

expectation of privacy is appreciably diminished as compared to law-abiding citizens,”

the State failed to establish “that lifetime SBM of defendant is a reasonable search

under the Fourth Amendment.” Id. at 28.

In a separate opinion, one member of the panel dissented from the majority’s

conclusion that lifetime SBM of defendant is unreasonable and thus would have

affirmed the trial court’s order. Id. (Bryant, J., dissenting). Believing that “the

majority asks the State to meet a burden of proof greater than our General Assembly

envisioned as necessary and greater than Fourth Amendment jurisprudence

requires,” id., the dissenting judge concluded that under the totality of the

circumstances, “the degree to which SBM participation promotes legitimate

governmental interests—the prevention of criminal conduct or the apprehension of

defendant should he reoffend,” outweighed “the degree to which participation in the

SBM program intrudes upon defendant’s privacy.” Id. at 31.

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Opinion of the Court

On 19 June 2018, the State filed a notice of appeal as of right based on the

dissenting opinion in the Court of Appeals pursuant to N.C.G.S. § 7A-30(2).

Standard of Review

In reviewing a trial court order, “we are ‘strictly limited to determining

whether the trial judge’s underlying findings of fact are supported by competent

evidence, . . . and whether those factual findings in turn support the judge’s ultimate

conclusions of law.’ ” State v. Williams, 362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008)

(quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)). We review

decisions of the Court of Appeals for errors of law. State v. Romano, 369 N.C. 678,

685, 800 S.E.2d 644, 649 (2017) (citing State v. Brooks, 337 N.C. 132, 149, 446 S.E.2d

579, 590 (1994)).

“Whether a statute is constitutional is a question of law that this Court reviews

de novo.” Id. at 685, 800 S.E.2d at 649. “In exercising de novo review, we presume

that laws enacted by the General Assembly are constitutional, and we will not declare

a law invalid unless we determine that it is unconstitutional beyond [a] reasonable

doubt.” Cooper v. Berger, 370 N.C. 392, 413, 809 S.E.2d 98, 111 (2018) (quoting State

ex rel. McCrory v. Berger, 368 N.C. 633, 639, 781 S.E.2d 248, 252 (2016)). “The

presumption of constitutionality is not, however, and should not be, conclusive.”

Moore v. Knightdale Bd. of Elections, 331 N.C. 1, 4, 413 S.E.2d 541, 543 (1992).

Analysis

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Defendant argues that North Carolina’s SBM program effects an unreasonable

search and is unconstitutional both on its face and as applied to him under the Fourth

Amendment to the United States Constitution. In light of our analysis of the program

and the applicable law, we conclude that the State’s SBM program is unconstitutional

in its application to all individuals in the same category as defendant—specifically,

individuals who are subject to mandatory lifetime SBM based solely on their status

as a statutorily defined “recidivist”6 who have completed their prison sentences and

are no longer supervised by the State through probation, parole, or post-release

supervision. We decline to address the application of SBM beyond this class of

individuals.

“A facial challenge is an attack on a statute itself as opposed to a particular

application.” City of Los Angeles v. Patel, 135 S. Ct. 2443, 2449 (2015); see also id.

(explaining that facial challenges to “statutes authorizing warrantless searches” can

be brought under the Fourth Amendment). A party making a facial challenge “must

6 We stress that our holding applies to individuals who, like defendant, are subjected
to mandatory lifetime SBM based solely on a finding that they meet the statutory definition
of a “recidivist.” We do not address the constitutionality of the SBM program as applied to
the other subcategories of offenders to which mandatory lifetime SBM applies, even if they
may also qualify as a recidivist. See N.C.G.S. §§ 14-208.40A(c), -208.40B(c) (stating that an
offender who is classified as a sexually violent predator, convicted of an aggravated offense,
or is an adult convicted of statutory rape of a child or statutory sex offense with a victim
under the age of thirteen must submit to SBM for life). In other words, contrary to the
assertions by the dissent, if, for example, an offender is determined to be both a sexually
violent predator and a recidivist (unlike Mr. Grady), our holding in this case does not address
the constitutionality of an order requiring that offender to enroll in the SBM program for life
on the grounds of being a sexually violent predator.

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establish that a ‘law is unconstitutional in all of its applications.’ ” Id. at 2451

(quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449

(2008)). In contrast, “the determination whether a statute is unconstitutional as

applied is strongly influenced by the facts in a particular case.” State v. Packingham,

368 N.C. 380, 393, 777 S.E.2d 738, 749 (2015), rev’d and remanded, 137 S. Ct. 1730

(2017). This case was remanded by the United States Supreme Court with

instructions to “examine whether the State’s monitoring program is reasonable.”

Grady, 135 S. Ct. at 1371. While this directive could be interpreted as instructing us

to address the facial constitutionality of the State’s SBM program in its entirety, we

address instead the constitutionality of the SBM program as applied to the narrower

category of recidivists to which defendant belongs. See Bulova Watch Co. v. Brand

Distribs. of N. Wilkesboro, Inc., 285 N.C. 467, 472, 206 S.E.2d 141, 145 (1974)

(“[W]hen asked to determine the constitutionality of a statute, the Court will do so

only to the extent necessary to determine that controversy. It will not undertake to

pass upon the validity of the statute as it may be applied to factual situations

materially different from that before it.” (citations omitted)).

The “basic purpose” of the Fourth Amendment “is to safeguard the privacy and

security of individuals against arbitrary invasions by governmental officials.”

Camara v. Mun. Court, 387 U.S. 523, 528 (1967); see Schmerber v. California, 384

U.S. 757, 767 (1966) (“The overriding function of the Fourth Amendment is to protect

personal privacy and dignity against unwarranted intrusion by the State.”); see also

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Opinion of the Court

Riley v. California, 134 S. Ct. 2473, 2494 (2014) (“[T]he Fourth Amendment was the

founding generation’s response to the reviled ‘general warrants’ and ‘writs of

assistance’ of the colonial era, which allowed British officers to rummage through

homes in an unrestrained search for evidence of criminal activity.”). In reviewing the

constitutionality of a search, “the ultimate measure . . . is ‘reasonableness,’ ” which “

‘ “is judged by balancing [the search’s] intrusion on the individual’s Fourth

Amendment interests against its promotion of legitimate governmental interests.” ’

”7 Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652–53 (1995) (quoting Skinner v.

Ry. Labor Execs.’ Ass’n., 489 U.S. 602, 619 (1989)).

The Supreme Court has explained that “[w]here a search is undertaken by law

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

generally requires the obtaining of a judicial warrant” supported by a showing of

probable cause.8 Id. at 653 (citing Skinner, 489 U.S. at 619); see Camara, 387 U.S. at

528–29 (“[O]ne governing principle . . . has consistently been followed: except in

certain carefully defined classes of cases, a search of private property without proper

7In the interest of brevity and clarity, additional references to this quotation will
eliminate parenthetical information and internal quotation marks.

8A judicial warrant serves to “assure[ ] the citizen that the intrusion is authorized by
law, and that it is narrowly limited in its objectives and scope” and “also provides the
detached scrutiny of a neutral magistrate, and thus ensures an objective determination
whether an intrusion is justified in any given case.” Skinner, 489 U.S. at 622 (citations
omitted); see also Katz v. United States, 389 U.S. 347, 357 (1967) (explaining that “the
Constitution requires ‘that the deliberate, impartial judgment of a judicial officer . . . be
interposed between the citizen and the police’ ” (alteration in original) (quoting Wong Sun v.
United States, 371 U.S. 471, 481–82 (1963))).

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Opinion of the Court

consent is ‘unreasonable’ unless it has been authorized by a valid search warrant.”

(citations omitted)). Therefore, we start with the “basic Fourth Amendment

principle” that warrantless searches are presumptively unreasonable. United States

v. Karo, 468 U.S. 705, 714–15 (1984).

Nonetheless, “there are exceptions to the warrant requirement. When faced

with special law enforcement needs, diminished expectations of privacy, minimal

intrusions, or the like, the Court has found that certain general, or individual,

circumstances may render a warrantless search or seizure reasonable.” Illinois v.

McArthur, 531 U.S. 326, 330 (2001) (citations omitted). Exceptions to the warrant

requirement “are ‘jealously and carefully drawn,’ ” and the “burden is on those

seeking the exemption to show the need for it.” Coolidge v. New Hampshire, 403 U.S.

443, 455 (1971) (first quoting Jones v. United States, 357 U.S. 493, 499 (1958); then

quoting United States v. Jeffers, 342 U.S. 48, 51 (1951)).

Additionally, in the absence of a warrant, “the Court has preferred ‘some

quantum of individualized suspicion . . . [as] a prerequisite to a constitutional search

or seizure.’ ” Maryland v. King, 569 U.S. 435, 447 (2013) (alterations in original)

(quoting United States v. Martinez-Fuerte, 428 U.S. 543, 560 (1976)); see also

Chandler v. Miller, 520 U.S. 305, 313 (1997) (“To be reasonable under the Fourth

Amendment, a search ordinarily must be based on individualized suspicion of

wrongdoing.” (citing Vernonia, 515 U.S. at 652–53)). Yet individualized suspicion is

not required in every case, because “[t]he touchstone of the Fourth Amendment is

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Opinion of the Court

reasonableness, not individualized suspicion.” Samson v. California, 547 U.S. 843,

855 n.4 (2006); see also King, 569 U.S. at 447 (“[T]he Fourth Amendment imposes no

irreducible requirement of [individualized] suspicion.” (quoting Martinez-Fuerte, 428

U.S. at 561)).

Here the State contends that the SBM program falls within a category of

“special needs” searches, described in some cases as another exception to the

requirement of an individualized warrant.9 The Supreme Court has recognized that

programmatic searches performed in the absence of a warrant or individualized

suspicion may be permissible “in those exceptional circumstances in which special

needs, beyond the normal need for law enforcement, make the warrant and probable-

cause requirement impracticable.” O’Connor v. Ortega, 480 U.S. 709, 720 (1987)

9 Defendant asserts, and the Court of Appeals below agreed, that the State waived its
special needs argument by failing to raise this issue in the trial court. Given that the
Supreme Court in its remand order cited to Vernonia, a special needs case that was cited by
the State in the trial court, and given the significant role that this issue often plays in the
totality-of-the-circumstances analysis, we will address this issue on the merits as part of the
reasonableness inquiry. We note that the balancing test articulated in Vernonia, 515 U.S. at
652–53 (“[W]hether a particular search meets the reasonableness standard “ ‘is judged by
balancing its intrusion on the individual’s Fourth Amendment interests against its promotion
of legitimate governmental interests.” ’ ” (quoting Skinner, 489 U.S. at 619)), is not unique to
special needs cases, but rather is the same general Fourth Amendment balancing test that
weighs “ ‘the promotion of legitimate governmental interests’ against ‘the degree to which
[the search] intrudes upon an individual’s privacy,’ ” King, 569 U.S. at 448 (alteration in
original) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)), or, as the Supreme Court
phrased the test in its per curiam decision, the “nature and purpose of the search and the
extent to which the search intrudes upon reasonable privacy expectations,” Grady, 135 S. Ct.
at 1371.

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Opinion of the Court

(quoting New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring in

judgment)).10 “When such ‘special needs’—concerns other than crime detection—are

alleged in justification of a Fourth Amendment intrusion, courts must undertake a

context-specific inquiry, examining closely the competing private and public interests

advanced by the parties.” Chandler, 520 U.S. at 314 (first citing Nat’l Treasury Emps.

Union v. Von Raab, 489 U.S. 656, 665–66 (1989); then citing Skinner, 489 U.S. at

668).

Although the State asserts, somewhat ambiguously, that SBM is “in full accord

with the analysis applicable to special needs searches,” the State never actually

identifies11 any special need “beyond the normal need for law enforcement.” Griffin

10For example, the Court has recognized special needs in the context of a State’s
supervision of probationers by probation officers, “a situation in which there is an ongoing
supervisory relationship—and one that is not, or at least not entirely, adversarial—between
the object of the search and the decisionmaker.” Griffin v. Wisconsin, 483 U.S. 868, 879
(1987); see also, e.g., Vernonia, 515 U.S. at 653–54 (recognizing “ ‘special needs’ to exist in the
public school context” in which “children . . . have been committed to the temporary custody
of the State as schoolmaster”); cf. City of Indianapolis v. Edmond, 531 U.S. 32, 44 n.1 (2000)
(not recognizing any special need in the state’s vehicular narcotics checkpoints because the
“primary purpose . . . is to advance the general interest in crime control”).

11The State asserts that a special need must only go “beyond the regular law
enforcement duty” and argues that the dangerousness of sex offenders gives rise to a special
need just as the dangerousness of impaired drivers gave rise to a special need justifying the
sobriety checkpoints in Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990). In
Sitz the Court did not find any special need; instead, it concluded that prior decisions
involving checkpoints required addressing reasonableness under general balancing
principles. See id. at 450 (rejecting the respondents’ argument based on Von Raab “that there
must be a showing of some special governmental need ‘beyond the normal need’ for criminal
law enforcement before a balancing analysis is appropriate” and stating that Von Raab “was
in no way designed to repudiate our prior cases dealing with police stops of motorists on

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Opinion of the Court

v. Wisconsin, 483 U.S. 868, 873 (1987) (quoting T.L.O., 469 U.S. at 351). Because

defendant is not on probation or supervised release, but rather is unsupervised, this

is not a situation, as in Griffin, in which there is any “ongoing supervisory

relationship” between defendant and the State. Id. at 879; see also id. at 875 (stating

that “[probation] restrictions are meant to assure that the probation serves as a

period of genuine rehabilitation”). Nor is there any indication in the record that the

“primary purpose” of SBM is anything other than to “advance the general interest in

crime control.” City of Indianapolis v. Edmond, 531 U.S. 32, 44 n.1 (2000).

public highways,” “which utilized a balancing analysis” (citations omitted)). Other
checkpoint cases that implicate special governmental needs are based on either controlling
illegal immigration near the border or regulating highway safety. See Edmond, 531 U.S. at
41 (“We have never approved a checkpoint program whose primary purpose was to detect
evidence of ordinary criminal wrongdoing. . . . [E]ach of the checkpoint programs that we
have approved was designed primarily to serve purposes closely related to the problems of
policing the border or the necessity of ensuring roadway safety.”).

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Opinion of the Court

On the contrary, as Officer Pace testified and as the State repeatedly made

clear in its brief12 and at oral arguments,13 the primary purpose of SBM is to solve

crimes. This intent is also reflected in the SBM program’s enabling legislation, see

N.C.G.S. § 14-208.40(d) (providing that the SBM program is designed to “monitor

subject offenders and correlate their movements to reported crime incidents”); see also

id. § 14-208.5 (2017) (providing that the purpose of the Article is to assist “law

enforcement officers’ efforts to protect communities, conduct investigations, and

quickly apprehend offenders”), as well as the statutory definition of “satellite-based

monitoring” in the Criminal Procedure Act, see id. § 15A-101.1(3a) (defining SBM as

“monitoring with [a] . . . device . . . that timely records and reports or records the

person’s presence near or within a crime scene or prohibited area or the person’s

departure from a specified geographic location, and that has incorporated into the

12 The State explained in its brief: “While the [ankle monitor] cannot itself physically
prevent a crime, it is a useful investigative tool for law enforcement in solving crimes and
excluding monitored offenders as suspects”; SBM “speed[s] up apprehension of criminals
before they commit additional crimes”; “[t]his case presents one of those circumstances where
the government’s need to detect or deter criminal violations is sufficiently compelling to justify
the search authorized by the [SBM] program for convicted sex offenders”; “[w]hile deterrence
may be difficult to demonstrate, a more easily understood use of the location information
gained from this search is speed in ‘apprehension of criminals before they commit additional
crimes’ ”; and SBM has “ ‘the potential to significantly improve both the criminal justice
system and police investigative practices’ by quickly identifying those who are or may be guilty
and quickly eliminating those who are not.” (Emphases added.) (Citations omitted.)

13 The State, when asked a direct question at oral argument (“Just so I look at this
correctly, what does the State contend the specific purpose of this program is?”), responded:
“The specific purpose of this program is to allow law enforcement to be able to investigate and
quickly apprehend sex offenders to protect the public from sex offenders.”

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Opinion of the Court

software the ability to automatically compare crime scene data with locations of all

persons being electronically monitored so as to provide any correlation daily or in real

time”). Because the State has not proffered any “concerns other than crime

detection,” Chandler, 520 U.S. at 314, the “special needs” doctrine is not applicable

here. Cf. Park v. State, 305 Ga. 348, 356, 825 S.E.2d 147, 155 (2019) (holding that

Georgia’s SBM program is not “divorced from the State’s general interest in law

enforcement” and therefore does not come within the scope of the special needs

exception).

We cannot agree with defendant, however, that this determination is

dispositive of the reasonableness inquiry. On the contrary, the Supreme Court

instructed us that “[t]he 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.” Grady, 135 S. Ct.

at 1371. Therefore, we must consider whether the warrantless, suspicionless search

here is reasonable when “its intrusion on the individual’s Fourth Amendment

interests” is balanced “against its promotion of legitimate governmental interests.”

Vernonia, 515 U.S. at 652–53.

I. Intrusion Upon Reasonable Privacy Expectations

A. Nature of the Privacy Interest

In addressing the search’s “intrusion on the individual’s Fourth Amendment

interests,” “[t]he first factor to be considered is the nature of the privacy interest upon

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Opinion of the Court

which the search here at issue intrudes,” or, in other words, “the scope of the

legitimate expectation of privacy at issue.” Id. at 652–54, 658. Notably, “[t]he Fourth

Amendment does not protect all subjective expectations of privacy, but only those

that society recognizes as ‘legitimate,’ ” which “varies . . . with context, . . . depending,

for example, upon whether the individual asserting the privacy interest is at home,

at work, in a car, or in a public park.” Id. at 654 (quoting T.L.O., 469 U.S. at 338

(majority opinion)). The SBM program implicates a number of constitutionally-

recognized privacy concerns.

