PEOPLE V HALLAK
Docket No. 317863
Court of Appeals of Michigan
Submitted May 6, 2015. Decided May 28, 2015.
310 Mich. App. 555
Leave to appeal sought.
Kassem Mahmoud Hallak, a medical doctor, was convicted in the Eaton Circuit Court of second-degree criminal sexual conduct (CSC-II),
The Court of Appeals held:
1. The Due Process Clauses of the Fourteenth Amendment and the Michigan Constitution,
2. The United States Supreme Court held in Alleyne v United States, 570 US ___; 133 S Ct 2151 (2013), that a court cannot use facts not found by the jury or admitted by the defendant when sentencing the defendant. People v Herron, 303 Mich App 392, 399 (2013), however, held that the Alleyne rule does not apply to the scoring of Michigan‘s sentencing guidelines, and Herron controlled that issue in this case. Accordingly, defendant‘s argument on this point was precluded by Court of Appeals precedent. (Following the decision in this case, however, the Michigan Supreme Court decided in People v Lockridge, 498 Mich 358 (2015), that Alleyne does apply to Michigan‘s sentencing guidelines, and it subsequently reversed the Court of Appeals’ judgment in Herron in part. 498 Mich at 399.)
3.
4. Defendant could not overcome the presumption that the lifetime electronic monitoring requirement is neither cruel nor unusual. In deciding if punishment is cruel or unusual, a court must examine the gravity of the offense and the harshness of the penalty, comparing the punishment to the penalty imposed for other crimes in this state, as well as the penalty imposed for the same crime in other states. The dominant test concerns proportionality, that is, whether the punishment is so excessive that it is completely unsuitable to the crime. The goal of rehabilitation is also a consideration. If the punishment thwarts the rehabilitative potential of the individual offender and does not contribute to society‘s efforts to deter others from engaging in similar prohibited behavior, it may be deemed excessive. However, the need to prevent the individual offender from causing further injury to society is an equally important consideration. A penalty that is unjustifiably disproportionate to the crime or unusually excessive should be struck down as cruel or unusual. Requiring lifetime electronic monitoring for certain defendants convicted of CSC-II against a victim less than 13 years old addresses the significant concerns of rehabilitation and recidivism. The risk of recidivism posed by sex offenders is high. The monitoring system has a deterrent effect on would-be reoffenders, and the ability to constantly monitor an offender‘s location allows law enforcement to ensure that the offender does not enter a school zone, playground, or similar prohibited locale. While defendant noted that lifetime electronic monitoring is not required for numerous, arguably graver crimes, the factors that would allow for the most pertinent comparison (a minor victim under the age of 13 with an offender 17 years of age or older) are missing from these other crimes. Moreover, many states have imposed the penalty of lifetime electronic monitoring for various criminal sexual conduct cases. For the same reasons, defendant could not succeed on his facial challenge under the state Constitution or his federal constitutional claim.
5. Under Grady v North Carolina, 575 US ___; 135 S Ct 1368 (2015), the placement of an electronic device to monitor a defendant‘s movement constitutes a search for purposes of the Fourth Amendment. The Fourth Amendment, however, only precludes unreasonable searches. The reasonableness of a search depends on all the circumstances surrounding the search and the nature of the search itself. The applicable test balances the need to search in the public interest for evidence of criminal activity against the invasion of the individual‘s privacy. With respect to the public interest, the Legislature sought to provide a means to both (1) punish and deter convicted child sex offenders and (2) protect society from a group with a high recidivism rate. A state‘s interests in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment. With respect to the invasion of a defendant‘s privacy interest, parolees and probationers have a lower expectation of privacy, even in their homes, than the average law-abiding citizen. Monitoring does not prohibit defendants from traveling, working, or otherwise enjoying the ability to legally move about as they wish; rather, the monitoring device simply records where a defendant has traveled to ensure that he or she is complying with the terms of probation and state law. On balance the strong public interest in the benefit of monitoring certain individuals convicted of CSC-II against a victim under the age of 13 outweighs the minimal effect on a defendant‘s reduced privacy interest.
