Kivela v. Department of Treasury

536 N.W.2d 498, 449 Mich. 220

• Court: Michigan Supreme Court
• Decided: July 18, 1995
• Docket: 97196, (Calendar No. 12)
• Status: Published

Opinions

Mallett, J.

We granted leave in this case to determine whether evidence seized in an improper police search may be used in a separate and independent civil jeopardy tax assessment proceeding. More specifically, we are asked to determine whether financial records detailing sales and purchases of narcotics that were seized during a criminal investigation pursuant to an invalid search warrant are admissible for purposes of a civil tax assessment proceeding.

The Tax Tribunal held that the improperly seized records were admissible; however, the Court of Appeals reversed in favor of petitioner Diane Kivela. We reverse the Court of Appeals determination and find in favor of respondent Department of Treasury. In the intrasovereign context, we hold that in the absence of collusion, unlawfully seized evidence may properly be admitted for purposes of an independent civil tax assessment proceeding.

i

On July 7, 1989, police officers searched the home of petitioner Diane Kivela pursuant to a search warrant. The search warrant was issued on the basis of information provided by an informant who indicated that Ms. Kivela had been selling drugs since July, 1988. As a result of the search, the police officers seized four ounces of marijuana and several financial records documenting the sales and purchases of narcotics.

Kivela was charged with possession of marijuana with intent to deliver.¹ However, the charge was dismissed when the judge held that the search warrant was invalid because it was not supported by probable cause.

In the meantime, however, Kivela’s financial records were turned over to the Department of Treasury. On the basis of the illegally seized financial records, the department determined that Kivela owed unpaid sales, use, personal income, and single business taxes, together with penalties and interest. The department issued a jeopardy tax assessment of $26,079 for unpaid taxes on drug sales between July, 1988, and July, 1989, pursuant to MCL 205.26; MSA 7.657(26).²

Kivela filed a petition with the Tax Tribunal in which she argued that the Department, of Treasury could not use evidence seized during an illegal search as the basis for a civil tax case. Both Kivela and the Department of Treasury moved for summary disposition pursuant to MCR 2.116(C)(10). The Tax Tribunal granted the department’s motion for summary disposition, denied Kivela’s motion, and held that the evidence was admissible.

The Court of Appeals reversed,³ stating that "the Tax Tribunal is not permitted to base its jeopardy tax assessment upon unlawfully seized evidence, nor may the unlawful search and seizure serve as the triggering event for the tax assessment.” 200 Mich App 545, 552; 505 NW2d 11 (1993). The Court of Appeals noted:

The Michigan Constitution is construed to provide no greater protection against unreasonable searches and seizures than does the Fourth Amendment, absent a compelling reason to apply a different interpretation. Const 1963, art 1, § 11; People v Collins, 438 Mich 8, 11, 25-31; 475 NW2d 684 (1991); People v Cooke, 194 Mich App 534, 537; 487 NW2d 497 (1992). It does not necessarily follow, however, that Michigan’s exclusionary rule must be applied in the same manner as the federal exclusionary rule, nor is Michigan required to follow the interpretation offered by the Second Circuit Court of Appeals. Our Supreme Court , has acknowledged that Michigan’s exclusionary rule differs from and provides greater protection than that established by the United States Supreme Court. In re Jenkins, 437 Mich 15, 28; 465 NW2d 317 (1991). [Id. at 550.]

This Court granted the Attorney General’s application for leave to appeal. 447 Mich 987 (1994).

ii

It is undisputed that under federal authority, the financial records documenting the sales and purchases of narcotics seized from a defendant by one sovereign pursuant to an invalid search warrant, may be used as evidence in a civil tax assessment proceeding by another sovereign. United States v Janis, 428 US 433; 96 S Ct 3021; 49 L Ed 2d 1046 (1976).

