People v. Beavers

• Decision Date: 01 May 1974
• Docket Number: No. 16,16
• Citation: 227 N.W.2d 511,393 Mich. 554
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward BEAVERS, Defendant-Appellant. ,
• Court: Michigan Supreme Court

Page 511

227 N.W.2d 511

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward BEAVERS, Defendant-Appellant.

No. 16, May Term, 1974.

393 Mich. 554, 227 N.W.2d 511

Supreme Court of Michigan.

April 7, 1975.

Peter E. Deegan, St. Clair County Pros. Atty., by Peter R. George, Chief Appellate Atty., Michael J. Callahan, Research Asst., Port Huron, for plaintiff-appellee.

Joseph B. Szeremet, Asst. Defender, Bruce Krueger, Research Asst., Detroit, for defendant-appellant.

Before the Entire Bench.

FITZGERALD, Justice.

Defendant was convicted by a jury of the sale of heroin ¹ and received a sentence of from 20 to 40 years imprisonment. The Court of Appeals affirmed the conviction and we granted leave to appeal.

Ronny Barker, a police informant, was cooperating with the Port Huron Police Department in their efforts to control the trafficking of narcotics. On December 6, 1970, he was contacted by Sgt. Joseph Eastwood and asked to participate in a controlled purchase of narcotics from the defendant. Barker and Officer Eastwood then picked up Lt. Herman Dusellier and proceeded to a parking lot where Barker was thoroughly searched by the two officers. A battery-operated radio transmitter was then installed underneath his shirt. This apparatus was designed to transmit sounds from Barker's immediate vicinity to a receiver, or 'walkie-talkie', which was located in Officer Eastwood's unmarked car. The transmitter attached to Barker had no receiving capabilities and could only transmit sounds originating from the vicinity occupied by Barker. Informant Barker was also provided with a supply of money with which to make the purchase.

Barker testified that he and the two officers proceeded in Sgt. Eastwood's personal vehicle to 23rd and Cleveland in Port Huron, arriving at approximately 5:55 p.m. He walked a short distance to defendant's apartment building and knocked on the rear door. Defendant's son answered and Barker asked to see 'BeeBee', the name with which he identified the defendant. When the defendant approached, Barker inquired 'if he had anything'. Defendant responded by saying he had some 'Jones', a term used to describe heroin.

When asked by defendant how much he wanted to buy, Barker indicated 'a dime bag', or ten dollars worth. Defendant stated 'okay' and produced two aluminum foil packets containing heroin, handing them to Barker in exchange for ten dollars. Barker returned to the car and handed the two foil packets over to Sgt. Eastwood.

Officer Dusellier testified that he accompanied Barker and Sgt. Eastwood to the vicinity of defendant's apartment. He observed Barker approach defendant's apartment and, by listening to the 'walkie-talkie', was able to identify Barker's voice along with two unidentifiable others. At no time did Lt. Dusellier see the defendant.

Officer Eastwood testified that his preliminary investigations revealed that defendant was involved in drug trafficking. He observed defendant's light blue 1964 Cadillac parked in front of his apartment approximately one hour before the purchase and prior to his rendezvous with Barker and Lt. Dusellier. Sgt. Eastwood stated, as did Barker, that he and Officer Dusellier remained in his unmarked car monitoring the conversation between Barker and defendant. He testified that he was familiar with defendant's voice and was able to identify it as such. At no time did Officer Eastwood see the defendant.

The testimony of Barker and the two investigating officers was contradicted by several defense witnesses. Lettie Myers, defendant's mother-in-law, testified that she was in the apartment of defendant the entire day and most of the evening on December 6, 1970. No one came to the door during that period. She observed defendant, his wife and son, and a man named John leave for Detroit in defendant's car about 9 a.m. and didn't see them again until their return at approximately 11:30 p.m. Adeline Beavers, defendant's wife, testified that she accompanied her husband, son, and John Salhudinn as they left their apartment at approximately 9 a.m. on the morning of December 6, 1970 with Detroit as their destination. While enroute, their car began to emit heavy smoke. Defendant left his car to be repaired at a service station in the custody of a man by the name of 'Nate'. She stated she had never before visited the station. She further testified that the four of them proceeded by taxi to the home of defendant's mother. Defendant and John journeyed back to the service station soon after their arrival at his mother's home and remained there until approximately 7 o'clock that evening. Defendant and John returned to his mother's home to visit and they departed later, arriving back at defendant's apartment at approximately 12 midnight.

