IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-368
Filed: 18 August 2020
Cumberland County, Nos. 17 CRS 57328-29
STATE OF NORTH CAROLINA
v.
JOHNNY LINDQUIST
Appeal by defendant from order entered 8 November 2018 by Judge Claire V.
Hill in Cumberland County Superior Court. Heard in the Court of Appeals 3
December 2019.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Sonya Calloway-Durham, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Aaron Thomas Johnson, for defendant-appellant.
ZACHARY, Judge.
Defendant Johnny Lindquist appeals from the order subjecting him to lifetime
satellite-based monitoring upon his release from imprisonment. After careful review,
we vacate the satellite-based monitoring order and remand to the trial court.
Background
In 2014, Defendant was convicted of taking indecent liberties with a child.
While on parole for that offense, on 1 November 2018, Defendant pleaded guilty to
second-degree forcible rape and second-degree forcible sex offense before the
Honorable Claire V. Hill in Cumberland County Superior Court. STATE V. LINDQUIST
Opinion of the Court
After entering judgment upon Defendant’s guilty plea, the trial court held a
satellite-based monitoring hearing. The trial court considered as evidence the factual
basis of Defendant’s plea and the evidence presented by the State at the satellite-
based monitoring hearing. The State presented the testimony of Scott Payne and
three exhibits: (1) a study concerning the effectiveness of GPS monitoring of sex
offenders, referred to as “the California Study”; (2) a certified copy of Defendant’s plea
transcript, indicating that in 2014 he pleaded guilty to the charge of taking indecent
liberties with a child; and (3) Defendant’s STATIC-99 assessment. On 8 November
2018, after considering the evidence presented and the arguments of counsel, the trial
court entered its order subjecting Defendant to lifetime satellite-based monitoring
upon his release from prison. Defendant timely filed written notice of appeal from the
satellite-based monitoring order.
Discussion
Our General Statutes provide for a “ ‘sex offender monitoring program that
uses a continuous satellite-based monitoring system designed to monitor’ the
locations of individuals who have been convicted of certain sex offenses.” State v.
Gordon (“Gordon II”), __ N.C. App. __, __, 840 S.E.2d 907, 909, temp. stay allowed,
374 N.C. 430, 839 S.E.2d 351 (2020) (quoting N.C. Gen. Stat. § 14-208.40(a) (2019)).
“The present satellite-based monitoring program provides ‘time-correlated and
continuous tracking of the geographic location of the subject using a global
-2- STATE V. LINDQUIST
positioning system based on satellite and other location tracking technology.’ ” Id.
(quoting N.C. Gen. Stat. § 14-208.40(c)(1)).
“The United States Supreme Court has determined that the monitoring of an
individual under North Carolina’s [satellite-based monitoring] program constitutes a
continuous warrantless search of that individual.” State v. Gambrell, __ N.C. App. __,
__, 828 S.E.2d 749, 750 (2019) (citing Grady v. North Carolina (“Grady I”), 575 U.S.
306, 310, 191 L. Ed. 2d 459, 462 (2015)). As a warrantless search, any order subjecting
an individual to satellite-based monitoring is subject to analysis under the Fourth
Amendment to the United States Constitution. “[T]he trial court must conduct a
hearing in order to determine the constitutionality of ordering the targeted individual
to enroll in the satellite-based monitoring program.” Gordon II, __ N.C. App. at __,
840 S.E.2d at 909 (citing Grady I, 575 U.S. at 310, 191 L. Ed. 2d at 462).
In State v. Grady (“Grady III”), 372 N.C. 509, 831 S.E.2d 542 (2019), our
Supreme Court conducted the balancing test prescribed by the United States
Supreme Court:
The balancing analysis that we are called upon to conduct here requires us to weigh the extent of the intrusion upon legitimate Fourth Amendment interests against the extent to which the [satellite-based monitoring] program sufficiently promotes legitimate governmental interests to justify the search, thus rendering it reasonable under the Fourth Amendment. In this aspect of the balancing test, we consider the nature and immediacy of the governmental concern at issue here, and the efficacy of this means for meeting it.
-3- STATE V. LINDQUIST
Grady III, 372 N.C. at 538, 831 S.E.2d at 564 (internal citation and quotation marks
omitted) (citing Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652-53, 660, 132 L.
Ed. 2d 564, 574, 579 (1995)).