In Janis, the United States Supreme Court held that evidence seized by state police officers pursuant to an invalid search warrant may be used in a civil suit brought by the Internal Revenue Service to determine the suspect’s tax liability. A Los Angeles police officer obtained a search warrant from a state court judge and seized $4,940 in cash and incriminating wagering records. The officer notified the irs that Mr. Janis had been arrested for bookmaking activities, and the irs levied upon the cash.

Although Mr. Janis was able to convince a state judge to quash the warrant in a state criminal proceeding, the United States Supreme Court held that "the judicially created exclusionary rule should not be extended to forbid the use in the civil proceeding of one sovereign of evidence seized by a criminal law enforcement agent of another sovereign.” Id. at 459-460. The Court reasoned that the deterrent effect of the exclusionary rule does not outweigh the societal cost that would result from the exclusion of incriminating evidence.

The United States Court of Appeals for the Second Circuit extended the rule of Janis to intrasovereign situations, and held that unconstitutionally seized evidence collected by federal agents could still be used by the irs to determine the suspect’s tax liability for narcotics-related income in a federal civil tax proceeding. Tirado v Comm’r of Internal Revenue, 689 F2d 307 (CA 2, 1982), cert den 460 US 1014 (1983). Similar to the reasoning in Janis, the Tirado court concluded that the deterrence rationale of the exclusionary rule was not furthered by excluding evidence that was seized without the contemplation of use in a subsequent civil tax proceeding. Thus, according to the Second Circuit Court of Appeals, the key inquiry in such cases is whether the unconstitutional search and seizure was motivated by the use of the evidence in the proceeding in which it is presented. The court stated:

Tax deficiency proceedings are too remote from the "zone of primary interest” of the narcotics agents who made the seizures in Tirado’s' apartment. As in Janis, it is not reasonable to suppose that a rule barring use of the evidence in a civil tax proceeding would have materially influenced those agents in their decision whether to make the particular seizures. . . . Nor would agents of the Drug Enforcement Agency be likely to harbor a general motivating interest in assisting the enforcement of civil tax obligations, [id. at 314.]

Therefore, Tirado does not prohibit the use of the federal exclusionary rule in all civil cases, but instead calls for an analysis of the facts of each case. Unless there is collusion between the agency that performed the illegal search and the agency seeking to admit the incriminating evidence, the evidence is admissible. See also Wolf v Comm’r of Internal Revenue, 13 F3d 189 (CA 6, 1993),⁴ and Adamson v Comm’r of Internal Revenue, 745 F2d 541 (CA 9, 1984).⁵

The United States Court of Appeals for the Sixth Circuit has taken a different approach than that found in Tirado, although reaching the same result as the Court of Appeals for the Second Circuit in Tirado.6 In Wolf, federal and local law enforcement officers searched the residence of Michael Wolf on two occasions and "seized 400.2 grams of cocaine, 201 pounds of marijuana, and $143,286 in cash.” Id. at 192.

Approximately four years after Wolf pleaded guilty to one count of possession with intent to distribute approximately twelve ounces of cocaine, the irs issued a notice of deficiency to Wolf when it recalculated his taxable income to include the seized cash, cocaine, and marijuana. The irs also asserted that Wolf negligently failed to report taxable income and wrongly filed a substantial understatement of tax. Id. at 191.

The Tax Court admitted the evidence of the cocaine, marijuana, and cash, and found that Wolf’s taxes were deficient and imposed additions to the tax.⁷ Mr. Wolf appealed, and the Court of Appeals for the Sixth Circuit affirmed.

In holding that the Fourth Amendment did not bar the admission of the illegally seized evidence, the court formulated a five-pronged balancing test to determine whether to apply the exclusionary rule to civil tax proceedings. The court considered the following factors:

1. The nature of the proceeding;

2. Whether the proposed use of unconstitutionally seized material is intersovereign or intrasovereign;

3. Whether the search and the second proceeding are initiated by the same agency;

4. Absent an explicit and demonstrable understanding between the two agencies, whether there is statutory regime in which both agencies share resources, particularly resources derived from one of the proceedings; and_

5. The relationship between the law enforcement responsibilities and expertise of the seizing officials and the type of proceeding at which the seized material is being offered.