First, the SBM program, which requires “attach[ing] a device to a person’s

body, without consent,” Grady, 135 S. Ct. at 1370, and which prohibits the removal

of that device, implicates defendant’s Fourth Amendment interest in “be[ing] secure

in [his] person.” U.S. Const. amend. IV. The Supreme Court specifically noted that

the SBM program “is plainly designed to obtain information. And since it does so by

physically intruding on a subject’s body, it effects a Fourth Amendment search.”

Grady, 135 S. Ct. at 1371. Additionally, the equipment checks performed by

government officers every three months, during which defendant must allow them

entrance into his home, implicate his “right . . . to be secure in [his] . . . house[ ].” U.S.

Const. amend. IV; see Silverman v. United States, 365 U.S. 505, 511 (1961) (stating

that “[a]t the very core” of the Fourth Amendment “stands the right of a man to

retreat into his own home and there be free from unreasonable governmental

intrusion.” (first citing Entick v. Carrington, 19 Howell’s State Trials 1029, 1066

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Opinion of the Court

(1765); then citing Boyd v. United States, 116 U.S. 616, 626–30 (1886)). Finally, the

search’s GPS location monitoring implicates an expectation of privacy recently

addressed by the Supreme Court in Carpenter v. United States—defendant’s

“expectation of privacy in his physical location and movements.” 138 S. Ct. 2206,

2215 (2018).

The Court in Carpenter, after analyzing two lines of cases stemming from

United States v. Knotts, 460 U.S. 276 (1983), and United States v. Jones, 565 U.S. 400

(2012), concluded that “when the Government accessed CSLI [cell-site location

information] from the [petitioner’s] wireless carriers, it invaded [the petitioner’s]

reasonable expectation of privacy in the whole of his physical movements” and

thereby conducted a search. Carpenter, 138 S. Ct. at 2219. The Court explained:

A person does not surrender all Fourth Amendment
protection by venturing into the public sphere. To the
contrary, “what [one] seeks to preserve as private, even in
an area accessible to the public, may be constitutionally
protected.” Katz, 389 U.S., at 351–352. . . .

. . . Mapping a cell phone’s location over the course
of 127 days provides an all-encompassing record of the
holder’s whereabouts. As with GPS information, the time-
stamped data provides an intimate window into a person’s
life, revealing not only his particular movements, but
through them his “familial, political, professional,
religious, and sexual associations.” [Jones, 565 U.S.] at 415
(opinion of SOTOMAYOR, J.). These location records “hold
for many Americans the ‘privacies of life.’ ” Riley, 134 S.
Ct., at 2494–2495 (quoting Boyd, 116 U.S., at 630). And
like GPS monitoring, cell phone tracking is remarkably
easy, cheap, and efficient compared to traditional
investigative tools. With just the click of a button, the

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Government can access each carrier’s deep repository of
historical location information at practically no expense.

In fact, historical cell-site records present even
greater privacy concerns than the GPS monitoring of a
vehicle we considered in Jones. Unlike the bugged
container in Knotts or the car in Jones, a cell phone—
almost a “feature of human anatomy,” Riley, 134 S. Ct., at
2484—tracks nearly exactly the movements of its owner.
While individuals regularly leave their vehicles, they
compulsively carry cell phones with them all the time. A
cell phone faithfully follows its owner beyond public
thoroughfares and into private residences, doctor’s offices,
political headquarters, and other potentially revealing
locales. Accordingly, when the Government tracks the
location of a cell phone it achieves near perfect
surveillance, as if it had attached an ankle monitor to the
phone’s user.

Id. at 2217–18 (first alteration in original) (citations omitted).

The SBM program “present[s] even greater privacy concerns than the” CSLI

considered in Carpenter. Id. at 2218. While a cell phone tracks more closely the

movements of its owner than the bugged container in Knotts or the car in Jones

because it is “almost a ‘feature of human anatomy,’ ” id., the ankle monitor becomes,

in essence, a feature of human anatomy, see id. (“[W]hen the Government tracks the

location of a cell phone it achieves near perfect surveillance, as if it had attached an

ankle monitor to the phone’s user.”). Thus, SBM does not, as the trial court

concluded, “merely monitor[ ] [defendant’s] location”; instead, it “gives police access

to a category of information otherwise unknowable,” id., by “provid[ing] an all-

encompassing record of the holder’s whereabouts,” and “an intimate window into

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[defendant’s] life, revealing not only his particular movements, but through them his

‘familial, political, professional, religious, and sexual associations,’ ” id. at 2217

(quoting Jones, 565 U.S. at 415 (Sotomayor, J., concurring)); id. (“These location

records ‘hold for many Americans the “privacies of life.” ’ ” (quoting Riley, 134 S. Ct.

at 2494–95)). As the Court of Appeals majority stated, the SBM program’s

“continuous warrantless search of defendant’s location” is “uniquely intrusive.”

Grady, 817 S.E.2d at 25 (majority opinion) (quoting Belleau, 811 F.3d at 940).

The State disputes the legitimacy of defendant’s expectations of privacy,

contending that defendant’s legitimate expectations of privacy are diminished due to

his status as a convicted sex offender.14 Even if, as the State contends, defendant’s

14 The Supreme Court has found certain types of individuals to have diminished
expectations of privacy, including individuals arrested for serious offenses, see King, 569 U.S.
at 462 (“The expectations of privacy of an individual taken into police custody ‘necessarily
[are] of a diminished scope.’ ” (alteration in original) (quoting Bell v. Wolfish, 441 U.S. 520,
557 (1979))), probationers and parolees, see, e.g., Griffin, 483 U.S. at 874 (explaining that
“[p]robation is simply one point (or, more accurately, one set of points) on a continuum of
possible punishments” and probationers “do not enjoy ‘the absolute liberty to which every
citizen is entitled, but only . . . conditional liberty properly dependent on observance of special
[probation] restrictions’ ” (second and third alterations in original) (quoting Morrissey v.
Brewer, 408 U.S. 471, 480 (1972))); see also Samson, 547 U.S. at 850 (“On this continuum,
parolees have fewer expectations of privacy than probationers, because parole is more akin
to imprisonment than probation is to imprisonment.”), railroad employees based upon their
voluntary participation in an industry with a history of extensive regulation, Skinner, 489
U.S. at 627 (stating that “the expectations of privacy of covered employees are diminished by
reason of their participation in an industry that is regulated pervasively”), and high school
athletes based upon both “the schools’ custodial and tutelary responsibility for children,”
Vernonia, 515 U.S. at 656, and the students’ voluntary participation in school sports, id. at
657 (stating that “[s]chool sports are not for the bashful” and “there is ‘an element of
“communal undress” inherent in athletic participation’ ” (quoting Schaill v. Tippecanoe Cty.
Sch. Corp., 864 F.2d 1309, 1318 (7th Cir. 1988)), amended by Schaill, 864 F.2d 1309 (1989)).

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expectations of privacy, in comparison to those of the public at large, are “greatly

diminished,” even “drastically reduced,” “by virtue of the various conditions imposed

by the sex offender registry, including the ongoing collection of otherwise private

information made available to law enforcement and the public at large,” defendant’s

expectations of privacy are not completely eliminated. Moreover, the State has vastly

overstated the extent to which defendant’s expectation of privacy is diminished by

the requirement that he participate in the sex offender registry. When registering

with the sex offender registry, an individual must give the sheriff certain information,

including, in pertinent part: the person’s full name, any aliases, date of birth, sex,

race, height, weight, eye color, hair color, driver’s license number, home address, the

type of offense for which the person was convicted, the date of conviction, the sentence

imposed, a current photograph taken by the sheriff at the time of registration, the

person’s fingerprints taken by the sheriff at the time of registration, and any online

identifier that the person uses or intends to use. N.C.G.S. § 14-208.7(b) (2017). Most

of this information becomes public record and is part of the registry that is

maintained by the Department of Public Safety and made available for public

inspection on the Internet. Id. § 14-208.10 (2017). Before changing their addresses,

individuals required to register also must report in person and give written notice to

the sheriff; the same in-person reporting requirements apply to registrants who

The Supreme Court has never reached such a conclusion with respect to individuals convicted
of committing sex crimes who are not subject to ongoing governmental supervision.

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intend to move to another state, change their academic status, change their

employment status (if obtaining or terminating employment at an institution of

higher education), change or add an online identifier, or change their name. Id. § 14-

208.9 (2017). Additionally, an offender is subject to criminal penalties for failure to

comply with the registration requirements. Id. § 14-208.11 (2017).

None of the conditions imposed by the registry implicate an individual’s Fourth

Amendment “right . . . to be secure in [his] person[ ]” or his expectation of privacy “in

the whole of his physical movements,” Carpenter, 138 S. Ct. at 2219. We recognize

that an individual required to register has a diminished expectation of privacy with

respect to the information and other materials provided to the sheriff and made

available to the public online, but we cannot agree with the State that these statutory

requirements “greatly diminish[ ]” that individual’s expectation of privacy in every

context.15 Even if defendant has no reasonable expectation of privacy concerning

where he lives because he is required to register as a sex offender, he does not thereby

forfeit his expectation of privacy in all other aspects of his daily life. This is especially

true with respect to unsupervised individuals like defendant who, unlike

probationers and parolees, are not on the “continuum of possible [criminal]

punishments” and have no ongoing relationship with the State. Griffin, 483 U.S. at

15 The same is true of other limitations to which our dissenting colleagues direct our
attention, including the exclusion of sex offenders from certain occupations and certain
locations, such as schools.

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874; see also Packingham, 137 S. Ct. at 1737 (holding unconstitutional a state statute

that prohibited sex offenders from accessing social networking websites and noting

the “troubling fact that the law imposes severe restrictions on persons who already

have served their sentence and are no longer subject to the supervision of the criminal

justice system”). The State does not explain how defendant’s provision of limited

information concerning his address, employment, and appearance, in addition to his

photograph and fingerprints, as part of a “civil, regulatory scheme” meaningfully

reduces his expectation of privacy in his body and in his every movement every day

for the rest of his life. See, e.g., Park, 305 Ga. at 355, 825 S.E.2d at 154 (holding that

there is no reduced expectation of privacy by virtue of participation in a sex offender

registry because “[w]hile the registration requirements . . . reveal information such

as the convicted sex offender’s address and restrict certain areas where the offender

may be legally present . . . this has nothing to do with State officials searching that

individual by attaching a device to his body and constantly tracking that person’s

movements in order to look for evidence of a crime without a warrant”).

The State also argues, relying on Bowditch, that defendant’s expectations of

privacy are diminished due to his status as a convicted felon. See Bowditch, 364 N.C.

at 349–50, 700 S.E.2d at 11 (“[I]t is beyond dispute that convicted felons do not enjoy

the same measure of constitutional protections, including the expectation of privacy

under the Fourth Amendment, as do citizens who have not been convicted of a felony.”

(citations omitted)). However, this reads too much into Bowditch’s limited

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assessment of Fourth Amendment protections. The Court in Bowditch rejected the

defendants’ challenges to the SBM program under the ex post facto clauses of our

state and federal constitutions, concluding that the legislature established North

Carolina’s SBM program not as a punishment but as a civil, regulatory scheme. Id.

at 351–52, 700 S.E.2d at 12–13. In support of this contention, Mr. Bowditch argued

that the SBM program was punitive because it required people to waive their Fourth

Amendment rights with respect to their homes by granting Division of Community

Corrections personnel regular access to their residences for equipment maintenance.

Id. at 363–64, 700 S.E.2d at 19–20 (Hudson, J., dissenting) (in-home equipment

maintenance requirement “is a clear infringement on their Fourth Amendment

rights”). In response, the majority concluded that “felons convicted of multiple counts

of indecent liberties with children are not visited by DCC personnel for random

searches, but simply to ensure the SBM system is working properly.” Id. at 350, 700

S.E.2d at 11 (majority opinion). Bowditch did not address the defendants’

expectations of privacy with respect to the physical search of their person or their

expectations of privacy in their location and movements.

Moreover, the cases relied upon in Bowditch to support the general proposition

that persons convicted of felonies forfeit certain constitutional protections either deal

exclusively with prisoners and probationers, do not hold that a conviction creates a

diminished expectation of privacy, or do not address privacy rights at all. See Griffin,

483 U.S. at 880 (upholding certain limited warrantless searches of individuals’ homes

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during their probation); Velasquez v. Woods, 329 F.3d 420 (5th Cir. 2003) (per curiam)

(rights of inmates serving prison sentences); Russell v. Gregoire, 124 F.3d 1079, 1093–

94 (9th Cir. 1997) (stating that an analysis of privacy rights does not assume a

diminished expectation of privacy simply because the individual was previously

convicted of a crime), cert. denied, 523 U.S. 1007 (1998); Jones v. Murray, 962 F.2d

302, 310–11 (4th Cir.) (holding that Virginia’s DNA data bank program, requiring

inmates to involuntarily provide a blood sample before their release, is a reasonable

search under the Fourth Amendment because inmates have a “questionable claim of

privacy to protect” their identity and because the intrusion is “minimal”), cert. denied,

506 U.S. 977 (1992); Standley v. Town of Woodfin, 362 N.C. 328, 661 S.E.2d 728 (2008)

(does not address privacy rights); State v. Bryant, 359 N.C. 554, 614 S.E.2d 479 (2005)

(does not involve privacy rights).

Contrary to the State’s argument, there is no precedent for the proposition that

persons such as defendant, who have served their sentences and whose legal rights

have been restored to them (with the exception of the right to possess firearms, see

N.C.G.S. § 13-1 (2017)), nevertheless have a diminished expectation of privacy in

their persons and in their physical locations at any and all times of the day or night

for the rest of their lives. Indeed, courts that have examined this question in the

Fourth Amendment context have reached a contrary conclusion. See Friedman v.

Boucher, 580 F.3d 847, 858 (9th Cir. 2009) (Nonconsensual DNA collection was an

unreasonable search under the Fourth Amendment; no diminished expectation of

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privacy exists because “Friedman was not on parole. He had completed his term of

supervised release successfully and was no longer the supervision of [sic] any

authority.”); Trask v. Franco, 446 F.3d 1036, 1043–44 (10th Cir. 2006) (holding that

the plaintiff “enjoyed the full protection of the Fourth Amendment” because her

probation had been discharged); Moore v. Vega, 371 F.3d 110, 116 (2d Cir. 2004)

(stating that while parolees have diminished liberty interests, “[b]ecause plaintiff is

not a parolee, she cannot be subjected to the same burdens upon her privacy”); Doe v.

Prosecutor, 566 F. Supp. 2d 862, 883 (S.D. Ind. 2008) (declining to find a diminished

expectation of privacy based upon a sex crime conviction, opining that “[a] person’s

status as a felon who is no longer under any form of punitive supervision therefore

does not permit the government to search his home and belongings without a

warrant”); see also Park, 305 Ga. at 354, 825 S.E.2d at 153 (“It cannot be said that an

individual who has completed the entirety of his or her criminal sentence, including

his or her parole and/or probation requirements, would have the same diminished

privacy expectations as an individual who is still serving his or her sentence.”); State

v. Ross, 423 S.C. 504, 511–12, 815 S.E.2d 754, 757 (2018) (holding that lifetime SBM

for a defendant not on probation and “no longer under the jurisdiction of the

sentencing court” involves a different Fourth Amendment analysis than that

applicable to a defendant who was on probation); cf. Commonwealth v. Feliz, 481

Mass. 689, 691, 119 N.E.3d 700, 704 (2019) (holding that Massachusetts’s SBM

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program, as applied to the particular defendant, a probationer, was an

unconstitutional search under Article 14 of the Massachusetts Declaration of Rights).

While a person’s status as a convicted sex offender may affect the extent to

which the State can infringe upon fundamental rights, “the fact of ‘diminished privacy

interests does not mean that the Fourth Amendment falls out of the picture entirely.’

” Carpenter, 138 S. Ct. at 2219 (quoting Riley, 134 S. Ct. at 2488). A person may

have a lessened interest in the privacy of his address because he has already made

that information public, or a lessened interest in the privacy of matters material to

his voluntary participation in a certain activity, e.g., Vernonia, 515 U.S. at 657

(discussing voluntary participation in school athletics), but having served his

sentence, paid his debt to society, and had his rights restored, his expectation of

privacy is not automatically and forever “significantly diminished” under the Fourth

Amendment for all purposes. Instead, except as reduced for possessing firearms and

by providing certain specific information and materials to the sex offender registry,

defendant’s constitutional privacy rights, including his Fourth Amendment

expectations of privacy, have been restored.

B. Character of the Intrusion Complained of

“Having considered the scope of the legitimate expectation of privacy at issue

here, we turn next to the character of the intrusion that is complained of,” which

contemplates the “degree” of and “manner” in which the search intrudes upon

legitimate expectations of privacy. Id. at 658. In that regard, we note first that the

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trial court is required to order lifetime SBM, without any individual assessment of

the offender or his offense characteristics, for individuals in the same category as

defendant—that is, any unsupervised individual who meets the statutory definition

of a “recidivist.”

According to the State, “the duration of these searches may be limited since

offenders ordered to enroll for life may petition to be removed after only one year.”

