People v. Lucas, Docket No. 116305

CourtCourt of Appeal of Michigan (US)
Citation188 Mich.App. 554,470 N.W.2d 460
Docket NumberDocket No. 116305
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Ronald LUCAS, Defendant-Appellant.
Decision Date16 April 1991

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Richard Thompson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Sarah E. Hunter, Asst. Pros. Atty., for the People.

Daniel J. Blank, Birmingham, for defendant-appellant.

Before HOOD, P.J., and WEAVER and MARILYN J. KELLY, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of possession with intent to deliver more than 225 grams, but less than 650 grams, of cocaine. 1 He was then found guilty in a bench trial of being an habitual offender, fourth offense. 2 Defendant's sentence of ten to thirty years' imprisonment for the underlying crime was vacated and enhanced under the habitual offender conviction to seventeen to forty years' imprisonment. Defendant appeals as of right, raising a plethora of issues, none of which requires reversal. 3

Defendant was arrested in a restaurant parking lot after a police informant, who had known defendant for fifteen years, arranged to have defendant deliver a large quantity of cocaine at the restaurant. The informant had told the police that defendant was able to deliver the quantity which had been discussed. The informant telephoned defendant to arrange the deal. During their conversation, a sheriff's deputy listened in on an extension phone with the informant's consent, but without defendant's knowledge. After the call established that the delivery would occur at the restaurant the next day, the police began a surveillance of defendant's apartment.

The next morning, the police observed a man matching defendant's description leave the apartment and drive in the direction of the restaurant. The surveillance team followed the vehicle to the parking lot designated for the illegal transaction. The police stopped the vehicle upon the belief that it would contain the cocaine contemplated in the deal which had been arranged during the informant's call. When the officers surrounded the vehicle and approached defendant, he stated that he did not have "anything" with him. Following his arrest, the police searched his vehicle and discovered a small quantity of cocaine in an empty cigarette package above the driver's visor and a bag with cocaine residue in the trunk. They did not discover the large quantity of cocaine contemplated in the deal between defendant and the informant.

While defendant was being arrested and his car searched, a mobile phone within the vehicle rang repeatedly. Several of the calls were answered by Commander Melvin Turner, who was in charge of the police unit. The vast majority of the calls were related to the sale or acquisition of cocaine.

Having failed to uncover the large quantity of cocaine which they expected to find in the vehicle, the police secured a search warrant for defendant's apartment. Among the items discovered and seized at the apartment were approximately 450 grams of cocaine, $2500 in cash, and a variety of drug paraphernalia.

I

On appeal defendant raises a host of issues addressing various aspects of the supporting affidavit and warrant obtained for the search of his apartment, which led to the discovery of the large quantity of cocaine that was the subject of the charges against him and the basis for his conviction.

A

Defendant first argues that the police were required to secure a search warrant before they listened in on an extension phone to the conversation between the informant and himself. During this call, the arrangements for the delivery of a large quantity of cocaine were made. The informant had consented to the police listening on the extension, but defendant had no knowledge that a third party was on the line. Defendant claims that his rights under the Michigan Constitution were violated when the police "electronically monitored" this conversation. He contends that the prohibition against monitoring of conversations without a warrant announced in People v. Beavers, 393 Mich. 554, 227 N.W.2d 511 (1975), 4 was extended by this Court in People v. Calabro, 166 Mich.App. 389, 419 N.W.2d 791 (1988), to situations where a police officer listens in on an extension to a phone conversation with the consent of only one of the parties. Because the officer in this case did not have a warrant to listen in on the conversation, defendant contends that all information obtained as a result of that unlawful conduct must be deleted from the search warrant affidavit as the "fruits of the poisonous tree." Defendant asserts that when that information is deleted, the affidavit fails to establish probable cause to support the issuance of the search warrant for his apartment. Absent a warrant, the search was invalid, and the items seized should have been suppressed.

The use of undercover police officers, informants, and electronic surveillance devices has often been a valuable investigative tool of law enforcement agencies. Because of the covert characteristics of such activities, the courts have frequently addressed whether a particular practice, designed to obtain incriminating evidence from a defendant's conversation, requires a search warrant under the Fourth Amendment. 5

In People v. Beavers, our Supreme Court determined that the search and seizure provision of the Michigan Constitution, Const. 1963, art. 1, Sec. 11, required the police to obtain a search warrant prior to employing an informant to purchase narcotics from the defendant at his home while equipped with a hidden radio transmitter that relayed their conversation to the officers. The Court acknowledged the widespread concern over the advent of increasingly sophisticated electronic surveillance equipment and the importance of reconciling the competing interests of law enforcement and the protection of privacy rights. However, the Court limited its analysis to the constitutional validity of electronic surveillance conducted without a warrant by police with the assistance of a "bugged" informant. 393 Mich. p. 563, 227 N.W.2d 511. The Court noted that this same issue was addressed by the United States Supreme Court in United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971).

In White, a plurality of the Court determined that the defendant's Fourth Amendment rights under the federal constitution were not violated by such conduct. Justice White reasoned that if the conduct and revelations of an agent or informant operating without electronic surveillance equipment do not violate a defendant's constitutionally justifiable expectations of privacy, then neither does a recording of the same conversation made from transmissions received from the agent or informant to whom the defendant is speaking and whose trustworthiness the defendant necessarily risks. 6

Our Supreme Court, however, rejected Justice White's rationale and declined to rule that a defendant's misplaced confidence in a disguised police informant who instantaneously transmits the parties' conversation to the police deprives the conversation of its private character. Beavers, supra, 393 Mich. p. 564, 227 N.W.2d 511. Instead, the Court was persuaded by and adopted the rationale in Justice Harlan's dissent in White that there is a significant difference between assuming the risk that communications directed at one party might subsequently be repeated and the simultaneous monitoring of the communication by the uninvited ear through the use of sophisticated electronic surveillance devices by one of the participants. The Beavers Court determined that this type of electronic surveillance is subject to the protection of the Michigan Constitution against unreasonable searches and seizures. 393 Mich. at 565-566, 227 N.W.2d 511.

The Beavers search warrant requirement has been extended by this Court to situations where a participant records a telephone conversation. 7 The surreptitious recording of the phone call is considered as serious an invasion of privacy as that which occurs when a participant simultaneously transmits a conversation to a third party. 8 In People v. Calabro, a panel of this Court extended the Beavers search warrant requirement, without analysis, to situations where the police listen in on an extension phone to a telephone conversation between a consenting party and an unknowing defendant. 9 Noting the factual similarity in the police conduct, defendant argues that Beavers and Calabro require the deletion from the search warrant affidavit of the information overheard on the informant's extension phone by the officer. For the reasons expressed below, we do not agree with Calabro and conclude that the Beavers search warrant requirement does not apply to this type of police conduct.

Defendant's reliance on Beavers is misplaced. The Beavers Court specifically distinguished "participant monitoring" from third-party eavesdropping.

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, n. 2, 227 N.W.2d 511. Emphasis in original.]

This case, unlike Beavers, involved the use of an extension phone by a third party only to listen in on, and not record, the conversation between the consenting informant and defendant. Although the distinction may be considered a fine one, we do not believe that Beavers' ratio decidendi is applicable to this type of police conduct.

Beavers rested on the conclusion that the...

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