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NC COA: Satellite based monitoring unreasonable without evidence it works

Associated Press . . . North Carolina’s second-highest court says authorities can’t force a sex-offender to wear a monitoring device for decades because evidence fails to show that tracking protects the public.

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.

Read the full piece here at Star News Online

 

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This topic contains 33 replies, has 3 voices, and was last updated by  Timothy 1 month, 2 weeks ago.

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  • #44917 Reply

    SW

    I’m just glad we’ve got NARSOL fighting for us.

    • #45500 Reply

      Derek

      I just got out of state prison for a tec probation violation in Massachusetts and I was given 6to8 yrs and I was given another 5 yrs probation they added new probation conditions and one is the gps! Not happy to wear this big bulky thing on my leg. They also say I have to pay 145.00 a month for them to monitor me. I think it’s crazy. SO’s have a hard enough time getting a job then they want to add all these unreasonable conditions on you to make it much harder to make it out here.

      • #45746 Reply

        Allie

        In Northampton county pa. You have to pay 300.00 a month for a GPS. I found a job with a contractor who gave me a chance and I have to wear boots. The thing is so bulky that it hurts my leg by the end of the day. This is pure hell.

  • #44919 Reply

    WC_TN

    The judge’s ruling is absolutely correct. Any time a civil liberty or constitutional right is at stake, the burden of proof should always be on the state. They need to be made to prove a positive rather than requiring the accused to prove a negative. I noted a female judge dissented. Why do so many women seem to have a “Screw you!” approach toward sex offenders and their rights?

    Any law that would take a fundamental civil liberty like freedom itself should automatically have to be evaluated by the “Strict Scrutiny” standard.

  • #44908 Reply

    Anthony

    The GPS tracking devices do not keep sex offenders from reoffending or any other offenders released back into society. This is a false sense of security based on fear and profiteering of manufacturing companies. The statistics show that sex offenders have the lowest recidivism rate of any other crime besides murder. If a sex offender repeat their crime lock them up for life period. The GPS should be abolished and is in violation under the 4th amendment to the U S Constitution.

  • #44912 Reply

    TS

    “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.”

    Wanda, Wanda, Wanda – a clerk can do the research for the courts or one of the lawyers can bring it with them so show the court the inefficacy of such action.

  • #44913 Reply

    TS

    So, is an appeal to the NCSC in order here, if decided that way by the state, then since the intermediate court (NC COA) ruled this way and the state possibly sees an option to get the NCSC to rule in their favor despite what the Fourth Circuit and SCOTUS have said about these trackers on people? Using the Muniz (PA) state ruling path, would SCOTUS be after NCSC? Yes, that last idea gets a bit down the road, but just looking at possibilities.

    • #44954 Reply

      Chris

      I suspect Stein’s office is already working on an appeal to NCSC. Far too many registered citizens would be affected by this. (I used to be one of them but I won my freedom from SBM a couple of years ago, and I can testify to how horrible a thing this is to deal with.) Judging by the ruling in Packingham, I think the state has a good chance at winning on review by NCSC.

      From there, Griffin’s attorneys will likely appeal to SCOTUS. I wouldn’t put money on any scenario after that.

      Let’s take it as a win for now. If nothing else, it takes resources away from the state’s ability to defend against NCRSOL’s federal lawsuits. And no matter how you look at it, victories are starting to pile up for us. The tide might not have changed just yet, but it sure is slowing down.

      • #45083 Reply

        TS

        @Chris,

        Based upon Packingham, you think the state has a good chance at winning in NCSC. What gives you that thought? Given SCOTUS as already set the standard, as well as the Fourth, I might be mistaken here, but the state should not stand a chance. However, you think otherwise, so if you are open to sharing why, it would be interesting to hear.

        • #45168 Reply

          Tim L.

          @Chris, TS

          You both missed the point. ALWAYS THE MOST IMPORTANT STUFF FIRST,
          OPINION REVIEW 101

          “After reviewing the record”

          What does imply?