6. The punishment of lifetime electronic monitoring did not violate the Double Jeopardy Clauses of the Fifth Amendment and
CSC-II conviction and sentence affirmed.
1. CRIMINAL SEXUAL CONDUCT - SUFFICIENCY OF THE EVIDENCE - TESTIMONY OF VICTIMS - CIRCUMSTANTIAL EVIDENCE - CORROBORATION.
A jury may convict on the basis of the uncorroborated evidence of a victim of criminal sexual conduct; because it can be difficult to prove a defendant‘s state of mind on issues such as knowledge and intent, minimal circumstantial evidence will suffice to establish the defendant‘s state of mind, which can be inferred from all the evidence presented.
2. CONSTITUTIONAL LAW - CRIMINAL SEXUAL CONDUCT - LIFETIME ELECTRONIC MONITORING - CRUEL OR UNUSUAL PUNISHMENT - UNREASONABLE SEARCHES - DOUBLE JEOPARDY.
Tieber Law Office (by F. Martin Tieber and Kristoffer W. Tieber) for defendant.
Before: BOONSTRA, P.J., and SAAD and MURRAY, JJ.
MURRAY, J. Defendant, a medical doctor, was convicted by a jury of his peers of second-degree criminal sexual conduct (CSC-II),
I. MATERIAL FACTS AND PROCEEDINGS
Defendant‘s CSC-II conviction, the only conviction he challenges on appeal, is based on his improperly touching a 12-year-old patient, SB. As a result, we will only recount the material facts presented at trial that are relevant to that conviction.
On March 30, 2010, 12-year-old SB saw defendant for a medical exam. SB testified that while defendant was facing her with his back to the door and was either checking her throat with a tongue depressor, or was just holding the tongue depressor, he “cupped” her right breast for between 1 and 30 seconds with his left hand on the outside of her shirt. Defendant explained to SB that he was checking her breathing.
SB‘s mother, whom we will refer to as MB, testified that defendant‘s wife, Dr. Debbie Hallak, was SB‘s primary care doctor. Dr. Hallak‘s practice was on one side of the office; the urgent care clinic operated by defendant was on the other side. MB testified that on March 30, 2010, SB, who had irritable bowel syndrome (among other conditions), saw defendant for stomach issues1 at the urgent care clinic. MB
For his part, defendant denied ever deviating from his policy of having a parent or guardian in the examination room when seeing a child, and specifically denied being alone with SB. Defendant testified that when he was examining SB‘s throat, he would have
had the tongue depressor in one hand and a flashlight in the other; he denied fondling her breast, and denied that MB yelled at him about fondling her daughter‘s breast. He also denied examining SB with a stethoscope that day.
Dr. Grant Greenberg testified as a prosecution expert witness in family practice and addressed ethical and acceptable practices. Relative to SB, he opined that while it might be appropriate for a parent to leave the examining room so a minor could discuss something in private with the doctor, this would only be done if the parent agreed. According to Dr. Greenberg, it would not be medically ethical or acceptable to touch a patient‘s breast while examining her throat. Dr. Greenberg additionally noted that touching a patient‘s breast during this type of examination would be counterproductive given the additional tissue in that area, and that touching the breast while examining the patient‘s chest with a stethoscope was equally unnecessary, problematic, and unethical.
Dr. Joseph Shufeldt testified as a defense expert in the area of urgent care, family practice in the urgent care setting, and ethical and acceptable medical practices. He agreed that there should be a chaperone with an 11- or 12-year-old minor unless the parent otherwise consents.
Along with this testimony that directly related to the touching of SB, the jury heard testimony from several witnesses who also claimed to have experienced similar treatment from defendant while under his care. Additionally, the jury heard the other victims testify in the cases consolidated with SB‘s.
After the jury‘s verdict, the trial court sentenced defendant to prison terms of 57 to 180 months for the CSC-II conviction, 85 to 180 months for the CSC-III conviction involving another victim, and 16 to 24 months for each CSC-IV conviction also involving other victims. The court additionally ordered lifetime electronic monitoring as part of defendant‘s CSC-II sentence. We now turn to defendant‘s arguments.
