People v. Collins, Docket No. 86690

• Decision Date: 22 August 1991
• Docket Number: Docket No. 86690
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. W.C. COLLINS, Defendant-Appellee. 438 Mich. 8, 475 N.W.2d 684
• Court: Michigan Supreme Court

Page 684

475 N.W.2d 684

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. W.C. COLLINS, Defendant-Appellee.

Docket No. 86690.

438 Mich. 8, 475 N.W.2d 684

Supreme Court of Michigan.

Argued Oct. 4, 1990.

Decided Aug. 22, 1991.

[438 MICH 10] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Timothy A. Baughman, Chief, Research, Training and Appeals, Dennis M. Wiley, Pros. Atty., David P. LaForge and Daniel M. Levy, Asst. Pros. Attys., and James E. Boardman, Legal Research Asst., St. Joseph, for the People.

State Appellate Defender, by Derrick A. Carter, Detroit, for defendant.

John D. O'Hair, President, and Timothy A. Baughman, Chief, Research, Training and Appeals, Wayne County Prosecutor's Office, Detroit, for amicus curiae the Pros. Attys. Ass'n of Michigan.

OPINION

[438 MICH 11] ROBERT P. GRIFFIN, Justice.

We are required to decide whether recorded evidence of conversations between this defendant and a police informant, electronically monitored by police with the informant's consent, but without a valid search warrant, must be suppressed in defendant's subsequent felony trial. In People v. Beavers, 393 Mich. 554, 227 N.W.2d 511 (1975), this Court ruled that the warrantless electronic monitoring by the police of a conversation, even though consented to by one of the conversants, violates art. 1, Sec. 11 of the Michigan Constitution, requiring the exclusion at trial of evidence

thus obtained. Our examination of developments in the search and seizure jurisprudence since Beavers and our review of the history of the adoption of Const. 1963, art. 1, Sec. 11 prompt us to reconsider the Beavers decision. Finding it now well settled that such participant monitoring ¹ does not offend the Fourth Amendment of the United States Constitution, ² and because we are not persuaded that compelling reason exists to impose a different, more restrictive construction upon the parallel provision of our Michigan Constitution, we overrule Beavers, and reverse the decision of the Court of Appeals

I

After a preliminary examination, defendant W.C. Collins was bound over on a charge of obstruction of justice. M.C.L. Sec. 750.505; M.S.A. Sec. 28.773. The charge arose out of the following facts.

Earl Jordan, an acquaintance of defendant, approached[438 MICH 12] a state police officer and reported that defendant had offered him $500 to present false testimony to a local district court judge presiding over an unrelated criminal proceeding involving defendant's wife. ³ Upon the basis of the information furnished by Jordan, a state police officer obtained a warrant purporting to authorize the participant monitoring and recording of conversations between Jordan and defendant. ⁴ Thereafter, Jordan placed a telephone call to defendant from the state police office, and the conversation, which included incriminating statements by defendant, was monitored and recorded by the police with Jordan's consent. ⁵ Jordan also agreed to wear a concealed radio transmitter later that day when he was to meet and talk with defendant in the latter's automobile. During the course of this conversation, defendant made more incriminating statements which were electronically overheard and recorded by the police. ⁶

[438 MICH 13] In circuit court, defendant moved to suppress the recorded evidence, asserting invalidity of the warrant. The judge ordered suppression on the authority of Beavers after determining that the affidavit provided to support the warrant did not conform to statutory requirements as determined by People v. Sherbine, 421 Mich. 502, 364 N.W.2d 658 (1984). ⁷ On appeal,

the Court of Appeals ordered briefing of the issue "whether a search warrant was required to listen to conversations where one party to the conversations consented to the recording." However, finding the warrant defective and the case controlled by Beavers, the Court of Appeals affirmed the circuit court's decision. ⁸ We then granted leave to appeal. 434 Mich. 900 (1990)

In this appeal the people do not challenge the ruling below that the warrant was invalid. However, we are urged to reconsider this Court's holding in Beavers. ⁹

II

We begin our analysis with an overview of the [438 MICH 14] law pertaining to electronic surveillance as it had developed prior to April 7, 1975, the date when Beavers was decided by this Court over the vigorous dissent of Chief Justice Coleman.