        • #45197 Reply

          TS

          @Tim L

          Nope, I did not miss the point, but did miss what you are trying to say and imply. How about clear writing 101 and articulate clearly what you are trying to say and possibly imply? Would be helpful since most are not mind readers, including me. Thanks.

        • #45292 Reply

          Chris

          Your quote implies that the justices reviewed their record in the Grady 2 decision, compared it to the one they were hearing, and concluded that the state did not meet it’s burden of proof. Pretty simple.

          That wasn’t the discussion, though. TS asked (forgive me for paraphrasing) “What’s next?” I offered my opinion that the state would appeal to NCSC and probably win (since most of the justices on NCSC appear to be vote-buying chicken-sh*ts like most of our legislators) and that a trip to SCOTUS could go any way, especially with Kennedy’s seat currently up for grabs.

          Hope that clears it up.

        • #45312 Reply

          Tim

          Am an ass, rude even. Yes! The record. 101 the most important first, always this way. Let me digress a bit. Take Connecticut DPS.Joe blow plead \date files 1983 due process\date, case over. Rest all fluff, minutiae, assuming arguendo blahblahblan.

          DA up against something hard ( An immovable fact) in the record. Can you Identity it? This a 4th review U.S.&S or WS&S but not a Terry Stop. So consider search, via device, is it singular or plural? at least in part, and “reasonable” standard. An important clue lay In the pathology of his offence to witt IN HIS HOME. Note the phrase immediate after majority identifies the desenter’s beef… Can you it pick out?
          So are they ( the majority) actually relying on II? Not completely.
          In a normal case ( Not SO) it’d die. DEAD FISH IF POT CHARGE. He may opt for decent to save face, but he knows it’s done. He may also try a work around. Was there a remand…no? So that’s out too. IMHO

          Anyway sorry for butting.

        • #45393 Reply

          TS

          @Tim

          Thanks for the clarification post. Appreciate it. Search v Searches (or continual searching) is interesting angle.

        • #45641 Reply

          Timothy DA Lawver

          @CSThe base of 4th, 5th & 14th citizen. Judges do believe in it.

        • #45788 Reply

          Timothy

          tim,

          this is Chuck. I am a junior moderator here. We do not allow links to other sites here. Your post has been deleted

        • #45164 Reply

          Chris

          Simply because the NCSC is stacked with knuckleheads who adjudicate from the far right. It was NCSC who overturned Packingham’s win in the Court of Appeals with their absurd reasoning that NC’s Social Networking ban was narrowly tailored. To be fair, it was not a unanimous decision; there was a lone voice of reason. But overall: schmucks. (Full disclosure: I identify mostly as republican but am more and more moderate on social issues every day.)

          And let’s be clear on SCOTUS’s ruling to begin with: They did not rule that NC’s SBM program was unconstitutional. They ruled that the program amounts to “a search”. The 4th amendment protects against UNREASONABLE searches. SCOTUS did not consider whether NC’s SBM program met the criteria for reasonable-ness. Instead the case was remanded back to the lower court to decide that. The NC COA decided in the Grady case that the state did not show that the search being sought was reasonable. That decision was handed down earlier this year. TBH, I am unsure if the state has appealed that decision though I would be surprised if they have not. Anyway… the ruling in the above-mentioned article relies heavily on the precedent set earlier this year in the second Grady decision. The only way, IMO, that this decision stands without further appeal is if Grady II is set in stone as a precedent. And even then, the state could argue that the facts of this case are so different from Grady that it warrants consideration separate from Grady.

          NC is losing court battles in bunches lately. The AG’s office must be desperate for a win. If they see this as an easy one (or even just a popular one) they will pursue it.

        • #45196 Reply

          TS

          @Chris,

          Thanks for the follow up and explanation. Much appreciated on clarifying because it makes sense to me as you wrote it. Guess only time will tell.

