People v. Gilbert

1982] Gilbert v

PEOPLE GILBERT 6). (Calendar 10, Argued Docket No. 64147. December No. 28, 1982. September Decided charged equipping Daniel C. Gilbert was with a motor vehicle receiving capable receiving signals with a radio set on frequencies assigned police purposes, namely, for a radar detec- Court, Bolle, Troy Municipal J., granted tor. The William E. ground the defendant’s motion to on dismiss the the charged apply statute under which he was does not to radar Court, J., Templin, detectors. The Oakland Circuit L. Robert Appeals, reversed and the case trial. remanded for The Court of C.J., Danhof, JJ., Cynar, and Bashara and held that the statute detectors, applied charge to radar but ordered dismissal of the against ground on defendant was put application insufficient to on him notice its to radar 78-383). (Docket appeals. No. detectors The defendant Levin, opinion joined In an Justice Chief Justice Kavanagh, Fitzgerald, Ryan, Moody, Coleman and Justices and Supreme Court held: receiving A radar detector a radio set within the meaning statute. Legislature 1. At the time that the enacted the section prohibits equipping Penal Code which of a motor vehicle receiving capable receiving signals with a radio set frequencies assigned police purposes, the term "radio receiv- ing today set” referred to devices which are called radios. The applied fact term that the "radio set” now be provide grounds television sets and radar detectors does not enlarging meaning as it term was used at the time time, the statute was At enacted. neither television nor [8] [9, ^[9] [7, [1-8,10] ^[4] 10] 29 Am Jur Am73 16 Am Jur 74 Am Jur 16A Am Jur 74 Am Jur Jur 2d, 2d, 2d, References 2d, Statutes Conflict of Laws 15. Evidence 12. 2d, 2d, Telecommunications 23.§ Telecommunications 209. Constitutional Law §§ § for Points 145, 146. § in Headnotes §§ § Mich developed, could not have had been eventually means for used as a that radar would realized the defensive detecting speeding or have assessed motorists employ to avoid surveillance. would measures motorists statute, through Legislature, the enactment 2. The eavesdropping burglars from sought to deter robbers by police. The two-way the radio communications confidential police radio proscribed breach of confidential was the behavior detected. The statute a crime had been after communications attempts by police protect to detect the meant to was not developed. yet technology by which had to be of a crimes means applica- Technological be an obstacle to innovation not technology facilitates where the new tion of a statute Legislature clearly means of ends which the achievement technology discourage. encourage new But in this case the or generating public policy responsible which the issues of for Legislature Radar detectors do not not have foreseen. could rather, officers; they between monitor communications by his vehicle surveillance of alert the user to electronic support proscription police. policy considerations which The monitoring communications confidential of vehicular monitoring necessarily of electronic sur- extend to the do not police. by the veillance outlawing not that the radar detectors is 3. The rationale for dangerous, their use will are but detectors themselves driving escape apprehension in excess of for enable motorists to prohibition speed within the broad limit. The fits the lawful offenses”, "possession category are which of crimes known as punishment generally thought than the crimes to merit lesser Code, Michigan they Vehicle violation foreshadow. Under the penalty speed prescribed and the limit is a civil infraction of a receiving fine; equipping yet a radio of a vehicle with is a misdemeanor, providing penalty high of a fine or for a set is a provisions penalty make sense incarceration or both. While the burglars, targets said that cannot be where the are robbers and punish employed who violate motorists where the statute is Legislature improbable would the traffic laws. It is adopt penalty offense. A scheme for a traffic-related such legislative purpose unmistakable and should to do so is not Legislature. be attributed to the Although light the decision of the Court arguably Appeals respect with to defendant Gilbert the case moot, importance decision it is of sufficient to warrant Supreme persons charged Court. Few as was the defendant question Supreme litigate the to the have the resources to v Gilbert question Court. The people, affects considerable number of agencies and law enforcement and the lower courts need a final, Furthermore, ruling. definitive construction of the statute subject will serve to alert the to the matter. charge against Affirmed insofar as Gilbert is dismissed. Williams, dissenting, equipping Justice would hold that using prohibited vehicle with a radar detector is statute, challenged and that the statute is valid. 1. A radar detector within falls the definition of a radio receiving signals, frequencies set that will receive and the assigned police purposes. which it receives have been receiving term "radio set” is not limited the statute to a device which receives only voice communications. The statute requires prohibited signals. that the device receive radio There- fore, encompasses the term "radio set” the term plain meaning "radar detector” within the of the statute. The require frequencies statute does not that the received be exclu- sively assigned police purposes, only they assigned. 2. The enforcement of the statute is a valid exercise of the police power regulate highway safety state’s which does not directly pre-empted by conflict with and is not the Communica- tions Act of 1934. 3. The statute does not affect a fundamental interest or impose suspect designation persons classification. The of who assigned frequencies monitor the in vehicles involves rationally classifications which are related to the statute’s objective, equal protection guarantees. consistent with by 4. The means chosen to achieve the promotion health, welfare, i.e., safety, prohibition of against equipping using a vehicle with a radio receiver such detector, rationally as a radar are related to the statute’s objective process. and do not amount to a denial of due Despite logical clarity, 5. layperson might its a reasonable not have pro- understood until now that radar is within the scription Therefore, practical of the statute. because of the possibility might put the defendant not have been on notice that the of by use the radar detector was forbidden statute, Appeals dismissing the decision of the Court of charges against However, the defendant should be affirmed. "judicial gloss” placed statute, because of the persons on the who, future, equip in the or use a vehicle with a radar detector should be on notice that such conduct is unlawful. (1979) App 764; 88 Mich 279 NW2d 546 affirmed insofar as charge against the defendant is dismissed. op

Opinion the Court — — — 1. Automobiles Radio Receivers Radar Criminal Law Detectors. receiving purposes

