Case Summaries — N.C. Supreme Court (September 24, 2021)

This post summarizes criminal decisions released by the Supreme Court of North Carolina on Friday, September 24, 2021.

The Court of Appeals abused its discretion by allowing the defendant’s petition for writ of certiorari and invoking Rule 2 to review the satellite-based monitoring orders issued by the trial court.

State v. Ricks, ___ N.C. ___, 2021 NCSC-116 (Sept. 24, 2021). In this case involving the trial court’s imposition of lifetime satellite-based monitoring (SBM) following the defendant’s conviction for statutory rape of a child by an adult and other sex offenses, the North Carolina Supreme Court held that the Court of Appeals erred by allowing the defendant’s petition for writ of certiorari and invoking Rule 2 of the Rules of Appellate Procedure to review the defendant’s unpreserved challenge to the SBM orders.

The defendant was convicted of three counts of statutory rape of a child by an adult, two counts of statutory sex offense with a child, and three counts of taking indecent liberties with a child. The trial court held an SBM hearing and determined that all of the defendant’s offenses were sexually violent and involved the physical, mental, or sexual abuse of a minor. The trial court also found that the statutory rape and statutory sex offense convictions were aggravated offenses. For these convictions, the trial court ordered lifetime SBM pursuant to G.S. 14-208.40A(c). The defendant did not object to the imposition of SBM or file a written notice of appeal from the SBM orders; nevertheless, he later petitioned the Court of Appeals for certiorari review. A divided Court of Appeals granted certiorari and invoked Rule 2. It then held that the trial court failed to conduct a reasonableness hearing pursuant to State v. Grady, 372 N.C. 509 (2019), and vacated the SBM orders.

The State appealed, and the North Carolina Supreme Court reversed, concluding that the Court of Appeals abused its discretion in granting review as the defendant’s petition failed to demonstrate the merit required for certiorari review and the defendant failed to demonstrate manifest injustice sufficient to invoke Rule 2. As to the merits, the Court reasoned that the trial court appropriately followed G.S. 14-208.40A(c) by imposing lifetime SBM because of the defendant’s status as an aggravated offender and that “[a]bsent an objection, the trial court was under no constitutional requirement to inquire into the reasonableness of imposing SBM.” The Court further concluded that the defendant was no different from other defendants who failed to preserve constitutional arguments and that the Court of Appeals therefore should have declined to invoke Rule 2.

Justice Hudson, joined by Justices Ervin and Earls, dissented. Justice Hudson expressed her view that the Court of Appeals did not abuse its discretion in granting certiorari and invoking Rule 2, reasoning that at the time of the Court of Appeals’ decision the law arguably required that the State present evidence of reasonableness and that the trial court make findings of reasonableness to order lifetime SBM for defendants classified as aggravated offenders.

 

Order imposing lifetime satellite-based monitoring based on a defendant’s status as an aggravated offender complies with the Fourth Amendment and Article 1, Section 20 of the North Carolina Constitution.

State v. Hilton, __ N.C. ___, 2021 NCSC-115 (Sept. 24, 2021). In this case involving the trial court’s imposition of lifetime satellite-based monitoring (SBM) following the defendant’s conviction for an aggravated sex offense, the North Carolina Supreme Court held that the order imposing lifetime SBM effected a reasonable search under the Fourth Amendment and did not constitute a “general warrant” in violation of Article 1, Section 20 of the North Carolina Constitution. The Supreme Court thus reinstated the trial court’s order, modifying and affirming the portion of the Court of Appeals’ decision that upheld the imposition of SBM during post-release supervision, and reversing the portion of the decision that held the imposition of post-release SBM to be an unreasonable search.

The defendant was convicted of first-degree statutory rape and first-degree statutory sex offense in 2007. He was released from imprisonment in 2017 and placed on post-release supervision for five years. He was prohibited from leaving Catawba County without first obtaining approval from his probation officer. He nevertheless traveled to Caldwell County on several occasions without that permission. While there, he sexually assaulted his minor niece. After the defendant was charged with indecent liberties based on that assault (but before he was convicted), the trial court held a hearing to determine whether the defendant should be required to enroll in SBM based on his 2007 convictions. The trial court ordered lifetime SBM based on its determination that the defendant had been convicted of an aggravated offense. The defendant appealed. A divided Court of Appeals upheld the imposition of SBM during the defendant’s post-release supervision as reasonable and thus constitutionally permissible but struck down as unreasonable the trial court’s imposition of SBM for any period beyond his post-release supervision. The State appealed.

The Supreme Court reinstated the trial court’s order, modifying and affirming the portion of the Court of Appeals’ decision that upheld the imposition of SBM during post-release supervision, and reversing the portion of the decision that held the imposition of post-release SBM to be an unreasonable search.

The Court reasoned that State v. Grady, 372 N.C. 509 (2019) (Grady III), which held that it was unconstitutional to impose mandatory lifetime SBM for individuals no longer under State supervision based solely on their status as recidivists left unanswered the question of whether lifetime SBM was permissible for aggravated offenders. To resolve this issue, the Court applied the balancing test set forth in Grady v. North Carolina (Grady I), 575 U.S. 306 (2015) (per curiam) (holding that North Carolina’s SBM program effects a Fourth Amendment search). The Court determined that the State’s interest in protecting the public—especially children—from aggravated offenders is paramount. Citing authority that SBM helps apprehend offenders and studies demonstrating that SBM reduces recidivism, the court concluded that the SBM program furthers that interest by deterring recidivism and helping law enforcement agencies solve crimes. The Court stated that its recognition of SBM’s efficacy eliminated the need for the State to prove efficacy on an individualized basis. The Court then considered the scope of the privacy interest involved, determining that an aggravated offender has a diminished expectation of privacy both during and after any period of post-release supervision. The Court noted that sex offenders may be subject to many lifetime restrictions, including the ability to possess firearms, participate in certain occupations, registration requirements, and limitations on where they may be present and reside. Lastly, the Court concluded that lifetime SBM causes only a limited intrusion into that diminished privacy expectation. Balancing these factors, the Court concluded that the government interest outweighs the intrusion upon an aggravated offender’s diminished privacy interests. Thus, the Court held that a search effected by the imposition of lifetime SBM on the category of aggravated offenders is reasonable under the Fourth Amendment.

The Court further held that because the SBM program provides a particularized statutory procedure for imposing SBM, including a judicial hearing where the State must demonstrate that the defendant qualifies for SBM, and effecting an SBM search, the SBM program does not violate the prohibition against general warrants in Article 1, Section 20 of the North Carolina Constitution.

Justice Earls, joined by Justice Hudson and Ervin, dissented. Justice Earls criticized the majority for its failure to account for 2021 amendments to the SBM statute “that likely obviate some of the constitutional issues” on appeal. Id. ¶ 43. Specifically, she reasoned that though the defendant currently is subject to lifetime SBM, he will not, as of December 1, 2021, be required to enroll in SBM for more than ten years. She also wrote to express her view that the majority’s decision could not be reconciled with the Fourth Amendment or with its holding in Grady III.