The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .
The black device exclaimed “low battery” in a robotic voice drawing curious glances from passerby. This was his cue. The ankle monitor called the shots; he either had to leave or find a nearby electrical outlet for the device’s daily two-hour charging. Letting it die was not an option as it would lose signal—a major violation, even if accidental. Selecting the former, he gathered himself up to leave. It was far more comfortable to be tethered to an electrical outlet in the privacy of his own home rather than out in public where he would surely draw more awkward—and some disgusted—stares.
Until recently, this was a daily reality for Mr. Torrey Grady. The device strapped to his ankle was an ExaccuTrack One ankle monitor (ET-1), also referred to as “the Band.” The Band served one purpose: monitoring Mr. Grady’s location. This was achieved by the Band’s continuous satellite transmission of Grady’s location coordinates to state officers in Raleigh. His whereabouts were known 24–7, his every movement tracked on a screen in real-time, and this data was stored for six months by the State, available for later reference at the State’s pleasure.
General warrants . . . are dangerous to liberty and shall not be granted.
The Band could never come off—any attempt to interfere or remove the Band is a felony. For at least two hours everyday, Grady had to charge the Band just like one would charge their cell phone; however, a person usually does not have to tether himself to the wall with a 15-foot charging cable and wait for a full battery when charging their cell phone. As mentioned, failure to maintain the Band’s battery is a major violation that can land the wearer in hot water with the legal system. Because of this, he effectively spent one month of every year leashed to a wall. It could have been worse, at least Grady could swim, bathe, and go in the ocean since the half-pound ET-1 is waterproof up to 15 feet, unlike the old monitors.
But the Band has plenty of other limitations. As illustrated above, when the Band’s battery is low or detects tampering, it will suddenly burst out certain phrases in an animatronic voice like, “low battery” and “call your officer.” These commands, easily heard by anyone who happens to be nearby, repeat until “acknowledged.” Sometimes the Band loses signal due to the positioning of the satellites. Other times, structures interfere with the signal; this occurs frequently with metal roofs on big commercial buildings like Wal-Mart. When Grady begins to hear the Band’s commands issuing from his ankle, he must hurriedly get outside to reestablish signal by “acknowledging” the alert through pressing a “divot” on the Band.
Even in his own home, the Band could not be removed. Grady was also required to submit to quarterly equipment checks and allow officers enter his home to inspect the Band and other equipment installed there to aid in the State’s tracking of him. Technically, he could refuse their entry, but since he was still required to have the equipment inspected and monitored quarterly, it was easier to allow the intrusion into his home.
Mr. Grady’s privacy was severely curtailed and subject to the intrusion of the State whenever it pleased. Such intrusion harkens back to the pre-revolution era and the British Writs of Assistance and General Warrants, tools despised by the American Colonists and abused by the British Crown. The exploiting of the Writs and General Warrants were a major factor leading up to the outbreak of the American Revolutionary War and expressly barred in several state constitutions, including North Carolina’s.
Beginning May of 2013, this was the Satellite-Based Monitoring (SBM) regime imposed on Mr. Grady—to last for the rest of his life. However, as of August 16, 2019, Mr. Grady and about 500 others are no longer subject to lifetime—or any further—SBM when the North Carolina Supreme Court ruled that lifetime SBM imposed solely on offenders for being “recidivists” was a violation of the Fourth Amendment to the United States Constitution. Getting to that point, however, was a long, complicated, and divisive ordeal.
The state of SBM remains an unsettled area of law. Understanding the current situation requires a careful tracking of Mr. Grady’s situation, as well as the related cases, through the legal system over the course of nearly seven years. What follows is an explanation of Grady’s path through the courts and the current state of North Carolina’s SBM jurisprudence.
North Carolina’s Satellite-Based Monitoring Laws
What exactly is meant by “satellite-based monitoring”? In short, exactly what it sounds like—monitoring of people by satellite. More specifically, it refers to the electronic monitoring of certain classes of convicted sex-offenders by satellite. In 2006 the General Assembly passed the enabling legislation, now codified at N.C. Gen. Stat. §§ 14–208.40A(d)–(e), titled “An Act To Protect North Carolina’s Children/Sex Offender Law Changes.” The Act directs the Department of Corrections to implement “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” to those falling within the enumerated categories of convicted offenders.