(Emphasis added.) (Citing N.C.G.S. § 14-208.43.) Yet this “[r]equest for termination”

process does little to remedy what is absent at the front end of this warrantless

search—that is, “the detached scrutiny of a” judicial officer “ensur[ing] an objective

determination whether an intrusion is justified in any given case.” Skinner, 489 U.S.

at 622 (citation omitted). The termination requests are directed not to a judicial

officer but the Post-Release Supervision and Parole Commission, which is furnished

no meaningful criteria16 for evaluating these requests other than the vague direction

that “the Commission may terminate the monitoring requirement if the Commission

finds that the person is not likely to pose a threat to the safety of others.” N.C.G.S. §

14-208.43(c) (2017) (emphasis added). Given that defendant has been statutorily

deemed to pose such a threat to the safety of others that he must maintain lifetime

registration with the statewide registry, id. § 14-208.23, and is prohibited for the

16As stated above, the Commission may only consider termination of SBM “[i]f it is
determined that the person has not received any additional reportable convictions during the
period of satellite-based monitoring and the person has substantially complied with the
provisions of this Article [“Sex Offender and Public Protection Registration Programs”].”
N.C.G.S. § 14-208.43(c).

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remainder of his life from being “[o]n the premises of any place intended primarily

for the use, care, or supervision of minors, including, but not limited to, schools,

children’s museums, child care centers, nurseries, and playgrounds,” id. § 14-

208.18(a)(1) (2017), and from being “[o]n the State Fairgrounds during the period of

time each year that the State Fair is conducted,” id. § 14-208.18(a)(4) (2017), it would

appear that few, if any, sex offenders are ever likely to satisfy that requirement.

Indeed, this incongruity bears out in practice, as from the years 2010 through 2015,

the Commission received sixteen requests for termination by individuals subjected to

lifetime SBM and denied all of them.

The lack of judicial discretion in ordering the imposition of SBM on any

particular individual and the absence of judicial review of the continued need for SBM

is contrary to the general understanding that judicial oversight of searches and

seizures, in the form of a warrant requirement, is an important check on police power.

Indeed, the South Carolina Supreme Court has held that electronic monitoring under

their state law “ ‘must be ordered by the court’ only after the court finds electronic

monitoring would not be an unreasonable search based on the totality of the

circumstances presented in an individual case.” Ross, 423 S.C. at 515, 815 S.E.2d at

759. Similarly, that Court also held that it was unconstitutional to impose lifetime

satellite monitoring with no opportunity for judicial review, stating: “The complete

absence of any opportunity for judicial review to assess a risk of re-offending, . . . is

arbitrary and cannot be deemed rationally related to the legislature’s stated purpose

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of protecting the public from those with a high risk of re-offending.” State v. Dykes,

403 S.C. 499, 508, 744 S.E.2d 505, 510 (2013) (citations omitted), cert. denied, 572

U.S. 1089 (2014). Thus, the fact that North Carolina’s mandatory SBM program

involves no meaningful judicial role is important in the analysis of the

constitutionality of the program.

Mr. Grady, of course, must not only wear the half-pound ankle monitor at all

times and respond to any of its repeating voice messages, but he also must spend two

hours of every day plugged into a wall charging the ankle monitor. We cannot agree

with the Court of Appeals that these physical restrictions,17 which require defendant

to be tethered to a wall for what amounts to one month out of every year, are “more

inconvenient than intrusive.” Grady, 817 S.E.2d at 25; see T.L.O., 469 U.S. at 337

(“[E]ven a limited search of the person is a substantial invasion of privacy.” (citing

Terry v. Ohio, 392 U.S. 1, 24–25 (1967)).

Nor can we agree with the State that “[t]he physical intrusion here is minimal.”

The State, in reliance upon Maryland v. King, asserts: “Just as DNA swabbing is not

17 The Supreme Court has made clear that any restrictions that accompany a search
must be considered in evaluating the search’s intrusiveness. See Skinner, 489 U.S. at 618
(“In view of our conclusion that the collection and subsequent analysis of the requisite
biological samples must be deemed Fourth Amendment searches, we need not characterize
the employer’s antecedent interference with the employee’s freedom of movement as an
independent Fourth Amendment seizure. . . . For present purposes, it suffices to note that
any limitation on an employee’s freedom of movement that is necessary to obtain the blood,
urine, or breath samples contemplated by the regulations must be considered in assessing
the intrusiveness of the searches effected by the Government’s testing program. (citing
United States v. Place, 462 U.S. 696, 707–09 (1983))).

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a significant intrusion beyond that associated with fingerprinting, so too SBM is not

a significant intrusion beyond that associated with sex offender registration.” In King

the Court determined that, in comparison to the intrusions that accompanied valid

arrests, including booking, photographing, fingerprinting, and a search of “the person

and the property in his immediate possession,” “including ‘requir[ing] at least some

detainees to lift their genitals or cough in a squatting position,’ ” King, 569 U.S. at

462 (alteration in original) (first quoting United States v. Edwards, 415 U.S. 800, 803

(1974); then quoting Florence v. Bd. of Chosen Freeholders, 566 U.S. 318, 334 (2012)),

the DNA swab—“[a] gentle rub along the inside of the cheek”—“involve[d] an even

more brief and still minimal intrusion,” id. at 463; see also, e.g., Vernonia, 515 U.S.

at 658 (concluding that the intrusion caused by the process of collecting samples for

urinalysis was “negligible” where the “conditions [of doing so] are nearly identical to

those typically encountered in public restrooms” (emphasis added)); Mich. Dep’t of

State Police v. Sitz, 496 U.S. 444, 448, 450–51 (1990) (concluding that the “measure

of the intrusion on motorists stopped briefly at sobriety checkpoints—is slight” when

the checkpoints involved “preliminary questioning and observation by checkpoint

officers” and “[t]he average delay for each vehicle was approximately 25 seconds”

(emphasis added)). In light of what we view as the substantial differences between,

on the one hand, an individual having to register his address, photograph, and other

limited details pertaining to himself and the offense or offenses for which he was

convicted with the sheriff and, on the other hand, an individual being required to

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wear an ankle appendage, which emits repeating voice commands when the signal is

lost or when the battery is low, and which requires the individual to remain plugged

into a wall every day for two hours, we cannot conclude, as the Court did in King,

that “[t]he additional intrusion . . . is not significant” or that the SBM program “does

not increase the indignity already attendant to” the sex offender registry. 569 U.S.

at 459, 464; see also Feliz, 481 Mass. at 704, 119 N.E.3d at 713 (stating that “GPS

monitoring . . . gathers much more information than” taking blood samples for a DNA

database “and gathers this information over a much longer period of time. The

experience of accommodating a device that remains attached to the body for a

prolonged period of time differs materially from the one-time, minimal physical

intrusion occasioned by a properly conducted DNA test.”).

In our view, the physical intrusion accompanying SBM is distinct in its nature

from that attendant upon sex offender registration. Notably, in considering whether

Alaska’s sex offender registration process constituted a retroactive punishment in

violation of the Ex Post Facto Clause, the Supreme Court stated that the registration

process “is more analogous to a visit to an official archive of criminal records than it

is to a scheme forcing an offender to appear in public with some visible badge of past

criminality.” Smith v. Doe, 538 U.S. 84, 99 (2003); see id. at 105 (“[T]he notification

system is a passive one: An individual must seek access to the information.”). With

the ET-1 and its repeating voice commands, of course, an individual must “appear in

public with some visible”—and audible—“badge of past criminality.” Id. at 99.

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In addition to the SBM program’s physical intrusiveness, we also note the

lifetime impingement upon defendant’s expectation of privacy “in the whole of his

physical movements.” Carpenter, 138 S. Ct. at 2219. Numerous courts have

recognized the intrusiveness of this aspect of SBM, which makes vast information

about a person available to the State at the click of a mouse. The Court of Appeals

majority stated, and we agree, that the SBM program’s “continuous, warrantless

search of defendant’s location” by GPS technology is “uniquely intrusive.” Grady, 817

S.E.2d at 25. As the D.C. Circuit observed:

Prolonged surveillance reveals types of information not
revealed by short-term surveillance, such as what a person
does repeatedly, what he does not do, and what he does
ensemble. These types of information can each reveal more
about a person than does any individual trip viewed in
isolation. Repeated visits to a church, a gym, a bar, or a
bookie tell a story not told by any single visit, as does one’s
not visiting any of these places over the course of a month.
The sequence of a person’s movements can reveal still
more; a single trip to a gynecologist’s office tells little about
a woman, but that trip followed a few weeks later by a visit
to a baby supply store tells a different story. A person who
knows all of another’s travels can deduce whether he is a
weekly church goer, a heavy drinker, a regular at the gym,
an unfaithful husband, an outpatient receiving medical
treatment, an associate of particular individuals or
political groups – and not just one such fact about a person,
but all such facts.

United States v. Maynard, 615 F.3d 544, 562 (D.C. Cir. 2010) (footnote omitted), aff’d

sub nom. State v. Jones, 565 U.S. 400. Simply put, GPS monitoring permits “a

detailed chronicle of a person’s physical presence compiled every day, every moment.”

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Carpenter, 138 S. Ct. at 2220. And even in an era in which GPS capabilities on cell

phones are well known, society’s expectation has been that such comprehensive and

detailed information about an individual’s movements would be private. See Jones,

565 U.S. at 430 (Alito, J., concurring in judgment). Compiling and maintaining a

complete record of our every movement is “not what we expect anyone to do, and it

reveals more than we expect anyone to know.” Maynard, 615 F.3d at 563 (citation

omitted).

In sum, in light of the physical intrusiveness of the ET-1, the quarterly

equipment checks, and the extent to which GPS locational tracking provides an

“intimate window” into an individual’s “privacies of life,” we conclude that the

mandatory imposition of lifetime SBM on an individual in defendant’s class works a

deep, if not unique, intrusion upon that individual’s protected Fourth Amendment

interests.

II. Nature and Purpose of the Search

The balancing analysis that we are called upon to conduct here requires us to

weigh the extent of the intrusion upon legitimate Fourth Amendment interests

against the extent to which the SBM program sufficiently “promot[es] . . . legitimate

governmental interests” to justify the search, thus rendering it reasonable under the

Fourth Amendment. Vernonia, 515 U.S. at 652–53. In this aspect of the balancing

test, we “consider the nature and immediacy of the governmental concern at issue

here, and the efficacy of this means for meeting it.” Id. at 660.

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Our earlier conclusion that the nature of the State’s concern was not “beyond

the normal need for law enforcement” does not, of course, constitute a holding that

the State’s interest in solving crimes and facilitating apprehension of suspects so as

to protect the public from sex offenders is not compelling. “Sexual offenses are among

the most disturbing and damaging of all crimes, and certainly the public supports the

General Assembly’s efforts to ensure that victims, both past and potential, are

protected from such harm.” Bowditch, 364 N.C. at 353, 700 S.E.2d at 13 (Hudson, J.,

dissenting). Nonetheless, the question remains whether the SBM program’s

“promotion of legitimate governmental interests” outweighs “its intrusion on the

individual’s Fourth Amendment interests.” Vernonia, 515 U.S. at 653 (emphasis

added); see King, 569 U.S. at 461 (“[A] significant government interest does not alone

suffice to justify a search. The government interest must outweigh the degree to

which the search invades an individual’s legitimate expectations of privacy.”).

In its order, the trial court summarized portions of the testimony of the State’s

only witness, Mr. Pace. While this section of the order explains in some detail what

the SBM does not prohibit or restrict, it does not address what, if anything, the

evidence showed about how successfully the program advances its stated purpose of

protecting the public from sex offenders. See N.C.G.S. § 14-208.5 (“[I]t 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

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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.”). Although the trial court did

not make any findings based upon Mr. Pace’s testimony concerning the efficacy issue,

Mr. Pace testified that wearing the SBM device will not prevent anyone from

committing a crime, but that it could be a useful investigative tool if a crime has

already been committed. According to Pace, unsupervised individuals in the SBM

program like Grady are monitored by officers in Raleigh. Pace testified that while

“officers are required by policy” in the case of supervised individuals to “trail their

points three times a week,” he was “not sure about unsupervised cases,” stating, “All

I know is the statute says that we have to monitor them.” This is reflected in the

DCC’s Policy and Procedure Manual, which mandates that for supervised

individuals, officers will “[r]eview points 3 times per week for patterns of movement

indicating risk for re-offense and issues related to public safety” but contains no

guidelines for the monitoring of unsupervised individuals.

The State did not present any evidence in the trial court regarding the

recidivism rates of sex offenders. The State relies, as did the trial court, on the

Supreme Court’s decision in McKune v. Lile, in which the Court stated that “[w]hen

convicted sex offenders reenter society, they are much more likely than any other

type of offender to be rearrested for a new rape or sexual assault.” 536 U.S. 23, 33

(2002) (plurality opinion) (first citing Crimes Against Children Research Ctr., Univ.

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of N.H., Fact Sheet 5; Sex Offenses 24, 27; then citing Bureau of Justice Statistics,

U.S. Dep’t of Justice, Recidivism of Prisoners Released in 1983, at 6 (1997)); id. at 34

(describing the “risk of recidivism” among sex offenders as “frightening and high”).

Yet, the Supreme Court subsequently stated in United States v. Kebodeaux that while

“[t]here is evidence that recidivism rates among sex offenders are higher than the

average for other types of criminals,” “[t]here is also conflicting evidence on the point.”

570 U.S. 387, 395–96 (2013) (citations omitted). Aside from the fact that these

statements are not evidence, the judicial statements upon which the trial court and

the State rely are, when considered in their entirety, inconclusive.

At the hearing, defendant presented evidence tending to show that recidivism

rates for sex offenders are lower than the recidivism rates for other offenders. For

instance, defendant presented excerpts from reports of the North Carolina

Sentencing and Policy Advisory Commission concerning “Offenders Placed on

Probation or Released from Prison” for the years 2005–06, 2008–09, 2010–11, and

2013 which show that in North Carolina, “[s]ex offenders generally had lower

recidivism rates than most groups.” Defendant also presented an April 2014 “Special

Report” from the Department of Justice, Bureau of Justice Statistics, studying

“Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010,”

which shows that “[a]mong violent offenders, the annual recidivism rates of prisoners

sentenced for homicide or sexual assault were lower than those sentenced for assault

or robbery across the 5-year period.” Thus, the only actual evidence concerning the

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threat posed by the recidivism of sex offenders tends to suggest that sex offender

recidivism rates are not unusually high.

The lack of evidence in this case contrasts sharply with the record that the

Supreme Court has examined and found sufficient in other Fourth Amendment

contexts. For example, in Vernonia the Court reviewed extensive evidence of the

importance of controlling drug use by students as well as particular facts about the

crisis that existed in that school district, in which disciplinary actions had reached

“epidemic proportions.” Vernonia, 515 U.S. at 661–63. Similarly, in Samson,

empirical evidence documented the recidivism rates of California’s parolees. Samson,

547 U.S. at 853. These cases make clear that the extent of a problem justifying the

need for a warrantless search cannot simply be assumed; instead, the existence of the

problem and the efficacy of the solution need to be demonstrated by the government.

Our dissenting colleagues contend that we must defer to the General

Assembly’s legislative findings concerning the significance of the problem the SBM

program is intended to address and the risk of sex offenders re-offending, as codified

at N.C.G.S. § 14-208.5 (stating the “Purpose” of Article 27A), despite the absence of

any record evidence supporting the State’s position; however, legislative findings are

entitled to only limited deference in determining the constitutionality of legislative

enactments, see Martin v. N.C. Hous. Corp., 277 N.C. 29, 44, 175 S.E.2d 665, 673

(1970). Specifically, the Court in Martin, after quoting the relevant legislative

findings, stated:

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If the constitutionality of a statute . . . depends on
the existence or nonexistence of certain facts and
circumstances, the existence of such facts and
circumstances will generally be presumed for the purpose
of giving validity to the statute, . . . if such a state of facts
can reasonably be presumed to exist, and if any such facts
may be reasonably conceived in the mind of the court. This
rule does not apply if the evidence is to the contrary, or if
facts judicially known or proved, compel otherwise.

Id. at 44, 175 S.E.2d at 673 (ellipsis in original) (emphasis added) (citation omitted));

see also, e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 666 (1994) (“That

Congress’ predictive judgments are entitled to substantial deference does not mean,

however, that they are insulated from meaningful judicial review altogether. On the

contrary, we have stressed in First Amendment cases that the deference afforded to

legislative findings does ‘not foreclose our independent judgment of the facts bearing

on an issue of constitutional law.’ ” (plurality opinion) (first quoting Sable Commc’ns

of Cal., Inc. v. FCC, 492 U.S. 115, 129 (1989); then citing Landmark Commc’ns, Inc.

v. Virginia, 435 U.S. 829, 843 (1978)). As we have already noted, in this case the only

evidence contained in the record fails to support the legislative findings as they are

characterized and relied upon by our dissenting colleagues.18

18The dissent further states that the legislature’s “finding is supported by United
States Supreme Court precedent.” In the same vein, the trial court relied upon McKune, as
well as two cases from other jurisdictions, Hallak and Belleau, rather than the evidence
presented at the hearing. Yet, as we noted above, the Supreme Court subsequently observed
in Kebodeaux that while “[t]here is evidence that recidivism rates among sex offenders are
higher than the average for other types of criminals,” “[t]here is also conflicting evidence on
the point.” 570 U.S. at 395–96. Moreover, in Samson, while the Court relied on its prior
decisions in concluding that “[t]he State’s interests [in supervising parolees] . . . are

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Opinion of the Court

Aside from the inconsistency between the relevant legislative findings and the

actual evidence contained in the record, the statement of purpose found in N.C.G.S.

