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South Carolina Supreme Court Rules Mandatory Electronic Monitoring of Sex Offenders Must Be ‘Reasonableness’ Under Fourth Amendment

by Dale Chappell

The Supreme Court of South Carolina held that a state law requiring mandatory electronic monitoring of sex offenders must meet the “reasonableness” standard under the U.S. and South Carolina Constitutions, which requires an examination of the totality of the circumstances before such a condition may be imposed.

When David Ross was convicted of a lewd act upon a child in 1979, a misdemeanor at the time, the sex offender registry did not exist. In 1994, when South Carolina enacted the Sex Offender Registry Act (“SORA”) in response to the federal Sex Offender Registration Notification Act (“SORNA”), Ross was required to register every six months for the rest of his life. Ross was convicted in 2011 of a technical violation of SORA for failing to register, and the Court was required to impose mandatory electronic monitoring on Ross for life.

Ross appealed, arguing that mandatory electronic monitoring is an unconstitutional search under the Fourth Amendment, because it requires a court to impose the condition without considering a person’s unique circumstances. Ross presented a “psychosexual evaluation” that showed he was in the “lowest category of risk” of reoffending. The circuit court disagreed, finding that it was required under the law to impose the monitoring condition. The South Carolina Supreme Court certified the case for further appeal.

The Fourth Amendment protects citizens from unreasonable searches.

In Grady v. North Carolina, 135 S. Ct. 1368 (2015), the U.S. Supreme Court clarified that electronic monitoring of sex offenders is a “search” under the Fourth Amendment that requires a determination of reasonableness based “on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations.”

The electronic monitoring condition is triggered when a person is convicted of a new sex offense, violates their sex offender probation, or violates SORA. Certain offenses, such as Ross’, require automatic and mandatory monitoring; others leave it to the court’s discretion. The monitoring device records a person’s location “at least once every minute twenty-four hours a day” and reports when the person goes near a “prohibited area.” S.C. Code Ann. § 23-3-540(P). The goal of SORA is to prevent recidivism, the Court recognized.

The State argued that the South Carolina Supreme Court’s decision in State v. Dykes, 744 S.E.2d 505 (S.C. 2013) allowed the Court to impose automatic and mandatory electronic monitoring on Ross. In Dykes, the Court held that the mandatory condition in § 23-3-540 survived Fourth Amendment scrutiny. However, the Court rejected the State’s argument that Dykes governs the current case, noting that Dykes was a due process challenge based on a probation violation. The basis of Dykes, the Court said, would not apply to Ross’ case, which is a reasonableness determination under the Fourth Amendment.

The Court then turned its attention to “the likelihood that a relatively innocent technical failure to register may lead to automatic, mandatory electronic monitoring pursuant to subsection 23-3-540(E)….” In addition, offenders must comply with various registration requirements under SORNA as well as regulations promulgated by the State Law Enforcement Division in association with their SORA obligations.

With the many registration requirements pursuant to the governing laws and regulations, the Court observed, “We can readily imagine a scenario in which an offender commits a purely technical violation [of one of the laws or regulations]. Such a violation would nevertheless subject him to conviction … and if he is convicted, require electronic monitoring….”

“While we are hopeful and confident that local registration officials endeavor to avoid catching an offender in a purely technical violation, an offender’s miscalculation of either of these variables could potentially lead to automatic, mandatory electronic monitoring,” the Court said optimistically.

Such a technical violation would nevertheless subject a person to electronic monitoring for life under SORA. For this reason, “mandatory electronic monitoring for failure to register demands an individualized inquiry into the reasonableness of the search in every case,” the Court concluded. A court imposing electronic monitoring, therefore, must find that it “would not be an unreasonable search based on the totality of the circumstances presented.” The Court emphasized that its decision is precedential only in cases where the State seeks imposition of electronic monitoring pursuant to subsection 23-3-540(E).

The Court advised that, “Further guidance on what is and is not reasonable must necessarily wait until we are presented with a full factual record.”

Accordingly, the South Carolina Supreme Court reversed the circuit court’s order imposing electronic monitoring on Ross and remanded for further proceedings. See: State of South Carolina v. Ross, 423 S.C. 504 (2018). 

 

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State of South Carolina v. Ross




 

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