        • #45328 Reply

          Tim L

          My take on Grady1 v Grady2.
          Grady1 SBM is a search. Singular
          Grady2 SBM are searches. Plural
          Can gov’t agents constitutionally continuously search folks? Could a nation survive if that were the case?
          Just asking.

  • #44914 Reply

    Nicholas Maietta

    Satellite monitoring nos NOT the same as GPS monitoring. This is probably on purpose that they used the word “satellite’ just in case the courts rule against it.

  • #44902 Reply
    Daniel Silverman
    Daniel Silverman

    I don’t know what it’s like in NC, but here in Virginia, if you are ordered to wear any type of monitoring device, you have to pay for it. It’s very expensive. I am willing to bet it’s the same in NC as well. And the court order for Mr. Griffin effectively made him a 30 year customer.

    • #45104 Reply

      T.D.A.L.

      Dan,
      Two phrases from this story make my liberty muscle contort.
      1) “A divided three-judge panel.”
      2) “A ‘ Craven County ‘ judge.”

      An 11 bit upstate AND a 30 piece of enslavement man to machine? .Craven indeed!
      No way we get there without DOEs…….which in my feeble mind has become Doooooooooooh!

      The more I look gunney the more I can see the V. DOEs were hand picked. I mean the agenda found them, if catch my drift? It’s like we shoulda known it was an ambush. State shoulda had our six! Instead they DD for the fed cash. Amen
      FUBAR- ONE 94B.

  • #44905 Reply

    Scott

    Good!
    Now that a precedence has been made over the ineffectiveness of tracking (using monitors) and public safety, maybe that precedence can be used towards the ineffectiveness of the registry (to monitor registrants whereabouts) and public safety. Showing that the registry is just as unconstitutional, using the same logic as the court did in this case.

    • #45761 Reply

      Timothy DA Lawver

      Are we in the middle of an electronic crusade?

      It is solely a state right, but International M law is fed effort! One not both! You see if you’re gonna attack IML, have a CLUE! IML stands not on constitutional ground by definition via $spent to protect foreign nationals on THEIR soil! Purely antithetical
      to gov formation. And grossly negligent AND I can prove it! DOE was a state’s rights case. The feds overstep! If treaty breaks more logs to opponents fire! GROSSLY NEGLIGENT! The policy discredits the body whole! Big data indeed, but who’s steering the ship?

  • #44939 Reply

    Timothy D A Lawver

    My Uncle Gary began teaching me COBOL in 1976. I was 11. I took to it immediately!

    4 decades later I’m standing in front of a judge for my 2nd FTR case and we’re having a discussion in open court about the state’s (,WI) de novo demand for e-mails & IDs. It had been 2 complete years since I’d last registered.
    [7th Circuit Court, Rock County WI, 2ND FLOOR court A 9:30 a.m.]
    “I ain’t gonna sign now judge.” I said. “the administrative branch has lost their everloven mind”, I said.
    Judge said, ” You know they CAN ask Mr. Lawver? ”
    “YES JUDGE,” I said. “,And my wife can ask me, ‘Does this dress make my ass look fat?” ….” I can’t answer…..right judge, see my point? It’s plomo or plata.. judge. ”
    ” Never the less, he says, IF you don’t sign it today, right now, I will have to set a trial date, Do you want that? “No I said, but I can’t tell them an e-mail either.”
    “Why not?” he asks, ” Do you have an e-mail address?. ”
    “I’d rather not say judge, {HUGE GRIN} but I can make one as soon as I get home.”
    Judge shakes his head in disbelief. “,Are you trying to be funny Mr. Lawver. ….?”
    “No judge I’m serious. .. I’ll make one when I get home, I WILL DO IT! I promise!” “Having said that, I still don’t think they REALLY want or NEED it though judge”
    “Mr Lawver, Of course they want it or they wouldn’t have asked for it.” judge said.
    “I know, I know judge …but something ain’t right about it” I said.
    “What isn’t right with it Mr. Lawver?, Its just an email address.”
    “Funny thing is judge I called them (DOCSOR) and asked them about it. ”
    “Well what did they tell you?” he asked.
    “The lady told me they had no intentions to e-mail me or nothing.” ” Don’t you find that kinda odd judge? ” I mean ….why ask for an email if ya ain’t gonna use it to talk to me or tell me something?” ” Kinda dumb ain’t that judge? ” They’ve lost their minds! ”
    Judge repositioned himself and peered over his specs toward the ADA and said,
    “The man makes a good point don’t you think? ” ADA is caught clearly unprepared
    “I’m not sure judge about that I’d have to check” she said. I think we better put Mr. Lawver back in the status pile for now judge. ” she said. Ok, judge says, fine with me we’ll see you a month from today Mr. Lawver see the bailiff for the slip.” (9 months in)