A. SUFFICIENCY OF THE EVIDENCE
Defendant seeks to overturn his CSC-II conviction on the basis that his state and federal rights to due process of law3 were violated because there was insufficient evidence on the intent element of the crime, i.e., that the touching of SB was for a sexual purpose. The most that was established, according to defendant, was that he had noticed (and mentioned to MB) during an earlier abdominal examination that SB had pubic hair and that he had touched her breast while checking her breathing or examining her heart with a stethoscope. Defendant maintains that touching of intimate body parts occurs often during such an examination and such intentional touching itself cannot establish a sexual purpose in this context. Because there were no other actions or communications that suggested the purpose was sexual, and any actions and communications relative to other victims did not establish a sexual purpose as to SB, defendant asserts that there was insufficient evidence upon which to convict him.
According to defendant, upholding this conviction would put doctors in danger of CSC prosecutions for “virtually any physical examination.”
In addressing this issue, our task is to determine whether any rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt. We resolve all conflicting evidence in favor of the prosecution, while acknowledging that circumstantial evidence and reasonable inferences may be sufficient to prove the elements of the crime. People v Lockett, 295 Mich App 165, 180; 814 NW2d 295 (2012).
“It is a well-established rule that a jury may convict on the uncorroborated evidence of a CSC victim.” People v Lemmon, 456 Mich 625, 642 n 22; 576 NW2d 129 (1998); see also
Upon our review of the record, we hold that the evidence was sufficient to
We likewise reject defendant‘s assertion that upholding his conviction could expose those in the medical field to unwarranted CSC prosecutions for any sort of conduct occurring during a physical examination. First, the facts presented to the jury in defendant‘s case were not that of a routine medical exam. Defendant did not have a third person present during the examination of a minor, and two witnesses testified as to his “cupping” the minor‘s breast, and an expert testified that there was no medical reason to do so. Second, we firmly believe that given the objective-screening charging procedures used by the prosecution, a trial court‘s ability to dismiss cases without factual support (see
B. JUDICIAL FACT-FINDING FOR SCORING PURPOSES
Defendant also argues that the scoring of the sentencing guidelines relative to his CSC-II conviction violated his constitutional right to a jury trial4 because a court cannot engage in judicial fact-finding when scoring the guidelines. Although there is a current split of opinion amongst some members of this Court regarding whether the rule in Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), applies to the scoring of the sentencing guidelines, see the opinions issued in People v Lockridge, 304 Mich App 278; 849 NW2d 388 (2014), lv gtd 496 Mich 852 (2014), our Court has repeatedly concluded that People v Herron, 303 Mich App 392, 399, 404; 845 NW2d 533 (2013),5 controls this issue (and goes directly against defendant‘s position here) unless the Michigan Supreme Court says otherwise, and it has yet to do so. See, e.g., People v Galloway, 307 Mich App 151, 168; 858 NW2d 520 (2014) (following Herron), held in abeyance 861 NW2d 6 (Mich, 2015), and People v Duenaz, 306 Mich App 85, 113-114; 854 NW2d 531 (2014) (following Herron). As defendant acknowledges, his argument on this point is precluded by our precedent.
C. LIFETIME ELECTRONIC MONITORING
For someone convicted of CSC-II where the victim is under the age of 13 and the perpetrator is over the age of 17, lifetime electronic monitoring, which will track defendant‘s movement and location until his death, is
required by statute.
“Statutes are presumed to be constitutional, and courts have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent.” Taylor v Gate Pharm, 468 Mich 1, 6; 658 NW2d 127 (2003). For his facial challenge to
A claim based on the Eighth Amendment Cruel and Unusual Punishment Clause can also take two forms. Under an as-applied challenge, a defendant can seek to overturn a sentence that is disproportionate “given all the circumstances in a particular case.” Graham v Florida, 560 US 48, 59; 130 S Ct 2011; 176 L Ed 2d 825 (2010). A defendant can also take a “categorical” approach by asserting that an entire class of sentences is disproportionate based upon the nature of the offense and the characteristics of the offender. Id. at 60.