In State v. Griffin (“Griffin II”), __ N.C. App. __, 840 S.E.2d 267, temp. stay
allowed, 374 N.C. 267, 838 S.E.2d 460 (2020), this Court applied the Grady III
analysis, listing the three factors to be balanced in determining the constitutionality
of the search, under the totality of the circumstances:
(1) the nature of the defendant’s legitimate privacy interests in light of his status as a registered sex offender[;] (2) the intrusive qualities of [satellite-based monitoring] into the defendant’s privacy interests[;] and (3) the State’s legitimate interests in conducting [satellite-based] monitoring and the effectiveness of [satellite-based monitoring] in addressing those interests[.]
Griffin II, __ N.C. App. at __, 840 S.E.2d at 271 (citations omitted).
We also highlighted the emphasis in Grady III on efficacy when conducting
such an analysis, noting that our Supreme Court “wrote that a problem justifying the
need for a warrantless search cannot simply be assumed; instead, the existence of the
problem and the efficacy of the solution need to be demonstrated by the government.”
Id. at __, 840 S.E.2d at 272 (emphasis added) (citation and internal quotation marks
omitted). Although evidence that satellite-based monitoring is effective is merely one
factor to be considered, “[t]he State’s inability to produce evidence of the efficacy of
the lifetime [satellite-based monitoring] program in advancing any of its asserted
-4- STATE V. LINDQUIST
legitimate State interests weighs heavily against a conclusion of reasonableness[.]”
Id. at __, 840 S.E.2d at 273 (citation omitted).
Here, we are unable to determine the basis of the trial court’s decision to
subject Defendant to lifetime satellite-based monitoring, particularly with regard to
the efficacy of satellite-based monitoring, because of a discrepancy between the study
admitted into evidence as State’s Exhibit #1 and the study referenced in the trial
court’s order as State’s Exhibit #1.
During the satellite-based monitoring hearing, the State called Scott Payne,
an employee of the Department of Public Safety Sex Offender Management Office, as
a witness. In addition to testifying to his work in the field of sex offender
management, Payne testified concerning a 2015 study titled “Does GPS Improve
Recidivism among High Risk Sex Offenders? Outcomes for California’s GPS Pilot for
High Risk Sex Offender Parolees,” which addressed the efficacy of satellite-based
monitoring of sex offenders. The parties and the trial court continued to reference
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IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-368
Filed: 18 August 2020
Cumberland County, Nos. 17 CRS 57328-29
STATE OF NORTH CAROLINA
v.
JOHNNY LINDQUIST
Appeal by defendant from order entered 8 November 2018 by Judge Claire V.
Hill in Cumberland County Superior Court. Heard in the Court of Appeals 3
December 2019.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Sonya Calloway-Durham, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Aaron Thomas Johnson, for defendant-appellant.
ZACHARY, Judge.
Defendant Johnny Lindquist appeals from the order subjecting him to lifetime
satellite-based monitoring upon his release from imprisonment. After careful review,
we vacate the satellite-based monitoring order and remand to the trial court.
Background
In 2014, Defendant was convicted of taking indecent liberties with a child.
While on parole for that offense, on 1 November 2018, Defendant pleaded guilty to
second-degree forcible rape and second-degree forcible sex offense before the
Honorable Claire V. Hill in Cumberland County Superior Court. STATE V. LINDQUIST
Opinion of the Court
After entering judgment upon Defendant’s guilty plea, the trial court held a
satellite-based monitoring hearing. The trial court considered as evidence the factual
basis of Defendant’s plea and the evidence presented by the State at the satellite-
based monitoring hearing. The State presented the testimony of Scott Payne and
three exhibits: (1) a study concerning the effectiveness of GPS monitoring of sex
offenders, referred to as “the California Study”; (2) a certified copy of Defendant’s plea
transcript, indicating that in 2014 he pleaded guilty to the charge of taking indecent
liberties with a child; and (3) Defendant’s STATIC-99 assessment. On 8 November
2018, after considering the evidence presented and the arguments of counsel, the trial
court entered its order subjecting Defendant to lifetime satellite-based monitoring
upon his release from prison. Defendant timely filed written notice of appeal from the
satellite-based monitoring order.
Discussion
Our General Statutes provide for a “ ‘sex offender monitoring program that
uses a continuous satellite-based monitoring system designed to monitor’ the
locations of individuals who have been convicted of certain sex offenses.” State v.