SBM is not considered punitive. Though the SBM program applies to criminal sex-offenders, it is a civil regulatory scheme. Due to this labeling—challenged in court several times—the SBM program does not constitute an ex post facto law or violate the right to be free from double jeopardy, nor does it technically infringe on the freedom of interstate travel.
While there are three broad categories of citizens subject to SBM, the primary focus of this article is on the portion of the SBM statute authorizing lifetime monitoring (as opposed to the provisions addressing monitoring for a period of years). Within this category, there are four classes of offenders who must submit to lifetime SBM based on their “reportable convictions.” The four classes are (1) sexually violent predators, (2) “recidivists,” (3) those convicted of an aggravated offense, and (4) adults convicted of either statutory rape or a sex offense with a victim under the age of 13.
“[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.”
Before the United States Supreme Court’s ruling in 2015, there was no up-front, individualized assessment of an offender to determine the “reasonableness” of lifetime imposition of SBM. Put differently, the courts had no discretion; if an offender fell within any one of the four classifications, the court had no choice but to order monitoring for life. Not only did the courts lack any discretion, but they also were also without authority to alter the length of the enrollment or terminate it for good cause. There is a non-judicial mechanism allowing a lifetime registrant to petition for removal from the monitoring program after certain prerequisites are met; but to date, no petition for such has yet been granted.
As just mentioned, there are other categories of offenders not automatically subject to lifetime enrollment in SBM, but are for a shorter period, which is usually 30 years. These “lesser” offenders do not fall within one of the four classifications and are presumed to be less dangerous. As a result of this presumption, those offenders receive an individualized, up-front “risk assessment” to determine the length, if any, of their enrollment period. So, unlike the lifetime offenders, the court in these situations have greater discretion in gauging the “reasonableness” of imposing SBM. The chart pictured here, made by Professor Jamie Markham at the UNC School of Government, illustrates this.
That is North Carolina’s SBM regime in a nutshell. Just about every state uses a similar one, though only twelve impose lifetime enrollment like NC. Of those twelve, only two—NC and California—mandate lifetime monitoring without an individualized, up-front risk assessment. Those distinct characteristics cause many to consider NC’s regime particularly harsh. Why? Because it creates situations where individuals may forever be burdened with the massive intrusiveness of lifetime SBM despite having served out their punishment and no longer pose a threat to the community.
Consider, someone may have fully served out his prison sentence, may not be subject to some form of supervisory release, and have otherwise gone to great lengths to turn his life around, but nevertheless be branded with the scarlet letters the public sex offender registry and lifetime SBM. Of course, this is not true of every enrollee, but to the extent NC’s program treats all offenders as permanent threats to society, the program flies right into the face of the criminal law theory of rehabilitation as justification for punishment (though of course we are told SBM is technically not punitive).
Lastly, NC’s monitoring program is far more expansive than the regimes used by other states. The other eleven statesallowing lifetime SBM constrain its application to a smaller category of offenses—i.e., narrower classes of egregious or recurring crimes typically involving young children. Further, lifetime enrollees in many of those states can petition a court for termination of their enrollment. NC’s program, in contrast, imposes lifetime monitoring in a broader array of situations and has no provision allowing petition for judicial termination of enrollment. The result: a regime more extensive and intrusive than perhaps any other monitoring program in the U.S.
Torrey Dale Grady v. North Carolina
Returning to Mr. Grady, how then, one may wonder, was he able to have the contraption removed from his body? Through a protracted slog through the legal system that began in New Hanover County, North Carolina.