Criminal sexual conduct in the second degree is a felony punishable as follows:
(a) By imprisonment for not more than 15 years.
(b) In addition to the penalty specified in subdivision (a), the court shall sentence the defendant to lifetime electronic monitoring under [
MCL 750.520n ] if the violation involved sexual contact committed by an individual 17 years of age or older against an individual less than 13 years of age.
Under
(a) Intentionally removes, defaces, alters, destroys, or fails to maintain the electronic monitoring device in working order.
(b) Fails to notify the department of corrections that the electronic monitoring device is damaged.
(c) Fails to reimburse the department of corrections or its agent for the cost of the monitoring.
There is no provision in the statute for any kind of discretion with respect to, review of, or relief from the required monitoring.
Defendant first argues that lifetime electronic monitoring violates
We first address defendant‘s as-applied challenge, for if this statute is valid under the facts applicable to defendant then it is certainly capable of being upheld against a facial challenge. See Bonner, 495 Mich at 223 (recognizing that a facial challenge will fail if any state of facts reasonably can be conceived that would sustain the statute). We also first consider it under the state constitutional prohibition because a statute upheld under our state governing charter‘s Cruel or Unusual Punishment Clause “necessarily passes muster under the federal constitution.” People v Nunez, 242 Mich App 610, 618 n 2; 619 NW2d 550 (2000); see also People v Benton, 294 Mich App 191, 204; 817 NW2d 599 (2011).
a. IS LIFETIME ELECTRONIC MONITORING A PUNISHMENT?
Defendant cites People v Cole, 491 Mich 325; 817 NW2d 497 (2012), for the proposition that lifetime electronic monitoring is punishment. There, the Court held that the defendant could withdraw his guilty plea where he was not advised that lifetime electronic monitoring would be part of the sentence, because lifetime electronic monitoring was a direct as opposed to a collateral consequence of the plea. The Court reasoned that lifetime monitoring was intended to be a punishment, and thus part of the sentence itself:
Our conclusion that mandatory lifetime electronic monitoring is part of the sentence itself rests on the plain text of the relevant statutes. First, we note that our Legislature chose to include the mandatory lifetime electronic monitoring requirement in the penalty sections of the CSC-I and CSC-II statutes, and that both statutes can be found in the Michigan Penal Code, which describes criminal offenses and prescribes penalties.
Second, both electronic-monitoring provisions provide that “the court shall sentence the defendant to lifetime electronic monitoring....”
MCL 750.520b(2)(d) andMCL 750.520c(2)(b) (emphasis added). The use of the directive “shall sentence” indicates that the Legislature intended to make lifetime electronic monitoring part of the sentence itself. Third, the CSC-II statute provides that the sentence of lifetime electronic monitoring is “[i]n addition to the penalty specified in subdivision (a),”MCL 750.520c(2)(b) , and the CSC-I statute provides similarly that lifetime electronic monitoring is “[i]n addition to any other penalty imposed under subdivision (a) or (b),”MCL 750.520b(2)(d) . The language “in addition to” indicates that the Legislature intended that lifetime electronic monitoring would itself be a penalty, in addition to the term of imprisonment imposed by the court.Finally, our conclusion that the Legislature intended to make lifetime electronic monitoring a punishment and
part of the sentence itself is reinforced by MCL 750.520n(1) , which likewise includes the language “shall be sentenced,” andMCL 791.285(1) and(2) , which use the language “individuals ... who are sentenced ... to lifetime electronic monitoring” and “[a]n individual who is sentenced to lifetime electronic monitoring....”
Accordingly, a plain reading of the relevant statutory text compels our conclusion that the Legislature intended mandatory lifetime electronic monitoring to be an additional punishment and part of the sentence itself when required by the CSC-I or CSC-II statutes. [Id. at 335-336 (alterations in original; emphasis in third and fourth paragraphs added).]
