People v. Drielick , 400 Mich. 559 ( 1977 )

400 Mich. 559 (1977) 255 N.W.2d 619

PEOPLE
v.
DRIELICK
PEOPLE
v.
PLAMONDON
PEOPLE
v.
BLAZIER

Docket Nos. 56735, 57617, (Calendar Nos. 2, 3).

Supreme Court of Michigan.

Argued February 1, 1977. Decided July 18, 1977. Certiorari denied January 23, 1978.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, for the people.

E. Brady Denton, Prosecuting Attorney, and Peter C. Jensen, Assistant Prosecuting Attorney, for the people in Drielick.

John A. Wilson and Max E. Simon, Assistants Attorney General, for the people in Plamondon and Blazier.

Brisbois, Sturtz & Rousseau for defendant Drielick.

State Appellate Defender Office (by John B. Phelps) for defendants Plamondon and Blazier.

Amicus Curiae:

Prosecuting Attorneys Association of Michigan, by Donald A. Burge and Stephen M. Wheeler.

Certiorari denied by the Supreme Court of the United States January 23, 1978.

LEVIN, J.

The issue is whether warrantless electronic eavesdropping of a telephone conversation, with the consent of one of the participants in the conversation, violates the Fourth Amendment prohibition against unreasonable searches and seizures.

In these cases, consolidated on appeal, a witness for the people telephoned the defendant at the suggestion of police officers and obtained damaging admissions which were electronically recorded. No warrant was obtained from a magistrate before installation of the electronic surveillance equipment. The recordings were played at the trial over defendant's objection.

A panel of the Court of Appeals affirmed Michael Drielick's conviction of first-degree murder^[1] on the ground that a warrant is not required for participant monitoring. A separate panel reversed Lawrence Plamondon's and Craig Blazier's convictions of extortion by threat of accusation^[2] on the ground that a warrant is required. We affirm in Drielick, and reverse in Plamondon and Blazier.

I

In People v Beavers, 393 Mich 554; 227 NW2d 511 (1975),^[3] this Court held that, unless authorized by a search warrant, a participant may not, consistent with the Michigan constitutional prohibition against unreasonable searches and seizures,^[4] electronically monitor a conversation which is transmitted to law enforcement officers.

Beavers was given prospective effect only.^[5] The participant monitoring in these cases preceded Beavers. The question whether the Michigan prohibition applies in the instant cases, which were pending on appeal with the issue preserved,^[6] was decided by Beavers. The Court is not disposed to reconsider that recent decision.

II

Defendants' principal claim is that warrantless participant monitoring violates the Federal constitutional prohibition against unreasonable searches and seizures. In United States v White, 401 US 745; 91 S Ct 1122; 28 L Ed 2d 453 (1971), the United States Supreme Court rejected this claim and held that police eavesdropping without a warrant on conversations between an accused and an informant by means of a radio transmitter concealed on the informant's person does not violate the Fourth Amendment.

Defendants contend that White does not control because: (i) no opinion in that case obtained the signatures of a majority of the sitting justices; (ii) the decision in White was based on pre-Katz^[7] law because Desist^[8] had held that Katz only applied prospectively and the monitoring in White preceded the decision in Katz; and (iii) White involved monitoring of a face-to-face conversation while the monitoring in these cases was of telephone conversations.

Mr. Justice White wrote the lead opinion in White which was signed by Chief Justice Burger and Justices Stewart and Blackmun. Mr. Justice Black concurred on the ground that electronic eavesdropping does not constitute a "search" or "seizure" within the meaning of the Fourth Amendment. Mr. Justice Brennan concurred on the ground that Katz was not retroactive, adding that the Fourth Amendment interposes a warrant requirement. Justices Douglas, Harlan and Marshall signed separate dissenting opinions.

In Katz, the Court had held that electronic eavesdropping accomplished by attaching a listening and recording device to the outside of a public telephone booth, without the authorization of either participant in the conversation or of a warrant, was violative of the Fourth Amendment. The Court declared that the right to protection against unreasonable searches and seizures "cannot turn upon the presence or absence of a physical intrusion into any given enclosure", that the "trespass" doctrine enunciated in earlier decisions had been eroded and could no longer be regarded as controlling, and that the "Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied by using the telephone booth and thus constituted a ``search and seizure', within the meaning of the Fourth Amendment". Katz v United States, supra, p 353. The Fourth Amendment, said the Court, "protects people, not places". Katz v United States, supra, 351.

