People v. Fisher

• Decision Date: 07 April 1988
• Docket Number: Docket No. 91816
• Citation: 166 Mich.App. 699,420 N.W.2d 858
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard E. FISHER, Defendant-Appellant. 166 Mich.App. 699, 420 N.W.2d 858
• Court: Court of Appeal of Michigan — District of US

Page 858

420 N.W.2d 858

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard E. FISHER, Defendant-Appellant.

Docket No. 91816.

166 Mich.App. 699, 420 N.W.2d 858

Court of Appeals of Michigan.

Submitted Oct. 20, 1987.

Decided March 7, 1988.

Released for Publication April 7, 1988.

[166 MICHAPP 701] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., G. Michael Hocking, Pros. Atty., and K. Davison Hunter, Asst. Pros. Atty., for the People.

Milton J. Marovich, P.C. by Milton J. Marovich, Kalamazoo, for defendant-appellant on appeal.

[166 MICHAPP 702] Before KELLY, P.J., and DOCTOROFF and CORDEN, ^* JJ.

DOCTOROFF, Judge.

Defendant was convicted by a jury of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, for the knifing death of William Tappert that occurred at the home of defendant's estranged wife, Mary Fisher. He was sentenced to from forty to sixty years' imprisonment. He appeals as of right, raising six issues. We affirm defendant's conviction, but remand for resentencing.

I

Defendant's first claim of error is that the trial court erred by denying his motion to suppress certain statements that he made during a prearrest telephone conversation on the basis that they were the product of an illegal search and seizure in violation of Const. 1963, art. 1, Sec. 11.

At the suppression hearing, Detective Robert Kellogg testified that at approximately 11:00 p.m. on the evening of the knifing, he arrived at Mary Fisher's residence. Approximately five minutes later, the telephone rang and Mary Fisher told the caller that she could not talk. When the telephone rang a second time, Fisher indicated to Detective Kellogg that defendant was the caller. Detective Kellogg placed his ear to the receiver and listened as defendant spoke with Fisher. After approximately two minutes, Detective Kellogg advised Fisher to tell defendant that he was present and wanted to speak to him, whereupon defendant spoke with Detective Kellogg for approximately two to three minutes. Defendant inquired about William Tappert. Defendant was advised that Tappert was O.K. and to turn himself in.

[166 MICHAPP 703] Defendant asked to speak to Fisher again. Kellogg listened to the entire conversation, and the telephone changed hands between Fisher and Kellogg approximately four times during the phone call, which lasted approximately fifteen minutes.

Phillip Harris testified that on the night of the knifing he, his brother, Eric, and defendant walked across the street from his apartment to an unenclosed pole-type pay phone in a gas station. Eric placed the call to Fisher for defendant. As defendant conversed, Phillip stood about two feet away and overheard what defendant was saying. Eric stood approximately one foot away from defendant.

Detective Kellogg was recalled and testified to the statements defendant made during the conversation.

After reviewing the applicable case law, the trial court denied defendant's motion to suppress on the ground that defendant had no reasonable expectation of privacy in the telephone call because of the presence of the Harris brothers within hearing distance of him and because defendant had been advised that Detective Kellogg was present with Mary Fisher and, in fact, had spoken with him on at least one occasion. The trial court also ruled in the alternative that exigent circumstances were present.

A trial court's ruling on a motion to suppress evidence will stand undisturbed on appeal unless clearly erroneous. People v. Kalchik, 160 Mich.App. 40, 47, 407 N.W.2d 627 (1987). If upon review of the record the appellate court does not possess a definite and firm conviction that the trial court made a mistake, it must affirm. People v. Burrell, 417 Mich. 439, 449, 339 N.W.2d 403 (1983).

The Fourth Amendment of the United States Constitution provides that searches conducted [166 MICHAPP 704] without a warrant, subject to certain well-recognized exceptions, are per se unreasonable. People v. Nash, 418 Mich. 196, 204, 341 N.W.2d 439 (1983). However, not all governmental intrusions involve searches within the meaning of the Fourth Amendment. Id. Before invoking the general rule, it must first be determined whether a search has occurred.

The test for determining whether governmental activity infringes upon a protected interest is whether the defendant exhibited an actual (subjective) expectation of privacy and whether the expectation is one that society will recognize as "reasonable." See People v. Catania, 427 Mich. 447, 457, 398 N.W.2d 343 (1986). In making the privacy determination, a court is to scrutinize the totality of circumstances surrounding the alleged intrusion. Nash, supra, 418 Mich. at p. 205, 341 N.W.2d 439. The "reasonable expectation of privacy" test has been adopted for defining the scope of Const. 1963, art 1, Sec. 11, which similarly prohibits unreasonable searches by the government. See People v. Smith, 420 Mich. 1, 25-26, 360 N.W.2d 841 (1984).