§ 14-208.5, was enacted when the sex offender registration program was created in

1995 and retained as amended in 1997, and predates the creation of the SBM program

in 2007. The extent to which this provision’s findings relate specifically to SBM is

limited, as evidenced by the statutory language, which contemplates the need to know

where sex offenders live rather than the need for twenty-four hour real-time

monitoring of their every movement. See N.C.G.S. § 14-208.5 (stating “that law

enforcement officers[ ] . . . are impaired by the lack of information available to law

enforcement agencies about convicted offenders who live within the agency’s

jurisdiction,” that “[r]elease of information about these offenders will further the

governmental interests of public safety,” and that “it is the purpose of this Article to

assist law enforcement . . . by requiring persons who are convicted of sex offenses or

of certain other offenses committed against minors to register with law enforcement

agencies”). Furthermore, while N.C.G.S. § 14-208.5 is relevant to, but not dispositive

of, the “nature and immediacy of” the State’s concern in protecting the public from

substantial,” 547 U.S. at 853 (first citing Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 365
(1998); then citing Griffin, 483 U.S. at 879; and then citing United States v. Knights, 534 U.S.
112, 121 (2001)), this did not end the inquiry. Rather, the Court also considered the available
evidence and expressly concluded that “[t]he empirical evidence presented in this case clearly
demonstrates the significance of these interests to the State of California.” Id. (emphasis
added). Here, in contrast to Samson, the empirical evidence before the trial court does not
“clearly demonstrate[ ] the significance of” the State’s interest in the continuous satellite-
based monitoring of recidivist sex offenders. Id.

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sex offenders, Vernonia, 515 U.S. at 660, the statute says absolutely nothing about

the effectiveness of SBM in the “promotion of legitimate governmental interests,” id.

at 652–53. Thus, the legislative findings upon which our dissenting colleagues rely

are not determinative of the outcome with respect to this constitutional issue.

The State also argues that the SBM program “is a useful investigative tool for

law enforcement in solving crimes and excluding monitored offenders as suspects”

and “speed[s] up apprehension of criminals before they commit additional crimes.”

The State did not present any empirical evidence demonstrating that the SBM

program effectively advances this interest. Moreover, the State has not directed this

Court to, nor are we aware of, a single instance dating back to the initial

implementation of the SBM program in January 2007 in which the SBM program

assisted law enforcement in apprehending or exonerating a suspected sex offender in

North Carolina, or anywhere else. The State’s inability to produce evidence of the

efficacy of the lifetime SBM program in advancing any of its asserted legitimate State

interests weighs heavily against a conclusion of reasonableness here.

The State also argues that the SBM program serves as an effective deterrent.

Deterrence, of course, is one of “the two primary objectives of criminal punishment.”

Kansas v. Hendricks, 521 U.S. 346, 361–62 (1997). Because the SBM program is not

a form of criminal punishment, but rather a “civil, regulatory scheme,” “[t]he SBM

program’s foremost purpose is not to deter crime.” Bowditch, 364 N.C. at 351–52, 700

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S.E.2d at 12–13 (majority opinion).19 Moreover, even if the State can permissibly

justify the intrusive effects of the SBM program based on this “secondary effect,” id.

at 351, 700 S.E.2d at 12, the State has not presented any evidence demonstrating

that the SBM program is effective at deterring crime.20 Thus, the State’s deterrence

argument, like the other arguments it has advanced with respect to the efficacy issue,

fails for lack of evidentiary support.

It is well established that the State bears the burden of proving the

reasonableness of a warrantless search. Coolidge, 403 U.S. at 455. While the State’s

asserted interests here are without question legitimate, what this Court is duty

bound to determine is whether the warrantless search imposed by the State on

recidivists under the SBM program actually serves those legitimate interests. The

State has the burden of coming forward with some evidence that its SBM program

19The dissent’s contention that “the SBM program’s primary purpose is to serve the
special need of reducing sex crime recidivism through deterrence” directly contradicts the
decision of the Court in Bowditch. 364 N.C. at 351–52, 700 S.E.2d at 12–13 (stating “[t]he
SBM program’s foremost purpose is not to deter crime”).

20 The dissent suggests that the efficacy of SBM as a deterrent is “self-evident.”
However, there is social science research that addresses this question. See, e.g., Marc
Renzema, Evaluative research on electronic monitoring, in Electronically Monitored
Punishment: International and critical perspectives, 247, 247–70 (Mike Nellis, Kristel Beyens
& Dan Kaminski eds., 2013) (summarizing all research available on the deterrent effect of
electronic monitoring); Deeanna M. Button et al., Using Electronic Monitoring to Supervise
Sex Offenders: Legislative Patterns and Implications for Community Corrections Officers, 20
Crim. Just. Pol’y Rev. 414, 418 (2009) (reporting that the most thorough review to date of
research on electronic monitoring effectiveness concluded that “applications of electronic
monitoring as a tool for reducing crime are not supported by existing data”). At an absolute
minimum, we are not satisfied that unsupported assumptions of the type upon which our
dissenting colleagues rely suffice to render an otherwise unlawful search reasonable.

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Opinion of the Court

assists in apprehending sex offenders, deters or prevents new sex offenses, or

otherwise protects the public. Simply put, as the U.S. Supreme Court explained in

Ferguson v. City of Charleston, “the gravity of the threat alone cannot be dispositive

of questions concerning what means law enforcement officers may employ to pursue

a given purpose.” 532 U.S. 67, 86 (2001) (quoting Edmond, 531 U.S. at 42). Here,

despite having the burden of proof, the State concedes that it did not present any

evidence tending to show the SBM program’s efficacy in furthering the State’s

legitimate interests. Grady, 817 S.E.2d at 27. We cannot simply assume that the

program serves its goals and purposes when determining whether the State’s interest

outweighs the significant burden that lifetime SBM imposes on the privacy rights of

recidivists subjected to it. Cf. Doe v. Cooper, 842 F.3d 833, 846 (4th Cir. 2016)

(“[N]either anecdote, common sense, nor logic, in a vacuum, is sufficient to carry the

State’s burden of proof. Thus, while the State’s argument may be conceptually

plausible, it presented no evidence or data to substantiate it before the district court.”

(citing United States v. Carter, 669 F.3d 411, 418–19 (4th Cir. 2012))).

To be clear, the scope of North Carolina’s SBM program is significantly broader

than that of other states. Lifetime monitoring for recidivists is mandated by our

statute for anyone who is convicted of two sex offenses that carry a registration

requirement. A wide range of different offenses are swept into this category. For

example, a court is required to impose lifetime SBM on an offender who twice

attempts to solicit a teen under the age of sixteen in an online chat room to meet with

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Opinion of the Court

him, regardless of whether the person solicited was actually a teen or an undercover

officer, or whether any meeting ever happened. See N.C.G.S. § 14-202.3 (2017); State

v. Fraley, 202 N.C. App. 457, 688 S.E.2d 778, disc. rev. denied, 364 N.C. 243, 698

S.E.2d 660 (2010). Not only does the lifetime imposition of SBM vastly exceed the

likely sentence such an offender would receive on a second offense, in addition, the

State has simply failed to show how monitoring that individual’s movements for the

rest of his life would deter future offenses, protect the public, or prove guilt of some

later crime.

Applying the correct legal standard to the record in this case, we conclude that

the State has not met its burden of establishing the reasonableness of the SBM

program under the Fourth Amendment balancing test required for warrantless

searches. In sum, we hold that recidivists, as defined by the statute, do not have a

greatly diminished privacy interest in their bodily integrity or their daily movements

merely by being also subject to the civil regulatory requirements that accompany the

status of being a sex offender. The SBM program constitutes a substantial intrusion

into those privacy interests without any showing by the State that the program

furthers its interest in solving crimes that have been committed, preventing the

commission of sex crimes, or protecting the public. In these circumstances, the SBM

program cannot constitutionally be applied to recidivists in Grady’s category on a

lifetime basis as currently required by the statute.

Conclusion

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Opinion of the Court

For the reasons stated, we hold that the application of the relevant portions of

N.C.G.S. §§ 14-208.40A(c) and 14-208.40B(c) to individuals in the same category as

defendant, under which these individuals are required to submit to a mandatory,

continuous, nonconsensual search by lifetime satellite-based monitoring, violates the

Fourth Amendment to the United States Constitution. The category to which this

holding applies includes only those individuals who are not on probation, parole, or

post-release supervision; who are subject to lifetime SBM solely by virtue of being

recidivists as defined by the statute; and who have not been classified as a sexually

violent predator, convicted of an aggravated offense, or are adults convicted of

statutory rape or statutory sex offense with a victim under the age of thirteen. As

applied to these individuals, the intrusion of mandatory lifetime SBM on legitimate

Fourth Amendment interests outweighs the “promotion of legitimate governmental

interests.” Vernonia, 515 U.S. at 653.

The generalized notions of the dangers of recidivism of sex offenders, for which

the State provided no evidentiary support, cannot justify so intrusive and so sweeping

a mode of surveillance upon individuals, like defendant, who have fully served their

sentences and who have had their constitutional rights restored. The unsupported

assumption—that if a crime is committed at some unspecified point in the future, the

ankle monitor worn during all of the intervening years by one of these individuals,

who may or may not pose a risk, may potentially aid in inculpating or exonerating

that individual—does not advance the State’s interest in a manner that outweighs

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Opinion of the Court

the intrusiveness of mandatory lifetime SBM upon that individual’s legitimate

expectations of privacy. In contrast to the SBM provisions governing other offenders,

which include an individualized “risk assessment” and judicial determinations

regarding whether the individual “requires the highest possible level of supervision

and monitoring,” and, if so, for how long, N.C.G.S. §§ 14-208.40A(d)-(e), -208.40B(c);

see, e.g., State v. Griffin, 818 S.E.2d 336, 338–39, 342 (N.C. Ct. App. 2018) (explaining

that at the bring back hearing, the State introduced a “Static-99,” “an actuarial report

designed to estimate the probability of sex offender recidivism, which placed

Defendant in the ‘moderate-low’ category,” noting, inter alia, that the defendant did

not complete the SOAR sex offender treatment program while in prison, but reversing

the trial court’s imposition of thirty years of SBM),21 the provisions governing

recidivists present no opportunity for determinations by the court regarding what

particular risk, if any, is posed by the individual and whether a particular duration

of SBM will, in any meaningful way, serve the State’s interest in combating that risk.

We conclude that in such circumstances, the Fourth Amendment, which “secure[s]

‘the privacies of life’ against ‘arbitrary power’ ” and “place[s] obstacles in the way of

a too permeating police surveillance,” Carpenter, 138 S. Ct. at 2214 (first quoting

21 We refer to this case solely to illustrate how the SBM provisions for other offenders
allow an opportunity for an individualized determination, whereas the SBM provisions that
apply to the class of offenders at issue here provide none.

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Opinion of the Court

Boyd, 116 U.S. at 630; then quoting United States v. Di Re, 332 U.S. 581, 595 (1948)),

prohibits the mandatory imposition of lifetime SBM on this class of individuals.

We note that the remedy we employ here is neither squarely facial nor as-

applied. See Citizens United v. FEC, 558 U.S. 310, 331 (2010) (“[T]he distinction

between facial and as-applied challenges is not so well defined that it has some

automatic effect or that it must always control the pleadings and disposition in every

case involving a constitutional challenge. The distinction . . . goes to the breadth of

the remedy employed by the Court, not what must be pleaded in a complaint.” (citing

United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 477–78 (1995))); Richard

H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113

Harv. L. Rev. 1321, 1321, 1341 (2000) (stating that “[t]here is no single distinctive

category of facial, as opposed to as-applied, litigation” and “facial challenges are less

categorically distinct from as-applied challenges than is often thought”). For

instance, the statutory provisions authorizing lifetime SBM do not delineate between

supervised and unsupervised offenders, nor do they specify the exact type of

monitoring hardware that is to be used or what regulations the Division may adopt

to administer the program and track monitored individuals. Our holding is as-

applied in the sense that it addresses the current implementation of the SBM

program and does not enjoin all of the program’s applications or even all applications

of the specific statutory provision we consider here (authorizing lifetime SBM based

on a finding that an individual is a recidivist) because this provision is still

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Opinion of the Court

enforceable against a recidivist during the period of his or her State supervision and

because our holding does not extend to a recidivist who also has been convicted of an

aggravated offense, or is also an adult convicted of statutory rape or statutory sex

offense with a victim under the age of thirteen, or is also a sexually violent predator.

On the other hand, our holding is facial in that it is not limited to defendant’s

particular case but enjoins application of mandatory lifetime SBM to other

unsupervised individuals when the SBM is authorized based solely on a “recidivist”

finding that does not involve a sexually violent predator classification, an aggravated

offense, or statutory rape or statutory sex offense with a victim under the age of

thirteen by an adult. Thus, our holding has both facial and as-applied characteristics.

See Doe v. Reed, 561 U.S. 186, 194 (2010) (stating that the plaintiffs’ claim “obviously

has characteristics of both” as-applied and facial challenges).

Regardless, the Supreme Court has explained that “[t]he label is not what

matters” and to the extent that a “claim and the relief that would follow . . . reach

beyond the particular circumstances of” the party before the court, the party “must .

. . satisfy our standards for a facial challenge to the extent of that reach.” Id. (citing

United States v. Stevens, 559 U.S. 460, 472–73 (2010)); see, e.g., Patel, 135 S. Ct. at

2450–51 (explaining that a facial challenge requires that “no set of circumstances

exists under which the [statute] would be valid,” or in other words, “that a ‘law is

unconstitutional in all of its applications’ ” (first quoting United States v. Salerno,

481 U.S. 739, 745 (1987) (alteration in original); then quoting Wash. State Grange,

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Opinion of the Court

552 U.S. at 449)). Here the “reach” of our holding extends to applications of

mandatory lifetime SBM of unsupervised individuals authorized solely on a finding

that the individual is a recidivist and without any findings that the individual was

convicted of an aggravated offense, or is an adult convicted of statutory rape or

statutory sex offense with a victim under the age of thirteen, or is a sexually violent

predator. For the reasons stated, including the uncorroborated assertions regarding

the extent of the general threat posed by the recidivism of sex offenders and the lack

of any showing by the State that SBM effectively promotes its interest in combating

that threat, the lack of any individualized assessment of the offender or his offense

characteristics and of any meaningful opportunity for termination of SBM, and the

unique intrusiveness of SBM upon legitimate privacy interests of recidivists, we

conclude that no circumstances exist in which these applications would be valid.

The dissent takes issue with the facial aspect of our holding, contending that

the Court must assess whether lifetime SBM can ever reasonably be applied to an

individual who qualifies as a recidivist “in all circumstances,” including the worst

offenders such as sexually violent predators. According to the dissent, it must be

established that “a statute could never constitutionally require enrollment of a

defendant in lifetime SBM whose conduct meets the statutory definition of a

recidivist.” But the dissent mistakes the reach of our holding and contemplates

circumstances beyond the applications of SBM we consider here. An inquiry into

whether any statute, or any application of a statute, could permissibly require

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Opinion of the Court

enrollment in lifetime SBM of an individual who happens to qualify as a recidivist on

some other basis is separate from an inquiry into whether these specific applications

of the SBM program authorizing a lifetime search of individuals solely because they

are recidivists are permissible—when considering, “the nature and purpose of the

search and the extent to which the search intrudes upon reasonable privacy

expectations.” Grady, 135 S. Ct. at 1371.

In Patel the Supreme Court explained that “when addressing a facial challenge

to a statute authorizing warrantless searches, the proper focus of the constitutional

inquiry is searches that the law actually authorizes, not those for which it is

irrelevant.” 135 S. Ct. at 2451. The SBM statutes include multiple provisions

authorizing lifetime warrantless searches, and here we address a limited application

of one such provision. Specifically, we consider—and limit our holding to—a

warrantless search of an unsupervised individual that is authorized based solely on

a finding that the individual is a recidivist, with no finding (or even any record

evidence) that the individual was convicted of an aggravated offense, or is an adult

convicted of statutory rape or statutory sex offense with a victim under the age of

thirteen, or is a sexually violent predator.22 For the reasons discussed, the State has

22 The dissent chides our decision for not investigating the “most heinous crimes” that
also meet the statutory requirements of recidivists, such as aggravated offenses and sexually
violent predators. We explicitly exclude such applications of SBM that are authorized based
on these classifications from the extent of the reach of our remedy, which is concerned only
with lifetime SBM authorized based solely on the fact that an individual is a recidivist. We
decline to address whether the interests of the State and the individual with respect to sex

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Opinion of the Court

not established that this is a reasonable, categorical basis for the imposition of

lifetime SBM under the Fourth Amendment. Thus, the warrantless search

authorized by this application of the SBM program can never be reasonable, or, in

other words, this portion of the “law is unconstitutional in all of its applications.” Id.

at 2451 (quoting Wash. State Grange, 552 U.S. at 449). The fact that, even with

respect to this same defendant, there may potentially be different statutory provisions

that, in considering “the nature and purpose of the search and the extent to which

the search intrudes upon reasonable privacy expectations,” Grady, 135 S. Ct. at 1371,

may constitutionally authorize a warrantless lifetime search—though we express no

opinion on the validity of such searches at this time—is irrelevant because those

searches do not involve applications of the specific statutory provision that we herein

enjoin. See Patel, 135 S. Ct. at 2451 (“[T]he constitutional ‘applications’ that

offenders who commit these “most heinous crimes” would permissibly authorize mandatory
lifetime SBM under the Fourth Amendment balancing test. Nonetheless, the dissent, in
seeking to enlarge the scope of our holding, ventures outside of the record, considers
background information regarding defendant’s first conviction that was not presented to the
trial court in this case, and then makes its own finding of fact that defendant’s first conviction
was an aggravated offense. While this off-shore fishing expedition is ultimately irrelevant
because it involves information not properly before the Court, we note that it illustrates one
of the flaws in the application we enjoin—that is, the mandatory imposition of lifetime SBM
solely because an individual is a recidivist precludes any individualized assessment of the
offender, in which the State could present, and the trial court could consider, other bases that
may permissibly authorize the search when balancing “the nature and purpose of the search
and the extent to which the search intrudes upon reasonable privacy expectations.” Grady,
135 S. Ct. at 1371; cf. Miller v. Alabama, 567 U.S. 460, 489 (2012) (holding mandatory
sentencing laws imposing life without parole on all juvenile homicide offenders “regardless
of their age and age-related characteristics and the nature of their crimes” facially
unconstitutional).

