State v. Griffin

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-681
No. COA17-386-3
Filed 18 October 2022
Craven County, No. 03 CRS 53794
STATE OF NORTH CAROLINA
v.
THOMAS EARL GRIFFIN, Defendant.
Appeal by Defendant from order entered 1 September 2016 by Judge Benjamin
G. Alford in Craven County Superior Court. Heard in the Court of Appeals 19
September 2017 and opinion filed 7 August 2018. Remanded to this Court by order
of the North Carolina Supreme Court for further consideration in light of State v.
Grady, 372 N.C. 509, 831 S.E.2d 542 (2019). Heard in this Court on remand on 8
January 2020 and opinion filed 18 February 2020. Remanded to this Court by order
of the North Carolina Supreme Court on 14 December 2021 for reconsideration in
light of State v. Hilton, 378 N.C. 692, 2021-NCSC-115, State v. Strudwick, 379 N.C.
94, 2021-NCSC-127, and 2021 N.C. Sess. Laws. ch. 138, § 18. Heard in the Court of
Appeals on remand.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Joseph
Finarelli, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R.
Grant, for Defendant-Appellant.
STATE V. GRIFFIN
2022-NCCOA-681
Opinion of the Court
INMAN, Judge.
¶1 In this decision, we address, for the third time, whether the imposition of
satellite-based monitoring (“SBM”) for a term of thirty years violates Defendant
Thomas Earl Griffin’s rights under the Fourth Amendment to the United States
Constitution. After careful review, and in light of State v. Hilton, 378 N.C. 692, 2021-
NCSC-115, State v. Strudwick, 379 N.C. 94, 2021-NCSC-127, and the North Carolina
General Assembly’s revisions to the SBM program, 2021 N.C. Sess. Laws ch. 138, §
18, we affirm the trial court’s SBM order.
I. FACTUAL AND PROCEDURAL HISTORY
A. Defendant’s Conviction, SBM Order, and Initial Appeal
¶2 This Court summarized the pertinent underlying facts in our earlier decisions,
State v. Griffin, 260 N.C. App. 629, 629-33, 818 S.E.2d 336, 337-39 (2018) (“Griffin
I”), and State v. Griffin, 270 N.C. App. 98, 99-101, 840 S.E.2d 267, 269-70 (2020)
(“Griffin II”). Per our recitation of the facts in those opinions:
In 2004, Defendant entered an Alford plea to one count of
first-degree sex offense with a child. Griffin I, 260 N.C.
App. at 629–33, 818 S.E.2d at 337. At sentencing,
Defendant admitted to the digital and penile penetration
of his girlfriend’s minor daughter over the course of three
years. Id. at 630–31, 818 S.E.2d at 338. The trial court
sentenced Defendant to imprisonment for 144 to 182
months and recommended the completion of SOAR, a sex
offender treatment program. Id.
Eleven years after his conviction, in 2015, Defendant was
STATE V. GRIFFIN
2022-NCCOA-681
Opinion of the Court
released from prison on a five-year term of post-release
supervision. Id. Three months later, the State sought
SBM of Defendant under N.C. Gen. Stat. § 14-208.40(a)(2),
as he had been sentenced for a reportable sex offense as
defined by N.C. Gen. Stat. § 14-208.6(4) and therefore could
be subject to SBM if ordered by a court. Id.Defendant appeared before the trial court at a “bring-back”
hearing in August 2016, where a “Revised STATIC-99
Coding Form” (“Static-99”), prepared by the Division of
Adult Correction and Juvenile Justice and designed to
estimate the probability of recidivism, was entered into
evidence. Id. According to the Static-99, Defendant
presented a “moderate-low” risk, the second lowest of four
possible categories. Id.The State called Defendant’s parole officer as a witness,
who testified that Defendant failed to complete the SOAR
program but had not violated any terms of his post-release
supervision. Id. The officer also described the physical
characteristics and operation of the SBM device. Id. The
State did not introduce any evidence regarding how it
would use the SBM data or whether SBM would be
effective in protecting the public from potential recidivism
by Defendant. Id.After taking the matter under advisement, the trial court
entered a written order imposing SBM on Defendant for
thirty years. Id. at 630–33, 818 S.E.2d at 338-39. That
order included the following findings of fact and conclusion
of law:
1. The defendant failed to participate in and[/]or
complete the SOAR program.
