People v. Kalchik

• Decision Date: 08 July 1987
• Docket Number: Docket No. 85192
• Citation: 407 N.W.2d 627,160 Mich.App. 40
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Norman Henry KALCHIK, Defendant-Appellant. 160 Mich.App. 40, 407 N.W.2d 627
• Court: Court of Appeal of Michigan — District of US

Page 627

407 N.W.2d 627

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Norman Henry KALCHIK, Defendant-Appellant.

Docket No. 85192.

160 Mich.App. 40, 407 N.W.2d 627

Court of Appeals of Michigan.

Submitted Feb. 12, 1986.

Decided May 5, 1987.

Released for Publication July 8, 1987.

[160 MICHAPP 42] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. Foresman, Pros. Atty., and Dennis M. LaBelle, Asst. Pros. Atty., for the People.

[160 MICHAPP 43] Lewis & Schuknecht by Michael D. Lewis, Traverse City, for defendant-appellant on appeal.

Before HOLBROOK, P.J., and SHEPHERD and ROBERSON, ^* JJ.

HOLBROOK, Presiding Judge.

Defendant was charged with gross indecency between males, M.C.L. Sec. 750.338; M.S.A. Sec. 28.570. After extensive pretrial proceedings, defendant pled nolo contendere to disorderly conduct, M.C.L. Sec. 750.167(1)(f); M.S.A. Sec. 28.364(1)(f), conditioned upon his right to appeal the circuit court's denial of his motions to quash the information and to suppress certain evidence. Defendant was sentenced to one year probation, fined $100 and ordered to pay court costs. He appeals as of right. We must reverse on the basis that the video surveillance of defendant in a public restroom stall, from overhead, was an unreasonable search.

The events out of which the original charge against defendant arose occurred on November 9, 1983. On that date, defendant engaged in homosexual activity with another male in restroom stalls in the men's restroom at Cherryland Mall in Grand Traverse County. The activity of the two men was monitored and videotaped by a video camera placed in the ceiling of the restroom pursuant to two search warrants issued on October 31, and November 2, 1983. Defendant was filmed performing fellatio on the other male after which the second male masturbated defendant. All the activity took place below the partition dividing two of the bathroom stalls.

Defendant's first claim on appeal is that the trial court erred in denying his motion to quash the information. Defendant asserts three separate [160 MICHAPP 44] grounds upon which the motion should have been granted. We find all three to be without merit. First, defendant contends that the gross indecency statute, M.C.L. Sec. 750.338; M.S.A. Sec. 28.570, is unconstitutional as applied to private, consensual conduct. We disagree.

The gross indecency statute provides:

"Any male person who, in public or in private, commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person shall be guilty of a felony."

In People v. Howell, 396 Mich. 16, 238 N.W.2d 148 (1976), Justices Kavanaugh and Williams concurred with Justice Levin's holding in Section II of the Supreme Court opinion that the gross indecency statute was not unconstitutionally vague if construed "to prohibit oral and manual sexual acts committed without consent or with a person under the age of consent or any ultimate sexual act committed in public." Justices Coleman and Fitzgerald, however, concurred with Justice Levin's opinion with the exception of Section II. Justice Lindemer concurred with the opinion, with the exception of Section II, "as to defendant Helzer only." Justice Ryan took no part in the decision. Since Section II of Howell was decided by an equally divided Court it is not precedential. See Negri v. Slotkin, 397 Mich. 105, 109, 244 N.W.2d 98 (1976). Until the Supreme Court reaffirms Justice Levin's position in Section II of Howell, we are required to follow Michigan authority holding that convictions under the gross indecency statute are proper even where the proscribed conduct occurs between two consenting adults. People v. Dauer, 131 Mich.App. 839, 841, 346 N.W.2d 599 (1984); [160 MICHAPP 45] People v. Masten, 96 Mich.App. 127, 132, 292 N.W.2d 171 (1980), rev'd on other grounds 414 Mich. 16, 322 N.W.2d 547 (1982); People v. Jones, 75 Mich.App. 261, 272, n. 5, 254 N.W.2d 863 (1977), lv. den. 402 Mich. 822 (1977); People v. Livermore, 9 Mich.App. 47, 155 N.W.2d 711 (1967). Hence, the statute is not unconstitutional and the trial court's denial of defendant's motion to quash the information was proper. ¹

Second, defendant contends that the gross indecency statute is unconstitutionally vague. We disagree. A statute may be unconstitutionally vague if (1) it is overbroad and thereby impinges on First Amendment freedoms, (2) it does not provide fair notice of the conduct proscribed, or (3) it is so indefinite that it confers unstructured and unlimited discretion on the trier of fact to determine whether an offense has been committed. Howell, supra, p. 20, 238 N.W.2d 148. See also Woll v. Attorney General, 409 Mich. 500, 533, 297 N.W.2d 578 (1980). Vagueness challenges which do not involve First Amendment freedoms must be examined in light of the case at hand and court decisions construing a vague statute may serve to provide a defendant with notice that the conduct he engaged in was proscribed. Howell, supra, pp. 21-22, 238 N.W.2d 148. See also People v. Lynch, 410 Mich. 343, 352, 301 N.W.2d 796 (1981).

