People v. Warner, Docket No. 21127

• Decision Date: 27 October 1975
• Docket Number: Docket No. 21127
• Citation: 65 Mich.App. 267,237 N.W.2d 284
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Dale WARNER, Defendant-Appellee. 65 Mich.App. 267, 237 N.W.2d 284
• Court: Court of Appeal of Michigan — District of US

Page 284

237 N.W.2d 284

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Dale WARNER, Defendant-Appellee.

Docket No. 21127.

65 Mich.App. 267, 237 N.W.2d 284

Court of Appeals of Michigan.

Oct. 27, 1975.

Released for Publication Jan. 23, 1976.

[65 MICHAPP 268] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Raymond L. Scodeller, Pros. Atty., Thomas Rasmusson, Special Asst. Pros. Atty., for plaintiff-appellant.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellee.

Before QUINN, P.J., and D. E. HOLBROOK and WALSH, JJ.

QUINN, Presiding Judge.

August 15, 1973 defendant was charged with possession and use of heroin contrary to M.C.L.A. § 335.341(4)(a); M.S.A. § 18.1070(41)(4)(a) and M.C.L.A. § 335.341(5)(a); M.S.A. § 18.1070(5)(a). Preliminary[65 MICHAPP 269] examination was held November 8 and 28, 1973 and January 28 and 29, 1974. Defendant was bound over for trial as charged. The information charged defendant with possession of heroin and attempted use thereof.

Defendant filed motions to suppress evidence, to quash the information and for discovery. The trial court ordered discovery and denied the motions to suppress and to quash. Defendant filed a motion for rehearing on the basis of newly discovered evidence. This motion was granted; further evidence was taken and the motions to suppress and to quash were granted. The people appeal.

Nancy Witherspoon was a registered guest at Motel 6 in Lansing. She occupied room 235. Shortly before noon on August 15, 1973, an outside telephone call for a Miss Witherspoon was received at Motel 6. The clerk on duty, Louise Auslander, handled telephone calls to and from the guest rooms. She connected the outside caller, who had a male voice, with room 235, and was then interrupted by some other event. When her attention returned to the telephone switchboard, she noted that the line to room 235 was still open and picked up the receiver to ascertain whether the call had been completed. She heard a female voice say, 'I've got drugs'. Thereafter, Mrs. Auslander continued to listen to the conversation.

Mrs. Auslander notified the Lansing police of possible drug traffic at Motel 6. Sergeant Baylis of the Lansing Police Department was in charge of the metronarcotics squad. At about 11:50 a.m., on August 15, 1973, he was returning from lunch when he received a radio message from his secretary to proceed to Motel 6. Prior to doing so, Sergeant Baylis telephoned his office and was advised that Nancy Witherspoon was involved in the [65 MICHAPP 270] activities at Motel 6. She was known to Baylis as a person involved in drug traffic in the Lansing area.

Sergeant Bayis proceeded to Motel 6 where he talked with Mrs. Auslander and learned what Mrs. Auslander had overheard of the telephone conversation between Nancy Witherspoon in room 235 and the male person who had called her. Sergeant Baylis then telephoned the office of the prosecuting attorney, related what he had learned from Mrs. Auslander and requested instructions. Whatever was to occur at room 235 was supposed to occur within about five minutes of this telephone call. Within that time limitation, there was no possibility of obtaining a search warrant, and Sergeant Baylis was advised by the prosecuting attorney's office to proceed to enter the room and confiscate the drugs.

The manager of the motel permitted Sergeant Baylis and three other officers to occupy room 231. Through the partially opened door of room 231, Sergeant Baylis saw a male person stop at room 235. The person rapped and was admitted. The police stationed themselves near the door of room 235 and they overheard conversation emanating therefrom concerning 'bags' or 'bindles', the price of a 'quarter' and the effect of a 'hit'. Water was heard running and they smelled something that smelled like something burning. These observations indicated to Sergeant Baylis that something related to drug traffic was going on in the room and he decided to enter.

Sergeant Baylis inserted a passkey in the door of room 235 but before he turned it, he heard a female voice within say she had to go downstairs. Thereupon Sergeant Baylis stepped away from the door without turning the key and the door partially opened. It was immediately closed again and [65 MICHAPP 271] an officer said 'Police, open up' and he kicked the door. Shortly, a voice within said 'I'll open the door'. It was opened and the officers entered.

Inside, Officer Cross saw the bathroom door open partially and he saw a male person (later identified as defendant) peek out. Officer Cross approached the bathroom door; it closed and he forced it open. He observed defendant standing in front of the sink holding a syringe, a bottle cap and some tin foil in his right hand. Defendant threw these articles toward the toilet and the syringe went into the toilet, but the bottle cap and tinfoil fell on the floor. Officer Cross retrieved all of the articles, and later the syringe proved to contain heroin. In plain view on a table, there was a small wooden box with the lid open. In it were visible small tinfoil packets which later proved to contain heroin.

At the preliminary examination, defendant contested the admission in evidence of Mrs. Auslander's recitation of what she overheard of the telephone conversation between Nancy Witherspoon and the male caller and the subsequent use of that information by Sergeant Baylis. It was and is defendant's position that by monitoring that call Mrs. Auslander violated the Federal and state eavesdropping statutes. 18 U.S.C. § 2510 Et seq., M.C.L.A. § 750.539 Et seq.; M.S.A. § 28.807 Et seq. Thus, defendant argues, the illegally obtained information was inadmissible, and under the 'fruit of the poisonous tree' doctrine, Sergeant Baylis could not legally use that information. If this evidence and the use thereof by Sergeant Baylis was barred, defendant contended there was no probable cause for the police to enter room 235, arrest defendant and seize the evidence in question.

The district judge held that defendant was not [65 MICHAPP 272] an 'aggrieved person', as defined in 18 U.S.C. § 2510(11), and that under the limitation found in 18 U.S.C. § 2518(10)(a) defendant had no standing to raise the issue. The district judge further held that Mrs. Auslander overheard 'I've got drugs' accidently and that M.C.L.A. § 750.539e; M.S.A. § 28.807(5) did not bar the admission of that portion of the telephone conversation overheard by Mrs. Auslander. The balance of what Mrs. Auslander overheard was barred by the district judge under the state statute last referred to. The district judge found probable cause for the officers to enter room 235 and to arrest defendant and to seize the evidence in question which was received in evidence.

At the conclusion of the first hearing on the motions to suppress and to quash, the trial judge affirmed the district judge on the issue of defendant not being an 'aggrieved person' under the Federal statute. Although expressing some doubts that Mrs. Auslander overheard any of the telephone conversation accidentally, the trial judge affirmed the...