In support of his argument that his statements were the subject of an illegal search and seizure, defendant relies principally on People v. Beavers, 393 Mich. 554, 227 N.W.2d 511 (1975), cert. den. 423 U.S. 878, 96 S.Ct. 152, 46 L.Ed.2d 111 (1975). In Beavers, the defendant had a conversation in his own home with a police informant who was wearing an electronic transmitter which enabled the police to listen to the conversation. The police conducted this electronic surveillance without first obtaining a warrant. The Supreme Court, referring to this arrangement as "participant monitoring," held that the Michigan Constitution requires police to obtain a search warrant prior to monitoring a conversation even with the consent of one of the [166 MICHAPP 705] participants. The Court noted a distinction between assuming the risks that the participant in the conversation would repeat it to others and simultaneous monitoring of a conversation by an unknown party. Id., at p. 562, 227 N.W.2d 511. While defendant's confidence in the disguised police informant who instantaneously transmits a conversation to law enforcement authorities may be misplaced, the Supreme Court held that this did not deprive the conversation of its private nature. Id., at p. 564, 227 N.W.2d 511.

This Court has extended the Beavers search warrant requirement to situations where a participant records a telephone conversation. See People v. Artuso, 100 Mich.App. 396, 400, 298 N.W.2d 746 (1980), lv. den. 411 Mich. 870 (1981), cert. den. 454 US 877; 102 S.Ct. 357, 70 L.Ed.2d 187 (1981); People v. Taylor, 93 Mich.App. 292, 287 N.W.2d 210 (1979), lv. den. 408 Mich. 928 (1980); People v. Perry, 91 Mich.App. 79, 282 N.W.2d 14 (1979), lv. den. 408 Mich. 928 (1980); People v. Hall, 88 Mich.App. 324, 276 N.W.2d 897 (1979), lv. den. 406 Mich. 941 (1979). These cases held that the surreptitious recording of a conversation constitutes an invasion of privacy as serious as that which occurs when a participant transmits a conversation to a third party. Cf. People v. Dubose, 91 Mich.App. 633, 283 N.W.2d 644 (1977).

However, the instant case did not involve electronic devices. Defendant made his telephone call from an unenclosed telephone located in a public place with people one foot and two feet away from him. Further, Mary Fisher told him that Detective Kellogg was with her and defendant even spoke with him. As stated in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring):

"Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or [166 MICHAPP 706] statements that he exposes to the 'plain view' of outsiders are not 'protected' because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable. Cf. Hester v. United States [265 US 57; 44 S Ct 445; 68 L Ed 898 (1924) ]."

Therefore, the trial court's ruling that defendant had no reasonable expectation of privacy in the telephone conversation is not clearly erroneous. Our disposition of this issue renders it unnecessary to address the trial court's alternative ruling regarding exigent circumstances. See Parsonson v. Construction Equipment Co, 18 Mich.App. 87, 90, 170 N.W.2d 479 (1969), aff'd. 386 Mich. 61, 191 N.W.2d 465 (1971).

II

Defendant next argues that the trial court abused its discretion by failing to suppress several incriminating statements defendant made on four occasions to police officers in the absence of Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The first statements at issue were those made on June 15, 1985, during the phone conversation with Mary Fisher and Detective Kellogg while defendant was clearly the "focus" of the police investigation. Defendant does not dispute that he was not in police custody at the time, but urges this Court to follow the "focus" standard as enunciated in People v. Wallach, 110 Mich.App. 37, 47-50, 312 N.W.2d 387 (1981), vacated on other grounds 417 Mich. 937, 331 N.W.2d 730 (1983). See also People v. D'Avanzo, 125 Mich.App. 129, 133, 336 N.W.2d 238 (1983).

The Michigan Supreme Court recently resolved [166 MICHAPP 707] the question whether "focus" or "custody" triggers the need to give Miranda warnings. In People v. Hill, 429 Mich. 382, 415 N.W.2d 193 (1987), the Supreme Court determined that Miranda warnings must only be given where there is "custody" and that the fact that an individual has become the "focus" of an investigation does not trigger the Miranda requirement. Id., at pp. 391-394, 415 N.W.2d 193.

In this case, defendant was not in custody and the statements he made to Detective Kellogg were not the product of custodial interrogation. No Miranda warnings were required under the circumstances and the trial court did not abuse its discretion in failing to suppress...