2. The defendant took advantage of the victim’s
young age and vulnerability: the victim was 11 years
old [while] the defendant was 29 years old.
3. The defendant took advantage of a position of
STATE V. GRIFFIN
2022-NCCOA-681
Opinion of the Court
trust; the defendant was the live-in boyfriend of the
victim’s mother. The family had resided together for
at least four years and [defendant] had a child with
the victim's mother.
4. 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.
Id. at 631–32, 818 S.E.2d at 339.
Griffin II, 270 N.C. App. at 99-101, 840 S.E.2d at 269-70.
¶3 The above facts, coupled with this Court’s then-binding decision in State v.
Grady, 259 N.C. App. 664, 817 S.E.2d 18 (2018) (“Grady II”), led us to reverse the
SBM order in Griffin I “because the State failed to present any evidence that SBM is
effective to protect the public from sex offenders.” 260 N.C. App. at 637, 818 S.E.2d
at 342.
B. Grady III and Griffin II
¶4 The State appealed our decision in Griffin I and, while that appeal was
pending, our Supreme Court modified and affirmed Grady II in State v. Grady, 372
N.C. 509, 831 S.E.2d 542 (2019) (“Grady III”). Grady III applied a three-factor totality
of the circumstances test to determine the reasonableness of lifetime SBM and held
STATE V. GRIFFIN
2022-NCCOA-681
Opinion of the Court
that lifetime SBM under the statutes then in effect was unconstitutional as to all
offenders who were not subject to probation and were enrolled in SBM solely on the
basis of recidivism. 372 N.C. at 511, 831 S.E.2d at 546-47. The State’s appeal of
Griffin I was subsequently dismissed, and our Supreme Court remanded the matter
to this Court for reconsideration in light of Grady III. State v. Griffin, 372 N.C. 723,
839 S.E.2d 841 (2019).
¶5 On remand, we recognized that because Defendant did not receive lifetime
SBM as a result of any recidivist status, “Grady III does not compel the result we
must reach in this case, [but] its reasonableness analysis does provide us with a
roadmap to get there.” Griffin II, 270 N.C. App. at 106, 840 S.E.2d at 273. Our
application of Grady III’s Fourth Amendment analysis to the particular facts of
Defendant’s case led us to again hold that the SBM order failed to pass constitutional
muster under the totality of the circumstances. Id. at 110, 840 S.E.2d at 276.
C. Hilton, Strudwick, and Legislative Changes to SBM
¶6 The State appealed our decision once more, and, as in the appeal of Griffin I,
the SBM landscape shifted while the matter was pending before the Supreme Court.
First came Hilton, in which our Supreme Court declined to extend Grady III to other
categories of defendants and held that the imposition of lifetime SBM on aggravated
offenders was constitutional. Hilton, ¶ 36; see also State v. Carter, 2022-NCCOA-262,
¶ 18 (recognizing that “our Supreme Court narrowly construed Grady III’s holding”
STATE V. GRIFFIN
2022-NCCOA-681
Opinion of the Court
in Hilton). Then our Supreme Court decided Strudwick, which reaffirmed the narrow
application of Grady III to hold that, under the three-step reasonableness inquiry
“enunciated in Grady III [ ] and further developed in Hilton,” Strudwick, ¶ 20, lifetime
SBM was constitutional for another aggravated offender, id. ¶ 28.
¶7 As elsewhere recognized by this Court, Strudwick also announced two other
important points of law:
First, the Supreme Court clarified the reasonableness
determination takes place in the present, not the future.
....