Upon reaching the decision that the exclusionary rule does not bar the admission of illegally seized evidence during a criminal narcotics investigation in a civil tax proceeding, the court stated:

In this case, the use of the seized cash and drugs as evidence in subsequent civil tax proceedings cannot be said to have been within the zone of primary interest of Agent Brawner. The secondary tax proceedings were civil in nature. They were not intended to punish Wolf for his narcotics violations. Rather, the civil tax proceedings were designed to subject Wolf to the same tax requirements to which all citizens are subject, whether their income derives from legitimate or illegitimate sources. Also, there is no indication that the criminal narcotics investigation and the secondary civil tax proceeding were initiated by the same agency. Further, there was no indication of an explicit agreement between Agent Brawner and agents of the irs. . . . The only factor suggesting a relationship between the purposes of the allegedly unconstitutional search and the secondary civil tax proceedings is the fact that both were initiated by the same sovereign. This factor alone, however, is insufficient to suggest that there exists a close relationship between the purposes of the search and the secondary proceedings. In the absence of such a relationship, it is unlikely that application of the exclusionary rule would further deter future violations. We hold, therefore, that the exclusionary rule does not apply in this case. [Id. at 195-196.]

Thus, regardless of the methodology used, both federal circuits in Tirado and Wolf have rejected the application of the exclusionary rule in civil tax proceedings.

iii

Defendant does not dispute the fact that federal authority does not bar the use of unconstitutionally seized evidence in civil tax proceedings. The defendant continues to contend that the Michigan Constitution⁸ provides a greater protection than the Fourth Amendment of the United States Constitution.⁹ The Michigan rule on this issue was established in People v Nash, 418 Mich 196; 341 NW2d 439 (1983). See also Collins, supra at 25-29,¹⁰ and Cooke, supra at 537.

In Nash, supra at 207-215, 225-226, this Court held that the Michigan Constitution does not provide a greater degree of protection than the United States Constitution unless there is a "compelling reason” to impose a different interpretation. Mr. Carrón L. Nash was convicted by a jury of second-degree murder. However, the Court of Appeals reversed and remanded the case to the trial court, finding that evidence of the victim’s body should have been suppressed because it was discovered as a result of an illegal search. This Court reversed, holding that the evidence of the body was admissible. This Court reasoned that art 1, § 11 of the Michigan Constitution does not provide any greater protection than the Fourth Amendment of the federal constitution. Furthermore, there was no "compelling reason” to do so. See, e.g., People v Beavers, 393 Mich 554; 227 NW2d 511 (1975). The Court stated that the mere fact that weapons and narcotics were involved in the crime.was not compelling enough to create a higher standard per se. Nash, supra at 215. Thus, like the holding in Tirado, supra, the scope of the Michigan exclusionary rule depends on the facts of each case. See also People v Faucett, 442 Mich 153, 158; 499 NW2d 764 (1993), and Collins, supra at 27-29.

This rule was further clarified in Sitz v Dep’t of State Police, 443 Mich 744, 749-763; 506 NW2d 209 (1993). The issue was whether sobriety checkpoint roadblocks, at which motor vehicles are stopped despite the lack of probable cause or suspicion that the driver might be intoxicated, violate art 1, § 11 of the Michigan Constitution. In finding that sobriety checkpoints violate our state constitution, the Court stated that, "claims that art 1, § 11 should be interpreted more expansively than the Fourth Amendment must rest on more than a disagreement with the United States Supreme Court.” Id. at 752-753.

