STATE of North Carolina v. Orlando COOPER

No. COA18-637

Court of Appeals of North Carolina.

Filed: March 5, 2019

Attorney General Joshua H. Stein, by Special Deputy Attorney General Sonya M. Calloway-Durham, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas C. Woomer-Deters, for defendant.

DIETZ, Judge.

Defendant Orlando Cooper appeals the trial court's imposition of lifetime satellite-based monitoring. We vacate the trial court's order for the reasons discussed in *State v. Griffin* , --- N.C. App. ----, 818 S.E.2d 336 (2018).

In *Griffin* , this Court held that the Fourth Amendment prohibits a trial court from imposing lifetime satellite-based monitoring on a convicted sex offender unless the State presents evidence that this type of monitoring "is effective to protect the public from sex offenders." *Id.* at ----, 818 S.E.2d at 337. The Court further held that the efficacy of satellite-based monitoring is not self-evident-that is, that the State cannot rely solely on the common-sense assumption "that an offender's awareness his location is being monitored does in fact deter him from committing additional offenses." *Id.* at ----, 818 S.E.2d at 341. Likewise, the Court held that the State cannot rely on "decisions from other jurisdictions stating that [satellite-based monitoring] curtails sex offender recidivism." *Id.* Simply put, after *Griffin* , trial courts cannot impose satellite-based monitoring unless the State presents actual evidence-such as "empirical or statistical reports"-establishing that lifetime satellite-based monitoring prevents recidivism. *Id.*

Here, the State did not present the sort of evidence required by *Griffin* -likely because the hearing in this case occurred before this Court decided *Griffin* . Nevertheless, *Griffin* is controlling precedent on direct appeal. Although the Supreme Court stayed the judgment of this Court in *Griffin* , it did not stay our mandate. *See* *State v. Griffin* , --- N.C. ----, 817 S.E.2d 210 (2018). Moreover, *Griffin* largely relies on the reasoning of *State v. Grady* , --- N.C. App. ----, ----, 817 S.E.2d 18, 27-28 (2018) (*Grady II* ), which the Supreme Court has not stayed. Thus, we are bound by the *Griffin* holding in this appeal. *See* *In re Civil Penalty* , 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). We therefore vacate the imposition of lifetime satellite-based monitoring in this case.

We note that there is disagreement amongst the judges of this Court concerning the holdings of *Griffin* and its companion cases, and that review of several of those cases is pending in our Supreme Court. *See, e.g* ., *Griffin* , --- N.C. App. at ----, 818 S.E.2d at 342-44 (Bryant, J., dissenting); *Grady* , --- N.C. App. at ----, 817 S.E.2d at 28-31 (2018) (Bryant, J., dissenting); *State v. Westbrook* , --- N.C. App. ----, 817 S.E.2d 794, 2018 WL 4200974, at *4-7 (2018) (Dillon, J. dissenting) (unpublished); *State v. White* , --- N.C. App. ----, 817 S.E.2d 795, 2018 WL 4200979, at *9 (2018) (Dillon, J., dissenting) (unpublished); *State v. Gordon* , --- N.C. App. ----, ----, 820 S.E.2d 339, 349-50 (2018) (Dietz, J., concurring in the judgment). Thus, although we reject the State's arguments as squarely precluded by *Griffin* and *Grady II* , we emphasize that the State has preserved those arguments for further review in the Supreme Court.

VACATED.

Report per Rule 30(e).

Judges STROUD and MURPHY concur.