People v. Konke

83 Mich. App. 356 (1978) 268 N.W.2d 42

PEOPLE
v.
KONKE

Docket No. 31151.

Michigan Court of Appeals.

Decided April 20, 1978.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patrick J. Foley, Director, Wayne County Organized Crime Task Force, and John E. Steele, Assistant Prosecuting Attorney, for the people.

Lawrence B. Macdonald, for defendant Konke.

Edward A. Khoury, for defendant Oddo.

Before: BEASLEY, P.J., and D.E. HOLBROOK, JR., and M.J. KELLY, JJ.

PER CURIAM.

In this case the prosecutor appeals, by leave granted, from a trial court order suppressing tape-recorded evidence of statements made by defendants to an informer, who was equipped with a recording device pursuant to search warrants, as required by People v Beavers, 393 Mich. 554; 227 NW2d 511 (1975).

Investigators for the Wayne County Organized Crime Task Force were informed by Norman Giveins and two others that they had in the past committed several burglaries, and had disposed of the stolen goods therefrom by consigning them to defendants for resale. On the basis of this information, the task force obtained two search warrants, one in Wayne County on August 6, 1975, and one in Macomb County on August 19, 1975, authorizing them to place hidden recording devices on Giveins before he met defendants in two named bars, one in Wayne County and one in Macomb. The meetings took place as scheduled, and were recorded. Defendants were subsequently charged on October 28, 1975, in Wayne County with receiving and concealing stolen property.

Defendants moved in Wayne County Circuit Court to suppress the tape-recorded evidence of the conversations between defendants and Giveins (who is now deceased), on grounds that their Fifth Amendment right against compulsory self-incrimination had been violated. The motion was granted and this appeal followed.

Defendants successfully argued below that because the investigation had focused on them, the doctrine of People v Reed, 393 Mich. 342; 224 NW2d 867 (1975), required that they be given their Miranda warnings prior to being engaged in conversation by Giveins. We disagree. Although the investigation was undoubtedly aimed at gathering evidence against defendants, there were none of the elements of compulsion or coercion which trigger the requirement that Miranda warnings be given. Defendants were neither in custody nor in the intimidating atmosphere of a police station. Indeed, they were not even confronted by a police officer. This was not a case where a suspect is being questioned by a figure of authority, as was the case in Reed, supra, and indeed in Miranda v Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1966), and Escobedo v Illinois, 378 U.S. 478; 84 S. Ct. 1758; 12 L. Ed. 2d 977 (1964), from which the "focus" test arose.

Here, defendants were in a public place, engaged in voluntary conversation with one whom they thought to be a friend. Any incriminating statements were made freely and voluntarily, not under compulsion. That Giveins was in fact an agent of the police does not change this fact. See Hoffa v United States, 385 U.S. 293; 87 S. Ct. 408; 17 L. Ed. 2d 374 (1966), Osborn v United States, 385 U.S. 323; 87 S. Ct. 429; 17 L. Ed. 2d 394 (1966). Moreover, the clear implication of Beavers, supra, that electronic monitoring is a valid investigative tool, if a warrant is obtained, would be rendered useless if Miranda warnings had to be given each suspect on whom an investigation had focused.

An analogy may be drawn from the United States Supreme Court holding in Beckwith v United States, 425 U.S. 341; 96 S. Ct. 1612; 48 L. Ed. 2d 1 (1976), wherein it was held that Miranda warnings were not required where special agents of the Internal Revenue Service interviewed a taxpayer who was clearly the focus of a criminal income tax investigation. We relied on Beckwith and Oregon v Mathiason, 429 U.S. 492; 97 S. Ct. 711; 50 L. Ed. 2d 714 (1977), in a recent decision rejecting the focus only test relied on by defendants in the case at bar. People v Martin, 78 Mich. App. 518; 260 NW2d 869 (1977).

The ruling of the trial court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.