Although Sitz found that Const 1963, art 1, § 11, provided greater protection than is found in the Fourth Amendment, the Court also stated that "[p]roperly understood, the Nash rule compels neither the acceptance of federal interpretation nor its rejection. In each instance, what is required of this Court is a searching examination to discover what law 'the people have made.’ People v Harding, 53 Mich 481, 485; 19 NW 155 (1884).” The Sitz Court further stated:

Today we clarify that the compelling reason test must be interpreted in the context of our observation that the [antiexclusionary-rule] proviso [of Const 1963, art 1, § 11] should not be read as "an interdiction” of the first two clauses, under which this Court "created a body of state constitutional search and seizure law and addpted an exclusionary rule, all before either was subject to a federal floor.” Nash, supra at 214. Thus, "compelling reason” should not be understood as establishing a conclusive presumption artificially linking state constitutional interpretation to federal law. As illustrated by the question presented today, a literal application of the term would force us to ignore the jurisprudential history of this Court in favor of the analysis of the United States Supreme Court announced in Sitz.

The judiciary of this state is not free to simply engraft onto art 1, § 11 more "enlightened” rights than the framers intended. By the same token, we may not disregard the guarantees that our constitution confers on Michigan citizens merely because the United States Supreme Court has withdrawn or not extended such protection. [Id. at 758-759.]

IV

On the basis of the foregoing, the Court of Appeals correctly stated that the "Michigan Constitution is construed to provide no greater protection against unreasonable searches and seizures than does the Fourth Amendment, absent a compelling reason to apply a different interpretation.” 200 Mich App 550, citing Collins, supra at 11 and 25, and Cooke, supra at 537. However, the Court of Appeals incorrectly found that the failure to apply the exclusionary rule would frustrate the deterrent purpose of the rule. We can find no compelling reason to interpret the federal and state constitutions differently. To read the exclusionary rule as providing a greater protection than that established by the federal constitution would serve to render this Court’s pronouncement in Nash, Collins, and Sitz a nullity.

We find little or no support for the conclusion that Michigan law provides a broader suppression remedy. First, in Collins, supra at 31, this Court stated that "[although a number of appellate decisions have referred to the compelling reason standard, little in the way of guidance has been provided concerning its contours and meaning.” The Court suggested, however, that the analysis start with a comparison of the text of the state and federal constitution. When comparing the texts at issue, this Court concluded that "the historical record clearly indicates that the people of Michigan had no intention of imposing more stringent restrictions on law enforcement than is mandated by the Fourth Amendment.” Id. at 32-33, citing Nash, supra at 213.¹¹_

Second, we find no "compelling reasons” to hold that the Michigan Constitution provides a greater suppression remedy.¹² The Court of Appeals focused on three possible reasons why the Michigan and federal constitutions should be interpreted differently: (1) the failure to apply the exclusionary rule in this case would frustrate the deterrent purpose of the rule, (2) the burden on the defendant to prove, collusion between the agency that seized the evidence and the agency seeking to admit the evidence is too great, and (3) criminal cases could be used as a "mere” pretext to civil cases. 200 Mich App 550-552.

These concerns have been addressed in Janis and Tirado, supra. In Janis, the United States Supreme Court recognized that the judicially created exclusionary rule is to deter unlawful police conduct. " 'In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.’ ” Id. at 446, quoting United States v Calandra, 414 US 338, 348; 94 S Ct 613; 38 L Ed 2d 561 (1974). However, the Supreme Court held that the deterrent purpose does not extend to evidence subsequently used in civil cases because "[i]t falls outside the offending officer’s zone of primary interest.” Janis at 458. When the Janis rule was extended to intrasovereign situations, the Tirado court similarly held that the deterrent purpose of the exclusionary rule would not be furthered by barring illegally seized evidence from criminal cases.

We agree. Allowing the evidence in this case to be admitted into evidence for purposes of a civil tax proceeding would not hinder the deterrent effect of the exclusionary rule and would not increase the use of criminal cases. as a "mere” pretext for civil cases. The civil tax proceeding in this case is wholly independent of any criminal prosecutions, and there is no evidence that the law enforcement agents who seized the incriminating financial records were motivated by an unethical desire to illegally assist the Department of Treasury.