A radar detector is not a radio set for equipping prohibits which a motor section of the Penal Code receiving receiving capable signals vehicle with a radio set (MCL purposes 750.508; frequencies assigned police on for MSA 28.776). — — — Radio Receivers Radar Criminal Law Automobiles Detectors. proscribes equipping which a motor The section of the Penal Code receiving capable receiving signals vehicle with a radio set assigned police purposes frequencies for was intended on capable receiving apply to radio receivers confidential voice police communications between officers and not to television or detectors, developed at the which had been time of 28.776). (MCL750.508; enactment MSA — — — 3. Criminal Law Automobiles Radio Receivers Electronic — Surveillance Radar Detectors. proscribes equipping The section of the which Penal Code a motor receiving capable receiving signals vehicle with a radio set frequencies assigned police purposes on for was intended to by outlaw the breach of confidential radio communications police by burglars; robbers and it was not intended to immunize attempts by to detect crimes means of a radio technology yet developed, to be nor was it intended to be monitoring extended to the of electronic surveillance (MCL police through the use of radar detectors MSA 28.776). — — — 4. Criminal Law Radio Receivers Radar Automobiles — Detectors Penalties. penalties prescribed equipping a motor vehicle with a capable receiving signals frequencies set assigned police purposes proportionate gravity are to the proscribe the offense where the statute is construed monitoring of confidential voice communications between burglars, penalties dispro- officers robbers and but the are portionate applied monitoring when to the with radar detectors police; of electronic surveillance of motorists the result applying the statute to the use of is so radar detectors improbable preclude as to an inference that Gilbert application intended such an without unmistakable evidence of (MCL 28.776). legislative 750.508; intent MSA Dissenting Opinion Williams, — — — 5. Criminal Law Automobiles Radio Receivers Radar Detectors. receiving purview A radar is a detector radio set within the prohibits equipping using the statute which or a vehicle with a receiving capable receiving frequencies assigned radio set for therefore, purposes; person equips who a vehicle with a vehicle, radar detector or who uses such a and who does not statutory exemptions, may prosecuted fall within the be under (MCL 28.776). 750.508; that statute MSA — — 6. Criminal Law Automobiles Radio Receivers. prohibits equipping using The statute which or a vehicle with a receiving capable receiving frequencies assigned radio set for police purposes require frequencies does not that the involved assigned exclusively recep- use in order for their (MCL 28.776). 750.508; tion to be restricted MSA — — — 7. Criminal Law Automobiles Radio Receivers Police Power. prohibits equipping using statute which a vehicle with a receiving capable frequencies assigned set police purposes police power is a valid exercise of the state’s pre-empted by (47 and is not the Communications Act of 1934 28.776). seq.; USC151 et MCL MSA — Pre-emption — 8. Constitutional Law Federal State Interest. court, determining A police power whether an exercise of state pre-empted by Congress, consider, light act of should presumption against pre-emption strong where a state involved, pervasiveness scheme, interest of the federal occupation the need for federal of the Held dictated national uniformity, danger law, and the of conñict between state program. administration of a federal — Scrutiny — — Equal 9. Constitutional Law Protection Strict Rational Basis. court, reviewing A legislation which affects a fundamental suspect elassiñeation, interest or apply involves a must test, scrutiny requiring strict justify legislation the state to by showing compelling interest; state where the elassiñeation suspect interest, is not and does not involve a fundamental party burden challenging legislation is on the to show that 191 Mich Opinion of the Court arbitrary a essentially does not bear the classiñcation (US Const, legislation relationship object to the rational 1963, 1, §2). XIV; Const art Am — — — Equal 10. Criminal Law Radio Receivers Automobiles Protection. using prohibits equipping with a or a vehicle The statute which assigned receiving frequencies receiving capable set purposes activ- to facilitate law enforcement was enacted persons permitted to monitor ity; the statute’s restriction rationally frequencies which are involves classifications those equal protec- objective, consistent with to the statute’s related (US Const, XIV; process guarantees Const Am due tion and 28.776). 1, 1963, §§2,17; MSA MCL art Attorney Kelley, J. General, Louis Frank J. Patterson, General, L. Brooks Caruso, Solicitor Attorney, Williams, Prosecuting Chief Robert C. Modelski, Appellate Assis- Counsel, and Michael people. Prosecuting Attorney, for the tant (by Associates, P.C. Jesse R. Bacalis Bacalis & Honeyman; Fletcher, & Hil- D. Heald and John counsel), Pettit, dreth, L. for the Robert defendant.

Amicus Curiae: Smith) (by for Electro-

Kantner & Smith Martin lert, Inc. charged, on evi- J. Daniel C. Gilbert

Levin, in motor there a radar detector dence that was driving,1 equipping a motor vehicle he was with receive vehicle with a radio set that will Appeals was The Court of declared that defendant’s automobile Gilbert, App People "equipped 766; with radar detector”. prosecutor issue of The states that NW2d "[t]he equipped police radar had his vehicle with a whether detector, defendant same, question has would be a of fact”. There used the trial in case. been no this v Gilbert Opinion op the Court signals frequencies assigned pur- poses.2 municipal

The judge granted Gilbert’s motion to ground dismiss on the the statute does not apply radar detectors. The circuit judge re- versed and remanded for trial. The Court peals also rejected Ap- challenges

Gilbert’s but ruled its decision prospective and, would be only reversing court, circuit directed charges be dismissed. principal issue is whether a radar detector

is a "radio receiving set” within the meaning of the statute.3 We hold it that is not because the protects the confidentiality com- police munications but not electronic surveillance by the police. question

The whether persons should be barred from installing devices designed to detect elec- tronic surveillance by was not addressed by Legislature when this statute was enacted in 1929.

The asserted desirability of barring motorists from installing radar detectors does not a justify court in placing a construction on the statute which Legislature could not have possibly contemplated in 1929 when the statute was en- acted. Any person "Sec. 508. equip who shall a vehicle with a radio signals set that frequencies will receive assigned sent on by the federal communications commission of the United States of police purposes, America for or use the same in this state unless such by peace vehicle is used or owned a officer or a bona fide amateur operator holding conditional, general, radio amateur without first Michigan a advanced or extra class commission, license issued the federal communications securing permit so to do from the commissioner of the police upon application state prescribe, may such as he misdemeanor, guilty shall punishable be by imprisonment in county jail year not more than 1 or a fine of not more than $500.00 imprisonment both such fine and in the discretion of

the court.” MCL MSA 28.776. disposition unnecessary Our makes it to consider the other issues opinion and we intimate no thereon. op Opinion the Court forth in the set reading of the statute and in the dissent- Appeals the Court of opinion equipping would bar the in this Court ing opinion to detect designed a device a motor vehicle with the vehicle speech within surveillance of electronic surveil- to detect electronic of a device as well as speed of the vehicle. lance of conviction subjects offenders to a The statute high misdemeanor having committed a record If up year. incarceration to one and to detectors, proscribe Legislature were or use of a penalties for installation likely more commensurate with radar detector would be speeding. penalties whether, to decide Legislature It is for the which, elec- the extent the detection may surveillance should be barred. There tronic not act some concern all, surely proper or at but quickly in the name of the acting for this Court basis Legislature.

I appears, dissenting opinion, It as set forth in the signals that carry today radio waves can perceived visually or The term "radio audibly. set”, may now be construed thus, receiving include a television set or a radar detector. But at enacted, the time the statute was neither television nor devel- sets radar detectors had been time, oped. receiving At the only radio set. use was what called a radio. today

A The members of the had in mind a v Gilbert Opinion of the Court device, radio, particular not and television sets not detectors which had been developed art, 1929. The advance in years enacted, after the statute does enlarge was meaning term "radio set” from only meaning known to those who used that term when the statute was enacted. dissenting opinion concludes that a "nar- "encompasses

row” construction of plain within meaning term radar detector added.) (Emphasis the statute.”4 This conclusion post-enactment rests on usage: "radar a conve- nient acronym for 'RAdio Detection And ”5 and "Webster’s Third New Interna- Ranging’ (1966) tional Dictionary, Unabridged Edition, p 1871, has defined 'radar’ 'a as radio device or system locating emitting object means ”. signals’ (Emphasis supplied.)

