By Mitch Kokai, Carolina Journal

The N.C. Supreme Court split 4-3 today while ruling against defendants in a pair of cases involving satellite-based monitoring of convicted sex offenders.

In both cases, Democratic Justice Michael Morgan joined with the court's three Republicans to form a four-vote majority. Chief Justice Paul Newby wrote the majority opinions in both cases.

State v. Hilton involved the case of a man convicted in 2005 of first-degree rape. Defendant Donald Eugene Hilton admitted to having sex with one "minor child" and sexual contact with another while a third minor child watched.

After serving 12 years behind bars, Hilton was charged again in 2018 with sexually assaulting his niece, another minor. A trial court then ordered Hilton to be enrolled in the state's lifetime SBM program.

Previous court rulings, including one from the U.S. Supreme Court, have limited situations in which the state can impose SBM. But Newby and the state Supreme Court's majority rejected arguments that SBM is unconstitutional in Hilton's case.

"[T]he imposition of SBM on a limited category of sex offenders is constitutional so long as it is reasonable," Newby wrote.

Hilton "falls into the aggravated offender category, which consists of defendants who are subject to SBM due to their conviction of at least one statutorily defined 'aggravated offense,'” the chief justice continued. "A limited number of very serious sexual offenses such as rape are categorized as aggravated."

"Defendant’s crime being one of the most serious sex offenses impacts our weighing of the reasonableness factors, including society’s interest in protecting its most vulnerable members and the expectation of privacy that society recognizes as legitimate."

Newby and the majority found that, "given the totality of the circumstances," satellite-based monitoring is reasonable for Hilton.

"The purpose of the SBM program to protect the public from sex crimes
is of paramount importance, and an aggravated offender’s reasonable expectation of privacy is significantly diminished," Newby concluded. "The incremental nature of a search providing location information and the method of data collection via an ankle bracelet are more inconvenient than intrusive."

Newby and his colleagues also rejected the argument that SBM amounted to a "general warrant" banned in Article I, Section 20 of the N.C. Constitution.

The case's three dissenters objected to the court issuing an opinion without addressing recent changes to the state's SBM law. They also rejected the majority's reasoning.

"Even on its own terms, the majority’s soon-to-be-irrelevant conclusion that imposing lifetime SBM on Mr. Hilton is constitutional, based solely upon his status as having been convicted of an aggravated offense, ... without an assessment of his individual circumstances, and absent any evidence in the record indicating that lifetime SBM serves the State’s asserted interest, is patently incorrect," wrote Justice Anita Earls. "The majority reaches this conclusion only by flouting or mischaracterizing precedents from this Court and the United States Supreme Court and by disregarding the Fourth Amendment."

In State v. Hicks, the same four-justice majority reversed the N.C. Court of Appeals and reinstated SBM for a sex offender. This case involved procedural questions for defendant Johnathan Hicks's appeal. Hicks had been convicted of multiple counts of statutory rape, statutory sex offense, and taking indecent liberties with a child.

"Here the Rules of Appellate Procedure bar defendant’s appeal," Newby wrote. "Defendant failed to demonstrate any manifest injustice sufficient to warrant invoking Rule 2, and his petition to the Court of Appeals showed no merit. Therefore, the Court of Appeals abused its discretion when it allowed defendant’s petition for writ of certiorari and invoked Rule 2 to review the SBM orders."

"Rule 2" allows either the Court of Appeals or Supreme Court to suspend other rules "to prevent manifest injustice to a party, or to expedite decision in the public interest." When a court grants a "writ of certiorari," it is agreeing to hear a case at its own discretion.

Dissenters in Hicks would have sided with the Appeals Court. "Given the state of the law at the time, I cannot conclude that the Court of Appeals abused its discretion when it invoked Rule 2 to reach the merits of this case
where there was no hearing regarding the constitutionality of lifetime SBM and the trial court imposed lifetime SBM -- a never-ending warrantless search -- without any argument from the parties or evidence from the State," wrote Justice Robin Hudson.

"I would hold that the Court of Appeals did not abuse its discretion when it concluded that defendant had a meritorious claim and allowed defendant’s petition for a writ of certiorari," Hudson added.

The state Supreme Court has issued 4-3 split rulings 12 times this year among 114 total cases.