Gordon (“Gordon II”), __ N.C. App. __, __, 840 S.E.2d 907, 909, temp. stay allowed,
374 N.C. 430, 839 S.E.2d 351 (2020) (quoting N.C. Gen. Stat. § 14-208.40(a) (2019)).
“The present satellite-based monitoring program provides ‘time-correlated and
continuous tracking of the geographic location of the subject using a global
-2- STATE V. LINDQUIST
positioning system based on satellite and other location tracking technology.’ ” Id.
(quoting N.C. Gen. Stat. § 14-208.40(c)(1)).
“The United States Supreme Court has determined that the monitoring of an
individual under North Carolina’s [satellite-based monitoring] program constitutes a
continuous warrantless search of that individual.” State v. Gambrell, __ N.C. App. __,
__, 828 S.E.2d 749, 750 (2019) (citing Grady v. North Carolina (“Grady I”), 575 U.S.
306, 310, 191 L. Ed. 2d 459, 462 (2015)). As a warrantless search, any order subjecting
an individual to satellite-based monitoring is subject to analysis under the Fourth
Amendment to the United States Constitution. “[T]he trial court must conduct a
hearing in order to determine the constitutionality of ordering the targeted individual
to enroll in the satellite-based monitoring program.” Gordon II, __ N.C. App. at __,
840 S.E.2d at 909 (citing Grady I, 575 U.S. at 310, 191 L. Ed. 2d at 462).
In State v. Grady (“Grady III”), 372 N.C. 509, 831 S.E.2d 542 (2019), our
Supreme Court conducted the balancing test prescribed by the United States
Supreme Court:
The balancing analysis that we are called upon to conduct here requires us to weigh the extent of the intrusion upon legitimate Fourth Amendment interests against the extent to which the [satellite-based monitoring] program sufficiently promotes legitimate governmental interests to justify the search, thus rendering it reasonable under the Fourth Amendment. In this aspect of the balancing test, we consider the nature and immediacy of the governmental concern at issue here, and the efficacy of this means for meeting it.
-3- STATE V. LINDQUIST
Grady III, 372 N.C. at 538, 831 S.E.2d at 564 (internal citation and quotation marks
omitted) (citing Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652-53, 660, 132 L.
Ed. 2d 564, 574, 579 (1995)).
In State v. Griffin (“Griffin II”), __ N.C. App. __, 840 S.E.2d 267, temp. stay
allowed, 374 N.C. 267, 838 S.E.2d 460 (2020), this Court applied the Grady III
analysis, listing the three factors to be balanced in determining the constitutionality
of the search, under the totality of the circumstances:
(1) the nature of the defendant’s legitimate privacy interests in light of his status as a registered sex offender[;] (2) the intrusive qualities of [satellite-based monitoring] into the defendant’s privacy interests[;] and (3) the State’s legitimate interests in conducting [satellite-based] monitoring and the effectiveness of [satellite-based monitoring] in addressing those interests[.]
Griffin II, __ N.C. App. at __, 840 S.E.2d at 271 (citations omitted).
We also highlighted the emphasis in Grady III on efficacy when conducting
such an analysis, noting that our Supreme Court “wrote that a problem justifying the
need for a warrantless search cannot simply be assumed; instead, the existence of the
problem and the efficacy of the solution need to be demonstrated by the government.”
Id. at __, 840 S.E.2d at 272 (emphasis added) (citation and internal quotation marks
omitted). Although evidence that satellite-based monitoring is effective is merely one
factor to be considered, “[t]he State’s inability to produce evidence of the efficacy of
the lifetime [satellite-based monitoring] program in advancing any of its asserted
-4- STATE V. LINDQUIST
legitimate State interests weighs heavily against a conclusion of reasonableness[.]”
Id. at __, 840 S.E.2d at 273 (citation omitted).
Here, we are unable to determine the basis of the trial court’s decision to
subject Defendant to lifetime satellite-based monitoring, particularly with regard to
the efficacy of satellite-based monitoring, because of a discrepancy between the study
admitted into evidence as State’s Exhibit #1 and the study referenced in the trial
court’s order as State’s Exhibit #1.
