People v. Sacorafas , 76 Mich. App. 370 ( 1977 )

Bashara, P. J.

(concurring). I concur in the result reached by the majority opinion. However, I do not agree with all of the reasons cited therein.

I believe that defendant was entitled to a rehearing on his motion to suppress. It strikes me as incongruous to hold that Judge Crockett had jurisdiction to hear the motion, while at the same time implying that any disposition he made would have been meaningless because defendant was not entitied to the second hearing. The rule of People v Lenic, 255 Mich 29; 237 NW 35 (1931), does not appear to me to deny a defendant a rehearing on a trial court motion.

It is evident from the record that defendant requested the rehearing based upon his belief that People v Beavers, 393 Mich 554; 227 NW2d 511 (1975), and People v Plamondon, 64 Mich App 413; 236 NW2d 86 (1975), lv granted, 395 Mich 813 (1975), which were released subsequent to Judge Leonard’s original denial of the motion, had changed the applicable Michigan law on warrant-less electronic surveillance. I cannot agree that defendant is precluded from seeking a new ruling on a motion where intervening case law could affect the trial court’s deliberation. To deny the rehearing would leave to this Court the decision on the merits when the trial court should first be given the opportunity to rule. Defendant sought the rehearing before Judge Leonard’s successor and that rehearing was properly granted.

I agree with the majority that Judge Crockett erroneously granted the motion to suppress the tapes. However, I do not agree that the decision in Plamondon, supra, holds Beavers, supra, to be retroactive despite the clearly prospective holding in Beavers. My reading of Plamondon indicates that the Plamondon Court expressly recognized the prospective nature of Beavers and accordingly declined to use Beavers as precedent. While it is true that the Plamondon Court independently came to the same result as Beavers, it did not on its face hold Beavers to be retroactive.

I would hold that the suppression of the tapes was erroneous in the present case since no warrant was required prior to Beavers. See United States v White, 401 US 745; 91 S Ct 1122; 28 L Ed 2d 453 (1971). I agree with the majority in declining to follow Plamondon, and instead apply the reasoning of People v Livingston, 64 Mich App 247; 236 NW2d 63 (1975), and People v Drielick, 56 Mich App 664; 224 NW2d 712 (1974), lv granted, 396 Mich 813 (1976).