The second relevant additional aspect of Strudwick is its
discussion on how to reevaluate SBM orders as time moves
forward and circumstances change. Strudwick, ¶¶ 15–17.
Strudwick indicates a defendant could file a petition under
Rule 60 of the North Carolina Rules of Civil Procedure on
the grounds “it is no longer equitable that the judgment
should have prospective application” or “[a]ny other reason
justifying relief from the operation of the judgment.” Id., ¶
16 (quoting N.C. Gen. Stat. § 1-1A, Rule 60(b)(5)–(6)
(2019)); see also id., ¶ 17 (further explaining how sub-
sections (5) and (6) could provide paths to relief). The
Supreme Court also noted a defendant could file a petition
under North Carolina General Statute § 14-208.43 (2019).
Strudwick, ¶ 15.
State v. Anthony, 2022-NCCOA-414, ¶¶ 17-18.
¶8 The General Assembly also made substantial revisions to our SBM statutes
while the State’s appeal of Griffin II was pending. Under the statutes now in effect,
“[a]n offender who was ordered prior to December 1, 2021, to enroll in [SBM] for a
STATE V. GRIFFIN
2022-NCCOA-681
Opinion of the Court
period longer than 10 years may file a petition for termination or modification of the
monitoring requirement with the superior court in the county where the conviction
occurred.” N.C. Gen. Stat. § 14-208.46(a) (2021). Then, “[i]f the petitioner has not
been enrolled in the [SBM] program for at least 10 years, the court shall order the
petitioner to remain enrolled in the [SBM] program for a total of 10 years.” Id. § 14-
208.46(d). Alternatively, “[i]f the petitioner has been enrolled in the [SBM] program
for more than 10 years, the court shall order the petitioner’s requirement to enroll in
the [SBM] program be terminated.” Id. § 14-208.46(e). In short, “[c]ombined with a
change setting a ten-year maximum on new SBM enrollments, the statutory system
now limits SBM to ten years for all offenders.” Anthony, ¶ 19 (citations omitted).
¶9 On 14 December 2021, our Supreme Court again declined to take the State’s
appeal of Griffin II on the merits and, instead, remanded the matter to this Court for
reconsideration in light of Hilton, Strudwick, and the General Assembly’s changes to
the SBM statutes. State v. Griffin, 379 N.C. 671, 865 S.E.2d 849.
II. ANALYSIS
¶ 10 Consistent with the Supreme Court’s order, we now consider Defendant’s
challenge to the constitutionality of the trial court’s order imposing SBM for a term
of thirty years in light of Hilton, Strudwick, and the revised SBM statutes. We also
have the benefit of this Court’s recent decisions in Carter and Anthony, which
undertook the same effort in the context of aggravated offenders subject to lifetime
STATE V. GRIFFIN
2022-NCCOA-681
Opinion of the Court
SBM. Recognizing that Defendant is neither a recidivist nor an aggravated offender
and is subject to SBM for a term of years rather than life, we nonetheless hold that,
in light of the foregoing legal developments, including binding precedent, the SBM
order imposed by the trial court is constitutionally reasonable under the totality of
the circumstances.
A. Standards of Review
¶ 11 The standards of review to be applied in this case are well-settled: “Reviewing
a trial court order, we consider whether the trial judge’s underlying findings of fact
are supported by competent evidence, . . . and whether those factual findings in turn
support the judge’s ultimate conclusions of law. We review a trial court’s
determination that SBM is reasonable de novo.” Carter, ¶ 14 (quotation marks and
citation omitted); see also Griffin I, 260 N.C. App. at 633, 818 S.E.2d at 339-40.
Unchallenged findings of fact are binding on appeal. Strudwick, ¶ 24.