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Opinion of the Court

petitioner claims prevent facial relief here are irrelevant to our analysis because they

do not involve actual applications of the statute.”).

We reach this decision mindful of our duty, “to declare the law unconstitutional

in a proper case,” which “cannot be declined,” S. Ry. Co. v. Cherokee County, 177 N.C.

87, 88, 97 S.E. 758, 759 (1919), and also to “not undertake to pass upon the validity

of the statute as it may be applied to factual situations materially different from that

before it,” Bulova Watch Co., 285 N.C. at 472, 206 S.E.2d at 145 (citations omitted);

see also, e.g., Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328–29

(2006) (“[W]hen confronting a constitutional flaw in a statute, we try to limit the

solution to the problem. We prefer, for example, to enjoin only the unconstitutional

applications of a statute while leaving other applications in force or to sever its

problematic portions while leaving the remainder intact.” (first citing United States

v. Raines, 362 U.S. 17, 20–22 (1960); then citing United States v. Booker, 543 U.S.

220, 227–29 (2005))). As this Court has previously explained, “[a] statute may be

valid in part and invalid in part. If the parts are independent, or separable, but not

otherwise, the invalid part may be rejected and the valid part may stand, provided it

is complete in itself and capable of enforcement.” State v. Smith, 265 N.C. 173, 179,

143 S.E.2d 293, 298 (1965) (quoting Constantian v. Anson County, 244 N.C. 221, 228,

93 S.E.2d 163, 168 (1956)); see also Pope v. Easley, 354 N.C. 544, 548, 556 S.E.2d 265,

268 (2001) (per curiam) (“[T]he inclusion of a severability clause within legislation

will be interpreted as a clear statement of legislative intent to strike an

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Opinion of the Court

unconstitutional provision and to allow the balance to be enforced independently.”

(citing Fulton Corp. v. Faulkner, 345 N.C. 419, 421[–22], 481 S.E.2d 8, 9 (1997))).

Given that other provisions of the SBM program can be enforced independently of the

specific applications we enjoin here, and given the inclusion of a severability clause

by the General Assembly in the SBM enabling legislation, see ch. 247, sec. 21, 2005

N.C. Sess. Laws (Reg. Sess. 2006) at 1085 (“The provisions of this act are severable.

If any provision is held invalid by a court of competent jurisdiction, the invalidity

does not affect other provisions of the act that can be given effect without the invalid

provision.”), we decline to address, and express no opinion on, the constitutionality of

either the broader statutory framework or other provisions not implicated by the

current appeal. Those provisions, as valid enactments of the General Assembly, are

presumed to be constitutional and remain fully in effect. We are only ruling on the

statute as currently written.

Thus, our decision today does not address whether an individual who is

classified as a sexually violent predator, or convicted of an aggravated offense, or is

an adult convicted of statutory rape or statutory sex offense with a victim under the

age of thirteen may still be subjected to mandatory lifetime SBM—regardless of

whether that individual is also a recidivist. N.C.G.S. §§ 14-208.40A(c), -208.40B(c).

These applications of the SBM program are not before the Court at this time.

Furthermore, we do not address whether an individual who has “committed an

offense that involved the physical, mental, or sexual abuse of a minor” can be

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Opinion of the Court

subjected to SBM for a term of years specified by the court if, following a risk

assessment by the Division, “the court determines that the offender does require the

highest possible level of supervision and monitoring.” Id. §§ 14-208.40A(d)-(e), -

208.40B(c). Moreover, because our holding enjoins application only to unsupervised

individuals, and because of the independent statutory provisions governing

conditions for parole, post-release supervision, and probation, an individual who is a

recidivist is still automatically subject to SBM during the period of State supervision.

See id. §§ 15A-1374(b1) (2017) (stating that “[i]f a parolee is in a category described

by G.S. 14-208.40(a)(1) . . . the [Post-Release Supervision and Parole] Commission

must require as a condition of parole that the parolee submit to [SBM]”), -

1368.4(b1)(6) (2017) (requiring that an individual “in the category described by G.S.

14-208.40(a)(1)” submit to SBM as a condition of post-release supervision), -

1343(b2)(7) (2017) (mandating that an individual “described by G.S. 14-208.40(a)(1)”

submit to SBM as a special condition of probation).

In sum, for the foregoing reasons we conclude that the Court of Appeals erred

in limiting its holding to the constitutionality of the program as applied only to

defendant, when the analysis of the reasonableness of the search applies equally to

anyone in defendant’s circumstances. Because we conclude that the relevant portions

of N.C.G.S. §§ 14-208.40A(c) and 14-208.40B(c) are unconstitutional as applied to all

individuals in the category herein described, we modify and affirm the decision of the

Court of Appeals.

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Opinion of the Court

MODIFIED AND AFFIRMED.

Justice DAVIS did not participate in the consideration or decision of this case.

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Newby, J., dissenting

Justice NEWBY dissenting.

The Supreme Court of the United States held that the North Carolina

statutory scheme for satellite-based monitoring (SBM) of a limited class of sex

offenders effected a Fourth Amendment search and remanded this case for

consideration of whether the search was reasonable. As the Supreme Court stated,

“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.” Grady v. North Carolina, 135 S. Ct.

1368, 1371, 191 L. Ed. 2d 459, 462 (2015) (per curiam). For guidance, the Supreme

Court provided two examples of categorical searches which specifically addressed the

reasonableness inquiry. Id. at 1371, 191 L. Ed. 2d at 462–63 (citing Samson v.

California, 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed. 2d 250 (2006); Vernonia School

Dist. 47J v. Acton, 515 U.S. 646, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995)). This case

raises substantial competing interests: the State’s interest in protecting children

from sexual abuse and an individual’s right to privacy from government monitoring.

The Fourth Amendment’s reasonableness test requires balancing these interests to

determine whether the government’s SBM is a reasonable search of this limited class

of sex offenders.

Using the remand as an opportunity to make a broad policy statement, the

majority, though saying it addresses only one statutory classification, recidivist,

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Newby, J., dissenting

applies an unbridled analysis which understates the crimes, overstates repeat sex

offenders’ legitimate expectations of privacy, and minimizes the need to protect

society from this limited class of dangerous sex offenders. The majority’s sweeping

opinion could be used to strike down every category of lifetime monitoring under the

SBM statute.

The majority appears to pick and choose between the characteristics of as-

applied and facial challenges in finding a statute wholly unconstitutional.

Nonetheless, its analysis does not support its conclusion that the statute is

unconstitutional, either facially or as applied to this defendant. Its approach does not

consider the specific facts of this defendant’s convictions and improperly classifies

this defendant’s crimes under the statute. Creating an “as-applied” category not

found in the statute, the majority fails to conduct the proper constitutionality inquiry,

which requires it to consider lifetime SBM for the highest risk sex offender that falls

within the statute’s recidivist category. To reach its result, the majority minimizes

and mischaracterizes the heinous crimes committed by defendant and others covered

by the statute and diminishes the State’s significant interest in protecting its citizens.

The majority usurps the role of the legislature, denying the legislature’s findings of

the significance of this societal problem and rejecting the efficacy of its solution.

Further, it rejects the facts found by the trial court and finds its own.

Here defendant’s crimes of sexually assaulting children on two occasions make

him a member of two statutory classes of sex offenders—aggravated offenders and

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Newby, J., dissenting

recidivists—whom the General Assembly has determined to be among the most

dangerous to society. Sex offenders who target children pose a unique threat to public

safety, and the State’s interest in protecting children from sexual assault is

paramount. Sadly, these despicable crimes targeting vulnerable children are on the

rise. The General Assembly carefully crafted a regulatory framework to protect the

public by deterring sexual violence. To accomplish this purpose, the statute provides

lifetime SBM for only a small group of the worst sex offenders. While courts must

continue to carefully review the government’s intrusions upon reasonable privacy

interests as search technology develops, here the State’s paramount interest

outweighs the State’s intrusion into defendant’s diminished Fourth Amendment

privacy interests. Because the SBM program is constitutional, both facially and as

applied to defendant, I respectfully dissent.

I. Facts and Procedural History

Defendant’s crimes qualify him as an aggravated sex offender and a violent

recidivist under the statutory framework.1 On 10 May 1996, defendant, then aged

seventeen, committed a sexual assault involving anal sex on a seven-year-old boy

while the victim’s younger brother watched. Defendant was charged with first-degree

sexual offense and taking indecent liberties with children. On 16 January 1997, he

1Because defendant’s status as a recidivist was uncontested, neither party fully
developed the record as to the other lifetime SBM categories applicable to defendant’s crimes.

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Newby, J., dissenting

pled no contest to a second-degree sex offense, defined as “engag[ing] in a sexual act

. . . by force and against the will of the other person,” and received a sentence of

seventy-two to ninety-six months. N.C.G.S. § 14-27.5(a) (2013) (current version at

id. § 14-27.27(a) (Supp. 2018)).

On 5 August 2002, defendant was released from prison. Only seventeen

months later on 6 January 2004, defendant was convicted of not having registered as

a sex offender. The trial court suspended his twenty-one to twenty-six month sentence

and ordered thirty-six months of probation. On 21 September 2004, defendant

received notice of multiple probation violations, and after a hearing, the trial court

granted defendant another chance by placing him on intensive supervision on 16

December 2004. On 23 February 2005, however, defendant’s probation was revoked

because of additional probation violations, and the trial court reinstated defendant’s

active sentence.

Beginning in January 2005, before the revocation of his probation and while

under intensive supervision, defendant, then aged twenty-six, engaged in an illegal

sexual relationship with and impregnated a fifteen-year-old girl. On 13 September

2006, defendant pled guilty to taking indecent liberties with a child, and the State

dismissed a statutory rape charge. Defendant received and served a sentence of

thirty-one to thirty-eight months. The Department of Correction (DOC)

unconditionally discharged defendant on 25 January 2009.

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Newby, J., dissenting

On 12 March 2010, DOC sent defendant a letter giving notice of defendant’s

upcoming SBM determination hearing. Before that hearing could take place,

however, defendant was arrested on 16 July 2010 for again failing to properly comply

with the sex offender registry requirements. On 27 October 2010, defendant pled

guilty and this time received a sentence of twenty-four to twenty-nine months.

Defendant was released from prison on 24 August 2012, and on 14 May 2013, the

trial court conducted defendant’s SBM determination hearing and concluded that

defendant’s two sex crimes were “sexually violent offenses” and that defendant met

the criteria for a recidivist sex offender.2 See id. § 14-208.6(2b), (5) (Supp. 2018). As

required by statute, the trial court ordered defendant to enroll in lifetime SBM. See

id. § 14-208.40B(c) (2017). Significantly, since enrolling in SBM more than six years

ago, defendant has not been charged with any additional offenses.

Defendant appealed the SBM order, and the Court of Appeals affirmed the trial

court order. State v. Grady, 233 N.C. App. 788, 759 S.E.2d 712, 2014 WL 1791246, at

*2–3 (2014) (unpublished). Upon further appeal to the United States Supreme Court,

defendant asserted enrollment in lifetime SBM violates the Fourth Amendment.

2 Though not addressed by the trial court, defendant’s conviction for anally
penetrating a seven-year-old boy constitutes an “aggravated offense” under the statute,
providing an alternate and independent ground for imposing lifetime SBM. See
N.C.G.S § 14.208.6(1a) (Supp. 2018) (An “[a]ggravated offense” is “[a]ny criminal offense that
includes . . . engaging in a sexual act involving vaginal, anal, or oral penetration with a victim
who is less than 12 years old.”). That defendant is an aggravated offender is a conclusion of
law, not a finding of fact, because the underlying facts of and conviction for the assault that
satisfy the statutory criteria were previously found by a trial court.

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Newby, J., dissenting

Concluding that continuous satellite-based location monitoring effects a Fourth

Amendment search, the Supreme Court vacated the lower court’s judgment and

remanded this case to our Court to “examine whether the State’s monitoring program

is reasonable” under the Fourth Amendment. Grady, 135 S. Ct. at 1371, 191 L. Ed.

2d at 463.

The Fourth Amendment protects “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures” by

the government. U.S. Const. amend. IV.

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. See, e.g.,
Samson v. California, 547 U.S. 843, 126 S. Ct. 2193, 165 L.
Ed. 2d 250 (2006) (suspicionless search of parolee was
reasonable); Vernonia School Dist. 47J v. Acton, 515 U.S.
646, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995) (random drug
testing of student athletes was reasonable).

Grady, 135 S. Ct. at 1371, 191 L. Ed. 2d at 462–63. The Supreme Court’s remand

mandate instructed this Court to determine whether lifetime SBM is a reasonable

search for those classified as the most dangerous sex offenders. “[W]e ‘examin[e] the

totality of the circumstances’ to determine whether a search is reasonable within the

meaning of the Fourth Amendment.” Samson, 547 U.S. at 848, 126 S. Ct. at 2197,

165 L. Ed. 2d at 256 (second alteration in original) (quoting United States v. Knights,

534 U.S. 112, 118, 122 S. Ct. 587, 591, 151 L. Ed. 2d 497, 505 (2001)). This

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Newby, J., dissenting

examination must consider the government’s purpose in conducting the search and

the nature of the search balanced with the degree of intrusion upon the recognized

privacy interest. See Grady, 135 S. Ct. at 1371, 191 L. Ed. 2d at 462–63. In assessing

reasonable expectations of privacy, “[t]he Fourth Amendment does not protect all

subjective expectations of privacy, but only those that society recognizes as

‘legitimate.’ What expectations are legitimate varies, of course, with context.”

Vernonia, 515 U.S. at 654, 115 S. Ct. at 2391, 132 L. Ed. 2d at 575 (citing and quoting

New Jersey v. T.L.O., 469 U.S. 325, 337–38, 105 S. Ct. 733, 740–41, 83 L. Ed. 2d 720,

731–32 (1985)).

By citing Samson and Vernonia, the Supreme Court suggested that both the

general reasonableness test and special needs doctrine are pertinent in evaluating

the reasonableness of the SBM statute. See Samson, 547 U.S. at 852 n.3, 126 S. Ct.

at 2199 n.3, 165 L. Ed. 2d at 259 n.3 (applying a general reasonableness test);

Vernonia, 515 U.S. at 653, 115 S. Ct. at 2391, 132 L. Ed. 2d at 574 (applying the

special needs doctrine). Though involving different criteria, both analyses require the

balancing test specified in the remand order to determine whether the statute at issue

here is valid. See Samson, 547 U.S. at 848, 126 S. Ct. at 2197, 165 L. Ed. 2d at 256;

Vernonia, 515 U.S. at 652–53, 115 S. Ct. at 2390, 132 L. Ed. 2d at 574.

In Samson the Supreme Court applied “general Fourth Amendment

principles” to evaluate the reasonableness of a statute that required parolees to agree

to any warrantless search, without cause, at any time. 547 U.S. at 846, 853 n.3, 126

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Newby, J., dissenting

S. Ct. at 2196, 2200 n.3, 165 L. Ed. 2d at 255, 260 n.3. The Supreme Court evaluated

the search’s reasonableness “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.” Id. at 848, 126 S. Ct.

at 2197, 165 L. Ed. 2d at 256 (quoting Knights, 534 U.S. at 118–19, 122 S. Ct. at 591,

151 L. Ed. 2d at 505). The Supreme Court first concluded that parolees “have severely

diminished expectations of privacy by virtue of their status alone.” Id. at 852, 126

S. Ct. at 2199, 165 L. Ed. 2d at 259. Then viewing that diminished privacy in the

totality of the circumstances, the Supreme Court concluded the warrantless search

did not intrude upon “an expectation of privacy that society would recognize as

legitimate,” despite the unlimited breadth of the right to search and regardless of the

crime of conviction. Id. at 852, 126 S. Ct. at 2199, 165 L. Ed. 2d at 259. Therefore,

balancing no intrusion upon any reasonable expectation of privacy against the State’s

substantial interests in deterring recidivism, the Supreme Court found the statute

constitutional under the Fourth Amendment. Id. at 853, 857, 126 S. Ct. at 2200, 2202,

165 L. Ed. 2d at 259–60, 262.

In Vernonia the Supreme Court applied the same balancing test for a

warrantless search “when special needs, beyond the normal need for law

enforcement, ma[d]e the warrant . . . requirement impracticable.” 515 U.S. at 653,

115 S. Ct. at 2391, 132 L. Ed. 2d at 574 (quoting Griffin v. Wisconsin, 483 U.S. 868,

873, 107 S. Ct. 3164, 3168, 97 L. Ed. 2d 709, 717 (1987)). A school policy required that

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Newby, J., dissenting

high school athletes consent to random drug screenings in order to participate in

school athletics. Id. at 650, 115 S. Ct. at 2389, 132 L. Ed. 2d at 572. The Court

determined that student athletes had diminished expectations of privacy because the

school had a special relationship with the students (in loco parentis) and because

“[p]ublic school locker rooms [where the drug screenings take place] . . . are not

notable for the [bodily] privacy they afford.” Id. at 655–57, 115 S. Ct. at 2391–93, 132

L. Ed. 2d at 575–77. Next, the Court examined the intrusion upon privacy by the drug

screening process and determined it had a “negligible” effect on the defendant’s

privacy interests. Id. at 658, 115 S. Ct. at 2393, 132 L. Ed. 2d at 578. Moreover, the

State’s important interest in deterring drug use among teenagers, particularly for the

narrow, at-risk category of student athletes, justified the search under a Fourth

Amendment reasonableness analysis. Id. at 661–62, 665, 115 S. Ct. at 2395, 2397,

132 L. Ed. 2d at 579–80, 582.

On remand in the present case, this Court further remanded this matter to the

trial court to proceed according to the United States Supreme Court’s mandate. The

trial court held a new hearing on 16 June 2016. The State introduced evidence that

defendant’s GPS ankle monitor weighs less than nine ounces. The monitor holds a

charge for about three days, but offenders are encouraged to charge the monitor two

hours per day. A “beacon” set up in defendant’s home helps preserve the monitor’s

battery life when defendant is in the beacon’s range. A probation officer reviews the

monitor and the beacon every three months to ensure the equipment is operating

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Newby, J., dissenting

correctly. Unsupervised offenders, like defendant, have no direct contact with

probation officers except for quarterly reviews. The monitor provides continuous

location tracking of defendant. The SBM system displays defendant’s location

information as a series of points with arrows that are overlaid onto a map, and a

probation officer can view the information as a still image or an image in motion.

