People v. Livingston

• Decision Date: 11 September 1975
• Docket Number: Docket No. 21682
• Citation: 64 Mich.App. 247,236 N.W.2d 63
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Deotis LIVINGSTON et al., Defendants-Appellees. 64 Mich.App. 247, 236 N.W.2d 63
• Court: Court of Appeal of Michigan — District of US

Page 63

236 N.W.2d 63

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Deotis LIVINGSTON et al., Defendants-Appellees.

Docket No. 21682.

64 Mich.App. 247, 236 N.W.2d 63

Court of Appeals of Michigan.

Sept. 11, 1975.

Rehearing Denied Oct. 20, 1975.

Released for Publication Dec. 16, 1975.

[64 MICHAPP 249] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, App. Chief, John G. Burns, Asst. Pros. Atty., for plaintiff-appellant.

Henry, Smith, Sabbath & Dillard, P.C. by Milton R. Henry, Detroit, for Stanley and Cargill.

John D. O'Connell, Detroit, for Wade.

Before T. M. BURNS, P.J., and QUINN and KELLY, JJ.

KELLY, Judge.

On March 28, 1974, a combination of suspicious circumstances caused William Morgan to purchase a tape-recording device and attach it to the telephone line in his own home so that all incoming and outgoing calls would be recorded. He was interested in his wife's conversations. Upon listening to the first tape, he discovered that his wife had discussed with her close friend the possibility of having Mr. Morgan murdered. During the course of the conversation, mention was made of a prospective 'hit man' from Chicago. Mr. Morgan took this tape to Detective Jack Morton at the Detroit police homicide division.

Detective Morton then approached Mrs. Morgan and suggested that she had been engaged in a criminal conspiracy to commit murder. He offered her immunity from prosecution if she would cooperate in the police attempt to identify the hired gunman. Mrs. Morgan agreed. However, through several weeks, follow-up was unproductive. The supposed conspiracy appeared unsupported in fact and the detective considered the case closed.

Toward the end of April, Mrs. Morgan received phone calls from a person who identified himself [64 MICHAPP 250] as the man from Chicago. The caller sought reimbursement of expenses incurred in trips to Detroit claiming he had come to Detroit prepared to kill Mr. Morgan but had been unable to contact Mrs. Morgan. At any rate, the caller wanted money, Mrs. Morgan declined, and the caller threatened her. Then the Morgan home was firebombed.

After discussing the matter with her husband, Mrs. Morgan called Detective Morton. He suggested that Mrs. Morgan feign renewed interest in the murder plot so as to identify the hit man who, the officer surmised, was behind the firebombing. Thereafter, Mrs. Morgan made and received a number of phone calls which were recorded by her husband and Detective Morton with her knowledge. The outgrowth is that defendants stand charged with conspiring, M.C.L.A. § 750.157a(a); M.S.A. § 28.354(1)(a), to commit the crime of first-degree murder, M.C.L.A. § 750.316; M.S.A. § 28.548.

Defendants brought a motion to suppress the evidentiary use of the tape recordings. The motion was granted and the people appeal upon leave granted.

Two distinct sets of tapes are involved. There are the pre-firebombing tapes, which were made by Mr. Morgan without the knowledge of his wife or the police. There are also the post-firebombing tapes made with the purported consent of Mrs. Morgan and with the approval of the police. The two sets shall be discussed separately because, in our view, they necessitate different legal analysis. There are three essential theories for suppression by defendants.

They are:

I. That the tapes were obtained in violation of Const.1963, art. 1, § 11, in that no search warrant was procured as required by People v. Beavers, 393 Mich. 554, 227 N.W.2d 511 (1975).

[64 MICHAPP 251] II. That the tapes were obtained in violation of the Michigan wiretapping act, M.C.L.A. § 750.539a Et seq.; M.S.A. § 28.807(1) Et seq.

III. That the tapes were obtained in violation of U.S.Const. Am. IV and Const.1963, art. 1, § 11, in that there was no voluntary consent by Mrs. Morgan to the warrantless search of her telephonic communications.