Words do not stand outside their history. They draw their meaning from it. The plain-meaning rule of statutory construction assumes words of a meaning statute have the same to those who authored and to those who read it. This assumption might be accurate if linguistic usage remained usage meanings static. But may change time, over considerably and the semantic identity between author and reader which the plain-meaning rule presupposes be severed. A may succeeding generation readers read mean- ings into a text which were never intended. Words chosen to deal with a specific problem may, as result, be given meanings that could extend their

4 People Gilbert, infra, p 217. v 5 People Gilbert, infra, p 191 414 Mich 200 Opinion the Court anything the au- well application beyond field of could envisioned.6 thor have a when construes responsibility A court’s and intent purpose implement statute A to consider whether it.7 failure those who enact meaning of a term Legislature understood the was enacted than when statute quite differently to be today would allow statute it is understood extends its intended in a manner which construed the term The is not whether scope. inquiry proper be understood receiving set” would "radio the use of radar but to include modern reader phrase time was used whether at technological develop- for provided this ment.

B Legisla- developed to be when the Radar had yet During enacted this ture 1930’s, military secrecy, the veil of scientists under produc- a method for seeking develop still were wavelength character- ing signals with short speed position object so and istics Al- travelling through space could be monitored. until though the term "radar” was coined 1942, had military 1936 the United States target developed system a radar successfully tracking It was after navigation. only and police began that highway Second World War simple use a transmitter detection vehicles, from shifting speeding reflections enabling instant direct mea- moving vehicles 6 (CA Walling, 2, Jones, Guiseppi 1944); F2d v See 624 Meaning Interpretation Plain Federal Die: The Rule and Extrinsic Aids in the Statutes, Never (1939); Murphy, Old Maxims 25 Wash LQ2 "Plain-Meaning Statutory Interpretation in the Rule” and Courts, (1975). "Modern” Federal Colum L Rev Arbor, City 554; White v Ann NW2d 283 Gilbert Opinion of the Court velocity. Thus, at the time this of their surement statute was position Legislature enacted, not in a the was come to be that radar would to realize detecting speeding motorists, as a means for used the defensive measures motor- much less to assess take to avoid surveillance. ists would dissenting opinion it is asserts but "insignificant radar, difference”8 that in contrast radio, with conventional does not transform re- signals into ceived voice communications. While unimportant today, this helps it difference seem identify problem the actual which the it meant address when enacted this statute.

Through Leg- statute, the enactment of this the sought eavesdrop- islature ping to deter criminals from two-way police on communications. It was pick up police feared that if criminals were able to dispatches escape crime, to the scene of a their gave would be facilitated. The concern which rise designed confidentiality to statutes to assure the of two-way police transmissions has been described person subject police conversant with the systems following communications in the manner: "Secrecy is fundamental to the success of mili- both tary police operations. and publication Premature details connected with investigation criminal has thwarted police the on occasions without number. When adopted radio was as an police arm of communi- cation, secrecy consideration, received much serious since, in transmission, information is radiated to points all compass. Any person possessing suitable might receiver police listen to broadcasts. The probability exploit that criminals would opportu- this nity advantage to their was obvious. p Gilbert, infra, 414 Mich 191 op Opinion the Court enforcement, many in early

"In use of radio law At problem anxiety. with police officials viewed convention of the International Association Police, appointed prepare a committee was Chiefs a suitable code for use, police order that information being might possibility transmitted of its without purposes. intercepted and used for criminal apartment- story frequently "The has been told of an burglar Chicago precaution had taken the house to tune the receiver who apartment in the to the frequency. Neighbors reported broadcast to the suspicions burglary dispatcher the radio their immediately broadcast, on air an alarm went with 'Burglar operating apartment at 5346 sixth floor Street,’ squad Main and ordered cars to scene. Hearing message, burglar is said to have writ- warning, pinned ten a note of thanks for on the leisurely departure radio and made a the officers before Leonard, Sys- arrived.” A. Police Communications V. tems, p 104 The behavior this sought to outlaw was the breach of confidential radio two-way police communications occurring after against a crime persons or had property been detected. The statute was not meant to protect police to attempts detect crimes means of a radio technology which had yet to be developed.9 cases, Moore, People 807; Two New York v 92 Misc 2d 401 NYS2d (1978), Faude, People 434; 440 (1976), and v 88 Misc 2d 388 NYS2d 562 Law, construed 397 of that § state’s Vehicle and Traffic

wording virtually statute, Michigan of which is identical to the receiving reached the conclusion that refer to radar detectors. the term "radio set” does not dissenting opinion suggests that the basis for these decisions was that 397 of the New York § Vehicle and Traffic Law was found to pari Law, be in materia with 140.40 of the which § New York Penal prohibited possession person intending of a radio device use it felony, in the commission of a and that this statute defined a "any capable receiving device as device of a wireless voice any frequency transmission on police (Emphasis allocated for use.” added.) Though wording proved of 140.40 of the York Penal Law § New dispositive People Moore, v the court in Faude was not wording noting content to rest its decision on the alone. After People v Gilbert op Opinion the Court this

