People v. Taylor

• Decision Date: 05 November 1979
• Docket Number: Docket No. 77-4518
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Elmer TAYLOR, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 210

287 N.W.2d 210

93 Mich.App. 292

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Elmer TAYLOR, Defendant-Appellant.

Docket No. 77-4518.

Court of Appeals of Michigan.

Nov. 5, 1979.

Released for Publication Jan. 29, 1980.

Laurence C. Burgess, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, III, App. Chief, Asst. Pros. Atty., Robert E. Edick, Asst. Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P. J., and CAVANAGH and MacKENZIE, JJ.

MacKENZIE, Judge.

Defendant Elmer Taylor was charged with having incited, induced, or exhorted one Lawrence Blankenship to burn a dwelling in the City of Detroit, said burning being likely to endanger the life of other persons, contrary to M.C.L. §§ 750.157b, 750.72; M.S.A. §§ 28.354(2), 28.267. A jury trial was held in Detroit Recorder's Court. Prior to the closing arguments and the jury charge, the information was amended deleting the phrase "said burning being likely to endanger the life of other persons". Defendant was convicted of the charge as amended. He was sentenced to a term of two to 20 years, and appeals as of right.

Lawrence Blankenship testified that he had known defendant for eight or nine years, and that in July, 1976, he and defendant had a conversation at defendant's home. They discussed defendant's neighborhood, and defendant noted that the area was blighted by a certain family, whose members were shooting out windows, arguing, slandering defendant's wife, and destroying people's property. Defendant said it would not be a bad idea if the family's house burned down, and that it would be worth a couple of hundred dollars to him to have it set on fire. He suggested that the house would not be hard to burn; it could be done by throwing a couple of small gas bombs over there.

A few days later, Blankenship reported the conversation to the police. At the request of the police and after procurement of a search warrant, Blankenship telephoned defendant while in the presence of Sergeant Sanford. The telephone conversation was recorded, and Blankenship afterward verified that the tape and the transcript accurately reflected his conversation with defendant. The transcript revealed that in the course of the conversation, defendant stated, " 'Don't never say nothing to put no heat on me, or nothing will you, * * * Don't, don't ever say nothing about me talking to you about a lot of pressure on me, okay?' ". The jury was given a transcript of the taped telephone conversation, and was permitted to listen to the tape.

Defendant testified that he did not intend or urge Blankenship to burn a dwelling, or to have any words to this effect taken seriously.

Defendant, citing Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), contends that the warrant authorizing the recording of the telephone conversation was defective under the Federal Constitution. In Berger v. New York, supra, the Supreme Court struck down a New York wiretap statute because it failed to meet Fourth Amendment requirements. The statute was held defective because it authorized eavesdropping without requiring belief that a particular offense has been or is being committed; without requiring that the conversations sought be particularly described; without placing a termination date on the eavesdrop; and without requiring notice or a showing of special facts sufficient to dispense with the notice requirement.

Defendant points out that the search warrant issued in the instant case did not describe with particularity the types of conversations to be monitored; did not state that there is probable cause to believe that a particular offense has been or is being committed by defendant; did not limit the number of telephone conversations to be monitored; and did not contain a termination date on the monitoring.

Initially, we note that Federal constitutional law recognizes a distinction between third-party monitoring and participant monitoring. Third-party monitoring involves police monitoring of a conversation without the consent or knowledge of either participant, whereas participant monitoring involves monitoring with the consent of one of the parties to the conversation.

In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the United States Supreme Court held that when police engage in third-party monitoring, a search occurs for Fourth Amendment purposes, and that police must procure a search warrant prior to eavesdropping. In United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), however, a four-justice plurality held that participant monitoring is not a search.

In People v. Beavers, 393 Mich. 554, 227 N.W.2d 511 (1975), the Michigan Supreme Court held that participant monitoring constituted a search and seizure under the Michigan Constitution, Const.1963, art. 1, § 11, and, therefore, was permissible only if a valid search warrant was issued. Beavers involved a situation where the defendant made incriminating statements to a radio transmitter, enabling police located nearby to overhear the conversation.

In the instant case, however, the record indicates that the police did not overhear defendant's remarks as they were being made. Rather, an officer was present with Blankenship while Blankenship was conversing with defendant. The conversation was recorded and, upon completion, the recording was played back by the officer and Blankenship.

In Beavers, the Supreme Court specifically limited its holding to situations where the conversation was being heard by a third party as it was taking place:

"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." People v. Beavers, supra, at 562-563, fn. 2, 227 N.W.2d at 514, n. 2. (Emphasis in original.)

In People v. Livingston, 64 Mich.App. 247, 236 N.W.2d 63 (1975), this Court extended the Beavers rationale to include participant recording. See also People v. Hall, 88 Mich.App. 324, 328, 276 N.W.2d 897, 898 (1979), where this Court stated:

"The fact that a recording of a conversation could be permanently stored and then produced long after the participants or their monitors forgot about the conversation makes participant recording just as intrusive of privacy as participant monitoring, and subject to the same restrictions on its use."

The validity of the search warrant in the instant case must be...