Electronic monitoring of a person convicted of misdemeanor failure to register as a sex offender is no longer mandatory based on a South Carolina Supreme Court opinion issued June 13. Instead, the court must now rule on the reasonableness of such an imposition on a case-by-case basis.

“It’s a giant step in the right direction for individuals and the Fourth Amendment, to see people as individuals with unique circumstances,” said appellate defender LaNelle DuRant, of Columbia, who argued on behalf of David Ross.

The decision stems from Ross’s 2011 conviction in Greenville County Circuit Court of misdemeanor failure to register as a sex offender. Ross previously pleaded guilty to committing lewd acts upon a child in 1979.

In court, Ross argued that subsection 23-3-540(E) of the South Carolina Code is unconstitutional because it automatically imposes lifetime electronic monitoring on anybody who fails to register as a sex offender, regardless of their circumstances. Ross argued that such a rule unreasonably violates his Fourth Amendment right to privacy.

The court ultimately decided that while the mandatory language in the law is constitutional, it needs to be clarified. As a result, the court found “it necessary to overlay the protections of the Fourth Amendment onto the provisions of subsection 23-3-540(E).”

The state argued before the South Carolina Supreme Court that the automatic, mandatory requirement is reasonable based on the state court’s decision in State v. Dykes (2013).

In that case, Dykes argued a Fourth Amendment challenge to automatic, mandatory electronic monitoring based on a parole violation.

While the South Carolina Supreme Court upheld the electronic monitoring requirement in that case, they cautioned that the circumstances in Dykes were quite different, and that the Fourth Amendment challenge was only addressed as a footnote in a memorandum opinion.

Otherwise, the court said the context was also quite different. In Dykes, the defendant violated multiple conditions of her probation after she pleaded guilty to committing a lewd act upon a child and served some, but not all, of her court-ordered prison time.

Columbia defense attorney Dick Harpootlian, who previously served as the Richmond County solicitor, explained the difference.

“What they basically say is that parole is a matter of grace, that is, it’s not a right,” Harpootlian said. “When you’re on parole, you consent to unreasonable searches. So, it’s a totally different situation. Here, it’s a guy who’s not been on parole, not on probation and after 30 years they say he has to register now because he meets the criteria. It’s a reasonable distinction and I don’t think anyone would argue with that.”

While the court was not privy to the details of Ross’s violation, they said there are many ways that an offender might unintentionally violate the protocol for registering as a sex offender.

“We can readily imagine a scenario in which an offender commits a purely technical violation,” the court said in its opinion.

The court ruled that electronic monitoring should therefore be implemented on a case-by-case basis after determining that such action would not be an unreasonable search.

“We believe this discussion of the widely varying circumstances that may lead to automatic, mandatory electronic monitoring imposed for failure to register demands an individualized inquiry into the reasonableness of the search in every case,” the court said.

The court ultimately concluded that interpreting 23-3-540(E) as unconstitutional, as Ross suggested, would be a mistake.

Harpootlian explained, “There’s a presumption the statute is constitutional when someone challenges it in court, so it’s a heavy burden to have a statute declared unconstitutional, especially in the light of the fact that the court’s duty is to uphold it and look for a way to uphold it.”

He added, “They’ve taken the phrase ‘must be ordered by the court’ and said … they can’t order this electronic monitoring until the court has done an analysis of the totality of the circumstances of that particular case.”

As a result, the Supreme Court reversed the circuit court’s order placing Ross on electronic monitoring and sent it back to the trial court so that the circumstances of his violation could be considered.

Justice John Few wrote the near-unanimous majority opinion, while Chief Justice Donald Beatty concurred, but only in the result. .

DuRant said that the state now has 15 days to file for a petition for rehearing before the case goes back to the circuit court.

Without commenting further on his particular circumstances, she said she she believes Ross  has a strong shot at avoiding electronic monitoring.

Follow Matthew Chaney on Twitter @SCLWChaney

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