People v. Plamondon

• Decision Date: 22 September 1975
• Docket Number: Docket No. 19267--8
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lawrence PLAMONDON and Craig Blazier, Defendants-Appellants. 64 Mich.App. 413, 236 N.W.2d 86
• Court: Court of Appeal of Michigan — District of US

Page 86

236 N.W.2d 86

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

Docket No. 19267--8.

64 Mich.App. 413, 236 N.W.2d 86

Court of Appeals of Michigan.

Sept. 22, 1975.

Released for Publication Dec. 16, 1975.

Rehearing Granted Dec. 18, 1975.

James R. Neuhard, State App. Defender, Detroit, for defendants-appellants.

[64 MICHAPP 415] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward W. Ten Houten, Pros. Atty., for plaintiff-appellee.

[64 MICHAPP 416] Before D. E. HOLBROOK, P.J., and ALLEN and D. E. HOLBROOK, Jr., JJ.

ALLEN, Judge.

The trial court, sitting without a jury, found defendants guilty of extortion by accusation. M.C.L.A. § 750.213; M.S.A. § 28.410. On September 28, 1973, the trial court sentenced Plamondon to five years' probation, and sentenced Blazier to two years' probation.

This case arises out of an incident which occurred January 31, 1973, when defendants entered the home rented by Uwe Wagner, a self-confessed drug dealer in Honor, Michigan. Defendants came to collect $3,000 which Wagner apparently owed Blazier in exchange for 25 pounds of marijuana which Blazier had sold to Wagner in the first part of January, 1973. Defendants threatened Wagner, stating that his failure to pay the $3,000 would result in Wagner suffering broken arms and legs. Defendants further threatened Wagner that they would expose him as a 'rip-off artist' and would inform various governmental agencies that Wagner was an opium pusher. Plamondon apparently told Wagner to come up with the money by Valentine's Day, and directed Wagner's attention to the infamous St. Valentine's Day Massacre. Various personal articles of Wagner's, including his stereo speakers, his social security card, alien registration card and draft registration card, as well as a water pipe, some clothing and some other pipes utilized in the consumption of various controlled substances, were taken by defendants as 'collateral' for the money which Wagner allegedly owed Blazier.

The day after defendants departed from Wagner's home, Wagner contacted an attorney who arranged protective custody for Wagner in the Antrim county jail. Subsequent thereto, he discussed[64 MICHAPP 417] what had occurred with a state police officer who in turn contacted officers from the state police headquarters in East Lansing. On February 26, 1973, Wagner, at the suggestion of Detective Sergeant Robert F. Ward of the intelligence section of the Michigan State Police, telephoned Plamondon to discuss Plamondon's role in the affair and Wagner's apparent ability to pay the defendants shortly. Another phone call was made February 27, at which time the same matters were discussed. Both calls were made by Wagner from Sgt. Ward's room 133 in the Foxhouse Motel located in Traverse City and while Officer Ward was present.

Both of the above phone calls were tape recorded, and the tapes were played at trial and admitted into evidence over defense counsel's objection. Sgt. Ward placed an induction coil onto the earpiece of the telephone, and the recording was fed into a tape recorder. While the officer, who was present in the motel room, could hear Wagner speak, he had to replay the tape to hear what Plamondon was saying, and did so immediately after the call was completed. Ward testified that after meeting Wagner during the afternoon of February 26, he suggested that the taped telephone calls be made to Plamondon. Ward had been assigned to the case on February 23, and after speaking with Wagner, decided that the proper thing to do would be to call Plamondon who, based upon Wagner's recital of the event, seemed to be the person in charge.

The above facts have framed defendants' initial claim on appeal, namely, whether defendants' right to be free from unreasonable searches and seizures, U.S.Const. Am. IV and Const.1963, art. 1, § 11, was violated when tapes of those two telephone[64 MICHAPP 418] conversations between defendant and the complaining witness Wagner were admitted into evidence, where the conversations were obtained without obtaining prior judicial authorization in the form of a warrant. This case presents a second claim of error--that defendants were the victims of a discriminatory and politically-based prosecution in light of the history of the relationship between various state law enforcement agencies and members of defendants' political organization (Rainbow People's Party), the resources expended and devoted to the investigation and prosecution of defendants, and the decision by the prosecutor not to pursue enforcement actions against Wagner, the informant, but rather pursuing this case against defendants.