Although preceding shows that history law designed statute was to address a of problem in- enforcement similar to the one superficially case, volved in the instant of crime the methods detection and the of distinct technology radio were when the of "radio Legislature proscribed the use restric- 140.40 of the New York Penal Law defined "radio device” § tively, memoranda issued proceeded support to find further for its conclusion organization spurred passage of both which 397 of the York Vehicle and Traffic Law and 140.40 § New York Penal Law. § New support "In 397 to further intended section prohibit only memorandum of State Association of Chiefs of memorandum was written in 1966 capable receiving a device voice transmissions is Police, Inc. That section 397 amended to when was (NY Legis opposed just include 'motor vehicles’ as 'automobiles.’ 26.) Ann, 1966, p discussing reasoning section, "In behind this the memorandum states, part, recently brought police that: 'It was attention that burglars operating being police were with the look-out car tuned to frequencies listening burglary to each call in case the had been * * police discovered and cars were sent to the scene *. This is a great transmitting talkie radios to the police burglaries by aid to the thieves in the commission of their police frequencies by information on received walkie- burglars building advising any in the them of (See Ann, Legis 1966, 26, p supra.) action in the area’. NY pub- “In a memorandum of State Association of Chiefs of Police adoption Law, lished in reference to the of section 140.40 of the Penal purpose provide person it is noted that the of that section 'is to * * * guilty device use or device unlawfully possessing possesses radio device who capable receiving signals frequencies allocated capable transmitting or wireless voice evincing transmission under circumstances intent to use same in added). (See (emphasis Ann, Legis commission of certain crimes’ NY 46.) 1970, p prohibit "A second memorandum indicates that 'This bill would operation capable public places or maintenance in of radio sets receiving signals frequencies allocated for use without autho- added.) (See appropriate police (Emphasis rization from Legis NY officials.’ 54.) Ann, 1970, p memoranda, significant 'signals’ "In both it is that the term used synonymously sages.’ transmissions’, with the term 'voice and 'voice mes go sought activity Both memoranda on to to describe the prevented by prohibiting activity the use of these devices as the same dealing described and Traffic Law.” 88 the memorandum with section 397 of the Vehicle 2dMisc 436-437. Insofar as these materials demonstrate that the New York statute gave statute, was aimed at interception Michigan the same evil as rise to the police frequencies, of voice communications over support Faude offers opinion. for the view set forth in this Mich op Opinion the Court voice receiving police receiving capable sets” followed, In the years transmission. wrong- detecting method for technology became a opportunities This advance created doing. those which different character than problems of a as Just of this statute. passage motivated emergence predict could not Legislature to radar, response predict legislative we cannot ad- this To hold that this development. statute us could history dressed a tells problem to impute an intent have been addressed is had. Legislature it could not have an obstacle Technological innovation not be new where to the application of ends achievement technology facilitates encourage meant Legislature clearly which the a case. Here discourage.10 or But this is not such genera- for responsible the new is itself technology Legislature ting public issues of which the policy could not have foreseen or dealt with. specifically has

In states where the the use problem by prohibiting addressed the devices, language the statutory radar detection 11Where, here, the en unambiguous. clear and as legis preceded any possible actment of the statute issues, public policy lative consideration of the legislative proper course of action is to await Christiansen, Technological Change Statutory 10 See, & generally, Interpretation, L Rev 1968 Wis example, Virginia prohibits For the Code of 46.1-198.1 the "use § presence upon of devices on motor vehicles to detect of radar [the] highways.” This statute does not use the broad term "radio specifically applies equipped set” but to motor vehicles with mecha operator presence nisms to alert the police prohibits to the of microwaves emitted Statute, systems. Similarly, title 11-808 § Oklahoma motorists; the use of radar section interference devices operate any person A.l states that "it motor vehicle this state shall be unlawful upon road, street, any public highway turnpike or equipped any designed such when vehicle is with or device of, purpose capable jamming distorting signals of: 1. received by radar.” People Gilbert v Opinion of the Court judgment, engage attempt not to in an uncertain anticipate it.12

II legisla- statutory construction is The lodestar of Appeals purpose of de- tive or intent. The Court apparent purpose of the statute clared "to enhance the efficient and effective execu- was tion of "designed

police functions” and was monitoring police prevent Per- movement”.13 designed detectors, to frustrate sons who use radar policy enforcement, law are thus within to facilitate effective law en- statute which seeks forcement. dissenting opinion not, in this Court does in The construing legisla- statute, make reference to purpose apparently intent, tive because expressed "plain meaning” there view receiving statute is that the term "radio set” "encompasses the term radar detector”. The dis- senting opinion purpose statutory adverts to rejecting equal protection process and due chal- lenges; opinion states that the statute is de- dissenting opinion, The entirety, viewed its contradicts itself. "plain meaning” The statutory rule of yield construction is said to conclusion that a radar detector receiving is a "radio set”. Then the People Dempster, (1976) rule of to 700; v 396 Mich 242 NW2d 381 is said yield the conclusion that this given prospec construction should be attempt tive effect. No is made to reconcile these two conclusions although they proceed contradictory premises. plain-mean from ing and that their them. The cal presupposes ambiguity rule that the words of a statute are free meaning readily anyone discernible to who reads Dempster operative "practi rule becomes when there is a possibility ambiguity” put that the words of a statute would not potential defendants on notice those acts which the statute forbids. meaning If ambiguity "plain”, a statute is free from because its "clarifying gloss” language then no necessary on its would be and the Dempster inapplicable. ambiguous rule would be If a statute is and in "clarifying gloss”, meaning "plain”. need of a then its would not be capable being These two conditions are satisfied simultane- ously. Gilbert, supra, App 770-771. Mich Opinion op the Court signed prevent being impeded "to from carrying duties”,14 in the out of their and "to restricting activity by facilitate law enforcement the use of radio motor sets in vehicles using because individuals mentally such could detri- sets frequencies”,15 and "the monitor sought proscribed ultimate to be is the moni- vice toring police activity by private motorists”.16 legislative stating purpose

In so neither Appeals dissenting opinion Court of knowledges nor the ac- using while detector can being be monitoring as characterized of the same nature as message, radio-transmitted audible need not be so characterized and there are other ways looking at the matter.

A prohibit The statute was enacted to vehicular monitoring police reporting communications directing police crime and in an forces effort to apprehend offenders.

Radar do detectors not monitor communications police They between officers. alert rather the user pass through that his vehicle about to a field of electronic surveillance. policy support pro- considerations that

scription police monitoring of vehicular of confidential necessarily communications do extend not. monitoring electronic surveillance. apprehen-

Police communications concern persons sion of who have committed crimes against persons property. may The offenders 14People Gilbert, infra, p v 223.

15Id. infra, People Gilbert, p People v Gilbert 2Ó7 Opinion Court Monitoring poses only and often are armed. danger escape that the that, offenders will but having police. they alerted, been will ambush the Alerting persons who have committed serious of- fenses necessitate diversion of additional aid the officers who arrive on the forces to scene and to assist in the safety designed first

pursuit. At stake is the of the officers and enforcement laws protect persons property. Al- though "speed kills” and the enforcement of the great importance, traffic laws is of different values monitoring are at stake where of electronic surveillance is involved.

B Appeals Under the Court of construction it would be violative of the statute to install an designed electronic device to determine whether engaged are in electronic surveillance of speeding. appears activities other than It that the technology may already have advanced to the point where a radio beam can be directed to hear police conversations within an automobile. Or the might surreptitiously install radio device on an automobile to monitor conversations within the police might automobile. The install an electronic gate identify device at a or field to automobiles entering the area. installing by wish, detec-

Persons who electronic protect against devices, such tion police themselves may not be vio- intrusion and surveillance lating any merely fearful that their activi- law but political ties, criminal, to the and not have come attention of the authorities. by police

Electronic surveillance is serious privacy business and an intrusion into the anyone subjected who is to it. Mich Opinion op the Court use may protect against the constitution

While obtained prosecution in a criminal of evidence surveillance, a matter electronic warrantless decided in the first instance public policy police are autho- Legislature whether police to conduct such derive operations. rized the con- Legislature, their from authority do empowered stitution. The are not proscribed whatever is not in the constitution. The alone can to en- Legislature empower gage Legislature in electronic surveillance. The did not, públic address this issue of policy enacting prohibiting equipping the statute of a vehicle with a radio set.