B. Reasonableness under the Totality of the Circumstances
¶ 12 Whether the trial court’s SBM order is constitutional hinges on the same three-
part reasonableness analysis employed in Grady III, “further developed in Hilton,”
and applied in Strudwick. Id. ¶ 20. Under that test, we consider: “(1) the legitimacy
of the State’s interest; (2) the scope of Defendant’s privacy interests; and (3) the
intrusion imposed by SBM.” Anthony, ¶ 33 (citing Hilton, ¶¶ 19, 29, 32). We then
weigh those factors under the totality of the circumstances to discern whether the
STATE V. GRIFFIN
2022-NCCOA-681
Opinion of the Court
SBM order imposed by the trial court is reasonable under the Fourth Amendment.
Id.
1. State’s Interests
¶ 13 Our precedents have recognized numerous state interests served by SBM,
including “preventing and prosecuting future crimes committed by sex offenders.”
Strudwick, ¶ 26. The legitimacy of those interests is beyond dispute. See Grady III,
372 N.C. at 543, 831 S.E.2d at 568 (“[T]he State’s asserted interests here are without
question legitimate.”); Hilton, ¶ 29 (“[T]he SBM program serves a legitimate
government interest.”); Strudwick, ¶ 23 (“The purposes of the SBM program—to
assist the State in both preventing and solving crime—are universally recognized as
legitimate and compelling.” (citations omitted)).
¶ 14 We recognized these legitimate interests in Griffin II but held that, consistent
with Grady III, those interests did not weigh in favor of SBM because the State “failed
to carry its burden to produce evidence that the thirty-year term of SBM imposed in
this case is effective to serve [those] legitimate interests.” 270 N.C. App. at 109, 840
S.E.2d at 275. We now diverge from that holding in part because our Supreme Court
made clear in Hilton and Strudwick that Grady III’s evidentiary analysis, like its
ultimate holding, is strictly limited to the category of offenders addressed by that
decision. See Hilton, ¶ 23 n.5 (“[O]ur analysis in [Grady III] has no bearing on cases
where lifetime SBM is imposed on sexually violent offenders, aggravated offenders,
STATE V. GRIFFIN
2022-NCCOA-681
Opinion of the Court
or adult-child offenders.”); id. ¶ 28 (“Since we have recognized the efficacy of SBM in
assisting with the apprehension of offenders and in deterring recidivism, there is no
need for the State to prove SBM’s efficacy on an individualized basis.”); Strudwick, ¶
20 (holding that because the defendant received SBM for an aggravated offense, “the
holding of Grady III concerning the unconstitutionality of North Carolina’s lifetime
SBM scheme as it applies to recidivists, including Grady III’s discussion concerning
the State’s burden of proof as to the effect of lifetime SBM on reducing recidivism, is
wholly inapplicable to the instant case.”). As the most recent precedents from our
Supreme Court concerning the constitutionality of SBM, we are bound to follow
Hilton’s and Strudwick’s unambiguous limitation of Grady III’s efficacy analysis to
recidivists alone.
¶ 15 Notwithstanding the absence of direct efficacy evidence presented to the trial
court in this case, SBM’s ability to deter and assist in solving crimes is otherwise
established by: (1) legislative enactment, see Strudwick, ¶ 26 (discussing legislative
findings in support of SBM’s efficacy); (2) the fact that “location information from the
monitor could be used to implicate the participant as a suspect if he was in the area
of [a reported] sexual assault, or to eliminate him as a suspect if he was not in the
area,” Hilton, ¶ 26; and (3) “by empirical data,” id. ¶ 28.
¶ 16 We further note that Defendant was convicted of sexually abusing a minor, and
Hilton held that the State need not demonstrate efficacy before the trial court in part
STATE V. GRIFFIN
2022-NCCOA-681
Opinion of the Court
because “the General Assembly has clearly stated the purpose of North Carolina’s
‘Sex Offender and Public Protection Registration Programs’ is to proactively protect
children and others from dangerous sex offenders.” Hilton, ¶ 22 (quoting N.C. Gen.
