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NC Court of Appeals ruling: Tracking sex offenders for decades considered a search

RALEIGH, N.C. (WNCN) - A North Carolina Court of Appeals ruling this could week is a win for advocates of changing some of the sex offender registry laws.

The Raleigh-based National Association for Rational Sexual Offense Laws (NARSOL) works to reform sex offender laws, and their efforts include challenging requirements and restrictions in state and federal courts. In recent years, judges reviewed legal filings about satellite-based monitoring (SBM) through ankle tracking devices.

A 2015 United States Supreme Court ruling in Grady v. North Carolina considered the question of whether or not wearing a GPS monitor constitutes a search under the Fourth Amendment of the United States Constitution.

"The court unanimously held that when the government puts a satellite-based monitoring ankle on a citizen, that's a search," NARSOL spokesperson Robin Vanderwall said. "Since then it's been a question of at what point is that search unreasonable, because that's the touchstone of the Fourth Amendment, is reasonableness.

"Wth the Griffin decision, the court pretty clearly says that without the state demonstrating the effectiveness of the monitoring system, without any evidence of putting the ankle monitor on somebody actually helps to make the public safer, that no amount of time is reasonable."

The Griffin v. North Carolina  decision filed Tuesday by the North Carolina Court of Appeals ruled 2-1 that law enforcement can't force offenders to wear tracking devices for decades. The majority opinion cited the United States Court of Appeals for the Fourth Circuit in a decision regarding the constitutionality of premises restrictions for sex offenders:

The State tries to overcome its lack of data, social science or scientific research, legislative findings, or other empirical evidence with a renewed appeal to anecdotal case law, as well as to “logic and common sense.” But neither anecdote, common sense, nor logic, in a vacuum, is sufficient to carry the State’s burden of proof. 

"The Fourth Circuit very pointedly told the state, 'you have a burden to produce facts and we'd like to see some, thank you very much,'" Vanderwall said. "They have no evidence to suggest that any of these laws make the public safer."

Vanderwall spent nearly seven years in prison and just as long on probation after a non-contact sex crime where he was convicted of soliciting minors online. He is now on the sex offender registry and is required to complete multiple check-ins with the Wake County Sheriff's Office every year.

He and others with NARSOL and the North Carolina chapter NCRSOL hope there will be changes to the registry which groups all offenders together regardless of the extent of their offense.

"There's some reasonableness to some of these restrictions, but the problem with these restrictions is they're blanket restrictions. There is absolutely no individual assessment of the people that these restrictions apply to," Vanderwall said.

"More and more federal courts are pushing back against the state's never-ending, ceaseless argument that 'we know it works because it works.' That's pretty much the argument. Well do you have any facts?"

North Carolina tracks a small percentage of the state's 15,400 registered sex offenders using ankle monitors. Wake County Sheriff Donnie Harrison said he views ankle monitors as an effective tool and deterrent.

"The judge put this on them for a reason, and if we do not follow up, and something bad happens, who's going to get the blame for it? Me. Or law enforcement. We do what I think is right," Harrison said.

"It's a good device. It's something that's needed. Some people argue with you about it, but hey, that's a part of their sentencing, that's part of their probation process, and they've got to abide by it."

Vanderwall said he agrees with the sheriff about using the trackers during a person's probation, but not beyond it.

"There is some limited evidence that in a probation setting, the tool is effective, but not just for sex offenders. It's used across the entire spectrum of criminal defendants who are released from prison. There's probably some argument to be made there," he said.

"There is no evidence that it is an effective tool to do what it alleges it does in these cases, and that is to reduce recidivism and protect the public. There's zero evidence of that, and this is what the court says in this opinion."

North Carolina sheriffs are required to do checks on registered sex offenders twice a year. Harrison said his office tries to do it six times a year. Vanderwall described Harrison's verification system as "aggressive", and said he has received visits from deputies either three or four times in the past six months.


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