NC high court weighs if track­ing sex of­fend­ers is rea­son­able

The Charlotte Observer (Sunday) - - Local - BY EMERY P. DALESIO As­so­ci­ated Press

North Carolina’s Supreme Court is re-eval­u­at­ing whether forc­ing sex of­fend­ers to be per­pet­u­ally tracked by GPS-linked de­vices, some­times for the rest of their lives, is jus­ti­fied or a Con­sti­tu­tion­vi­o­lat­ing un­rea­son­able search.

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. He is 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 mon- itored 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.

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 postre­lease 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 sec­ond­high­est 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.”

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