Officers have access to defendant’s live location as well as historic location data for

the preceding six months. As of 30 June 2015, only two probation officers were

responsible for monitoring the data from over five hundred unsupervised offenders.

In its order, the trial court again determined that defendant’s crimes were

“sexually violent offenses,” which required him to register as a sex offender, and that

he was a recidivist, which met the criteria for lifetime SBM. In assessing the

reasonableness of the search, the trial court noted the State’s evidence characterizing

the ankle monitor as small, nonintrusive, and “not prohibit[ing] any defendant from

traveling, working, or otherwise enjoying the ability to legally move about as he

wishes.” The trial court found that “[t]he ankle monitor does not monitor or reveal

the activities of the offender—it merely monitors his location.”

While the trial court noted defendant’s submission of the State’s policies

governing SBM and multiple studies of recidivism rates, it found persuasive the long

line of United States Supreme Court decisions acknowledging the special threat of

repeat sex offenders. The trial court stated:

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Newby, J., dissenting

The United States Supreme Court has long
recognized the dangers of recidivism in cases of sex
offenders. Smith v. Doe, 538 U.S. 84, 103 (2003) (“The risk
of recidivism posed by sex offenders is frightening and
high.”); McKune v. Lile, 536 U.S. 24, 34 (2002) (“[s]ex
offenders are a serious threat [ ] in this nation . . . . When
convicted sex offenders reenter society, they are much more
likely than any other type of offender to be rearrested for a
new rape or sexual assault.”). Additionally, it is within the
purview of state governments to recognize and reasonably
react to a known danger in order to protect its citizens.
Samson v. California, 547 U.S. 843, 848 (2006) (“This
Court has acknowledged the grave safety concerns that
attend recidivism” and “the Fourth Amendment does not
render the States powerless to address these concerns
effectively.”).

(second alteration in original). Ultimately, the trial court concluded “that based on

the totality of the circumstances . . . [SBM] of the defendant is a reasonable search.

The Court has considered the defendant’s argument that the [SBM] statute is facially

unconstitutional. The Court rejects this argument and finds that the statute is

constitutional on its face.”3

When substantial and immediate harm threatens children, a State may take

proactive, programmatic measures to prevent that harm. See Bd. of Educ. v. Earls,

3 At the various stages throughout the appellate process, it has been unclear whether
defendant is making a facial or an as-applied challenge. Generally, it appears defendant has
asserted a facial challenge or has attempted to articulate a hybrid of facial and as-applied
challenges. On remand from the United States Supreme Court, the trial court explicitly found
the statute to be constitutional on its face, thereby indicating that defendant’s argument, at
least as understood by the trial court, was that the statute was facially unconstitutional. The
Court of Appeals, however, held that the State failed to meet its evidentiary burden that the
statute was reasonable as applied to defendant. See State v. Grady, 817 S.E.2d 18, 28 (N.C.
Ct. App. 2018). Defendant argues both facial and as-applied invalidity in his brief here.

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Newby, J., dissenting

536 U.S. 822, 835–38, 122 S. Ct. 2559, 2567–69, 153 L. Ed. 2d 735, 747–49 (2002);

Vernonia, 515 U.S. at 658 n.2, 115 S. Ct. at 2393 n.2, 132 L. Ed. 2d at 578 n.2 (noting

the search at issue was a “prophylactic” “blanket search” designed to protect students

and deter drug use). The General Assembly has clearly stated the purpose of North

Carolina’s “Sex Offender and Public Protection Registration Programs” is to

proactively protect children and others from dangerous sex offenders:

The General Assembly recognizes that sex offenders
often pose a high risk of engaging in sex offenses even after
being released from incarceration or commitment and that
protection of the public from sex offenders is of paramount
governmental interest.

The General Assembly also recognizes that persons
who commit certain other types of offenses against
minors . . . pose significant and unacceptable threats to the
public safety and welfare of the children in this State and
that the protection of those children is of great
governmental interest. Further, 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.

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Newby, J., dissenting

N.C.G.S. § 14-208.5 (2017).

Likewise, the United States Supreme Court has recognized that “ ‘sexual abuse

of a child is a most serious crime and an act repugnant to the moral instincts of a

decent people.’ And it is clear that a legislature ‘may pass valid laws to protect

children’ and other victims of sexual assault ‘from abuse.’ ” Packingham v. North

Carolina, 137 S. Ct. 1730, 1736, 198 L. Ed. 2d 273, 281 (2017) (quoting Ashcroft v.

Free Speech Coal., 535 U.S. 234, 244–45, 122 S. Ct. 1389, 1399, 152 L. Ed. 2d 403,

417 (2002)). Furthermore, “ ‘[t]he victims of sex assault are most often juveniles,’ and

‘[w]hen convicted sex offenders reenter society, they are much more likely than any

other type of offender to be rearrested for a new rape or sexual assault.’ ” Conn. Dep’t

of Pub. Safety v. Doe, 538 U.S. 1, 4, 123 S. Ct. 1160, 1163, 155 L. Ed. 2d 98, 103 (2003)

(quoting McKune v. Lile, 536 U.S. 24, 32–33, 122 S. Ct. 2017, 2024, 153 L. Ed. 2d 47,

56–57 (2002) (plurality opinion)). The Supreme Court has emphasized the magnitude

of the harm inflicted upon victims, noting a sexual assault on a child “has a

permanent psychological, emotional, and sometimes physical impact on the child.”

Kennedy v. Louisiana, 554 U.S. 407, 435, 128 S. Ct. 2641, 2658, 171 L. Ed. 2d 525,

548 (2008) (citations omitted); see also id. at 467–68, 128 S. Ct. at 2676–77, 171 L.

Ed. 2d at 568–69 (Alito, J., dissenting) (discussing the long-term developmental

problems sexually abused children can experience (citations omitted)).

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Newby, J., dissenting

Thus, the General Assembly has determined violent sex offenders should be

deterred from committing additional sex offenses. To further its paramount interest

in protecting the public—especially children—from sex offenders, the General

Assembly enacted various programs to monitor and deter sex offenders after their

release. For example, “North Carolina, like every other state in the nation, enacted a

sex offender registration program to protect the public from the unacceptable risk

posed by convicted sex offenders.” State v. Bryant, 359 N.C. 554, 555, 614 S.E.2d 479,

480 (2005), superseded on other grounds by statute, An Act to Protect North Carolina’s

Children/Sex Offender Law Changes, Ch. 247, Sec. 8.(a), 2005 N.C. Sess. Laws (Reg.

Sess. 2006) 1065, 1070. See generally Smith v. Doe, 538 U.S. 84, 103, 123 S. Ct. 1140,

1145, 155 L. Ed. 2d 164, 174–75 (2003). Similarly, with the encouragement of

Congress, forty-eight states and the District of Columbia have electronic monitoring

available for some sex offenders.4 See 42 U.S.C. § 16981 (2012) (current version at 34

4 See 28 C.F.R. § 2.204(b)(2)(iii) (2018) (permitting electronic tracking in Washington,
D.C.); Ala. Code § 15-20A-20 (LexisNexis 2018); Alaska Stat. § 12.55.027(d), (g)(3) (2018);
Ariz. Rev. Stat. Ann. § 13-902(G) (Supp. 2018); Ark. Code Ann. § 12-12-923 (2016); Cal. Penal
Code § 3004(b) (West Supp. 2019); Colo. Rev. Stat. §§ 18-1.3-204(2)(a)(XIV.5), -1007(2)
(2018); Conn. Gen. Stat. Ann. § 53a-30(a)(14) (West Supp. 2019); Del. Code Ann. tit.
11, § 4121(u) (2015); Fla. Stat. Ann. § 948.30(2)-(3) (West Supp. 2019); Ga. Code
Ann. § 42-1-14(e) (Supp. 2017); Haw. Rev. Stat. Ann. § 706-624(2)(p) (LexisNexis Supp.
2018); Idaho Code § 18-8308(3) (2016); 730 Ill. Comp. Stat. Ann. 5/5-8A-6 (West Supp. 2019);
Ind. Code Ann. § 11-13-3-4(j) (LexisNexis Supp. 2018); Iowa Code Ann. § 692A.124(1) (West
2016); Kan. Stat. Ann. § 22-3717(u) (Supp. 2018); La. Stat. Ann. § 15:560.4(A) (2012); Me.
Rev. Stat. Ann. tit. 17-A, § 1204(2-A)(N) (Supp. 2018); Md. Code Ann., Crim.
Proc. § 11-723(d)(3)(i) (LexisNexis 2018); Mass. Ann. Laws ch. 265, § 47 (LexisNexis Supp.
2019); Mich. Comp. Laws Ann. § 750-520n(1) (West Supp. 2019); Minn. Stat.
Ann. § 609.135(5a)(b)(8), (5a)(c) (West 2018); Miss. Code Ann. § 99-19-84 (2015); Mo. Ann.

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Newby, J., dissenting

U.S.C.A. § 20981 (West 2017)) (authorizing grants to states that implement twenty-

four-hour, continuous GPS monitoring programs for sex offenders).

North Carolina’s “sex offender monitoring program . . . uses a continuous

satellite-based monitoring system” for narrowly and categorically defined classes of

sex offenders who present a significant enough threat of reoffending to “require[ ] the

highest possible level of supervision and monitoring.” N.C.G.S. § 14-208.40(a) (2017).

The four categories of offenders who require continuous lifetime SBM to protect

public safety are (1) sexually violent predators, (2) recidivists, (3) aggravated

offenders, and (4) adults convicted of statutory rape or a sex offense with a victim

under the age of thirteen. Id. § 14-208.40A(c) (2017). A “sexually violent predator” is

a person who “has been convicted of a sexually violent offense,” such as rape or incest,

and “who suffers from a mental abnormality or personality disorder,” as determined

by a board of experts, that makes the person likely to purposely foster relationships

Stat. § 217.735(4) (West Supp. 2019); Mont. Code Ann. § 46-18-206 (2017); Neb. Rev. Stat.
Ann. § 83-174.03(4)(g) (LexisNexis 2019); Nev. Rev. Stat. Ann. § 176A.410(2)(b) (LexisNexis
2016); N.H. Rev. Stat. Ann. § 651:2(V)(b) (LexisNexis Supp. 2018); N.J. Stat.
Ann. § 30:4-123.92 (West 2008); N.M. Stat. Ann. § 31-21-10.1(E) (Supp. 2018); N.Y. Penal
Law § 65.10(4), (5-a) (McKinney Supp. 2019); N.C.G.S. § 14-208.40A(c) (2017); N.D. Cent.
Code § 12.1-32-07(3)(f) (Supp. 2017); Ohio Rev. Code Ann. § 2929.13(L) (West Supp. 2019);
Okla. Stat. Ann. tit. 22, § 991a(A)(12) (West Supp. 2019); Or. Rev. Stat. § 144.103(2)(c)
(2017); 42 Pa. Stat. and Cons. Stat. Ann. § 9799.30 (West 2014); 11 R.I. Gen.
Laws § 11-37-8.2.1 (Supp. 2018); S.C. Code Ann. § 23-3-540 (Supp. 2018); S.D. Codified
Laws § 24-15A-24 (2013); Tenn. Code Ann. § 40-39-303 (Supp. 2018); Tex. Code Crim. Proc.
Ann. art. 42A.301(b)(16) (West 2018); Utah Code Ann. § 77-18-1(8)(d) (LexisNexis Supp.
2018); Va. Code Ann. § 19.2-303 (2015); Wash. Rev. Code Ann. § 9.94A.704(5)(b) (West 2019);
W. Va. Code Ann. § 62-11D-3(a) (LexisNexis 2014); Wis. Stat. Ann. § 301.48 (West 2019);
Wyo. Stat. Ann. § 7-13-1102(b)(i) (2017).

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Newby, J., dissenting

with the intent of sexual victimization or to engage in sexually violent offenses

against strangers. Id. §§ 14-208.6(5)-(6), -208.20 (2017 & Supp. 2018). Second,

“recidivists” have had at least two “reportable convictions.” Id. § 14-208.6(2b).

Reportable convictions are serious crimes, including “sexually violent offenses” and

various “offense[s] against a minor,” such as kidnapping. Id. § 14-208.6(1m), (4)(a)

(Supp. 2018). Third, perpetrators of aggravated offenses have convictions for

“engaging in a sexual act involving vaginal, anal, or oral penetration” either (1)

through use or threat of force or (2) with a child under twelve years old.

Id. § 14-208.6(1a) (Supp. 2018). The fourth category includes convictions of any sex

act by a person over eighteen years old against any victim under thirteen years old.

Id. § 14-27.28 (2017).

In short, mandatory SBM applies only to a small subset of individuals who

commit the most serious sex crimes or are repeat offenders. The General Assembly

has determined certain convicted sex offenders—namely sexually violent predators,

recidivists, perpetrators of aggravated offenses, and adults who sexually victimize

children under thirteen years old—“pose a high risk of engaging in sex offenses even

after being released from incarceration . . . and that protection of the public from sex

offenders is of paramount governmental interest.” Id. § 14-208.5. Accordingly, the

statute categorically requires the trial court to “order the offender to enroll in a

satellite-based monitoring program for life.” Id. § 14-208.40A(c). Though the program

is commonly referred to as “lifetime” monitoring, one year after a defendant completes

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Newby, J., dissenting

his sentence, probation, or parole, the defendant may petition the Post-Release

Supervision and Parole Commission for termination of enrollment.

Id. §§ 14-208.41(a), -208.43 (2017). The defendant must show he has not been

convicted of any additional qualifying convictions, has substantially complied with

the SBM and registration programs, and “is not likely to pose a threat to the safety

of others.” Id. § 14-208.43(c).

II. The Majority’s Holding

The majority “hold[s] that the application of the relevant portions of

N.C.G.S. §§ 14-208.40A(c) and 14-208.40B(c) to individuals in the same category as

defendant, under which these individuals are required to submit to a mandatory,

continuous, nonconsensual search by lifetime satellite-based monitoring, violates the

Fourth Amendment to the United States Constitution. The category to which this

holding applies includes only those individuals who are not on probation, parole, or

post-release supervision; who are subject to lifetime SBM solely by virtue of being

recidivists as defined by the statute; and who have not been classified as a sexually

violent predator, convicted of an aggravated offense, or are adults convicted of

statutory rape or statutory sex offense with a victim under the age of thirteen.” Thus,

the majority “conclude[s] that the Court of Appeals erred in limiting its holding to the

constitutionality of the program as applied only to defendant, when the analysis of

the reasonableness of the search applies equally to anyone in defendant’s

circumstances.”

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Newby, J., dissenting

It is undisputed that defendant is a recidivist. To qualify as a recidivist under

the statute, a defendant must have multiple “reportable convictions.”

Id. § 14-208.6(2b). For example, reportable convictions include comparatively minor

sex crimes where the victim is not physically harmed, such as secretly photographing

a person for the purpose of gratifying sexual desires (a Class I felony) or solicitation

of a child using a computer to commit a sex act (a Class H felony), as well as those

society would consider as the worst sex crimes, such as first-degree forcible rape (a

Class B1 felony) and child sex trafficking (a Class B2 felony). See id. § 14-208.6(4)(a),

(d). If a defendant is convicted of at least two reportable offenses, he qualifies as a

recidivist, and the trial court must order the defendant’s enrollment in lifetime SBM.

Considering the various crimes within the statute’s purview, a proper constitutional

analysis requires an understanding of the distinction between a facial challenge to

the statute and a challenge only as applied to defendant. An as-applied challenge

would maintain that the statute is overly broad by including defendant within the

recidivist classification, whereas a facial challenge asserts that the statute operates

unconstitutionally as to all possible defendants who qualify as recidivists.

The majority holds SBM for any unsupervised defendant falling within the

recidivist category is unconstitutional without stating why its analysis applies

precisely, but only, to those in this category. Despite its holding, the majority’s logic

seems to concede the SBM statute’s constitutionality. Like those crimes of many other

violent sex offenders, defendant’s crimes fit two statutory categories: recidivist and

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aggravated offender. The majority suggests that SBM is unconstitutional for the

recidivist category but not for the aggravated offender. Concluding SBM is

constitutional for an aggravated offender who is also a recidivist undermines the

holding that the entire recidivist category is unconstitutional.

III. Reasonableness As Applied to Defendant

An as-applied challenge concedes a statute’s general constitutionality but

instead “claim[s] that a statute is unconstitutional on the facts of a particular case or

in its application to a particular party.” As-Applied Challenge, Black’s Law Dictionary

(10th ed. 2014). The majority fails to conduct such an analysis. Instead of focusing on

the individualized facts of defendant’s case as required by an as-applied challenge,

the majority generally uses defendant’s “circumstances” to create its category

encompassing all unsupervised recidivist sex offenders, regardless of the individual

offenses represented. Cf. Graham v. Florida, 560 U.S. 48, 91–96, 130 S. Ct. 2011,

2039–42, 176 L. Ed. 2d 825, 856–60 (2010) (Roberts, C.J., concurring in judgment)

(promoting a fact-based, instead of a categorical, approach for as-applied challenges).