    You’ve just read the story about how the email address rsolawver@charter came to life. I’ve never accessed or used that address since its inception. Because I know what they want it for, always have. Email contains so much info besides the message. It makes a fine point to make to a jury. I nearly hung the last time, and that jury only got the abridged version. Mom’s cancer had to be a priority.

    After that day the DA himself was on my case, no more underlings. Just prior to a subsequent pre-trial hearing he threatened me with 980 The CC statute in my state. He was bluffing of course I don’t meet the criteria even if you presume I was guilty. During the bench trial it took me all of three questions to get the SOR agent to mention the Wetterling Act. Once that door is opened, the defenses time line begins 1994 ONMIBUS and ends present time. A skilled attorney could make a long trail outta that. I scare the hell out of them precisely because they know I was innocent and I know they just cannot admit it. Someday I will prove it.

  • #45031 Reply

    Joseph Park

    I would like for anyone who cares to know that I have a case pending in Georgia Supreme Court (Case No. S18A1211) seeking to overturn Georgia’s attachment of GPS tracking devices on persons arbitrarily classified as sexually dangerous predators by the Sexual Offender Registry Review Board. I thought by now that the ACLU or NARSOL or EFF or Southern Center for Human Rights, or just anybody who cares to at least have something to say about this, but as of yet I’m on my own. My case is criminal in nature, Tampering with an Electronic Tracking Device. I have an excellent constitutional attorney, Mark Yurachek of Atlanta, who has extensive experience in this matter, and who has worked on this matter for years with civil actions that have failed on procedural grounds. Yurackek is the proverbial “Legal Eagle” and I am right proud to have him on my case. But, just the same, I would not be averse to any associations of such as those listed above to offer their assistance in this matter.
    I had a date for oral arguments of September 24, 2018, but that has recently been taken back and my case moved to the October calendar with no specific date. You can see for yourself my docket information at:
    https://scweb.gasupreme.org:8088/results_one_record.php?caseNumber=S18A1211

    • #45165 Reply

      Tim Lawver

      J.Park.

      I read your post. I want you to know I care. I’m not a member but read posts once a day. Between here and EFF it hard to say which is most important issues in our nation. It makes my soul hurt to read of a man indentured to machine. Tampering you called it. Very much of an ambiguous word. I mean it’s around your ankle and being human you naturally fiddle with it. I doubt you can find one human that wouldn’t.

    • #45166 Reply

      Tim L.

      J.Park.

      I read your post. I want you to know I care. I’m not a member but read posts once a day. Between here and EFF it hard to say which is most important issue in our nation. It makes my soul hurt to read of a man indentured to machine. I want you to know the very minute the people sold you out to big data the people sold themselves out too. Nobody’s data is safe.

      Tampering you called it. Very much of an ambiguous word. I mean it’s around your ankle and being human you naturally fiddle with it. I doubt you can find one human that wouldn’t. So I’m thinking that’s the crux of his case, but I’m no lawyer, I’m caught up, but you got it much tougher. Tampering………..I think the bracelet device is company property not state’s so it should be civil, opposed criminal matter.

