IN THE SUPREME COURT OF NORTH CAROLINA No. 179A14-3 Filed 16 August 2019 STATE OF NORTH CAROLINA v. TORREY GRADY Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 817 S.E.2d 18 (N.C. Ct. App. 2018), reversing an order for satellite-based monitoring entered on 26 August 2016 by Judge Phyllis M. Gorham in Superior Court, New Hanover County. Heard in the Supreme Court on 8 January 2019. Joshua H. Stein, Attorney General, by Teresa M. Postell, Assistant Attorney General, and Joseph Finarelli, Special Deputy Attorney General, for the State- appellant. Glenn Gerding, Appellate Defender, and Lewis Everett for defendant-appellee. Christopher Brook for American Civil Liberties Union of North Carolina Legal Foundation; and Nathan Freed Wessler, pro hac vice, and Brandon J. Buskey, pro hac vice, for American Civil Liberties Union Foundation, amici curiae. EARLS, Justice. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” by the government. U.S. Const. amend. IV. The United States Supreme Court has determined that North Carolina’s satellite-based monitoring (SBM) of sex offenders, STATE V. GRADY Opinion of the Court which involves attaching an ankle monitor “to a person’s body, without consent, for the purpose of tracking that individual’s movements,” constitutes a search within the meaning of the Fourth Amendment. Grady v. North Carolina, 135 S. Ct. 1368, 1370 (2015) (per curiam). The Supreme Court remanded the case for an examination of “whether the State’s monitoring program is reasonable—when properly viewed as a search.” Id. at 1371. In its per curiam opinion, the Supreme Court noted, among other things, the following: The State’s program is plainly designed to obtain information. And since it does so by physically intruding on a subject’s body, it effects a Fourth Amendment search. That conclusion, however, does not decide the ultimate question of the program’s constitutionality. The Fourth Amendment prohibits only unreasonable searches. The 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. See, e.g., Samson v. California, 547 U.S. 843 (2006) (suspicionless search of parolee was reasonable); Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995) (random drug testing of student athletes was reasonable). The North Carolina courts did not examine whether the State’s monitoring program is reasonable—when properly viewed as a search—and we will not do so in the first instance. Id. (citations omitted). In accordance with this decision, this case was ultimately remanded to the superior court, which entered an order determining the SBM program to be constitutional. The Court of Appeals reversed, but only as to Mr. Grady individually. We conclude that the Court of Appeals erroneously limited its holding -2- STATE V. GRADY Opinion of the Court to the constitutionality of the program as applied only to Mr. Grady, when our analysis of the reasonableness of the search applies ...
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