People v. Drielick, s. 2

• Citation: 400 Mich. 559,255 N.W.2d 619
• Decision Date: 18 July 1977
• Docket Number: Nos. 2,3,s. 2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Daniel DRIELICK, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Lawrence PLAMONDON and Craig Blazier, Defendants-Appellees. 400 Mich. 559, 255 N.W.2d 619
• Court: Supreme Court of Michigan

Page 619

255 N.W.2d 619

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Daniel DRIELICK, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Lawrence PLAMONDON and Craig Blazier, Defendants-Appellees.

Nos. 2, 3.

400 Mich. 559, 255 N.W.2d 619

Supreme Court of Michigan.

July 18, 1977.

E. Brady Denton, Saginaw County Prosecutor by Peter C. Jensen, Asst. Pros. Atty., Saginaw, for plaintiff-appellee.

Brisbois, Sturtz & Rousseau by James A. Brisbois, Saginaw, for defendant-appellant.

State Appellate Defender Office by John B. Phelps, Detroit, for defendants-appellees.

Prosecuting Atty's. Ass'n of Mich., Lansing, by Ass'n President, Donald A. Burge, Pros. Atty., Stephen M. Wheeler, Chief of Appellate Div., Kalamazoo County Pros. Atty., Kalamazoo, filed brief amicus curiae in support of plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., John A. Wilson, Max E. Simon, Asst. Attys. Gen., Lansing, for plaintiff-appellant.

LEVIN, Justice.

The issue is whether warrantless electronic eavesdropping of a telephone conversation, with the consent of one of the participants in the conversation, violates the Fourth Amendment prohibition against unreasonable searches and seizures.

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 murder ¹ 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 accusation ² 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 N.W.2d 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.

Beavers was given prospective effect only. ⁵ The participant monitoring in these cases preceded Beavers. The question whether the Michigan prohibition applies in the instant cases, which were pending on appeal with the issue preserved, ⁶ was decided by Beavers. The Court is not disposed to reconsider that recent decision.

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 U.S. 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) the decision in White was based on pre-Katz ⁷ law because Desist ⁸ had held that Katz only applied prospectively and the monitoring in White preceded the decision in Katz ; and (iii) White involved monitoring of a face-to-face conversation while the monitoring in these cases was of telephone conversations.

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 the meaning of the Fourth Amendment." Katz v. United States, supra, 389 U.S. page 353, 88 S.Ct. page 512. The Fourth Amendment, said the Court, "protects people, not places." Katz v. United States, supra, 351, 88 S.Ct. 507.

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." United States v. White, supra, 401 U.S. pages 751, 752, 91 S.Ct. page 1126. 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 participants yet unknown to the other." People v. Beavers, supra, 393 Mich. 563, 565, 227 N.W.2d 514, 515. ⁹

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

The United States Courts of Appeal for ten of the eleven circuits have followed Mr. Justice White's lead opinion in White in holding that the Fourth Amendment does not require a warrant for electronic participant monitoring. ¹¹ No distinction has been made between electronic monitoring of face-to-face conversations and of telephonic communications. ¹²

Since White was decided, Justices Black, Douglas and Harlan have left the Court, and Justices Powell, Rehnquist and Stevens have taken their places on the Court. All four justices who signed Mr. Justice White's opinion remain on the Court.

On at least 14 occasions the United States Supreme Court has declined to grant certiorari to review decisions of United States Courts of Appeal 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.

The Court of Appeals is reversed in Plamondon and Blazier, and affirmed in Drielick. The convictions are affirmed.

KAVANAGH, C. J., and WILLIAMS, FITZGERALD and MOODY, JJ., concur.

RYAN, Justice (concurrence).

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 N.W.2d 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 U.S. 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., concurs.

1 M.C.L.A. § 750.316; M.S.A. § 28.548.

2 M.C.L.A. § 750.213; M.S.A. § 28.410.

3 Two police officers monitored, without authorization of a warrant, a conversation between the defendant and a police informant carrying a battery-operated radio transmitter under his shirt while the informant bought heroin from the defendant in defendant's home. The conversations were not recorded. The eavesdropping officers were permitted over objection to testify...