People v. Pulley

• Decision Date: 06 January 1976
• Docket Number: Docket No. 19419
• Citation: 66 Mich.App. 321,239 N.W.2d 366
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Corzel PULLEY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 366

239 N.W.2d 366

66 Mich.App. 321

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Corzel PULLEY, Defendant-Appellant.

Docket No. 19419.

Court of Appeals of Michigan.

Jan. 6, 1976.

Released for Publication March 23, 1976.

Leave to Appeal Denied April 21, 1976.

Roman T. Plaszczak, Kalamazoo, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Donald A. Johnston, III, Chief Appellate Atty., for plaintiff-Appellee.

Before KAUFMAN, P.J., and R. B. BURNS and DENEWETH, ^* JJ.

KAUFMAN, Presiding Judge.

Defendant was convicted by a Kent County Circuit Court jury of the charged offense of delivery of a controlled substance, heroin, M.C.L.A. § 335.341(1) (a); M.S.A. § 18.1070(41)(1)(a). He was subsequently sentenced to a term of from 4 to 20 years and now appeals of right.

The alleged delivery of heroin occurred in the early morning hours of July 3, 1973. The purchase was made by police undercover agent Tim Kirby. At trial, Mr. Kirby testified that he was employed by the Federal Bureau of Narcotics & Dangerous Drugs and that he had worked for the agency for two and one-half years. In 1973 he was operating with the Grand Rapids police, and on the evening of July 2, he was searched, equipped with a body transmitter and given $45 to attempt to purchase drugs. Kirby then looked for a man named 'Billy' and found him at Art's Bar in Grand Rapids. The two proceeded to several addresses looking for drugs. They eventually arrived at 552 Neland, S.E., defendant's house, where 'Billy' entered alone, then summoned Kirby. An unidentified man was sitting at the kitchen table, and defendant Pulley also entered the house. A portion of the substance which was sitting on the kitchen table was sold to Kirby for $45, and he was told that it was heroin. He was told that he could not leave with the heroin, and he pretended to inject part of it into his arm. He did however carry part of the substance away with him in a piece of tin foil. When the substance was later tested it was found to contain heroin, although in minimal amounts.

This testimony was corroborated by Grand Rapids police officers James Powell and James Wells. They testified that they were working with Kirby on the night of July 2, in an attempt to set up the purchase of a controlled substance. Both officers testified that they were equipped with an apparatus which could hear conversations from the transmitter that was concealed on Kirby. They stated that they had followed Kirby in separate cars as he went to four bars in search of 'Billy'. They saw Kirby meet a man across the street from Art's Bar and leave in his car. Both officers testified that the two men drove to four different homes where they stayed for brief periods, then proceeded to 552 Neland Street where 'Billy' entered the house and then motioned Kirby inside.

Officer Powell claimed that, by means of Kirby's transmitter, he overheard conversation taking place inside the Neland Street house. He recognized Kirby's voice and heard three other, unfamiliar voices. Specifically, he stated that he could hear someone comment that Kirby could 'purchase the whole thing for $45'. It was explained that 'thing' is street slang for a controlled substance, usually heroin or cocaine. Officer Wells, however, could not hear any of the discussion because of noise from outside his car.

Defendant's only defense was alibi. Several witnesses testified to the effect that Kirby did not come to the defendant's house on July 3 but had come on June 29 and that defendant was out of town on July 3. The defendant also took the stand and stated that he and several friends were at his home on June 29th or 30th when 'Billy' came to the door and asked to borrow money. Tim Kirby followed shortly and appeared to be sick. They left when defendant refused to loan them any money. He stated that he was not at home on July 3.

Defendant's first claim on appeal is that the trial court erroneously admitted into evidence the testimony by Officer Powell which related the conversation overheard by means of the concealed transmitter. Defendant contends that because the monitoring was conducted without a warrant, the admission of this testimony was violative of the Michigan Constitution, art. 1, § 11. Defendant cites the recent case of People v. Beavers, 393 Mich. 554, 227 N.W.2d 511 (1975), as requiring reversal. Plaintiff argues that Beavers, by its own terms, is inapplicable to this case and that the proper standard is contained in United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), which validates such warrantless third-party monitoring.