John Salhudinn testified that he travelled with defendant and his family to Detroit on December 6, 1970 for the purpose of visiting a Muslim temple. However, he stated, as did Adeline Beavers, that he returned to Nate's service station with defendant at approximately 11 a.m. and waited with defendant throughout the entire afternoon until the car was repaired. At approximately 7 p.m., he and the defendant returned to defendant's mother's house.

Nathaniel ('Nate') Thomson, the operator of the service station, testified that defendant's car was not functioning properly as they entered his station on the morning of December 6, 1970. He did not recall defendant leaving the station, but did state that defendant and another person remained there throughout the afternoon until the car was repaired, which was approximately 7 p.m. Witness Thomson further testified that he knew defendant for approximately 10 years and, contrary to the testimony of defendant's wife, stated that he had seen Adeline Beavers quite a few times at the service station. The testimony of Adeline Beavers was further contradicted by Thomson's statement that the car contained two young girls when first entering the station.

Robert Smith, defendant's brother-in-law who lived in the flat below defendant's mother, testified that he first saw defendant and his wife at 7:30 on the evening of December 6, 1970 in his own apartment. He recalled defendant and his family along with another man leaving at approximately 9:45 that evening.

Defendant was arrested six days after the alleged transaction. Following a four-day trial, the jury found defendant guilty of the sale of heroin.

It is argued that defendant was denied the right to freedom from an unreasonable search and seizure when a police officer testified, over objection, to a conversation between defendant and a police informant equipped with concealed transmitter which was relayed to the officer without defendant's knowledge and without authorization of a search warrant. Defendant contends that the Supreme Court decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), expanded the right to privacy to include freedom from the uninvited ear through instantaneous monitoring of a conversation thought to be privileged. The people argue that United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), is controlling. There, the Court found no distinction between the possibility that a law enforcement agent Without electronic equipment might subsequently reveal the contents of a conversation to others and the possibility that the same conversation is simultaneously being transmitted to a third party. In neither instance did the Court find an invasion of defendant's constitutionally justifiable expectation of privacy. Further elaboration of these opposing positions convinces us that under the facts of this case a search warrant should have been issued prior to instituting this specific participant monitoring procedure. ²

We are acutely sensitive to the fundamental interests involved when prevailing law enforcement techniques are balanced against protections guaranteed citizens under the state and Federal constitutions. With the advent of increasingly sophisticated electronic surveillance equipment, the evolving body of law which seeks to reconcile the need for effective police investigative practices in combatting criminal activity with the ominous spectre of the Orwellian Big Brother is fraught with complexities. Extensive commentary must, however, yield to a specific discussion of the issue before us. We deal here with the constitutional validity of a warrantless electronic surveillance conducted by local police officers assisted by an informant equipped with an electronic transmitter which permitted off-premises monitoring of defendant's incriminating statements uttered in his own home. No permanent recording of the conversation exists. Defendant objects to the admissibility of a police officer's corroborating testimony regarding the contents of the monitored conversation.

The Supreme Court's plurality opinion in United States v. White, Supra, involved the identical issue and set forth an exhaustive analysis of participant monitoring. The Court reinstated defendant's conviction by ruling admissible the testimony of government agents regarding an electronically transmitted account of incriminating statements made by defendant during a conversation with a police informant. Four justices disagreed. Justice White, joined by three others, perceives participant monitoring as a variant of the privilege of a party to repeat a conversation. He believes the use of electronic equipment does not create a constitutional barrier which would prevent an agent from disclosing to a third party the contents of an exchange between himself and another. Conversely, Justice Harlan considers paramount the privilege of one participating in a conversation to control the extent of his communications. ³ His position is that one's expectation of privacy should not be subjected to the possibility that communications directed to particular persons are simultaneously being intercepted by a third pa...