The prosecution argues that the Cole Court‘s conclusion that mandatory lifetime monitoring is a punishment is obiter dictum because the Court could have reached the same result by simply noting that this was a regulatory scheme. But obiter dictum is a statement that is unnecessary to resolving a case, such as an extraneous statement made as an aside to the dispositive issue in an opinion. See Auto-Owners Ins Co v All Star Lawn Specialists Plus, Inc, 497 Mich 13, 21 n 15; 857 NW2d 520 (2014). That the Court could have relied on an alternative rationale does not make the Court‘s chosen rationale obiter dictum. Moreover, although the Court decided the question in the context of answering a different question, it nonetheless clearly concluded that lifetime electronic monitoring under this same statutory provision was intended by the Legislature to be a punishment. While it appears that the statute may have been primarily intended to help ensure that sex offenders would not encounter potential victims (a regulatory function), the Cole Court made it very clear that lifetime electronic monitoring is a punishment.
b. IS LIFETIME ELECTRONIC MONITORING A CRUEL OR UNUSUAL PUNISHMENT?
“In deciding if punishment is cruel or unusual, this Court looks to the gravity of the offense and the harshness of the penalty, comparing the punishment to the penalty imposed for other crimes in this state, as well as the penalty imposed for the same crime in other states.” People v Brown, 294 Mich App 377, 390; 811 NW2d 531 (2011); see also People v Bosca, 310 Mich App 1, 56; 871 NW2d 307 (2015). However, the “dominant test” is the proportionality question, which is “whether the punishment is so excessive that it is completely unsuitable to the crime.” People v Coles, 417 Mich 523, 530; 339 NW2d 440 (1983), citing People v Lorentzen, 387 Mich 167, 181; 194 NW2d 827 (1972) (holding that a mandatory minimum prison sentence of 20 years for nonviolent crime of selling marijuana with no individualized consideration was cruel or unusual).6
The goal of rehabilitation is also a consideration. Dipiazza, 286 Mich App at 154, citing People v Launsburry, 217 Mich App 358, 363; 551 NW2d 460 (1996). If the punishment “thwarts the rehabilitative potential of the individual offender and does not contribute toward society‘s efforts to deter others from engaging in similar prohibited behavior,” it may be deemed excessive. Coles, 417 Mich at 530, citing Lorentzen, 387 Mich at 180. However, the “need to prevent the
Likewise, under a federal as-applied challenge, a limited proportionality comparison also comes into play, as the court must first compare “the gravity of the offense and the severity of the sentence.” Graham, 560 US at 60. This “narrow proportionality principle” does
not require strict proportionality, but only prohibits “extreme sentences that are grossly disproportionate to the crime.” Id. at 59-60 (quotation marks and citation omitted). Because of that, and the significant deference given to legislative sentencing, it will be the rare case that meets this initial threshold test. See United States v Young, 766 F3d 621, 625 (CA 6, 2014); United States v Cobler, 748 F3d 570, 575 (CA 4, 2014); United States v Reingold, 731 F3d 204, 211 (CA 2, 2013). Indeed, the United States Supreme Court has only found one law that met this stringent test—a South Dakota law that provided for life in prison without parole for a recidivist defendant who passed bad checks. Solem v Helm, 463 US 277, 279-284; 103 S Ct 3001; 77 L Ed 2d 637 (1983). And if a case does not meet that initial, narrow proportionality test, we can go no further. See Cobler, 748 F3d at 575.
Turning now to the case before us, we first recognize that lifetime electronic monitoring for those convicted of CSC-II against a victim less than 13 years old7 addresses the significant concerns of rehabilitation and recidivism. As the United States Supreme Court has repeatedly emphasized, “The risk of recidivism posed by sex offenders is ‘frightening and high.‘” Smith v Doe, 538 US 84, 103; 123 S Ct 1140; 155 L Ed 2d 164 (2003), quoting McKune v Lile, 536 US 24, 34; 122 S Ct 2017; 153 L Ed 2d 47 (2002); see also McKune, 536 US at 33 (“When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual
assault.“), United States v Gould, 568 F3d 459, 472-473 (CA 4, 2009) (“Congress recognized that sex offenders constitute a unique class of criminal insofar as members of that class are considered to have higher rates of recidivism than other offenders.“), and State v Ferguson, 120 Ohio St 3d 7, 13; 2008 Ohio 4824, ¶ 28; 896 NE2d 110 (2008). To combat these substantial recidivism risks, it has been recognized that “the monitoring system has a deterrent effect on would-be re-offenders” and “the ability to constantly monitor an offender‘s location allows law enforcement to ensure that the offender does not enter a school zone, playground, or similar prohibited locale.” Doe v Bredesen, 507 F3d 998, 1007 (CA 6, 2007). It is against this backdrop that we look to the harshness of this punishment in light of other punishments and what other states have done. In so doing, we hold that defendant cannot overcome the presumption that his requirement of lifetime electronic monitoring is neither cruel nor unusual.
