Lifetime GPS monitoring of a doctor convicted of criminal sexual contact with a patient under 13 was a search under Grady, but it was reasonable. It is reasonable on balancing the government’s interest in keeping up with sex offenders and the defendant’s right of privacy. Also, defendant would be monitored on parole for the first part of that, and parolees have a far lesser expectation of privacy. People v. Hallak, 2015 Mich. App. LEXIS 1133 (May 28, 2015):
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, ___ U.S. ___; 135 S Ct 1368; ___ L Ed 2d ___ (2015). There, the Court held a Fourth Amendment search occurred through operation of a North Carolina law that required recidivist sex offenders to wear a satellite monitoring device. Id. 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 371. Whether a search is unreasonable is a question of law. Sitz v Dep’t of State Police, 443 Mich 774, 765; 506 NW2d 209 (1993), citing People v Case, 220 Mich 379; 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 Ed2d 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 the invasion of the individual’s privacy.'” People v Chowdhury, 285 Mich App 509, 516; 775 NW2d 845 (2009), quoting People v Watkins, 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 recidivist 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 privacy intrusions that would not otherwise be tolerated under the Fourth Amendment.” See also Smith, 538 U.S. at 103. “This Court has acknowledged the grave safety concerns that attend recidivism,” Samson continues, and that “the Fourth Amendment does not render the States powerless to address these concerns effectively.” Samson, 547 U.S. at 854. As the prosecutor points out, electronic monitoring not only acts as a strong deterrent, but also assists law enforcement efforts to ensure that these individuals, who have committed “‘the most egregious and despicable of societal and criminal crimes,'” United States v Mozie, 752 F3d 1271, 1289 (CA 11, 2014), quoting United States v Sarras, 575 F3d 1191, 1220 (CA 11, 2009), do not frequent prohibited areas (elementary schools, etc.) and remain compliant with the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., see Doe, 507 F3d at 1007. Consequently, when enacting this monitoring system and requiring it only for those 17 or older who commit criminal sexual conduct against children under the age of 13, the Legislature was addressing punishment, deterrence and protection of some of the most vulnerable in our society against some of the worst crimes known. As we earlier noted, the “need to prevent the individual offender from causing further injury to society,” Lorentzen, 387 Mich at 180, is a valid consideration in designing a punishment, id.
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 U.S. at 848-852; 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 his terms of probation and state law. MCL 791.285(1) and (3). And, although this monitoring lasts a lifetime, the Legislature presumably provided shorter prison sentences for these CSC II convictions because of the availability of lifetime monitoring. In that regard we also cannot forget that minor victims of CSC II are often harmed for life. See Mozie, 752 F3d at 1289 (“Sexual crimes against minors cause substantial and long-lasting harm …”), Kennedy v Louisiana, .554 .US 407, 467-468; 128 S Ct 2641; 171 L Ed 2d 525 (2008) (ALITO, J., dissenting) (discussing the long term developmental problems sexually abused children can experience) (citation omitted), and People v Huddleston, 212 Ill 2d 107, 135; 816 NE2d 322 (2004) (“The child’s life may be forever altered by residual problems associated with the event”) (citations omitted). Though it may certainly be that such monitoring of a law abiding citizen would be unreasonable, on balance the strong public interest in the benefit of monitoring those convicted of CSC II against a child under the age of 13 outweighs any minimal impact of defendant’s reduced privacy interest.