While Mr. Justice White's lead opinion in White said that the United States Court of Appeals had also erred because, by reason of Desist making Katz wholly prospective, Katz did not apply to the electronic surveillance in White, the primary thrust of the opinion was that there was no invasion of "the defendant's constitutionally justifiable expectations of privacy". "Inescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police. If he sufficiently doubts their trustworthiness, the association will very probably end or never materialize. But if he has no doubts, or allays them, or risks what doubt he has, the risk is his." White v United States, supra, pp 751, 752. Since the law violator knows that what he says is being heard and may be repeated, no different result is required because the conversation is being listened to or recorded electronically with the consent of the faithless participant.

This Court, in Beavers, construing the Michigan constitutional prohibition, rejected the argument that participant monitoring was a "variant of the privilege of a party to repeat a conversation", and instead was "persuaded by the logic of Justice Harlan which recognizes a significant distinction between assuming the risk that communications directed to one party may subsequently be repeated to others and the simultaneous monitoring of a conversation by the uninvited ear of a third party functioning in cooperation with one of the participants yet unknown to the other". People v Beavers, supra, pp 563, 565.^[9]

III

It is our duty to "determine with the best exercise of our mental powers of which we are capable that law which in all probability will be applied to these litigants or to others similarly situated" in the event of a further appeal of the Fourth Amendment issue from this Court to the United States Supreme Court.^[10]

The United States Courts of Appeals for 10 of the 11 circuits have followed Mr. Justice White's lead opinion in White in holding that the Fourth Amendment does not require a warrant for electronic participant monitoring.^[11] No distinction has been made between electronic monitoring of face-to-face conversations and of telephonic communications.^[12]

Since White was decided, Justices Black, Douglas and Harlan have left the Court, and Justices Powell, Rehnquist and Stevens have taken their places on the Court. All four justices who signed Mr. Justice White's opinion remain on the Court.

On at least 14 occasions the United States Supreme Court has declined to grant certiorari to review decisions of the United States Courts of Appeals holding that the Fourth Amendment does not preclude warrantless, electronic participant monitoring.^[13] While denial of certiorari is not affirmance, it is a fact of some significance especially since there is no indication in subsequent decisions of the United States Supreme Court which would support the conclusion that the "doctrinal trend"^[14] has shifted from the view expressed in Mr. Justice White's opinion.

We are of the opinion that were there to be a further appeal on Fourth Amendment grounds, the view of the law which in all probability would be applied by the United States Supreme Court would be that expressed in Mr. Justice White's opinion.

The Court of Appeals is reversed in Plamondon and Blazier, and affirmed in Drielick. The convictions are affirmed.

KAVANAGH C.J., and WILLIAMS, FITZGERALD, and BLAIR MOODY, JR., JJ., concurred with LEVIN, J.

RYAN, J. (concurring).

I concur with Justice LEVIN that the evidence obtained as a result of the electronic participant monitoring in these cases was not obtained unconstitutionally despite the holding in People v Beavers, 393 Mich 554; 227 NW2d 511 (1975), because Beavers, having prospective application only, is inapplicable to these cases.

I am of the view as well that the evidence was not obtained in violation of the Fourth Amendment of the Constitution of the United States for the reasons announced by Mr. Justice White in his lead opinion in United States v White, 401 US 745, 746; 91 S Ct 1122; 28 L Ed 2d 453 (1971).

For the foregoing reasons alone I concur in the majority's disposition of these cases.

COLEMAN, J., concurred with RYAN, J.

NOTES

[1] MCLA 750.316; MSA 28.548.

[2] MCLA 750.213; MSA 28.410.

[3] Two police officers monitored, without authorization of a warrant, a conversation between the defendant and a police informant carrying a battery-operated radio transmitter under his shirt while the informant bought heroin from the defendant in defendant's home. The conversations were not recorded. The eavesdropping officers were permitted over objection to testify regarding the overheard conversations at the trial.