Relying upon Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), defendants argue that the trial court erred in admitting into evidence the tapes and transcripts thereof of two telephone conversations had between Wagner and defendant where, without prior judicial authorization, the State Police monitored a phone call (at Wagner's end of the line) and recorded the same. The prosecutor responds, and relies upon United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), for the proposition that the constitutional protection against unreasonable searches and seizures is inapplicable to such a situation. Research has disclosed that our Court has previously declined to apply Katz to the warrantless eavesdropping and recording of a telephone call made with the cooperation of a police informant or the complaining witness. People v. Drielick, 56 Mich.App. 664, 667, 224 N.W.2d 712 (1974); People v. Rappuhn, 55 Mich.App. 52, 59--60, 222 N.W.2d 30 (1974), Lv. den., 393 Mich. 808 (1975), and People v. [64 MICHAPP 419] Karalla, 35 Mich.App. 541, 545, 192 N.W.2d 676 (1971), Lv. den., 386 Mich. 765 (1971). Further, our Court in People v. Bruno, 30 Mich.App. 375, 382--383, 186 N.W.2d 339 (1971), applied the Pre-Katz decision of Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957), to find no violation of defendant's rights. Recently, the Michigan Supreme Court found that the warrantless monitoring of a conversation between defendant and an informant who was equipped with a radio transmitter under his shirt and who transmitted the conversation to police officers violated defendant's right to be free from unreasonable searches and seizures, and in particular bottomed its decision upon Michigan's constitutional protection against the same, Const.1963, art. 1, § 11. People v. Beavers, 393 Mich. 554, 227 N.W.2d 511 (1975). However, that opinion limited itself to prospective application, and we are thus unable to specifically predicate our decision upon it.

At the outset of our discussion, we note that Rathbun, supra, was not a constitutional case, but rather was based upon a specific Federal statute which was concerned with the interception and divulging of communications. A subsequent decision dealing with the same statutory provision, 47 U.S.C. § 605, found error in light of the facts therein, but specifically noted that the Fourth Amendment claim was not decided and that the opinion was limited to the statutory grounds. Lee v. Florida, 392 U.S. 378, 379, 88 S.Ct. 2096, 2097, 20 L.Ed.2d 1166 (1968). Thus, the Lee-Rathbun line of cases cited in Bruno, supra, would be inapplicable to a constitutional claim.

In Katz, supra, the public telephone booth from which defendant had made a telephone call was 'bugged' and law enforcement officials were able [64 MICHAPP 420] to listen to and record defendant's words. In the course of its discussion, Katz, supra, noted that 'What a person knowingly exposes to the public, even in his home or office, is not a subject of Fourth Amendment protection.' 389 U.S. at 351, 88 S.Ct. at 511, 19 L.Ed.2d at 582. The Court said that Katz, making a telephone call in a public telephone booth, had a right to 'rely upon the protection of the Fourth Amendment', and that he was 'entitled to assume that the words he utter(ed) into the mouthpiece (would) not be broadcast to the world'. 389 U.S. at 352, 88 S.Ct. at 511--512, 19 L.Ed.2d at 582. Katz, supra, further noted that the Fourth Amendment governed 'the recording of oral statements * * *', and that the government's use of an electronic device to listen to and record defendant's statements 'violated the privacy upon which he justifiably relied while using the telephone booth', and therefore was found to be 'a 'search and seizure' within the meaning of the Fourth Amendment'. 389 U.S. at 353, 88 S.Ct. at 512, 19 L.Ed.2d at 583. Katz, supra, noted that electronic surveillance did not come within the specific exceptions to the warrant requirement (incident to arrest, hot pursuit), pointed out that the nature of the police activity 'preclude(d) its use pursuant to the suspect's consent', and rejected the argument that electronic surveillance of a phone booth constituted a separate exception to the warrant requirement. 389 U.S. at 357--358, 88 S.Ct. at 514--515, 19 L.Ed.2d at 585--586.

United States v. White, 401 U.S. 745, 746--747, 91 S.Ct. 1122, 1123, 28 L.Ed.2d 453, 456 (1971), upon which the prosecutor relies, involved the use, by a government informant, of a radio transmitter concealed on his person which transmitted conversations[64 MICHAPP 421] entered into between defendant and the informant to government agents who could overhear the conversations by monitoring the frequency of the transmitter. Mr. Justice White, speaking for himself and three other justices, rejected the argument that Katz, supra, precluded the admission into evidence of the agent's testimony regarding the overheard conversations. In the course of his discussion, Mr. Justice White referred to the 'misplaced confidence' decision of Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), which afforded no Fourth Amendment protection to defendant engaged in a personal...