The state’s highest court next month takes up the case of repeat sex offender Torrey Grady. It comes three years after the U.S. Supreme Court ruled in his case that mandating GPS ankle monitors for ex-cons is a serious privacy concern.

“There’s different possible outcomes of the case. One is that it’s never reasonable at all. Another is that it’s reasonable, maybe while the person is still on post-release supervision” for five years after prison release, said James Markham, a professor who focuses on criminal law at the University of North Carolina’s School of Government. “Another possibility is that it’s reasonable for the rest of their life.”

Grady took his case to the nation’s top court arguing that having his movements forever monitored violated his constitutional protection against unreasonable searches. The U.S. Supreme Court ruled that attaching a device to a person’s body in order to track their movements qualifies as a “search” and a question of constitutional rights. But the decision left it up to states to decide whether imposed monitoring is reasonable, and for how long.

States are still at work answering that question, with Michigan and Wisconsin among the handful that have considered whether long-term electronic monitoring’s public benefit outweighs the privacy rights of the sex offender. Both decided it constituted a reasonable search. Delaware’s Supreme Court last year rejected a challenge from the American Civil Liberties Union to a law requiring GPS monitoring of certain sex offenders complained the ankle bracelets were embarrassing, sometimes painful and an invasion of privacy.

North Carolina’s Supreme Court will consider Grady’s case on Dec. 3 as well as a second challenging the GPS tracking ordered for Darren Gentle. The combination would give the justices “an opportunity to compare and contrast those different situations,” Markham said.

Gentile was convicted in Randolph County in 2016 of violently raping a 25-year-old woman who was seven months pregnant and with whom he’d been taking drugs, according to state attorneys. He is serving a 41-year prison sentence, but is arguing he shouldn’t have been ordered into post-release GPS monitoring because the trial judge didn’t review whether that was reasonable.

Grady, 40, returned to prison in April after failing to register as a sex offender, according to state prison records. He was convicted of a sexual offense in 1997 when he was 17, and was convicted in 2007 of taking indecent liberties with a minor who was 15, according to the state sex offender registry.

His attorneys argue that after paying his debt to society in prison, Grady and other sex offenders do not give up their privacy rights even though laws restrict where they can live and travel, for example barring visits to school grounds.

A divided panel of North Carolina’s second-highest court in May reversed a trial judge that ordered Grady enrolled for life in satellite-based monitoring, saying they saw no studies showing tracking prevented future crimes.

“The State failed to present any evidence of its need to monitor defendant, or the procedures actually used to conduct such monitoring in unsupervised cases. Therefore, the State failed to prove” that lifetime monitoring, the state Court of Appeals ruled, “is a reasonable search under the Fourth Amendment.”

Reprinted from the Charlotte Observer.

A divided three-judge panel of the state Court of Appeals ruled Tuesday that because officials presented no evidence that satellite-based monitoring is effective, it violates the U.S. Constitution’s bar against unreasonable searches.

The U.S. Supreme Court set that constitutional standard in a 2015 North Carolina decision.

Tuesday’s case involved Thomas Earl Griffin, who spent 11 years in prison for abusing the pre-teen daughter of his live-in girlfriend. A Craven County judge in 2016 ruled he must wear a tracking device for 30 years.

Griffin did not challenge being ordered to register as a sex offender, but argued that the trial court violated his Fourth Amendment rights by ordering him to submit to continuous satellite-based monitoring for 30 years.

“After careful review of the record and applicable law, we are compelled to agree,” the Court of Appeals opinion reads.

Judge Wanda Bryant disagreed, saying it expands the state’s burden of demonstrating the risk of a sex-offender repeating his crimes.

“By requiring our trial courts to find the efficacy of (satellite-based monitoring) in curbing sex offender recidivism in order to satisfy Fourth Amendment protections against unreasonable searches in the context of (satellite-based monitoring), the majority would impose a standard other than is required by Fourth Amendment jurisprudence,” Bryant wrote in her dissent.

Background

On Jan. 29, 2004 in Craven County Superior Court, Griffin took an Alford plea, as a part of a negotiated plea agreement, to the charge of first-degree sex offense with a child. As a part of the plea agreement, the court dismissed a charge of taking indecent liberties with a child.

The state’s recitation of the facts during the plea hearing stated that Griffin was the live-in boyfriend of the victim’s mother. The victim, who was 11 at the time of initial disclosiure, said Griffin had been “messing with her for the past three years.” Griffin made a full confession.

The court sentenced Griffin to a prison term of 144 to 182 months and recommended that while incarcerated, Griffin participate in a sex offender treatment program.

Griffin was released from prison 11 years later, in June 2015. On Sept. 29, 2015, the Department of Public Safety informed Griffin that he could be required to enroll in a satellite-based monitoring program.

During a hearing in August 2016, Griffin’s attorney argued that based on Griffin’s “moderate to low level” of risk and his compliance with all terms of his probation, “this level of intrusion” was not warranted.

On Sept. 1, 2016, the trial court ordered Griffin to register as a sex offender and enroll in satellite-based monitoring for 30 years, based on the facts that he had not completed the sex offender treatment program; took advantage of the victim’s young age and vulnerability; took advantage of a position of trust; and that the sexual abuse occurred over a three-year period of time.

“The court has weighed the Fourth Amendment right of the defendant to be free from unreasonable searches and seizures with the publics [sic] right to be protected from sex offenders and the court concludes that the publics [sic] right of protection outweighs the “de minimis” intrusion upon the defendant’s Fourth Amendment rights,” the trial court ruled.

Griffin appealed, and the Court of Appeals released its opinion Tuesday.

Doesn’t that amendment prohibit unreasonable seizures and arrests without “probable cause, supported by oath or affirmation, and particularly describing the … persons … to be seized?” I believe it was taught at some point in law school–probably in con or crim law–that the Bill of Rights have been incorporated by application of the Fourteenth Amendment (see the Wiki on Incorporation Doctrine).

Or how about the North Carolina Constitution?

Section 19 reads: No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land.

So, this WBTV story out of Gaston County begs a host of unanswered questions. Chief among them is the simplest: By what law of the land does Sheriff Cloninger possess the authority to quarantine citizens for several hours on Halloween?

Now it may well be that this annual tradition only applies to individuals who remain on some form of court-ordered supervision. After all, according to the article, only 102 registrants gathered together on Tuesday night. A cursory glance at the state maintained registry displays 445 sex offenders residing in Gaston County. This begs another question, why do reporters continue to perpetuate a myth about who is actually required to abandon their freedoms on Halloween?

Requiring registered sex offenders who remain under court-ordered supervision to gather at a central location MIGHT be reasonable at Halloween. It is most likely lawful if such a requirement is reasonably related to the rational purposes of supervised probation.

However, ANY citizen of North Carolina who is no longer on probation or supervised released is presumed to be restored to full citizenship with all the rights and privileges that flow from, and are enshrined by, the state and federal constitutions. And that means that no authority exists whereby a citizen (or group of citizens) may be unreasonably “taken, imprisoned . . . or exiled” and nobody may be unreasonably seized except upon a demonstration of probable cause (that a crime has been committed), and, only then, by warrant issued on the basis of sworn testimony particularly describing the person(s) to be seized.

This is so fundamental and essential to our system of laws and liberty that it’s amazing how many individuals in law enforcement and the media appear totally clueless about it.

So, again, are there ANY attorneys in Gaston County who happen to recall anything from their days in law school about the Bill of Rights or the Constitution?  How many more years are you planning to let this lawless sheriff act as if he is, himself, the law?