We do not find that the gross indecency statute, as applied to this defendant, is unconstitutionally vague since this state's courts have interpreted that statute to prohibit the conduct in which [160 MICHAPP 46] defendant was engaged, i.e., fellatio between adult males in a public place. See Howell, supra. In this case, the activity took place below the partitions separating the restroom stalls and, therefore, could be observed by one in the common area of the restroom by looking under the doors which were approximately fourteen inches off the floor. Hence, the activity took place in public and was, therefore, proscribed under Howell, Masten, Jones, and Livermore. See also People v. Penn, 70 Mich.App. 638, 247 N.W.2d 575 (1976); People v. Dexter, 6 Mich.App. 247, 252-253, 148 N.W.2d 915 (1967).

Consequently, we conclude that defendant was forewarned that the conduct in which he was engaged is prohibited by the gross indecency statute. Therefore, we find that the statute was not unconstitutionally vague in this instance.

Third, defendant contends that the prosecutor was guilty of misconduct in charging defendant with gross indecency because the prosecutor knew that the surveillance techniques used were of questionable validity. We disagree. Apparently, the detective who initiated the investigation of the restroom activity was told by the Michigan State Police Technical Services Unit to contact the Kalamazoo prosecutor's office before the monitoring equipment was installed in the restrooms since the Kalamazoo prosecutor had previously handled a similar case. In that case, People v. Dezek, 107 Mich.App. 78, 308 N.W.2d 652 (1981), a search warrant was issued which allowed continuous monitoring of unspecified persons in a men's restroom at a highway rest area. This Court found the search warrant invalid. The evidence obtained thereby was found inadmissible without the warrant since the defendant had a reasonable expectation of privacy in the bathroom stall. Consequently, defendant herein contends that, since the [160 MICHAPP 47] prosecutor was aware of Dezek, he knew the video surveillance of the Cherryland Mall restrooms was invalid and, therefore, it was improper to charge defendant based on the improper search. We disagree.

We find that the prosecutor, in good faith, attempted to factually distinguish Dezek from the instant case on the basis that the activity at issue herein took place in "public" while the activity in Dezek took place in private (through a hole cut in the partition dividing the bathroom stalls). Consequently, no misconduct occurred as a result of the charge brought against defendant.

Defendant's next claim on appeal is that the circuit court erred in denying his motion to suppress the evidence obtained from the video surveillance since the search warrant was invalid and he had a reasonable expectation of privacy; that he would not be viewed surreptitiously from above. We agree. A trial court's ruling on a motion to suppress evidence will not be reversed on appeal unless clearly erroneous. People v. Grimmett, 97 Mich.App. 212, 214, 293 N.W.2d 768 (1980), lv. den. 411 Mich. 853 (1981); People v. Mackey, 121 Mich.App. 748, 329 N.W.2d 476 (1982). If upon review of the record this Court does not possess a definite and firm conviction that the trial court made a mistake, it must affirm. People v. Burrell, 417 Mich. 439, 449, 339 N.W.2d 403 (1983). We find that the trial court made a mistake in not granting defendant's motion and reverse on this basis.

We must first determine whether defendant had a reasonable expectation of privacy in the public restroom stall under the circumstances presented in this case. In Katz v. United States, 389 U.S. 347, 351-352, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the United States Supreme Court noted:

[160 MICHAPP 48] "[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."

If defendant herein did not have a reasonable expectation of privacy, or if his expectation was unreasonable, there was no search within the meaning of the Fourth Amendment and defendant's claim is without merit. People v. Whalen, 390 Mich. 672, 213 N.W.2d 116 (1973); People v. Abdalla, 70 Mich.App. 697, 247 N.W.2d 332 (1976), lv. den. 399 Mich. 876 (1977); People v. Hunt, 77 Mich.App. 590, 259 N.W.2d 147 (1977).

In Dezek, supra, p. 84, 308 N.W.2d 652, this Court stated:

"We hold that the bathroom stalls here, like the telephone booth in Katz, were temporarily private places whose momentary occupants' expectations of privacy are recognized by society as reasonable. See Bielicki v...