It’s time to post an updated sex offender and monitoring flow chart. I was going to do it last week, but I’m glad I didn’t. Yesterday, the Supreme Court of the United States reversed North Carolina’s appellate courts on an issue that may impact the constitutionality of SBM. The new chart, available here, incorporates Grady v. North Carolina and includes several other changes.
In Grady v. North Carolina, the Court held per curiam that satellite based monitoring is a search under the analytical framework set out in United States v. Jones, 565 U.S. __ (2012), and Florida v. Jardines, 569 U.S. __ (2013). The Court held that North Carolina’s appellate courts erred when they concluded in an earlier case that those precedents did not apply to SBM because it, unlike criminal investigations in Jones and Jardines, is a civil regime. See State v. Jones, __ N.C. App. __, 750 S.E.2d 883 (2013). The Court disagreed, noting that “the Fourth Amendment’s protection extends beyond the sphere of criminal investigations” and covers things like civil safety inspections and other administrative searches. Slip. Op. at 3–4. Having concluded that SBM is a search, the Court remanded the case to North Carolina for a determination of the “ultimate question” of whether it is unreasonable under the Fourth Amendment.
Grady is noted near the bottom of the second page of the flow chart in the section entitled Constitutional Issues. I may need to update the chart again, depending on how things progress on remand.
Findings that may trump a non-HIGH Static-99. The other notable change on the latest edition of the chart is a reconfigured section covering factual findings that may support an order requiring satellite-based monitoring for a period determined by the court (i.e., non-lifetime SBM). As noted in prior posts (this one, for example), a judge is not bound by the results of the Static-99 risk assessment when determining whether an offender requires the “highest possible level of supervision and monitoring,” and ordering SBM for a period determined by the court. Even if the risk assessment comes back as something other than HIGH (i.e., MODERATE-HIGH, MODERATE-LOW, or LOW), the trial judge may make additional factual findings in support of his or her decision.
A recent case adds to our body of case law on what sort of findings can permissibly trump a non-HIGH assessment. In State v. Smith, __ N.C. App. __ (Mar. 17, 2015), the defendant’s Static-99 rated him a MODERATE-HIGH risk. The court nonetheless ordered the defendant to enroll in SBM for 20 years after his release from prison. The court based its order on five findings of fact: (1) that the defendant had committed multiple prior sex crimes; (2) his offenses were close together in time; (3) all of his victims were young girls; (4) two of the incidents took place in public and one involved breaking into a private residence; and (5) that the incidents showed defendant’s aggressive conduct was escalating. Slip Op. at 2–3.
The court of appeals approved of all but the first finding regarding the defendant’s prior sex acts. Those acts were already “part of the Static-99, and the trial court was not permitted to rely upon them as factors in its final determination on the appropriateness of SBM.” The court also noted that one of the prior acts resulted in a charge that was dismissed, and “mere accusations of crimes, absent a conviction, are generally inadmissible.” Slip Op. at 5 (internal quotation marks omitted). The other findings were supported by record evidence and not already incorporated into the Static-99, and therefore not erroneous.
The findings from Smith are incorporated into a new bulleted list of things that may and may not trump a non-HIGH Static-99 on the back of the chart.