All of this is true, but it also ignores the ancillary societal benefit of this lifelong monitoring: to ensure that certain sex offenders will not again be in a position to exploit their potential victims—children, some of the most vulnerable individuals in our society. See Gould, 568 F3d at 472-473. The high recidivism rate and vulnerability of the victims are the common elements that allow for lifetime electronic monitoring in CSC-II cases involving minor children, which distinguishes these crimes from those defendant highlights. In other words, the factors that would allow for the most pertinent comparison—a minor victim under the age of 13 with an offender 17 or older—are missing from these other crimes.8
Many states have imposed the penalty of lifetime electronic monitoring for various CSC cases. And while some of those states have imposed the requirement for a lesser amount of time, at least 11 (including Michigan) have mandated lifetime monitoring for defendants convicted of the most serious CSC offenses or CSC with a minor.9 The “need to prevent the
offender from causing further injury to society” is a valid consideration in designing a punishment, Lorentzen, 387 Mich at 180, and at least 10 states besides Michigan have determined that mandatory lifetime electronic monitoring is of value in ensuring such protection. Defendant suggests that this is the case only for more serious sexual offenses, but sexual offenses involving children under 13 years of age are grave offenses and, given the judicially recognized recidivism rate for these offenders, this level of protection is not clearly excessive or grossly disproportionate. It is certainly not unusual. And, it is not grossly disproportionate with respect to defendant. Although he had no prior record, there was evidence of improper sexual acts involving 13 women or children. Such
evidence suggests that lifetime monitoring would help to protect potential victims from defendant, who in turn would likely be deterred from engaging in such acts if he were closely monitored. Accordingly, when employing an as-applied standard under the state Constitution, lifetime electronic monitoring is not cruel or unusual punishment.10
For these same reasons, defendant cannot succeed on his facial challenge under the state Constitution, Bonner, 495 Mich at 223, nor can he prevail on his federal constitutional claim, Nunez, 242 Mich App at 618 n 2. And even if defendant‘s federal claim were not essentially subsumed within the stricter state constitutional provision, our analysis reveals that lifetime electronic monitoring is not an “extreme sentence[]” that is “grossly disproportionate to the crime.” Graham, 560 US at 60 (quotation marks and citation omitted). Lifetime electronic monitoring for an individual 17 or older who is convicted of CSC against an individual 13 or younger is not the least bit comparable to the only crime and punishment found to be unconstitutional by the Supreme Court under this test. That part of defendant‘s sentence therefore does not violate defendant‘s state or federal rights against cruel and/or unusual punishment.