Ill prohibition against The statutory equipping a vehicle with a "radio receiving set” fits into the broad of crimes category "possession known as instances, offenses”. In Legislature some pro- hibits the possession of an article not because the dangerous article is itself posses- but because its sion evidences an intent to commit a further crimi- nal act or increases such probability act will be committed.17 By criminalizing an inter- mediate step crime, toward the commission of a hopes to reduce the likelihood that an ultimate criminal end will be achieved. The activity proscribed by possession offense derives its harmfulness reference to the ultimate crimi- nal act generates which legislative concern. The rationale for outlawing radar detectors is not that detectors are and of danger- themselves ous, but rather their may permit use motor- offenses”, "possession For a discussion of the rationale for see Fletcher, Rethinking Law, Criminal 3.4§ v Gilbert op Opinion the Court

ists to escape apprehension driving excess of lawful speeds.

Possession offenses are generally thought merit lesser punishment than the crimes they foreshadow. This conclusion rests on a societal judgment that some crimes are more blameworthy than others and deserve greater correspondingly censure. Because the criminal possession status of offenses, crimes, like other inchoate is derivative and their commission is not an unambiguous sig- nal that a further committed, crime will be generally punishes law the possession means to commit a crime less than severely crime itself. In no instance does it punish the possession offense more To severely. do otherwise would be to deny postulate fundamental of the law, viz., criminal that punishment pro- should be portionate to the gravity criminal A offense. construction of a criminal statute which would produce a result contrary is to be avoided.

The Michigan Vehicle Code designates all viola- tions of prescribed its speed limits as civil infrac- tions.18 The penalty committing a civil infrac- tion under the code is a fine not to exceed $100; and the infraction is not "a lesser included offense of a criminal offense”.19 The statute proscribing the equipping of a vehicle with a "radio receiving set” provides that an offender may punished by a up fine or by jail up $500 sentence year one both, and an offender commits a high misde- meanor.20

Under the Court of Appeals construction, posses- 257.628; MCL MSA 9.2328. 257.907; MCL MSA 9.2607. MCL MSA 28.776. Mich op Opinion the Couet it a with carry would detector of a radar sion prohibi- the act which although stigma, criminal discourage is to would seek detectors tion of speeding the who violates person A wrong. a civil The Court more than $100. fined no be may laws thus would the statute of construction Appeals of in aid that can of a device acquisition the subject punishment to laws speeding the of the violation itself, speeding the act of than more severe far offense, not a criminal is and, although speeding a radar detector. of possession criminalize would or robbers bur- potential targets are Where make the statute provided by penalties glars, is the statute where be said This cannot sense. violate the who motorists punish to employed improbable It is laws. traffic for a traffic scheme penalty such a adopt would to do so is purpose legislative A related offense. attributed should not be not unmistakable Legislature.21 IV in forth of the statute set When the construction evaluated, in whether dissenting is opinion detec- the statute and radar light history to understand it is difficult teleologically, tors or penalties radar detectors In states which bar violating possessing than those for such devices are not more severe speeding laws. 46.1-198.1, prohibits Virginia, Code which In the violation Va § devices, punishable by traffic infraction the use of radar detection a fine of not less than speed is a maximum than Violation of $25 $100. nor more punish- Virginia a traffic infraction restrictions in constitutes 46.1-16.01. $100. § able a fine of not more than Va Code 11-808.D., Stat, 47, which Oklahoma, tit § of Okla In the violation devices, punishable a fine prohibits the use of radar interference speeding misdemeanor violation is a $200. of not more than punishable by A $200, or more than $10 of not less than and not a fine jail, days fine and days or both nor more than 30 not less than imprisonment. ll-807(c). Stat, tit § Okla v Gilbert op Opinion the Court

how it can be characterized as "narrow”.22 There concerning minimally, significant are, doubts intended reach of the Because statute. courts are creating penal wary crimes, statutes are to be strictly any ambiguity construed23 and lenity: resolved favor of " Congress Judiciary 'When leaves to the task of will, imputing Congress ambiguity undeclared lenity. should in favor of And out be resolved this not consideration, any sentimental or for want sympathy purpose Congress proscribing with the evil may fairly presup- antisocial conduct. It said to be be a position of our law to resolve the enforcement doubts penal against of a imposition code of a harsher ” States, punishment.’ 81, 83; Bell United v 349 US 75 S 620; (1955), Ct 99 L quoted Ed 905 approvingly in People Bergevin, 307, 312; v 406 Mich 279 528 NW2d (1979). scope

The of this statute uncertain; is at least applied only be should to those acts which the Legislature clearly proscribe. meant to Far from resolving accused, doubts in favor of the the dis- senting opinion wording would stretch the of encompass Legislature only statute failed to see. acts the position consider, but was in no to fore- Technological problems innovation often breeds Legislature yet grapple. with which has Barring the use of radio detectors automobiles may embody Legislature public policy, a wise but it one yet

has not as embraced.24 22People Gilbert, infra, p v 23 People Hall, 175, 189-190; See Mich 215 NW2d 166 Hand, Judge See Rendering "How Far is Free in a Decision?” (1935), reprinted Hand, (New Spirit Liberty L. The 1960): ed, Knopf, York: Alfred A. 3d judge government "When a tries to find out what the would have say, puts things intended which it did not he into its mouth which he Opinion of the Court

V expressed agree in the Many the view with will Appeals dissenting opinion the Court equip motor an offense it should be that vehicle with legitimate no have Motorists detector. a radar to such alert themselves need to relatively intrusion surveillance, innocuous reducing important purpose of which serves holding highways. carnage Persons support to radar limited a statute view would pen- potential Presumably, however, the detectors. alties would provided in as are as severe not be considerably again, in ex- which, are this cess speeding. penalties for possession proscribing use of radar A statute public interest. But the in the detectors proposed scope limit the does not so construction any bring web within its and would of the statute purpose any in an installed radio detector put everyone at risk of an and would automobile precedent expanded application such which would establish. a construction readily the radar address can problem. detectors and The use of radar detector the evil

they constitute, be, if evil it is well-known. prospec- Appeals opinion given Court of was place only.25 a tenu- A court should not tive effect substituting said, very ought is close to thinks it what he himself thinks usurp to have and however, beware, right. he will him Let way government, though in a he must the office of even small do so in order to execute its real commands at all.” put opinion Appeals all its "serves The Court of declared persons prohibited equipping with a radar detector on notice that one’s vehicle Michigan this the date of release of under law. As of persons equipping opinion may a radar detector their vehicle with those prosecuted MSA 28.776.” be under MCL Gilbert, supra, App People v Gilbert Opinion of the Court prob- ous construction this statute to address a legislative lem to which attention di- readily it rected and which can resolve if in its readily appropriate judgment subject legislation. is an

VI adoption We have considered whether of the expressed view opinion Court of Appeals in the dissenting opinion and would ren- controversy der this moot because construction there the statute set forth would given prospective only charges effect and against Gilbert are dismissed. People’s Community Hospital Milford v

In Au- 49, 55-56; thority, (1968), Mich 155 NW2d this Court question declared which is argu- ably moot be decided where the nature of the case is this such that Court is "unlikely again receive question the near future” and it affects considerable persons number of who "can- hope questions to have answer to the raised proceed unless we to a decision”.

