People v. Warner

• Decision Date: 01 October 1976
• Docket Number: No. 12,12
• Citation: 258 N.W.2d 385,401 Mich. 186
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dale WARNER, Defendant-Appellant
• Court: Michigan Supreme Court

Page 385

258 N.W.2d 385

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

No. 12 Oct. Term, 1976.

401 Mich. 186, 258 N.W.2d 385

Supreme Court of Michigan.

Oct. 4, 1977.

Raymond L. Scodeller, Ingham County Prosecutor, Lee Wm. Atkinson, Chief Appellate Atty., Lansing, for plaintiff-appellee.

State Appellate Defender Office F. Martin Tieber, Asst. Defender, Detroit, for defendant-appellant; Marie Colombo, Chris McElroy, Research Assistants, Roger L. Wotila, Detroit, of counsel.

WILLIAMS, Justice.

Defendant, charged with possession and attempted use of heroin, was arrested in a motel room as a result of a motel switchboard operator's divulgence to police of the contents of an intentionally intercepted telephone conversation. Defendant was neither shown to be a party to that conversation, nor present when it took place, and the police did not know or have reason to know that the interception was illegal.

Defendant in this Court contends that, under Michigan and federal law, testimony of the woman who intercepted the message as well as testimony of police officers as to what they saw and heard outside the motel room should be suppressed along with the narcotics seized in the warrantless search of that room. He contends that the primary illegality was the intentional interception of the phone call, and that this precluded that testimony from being used in court and tainted the subsequent police action outside of and in the motel room.

As fall-back, defendant contends that even if the police did not know or have reason to know that the information given them at the time of search was illegal, they did know it at the time of the rehearing on the motion to suppress and therefore could not divulge it. Further defendant contends he has standing to invoke 18 U.S.C. § 2518(10)(a)(i) because "circumstantial evidence * * * indicates that (he) was" a party to the conversation and therefore an "aggrieved person" within the meaning of the federal statute.

The prosecution claims that defendant does not have standing to challenge the illegal telephone interception, that there was no tainted nexus between the illegal intercept and the police raid and that there was probable cause for arrest for a felony being committed in the officers' presence We hold that under Michigan and federal statutory law, the interception of the telephone message was illegal, but defendant lacks standing to suppress it, and under federal law, defendant lacks standing to challenge the divulgence and evidence resulting therefrom. We further hold that, although defendant has standing under Michigan law to challenge the resulting evidence based on lack of probable cause and failure to obtain a warrant, these challenges fail on the facts. The Court of Appeals is affirmed.

and for the seizure of the narcotics in connection therewith, and that there was not reasonable time to secure a warrant.

I FACTS

Louise Auslander, co-manager of Motel 6, in connecting from the switchboard an outside call to room 235, registered to Nancy Witherspoon, overheard a female voice say, "I've got drugs", followed by the voice of the male caller (122a).

Mrs. Auslander immediately called the Lansing police. When Sergeant Baylis arrived at the motel she advised him of overhearing the telephone call and that Nancy Witherspoon had been making and receiving numerous calls. Sergeant Baylis then called the Prosecutor's office and reported what Mrs. Auslander had said. He was advised that due to the noon hour there was not time to get a warrant but that it "would be legally okay to go to the room and enter without the search warrant and seize the materials". (82a) Sergeant Baylis then called for uniformed police to assist him.

Sergeant Baylis subsequently got a pass key from Mrs. Auslander, walked past room 235 and let himself into room 231. As he did so, he saw Nancy Witherspoon admit defendant Warner into room 235. Although he had known Ms. Witherspoon through prior encounters, he had not seen her for over a year and did not recognize her at the time.

We adopt the Court of Appeals description of the facts from this point:

"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 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 tinfoil 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 "The district judge held that defendant was not an 'aggrieved person', as defined in 18 USC 2510(11), and that under the limitation found in 18 USC 2518(10)(a) defendant had no standing to raise the issue. The district judge further held that Mrs. Auslander overheard 'I've got drugs' accidentally and that MCLA 750.539e; MSA 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.

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 USC 2510 et seq.; MCLA 750.539 et seq.; MSA 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.

"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 district judge on the finding that 'I've got drugs' was overheard accidentally. This affirmance was based on the district judge's opportunity to see and hear the witness. For the foregoing reasons, the trial judge denied the motions to suppress and to quash.

"At the first session on rehearing, two former employees of Motel 6 testified that Mrs. Auslander had admitted to them that she had on occasion deliberately listened to telephone conversations between guests and outside callers. At the second session held June 13, 1974, the prosecuting attorney conceded that Mrs. Auslander had deliberately monitored the outside call to Nancy Witherspoon for reasons which Mrs. Auslander and the prosecuting attorney believed to be legitimate. The information which led to this concession was learned by the prosecutor that day. On the strength of this concession, the trial judge held that the evidence obtained from the monitored telephone conversation was illegally obtained and it was inadmissible. Without the evidence there was no probable cause to enter room 235 and to arrest defendant and to seize the evidence in question. The motions to suppress that evidence and to quash the information were granted." People v. Warner, 65 Mich.App. 267, 270-273, 237 N.W.2d 284, 285-287 (1975).

The People appealed this decision and the Court of Appeals reversed and remanded. That Court, relying on M.C.L.A. § 750.539e; M.S.A. § 28.807(5), found that Sergeant Baylis did not know or reasonably should know that Mrs. Auslander had illegally overheard "I've got drugs". The Court found that, prior to Mrs. Auslander advising the Prosecuting Attorney on June 13, 1974 that she had deliberately eavesdropped, there was nothing in the record indicating that what she did was other than an accidental and legal occurrence. As a result of this Sergeant Baylis had probable cause to proceed to room 235 for further investigation. The Court of Appeals further found that what was heard and observed outside room 235 established probable cause to enter the room and what they saw there in plain view...