[4] Const 1963, art 1, § 11.

[5] "The decision today is to be applied prospectively." People v Beavers, supra, p 568. Beavers was decided April 7, 1975.

[6] See Desist v United States, 394 US 244; 89 S Ct 1030; 22 L Ed 2d 248 (1969) where the United States Supreme Court, in holding that the exclusionary rule enunciated in Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967), was prospective only, saw no distinction between final convictions and those still pending on appeal:

"All of the reasons for making Katz retroactive also undercut any distinction between final convictions and those still pending on review. Both the deterrent purpose of the exclusionary rule and the reliance of law enforcement officers focus upon the time of the search, not any subsequent point in the prosecution, as the relevant date. Exclusion of electronic eavesdropping evidence seized before Katz would increase the burden on the administration of justice, would overturn convictions based on fair reliance upon pre-Katz decisions, and would not serve to deter similar searches and seizures in the future." Desist v United States, 394 US 244, at 253.

[7] See fn 6.

[8] See fn 6.

[9] "The impact of the practice of third-party bugging, must, I think, be considered such as to undermine that confidence and sense of security in dealing with one another that is characteristic of individual relationships between citizens in a free society. * * *

"Were third-party bugging a prevalent practice, it might well smother that spontaneity — reflected in frivolous, impetuous, sacrilegious, and defiant discourse — that liberates daily life. Much offhand exchange is easily forgotten and one may count on the obscurity of his remarks, protected by the very fact of a limited audience, and the likelihood that the listener will either overlook or forget what is said, as well as the listener's inability to reformulate a conversation without having to contend with a documented record. All these values are sacrificed by a rule of law that permits official monitoring of private discourse limited only by the need to locate a willing assistant.

* * *

"By casting its ``risk analysis' solely in terms of the expectations and risks that ``wrongdoers' or ``one contemplating illegal activities' ought to bear, the plurality opinion, I think, misses the mark entirely. On Lee does not simply mandate that criminals must daily run the risk of unknown eavesdroppers prying into their private affairs; it subjects each and every law-abiding member of society to that risk." United States v White, supra, pp 787-789 (Harlan, J.)

[10] Spector Motor Service, Inc v Walsh, 139 F2d 809, 814 (CA 2, 1943), remanded on other grounds, Spector Motor Service, Inc v McLaughlin, 323 US 101; 65 S Ct 152; 89 L Ed 101 (1944). Judge Learned Hand, in dissent, agreed on the governing principle:

"I conceive that the measure of its duty is to divine, as best it can, what would be the event of an appeal in the case before it." Spector Motor Service, Inc v Walsh, 139 F2d 809, 822, 823 (Hand, J.)

Similarly, see Mason v United States, 198 Ct Cl 599; 461 F2d 1364, 1375 (1972), rev'd on other grounds, 412 US 391; 93 S Ct 2202; 37 L Ed 2d 22 (1973); Martin v Virginia, 349 F2d 781, 784 (CA 4, 1965); Perkins v Endicott Johnson Corp, 128 F2d 208, 217 (CA 2, 1942), aff'd, Endicott Johnson Corp v Perkins, 317 US 501; 63 S Ct 339; 87 L Ed 424 (1943).

[11] United States v Diaz, 535 F2d 130, 133 (CA 1, 1976); United States v Bonnano, 487 F2d 654, 657-658 (CA 2, 1973); United States v Santillo, 507 F2d 629, 631-632 (CA 3, 1975); United States v Dowdy, 479 F2d 213, 229 (CA 4, 1973); United States v Wilson, 451 F2d 209, 212 (CA 5, 1971); Stephan v United States, 496 F2d 527, 528 (CA 6, 1974); United States v Gocke, 507 F2d 820, 823 (CA 8, 1974); Holmes v Burr, 486 F2d 55, 59-60 (CA 9, 1973); United States v Puchi, 441 F2d 697, 700 (CA 9, 1971); United States v Quintana, 457 F2d 874, 878 (CA 10, 1972); United States v Bishton, 150 US App DC 51; 463 F2d 887, 892 (1972).