Pre-Grady I: Monitoring Mr. Grady’s Road to SCOTUS
In 1997, Torrey Dale Grady, then a teenager, pleaded nolo contendere to a second-degree sex offense. In 2006, he pleaded guilty to taking indecent liberties with a child. The trial court never made an SBM determination at either sentencing hearing. After his release from prison for the second offense, a hearing was set for April 2010; however, before the hearing occurred, Grady was arrested and pleaded guilty to failing to register as a sex offender. In 2012, after his release from prison for failing to register, he was again ordered to appear in New Hanover County Superior Court for a hearing (a “bring-back” hearing) to determine if he was required to enroll in SBM.
Special Superior Court Judge Reuben F. Young (now at the NC Court of Appeals) determined that both prior convictions were “sexually violent offenses,” thus rendering Grady a “recidivist”—one of the four statutory classifications discussed above—and subject to lifetime SBM. This would be critical to Grady’s case moving forward.
“[W]hat the Framers understood then remains true today—that the task of combating crime and convicting the guilty will in every era seem of such critical and pressing concern that we may be lured by the temptations of expediency into forsaking our commitment to protecting individual liberty and privacy.” —Hon. William J. Brennan
While Mr. Grady did not dispute that he was a recidivist, he did certainly dispute the imposition of lifetime monitoring. Mr. Grady argued the nonconsensual imposition violated his Fourth Amendment rights to freedom from unreasonable searches and seizures. Unpersuaded, the trial court rejected his argument. On appeal, Grady again challenged on Fourth Amendment grounds, relying on the U.S. Supreme Court’s then-recent decision in United States v. Jones. There the Court held that police officers had engaged in a “search” within the Fourth Amendment’s meaning when they installed and monitored a GPS tracking device on a suspect’s car without a valid warrant. The NC Court of Appeals, however, was also unpersuaded.
The court found that a prior Court of Appeals panel had previously considered an almost identical argument to Grady’s. That panel had held Jones to be inapplicable to NC’s SBM monitoring regime finding it was a civil regulatory scheme in nature. From there, the argument went SBM was therefore exempt from the purview of the Fourth Amendment—i.e., not a search. Thus, in an unpublished 2014 decision, the court affirmed the trial court, holding it was bound by its prior decision under In re Civil Penalty, 324 N.C. 373, (1989). In re Civil Penalty holds that the first Court of Appeals opinion addressing an issue controls if that issue arises again and that the Court of Appeals cannot overrule itself.
Grady appealed again, this time to the North Carolina Supreme Court. Unlike the Court of Appeals, there is no automatic right of appeal to NC’s highest court unless the appeal is taken from a divided Court of Appeals panel. Since the panel was unanimous in Grady’s case, he had to petition for discretionary review—which was summarily denied.
At this point it appeared to be the end of the road for Mr. Grady. The United States Supreme Court, his last remaining option, “receives approximately 7,000-8,000 petitions annually and only accepts about 180 each term for review.” It appeared the ankle monitor was, for all intents and purposes, a permanent addition to his body.
Grady I: The SCOTUS Steps In
The Supreme Court thought differently of the matter. Not only was Grady’s petition for writ of certiorari granted, but in a 2015 per curiam opinion, the Court vacated the decisions of the NC appellate courts. (“Grady I”). Rejecting the theory that NC’s SBM program did not effect a Fourth Amendment search simply due to its civil nature, the Court cited its recent property-based search decisions of United States v. Jones and Florida v. Jardines declaring that “in light of thesedecisions, it follows that a State also conducts a search when it attaches a device to a person’s body, without consent, for the purpose of tracking that individual’s movements.” Accordingly, the Supreme Court held that the SBM program constitutes a “search” under the Fourth Amendment because it “physically intrud[es] on a subject’s body” with the objective of “obtain[ing] information.”
However, the Supreme Court left unanswered the “ultimate question”: was this search reasonable under the Fourth Amendment? The Fourth Amendment only prohibits unreasonable searches and seizures, so resolution of this question was the end-all-be-all for Mr. Grady.