2. FOURTH AMENDMENT
Defendant cites United States v Jones, 565 US ___; 132 S Ct 945; 181 L Ed 2d 911 (2012), for the proposi-
tion that electronic monitoring violates the Fourth Amendment to the United States Constitution.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Though neither party has brought the decision to our attention, whether placing the monitor on defendant constitutes a search for purposes of the Fourth Amendment was just recently resolved by the United States Supreme Court in Grady v North Carolina, 575 US ___; 135 S Ct 1368; 191 L Ed 2d 459 (2015). There, the Court held that a Fourth Amendment search occurred through operation of a North Carolina law that required recidivist sex offenders to wear a satellite-based monitoring device. Id. at ___; 135 S Ct at 1369-1370. On the basis of Grady, we must hold that the placement of an electronic monitoring device to monitor defendant‘s movement constitutes a search for purposes of the Fourth Amendment. But, as the Grady Court also noted, that conclusion does not end the Fourth Amendment inquiry, as the Fourth Amendment only precludes unreasonable searches. Id. at ___; 135 S Ct at 1371. Whether a search is unreasonable is a question of law. Sitz v Dep‘t of State Police, 443 Mich 744, 765; 506 NW2d 209 (1993), citing People v Case, 220 Mich 379, 389; 190 NW 289 (1922). Accord United States v Wagers, 452 F3d 534, 537 (CA 6, 2006), and United States v Taylor, 592 F3d 1104, 1107 (CA 10, 2010). For the following reasons, we hold that lifetime electronic monitoring for a defendant 17 years or older convicted of CSC-II involving a minor under 13 is not unreasonable.
The reasonableness of a search “depends upon all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.” United States v Montoya de Hernandez, 473 US 531, 537; 105 S Ct 3304; 87 L Ed 2d 381 (1985) (citation omitted). ” ‘The applicable test in determining the reasonableness of an intrusion is to balance the need to search, in the public interest, for evidence of criminal activity against invasion of the individual‘s privacy.’ ” People v Chowdhury, 285 Mich App 509, 516; 775 NW2d 845 (2009), quoting People v Wilkens, 267 Mich App 728, 733; 705 NW2d 728 (2005).
Turning first to the public interest, it is evident that in enacting this monitoring provision, the Legislature was seeking to provide a way in which to both punish and deter convicted child sex offenders and to protect society from a group known well for a high recidivism rate. As the Court pointed out in Samson v California, 547 US 843, 853; 126 S Ct 2193; 165 L Ed 2d 250 (2006), “this Court has repeatedly acknowledged that a State‘s interests in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant
Having examined the public interest in this type of monitoring, we now balance that interest against the invasion of defendant‘s privacy interest. We begin by recognizing that parolees and probationers have a lower expectation of privacy, even in the comfort of their own homes, than does the average law-abiding citizen. Samson, 547 US at 848-852, citing Hudson v Palmer, 468 US 517, 530; 104 S Ct 3194; 82 L Ed 2d 393 (1984). The monitoring does not prohibit defendant from traveling, working, or otherwise enjoying the ability to legally move about as he wishes. Instead, the monitoring device simply records where he has traveled to ensure that he is complying with the terms of his probation and state law.
3. DOUBLE JEOPARDY
Finally, defendant argues that the punishment of lifetime electronic monitoring, and concomitant cost, violates the state and federal Double Jeopardy Clauses. Article 1, § 15 of our Constitution provides, in pertinent part, that “[n]o person shall be subject for the same offense to be twice put in jeopardy,”
[T]he purpose of the double jeopardy protection against multiple punishments for the same offense is to protect the defendant from having more punishment imposed than the Legislature intended. [People v Sturgis, 427 Mich 392, 399; 397 NW2d 783 (1986)]; [People v] Calloway, 469 Mich 448, 451; 671 NW2d 733 (2003). “[T]he Double Jeopardy Clause acts as a restraint on the prosecutor and the courts, not the Legislature.” [People v] Robideau, 419 Mich 458, 469; 355 NW2d 592 (1984), overruled on other grounds by People v Smith, 478 Mich 292, 324; 733 NW2d 351 (2007), citing Brown v Ohio, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977). Accordingly, the Double Jeopardy Clause does not limit the Legislature‘s ability to define criminal offenses and establish punishments, Sturgis, 427 Mich at 400, and the “only interest of the defendant is in not having more punishment imposed than that intended by the Legislature.” Robideau, 419 Mich at 485.
See also People v Dewald, 267 Mich App 365, 385; 705 NW2d 167 (2005) (holding in the case of a defendant sentenced to prison and ordered to pay restitution that ”
Because the Legislature intended that both defendant‘s prison sentence and the requirement of lifetime monitoring be sanctions for the crime, there was no double jeopardy violation.
Affirmed.
BOONSTRA, P.J., and SAAD, J., concurred with MURRAY, J.