The decision of the Appeals Court of in the instant govern case will or largely influence the disposition of other cases superseded until by a decision of this Court. persons charged Few with equipping a motor vehicle with a radio detector all, have the litigate question resources at let alone through the district court to the circuit court to the Court of Appeals, and then to this Court. A large number of persons are affected. Law agencies enforcement and district circuit final, courts need ruling. definitive A construction of the statute by this Court will serve to further alert the Legislature to the subject Mich Williams, J. Opinion Dissenting in Milford v conclude, the Court as did matter. We Hospital Authority, that "the People’s Community to warrant our importance of sufficient case is arguably indeed be moot although decision” to the defendant Gilbert. as Appeals of the Court of affirm the decision

We charges against it dismisses the Gilbert. insofar as C.J., Kavanagh, Fitzgerald, Coleman, JJ., Moody, Jr., Ryan, concurred with and Blair Levin, J. (dissenting). The defendant in this

Williams, presents impression case an issue of first this state. We are asked determine whether can under MCL prosecuted defendant equipping 28.776 for his motor vehicle MSA with pertinent part radar detector or A "Fuzzbuster”. the statute provides:

"Any person equip who shall a vehicle with receiving cies signals frequen- set that will receive sent on

assigned by the federal communications commis- police pur- sion of the United States of America for * * * poses, or use the same in this state without first * * * securing permit guilty shall be of a misde- meanor”. statute, challenged

Under we would hold that a radar detector falls within the definition a radio receiving set. Secondly, frequencies upon which the operates radar detector have been assigned Thus, purposes. the detection of such radio assigned waves on frequencies brings the device prohibition within the of the statute.

We also would hold that such enforcement is not pre-empted federal Communications Act of People v Gilbert Dissenting Opinion Williams, J. Furthermore, we would hold that the en-

forcement is a valid exercise of this state’s police power, and that there is no equal protection violation. Finally, despite the logical statute, clarity of the we would affirm the dis- defendant, charges against missal of because a layperson might reasonable not heretofore have understood that radar within was the proscription However, also agree act. we with Court of Appeals that of our "judicial gloss” because persons future could be prosecuted under the statute. would We affirm.

I. Facts 3, 1976, On December defendant motorist was stopped a Troy police officer. The officer ob- served that defendant’s car was equipped with a charged radar He detector. the defendant with equipping using a motor with vehicle a radio receiving capable receiving signals set 750.508; violation of MCL MSA 28.776.

The charges were dismissed by Troy Munici- pal Court, that, which although found a radar set, detector is a radio receiving not within proscription the statute. The Oakland Cir- Court, however, cuit reversed the court lower remanded case for trial. The Court of Appeals dismissed charges defendant, against but held that persons the future prosecuted could be under the statute. 88 Mich App 764; 279 NW2d 546 (1979); (1979) 321; App NW2d (On Rehearing). granted

We leave on June 1980. 408 Mich Mich Dissenting Opinion Williams, Statutory Interpretation

II. Receiving

A. Radio Set must be resolved which The first issue receiving set” a "radio a detector is radar whether 28.776.1 defendant MCL MSA under asserts phrase set” "radio way interpreted in such should devices do because such are excluded detectors would hold We communications.2 receive voice in the statute. is included radar detector provides: statutory language The relevant equip vehicle with a radio person shall "Any who signals”. (Emphasis receiving set that will receive added.) detector, a radar indicates that The trial record though signals fre- at a different it receives even 1 provides: 28.776 MCL MSA receiving equip "Any person a set a vehicle with radio who shall assigned by signals frequencies the federal will sent that receive States of America for of the United communications commission purposes, unless is police the same in this state such vehicle or use peace radio by bona fide amateur or owned a officer or a used operator holding conditional, general, extra class advanced or commission, by license the federal communications amateur without Srst issued securing permit so of to do from commissioner prescribe, Michigan upon application as he state such misdemeanor, imprisonment guilty punishable by in the of a shall jail year county of more than not than 1 or a fine not more imprisonment $500.00 or both such fine and the discretion added.) (Emphasis the court.” 2 People heavily v The York cases. defendant relies on two New Faude, Moore, (1978); 807; People 88 92 Misc 440 v 2d NYS2d cases, 434; not the court did Misc 2d find radar detectors to be of from the instant case because 388 NYS2d In both they capable radio not devices because are distinguished receiving easily are voice transmissions. These cases Law, New York Penal 140.40 § devices, governs specifically defines which the use of certain radio receiving "any capable voice radio device as transmission on device wireless frequency any allocated for use”. People v Gilbert Dissenting Opinion Williams, signals the same radio waves or

quency, receives insignificant conventional radio. The as does a radar detec- the two is that difference between signals into transform the received tor does output. type the same receiving radar and radio commonality that the term radar from the fact apparent sets Detection And for "RAdio acronym is a convenient Tomanelli, 365, 369; Ranging”. State v 153 Conn (1966). Furthermore, Webster’s Third 216 A2d 625 (1966) Unabridged Dictionary, New International Edition, defined "radar” as "a radio p has locating means of system object by device or when com- emitting signals”. Consequently, radio "radar”, "radio” and it is imme- paring the terms designation radio is a broad diately apparent signals to devices that receive wireless given simply type radio waves and that one signals. that also receives such There- radio device fore, 750.508; MSA 28.776 nar- construing MCL must, the term as we we conclude rowly, encompasses the term radar set plain meaning detector within the of the statute. Hall, 175, 189-190; In (1974), NW2d we stated that "the fact these of statutes are con- types [penal] narrowly strued does not require rejection of that sense the words which best harmonizes with the overall context of the statutes”. Assigned