Because there is no evidence of. bad faith, collusion between agencies, or unethical behavior on the part of the law enforcement agents, allowing the evidence to be admitted in the civil tax proceeding will affect neither the deterrence of the exclusionary rule nor allow an increase in the use of criminal cases as a mere pretext for civil cases. Evidence unlawfully secured by criminal law enforcement agents with the intent to unethically and illegally assist civil law enforcement authorities is not admissible.

We do not find the burden on defendants to show collusion between agencies too great. The burden on defendants is the same for federal and state defendants, thus there is no reason to interpret the federal and state laws differently. With some of the most liberal discovery rules present in Michigan, the burden on Michigan defendants actually seems less than the burden for federal defendants. See MCR 6.201.

Furthermore, unlike the contention of the Court of Appeals, Lebel v Swincicki, 354 Mich 427, 435-440; 93 NW2d 281 (1958) and McNitt v Citco Drilling Co, 397 Mich 384; 245 NW2d 18 (1976), do not support the defendant’s arguments. Although these cases state that "Michigan’s exclusionary rule [has in certain cases been applied] in civil proceedings,” Lebel and McNitt involved removal of blood from a living person, a degree of intrusiveness not present when police armed with a warrant search one’s home. We find these cases inapplicable to the instant case.

Similarly, under the Wolf balancing test, we reach the identical conclusion that the evidence seized in the present case was properly admitted in the civil tax proceeding. By balancing each of the five Wolf factors, we conclude that an application of the exclusionary rule in the instant case would not deter future violations of the Fourth Amendment.

The first prong we must consider, is the nature of the civil tax proceeding. The tax proceeding at issue is a jeopardy tax assessment initiated by the Department of Treasury for unpaid taxes on drug sales between July, 1988, and July, 1989, pursuant to MCL 205.26; MSA 7.657(26). Unlike the dissent, we do not view this proceeding as "quasi-criminal.”

Although it is undeniable that the jeopardy statute at issue is used frequently to aid the taxing of criminal activity, the jeopardy tax statute is not quasi-criminal. Paying taxes is a task shared by all citizens of this state, criminals and noncriminals alike. The jeopardy tax statute simply aids in taxing those who "intend[ ] quickly to depart from the state or to remove property from this state, to conceal the person or the person’s property in this state, or to do any other act tending to render wholly or partly ineffectual proceedings to collect the tax unless proceedings are brought without delay . . . .” MCL 205.26; MSA 7.657(26). Thus, unlike the dissent, we do not view the jeopardy tax proceedings as a "de facto punishment for individuals who are involved in inherently suspect criminal activities.” Cavanagh, J., post at 249. Rather, we view MCL 205.26; MSA 7.657(26) as an aid that allows the Department of Treasury to tax all citizens equally, even in the face of fear that some citizens will quickly remove property or depart from this state.

Moreover, we find it unnecessary to even define a jeopardy tax assessment as criminal or quasi-criminal. The exclusionary rule is designed to protect defendants from illegal searches and seizures, and to deter police officers from violating a person’s Fourth Amendment rights. In this case, the defendant already reaped the benefits of the exclusionary rule. She avoided a long prison sentence. If we were to extend the exclusionary to civil tax proceedings, we would not only allow this defendant to avoid a long prison sentence, but she would also be allowed to avoid paying the taxes that every citizen of this state must incur.

Second, the Wolf test requires that we determine whether the proceedings were intersovereign or intrasovereign. We find that the secondary proceedings were intrasovereign. It is undeniable that both the Western Wayne Narcotics team officers and the Department of Treasury are intrasovereign because both are agencies of this state. However, as in Wolf although intrasovereign proceedings do weigh in favor of applying the exclusionary rule, "[t]his factor alone ... is insufficient to suggest that there exists a close relationship between the purposes of the search and the secondary proceedings.” Id. at 195.