Thus, the majority facially strikes down N.C.G.S. § 14-208.40A(b)(ii) and related

provisions that require lifetime SBM for recidivists. See City of Los Angeles v. Patel,

135 S. Ct. 2443, 2457–58, 192 L. Ed. 2d 435, 453 (2015) (Scalia, J., dissenting)

(remarking that “the reasoning of a decision may suggest that there is no permissible

application of a particular statute . . . . [and] in this sense, the facial invalidation of a

statute is a logical consequence of the Court’s opinion, [even if it is] not the immediate

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effect of its judgment” (citation omitted)). An as-applied challenge should focus on the

specific facts underlying a defendant’s convictions, and a defendant’s as-applied

challenge fails if the defendant’s conduct is the targeted harm the General Assembly

intended to curtail. See Bryant, 359 N.C. at 565, 614 S.E.2d at 486 (stressing that

“the role of the legislature is to balance the weight to be afforded to disparate interests

and to forge a workable compromise among those interests” and that “[t]he role of the

Court is not to sit as a super legislature and second-guess the balance struck by the

elected officials” (quoting Henry v. Edmisten, 315 N.C. 474, 491, 340 S.E.2d 720, 731

(1986))). If, however, the statute is overly broad as applied to defendant’s specific

circumstances, the statute is unconstitutional as applied to him. See Britt v. State,

363 N.C. 546, 549–50, 681 S.E.2d 320, 322–23 (2009).

In Britt this court analyzed an as-applied challenge to a new statute that

prohibited the plaintiff from owning a firearm because of his nonviolent, drug-related

felony conviction decades earlier. Id. at 547, 681 S.E.2d at 321. The plaintiff complied

with the statute and then challenged its constitutionality as applied to him. Id. at

548–49, 681 S.E.2d at 322. After noting his longstanding law-abiding history and,

when allowed, his lawful and peaceful possession of firearms, this Court restored the

plaintiff’s right to possess a firearm. Id. at 550, 681 S.E.2d at 323 (“[I]t is

unreasonable to assert that a nonviolent citizen who has responsibly, safely, and

legally owned and used firearms for seventeen years is in reality so dangerous that

any possession at all of a firearm would pose a significant threat to public safety.”).

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In other words, by examining both the plaintiff’s previous conviction and subsequent

actions, this Court determined that the statute was overly broad and thus

unconstitutional as applied to the plaintiff.

Here the statute is not overly broad as applied to defendant because it appears

he, as a consequence of his aggravated and repeated sex crimes, poses exactly the

public danger the legislature sought to address. He forcibly sodomized a seven-year-

old boy with another child watching and, as a result, spent six years in prison. Upon

release, defendant failed to register as a sex offender and was placed on probation.

He received notice of multiple probation violations, and after a hearing, the trial court

gave defendant a second chance by placing him on intensive supervision. While

subject to intensive supervision and less than three years after his release from

prison, defendant began an illegal sexual relationship with a minor, whom he

impregnated. After serving his subsequent prison sentence, defendant again failed to

comply with sex offender registry requirements. His resulting two-year prison

sentence delayed his initial SBM hearing until he was again released. Since 1996,

when not incarcerated, the longest period of time defendant has not committed a sex

crime against a minor is the six years (from 2013 to the present) he has been enrolled

in SBM. Thus, his underlying convictions for sexually violent offenses and subsequent

actions contravene any as-applied argument, for defendant sits squarely within the

class of aggravated and recidivist offenders the General Assembly intended to

address.

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IV. Facial Reasonableness of the Statute

A facial challenge maintains the statute “always operates unconstitutionally.”

Facial Challenge, Black’s Law Dictionary (10th ed. 2014). “A facial challenge to a

legislative Act is, of course, the most difficult challenge to mount successfully, since

the challenger must establish that no set of circumstances exists under which the Act

would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100,

95 L. Ed. 2d 697, 707 (1987); see also Patel, 135 S. Ct. at 2449, 2451, 192 L. Ed. 2d at

443, 446 (majority opinion) (applying the Salerno standard to a Fourth Amendment

facial challenge). In other words, to succeed in a facial challenge, defendant must

shoulder the heavy burden of showing that the statute’s SBM requirement could

never be reasonably applied to any offender who falls within the statutorily defined

categories. See Patel, 135 S. Ct. at 2451, 192 L. Ed. 2d at 445 (“[A] [party] must

establish that a ‘law is unconstitutional in all of its applications.’ ” (quoting Wash.

State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S. Ct. 1184,

1190, 170 L. Ed. 2d 151, 160 (2008))). In the present case, defendant therefore must

prove a statute could never constitutionally require enrollment of a defendant in

lifetime SBM whose conduct meets the statutory definition of a recidivist. In other

words, to support its holding, the majority must show that lifetime SBM is

unreasonable for the most heinous crimes that meet the statutory requirements of

recidivists and determine if SBM is unreasonable as to every defendant who

committed those crimes.

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Even though, as discussed, defendant’s history of repeated sexual assaults on

children places him squarely within the class of those identified by the legislature as

requiring SBM to deter their behavior, defendant’s behavior here does not encompass

all possible scenarios in which the lifetime SBM statute may apply to recidivists. To

support its holding, the majority must show that lifetime SBM is unreasonable for

everyone who meets the recidivist classification in all circumstances, including the

worst violent offenders. Of note, the United States Supreme Court has upheld civil

commitment statutes targeting some of these sexually violent predators. See Kansas

v. Hendricks, 521 U.S. 346, 350, 117 S. Ct. 2072, 2076, 138 L. Ed. 2d 501, 508 (1997).

Thus, the balancing test must include the incremental impact on reasonable privacy

interests of those for whom civil commitment may be available.

Under both Samson’s test for individuals with diminished expectations of

privacy and Vernonia’s special needs doctrine, the lifetime SBM statute is facially

constitutional. A Seventh Circuit panel applied the mandate provided by the United

States Supreme Court in Grady to an SBM statute “functionally identical to” North

Carolina’s statute. Belleau v. Wall, 811 F.3d 929, 939 (7th Cir. 2016) (Flaum, J.,

concurring). The court held, inter alia, that lifetime SBM constituted a reasonable

search under Grady. Id. at 936–37 (majority opinion).

Belleau was a sexually violent predator recently released from civil

commitment. Id. at 931. The court first noted Belleau’s privacy interests were

“severely curtailed as a result of his criminal activities” even though he was not on

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parole or probation because “persons who have demonstrated a compulsion to commit

very serious crimes . . . must expect to have a diminished right of privacy as a result

of the risk of their recidivating—and . . . the only expectation of privacy that the law

is required to honor is an ‘expectation . . . that society is prepared to recognize as

reasonable.’ ” Id. at 935 (third alteration in original) (quoting Katz v. United States,

389 U.S. 347, 361, 88 S. Ct. 507, 516, 19 L. Ed. 2d 576, 588 (1967) (Harlan, J.,

concurring)). The majority discussed at length the dangers and underreporting of

child sexual assaults as well as the high rates of recidivism among convicted sex

offenders. Id. at 932–34. Thus, the court concluded the “incremental effect of the

challenged statute” on Belleau’s privacy was “slight,” and the search was reasonable

under the Fourth Amendment. Id. at 934–35, 936–37.

In a concurring opinion, Judge Flaum likewise concluded that the lifetime SBM

statute did not violate the Fourth Amendment. In doing so he examined “two threads

of Fourth Amendment case law: searches of individuals with diminished expectation

of privacy [as in Samson] . . . and ‘special needs’ searches [as in Vernonia].” Id. at 939

(Flaum, J., concurring). Because the monitoring program’s primary purpose was to

reduce recidivism, Judge Flaum determined the program served a valid special need;

nevertheless, a complete analysis of the search also must balance the public interest

and the intrusion on reasonable privacy interests in a context-specific inquiry. Id. at

939–40. Judge Flaum first recognized the government’s strong interest in protecting

juveniles from sex offenders. Id. at 940 (citing Lile, 536 U.S. at 32–33, 122 S. Ct. at

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Newby, J., dissenting

2024, 153 L. Ed. 2d at 56–57 (plurality opinion)). While acknowledging the significant

privacy interest at issue, id. (citing Riley v. California, 573 U.S. 373, 396, 134 S. Ct.

2473, 2490, 189 L. Ed. 2d 430, 447–48 (2014)), he opined that “the weight of this

privacy interest [was] somewhat reduced by Belleau’s diminished expectation of

privacy. . . . [because] a felon’s expectation of privacy lies somewhere in-between that

of a parolee or probationer and an ordinary citizen,” id. at 940–41 (citations omitted).

Judge Flaum concluded that because the intrusion upon this diminished privacy was

“relatively limited in its scope” when compared with the State’s purpose, the SBM

statute constituted a reasonable Fourth Amendment search. Id. at 941.

Here, as did the trial court, I agree with the reasoning of the Seventh Circuit

and would hold North Carolina’s SBM program effects a reasonable search. First,

lifetime SBM enrollees have reduced privacy expectations given the nature of their

acts and the resulting convictions. Second, the incremental intrusion upon this

reduced privacy is slight. Third, the State’s interest in, and its special need for,

deterring recidivist violent sex offenders is paramount. Finally, this governmental

interest outweighs the intrusion upon an SBM enrollee’s diminished expectation of

privacy in a context-specific balancing test that considers the totality of the

circumstances.

The Seventh Circuit’s analysis is persuasive here because, for all

considerations relevant to a Fourth Amendment analysis, the Wisconsin SBM statute

is “functionally identical to” the North Carolina SBM statute. Id. at 939. Both

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Newby, J., dissenting

statutes require continuous lifetime SBM for a categorically defined group of

convicted sex offenders. See N.C.G.S. § 14-208.40; Wis. Stat. Ann. § 301.48(2) (West

2019). The civil SBM programs may apply to unsupervised offenders after they have

completed parole, probation, or civil commitment. See Belleau, 811 F.3d at 932

(majority opinion) (recognizing that the offender was “not on bail, parole, probation,

or supervised release”); State v. Grady, 817 S.E.2d 18, 24 (N.C. Ct. App. 2018)

(“Unsupervised offenders . . . are statutorily required to submit to SBM . . . .”).

Moreover, in one notable difference, the Wisconsin statute prohibits certain offenders

from ever requesting termination of lifetime SBM and does not allow any offender to

petition for termination for at least twenty years, but the North Carolina statute

allows a person to apply for termination of “lifetime” SBM beginning one year

following the offender’s release from prison and completion of any post-release

supervision. Compare Wis. Stat. Ann. § 301.48(6)(b)(2), (3), with N.C.G.S.

§ 14-208.43(a).

An analysis of facial constitutionality starts with defining the scope of the

privacy interests involved. “[I]t is beyond dispute that convicted felons do not enjoy

the same measure of constitutional protections, including the expectation of privacy

under the Fourth Amendment, as do citizens who have not been convicted of a felony.”

State v. Bowditch, 364 N.C. 335, 349–50, 700 S.E.2d 1, 11 (2010) (citations omitted);

see also Vernonia, 515 U.S. at 654, 115 S. Ct. at 2391, 132 L. Ed. 2d at 575 (“[T]he

legitimacy of certain privacy expectations vis-à-vis the State may depend upon the

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individual’s legal relationship with the State.”). Because of their own conduct and

propensities that led to their underlying convictions and statutory classifications,

felony sex offenders face a plethora of rights restrictions, specifically a reduction in

their Fourth Amendment privacy expectations “that society recognizes as

‘legitimate.’ ” Vernonia, 515 U.S. at 654, 115 S. Ct. at 2390–91, 132 L. Ed. 2d at 575

(quoting T.L.O., 469 U.S. at 338, 105 S. Ct. at 741, 83 L. Ed. 2d at 732).

For example, restrictions on firearms possession and voting rights evince a

felon’s reduced constitutional protections. Cf. District of Columbia v. Heller, 554 U.S.

570, 626, 128 S. Ct. 2783, 2816–17, 171 L. Ed. 2d 637, 678 (2008) (affirming that the

“longstanding prohibitions on the possession of firearms by felons” survive Second

Amendment scrutiny); Richardson v. Ramirez, 418 U.S. 24, 56, 94 S. Ct. 2655, 2671,

41 L. Ed. 2d 551, 572 (1974) (holding that disenfranchisement of convicted felons who

had completed their sentences did not violate the Equal Protection Clause).

Furthermore, the sex offender registration requirements of all fifty states manifest a

diminished expectation of privacy for sex offenders. Cf. Smith, 538 U.S. at 89–90, 123

S. Ct. at 1145, 155 L. Ed. 2d at 174–75. Society clearly does not afford violent sex

offenders a full legitimate expectation of location-based privacy, as exemplified by the

limitations on sex offenders’ movements. See N.C.G.S. § 14-208.18(a)(1), (4) (2017)

(prohibiting sex offenders from being present at “any place intended primarily for the

use, care, or supervision of minors, including, but not limited to, schools, children’s

museums, child care centers, nurseries, and playgrounds,” as well as the State Fair);

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Newby, J., dissenting

Standley v. Town of Woodfin, 362 N.C. 328, 333, 661 S.E.2d 728, 732 (2008)

(upholding prohibition on convicted sex offenders entering public parks). Felony sex

offenders may also be barred from certain occupations and professions, a harsh

sanction that limits them from choosing where they work and what type of livelihood

they may pursue. E.g., N.C.G.S. § 84-28(b)(1), (c) (2017) (attorney); id. § 90-14(a)(7),

(c) (2017) (medical doctor); id. § 93-12(9)(a) (2017) (certified public accountant);

id. § 93A-6(b)(2) (2017) (real estate broker). Thus, while recidivist sex offenders have

a somewhat greater expectation of privacy than a probationer or parolee, they do not

have the same expectations of privacy as members of the general public in light of

their prior offenses.5,6 See Belleau, 811 F.3d at 934–35 (majority opinion) (“Focus[ing]

5 The majority asserts that “except as reduced for possessing firearms and by
providing certain specific information and materials to the sex offender registry, defendant’s
constitutional privacy rights, including his Fourth Amendment expectations of privacy, have
been restored.” The majority’s logic is backwards. Defendant’s expectation of privacy is not
reduced “by” the sex offender registry; rather, the sex offender registry may require
defendant to provide information because his privacy rights are reduced. The majority offers
no explanation for why the scope of diminished privacy expectations is restricted to only those
reductions implicated by firearm possession and the sex offender registry. Rather, the actual
issue is what reductions in reasonable expectations of privacy does society recognize as
legitimate for recidivist violent sex offenders. See Vernonia, 515 U.S. at 654, 115 S. Ct. at
2391, 132 L. Ed. 2d at 575 (quoting T.L.O., 469 U.S. at 338, 105 S. Ct. at 741, 83 L. Ed. 2d at
732).
6 In Carpenter v. United States, the Supreme Court held that, for citizens without a
reduced expectation of privacy, government tracking of a suspect’s location without a warrant
substantially intrudes upon reasonable privacy rights. 138 S. Ct. 2206, 2217, 201 L. Ed. 2d
507, 521 (2018). There the police acquired the defendant’s cell site location information
(CSLI) containing the time-stamped locations of his cell phone for an extended period of time.
See id. at 2217, 2220, 201 L. Ed. 2d at 521, 525 (narrowly limiting the holding to “legitimate
expectation[s] of privacy in the record of [the defendant’s] physical movements as captured
through CSLI”). The Court expressed concern that allowing police to surreptitiously invade

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Newby, J., dissenting

. . . on the incremental effect of the challenged statute on . . . privacy . . . [reveals that

the] effect is slight” in the context of a convicted violent sex offender’s diminished

expectation of privacy); see also Samson, 547 U.S. at 852, 126 S. Ct. at 2199, 165 L.

Ed. 2d at 259 (finding no intrusion upon a parolee’s diminished expectation of

privacy); Vernonia, 515 U.S. at 658, 115 S. Ct. at 2393, 132 L. Ed. 2d at 577

(concluding the intrusion upon privacy was “negligible” in light of student athlete’s

reduced expectation of privacy at school).

First, the physical limitations imposed by SBM are “more inconvenient than

intrusive” and do not materially invade defendant’s diminished privacy expectations.

Grady, 817 S.E.2d at 25. As noted by the trial court, the ankle monitor weighs less

than nine ounces, and it “does not prohibit any defendant from traveling, working, or

otherwise enjoying the ability to legally move about as he wishes.” Charging the

monitor takes at most two hours per day, which poses an insignificant burden

reasonable expectations in this manner would expose an expansive class of individuals (i.e.,
anyone with a cell phone) to unfettered government surveillance. See id. at 2218, 201 L. Ed.
2d at 522 (“Only the few without cell phones could escape this tireless and absolute
surveillance.”). Here those concerns are not present. Lifetime SBM only applies to a narrow,
statutorily defined class of convicted sex offenders. The police have no discretion over who is
searched, and thus the SBM program does not raise the same concerns of arbitrary, universal
tracking at issue in Carpenter. See id. at 2213, 201 L. Ed. 2d at 517 (“The basic purpose of
[the Fourth] Amendment . . . is to safeguard the privacy and security of individuals against
arbitrary invasions by governmental officials.” (internal quotation marks and citation
omitted)); see also id. at 2214, 201 L. Ed. 2d at 518 (“[A] central aim of the Framers was to
place obstacles in the way of too permeating police surveillance.” (internal quotation marks
and citation omitted)).

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Newby, J., dissenting

considering the ubiquity of other personal electronic devices the average person

charges every day.