Since NC courts had not yet addressed this factual inquiry, the Supreme Court declined to do so for the first time on appeal and remanded the case to the North Carolina Supreme Court with instructions to make a determination on the matter—i.e., whether lifetime monitoring of recidivists was a “reasonable search”. The High Court did provide some guidance, however, from the prior cases Samson v. California and Veronia School District 47J v. Acton: “[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 II: Round Two at the NC Court of Appeals
After receiving the Supreme Court’s order, The North Carolina Supreme Court itself remanded Grady to the North Carolina Court of Appeals, which in turn remanded the case to the New Hanover County Superior Court. There, consistent with the Supreme Court’s mandate, a new hearing was docketed to determine the reasonableness of the searches resulting from NC’s lifetime monitoring of recidivist sex offenders—i.e., did the SBM regime violate the Fourth Amendment?
In 2016, between Grady I and the new hearing, the Court of Appeals decided several SBM cases, including State v. Blue and State v. Greene. In Blue, the Court of Appeals reversed an SBM order because the trial court failed to follow the mandate of the Supreme Court in Grady I by not determining up-front if the SBM program was a reasonable search considering the totality of the circumstances of the case before it. In Greene, the court held that when the State fails to present evidence of reasonableness supporting the SBM order, they forfeit a second chance on remand to try and meet their burden; this was significant in that before Greene, the State would be remanded for a proper SBM hearing—but not outright reversed. Blue, Greene, and the other cases decided after Grady I, determined the burden of proving the reasonableness of the SBM search was the State’s to carry and failure to do so could likely lead to reversal. Significantly, in almost all the cases decided since Grady, the State has failed to meet that burden—mostly because it fails to proffer any evidence at all, empirical or otherwise.
Grady’s case was different. In the New Hanover County hearing in August 2016, the State called a probation supervisor to testify about the SBM program who presented information about the monitoring equipment. The State also offered evidence about Grady’s prior offenses in so arguing that Grady himself was “Exhibit Number 1” of SBM’s success in deterring recidivists, because “[s]ince he’s been monitored, guess what: He hasn’t recommitted.” Grady responded by proffering empirical evidence rebutting the contention that SBM was effective in preventing recidivism. After hearing the arguments from both sides, the trial court concluded that the lifetime monitoring was a reasonable Fourth Amendment search and thus constitutional; both as applied—to Grady—and facially. Mr. Grady, once again, would be appealing.
The Court of Appeals was the first NC tribunal to side with Mr. Grady. In a divided opinion filed on May 15, 2018, the Court of Appeals reversed the trial court, holding the search was unreasonable as applied to Grady. (“Grady II”). In concluding that the search was unreasonable, the court applied a “general Fourth Amendment approach” similar to the framework used by the Supreme Court in Samson v. California to uphold warrantless searches of probationers and parolees. Despite this theory operating on the broad presumption that sex offenders have a diminished expectation of privacy—an undisputed factor—the court found the state’s evidence simply too meager to justify lifetime monitoring, which is essentially a lifelong search akin to a general warrant.
In short, the court found the State had failed to justify its side of the “balancing of interests,” the test used by the courts to ascertain the reasonableness of a Fourth Amendment search. Since Mr. Grady was subject to lifetime SBM based on his being a recidivist, the onus was on the State to show that SBM was a reasonable search on that particular basis—i.e., that the State’s justifiable interests in the SBM program outweighed the intrusion on Grady’s diminished privacy interests. But the State offered no empirical evidence, aside from Grady’s criminal history and general facts about the technology, to show the program was effective in preventing recidivism. This was in contrast to Grady himself proffering empirical evidence presented at the trial court.
In fact, the State provided no authority for the proposition that any constitutional rights can be abridged solely since one’s previous convictions or one’s placement on a sex offender registry. To the contrary, the United States Supreme Court has recently struck down broad limits on registered sex offenders’ First Amendment free speech rights, despite NC’s asserted interest in protecting children in Packingham v. North Carolina. The Court there noted on page 1737 the “troubling fact” that the restrictions applied to persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system. In the absence of any evidence along those lines—and the State’s evidentiary bar was not a high one—the Court of Appeals concluded SBM is an unreasonable search as-applied to Grady.
