Opinion
SC: 164695 COA: 353422
09-08-2023
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Brian Michael DEHART, Defendant-Appellant.
Order
On order of the Court, the application for leave to appeal the June 23, 2022 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Welch, J. (concurring).
I respectfully concur in this Court's order denying leave. I write separately to note that, while defendant has not raised the issue in his application to the Court, this case implicates important right-to-privacy considerations regarding use of biometric data. I believe the issue is worthy of future consideration by this Court.
Defendant was acquitted, after three trials, of the charge of criminal sexual conduct in the first-degree (CSC-I), MCL 750.520b(1). Thereafter, defendant took his judgment of acquittal to the Michigan State Police and requested that the biometric data collected at the time of his arrest and booking be destroyed. Specifically, defendant sought destruction pursuant to MCL 28.243(10), which sets forth the general circumstances and process for destruction of biometric data following an acquittal. The statute provides:
Under MCL 28.241a(b), biometric data includes fingerprints, palm prints, digital images, and all descriptive data associated with the offender's identity (tattoos, scars, etc.). An "arrest card" is a paper form or an electronic format prescribed by the Michigan State Police that facilitates the collection and compilation of criminal and juvenile arrest history record information and biometric data. MCL 28.241a(a).
[I]f an accused is found not guilty of an offense for which biometric data were collected under this section, ... the biometric data and arrest card must be destroyed by the official holding those items and the clerk of the court entering the disposition shall notify the department of any finding of not guilty or nolle prosequi, if it appears that the biometric data of the accused were initially collected under this section[.]
MCL 28.243(14) sets forth exceptions to the general destruction requirement. Relevant to this case, the exceptions include a CSC charge:
Except as provided in subsection (8) [set forth below], the provisions of subsection (10) that require the destruction of the biometric data and the arrest card do not apply to a person who was arraigned for any of the following:
(a) The commission or attempted commission of a crime with or against a child under 16 years of age.
* * *
(c) Criminal sexual conduct in any degree.
The Michigan State Police declined defendant's request because his CSC charge fell under the statutory exceptions to required destruction of the biometric data. Defendant then filed a motion in the trial court renewing the same request. While defendant conceded that the statutory language precluded his request, he argued that application of MCL 28.243(14) violated his right to equal protection. The trial court reiterated that defendant's charge clearly fell within the statutory exception to destruction and thus denied his motion; the court did not address his constitutional argument.
Defendant's motion for reconsideration was denied, as was his initial application for leave to appeal to the Court of Appeals. However, this Court remanded as on leave granted. People v Dehart , 506 Mich. 964, 950 N.W.2d 748 (2020). Upon remand, in a detailed opinion, the Court of Appeals affirmed, particularly noting that its decision in People v Cooper (After Remand) , 220 Mich App 368, 559 N.W.2d 90 (1996), foreclosed defendant's argument that the statute now found at MCL 28.243(14) violated his equal protection rights. See People v Dehart , unpublished per curiam opinion of the Court of Appeals, issued June 23, 2022, pp. 5-7.
This Court's order stated:
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Court of Appeals for consideration as on leave granted. See People v Moreno , 491 Mich. 38, 46, 814 N.W.2d 624 (2012) ("While the Legislature has the authority to modify the common law, it must do so by speaking in no uncertain terms.") (quotation marks and citations omitted).
Significantly, the panel also identified an unresolved issue not raised by defendant. The panel noted that the current version of MCL 28.243 reflects a modern development that did not exist when Cooper was decided: the Michigan State Police's publicly accessible Internet Criminal History Access Tool (ICHAT). Dehart , unpub. op. at 8. ICHAT was not created until after Cooper was decided.
MCL 28.243(8) provides:
If an individual is arrested for any crime and the charge or charges are
dismissed before trial , both of the following apply:
(a) The arrest record shall be removed from the internet criminal history access tool (ICHAT).
(b) If the prosecutor of the case agrees at any time after the case is dismissed, or if the prosecutor of the case or the judge of the court in which the case was filed does not object within 60 days from the date an order of dismissal was entered for cases in which the order of dismissal is entered after the effective date of the amendatory act that added this subdivision, both of the following apply:
( i ) The arrest record, all biometric data, and fingerprints shall be expunged or destroyed, or both, as appropriate.
( ii ) Any entry concerning the charge shall be removed from the [Law Enforcement Information Network]. [Emphasis added.]
Thus, pursuant to MCL 28.243(8)(a), a person's arrest record from ICHAT is only removed if charges are dismissed before trial, irrespective of the nature of those charges. Nothing in MCL 28.243(10) calls for removal of information from ICHAT in the event of an acquittal. The Court of Appeals noted that its concerns regarding ICHAT warranted more careful scrutiny than was possible on remand, given the lack of briefing on the matter.
I share the Court of Appeals’ concern regarding the implications of an acquitted individual's information remaining permanently accessible on ICHAT. Particularly, this issue potentially raises a concern articulated long ago by this Court in Miller v Gillespie , 196 Mich. 423, 427, 163 N.W. 22 (1917), which cautioned against utilizing a "rogues’ gallery" (or photographs of individuals accused of crimes) that could be used by any person for any purpose. While this Court did not grant relief for the individual in Miller , it observed that a court of equity could "afford a remedy for a wrongful invasion of privacy," citing two Louisiana appellate cases temporarily enjoining the police from placing a photograph of an arrestee, who had not been convicted and "who alleged that he was innocent and an honest citizen," in a rogues’ gallery. Id. at 427-428, 163 N.W. 22.
The prosecution in this case maintains that law enforcement needs to retain the biometric data for future investigations due to higher rates of recidivism for CSC offenders. Although we do not today take up the issue of whether it is appropriate for law enforcement to retain this data, a reason has been offered by law enforcement related to the data retention. I fail to see how the same rationale for retaining such data applies to the ICHAT public database. The availability of this information appears to implicate the same individual privacy right articulated in Miller more than 100 years ago. The availability of such a broadly accessible tool compels disclosure of charges against acquitted individuals to any member of the general public, including neighbors, friends, and employers. This has drastically different implications than the limited-purpose retention rationale offered by law enforcement.
Given these concerns, I believe this Court should consider this important legal issue in the future. Because defendant failed to raise the issue and it has not been argued in the lower courts, I concur in the denial of leave.