{
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  "name": "STATE OF NORTH CAROLINA v. KENNY JERMAINE MARTIN, Defendant",
  "name_abbreviation": "State v. Martin",
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    "judges": [
      "Judges ELMORE and BEASLEY concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. KENNY JERMAINE MARTIN, Defendant"
    ],
    "opinions": [
      {
        "text": "STROUD, Judge.\nOn 19 January 2012, defendant was ordered to \u201cenroll in satellite-based monitoring\u201d (\u201cSBM\u201d) for \u201cthe remainder of . . . [his] natural life[.]\u201d Defendant appealed arguing solely that\n[t]he trial court erred in determining that. . . [he] was required to submit to satellite-based monitoring where such monitoring would require him to waive his rights under the United States Constitution against unreasonable search and seizure or be subject to criminal prosecution for noncompliance, and where . . . [his] citizenship rights had been restored.\n(original in all caps). Defendant contends that SBM\nwould require ... [him] to allow DOC officials to make routine warrantless entries into his home, despite the fact that he has completed his sentence, is not on probation, and has had his citizenship rights restored. As applied to . . . [him], North Carolina\u2019s satellite-based monitoring scheme would result in the permanent forfeiture of. . . [his] Fourth Amendment rights under the United States Constitution, or would place him in a position where he is forced to choose between forever waiving his Fourth Amendment rights or face criminal prosecution for failing to cooperation with the DOC.\n\u201cThe standard of review is de novo.\" State v. Bare, 197 N.C. App. 461, 464, 677 S.E.2d 518, 522 (2009) (stating that whether SBM violated a constitutional provision should be reviewed de novo), disc. review denied, 364 N.C. 436, 702 S.E.2d 492 (2010). Defendant concedes that in considering \u201cthe Fourth Amendment rights of those convicted felons subject to SBM\u201d our Supreme Court has stated that\nit is beyond dispute that convicted felons do not enjoy the same measure of constitutional protections, including the expectation of privacy under the Fourth Amendment, as do citizens who have not been convicted of a felony. Here felons convicted of multiple counts of indecent liberties with children are not visited by DCC personnel for random searches, but simply to ensure the SBM system is working properly.\nState v. Bowditch, 364 N.C. 335, 349-50, 700 S.E.2d 1, 11 (2010) (emphasis added) (citations omitted).\nDefendant contends that the quoted portion of Bowditch is \u201cdictum\u201d and \u201cnot applicable.\u201d We disagree. InBowditch, the \u201c[defendants dispute [d] their eligibility for SBM, arguing that their participation would violate guarantees against ex post facto laws contained in the federal and state constitutions.\u201d Id. at 336, 700 S.E.2d at 2. The defendants prevailed on their argument at the trial level; the State appealed, and defendants petitioned the Supreme Court \u201cto address the significant constitutional question at issue.\u201d Id. at 337, 700 S.E.2d at 3. Our Supreme Court allowed defendants\u2019 petition. Id. The Court was thus required to consider whether SBM was sufficiently punitive that it would be a punishment or if it was instead a civil regulatory scheme. Id. at 341-42, 700 S.E.2d at 6. The Court determined that\n[t]he SBM program at issue was enacted with the intent to create a civil, regulatory scheme to protect citizens of our state from the threat posed by the recidivist tendencies of convicted sex offenders. . . . [W]e conclude that neither the purpose nor effect of the SBM program negates the legislature\u2019s civil intent. Accordingly, subjecting defendants to the SBM program does not violate the Ex Post Facto Clauses of the state or federal constitution.\nId. at 352, 700 S.E.2d at 13.\nBowditch considered the defendants\u2019 argument that SBM was punitive in effect, in part because SBM requires certain infringements upon the offender\u2019s privacy as required for DCC\u2019s maintenance of the SBM equipment, including visits to his home. Id. at 349-50, 700 S.E.2d at 11. Thus, our Supreme Court considered the fact that offenders subject to SBM are required to submit to visits by DCC personnel and determined that this type of visit is not a search prohibited by the Fourth Amendment, id., exactly the opposite of what defendant herein claims. As the Fourth Amendment was one of the factors which the Supreme Court considered to support its conclusion of the punitive effect of SBM, see id., this language would not be dicta. See generally State v. Breathette, 202 N.C. App. 697, 701, 690 S.E.2d 1, 4 (\u201cLanguage in an opinion not necessary to the decision is obiter dictum[.]\"') (citation and quotation marks omitted), disc. review denied, 364 N.C. 242, 698 S.E.2d 656 (2010).\nBut even if we were to assume arguendo that the quoted language from Bowditch is dicta, we find the Supreme Court\u2019s reasoning in that case highly persuasive- and would apply it here. See Ellis-Walker Builders, Inc. v. Don Reynolds Properties, LLC, 205 N.C. App. 306, 309, 695 S.E.2d 832, 835 (2010) (applying dicta as persuasive authority). Accordingly, we affirm the order of the trial court ordering defendant to enroll in SBM.\nAFFIRMED.\nJudges ELMORE and BEASLEY concur.",
        "type": "majority",
        "author": "STROUD, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy A. Cooper, III, by Assistant Attorney General Lisa Y Harper, for the State.",
      "Ryan McKaig, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. KENNY JERMAINE MARTIN, Defendant\nNo. COA12-553\n(Filed 20 November 2012)\nSatellite-Based Monitoring \u2014 remainder of natural life \u2014 does not violate ex post facto clauses of constitution\nThe trial court did not err by ordering defendant to enroll in satellite-based monitoring (SBM) for the remainder of his natural life. Subjecting defendants to the SBM program does not violate the Ex Post Facto Clauses of the state or federal constitution.\nAppeal by defendant from order entered 19 January 2012 by Judge James M. Webb in Superior Court, Moore County. Heard in the Court of Appeals 24 October 2012.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Lisa Y Harper, for the State.\nRyan McKaig, for defendant-appellant."
  },
  "file_name": "0507-01",
  "first_page_order": 517,
  "last_page_order": 519
}