Judge Wanda Bryant dissented (and has in later SBM cases as well), stating the reasonableness bar “is not so high as the majority has set forth.” She would have found the search reasonable as applied to Grady. But most significantly, her dissent meant the State now had an appeal as of right to the state Supreme Court. Mr. Grady would finally be on the defense.
Grady III: The NC Supreme Court Takes up SBM
This specific area of Fourth Amendment jurisprudence can be difficult to follow. To summarize the preceding section, the Court of Appeals found precisely this: the portion of NC’s SBM law imposing lifetime monitoring on Mr. Grady—solely because of his “recidivist” status—was declared unconstitutional as-applied to him. The court ruled it unconstitutional because it effectuated a search under the Fourth Amendment that the State failed to show was “reasonable” even with Grady’s diminished privacy interest.
On appeal, the North Carolina Supreme Court affirmed. In a 4–2 decision, Justice Anita Earls, writing for the majority, ruled the program was unconstitutional as applied to Grady as well as every individual within the same SBM category, that is, everyone classified as “recidivists” and subject to lifetime SBM. Justice Mark Davis, just recently appointed to the North Carolina Supreme Court at the time of Grady III, recused himself from consideration of the case. More specifically, the scope of the NC Supreme Court’s ruling included sex offenders statutorily defined as recidivists who had completed their prison sentences and were no longer subject to probation, parole, or post-release supervision I.e., essentially one-fourth of the statutorily defined classes under the SBM statute. The court seemed to specifically take issue with the scope of NC’s monitoring regime, noting that it is significantly broader than that of other states.
Like the Court of Appeals analysis in Grady II, and consistent with the U.S. Supreme Court’s order in Grady I, North Carolina’s Supreme Court conducted a totality of the circumstances analysis in evaluating the constitutionality of the search, balancing the defendant’s “reasonable privacy expectations” against the “legitimate governmental interests” motivating SBM. Here are the highlights from Justice Earl’s 68 page majority opinion (including portions of Justice Paul Newby’s 40 page dissent.)
First looking at a defendant’s privacy side of the balancing, central to the court’s analysis was that the statute enabling lifetime monitoring for recidivists mandated the trial court’s imposition of lifetime SBM with no individualized assessment of the offender or his or her offense—i.e., no personalized, front-end consideration. In this regard, the court emphasized that criminal defendants do not lost the protection of the Fourth Amendment simply by being sex offenders.
Exacerbating this statutory overreach is that the procedure for removing a person from lifetime SBM does not even get handled by the courts—rather, any request goes to the NC Post-Release Supervision and Parole Commission. As mentioned earlier, so far every enrollee who has petitioned the Commission for removal has been denied such relief. The court also noted the privacy infringement imposed by being “tethered to the wall,” for one month out of every year, was not a “mere inconvenience” and that the lifetime tracking of an individual is “uniquely intrusive.”
On the governmental-interests side of the balancing test, the court focused on the State’s failure to present any empirical evidence demonstrating that the SBM program effectively advanced its interests in protecting the public or investigating and deterring crimes. Essentially, the court found there was no evidence to prove SBM actually prevents re-offending by sex offenders. The court also observed that not only did the State not present any evidence on this point, but instead simply relied on prior judicial declarations. The court further rejected the notion that it was bound to rely on legislative declarations of fact when conducting its analysis.
Justice Newby, in his dissent, sharply criticized the majority as contorting the intent of the legislature and usurping their authority in using the lack of empirical evidence as grounds for declaring lifetime SBM for recidivists unconstitutional in this context. Justice Newby further argued that notwithstanding the majority’s overreach, Mr. Grady also qualified under the “aggravated assault” section of the SBM statue—one of the other three SBM classes—and nonetheless subject to lifetime monitoring under those provisions regardless of his recidivist classification.
Ultimately, the Court concluded after balancing these factors that the section of the statute imposing lifetime SBM on recidivists violated the Fourth Amendment as applied to Mr. Grady and for any individual in the same category as Mr. Grady—which is to say anyone enrolled solely by virtue of being a recidivist who is unsupervised (not on probation, parole, or post-release supervision). The North Carolina Supreme Court effectively has lopped off one whole class of sex offenders subject to lifetime SBM. Three remain.