A

Before the advent of radio, telegraph, and the telephone, eavesdropping was treated as a common-law nuisance. ¹⁰ As Blackstone explained over two hundred years ago, the term then referred to the practice of listening "under walls or windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales...." ¹¹

It is clear that eavesdropping was not the concern which motivated those who drafted and adopted the Fourth Amendment. Rather, they were reacting to the use of force by British officers under the guise of general warrants and writs of assistance to carry on unlimited searches of private homes. ¹² It is not surprising then that the words employed by the drafters of the Fourth Amendment focus upon things tangible--the right of people to be secure "in their persons, houses, papers, and effects" against unreasonable searches and seizures.

In the first case involving electronic eavesdropping to come before the United States Supreme Court, Olmstead v. United States, 277 U.S. 438, 466, 48 S.Ct. 564, 568, 72 L.Ed. 944 (1928), federal agents had obtained evidence against an accused bootlegger by tapping the telephone wire outside his home without[438 MICH 15] a warrant and without the consent of either party to the intercepted conversation. Finding that there had been no physical trespass into a constitutionally protected area, the Court concluded that Fourth Amendment protection against search and seizure was not implicated. Declining to attribute any "enlarged or unusual meaning" to the words employed, the Court reasoned that the Fourth Amendment had been designed to protect citizens from searches for "material things--the person, the house, his papers or his effects." ¹³ However, the Olmstead Court, speaking through Chief Justice Taft, expressly recognized that Congress, if it wished to do so, could regulate the use of wiretap evidence in criminal trials. 277 U.S. at 464, 48 S.Ct. at 568.

Later, the distinction between nonconsensual electronic surveillance (where none of the parties to a monitored conversation has consented), as in Olmstead, and participant monitoring (where one of the conversants is a consenting participant) was brought into sharp focus in On Lee v. United

States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952), and in Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963)

In On Lee, a police officer listened outside with a radio receiver while a conversation took place within the defendant's laundry between the defendant and a former employee who, in cooperation with the police, wore a concealed wireless transmitter. Finding no trespass, because the former employee had gained entrance to the laundry with the defendant's consent, the Court ruled that the Fourth Amendment was not implicated. The Court took pains, however, to distinguish the participant monitoring in this case from the nonconsensual [438 MICH 16] wiretapping in Olmstead. Foreshadowing, perhaps, its later shift to an "expectation of privacy" standard, the Court reasoned that the defendant

"was talking confidentially and indiscreetly with one he trusted, and he was overheard. This was due to aid from a transmitter and receiver, to be sure, but with the same effect on his privacy as if [the police officer with the radio receiver] had been eavesdropping outside an open window." 343 U.S. at 753-754, 72 S.Ct. at 972. (Emphasis added.)

In Lopez, the defendant attempted to bribe an agent of the Internal Revenue Service. Later, the agent obtained incriminating evidence which was offered at trial by using a concealed device to tape-record a conversation with the defendant in the latter's office. Finding no trespass because the agent had been invited into the defendant's office, the Court ruled that the warrantless recording did not offend the Fourth Amendment. The Court stressed that the agent could have testified about the conversation even if it had not been taped, and stated:

"Stripped to its essentials, [the defendant's] argument amounts to saying that he has a constitutional right to rely on possible flaws in the agent's memory, or to challenge the agent's credibility without being beset by corroborating evidence that is not susceptible of impeachment. For no other argument can justify excluding an accurate version of a conversation that the agent could testify to from memory. We think the risk that [the defendant] took in offering a bribe to [the agent] fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording." 373 U.S. at 439, 83 S.Ct. at 1388.

Although Hoffa v. United States, 385 U.S. 293, 87 [438 MICH 17] S.Ct. 408, 17 L.Ed.2d 374 (1966), did not involve participant monitoring, as will be seen, the reasoning employed would prove to be crucial in the Court's subsequent analysis of the participant monitoring issue. In this case, a close associate of defendant Hoffa decided to become a government informant. While posing as Hoffa's friend, the informant was invited into Hoffa's hotel suite and became privy to conversations involving plans to bribe jurors in an upcoming trial. Rejecting a Fourth Amendment challenge to the informant's subsequent testimony, the Court said,

"Neither this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." 385 U.S. at 302, 87 S.Ct. at 413.

As Justice Boyle later observed in ...