State v. Gambrell
State v. Gambrell
Opinion
*641 Defendant Kevin James Gambrell appeals from an order requiring him to submit to satellite-based monitoring ("SBM") for the rest of his natural life.
I. Background
Defendant was charged with and pleaded guilty to taking indecent liberties with a child. Defendant was sentenced in the presumptive range. The State also sought to have Defendant register as a sex-offender and to enroll in SBM. Defendant motioned to dismiss the State's petition for SBM and to declare such program unconstitutional. The trial court *642 denied Defendant's motion to dismiss and, in turn, ordered him to submit to SBM for the rest of his natural life. Defendant timely appealed.
II. Analysis
In his appeal, Defendant argues that the State's SBM program is both unreasonable as applied to him and facially unconstitutional. We review a trial court's determination that SBM is reasonable
de novo
.
State v. Bare,
The United States Supreme Court has determined that the monitoring of an individual under North Carolina's SBM program constitutes a continuous warrantless search of that individual.
Grady v. North Carolina
, --- U.S. ----,
The "totality of the circumstances" calculus includes whether the sexual offender poses a threat to reoffend. The calculus also includes whether an SBM search would be effective in furthering the State interest in deterring the offender from reoffending.
See
*751
State v. Bowditch
,
In the present case, Defendant motioned to dismiss the State's petition to enroll him in SBM. A hearing was held on Defendant's motion. At the hearing, the only evidence presented by the State was testimony from a probation officer regarding Defendant's criminal record and the logistics and procedure of SBM, namely that SBM would track the movement of Defendant. While Defendant's status as a recidivist was not disputed, Defendant argued that the State failed to meet its burden to show that SBM was a reasonable method to reduce recidivism in his case.
Indeed, preventing recidivism among sex offenders is a government interest. And while SBM is not 100% reliable to prevent recidivism, it
*643
certainly acts as a deterrent to further criminal conduct.
See
Bowditch
, 364 N.C. at 351,
Thus, it could be argued that the probation officer's testimony that SBM would track the movements of Defendant constituted
some
evidence that Defendant would be less likely to reoffend or to go where he should not go, since he would know that his movements were being tracked. It follows that a trial judge, making a reasonableness determination, may not need further evidence, such as empirical data or expert testimony, in a particular case to conclude that SBM would be reasonable, based on the totality of the circumstances. Indeed, we have found such deterrents, like traffic checkpoints, reasonable without the aid of expert testimony, determining that a checkpoint "deter[s] driver's license violations" and that this "deterrence goal was a reasonable one."
State v. Jarrett
,
However, our Court has recently held that to show the efficacy of SBM in deterring recidivism, the State may never rely on an assumption that an offender would be less likely to reoffend if he knew he was being watched: the State must produce other evidence to show the efficacy of SBM in general,
e.g.
, empirical studies or expert testimony.
See
State v. Griffin
, --- N.C. App. ----, ----,
We note that Defendant also facially challenges the constitutionality of the SBM program. However, as we have concluded that the order *644 requiring Defendant to submit to SBM was unreasonable as applied to him, we decline to address this argument.
III. Conclusion
As the State failed to prove the reasonableness of the SBM program as applied to Defendant, we reverse the order requiring him to submit to SBM for the remainder of his natural life.
REVERSED.
Judges MURPHY and HAMPSON concur.
Reference
- Full Case Name
- STATE of North Carolina v. Kevin James GAMBRELL, Defendant.
- Cited By
- 8 cases
- Status
- Published
- Syllabus
- indecent liberties sex offender satellite-based monitoring totality of the circumstances empirical data hearing Grady