We find that no error was committed by admitting the challenged testimony. Initially, we note that it is unclear from the record whether defendant specifically objected to this testimony, as is required to preserve the error for appeal. People v. Surles, 29 Mich.App. 132, 185 N.W.2d 126 (1970). Lv. den. 385 Mich. 764 (1971). General objections were posed and, at one point, an off-record conference followed one such objection. In such a case, we prefer to resolve the doubt in defendant's favor and consider the appellate claim.

As plaintiff notes, People v. Beavers, supra, whch held third-party monitoring subject to the warrant requirement, is inapplicable to this case. The Court in Beavers explicitly stated that its 'decision * * * is to be applied prospectively'. 393 Mich. at 568, 227 N.W.2d at 516. Our Court has recently held that, inasmuch as the primary purpose of the warrant requirement is to deter unlawful police behavior, the effective date of Beavers is the date on which the challenged police conduct occurred, not the date of the trial. People v. Livingston 64 Mich.App. 247, 236 N.W.2d 63 (1975). The behavior challenged in the instant case occurred nearly two years prior to the Beavers decision.

In holding that the challenged behavior was not subject to the warrant requirement, we do not, as plaintiff urges, rely on United States v. White, supra. That decision was the product of an evenly divided United States Supreme Court with the decisive vote being a concurrence in the result. As such, we are not bound by the plurality's reasoning. People v. Anderson, 389 Mich. 155, 170, 205 N.W.2d 461 (1973). Rather, we rely on the law in Michigan at the time the challenged activity occurred. Prior to Beavers, this Court consistently held the warrant requirement inapplicable to telephone conversations monitored and recorded with the consent of a participant, People v. Drielick, 56 Mich.App. 664, 224 N.W.2d 712 (1974), People v. Rappuhn, 55 Mich.App. 52, 222 N.W.2d 30 (1974), Lv. den. 393 Mich. 808 (1975), People v. Karalla, 35 Mich.App. 541, 192 N.W.2d 676 (1971), Lv. den. 386 Mich. 765 (1971), and to third-party monitoring of face-to-face conversations, People v. Patrick, 46 Mich.App. 678, 208 N.W.2d 604 (1973), People v. Karalla, supra.

We take note of a recent decision by another panel of this Court, People v. Plamondon, 64 Mich.App. 413, 236 N.W.2d 86 (1975), which dictates the opposite result. Plamondon, a split decision, relying on Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), held that the warrant requirement applied to Pre-Beavers police monitoring of a telephone call with the consent of one of the participants. The Katz opinion had applied the warrant requirement to police bugging of a telephone booth. It held that, because defendant had a legitimate expectation of privacy in using the booth, he was protected by the Fourth Amendment.

We could draw a distinction between this case, which, like Beavers, involves participant monitoring, and Plamondon, which involved telephonic monitoring. However, we find no justifiable basis for such a distinction. See United States v. White (plurality), Supra, People v. Livingston, supra. Rather, we find that we must reject the reasoning and holding of Plamondon. First, the holding in that case represents a De facto retroactive application of Beavers, one which conflicts with its explicit prospectivity. Although Beavers specifically did not deal with telephonic monitoring (393 Mich. at 562--563, fn. 2, 227 N.W.2d 511), we find it equally applicable to such behavior. Plamondon relied on the same case, Katz v. United States, supra, as did Beavers, which gave its application of Katz prospective effect.

Second, in the relevant cases cited above, this Court consistently refused to apply Katz to either telephonic or participant monitoring. Thus, prior to Beavers, neither Michigan nor United States Supreme Court cases specifically required that a warrant be obtained. Indeed, case law was explicit in stating that no warrant need be obtained, especially in the case of participant monitoring. See Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). The purpose of the exclusionary rule under the Fourth Amendment and Const.1963, art. 1, § 11 is one of deterring certain police conduct. United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). The expressly prospective application of Katz by the Supreme Court and the consistent refusal of this Court to apply Katz to the instant situation make it clear to us that, prior to Beavers, the warrant requirement was inapplicable to participant monitoring and to third-party telephonic monitoring. It seems both fruitless and unfair to now apply the rule to police activity which has already occurred and which was conducted consistent with specific opinions of this Court, opinions which the Supreme Court has refused to retroactively overrule. ¹

In any event, if the warrant requirement had applied here, the instant factual setting would probably have fallen within the 'exigent circumstances exception' to that requirement. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), Reh. den. 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971), ...