Third, it is abundantly clear that the criminal and tax proceedings were instituted by different agencies. This most definitely weighs against applying the exclusionary rule in this case. Even the dissent acknowledges that the proceedings were instituted by different agencies, but skirts the issue by recognizing that Governor Engler transferred the Tax Fraud Division from the Department of Treasury. Executive Reorganization Order No. 1992-8, issued December 18, 1992, as Executive Order No. 1992-25 (effective March 15, 1993) (may also be found at MCL 28.701; MSA 21.314[5]). It is true that there is an Executive Reorganization Order that transferred the Tax Fraud Division from the Department of Treasury to the Department of State Police; however, because the effective date of the order was not until March 15, 1993, it does not affect this case.

The last two prongs of the Wolf test require this Court to determine whether there was an "explicit and demonstrable understanding” between the two agencies involved in the case, and examine the relationship between the seizing officials and "zone of interest” of the seizing officials. The dissent argues that the record "reveal[s] curious facts” and argues that "this case reveal[s] a nexus that is simply too close for comfort . . . .” Cavanagh, J., post at 259, 260. However, the dissent acknowledges that there is "no specific proof of cooperation or collusion” in this case. Id. at 258.

In the absence of more than "curious facts” and agreeing with the dissent that there is no direct evidence of bad faith, collusion between the agencies, or unethical behavior on the part of the law enforcement agents, we conclude that the Court of Appeals incorrectly found that evidence seized in an improper police search may not be used as the basis of an independent civil jeopardy tax assess- . ment proceeding. Accordingly, we reverse the decision of the Court of Appeals and reinstate the order of the Tax Tribunal.

Brickley, C.J., and Boyle, Riley, and Weaver, JJ., concurred with Mallett, J.

1 MCL 333.7401(2)(c); MSA 14.15(7401)(2)(c).

2 MCL 205.26; MSA 7.657(26) provides:

If the commissioner . . . finds that a person liable for a tax administered under this act intends quickly to depart from the state or to remove property from this state, to conceal the person or the person’s property in this state, or to do any other act tending to render wholly or partly ineffectual proceedings to collect the tax unless proceedings are brought without delay, the commissioner . . . shall give notice of the findings to the person, together with a demand for an immediate return and immediate payment of the tax. A warrant . . . may issue immediately upon issuance of a jeopardy assessment. Thereupon, the tax shall become immediately due and payable. If the person is not in default in making a return or paying a tax prescribed by this act, and furnishes evidence satisfactory to the commissioner . . . under rules promulgated by the department that the return will be filed and the tax to which the commissioner’s . . . finding relates will be paid, then the tax shall not be payable before the time otherwise fixed for payment.

3 Murphy, P.J., and Wahls, J., formed a majority, while Judge Michael J. Kelly concurred in the result only.

4 Wolf involved whether the exclusionary rule bars the admission of illegally seized evidence during a criminal narcotics investigation in a civil tax proceeding. In holding that the exclusionary rule does not apply to facts, the Sixth Circuit Court of Appeals commented as follows:

The Supreme Court has required that the deterrence effect must be balanced against the "substantial cost on societal interest in law enforcement by its proscription of what concededly is relevant evidence.” . . . Accordingly, to determine whether the exclusionary rule applies in any particular context, a court must determine whether application of the rule is deemed substantially likely to deter future violations of the Fourth Amendment. [Id. at 193, citing Janis at 453-454; Stone v Powell, 428 US 465, 484; 96 S Ct 3037; 49 L Ed 2d 1067 (1976); Tirado at 310.]

5 Adamson, like Wolf, dealt with whether the exclusionary rule bars the Internal Revenue Service from using illegally obtained evidence in a civil tax proceeding. The Ninth Circuit Court of Appeals held that because the evidence was not obtained in bad faith, the evidence was admissible for purposes of a jeopardy tax assessment against Adamson. The court stated:

"[W]e do not deal here with egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.” [Adamson, supra at 545.]

