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NC: Appeals court reverses twice-convicted sex offender’s lifetime GPS monitoring

[ 5/15/18]

NEW HANOVER COUNTY, NC (WECT) – A state appeals court has reversed a ruling that would have required a twice-convicted sex offender wear a GPS monitoring bracelet for the rest of his life.

In 1997, Torrey Dale Grady, 39, pleaded no contest to a second-degree sex offense, and in 2006, he pleaded guilty to taking indecent liberties with a child. Both incidents took place in New Hanover County.

Although Grady was not initially required to enroll in the state’s satellite-based monitoring program (SBM) after either conviction, in 2013 the court held an SBM “bring-back” hearing and determined his convictions were both “sexually violent offenses” and ordered him to enroll in the program for the remainder of his life.

In his appeal, which was eventually heard by the U.S. Supreme Court, Grady argued the lifetime enrollment in the SBM program violated his right to freedom from unreasonable searches and seizures, as provided by the Fourth Amendment. The nation’s highest court remanded the case for N.C. courts to determine the reasonableness of Grady’s lifetime enrollment in the program.

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[T]the State…argu[ed] that defendant 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, he hasn’t been charged with another sex offense.”
What an absolutely stupid statement! Maybe he hasn’t recommitted because he has chosen not to recommit. To state that because Big Brother has his eye on Gundy the whole time is the only reason he’s staying straight is asinine, at best. Once again, correlation does not indicate causation.
(From the Opinion:) The Supreme Court has never addressed whether a convicted sex offender has a diminished expectation of privacy solely due to the individual’s prior conviction.
Wow. Once again, sex offenses are apparently some sort of extra-Constitutional crime. I can’t believe they even had to address this! But, as expected, they’re taking Smith to mean all sorts of laws inhibiting RCs’ rights can be enacted. Smith actually said the contrary (“offenders…are free to move
where they wish and to live and work as other citizens”). All Smith said is that compiling and publishing public records is fine.
What’s heartening is the acceptance of data showing true recidivism rates, as indicated by the mention of Federal and State statistical data (“Defendant, however, presented multiple reports authored by the State and federal governments rebutting the widely held assumption that sex offenders recidivate at higher rates than other groups.”). Good to see, instead of the threadbare “frightening and high” crap. I also like that they mention the State’s sole reliance on one’s criminal record is not enough to warrant the warrantless search via GPS. One more example of individualized risk assessments being required. (A very small step ahead, but one ahead, nonetheless.) Ironically, it seems Gundy was denied a Gundy hearing….

I started reading the Dissent, but it’s so far off rational thought, I couldn’t continue. For example, in trying to determine “legitimate” reductions in privacy, he cites three cases, all of which involved people under supervision. How that applies to someone no longer under supervision is beyond me. He then tosses in the “mixed bag” quote from Kebedeaux about recidivism rates, but does nothing with it. From the tone of his writing, he seems to think it’s not a 4th Amdt. issue simply because the Legislature said it isn’t.

All in all, another win for us. Too bad WI SC isn’t quite so up on SCOTUS rulings and the Constitution.

“Ironically, it seems Gundy was denied a Gundy hearing….”

You mean Grady. Easy to confuse, since we’ve recently been talking about Gundy. Gundy is scheduled for oral arguments in October.

Ooops. Yes, thank you.

This is good.

Lifetime GPS monitoring of an unsupervised offender (i.e., one who is not on probation or parole) in NC requires the state to prove by a preponderance of evidence that satellite-based monitoring (SBM) of the offender in question is a reasonable search under the 4th amendment.

The hearing in NC is called a Grady hearing due to the US Supreme Court’s per curiam decision in Grady v North Carolina (2015) which established that SBM “effects a Fourth Amendment search”. The US Supreme Court remanded the case for the trial court to consider whether the Fourth Amendment search was reasonable in Grady’s case. That’s why NC has to conduct a “Grady hearing”.

An interesting thing is that this decision of the NC appeals court is concerning Grady. After the US Supreme Court remanded, the trial court again decided that SBM was reasonable for Grady. Grady appealed again. This time the appeals court reversed the trial court because they determined that the state did not prove that a lifetime continuous 4th amendment search of Grady was reasonable, despite his diminished expectation of privacy as a recidivist sex offender.

The opinion in this appeals court case even mentions Packingham, although I guess that is not so surprising since that was also a NC case.

Anyway, it’s worth a read. Bottom line is that NC can’t indiscriminately require GPS monitoring of an unsupervised former sex-offender. Since GPS monitoring is a continuous 4th amendment search, as clarified by the US Supreme Court, the state has to make an individualized determination that it is reasonable for each person they want to impose it on.

Maybe this can help someone else.

What I don’t understand is why preponderance of the evidence (i.e. civil standard) is used to justify a 4th Amdt issue. Any other time LEOs want a warrant, they must show probable cause (criminal standard). I’m so glad SCOTUS has (repeatedly) fallen where it has regarding GPS tracking (i.e. it constitutes a search requiring 4th Amdt. consideration). It certainly keeps the crooks-in-blue in check a little bit. Now hopefully SCOTUS comes down on the same side regarding cell phone tracking ( (Gorsuch had a very interesting angle on this during oral argument.)

I see PA is adding a mandatory 3 yr probation tail to all cases now If a person has only one charge how can they do this? Also won’t states like NC just start adding life probation so they can GPS everyone? I can see a 2 strike rule for people or longer sentences but I do not get how they can give someone an F1 or F2 charge for failure to comply with a civil procedure that is supposedly non punitive, someone explain that how a supreme court can allow this to happen? If you fail to pay support you get 6mo max that is civil.

Would love your thoughts, please comment.x