PEOPLE v DRIELICK
Docket Nos. 56735, 57617
Supreme Court of Michigan
Decided July 18, 1977
400 Mich 559
Argued February 1, 1977. Certiorari denied by the Supreme Court of the United States January 23, 1978.
PEOPLE v PLAMONDON
PEOPLE v BLAZIER
The issue in these appeals is whether a recording of a telephone conversation, which was made without a warrant but with the consent of one of the participants in the conversation, violates the constitutional prohibition against unreasonable searches and seizures.
Michael D. Drielick was convicted by a jury in Saginaw Circuit Court, Eugene Snow Huff, J., of first-degree murder. The decedent‘s wife told police that the defendant had admitted to her that he had killed the decedent. She agreed to telephone the defendant and to allow the police to monitor and record the conversation, in which the defendant again admitted the crime. The recording was admitted into evidence over the defendant‘s objection. The Court of Appeals, Quinn, P. J., and McGregor and O‘Hara, JJ., affirmed (Docket No. 17954). Defendant appeals.
Lawrence Plamondon and Craig Blazier were convicted in the Benzie Circuit Court, William R. Peterson, J., of extortion by threat of accusation. Uwe Wagner, the victim of the extortion, called defendant Plamondon at the suggestion of police to discuss the defendants’ threat to break Wagner‘s arms and legs, and to expose him as a drug dealer unless he paid the defendants $3,000 he owed Blazier for the sale of drugs. The police made a tape recording of the conversation which was admitted into evidence over the defendants’ objection. The Court of Appeals, Allen and D. E. Holbrook, Jr., JJ. (D. E. Holbrook, P. J., dissenting), reversed and remanded for a new trial on the
REFERENCES FOR POINTS IN HEADNOTES
[1] 68 Am Jur 2d, Searches and Seizures § 61.
[2] 68 Am Jur 2d, Searches and Seizures § 31.
[3] 68 Am Jur 2d, Searches and Seizures § 24.
[4] 68 Am Jur 2d, Searches and Seizures §§ 2, 4, 5.
[5, 6] 68 Am Jur 2d, Searches and Seizures § 49.
1. A decision of the Supreme Court of Michigan in 1975 held that, unless authorized by a search warrant, a participant may not, consistent with the Michigan constitutional prohibition against unreasonable searches and seizures, electronically monitor a conversation which is transmitted to law enforcement officers. However, the participant monitoring in the instant cases preceded that decision, which the Court announced was to be applied prospectively only.
2. It is the duty of the Supreme Court of Michigan in deciding a claim that Fourth Amendment rights were violated to determine with the best exercise of the Court‘s mental powers that law which in all probability will be applied to the present litigants or to others similarly situated in the event of a further appeal from the Supreme Court of Michigan to the United States Supreme Court.
3. The United States Supreme Court has held that police eavesdropping without a warrant on a conversation between an accused and an informant by means of a radio transmitter concealed on the informant does not violate the Fourth Amendment. United States v White, 401 US 745; 91 S Ct 1122; 28 L Ed 2d 453 (1971). The thrust of the opinion by Justice White, which was signed by four Justices, was that there was no invasion of the defendant‘s justifiable expectations of privacy. 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.
4. 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 Justice White‘s plurality opinion that monitoring a conversation with the consent of one of the participants does not violate the other participant‘s constitutionally justifiable expectations of privacy. The decision of the Court of Appeals is affirmed as to Drielick and reversed as to Plamondon and Blazier. The convictions are affirmed.
Justice Ryan, joined by Justice Coleman, concurred in the disposition of the case because the decision of the Supreme Court of Michigan was prospective only and the evidence was not obtained in violation of the Fourth Amendment of the United States Constitution.
56 Mich App 664; 224 NW2d 712 (1974) affirmed.
64 Mich App 413; 236 NW2d 86 (1975) reversed.
- SEARCHES AND SEIZURES—WITHOUT WARRANT—PARTICIPANT MONITORING—CONSTITUTIONAL LAW—PROSPECTIVE APPLICATION.
The rule of law that unless authorized by a search warrant, a participant may not, consistent with the Michigan constitutional prohibition against unreasonable searches and seizures, electronically monitor a conversation which is transmitted to law enforcement officers was given prospective effect only (
Const 1963, art 1, § 11 ). - SEARCHES AND SEIZURES—WITHOUT WARRANT—PARTICIPANT MONITORING—RADIO TRANSMITTER.
Police eavesdropping without a warrant on conversations between an accused and an informant by means of a radio transmitter concealed on the informant does not violate the Fourth Amendment of the United States Constitution (
US Const, Am IV ). - SEARCHES AND SEIZURES—WORDS AND PHRASES—ELECTRONIC EAVESDROPPING.
The right to protection against unreasonable searches and seizures cannot turn upon the presence or absence of a physical intrusion into any given enclosure; the government activities of electronically listening to and recording a defendant‘s words by a device attached to the outside of a public telephone 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 of the United States Constitution (
US Const, Am IV ). - SEARCHES AND SEIZURES—FOURTH AMENDMENT—COURTS—DECISIONAL LAW.
It is the duty of the Supreme Court of Michigan in deciding a claim that Fourth Amendment rights were violated to determine with the best exercise of the Court‘s mental powers that law which in all probability will be applied to the present litigants or to others similarly situated in the event of a further appeal from the Supreme Court of Michigan to the Supreme Court of the United States (
US Const, Am IV ). - SEARCHES AND SEIZURES—FOURTH AMENDMENT—WITHOUT WARRANT—PARTICIPANT MONITORING—TELEPHONE CONVERSATION.
The view of the law which in all probability would be applied by the Supreme Court of the United States would be that there was no invasion of a defendant‘s constitutionally justifiable expectations of privacy under the Fourth Amendment by police monitoring of a telephone conversation with the permission of
CONCURRING OPINION
COLEMAN and RYAN, JJ.
See headnote 1.
- SEARCHES AND SEIZURES—FOURTH AMENDMENT—WITHOUT WARRANT—PARTICIPANT MONITORING—TELEPHONE CONVERSATION.
There was no invasion of a defendant‘s constitutionally justifiable expectations of privacy under the Fourth Amendment by police monitoring of a telephone conversation with the permission of the other participant (
US Const, Am IV ).
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.
LEVIN, J. The issue is whether warrantless electronic eavesdropping of a telephone conversation, with the consent of one of the participants in the
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 murder1 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 accusation2 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.
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)
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
Notes
“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.
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
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
Since White was decided, Justices Black, Douglas and Harlan have left the Court, and Justices Powell, Rehnquist and Stevens have taken their
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.
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.
“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.)
“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).
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).