I

Defendants argue that the people were required to first obtain search warrants before they could lawfully tape conversations between Mrs. Morgan and the alleged co-conspirators. Reliance is placed on People v. Beavers, 393 Mich. 554, 227 N.W.2d 511 (1975), where the Supreme Court ruled that participant monitoring requires prior procurement of a search warrant. The Beavers opinion does not squarely control this case, because the Beavers Court specifically distinguished participant monitoring from recording by a participant. The Beavers Court noted:

'Where the phrase 'participant monitoring' appears, we specifically refer to the use of an electronic device By a participant of a conversation which transmits the exchange to a third party. We do not address those situations which include a participant himself Recording the conversation or the use of an electronic device by a Third party only to eavesdrop upon a conversation between two parties, one of whom is cooperating with the authorities.' 393 Mich. at 562, 563, fn. 2, 227 N.W.2d at 514. (emphasis original.)

This case, unlike Beavers, involves third-party recording and participant recording. As seen [64 MICHAPP 252] above, the Beavers Court did not attempt to pass on the situation in the case at bar. The distinction is fine. We conclude that Beavers' ratio decidendi is equally applicable to the present fact situation. At present, a search warrant appears required before the conduct here described may be legitimized. The more critical question is whether the Beavers opinion is to be applied where, as here, the police conduct precedes Beavers and the trial follows.

The question arises because of the explicit holding: 'The decision today is to be applied prospectively.' 393 Mich. at 568, 227 N.W.2d at 516. The people's claim is that Beavers applies only to Post-Beavers police conduct while defendants claim that the date of trial is dispositive. Three factors have been used to determine when a new rule of constitutional or criminal law is to take effect. The factors are: the purpose of the new rule, the general reliance on the old rule, and the effect on the administration of justice. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); People v. Hampton, 384 Mich. 669, 187 N.W.2d 404 (1971).

Consent searches have traditionally been viewed as exempt from the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); People v. Chism, 390 Mich. 104, 211 N.W.2d 193 (1973). Police reliance on Pre-Beavers law is reasonable. In fact, at the time of the recordings, this Court had affirmed the conviction of Beavers. We are not prepared to require that lay police not only appreciate the nuances of existing law but also successfully prognosticate change. We hold that the crucial date is that of the police conduct.

In Desist v. United States, 394 U.S. 244, 89 S.Ct. [64 MICHAPP 253] 1030, 22 L.Ed.2d 248 (1969), the court faced the question of how to apply the comparable case of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The court noted the nonretroactivity usually accorded search-and-seizure cases (394 U.S. at 250, 89 S.Ct. at 1034, 22 L.Ed.2d at 255) and concluded that Katz was to be applied to cases only where the police conduct occurred after the decisional date of Katz.

The case most favorable to defendant, Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), applied Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), to cases awaiting trial as of the decisional date of Miranda. Johnson was severely restricted by Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), where the Court said:

'Just as the law does not require that a defendant receive a perfect trial, only a fair one, it cannot realistically require that policemen investigating serious crimes make no errors whatsoever. The pressures of law enforcement and the vagaries of human nature would make such an expectation unrealistic. Before we penalize police error, therefore, we must consider whether the sanction serves a valid and useful purpose.

'We have recently said, in a search and seizure context, that the exclusionary rule's 'prime purpose is to deter future unlawful police conduct and thereby to effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.' United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, p. 619, 38 L.Ed.2d 561 (1974). We then continued:

"'The rule is calculated to prevent, not to repair. Its purpose is to deter--to compel respect for the constitutional guaranty in the only effectively available way--by removing the incentive to disregard it.' Elkins v. United States, 364 U.S. 206, 217 (80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669) (1960).' United States v. Calandra, p. 347, 94 S.Ct., at p. 620.

'In a proper case this rationale would [64 MICHAPP 254] seem applicable to the Fifth Amendment context as well.

'The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least, negligent conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care towards the right of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.' 417 U.S. at 446, 94 S.Ct. at 2365.

We therefore conclude that People v. Beavers, supra, is to be applied to police conduct occurring after its decisional date. In the instant case, the conversations were all recorded prior to Beavers. The introduction of those tapes at the trial of defendants is not proscribed.

II

Defendants also claim that the tapes are inadmissible because they were obtained in violation of the Michigan...