Where Grady III Leaves Us
The caselaw remains unclear after Grady III and many questions remain unanswered. One notable question, created by the decision in Grady III, is what kind of ruling did the state Supreme Court hand down? Was it facial or as applied? Apparently, it was neither as the court described its holding as “neither squarely facial nor as applied.”
This “quasi-facial” holding is confusing to say the least; but fortunately, Professor Markham again steps in to shine a light on our path: The holding is as applied in the sense that it applies only to the “current implementation of the SBM program” and does not apply to defendants still under probation, parole, or post-release supervision. Further, it does not apply to defendants enrolled in SBM for a reason other than being a recidivist, e.g., being an aggravated offender (recall Justice Newby’s dissent discussed supra), a sexually violent predator, a person convicted of rape or sexual offense of a child by an adult. As to unsupervised recidivists, however, it is facial, and the court “enjoin[ed] application of mandatory lifetime SBM to other unsupervised individuals when the SBM is authorized based solely on a ‘recidivist’ finding.”
“Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. . . . The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well[-]meaning but without understanding.” —Hon. Louis D. Brandeis
To the extent the court’s ruling is styled as an injunction, it appears anyone who falls into the “facial” unsupervised recidivist-only category should no longer be tracked period. That is, absent any other factor, the status of being a recidivist alone does not warrant imposition of SBM.
Another critical question is how the evolution of technology will shape the law in this area. We see that the current technology used is “uniquely intrusive.” But that is todays technology—what of year 2050’s technology? Does it even matter what kind of technology is used if the end result is still continuous GPS tracking?
The Fourth Amendment is an area of jurisprudence particularly sensitive to changes in the technology and SBM is no different. Judge Stroud of the NC Court of Appeals put it well in her concurring opinion in State v. Spinks, “it is simply impossible to predict what sort of satellite-based monitoring technology will be used in 2063, or in 2083, or anywhere in between. The SBM technology as it exists now is irrelevant to this defendant. The changes in technology in the last 47 years have been tremendous.”
Combining the technology consideration with the State’s burden to prove reasonableness is State v. Gordon, a pre-Grady III decision, but which remains good law. In Gordon, Judge Zachary writing for the majority of the Court of Appeals panel, held that the State had not demonstrated that the pre-release imposition of post-release SBM was reasonable given the lack of knowledge concerning future technology. That is, that the State had not demonstrated that the monitoring devices currently in use would be similar to devices used fifteen to twenty years in the future. “Authorizing the State to conduct a search of this magnitude fifteen to twenty years in the future based solely upon scant references to present circumstances would defeat the Fourth Amendment’s requirement of circumstantial reasonableness altogether.”
And what of the other three classes of offenders subject to SBM not addressed in the Grady progeny? Just recently, it was re-affirmed in State v. Griffin (“Griffin II” as the case was remanded decided before Grady III and remanded for further consideration in light of its ruling) that SBM was unconstitutional as-applied to a defendant on post-release supervision who was subject to a lesser period of monitoring. Judge Inman, writing for a unanimous panel:
We reaffirm our prior disposition under Griffin I, as that result is consistent with the totality of the circumstances test as employed by our Supreme Court in Grady III. Because the order imposing thirty years of SBM is an unreasonable warrantless search of Defendant in violation of the Fourth Amendment, we reverse the trial court’s order.
These decisions tell us the appellate courts of North Carolina are cracking down on the SBM regime. The NC Supreme Court’s affirming of Grady II indicates as much and the cases decided most recently only reinforce that conclusion.
Will this trend continue? That certainly seems likely, but like always, the NC legislature may step in an disrupt the trend. It is also highly likely that since it now has a heftier burden of proving reasonableness, the State is actively conducting studies to support the proposition that lifetime SBM is effective at preventing future sex offenses. A successful showing in that regard would certainly change the things.
For the time being, we will have to monitor the development of the jurisprudence in this area and track the ongoing litigation. We should not be surprised if the Supreme Court does the same. It may just see fit to step in again in the near future.