An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 -2- receipt of a letter from the North Carolina Department of
Correction notifying him to appear at an SBM determination
hearing. The letter informed defendant that the Department made
an initial determination that he met the criteria of a
recidivist based on a prior 1997 conviction in New Hanover
County of second-degree sexual offense, and notified 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. The trial court
denied defendant’s motion to dismiss the 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 -3- argues that “the constant GPS monitoring (and the imposition of
the GPS equipment for that purpose)” used in SBM violates his
constitutional protections against unreasonable searches and
seizures. We must disagree.
In support of his argument, defendant relies on the United
States Supreme Court’s decision in United States v. Jones,
565 U.S. __, 181 L. Ed. 2d 911 (2012), which held 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.’” Id. at __,
181 L. Ed. 2d at 918 (footnote omitted). 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 applicability of the reasonable-expectation-of-privacy
test articulated in Katz v. United States, 389 U.S. 347,
19 L. Ed. 2d 576 (1967), to the issue before it. 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 on appeal
presented by defendant in the present case. See id. at __,
750 S.E.2d at 885–86. 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] understanding” that “[t]he text of the Fourth
Amendment reflects its close connection to property” and
recognizes that “Fourth Amendment jurisprudence was tied to
common-law trespass, at least until the latter half of the 20th
century.” See United States v. Jones, 565 U.S. at __,
181 L. Ed. 2d at 918. 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 -5- to 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] has contended in the case at bar that a
violation has occurred pursuant to the trespassory test
enunciated in [United States] v. Jones.” 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 arguably more intrusive act of affixing an ankle
bracelet to an individual must constitute a search of the
individual as well.” State v. Jones, __ N.C. App. at __,
750 S.E.2d at 886. 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). -6- that case. Id. Thus, we must conclude that, in State v. Jones,
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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 -2- receipt of a letter from the North Carolina Department of
Correction notifying him to appear at an SBM determination
hearing. The letter informed defendant that the Department made
an initial determination that he met the criteria of a
recidivist based on a prior 1997 conviction in New Hanover
County of second-degree sexual offense, and notified 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. The trial court
denied defendant’s motion to dismiss the 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 -3- argues that “the constant GPS monitoring (and the imposition of
the GPS equipment for that purpose)” used in SBM violates his
constitutional protections against unreasonable searches and
seizures. We must disagree.
In support of his argument, defendant relies on the United
States Supreme Court’s decision in United States v. Jones,
565 U.S. __, 181 L. Ed. 2d 911 (2012), which held 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.’” Id. at __,
181 L. Ed. 2d at 918 (footnote omitted). 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 applicability of the reasonable-expectation-of-privacy
test articulated in Katz v. United States, 389 U.S. 347,
19 L. Ed. 2d 576 (1967), to the issue before it. 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 on appeal
presented by defendant in the present case. See id. at __,
750 S.E.2d at 885–86. 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] understanding” that “[t]he text of the Fourth
Amendment reflects its close connection to property” and
recognizes that “Fourth Amendment jurisprudence was tied to
common-law trespass, at least until the latter half of the 20th
century.” See United States v. Jones, 565 U.S. at __,
181 L. Ed. 2d at 918. 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 -5- to 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] has contended in the case at bar that a
violation has occurred pursuant to the trespassory test
enunciated in [United States] v. Jones.” 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 arguably more intrusive act of affixing an ankle
bracelet to an individual must constitute a search of the
individual as well.” State v. Jones, __ N.C. App. at __,
750 S.E.2d at 886. 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). -6- that 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).