B. for Police Purposes whether, record, The issue is the radar on the question use. frequency assigned police was for operative The reads: language the statute "Any person equip with a radio who shall a vehicle * * * frequencies assigned by the fed- set on Mich Dissenting Opinion Williams, * * * police pur- communications for eral commission added.) poses”. (Emphasis 10,- The record indicates frequency megahertz assigned police pur- has been for poses. The specifically record shows that the Michi- gan department granted State Police was a license operate its radar frequency device 10,525 MHz. assignment

Defendant contends must police be for use. Plaintiff’s exclusively witness that, except low-power testified for alarm burglar systems, assigned this for frequency exclusively police use. There was no contrary testimony. How- ever, there is no statutory requirement of exclusiv- in the ity frequencies assigned purposes. plain unambiguous language of the stat- requires ute only frequencies the relevant assigned by the Federal Communications Commis- (FCC) police purposes. sion we Accordingly, would hold that the frequency utilized by radar has been assigned by the FCC "for police purposes”. Pre-emption

III. Federal Act Communications The defendant also asserts that the Communica- 1934,3 tions Act of which provides compre- for a scheme, hensive regulatory Congressio- reflects a nal intent to pre-empt reception. field of radio Therefore, argues he that MCL MSA 28.776 must yield to the Supremacy Clause of the United Const, VI, States Constitution. US art cl 2. In advocating claim, this the defendant looks to the legislative Act, history of the Communications pervasiveness of its scheme and to regulatory et seq. 47 USC 151 People v Gilbert 219 Dissenting by Opinion Williams, J. being as the exclusive limitation

§6054 plaintiff, however, reception. The asserts that Michigan statute and the policy reasons for its adoption do unsettle the federal scheme and it represents that of valid exercise this state’s power. The powers yield exercise state must to an act Congress with which it But conflicts. the United Court, Supreme States in assessing the proper schemes, interface between and state federal has the challenged indicated that state action will be pre-empted only when it an becomes obstacle to accomplishment of a national objective. In Nelson, Pennsylvania 497, 350 502-506; US 76 S 477; (1956), Ct 100 L Ed 640 that Court fashioned a three-pronged analysis to lie used establishing (1) parameters: the pre-emption pervasiveness (2) scheme; federal occupation federal of a field dictated need national uniformity; (3) and danger conflict between state laws the administration of the federal program.

However, applied the Court has defini- narrow Rice v Santa Fe tion the term In "conflict”. Corp, Elevator 331 230; 1146; US 67 S Ct L (1947), Ed 1447 the Court stated that when a state police power exercise its is challenged under the Clause, Supremacy "we start with the assumption that powers historic of the States were not to superseded be by the Federal Act unless that was the clear and manifest purpose Congress”. agree

We with the Court of Appeals federal of allocating scheme frequencies for radio transmission may pervasive legislative as the history indicates. The need for how- uniformity, 47 USC 605. Mich 191 Dissenting Opinion Williams, ever, the federal interest strong so is not state interest. important over should dominate no Court mandated Supreme States United v New Mexico Board Head principle less 424, 431; S Ct Optometry, 374 US Examiners case, In that 1759; L Ed 2d 983 scheme regulatory the federal Court held so Act was not the Communications created strong so that uniformity or the need for pervasive regulating foreclosed from the states were messages the airwaves. advertising over content of regulating police power The exercise of state’s strong an interest. Cases equally is safety highway pre radar held not regulation of was where state Act include: Smith the Communications empted by Columbia, (1981); Bryant v Dist of 436 A2d 53 Slane, (WD v Radio Inc Supp 507 F 1325 Supply, 1982) (CA (state aff'd 669 F2d Va, 1981), 921 v State Anon pre-empted); regulation of (1980-8), Supp 551; 867 ymous Conn A2d Commonwealth, 38; 219 Va Crenshaw (1980); SE2d 243 to adopted

The statute was facilitate Michigan to protect effective law enforcement and activity being people who police frequencies from used laws. "Radar detectors wish to circumvent have no than illicit effort to utility aiding other an manner, irresponsible evading society’s drive in an Smith, supra, punishment 59. such conduct.” prohibition connection between the of radar highway safety and law enforcement detectors obvious, quite recognition impor- and the supports tant rationality state interest also the federal scheme. MCL there is no direct conflict between

Finally, 750.508; MSA 28.776 and the Act. Communications People v Gilbert Dissenting Opinion by Williams, 90.103(a),

Under 47 CFR has the FCC established requirements eligibility for authorization employ radiolocation devices. This fact reinforces the notion of radar proscription detectors complements than with rather conflicts the federal gets scheme. The defendant no relief by arguing act is an exclusive enforcement § device which not be legisla- extended state tion. provision This exists to deal with the rights recipients of senders and of communications. Sec- tion 605 was not intended to legislatively regulate Accord, detection transmissions. Bryant Supply, supra, Radio

Therefore, persuade defendant has failed us that Congress clearly has manifested an intent pre-empt regulation activity state of radar following detectors. By mandate the United Supreme States Court presumption against when is a pre-emption strong there state interest, we prohibition would hold that against equipping using radar detectors under MCL MSA 28.776 pre-empted is not Act Communications of 1934. Equal

IV. Protection argues Defendant that MCL MSA 28.776 him equal protection denies under Michigan 1963, and federal constitutions. Const 1, 2; Const, art US Am XIV. § In Detroit, Alexander v 30, 35-36; 392 Mich 219 (1974), Court, NW2d 41 this recognizing after various tests employed by the United States Su- preme equal Court protection found analysis, two tests to guide Court in its scrutiny challenged legislation: Mich 191 Dissenting Opinion Williams, "(1) on natu- based enactment’s classifications Are the they do bear and distinguishing characteristics ral legislation?” object of the relationship to the

reasonable "(2) class included persons of the same Are all privileges immunities extended or alike or are affected denied to class while arbitrary or unreasonable to an omitted.) (Citations of like kind?” others v Mc- & Trust Co in Manistee Bank

Moreover, Gowan, 394 Mich (1975), 668; 232 NW2d equal approach two-tiered we discussed If an proof. shifting burden and its protection suspect, a classification fundamental interest test, scrutiny apply a strict reviewing court will showing compel- justify by requiring the state ling state interest. reviewed un- classifications are legislative

Other bur- test. The equal protection the traditional der legisla- party challenging den is then on justifica- it reasonable is without tion show tion: statutory discrimination "It has been said '[a] reasonably may any if state of facts will not be set aside justify it’. A classification will stand conceived to 'essentially arbitrary’. Few to be unless is shown wanting 'rationality’ as have been found so statutes to fail to arbitrary’ Manis- satisfy 'essentially test.” omitted). (footnotes Bank, supra, tee Reed,

Defendant cites Reed v 71; 404 US 92 S Ct (1971), 251; 30 L 2d 225 which involved Ed to men over giving preference Idaho estates, administration of decedents’ women bar, it becomes proper for the test.5 In the case at requested by The test the defendant is the substantial-relation-to- the-object Manistee Bank & test which is a middle-tier review. In 668-671, McGowan, supra, this Court indicated Trust Co v applied chal where a that lenged the substantial relation test should be general exception and the to the statute carves out a discrete v Gilbert Dissenting Opinion Williams, J.