Second, regarding the effect on other privacy interests, SBM falls on a

spectrum of possible “regulatory schemes that address the recidivist tendencies of

convicted sex offenders.” Bowditch, 364 N.C. at 341, 700 S.E.2d at 6. At one end of

the continuum, civil commitment involves a highly invasive affirmative restraint and

deprivation of rights similar to imprisonment. See Hendricks, 521 U.S. at 350, 117 S.

Ct. at 2076, 138 L. Ed. 2d at 508; Belleau, 811 F.3d at 932. Next, career and travel

limitations significantly restrict the exercise of fundamental freedoms. Finally, on the

other end of the sex offender civil regulatory spectrum, registration statutes impose

the fewest restrictions on a defendant’s liberty, yet they still require the offender to

provide certain information to law enforcement and the public. See

N.C.G.S. § 14-208.10 (2017).

At the urging of Congress, every state has adopted a sex offender registration

act that requires collection, maintenance, and distribution of information about the

registered sex offender and imposes penalties for noncompliance. E.g.,

N.C.G.S. § 14-208.7 (2017). See generally Smith, 538 U.S. at 89–90, 123 S. Ct. at 1145,

155 L. Ed. 2d at 174–75. The purposes of sex offender registration are to provide

notification to the community and deter future sex offenses. See Smith, 538 U.S. at

102–03, 123 S. Ct. at 1152, 155 L. Ed. 2d at 183. When registering, a sex offender

must provide his full name, any aliases, date of birth, sex, race, height, weight, eye

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color, hair color, driver’s license number, home address, the type of offense, the date

of conviction, the sentence imposed, a current photograph, fingerprints, and any

online identifiers (such as social media usernames). N.C.G.S. § 14-208.7(b). Every six

months, the sex offender must verify that his registration information has not

changed, and the registrant must provide timely updates regarding any change of

address or name, enrollment status in school, or online identifiers.

Id. §§ 14-208.9, -208.9A (2017). Moreover, the sex offender’s name, sex, address,

physical description, picture, conviction dates, offenses, sentences imposed, and

registration status are publicly available, and “[t]he sheriff shall release any other

relevant information that is necessary to protect the public concerning a specific

person.” Id. § 14-208.10. Ten years after registering, a sex offender may petition to

terminate his registration. Id. § 14-208.12A (2017).

Thus, along the spectrum of possible regulatory schemes, SBM’s privacy

intrusion is most similar to sex offender registration. Both programs mandate

disclosing information to the State that is not ordinarily required for the general

public. Both protect the public through deterrence. Both allow for termination, SBM

after one year and registration after ten years. In contrast with the other options,

“[t]he SBM program does not detain an offender [or resemble imprisonment] in any

significant way.” Bowditch, 364 N.C. at 349, 700 S.E.2d at 11. Additionally, “[t]he

monitoring taking place in the SBM program is far more passive and is

distinguishable from the type of State supervision imposed on probationers,” and

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Newby, J., dissenting

“[o]ccupational debarment is far more harsh than an SBM program.” Id. at 346, 349,

700 S.E.2d at 9–10; see also Doe v. Bredesen, 507 F.3d 998, 1005 (6th Cir. 2007) (citing

Smith, 538 U.S. at 100, 123 S. Ct. at 1151, 155 L. Ed. 2d at 181) (noting SBM is less

harsh than occupational debarment), cert. denied, 555 U.S. 921, 129 S. Ct. 287, 172

L. Ed. 2d 210 (2008).

Accordingly, in the totality of the circumstances, SBM that provides

information regarding physical location and movements effects a small, incremental

intrusion in the context of the diminished expectation of privacy that society would

recognize as legitimate. SBM does not prevent a defendant from going anywhere he

is otherwise allowed to go. The tracking mechanism only passively collects location

data; as the trial court found, “[T]he ankle monitor does not monitor or reveal the

activities of the offender—it merely monitors his location.” See also Belleau, 811 F.3d

at 936 (“It’s untrue that ‘the GPS device burdens liberty . . . by its continuous

surveillance of the offender’s activities’; it just identifies locations; it doesn’t reveal

what the wearer of the device is doing at any of the locations.” (alteration in original)

(quoting Commonwealth v. Cory, 454 Mass. 559, 570, 911 N.E.2d 187, 196 (2009))).

Where a defendant is unsupervised, no one regularly monitors the defendant’s

location, significantly lessening the degree of intrusion. See id. at 941 (Flaum, J.,

concurring). Furthermore, though the program is referred to as “lifetime” monitoring,

a defendant may petition to be removed from SBM after one year.

N.C.G.S. § 14-208.43 (permitting termination if a defendant shows he has not been

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convicted of any additional qualifying convictions, has substantially complied with

the SBM program, and “is not likely to pose a threat to the safety of others”).

Therefore, in the context of diminished privacy expectations, SBM’s degree of

intrusion is minimal.

On the other hand, regarding “the public interest, in this case, the state’s

interest can hardly be overstated.” Belleau, 811 F.3d at 940. The General Assembly

has “recognize[d] that sex offenders often pose a high risk of engaging in sex offenses

even after being released from incarceration or commitment and that protection of

the public from sex offenders is of paramount governmental interest.”

N.C.G.S. § 14-208.5. More specifically, “[t]he General Assembly also recognizes . . .

that the protection of [sexually abused] children is of great governmental interest.”

Id. This finding is supported by United States Supreme Court precedent,

congressional action, the public policy of all fifty states, and “the moral instincts of a

decent people.” Packingham, 137 S. Ct. at 1736, 198 L. Ed. 2d at 281; see 34

U.S.C.A. § 20981; Conn. Dep’t of Pub. Safety, 538 U.S. at 4, 123 S. Ct. at 1163, 155 L.

Ed. 2d at 103; Smith, 538 U.S. at 89–90, 123 S. Ct. at 1145, 155 L. Ed. 2d at 174–75.7

Therefore, requiring enrollment in SBM accomplishes the General Assembly’s

7When presented with conflicting evidence supporting the legislature’s public policy
determinations, courts should defer to the legislature’s findings of fact, especially where, like
here, that determination is overwhelmingly corroborated. Additionally, the trial court
considered “multiple studies of recidivism rates of sex offenders versus other criminals” and
found the search reasonable in light of this evidence.

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Newby, J., dissenting

purpose of protecting the public by deterring violent sex offenders from committing

further sex crimes, thereby “promot[ing] . . . legitimate governmental interests.”

Samson, 547 U.S. at 848, 126 S. Ct. at 2197, 165 L. Ed. 2d at 256 (quoting Knights,

534 U.S. at 119, 122 S. Ct. at 591, 151 L. Ed. 2d at 505).8

Finally, the paramount governmental interest outweighs the minimal

intrusion upon diminished privacy interests when considering the totality of possible

circumstances that may arise under the statute. Here the facially challenged statutes

reasonably provide for lifetime SBM for the worst recidivist sexual offenders, and

lifetime SBM is significantly less invasive than civil commitment or other regulatory

options available for those offenders. The majority, however, putting itself in the

place of the legislature, would draft a statute excluding sexually violent recidivists

from mandatory lifetime SBM, yet the case law is clear that courts should not assume

8 “[I]t is undisputed that the [SBM] law promotes deterrence . . . . [which] appears to
be the primary purpose of the law.” Belleau, 811 F.3d at 943; accord Bredesen, 507 F.3d at
1007. Moreover, the efficacy of SBM as a deterrent is self-evident: The search “deter[s] future
offenses by making the plaintiff aware that he is being monitored and is likely therefore to
be apprehended should a sex crime be reported at a time, and a location, at which he is
present.” Belleau, 811 F.3d at 935 (majority opinion); see also Vernonia, 515 U.S. at 663, 115
S. Ct. at 2395–96, 132 L. Ed. 2d at 581 (remarking that the “efficacy” of the search was “self-
evident” where the goal was to deter drug use by athletes and the school promulgated the
drug-testing policy so that athletes would know they would be tested); Skinner v. Ry. Labor
Execs.’ Ass’n, 489 U.S. 602, 629–30, 109 S. Ct. 1402, 1420, 103 L. Ed. 2d 639, 668 (1989)
(recognizing that it is “common sense” that employees must “know they will be tested” for
drugs and alcohol in order to deter substance abuse). Thus, there is no need for individualized
inquiries into the efficacy of deterring a particular defendant, nor is the State required to
prove this common sense principle with empirical evidence. Nonetheless, since 1996, when
not incarcerated, the longest period of time defendant has not committed a sex crime against
a minor is the six years he has been subject to SBM.

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Newby, J., dissenting

the role of the legislature when the legislative categories are reasonable. See, e.g.,

Smith, 538 U.S. at 103–04, 123 S. Ct. at 1153, 155 L. Ed. 2d at 184 (“[Where] [t]he

legislature’s findings are consistent with grave concerns over the high rate of

recidivism among convicted sex offenders and their dangerousness as a class[,] . . . .

[a State is] not preclude[d] . . . from making reasonable categorical judgments that

conviction of specified crimes should entail particular regulatory consequences.”);

Bredesen, 507 F.3d at 1007 (“[O]ur role is not to invalidate the [SBM] program if the

. . . Legislature has not struck the perfect balance between the regulatory purpose of

the program and its burdens on [our] citizens, but rather to determine whether the

means chosen are reasonable.”). The majority expresses concern that “[a] wide range

of different offenses are swept into” the statute’s definition of recidivist, but if the

statute is ever overbroadly applied to a defendant, he can bring an as-applied

challenge that takes into account his specific convictions, circumstances, and facts.

See Britt, 363 N.C. at 549–50, 681 S.E.2d at 322–23.

Moreover, the majority’s sweeping analysis jeopardizes most applications of

the lifetime SBM statute. Despite the majority’s strenuous insistence that its

reasoning only addresses lifetime SBM for recidivists without affecting lifetime SBM

for sexually violent predators, aggravated offenders, and adults who otherwise

sexually victimize children under thirteen years old, the facts, analysis, and ultimate

outcome of this case demonstrate otherwise. The majority’s approach is devoid of any

discussion as to why SBM is unconstitutional for the worst crimes that would place a

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defendant in the statutory category of recidivist. Further, by upholding the reversal,

without remand of the trial court’s order requiring lifetime SBM, the majority’s

disposition does not effect the result it claims in its reasoning. Rather, affirming the

Court of Appeal’s reversal removes defendant, whose convictions satisfy the statutory

definition for an aggravated offender, from the lifetime SBM program without

directing the trial court to determine whether he qualifies for lifetime SBM as an

aggravated offender. This decision would seem to prevent lifetime SBM for a

defendant who is a recidivist but also qualifies for lifetime SBM under a different

statutory subsection.9 Thus, not only does the majority’s facial analysis fail to

consider all possible scenarios in which the lifetime SBM statute may apply to

recidivists, but it also does not address the specific result of its holding on defendant

here. Because the statute requiring lifetime SBM can be constitutionally applied to

sexually violent recidivists, such as defendant, defendant’s facial challenge should

fail.

V. Special Needs Search10

9Notably, the trial court could not alternatively enroll a recidivist defendant in SBM
for a term of years either. N.C.G.S. § 14-208.40A(d).
Because defendant has a reduced expectation of privacy, the special needs doctrine
10

does not apply here. See Maryland v. King, 569 U.S. 435, 463, 133 S. Ct. 1958, 1978, 186 L.
Ed. 2d 1, 30 (2013) (“The special needs cases . . . do not have a direct bearing on the issues
presented in this case, because unlike the search of a citizen who has not been suspected of
a wrong, [the defendant] has a reduced expectation of privacy.”); Samson, 547 U.S. at 852
n.3, 126 S. Ct. at 2199 n.3, 165 L. Ed. 2d at 259 n.3 (“[W]e [do not] address whether . . . [the]

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Newby, J., dissenting

Lastly, the SBM program serves a “special need[ ], beyond the normal need for

law enforcement, [that] make[s] the warrant and probable-cause requirement

impracticable.” Vernonia, 515 U.S. at 653, 115 S. Ct. at 2391, 132 L. Ed. 2d at 574

(quoting Griffin, 483 U.S. at 873, 107 S. Ct. at 3168, 97 L. Ed. 2d at 717). The special

needs doctrine does not apply where “the primary purpose of the . . . program is to

uncover evidence of ordinary criminal wrongdoing,” City of Indianapolis v. Edmond,

531 U.S. 32, 41–42, 121 S. Ct. 447, 454, 148 L. Ed. 2d 333, 343 (2000), but conversely,

“a program satisfies a special need if the program ‘is not undertaken for the

investigation of a specific crime,’ ” Belleau, 811 F.3d at 940 (quoting Green v. Berge,

354 F.3d 675, 678 (7th Cir. 2004)). “ ‘[S]pecial needs’ have been found ‘not because the

rules [for warrants and probable cause] are inconvenient to follow,’ but rather

‘because in such situations, the rules are not needed to prevent the mischief that

[warrants] are designed to prevent.’ ” United States v. Amerson, 483 F.3d 73, 82 (2d

Cir. 2007) (second alteration in original) (quoting Nicholas v. Goord, 430 F.3d 652,

680 (2d Cir. 2005) (Lynch, J., concurring), cert. denied, 549 U.S. 953, 127 S. Ct. 384,

166 L. Ed. 2d 270 (2006)), cert. denied, 552 U.S. 1042, 128 S. Ct. 646, 169 L. Ed. 2d

515 (2007). “The need for a warrant is perhaps least when the search involves no

discretion that could properly be limited by the ‘interpo[lation of] a neutral

search . . . is justified as a special need . . . because our holding under general Fourth
Amendment principles renders such an examination unnecessary.”). Nevertheless, in
accordance with the Supreme Court’s mandate and in response to the majority opinion, I
discuss the application of the special needs doctrine arguendo.

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Newby, J., dissenting

magistrate between the citizen and the law enforcement officer.’ ” Maryland v. King,

569 U.S. 435, 447, 133 S. Ct. 1958, 1969–70, 186 L. Ed. 2d 1, 20 (2013) (alteration in

original) (quoting Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 667, 109 S.

Ct. 1384, 1391, 103 L. Ed. 2d 685, 703 (1989)); see also Delaware v. Prouse, 440 U.S.

648, 653–54, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979) (remarking that the

Fourth Amendment’s purpose “is to impose a standard of ‘reasonableness’ upon the

exercise of discretion by government officials” (footnote omitted)).

Thus, case law recognizes that the government’s interest in deterring at-risk

individuals from activity detrimental to public safety is a special need when the

search does not constitute an investigation of a specific crime and does not involve

the exercise of discretion by law enforcement officers. See Vernonia, 515 U.S. at 658

n.2, 115 S. Ct. at 2393 n.2, 132 L. Ed. 2d at 578 n.2 (distinguishing the “prophylactic

and distinctly nonpunitive purposes (protecting student athletes from injury, and

deterring drug use in the student population)” of the programmatic search effected

by drug testing from “ ‘evidentiary’ searches, which generally require probable

cause”); see also Von Raab, 489 U.S. at 666, 109 S. Ct. at 1391, 103 L. Ed. 2d at 702

(upholding a drug-screening program “to deter drug use” among certain United States

Customs Service employees as a special needs search); Skinner v. Ry. Labor Execs.’

Ass’n, 489 U.S. 602, 632–33, 109 S. Ct. 1402, 1421–22, 103 L. Ed. 2d 639, 670 (1989)

(finding that, because a drug-screening program for railroad employees was

“designed not only to discern [drug and alcohol] impairment but also to deter it,” the

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Newby, J., dissenting

search was a special needs search that furthered the government’s interest in

deterring “hazardous conduct” that puts the public at risk).

Here the SBM program’s primary purpose is to serve the special need of

“protecting the public against recidivist tendencies of convicted sex offenders.”

Bowditch, 364 N.C. at 351, 700 S.E.2d at 12 (recognizing deterrence as a purpose and

effect of SBM). Because “there is no specific crime to give rise to probable cause,” the

search effected by the SBM program is not predicated on the judgment or discretion

of law enforcement or any other government official, and “[a]ccordingly, the

traditional safeguards of the Fourth Amendment, such as the warrant requirement,

are unworkable.” Belleau, 811 F.3d at 941.11 Thus, the SBM program is constitutional

pursuant to the special needs doctrine.

VI. Conclusion

“Although privacy is a value of constitutional magnitude, it must yield, on

occasion, to the state’s substantial interest to protect the public through reasonable

regulations in appropriate circumstances. This case presents one of those

circumstances.” Belleau, 811 F.3d at 939. The search arising from the SBM statute

11As a secondary benefit, the program creates a repository of information that law
enforcement may use to detect or preclude the enrollee’s involvement in future sex offenses.
While the “[i]nformation gathered from this program may, at some later time, be used as
evidence in a criminal prosecution, . . . the program is setup [sic] to obviate the likelihood of
such prosecutions” and, therefore, still falls within the scope of the special needs doctrine.
Belleau, 811 F.3d at 940. Furthermore, the collection of this information provides the
deterrent effect.

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Newby, J., dissenting

for a limited category of high-risk recidivist sex offenders, given the totality of the

circumstances, is a reasonable search under the Fourth Amendment. The purpose of

the SBM program in protecting the public from sex crimes is of paramount

importance. As demonstrated by several other constitutionally sound regulations

designed to protect the public from sex offenders, defendant’s reasonable expectation

of privacy is significantly diminished because of his multiple child sex offenses. Given

his diminished privacy expectations, the incremental nature of the search providing

location information and the method of data collection via an ankle bracelet are more

inconvenient than intrusive. While courts must continue to “approach the

government’s use of [GPS technology] with caution, to ensure that it does not upset

the balance of rights bestowed by the Constitution,” id. at 938–39, the SBM search

here is reasonable, and the statute is constitutional. The decision of the Court of

Appeals should be reversed and the trial court’s SBM order reinstated. Accordingly,

I respectfully dissent.

Justice MORGAN joins in this dissenting opinion.

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