6 The dissent in the instant case states that " Wolf rejected Tirado’s approach that focused predominately on the 'primary zone of interest’ of the officer who had conducted the search.” Cavanagh, J., post at 243-244 (citations omitted). We wholly disagree with such a statement. The Wolf court merely stated that "[t]o rely primarily on the existence of a correlation between an officer’s expertise and authority and the subsequent proceedings, if taken to its logical conclusion, would produce bizarre results.” Wolf, supra at 194 (emphasis added). This statement by the Wolf court does not demonstrate a "rejection” of the Tirado approach, as represented by the dissent. Instead, it expresses the desire to expand the inquiry to include other important factors and to not "rely primarily on the existence of a correlation between the officer’s expertise and authority and the nature of the subsequent proceedings.” Id. (emphasis added).

Furthermore, the dissent cleverly fails to recognize that the Wolf court reached the same conclusion as the Tirado court, despite the introduction of the Wolf balancing test. Thus, unlike the dissent, we do not view the Wolf analysis as a complete rejection of Tirado, since there simply is no support for such a contention. Rather, we rationally view Wolf as an extension and clarification of Tirado.

7 The Tax Court, for purposes of the tax proceeding, assumed that Wolf’s Fourth Amendment rights were violated. Id. at 192, n 1.

8 The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state. [Const 1963, art 1, § 11.]

9 The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [US Const, Am IV.]

10 People v Collins, dealt with whether recorded evidence of a conversation between Collins and a police informant without a valid search warrant was admissible in a criminal trial. This Court noted that it is now well settled that participant monitoring such as was the situation in this case does not violate the Fourth Amendment of the United States Constitution. Thus, on finding that there were no "compelling reasons” to interpret art 1, § 11 of the Michigan Constitution any differently than the Fourth Amendment, this Court held that the evidence was admissible.

11 [In Nash], Justice Brickley explained that when art 1, § 11 was under consideration by delegates to the 1961 convention, the focus of their concern was on the effect of the then recently decided case of Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961), which required the states to apply the exclusionary rule to Fourth Amendment violations in all cases. Fearing that Mapp had invalidated the third sentence of Const 1908, art 2, § 10, the Committee on Declaration of Rights, Suffrage, and Elections proposed at one point that the following language be substituted for that portion: " 'Evidence obtained in violation of this section shall not be used except as authorized by law.’ ” 418 Mich 211. Far from attempting to expand the protection of the state’s constitutional provision, the committee preferred the substitute language because it would permit "the possibility of a less stringent application of the exclusionary rule if allowed by federal law . . . .”31

. . . Choosing to retain the third sentence aimed at the exclusionary rule, the convention made only stylistic improvements in the wording of art 1, § 11 before adopting and recommending it to the people.

31 418 Mich 212 (quoting Committee Proposals and Reports, Constitutional Convention 1961, Supporting Report, Committee Proposal No 15, pp 7,10).

[Collins, supra at 27-28.]

The Court in Collins pointed to the following language from the Constitutional Convention of 1961:

"The time” is now and the place is here to retain in our constitution in improved form the proviso which will protect the law-abiding citizen and the law enforcement officer.

“Should this proviso later be struck down by the courts as violative of the federal constitution the resulting license of the hoodlum, the burglar, the highwayman, the bank robber, and the narcotics peddler, will be chargeable to those courts and not to this convention.” [Id. at 28, n 33, citing 1 Official Record, Constitutional Convention 1961, p 496. See also People v Smith, 420 Mich 1, 20; 360 NW2d 841 (1984), and People v Catania, 427 Mich 447; 398 NW2d 343 (1986), in which the Court did not find a meaningful distinction between the texts of the federal and state constitutions.]

12 The dissent in the instant case ignores the fact that there is no compelling reason to interpret the state constitution differently than the federal constitution. By failing to show a compelling reason, the dissent successfully ignores this Court’s holding in Nash, supra, where this Court stated that the Michigan Constitution does not provide a greater degree of protection than the federal constitution unless there is a "compelling reason” to do so. Nash, supra at 207-215 and 225-226.