immediately apparent challenged legisla- that the tion does involve not such class or even a funda- Therefore, mental interest. the burden is the defendant to show that the classification arbi- trary relationship and does not bear a rational legislation. object of the

The defendant seeks sustain his burden Legislature saying reasonably made the exemption peace FCC-licensed ama- officers and operators teur radio, in the context of voice purpose because the statute was to avoid tipping burglars approach police. off to the He apply insists that this rationale does Appeals interpreta- case of radar and Court of purpose statute, viz., tion as to promotion highway safety. We are not im- pressed argument, by defendant’s because the es- statutory purpose sential under his and the Court Appeals interpretation prohibition is that the police frequencies use prevent aof radio device on is to being impeded from in the carrying out of if their duties. So the classification interpretation, is reasonable under the defendant’s Appeals it is reasonable under the Court of inter- pretation. In short, the defendant has failed his arbitrary. burden to show the classification We find that the statute was enacted to facili- activity by restricting tate law enforcement use of radio cause individuals sets in motor vehicles be-

using such sets could detrimen- tally police frequencies. monitor Furthermore, exemptions rationally statutory are related to the objective because the found that such exception longer experimental. is no application It has no in the scrutiny, instant case. Roberts, For excellent review of middle-tier see Registration, Congressional Policy Gender-Based Draff Equal Review, Proposal Protection: A for Deferential Middle-Tier Wayne L Rev 35 Mich by Dissenting Opinion Williams, their using when are more accountable individuals sets.

V. Process Due those re- to discussed with For reasons similar hold there protection, to we would that spect equal the Michigan under process no denial of due 1963, 1, 17. As stated art we Constitution. Const § Attorney General, in Shavers v Mich 612- (1978): 614; 267 NW2d legislation whether enacted "The to determine test comports police process pursuant is whether the a power with due legislation a reasonable relation to bears * * * legislative objective. permissible statute enacted "The to determine whether a test pro- police power comports equal with pursuant to the * * * is, essentially tection the same. tests, these it is axiomatic that application "In the of pre- challenged legislative judgment is accorded a the sumption * * * constitutionality. 'pre- What this of means, sumption constitutionality’ chal- of terms of in the lenged police power legislation, is that face of process equal challenge, protection due legislative 'where question’, a court’s judgment is drawn any inquiry 'must be restricted to the issue whether reasonably of or which could state facts either known (Footnotes support for it’.” and be assumed affords omitted.) citations indicated, hold As we have we would already statutory objective proscribing of equipping or use of radar detectors vehicles with health, promotion public reasonably related welfare, safety, legitimate use of the state police power.

It is true vice unquestionably ultimate sought proscribed monitoring is the to be activity private prevention motorists. The Gilbert Dissenting Opinion Williams, J. is the monitoring apparent statutory objec- such conclude, however, tive. It is difficult that pro- vehicle scribing equipping with a radar tuned to a is not a frequency detector means achieving lawful rationally objective. therefore, question, Our is whether there is such chosen separation Legis- between means legitimate lature and its objective as to render invalid because of process. a lack of due Although there be a logical and semantic equipping difference between a vehicle to monitor and the actual monitoring police frequencies, is difficult for us to conclude that there is no reasonable nexus between the means chosen and achieved, public objective the to be safety particu- "challenged since the larly legislative judgment accorded a presumption constitutionality”. Shavers, supra, has,

The without successful constitu- objections, legislation tional enacted other with a example, similar nexus. For the mere carrying concealed dangerous weapon is unlawful because Legislature, wisdom, the in its believed that such a provision would public interest.6 short,

In Michigan exercised, Legislature has without disapproval, broad discretion in creating reasonable means which are in protecting needed public to achieve legitimate police power object ive.7 6 MCL MSA 28.424 states that: person dirk, stiletto, carry dagger, danger- "A who shall or other * * * * * * weapon person ous concealed on or about his shall be

guilty felony”. of a statute, 28.424(2), felony-firearm 750.227b; Under the MCL MSA example, possession during for felony the mere of a firearm course punishable. purpose The of the statute is to deter the use of handguns during felony. the course of a The bare fact that a felon has disposal a firearm at his should he risk to need creates a sufficient power punish possession. others it is within the state’s its See v Elowe, 744; App 85 Mich 272 NW2d 596 Mich Opinion Dissenting Williams, IV, we find that in section have stated

As we law enforcement to facilitate was enacted Further- frequencies. activity by protecting more, rationally are related the proscriptions In public safety. protect statutory objective under short, process no lack of due we find Michigan Constitution. Dempster

VI. Rule Nevertheless, agree with the defendant we ambigu- of such practical possibility there was might intelligence person ordinary that a ity use of radar put on notice that not have been under the statute. This detectors is forbidden People Dempster, v however, Court, Bouie (1976), 700, 715-716; quoting NW2d Columbia, 347, 353, 355; 84 S Ct 378 US City (1964), 1697; "clarify- 12 L 2d 894 noted that a Ed problem eliminate such a gloss” could ing future: interpretations statutory provisions "It true that is. gloss to clarifying a court add a otherwise words, thereby provide constructive notice unclear to future defendants, but " enlargement judicial 'an unforeseeable of a criminal statute, applied retroactively, operates precisely like an '* * * *’ * * post ex deprive sense of fair constitutes a crime.’ facto law the effect is to process of due of law in the

[the defendant] contemplated warning that his conduct ” Therefore, agree Appeals8 we with the Court of charges lodged against particu- both that this lar that all defendant should be dismissed and persons equipping shall be on notice that one’s 764, 774; App 279 NW2d 546 People v Gilbert Dissenting Opinion by Williams, vehicle awith radar detector unlawful Michi- gan.

VII. Conclusion It proper was for the Court of Appeals to have charges against dismissed the the defendant. We hold, however, would persons the future can be prosecuted under MCL MSA 28.776 because radar detector is a radio receiv- ing set which signals receives on frequencies have been assigned purposes. addition,

In we find no conflict between the and the Communications Act of 1934. By statute, enforcing the the state is exercising its valid powers which complement regula- tory Furthermore, scheme of the act. the chal- lenged exemptions of the statute do not run afoul Equal Protection Clauses the Michigan and federal constitutions. Accordingly, we would affirm the decision of the Court of Appeals.

Case Details

Case Name: People v. Gilbert

Court Name: Michigan Supreme Court

Date Published: Sep 28, 1982

Citation: 324 N.W.2d 834

Docket Number: 64147, (Calendar No. 6)

Court Abbreviation: Mich.