Stat. § 14-208.5 (2019) (emphasis added)). Indeed, the Supreme Court in Hilton
acknowledged that the General Assembly “enacted the SBM program . . . to further
its paramount interest in protecting the public—especially children . . . . ‘The General
Assembly also recognized . . . that the protection of sexually abused children is of
great governmental interest.’ ” Id. ¶ 19 (quoting N.C. Gen. Stat. § 14-208.5 (2019)
(cleaned up)). It also pointed out that this state interest was served by imposing SBM
on “narrowly defined categories of sex offenders who present a significant enough
threat of reoffending to ‘require[] the highest possible level of supervision and
monitoring.’ ” Id. ¶ 23 (quoting N.C. Gen. Stat. § 14-208.40(a) (2019)). Here,
Defendant was convicted of a sex crime against an 11-year-old and was found by the
trial court to “require[] the highest possible level of supervision and monitoring.”
¶ 17 We are unconvinced by Defendant’s arguments that the record before us
affirmatively disproves SBM’s efficacy. Defendant first contends that because his
STATIC-99 showed he was a “Moderate-Low” risk to reoffend, any recidivist concerns
are absent here. However, as the State points out, Defendant did not complete the
SOAR program designed to reduce recidivism. The State further notes that the
STATE V. GRIFFIN
2022-NCCOA-681
Opinion of the Court
defendant in Strudwick fell into the same STATIC-99 risk category as Defendant,1
and our Supreme Court held that the State’s interest in preventing recidivism was
served by lifetime SBM in that case. Strudwick, ¶¶ 7, 26-28. We reject Defendant’s
first argument for these reasons.
¶ 18 Defendant’s second argument against a favorable weighing of the State’s
interest—that the particulars of his crime are unlikely to be repeated—fares no better
than his first. We rejected an identical contention in Anthony:
Defendant misconstrues the nature of the State’s interest.
Defendant assumes the State’s interest is in preventing or
prosecuting the crime which triggered SBM (or a repeat of
the same scenario), but the State’s interest is broader. It
encompasses all potential future sex crimes. See, e.g.,
Hilton, ¶ 21 (defining interest as “protecting children and
others from sexual attacks” without limitation)
(quotations, citation, and alterations omitted). Thus, as
long as SBM could prevent or solve a future sex crime,
regardless of the exact facts of that scenario, the State’s
1 We take judicial notice of the Court of Appeals and Supreme Court records in
Strudwick for purposes of comparing Defendant’s STATIC-99 to the updated STATIC-99
form reviewed in Strudwick. See Hilton, ¶ 26 (taking judicial notice of a finding of fact in
Strudwick for purposes of its SBM analysis as another record of the Court); West v. G. D.
Reddick, Inc., 302 N.C. 201, 203, 274 S.E.2d 221, 223 (1981) (taking judicial notice of facts in
a Court of Appeals decision because both courts “constitute the appellate division of the
General Court of Justice” and the judicially noted facts were “capable of demonstration by
readily accessible sources of indisputable accuracy” and “important” to resolution of the
appeal). Here, Defendant scored a “2,” in the “Moderate-Low” risk category, on his STATIC-
99. The defendant in Strudwick scored a “3,” or “Average Risk,” on an updated STATIC-99.
Under the older form, scores of 2 and 3 are deemed “Moderate-Low” risk, while the newer
form in Strudwick groups scores of 1, 2, and 3 into the “Average Risk” category. The updated
form in Strudwick did not alter the underlying formula for calculating risk scores. Thus,
Defendant and the defendant in Strudwick fall into the same recidivism risk category
regardless of which STATIC-99 form is used.
STATE V. GRIFFIN
2022-NCCOA-681
Opinion of the Court
interest is served.
Anthony, ¶ 38. Consistent with Anthony, and because Defendant’s arguments fail to
undercut the State’s demonstrated and legitimate interest in preventing future sex
crimes, we hold that those interests weigh in favor of SBM.