A number of state courts have reached the same conclusion. State v Wilder, 18 Ariz App 410; 502 P2d 1087, 1088 (1972); Kerr v State, 256 Ark 738; 512 SW2d 13, 20-21 (1974); People v Murphy, 8 Cal 3d 349; 105 Cal Rptr 138; 503 P2d 594, 600-601 (1972); People v Morton, ___ Colo ___; 539 P2d 1255, 1257 (1975); State v Delmonaco, 165 Conn 163; 328 A2d 672, 673 (1973); People v Richardson, 60 Ill 2d 189; 328 NE2d 260, 263 (1975); McCarty v State, ___ Ind App ___; 338 NE2d 738, 741 (1975); State v Wigley, 210 Kan 472; 502 P2d 819, 821-822 (1972); Avery v State, 15 Md App 520; 292 A2d 728, 742-743 (1972); Everett v State, 248 So 2d 439, 442-443 (Miss, 1971); State v Anepete, 145 NJ Super 22; 366 A2d 996, 998 (1976); People v Phillips, 50 App Div 2d 937; 390 NYS2d 6, 7 (1976); Escobedo v State, 545 P2d 210, 216 (Okla Crim, 1976); Commonwealth v Donnelly, 233 Pa Super 396; 336 A2d 632, 640-641 (1975); Thrush v State, 515 SW2d 122, 125 (Tex Crim App, 1974).

Other state courts, like Michigan, have concluded that warrantless electronic participant monitoring is violative of a state constitutional prohibition. Tollett v State, 272 So 2d 490, 492-493 (Fla, 1973); State ex rel Arnold v Rock County Court, 51 Wis 2d 434; 187 NW2d 354, 356-357 (1971); cf. State v Smith, 72 Wis 2d 711; 242 NW2d 184, 186-187 (1976).

[12] United States v Bonnano, supra; United States v Santillo, supra; United States v Dowdy, supra; United States v Wilson, supra; Stephan v United States, supra; United States v Puchi, supra; United States v Quintana, supra.

[13] United States v Warren, 453 F2d 738 (CA 2, 1972), cert den, 406 US 944; 92 S Ct 2040; 32 L Ed 2d 331 (1972); United States v Koska, 443 F2d 1167 (CA 2, 1971), cert den, 404 US 852; 92 S Ct 92; 30 L Ed 2d 92 (1971); United States v Santillo, supra, cert den sub nom Buchert v United States, 421 US 968; 95 S Ct 1960; 44 L Ed 2d 457 (1975); United States v Dowdy, supra, cert den, 414 US 866; 94 S Ct 132; 38 L Ed 2d 113 (1973); reh den, 414 US 1117; 94 S Ct 851; 38 L Ed 2d 745 (1973); United States v Wilson, supra, cert den sub nom Fairman v United States, 405 US 1032; 92 S Ct 1298; 31 L Ed 2d 490 (1972); United States v Caracci, 446 F2d 173 (CA 5, 1971), cert den, 404 US 881; 92 S Ct 202; 30 L Ed 2d 162 (1971); United States v Avila, 443 F2d 792 (CA 5, 1971), cert den, 404 US 944; 92 S Ct 295; 30 L Ed 2d 258 (1971); United States v Lippmann, 492 F2d 314 (CA 6, 1974), cert den 419 US 1107; 95 S Ct 779; 42 L Ed 2d 803 (1975); Stephan v United States, supra, cert den sub nom Marchesani v United States, 423 US 861; 96 S Ct 116; 46 L Ed 2d 88 (1975); United States v Gocke, supra, cert den 420 US 979; 95 S Ct 1407; 43 L Ed 2d 660 (1975); United States v King, 472 F2d 1 (CA 9, 1972), cert den sub nom Butler v United States, 414 US 864; 94 S Ct 37, 40, 174; 38 L Ed 2d 84 (1973); United States v Puchi, supra, cert den, 404 US 853; 92 S Ct 92; 30 L Ed 2d 92 (1971); United States v Quintana, supra, cert den, 409 US 877; 93 S Ct 128; 34 L Ed 2d 130 (1972); Holmes v Burr, supra, cert den, 414 US 1116; 94 S Ct 850; 38 L Ed 2d 744 (1973).

[14] See Spector Motor Service, Inc v Walsh, supra.