NC Dem Judges Soft on Sex Crimes

Court trying to 'make a broad policy statement,' dissenting Republican claims

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The Democratic majority on North Carolina's supreme court ruled to let a child porn offender go free on a technicality and allowed serial sexual offenders to avoid GPS monitoring in two decisions released in August.

The decisions illustrate a major shift in the state's supreme court, which has swung decisively into Democratic hands. In 2019, Democratic governor Roy Cooper elevated Judge Cheri Beasley (D.) to the role of chief justice, and replaced her with Judge Mark Davis (D.). Anita Earls (D.) defeated incumbent Republican Barbara Jackson in a 2018 election thanks in part to Chris Anglin's entry into the race. Anglin ran as a Republican despite being a registered Democrat less than a month before the election's filing deadline and garnered nearly 600,000 votes in a race decided by 566,488 votes. Earls worked at the progressive Southern Coalition for Social Justice prior to her election and had no judicial experience before taking her seat on the state's high court.

Democrats hold a 6-1 majority on the state supreme court, up from the 4-3 advantage liberals had before Earls's election. The sole GOP holdout is Judge Paul M. Newby.

The court's new composition might help explain its reasoning in the two decisions handed down in August; Earls authored both opinions. The first case, State v. Terrell, focused on James Terrell, whose girlfriend discovered a lewd photo of her nine-year-old granddaughter on a USB drive owned by Terrell. She took the USB drive to the police, who searched it more thoroughly and uncovered additional images. Jones was eventually convicted of multiple counts of sexual exploitation of a minor.

Terrell’s lawyers challenged the conviction, arguing that the police's search of his thumb drive violated his Fourth Amendment right to privacy. In a five-to-one opinion, the court agreed. While the U.S. Supreme Court has ruled that a warrantless search may be permissible if it is based on "private information," the North Carolina majority wrote that the mere fact that Terrell's girlfriend opened the thumb drive did not permit a search of all of its contents.

"Unlike rifling through the contents of a cardboard box, a foray into one folder of a digital storage device will often expose nothing about the nature or the amount of digital information that is, or may be, stored elsewhere in the device," the majority wrote. "Following the mere opening of a thumb drive by a private individual, an officer cannot proceed with ‘virtual certainty that nothing else of significance' is in the device ‘and that a manual inspection of the [thumb drive] and its contents would not tell him anything more than he already had been told.' Rather, there remains the potential for officers to learn any number and all manner of things ‘that had not previously been learned during the private search.'"

In other words, the search was illegitimate because Terrell's girlfriend did not view the illicit contents herself, while the police did view them without a warrant.

Newby, the bench's lone Republican, dissented.

"The majority holds that . . . if the private searcher did not open every file, there is a possibility defendant's reasonable expectation of privacy to any unopened file has not been frustrated by the private search," Newby wrote. "Therefore, by simply opening the thumb drive, law enforcement committed an unlawful search. Even though it is indisputable that the grandmother opened the file containing the granddaughter's image, because the thumb drive contained files not searched by her, law enforcement cannot open it."

Newby similarly found himself in the minority — although joined by a single colleague — in State v. Grady. The case challenged North Carolina's satellite-based monitoring (SBM) program, which involves attaching an ankle monitor to convicted sex offenders like Torrey Grady. Previously, Grady had successfully petitioned the U.S. Supreme Court to rule that the ankle monitoring program qualified as a search for purposes of the Fourth Amendment. His particular case was remanded for a state rehearing in light of this conclusion.

In its majority opinion, the North Carolina Supreme Court found that the ankle monitor "search" was unconstitutional, saying that it constituted a warrantless, suspicion-less, indefinite search of Grady, in spite of his status as a serial sexual offender. The court majority went further, declaring that the SBM's application to the entire category of otherwise unsupervised serial sex offenders is unconstitutional.

"Using the remand as an opportunity to make a broad policy statement, the majority, though saying it addresses only one statutory classification, recidivist, applies an unbridled analysis which understates the crimes, overstates repeat sex offenders' legitimate expectations of privacy, and minimizes the need to protect society from this limited class of dangerous sex offenders," Newby wrote in his Grady dissent. "The majority's sweeping opinion could be used to strike down every category of lifetime monitoring under the SBM statute."