      Thanks for the link, you made it easy for me to follow what happens. Best of luck.

  • #45111 Reply

    Saddles

    I’m glad someone spoke up for monitoring devices although I’m on probation I didn’t have to wear a monitoring device. I even wonder why at times but we are not paid to think. Its those rocket scientist and those space age people. At times I even wonder aboutr the Constitution.

    I just wonder today what is the over reaching theme of this sex offender plight. For man to go on these adult chat sites to strive or provoke one into some suggestive ordeal to trap or are should one just put a computer chip in our brains at birth. which I’m sure would be unconstitutional.

    Now the NARSOL team did good in NC but knowing man they have ways. Reminds me of that Burkhalter on hogans hero’s.. we’ve got ways. So who’s the spy in the sex offender ordeal in a lot of this situation. Sure the monitoring thing does no good which anyone with common sense could say that or should we tell law enforcement “who’s consience” is guiding you to protect inaminant objects such as teenage girls or to protray teenage girls in this so called justifyable money laundering.

    One could look at the sex treatment issue the same way. So who’s instilling the idea of the crime to make it a suedo crive or is government pulling the wool over everybody’s eye’s. Got to watch those sheep in wools clothings or is this all a bit too cold for some.

    • #45332 Reply

      Tim L

      @Saddles,
      Dude you got my laughing out loud with the SGT Burkhaulter comment. LOLOLOLOLOLOLOL
      Yes indeed Sir!

      They (SOR agents) say: ‘We have Vays of making you talk.!’
      Right on the money!

  • #45366 Reply

    Marlin S

    With the NC court’s opinions regarding SBM, when will lifetime monitoring be struck down? Will it go the way of Social Media?

    • #45429 Reply

      Chris

      Did you mean lifetime satellite-based monitoring or lifetime registration. If you meant lifetime SBM, I would talk to an attorney about filing a Motion for Appropriate Relief based on the Grady and Griffen decisions. It may be worth the time and money if your case is not too egregious.

      Lifetime registration may eventually go away but it will have nothing to do with the recent SBM decisions. SBM requirements are being struck down on the findings that:

      1) A SBM program constitutes a search upon a citizen because it allows law enforcement to track the wearer at all times, rendering their every movement (even within the confines of their own home) available to whoever is collecting the data.

      2) The fourth amendment to the U.S. Constitution prohibits unreasonable searches of citizens by the government. This is why LEOs must have a judge sign off on a search warrant before they can bust down your door and search for evidence to incriminate you. The plan that the founders had in mind is that with separation of powers, the executive branch of government (law enforcement in this instance) cannot act unilaterally; they must rely on the Judiciary to allow it. It works in a perfect world, but wide discretion is often given to law enforcement by the judiciary.

      3) Lower courts (for now) must decide for themselves whether SBM meets the test for reasonable-ness (in each individual case, I believe.)

      4) NC COA decided that this search is not reasonable because the state has not, will not, or can not prove the effectiveness of SBM monitoring at achieving its stated goal of reducing recidivism.

      5) NC’s SBM is an unreasonable search in the cases the COA has reviewed and therefore unconstitutional as applied. Every case will be different and it may take some time for trial courts to use the same reasoning given in Grady and Griffin.

      As for lifetime registration, the most likely avenue to have that abolished is to sue on the grounds that it is cruel and unusual punishment because evidence shows that actual risk of reoffense decreases with the age of the offender as well as over time in the community (without committing a new offense) after release from prison. But I think first you would have to get a judge or panel of judges to rule that the sex offender registry as applied amounts to punishment. We are all anxiously waiting for that to happen, and if all goes well NARSOL/NCRSOL’s suit against the state will bring as a step closer to that goal.

  • #45642 Reply

    Timothy DA Lawver

    Anyone de-registeted from any state database will still be on private databases. At least 100 or more. You will still be on .gov databases too. It’s a mute point. If thou move out of your state you will still reregister in the new. You may thank Mr. Roberts.

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