During the satellite-based monitoring hearing, the State called Scott Payne,
an employee of the Department of Public Safety Sex Offender Management Office, as
a witness. In addition to testifying to his work in the field of sex offender
management, Payne testified concerning a 2015 study titled “Does GPS Improve
Recidivism among High Risk Sex Offenders? Outcomes for California’s GPS Pilot for
High Risk Sex Offender Parolees,” which addressed the efficacy of satellite-based
monitoring of sex offenders. The parties and the trial court continued to reference
“the California Study” for the remainder of the hearing, and a copy of the California
Study was admitted into evidence without objection as State’s Exhibit #1.
In fact, there are two California studies at issue in the case at bar: “Monitoring
High-Risk Sex Offenders With GPS Technology: An Evaluation of the California
Supervision Program Final Report” (the “2012 California Study”), and “Does GPS
Improve Recidivism among High Risk Sex Offenders? Outcomes for California’s GPS
-5- STATE V. LINDQUIST
Pilot for High Risk Sex Offender Parolees” (the “2015 California Study”). At the
satellite-based monitoring hearing, the 2012 California Study was not discussed;
however, the 2015 California Study was discussed at length, and a copy of the study
was admitted into evidence as State’s Exhibit #1:
[THE STATE]: . . . Your Honor, if I could mark what we commonly refer to as the California study as State’s Exhibit 1. May I approach?
THE COURT: Yes. Any objection?
[DEFENSE COUNSEL]: No, Your Honor.
THE COURT: All right. It is admitted. State’s Exhibit 1 as being the California study -- it’s titled --
(Whereupon State’s Exhibit 1 was marked into evidence.)
[THE STATE]: “Does GPS improve recidivism among high- risk offenders, outcomes for California’s GPS pilot for high- risk sex offenders/parolees.” May I approach again?
THE COURT: Yes. It is admitted without objection.
(Emphasis added).
The trial court’s satellite-based monitoring order, however, refers to the 2012
California Study as State’s Exhibit #1:
In ruling on this motion the [c]ourt considered the following evidence and testimony: State’s Exhibit 1 – Monitoring High-Risk Sex Offenders With GPS Technology: An Evaluation[ ]of the California Supervision Program Final Report (2012).
-6- STATE V. LINDQUIST
It is manifest that the trial court relied on “the California Study’s” findings
regarding the efficacy of satellite-based monitoring in making its determination that
Defendant should be subject to lifetime satellite-based monitoring. Three of the trial
court’s findings of fact specifically refer to the study:
1. In ruling on this motion the [c]ourt considered the following evidence and testimony: State’s Exhibit 1 – Monitoring High-Risk Sex Offenders With GPS Technology: An Evaluation[ ]of the California Supervision Program Final Report (2012). State’s Exhibit 2 – Certified Copy of Defendant’s Conviction of Taking Indecent Liberties With a Child case no. 13CRS 52182 in Sampson County. State’s Exhibit 3 – The Static 99 the Static 99 [sic] risk reporting statement of the Defendant Lindquist. Also the testimony of Scott Payne from the Sex Offender Management Office of Department of Public Safety.
....
6. The [c]ourt has also considered The California Study, which has been admitted as State’s Exhibit 1. In the conclusions for The California Study, it was found that the GPS parolees were overall: 1. Less likely to receive a violation for a new crime; 2. The subjects in the GPS group had better outcomes in terms of sex-related violations and new arrests; 3. Reduced absconding and registration failures with the use of GPS is an important finding in that the whereabouts of sex offenders is a critical component of effectively monitoring them in the community; 4. Finding that the comparison group parolees were more likely to be guilty of a parole violation for a criminal offense, may indicate that the GPS deterred criminal behavior among sex offenders who would have otherwise committed a new offense.
-7- STATE V. LINDQUIST
7. The California Study found that the GPS monitoring of sex offenders has demonstrated benefits. That study found that offenders monitored by GPS “demonstrate significantly better outcomes for both compliance and recidivism.”
(Emphases added). It is unclear, however, on which “California Study” the trial court
relied in reaching its ultimate decision in this case.
In light of the uncertainty surrounding a material basis of the trial court’s
decision and the significant Fourth Amendment interests at stake, we decline to
review this matter without resolution of the question of upon which “California
Study” the trial court relied.
Conclusion
Accordingly, we vacate the satellite-based monitoring order and remand this
matter to the trial court for the limited purpose of amending the order to clarify upon
which study the trial court relied in making its determination that Defendant should
be subject to lifetime satellite-based monitoring.
VACATED AND REMANDED.
Chief Judge McGEE and Judge DIETZ concur.
-8-