State v. Grady
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e . NO. COA13-958 NORTH CAROLINA COURT OF APPEALS Filed: 6 May 2014 STATE OF NORTH CAROLINA v. New Hanover County No. 06 CRS 52283 TORREY GRADY, Defendant. Appeal by defendant from order entered 14 May 2013 by Judge Reuben F. Young in New Hanover County Superior Court. Heard in the Court of Appeals 17 March 2014. Roy Cooper, Attorney General, by Joseph Finarelli, Special Deputy Attorney General, for the State. Mark L. Hayes, for defendant appellant. MARTIN, Chief Judge. Defendant Torrey Grady appeals from the trial court s order requiring him to enroll in a satellite-based monitoring ( SBM ) program for the duration of his natural life. We affirm. On 13 September 2006, defendant was convicted upon a guilty plea of taking indecent liberties with a child in violation of N.C.G.S. § 14-202.1. On 15 March 2010, defendant acknowledged -2receipt of Correction hearing. an a letter notifying from him to North appear Carolina at an Department SBM of determination The letter informed defendant that the Department made initial determination recidivist based County second-degree of the on a that prior he 1997 sexual met the conviction offense, and criteria in New notified of a Hanover him to appear at the SBM determination hearing so that the trial court in his county of residence could make a determination as to whether defendant shall be required to enroll in [SBM]. The trial court conducted defendant s SBM determination hearing on 14 May 2013 in accordance with N.C.G.S. § 14-208.40B, during which it also considered defendant s Motion to Deny [SBM] Application and Dismiss Proceeding, filed almost one week earlier. In the motion and at the hearing, defendant s counsel argued that SBM violated defendant s constitutional right to be free from unreasonable searches and seizures. denied defendant s motion to dismiss the The trial court SBM determination proceeding, determined that defendant qualified as a recidivist, and ordered defendant to enroll in SBM for the remainder of his natural life. Defendant filed timely written notice of appeal. _________________________ Defendant contends the trial court erred by denying his motion to dismiss the SBM determination proceeding. Defendant -3argues that the constant GPS monitoring (and the imposition of the GPS equipment for that purpose) used in SBM violates his constitutional seizures. protections against unreasonable searches and We must disagree. In support of his argument, defendant relies on the United States Supreme 565 U.S. __, Court s decision 181 L. Ed. 2d in 911 United (2012), States which held v. Jones, that the Government s [warrantless] installation of a GPS device on a target s vehicle, and its use of that device to monitor the vehicle s movements, constitutes a search. 181 L. Ed. 2d at 918 (footnote omitted). Id. at __, Defendant draws our attention to the Court s application of the plain text of the Fourth Amendment of the U.S. Constitution, which expressly provides in relevant part that [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, id. at __, 181 L. Ed. 2d at 917 (alteration in original) (internal quotation marks omitted), and emphasizes the Court s rejection of the test applicability articulated in of the Katz v. reasonable-expectation-of-privacy United States, 19 L. Ed. 2d 576 (1967), to the issue before it. 389 U.S. 347, United States v. Jones, 565 U.S. at __, 181 L. Ed. 2d at 918 23. However, in State v. Jones, __ N.C. App. __, 750 S.E.2d 883 -4(2013), this Court considered the precise issue presented by defendant in the present case. 750 S.E.2d at 885 86. on appeal See id. at __, The State v. Jones defendant argued, as this defendant argues now, that SBM required him to be subject to an ongoing search of his person, that such a physical intrusion onto a person s body [wa]s far more serious than the placement of a transmitter on a car as was the case in United States v. Jones and that SBM caused the State v. Jones defendant to be subject to random searches for his location at any time, without any particularized showing of why that search need[ed] to be conducted. He further argued, as this defendant argues now, that this Court should rely on the same analysis as that articulated in United States v. Jones, one [c]onsistent with th[e] Amendment recognizes understanding reflects that its Fourth that close [t]he text connection Amendment of to jurisprudence the Fourth property was tied and to common-law trespass, at least until the latter half of the 20th century. See United 181 L. Ed. 2d at 918. States v. Jones, 565 U.S. at __, Nevertheless, in State v. Jones, this Court rejected defendant s argument and concluded that United States v. Jones did not control, and that our decision in State v. Martin, __ N.C. App. __, 735 S.E.2d 238 (2012),1 required us 1 In Martin, this Court rejected a defendant s challenge to SBM -5to overrule the defendant s argument on appeal. See State v. Jones, __ N.C. App. at __, 750 S.E.2d at 885 86. Defendant argues that this Court erroneously relied on Martin in State v. Jones because Martin did not address the same violative intrusion challenged by the defendant in State v. Jones, and because Martin only held that no Fourth Amendment violation had occurred as contemplated by the Katz test, while [this defendant] violation has has contended occurred in pursuant the to case the enunciated in [United States] v. Jones. at bar that trespassory a test Despite defendant s protestations to the contrary, in State v. Jones, this Court considered and rejected the argument that if affixing a GPS to an individual s vehicle constitutes a search of the individual, then the bracelet arguably to individual an as more intrusive individual must well. 750 S.E.2d at 886. State v. act of constitute Jones, affixing a an search __ N.C. App. ankle of the at __, This Court determined that United States v. Jones was readily distinguishable and d[id] not control in as violative of his Fourth Amendment rights based on his assertion that SBM would require . . . [him] to allow DOC officials to make routine warrantless entries into his home, Martin, __ N.C. App. at __, 735 S.E.2d at 238 (alteration and omission in original) (internal quotation marks omitted), and that SBM place[d] him in a position where he [wa]s forced to choose between forever waiving his Fourth Amendment rights or face criminal prosecution for failing to cooperation [sic] with the DOC. Id. at __, 735 S.E.2d at 238 (internal quotation marks omitted). -6that case. Id. Thus, we must conclude that, in State v. Jones, this Court decided the same issue that defendant presents for review in the present appeal. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). We, as a subsequent panel of the same court [are] bound by that precedent, unless it has been overturned by a higher court. See id. Because State v. Jones was filed after United States v. Jones, we continue to be bound by State v. Jones. See State v. Jones, 358 N.C. 473, 487, 598 S.E.2d 125, 134 (2004) ( While . . . a panel of the Court of Appeals may disagree with, or even find error in, an opinion by a prior panel and may duly note its disagreement or point out that error in its opinion, the panel is bound by that prior decision until it is overturned by a higher court. ). Accordingly, we conclude that the trial court did not err when it denied defendant s motion to dismiss the SBM determination proceeding and we overrule this issue on appeal. Our disposition on this issue renders it unnecessary to address defendant s additional arguments with respect to this issue on appeal and we decline to do so. Affirmed. Judges McGEE and CALABRIA concur. Report per Rule 30(e).
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