2. Defendant’s Privacy Interests
¶ 19 The second reasonableness factor requires us to examine “the scope of
Defendant’s privacy interest.” Id. ¶ 39. In Grady III, our Supreme Court held that
recidivists enjoy “restored” privacy rights and liberty interests with exceptions for
gun possession and the “provi[sion] [of] certain specific information and materials to
the sex offender registry.” 372 N.C. at 534, 831 S.E.2d at 561. We followed that
observation—as the most recent SBM analysis from our Supreme Court—in Griffin
II to hold that Defendant’s privacy rights would be similarly restored after his term
of post-release supervision. 270 N.C. App. at 107, 840 S.E.2d at 274.
¶ 20 However, Hilton and Strudwick have since signaled that such restoration is
more limited for offenders who fall outside the recidivist category. See Strudwick, ¶
21 (“[D]efendant’s expectation of privacy is duly diminished by virtue of his status as
a convicted felon generally and as a convicted sex offender specifically.” (citing Hilton,
¶ 30)). Under these more recent precedents:
[I]t is constitutionally permissible for the State to treat a
sex offender differently than a member of the general
population as a result of the offender’s felony conviction for
STATE V. GRIFFIN
2022-NCCOA-681
Opinion of the Court
a sex offense. Hilton, 2021-NCSC-115, ¶ 30.
Concomitantly, a sex offender such as defendant possesses
a constitutionally permissible reduction in the offender’s
expectation of privacy in matters such as the imposition of
lifetime SBM.
Id. ¶ 22. These decisions further reasoned that: (1) “individuals convicted of sex
offenses may be permanently barred from certain occupations,” Hilton, ¶ 30; (2) sex
offender registration extends beyond the term of post-release supervision; and (3)
such registration imposes additional “limitations on [sex offenders’] movements and
residency restrictions,” id. ¶ 31.2
¶ 21 To be sure, Defendant is not an aggravated offender and thus is not squarely
within the category addressed by Hilton and Strudwick. But the particular facts of
Defendant’s crime—involving an adult perpetrator and child victim—further suggest
that he has a measurably diminished expectation of privacy more akin to aggravated
offenders than not. For example, Hilton stated that Grady III’s analysis “has no
bearing on cases where lifetime SBM is imposed on . . . adult-child offenders,” ¶ 23
n.5, and placed particular emphasis on the geographic restrictions imposed by the sex
offender registration program, id. ¶ 31. Many of those restrictions cited by Hilton are
2 Defendant, unlike the aggravated offenders addressed in Strudwick and Hilton, is
not subject lifetime sex offender registration; instead, he must register for thirty years with
an opportunity to petition for removal after ten years. N.C. Gen. Stat. § 14-208.6A (2021).
However, because this registration period neatly mirrors the current terms of Defendant’s
enrollment in SBM for thirty years (with an ability to reduce the term to ten years by
petitioning the trial court), this is ultimately a distinction without a difference.
STATE V. GRIFFIN
2022-NCCOA-681
Opinion of the Court
particularly focused on children. See N.C. Gen. Stat. §§ 14-208.18(a)(1)-(2) (2021)
(prohibiting registered sex offenders from “the premises of any place primarily for the
use, care, or supervision of minors” and 300 feet of same if located on premises “not
intended primarily” for that use); id. §§ 14-208.16(a)(1)-(2) (prohibiting a sex offender
registrant from knowingly residing at any location or structure “within 1,000 feet of
any property line of a property on which any public or nonpublic school or child care
center is located”). Given that (1) Defendant’s liberty and privacy interests are
limited for the protection of children particularly, and (2) Defendant was convicted of
sexually abusing a minor, we hold that his privacy rights are appreciably diminished
for purposes of analyzing SBM’s reasonableness. Cf. Hilton, ¶ 19 (noting that the
State’s SBM program was enacted to “protect[] the public—especially children”).
3. Intrusiveness of SBM
¶ 22 The third and final factor we must consider is the degree of SBM’s intrusion
into Defendant’s privacy interests. Id. ¶ 32. As with the other factors, our holding in
Griffin II looked almost exclusively to Grady III in weighing this factor against a
conclusion of reasonableness. 270 N.C. App. at 108, 840 S.E.2d at 274-75. Now, with
the benefit of Hilton’s and Strudwick’s latest analyses of this issue and the General
Assembly’s amendments to the SBM regime, we hold that Defendant’s thirty-year
term of SBM works a relatively lesser intrusion than previously discussed in Griffin
II.
STATE V. GRIFFIN
2022-NCCOA-681
Opinion of the Court
¶ 23 Hilton and Strudwick are the most recent precedents describing the
intrusiveness of SBM and, as Defendant acknowledges, they “appear[] far less
concerned than the Grady III Court with the intrusiveness of SBM.” Hilton
emphasized the distinction between SBM and other, more intrusive penalties
available to the State. Hilton, ¶¶ 33-35. It further deemed the practical limitations
of SBM—like the weight, size, and charging requirements of the monitoring device—
“more inconvenient than intrusive.” Id. ¶ 32. Strudwick, for its part, emphasized the
limited purposes for which the location data collected may be used, Strudwick, ¶ 23,
and observed that there are several procedural mechanisms, including those
contained in the General Assembly’s recent revisions to the SBM statutes, that allow
for judicial review after SBM is imposed, id. ¶ 24. See also Hilton, ¶ 34. Thus, in
both Hilton and Strudwick, our Supreme Court determined that SBM “constitutes a
pervasive but tempered intrusion.” Strudwick, ¶ 25 (citing Hilton, ¶ 35).3
¶ 24 The record evidence in this case demonstrates that the physical device
Defendant must wear under the SBM order is physically similar to that analyzed in
Hilton and Strudwick; thus, it is “more inconvenient than intrusive” from a practical
3 Defendant argues that neither Hilton nor Strudwick should guide our analysis on
the basis that they purportedly failed to consider the scope of locational data captured and
the intrusion into Defendant’s home. We rejected this same argument in Anthony, concluding
that Hilton and Strudwick fully considered those facts in analyzing the privacy interests at
stake. Anthony, ¶¶ 41-44. We decline to adopt Defendant’s reading of Hilton and Strudwick
in light of our analysis in Anthony.
STATE V. GRIFFIN
2022-NCCOA-681
Opinion of the Court
perspective. Hilton, ¶ 32. As for the nature of the data collected, it is the same as
that held to be “pervasive but tempered” in Strudwick. Strudwick, ¶ 25. Defendant
also has the new benefit of the legislative changes to SBM that post-date Grady III
and Griffin II; Defendant may petition the trial court to modify or terminate his
enrollment, N.C. Gen. Stat. § 14-208.46(a), and the trial court must cap his term of
SBM at ten years. Anthony, ¶ 19. These considerations, together with the mitigating
fact that Defendant’s unmodified SBM enrollment is for a term of years rather than
life, Griffin II, 270 N.C. App. at 108, 840 S.E.2d at 275, leads us to hold that the
intrusion into Defendant’s diminished privacy interests is not so severe as to render
it constitutionally unreasonable.
4. SBM’s Reasonableness under the Totality of the Circumstances
¶ 25 The State has legitimate and demonstrated interests in protecting the public
and children by preventing future sex crimes and solving those that do occur.
Strudwick, ¶ 26; Hilton, ¶ 25. That interest is not outweighed in this case by SBM’s
intrusion into Defendant’s diminished privacy expectations as an adult-child
offender. As such, under the totality of the circumstances, we hold that the SBM
order entered by the trial court is reasonable for purposes of the Fourth Amendment.
III. CONCLUSION
¶ 26 Following our Supreme Court’s most recent precedents in Hilton and
Strudwick and based on recent legislative amendments effectively shortening
STATE V. GRIFFIN
2022-NCCOA-681
Opinion of the Court
Defendant’s participation in SBM to ten years, we cannot agree with Defendant’s
argument that, considering the totality of the circumstances, his constitutional rights
have been violated. We affirm the trial court’s SBM order as a result.
AFFIRMED.
Judges CARPENTER and GORE concur.