People v. Catania

398 N.W.2d 343, 427 Mich. 447

• Court: Michigan Supreme Court
• Decided: December 30, 1986
• Docket: Docket Nos. 76742, 76743, (Calendar No. 7)
• Status: Published

Opinions

Boyle, J.

In this case, an undercover police agent obtained entry into the defendant’s home by feigning car trouble and asking to use the telephone. During the half-hour that the agent was in the home, the defendant offered her marijuana which the two smoked. The agent left, and a search warrant was obtained on the basis of evidence of criminal activities obtained by the agent while in the home. The Court of Appeals held that probable cause was required to support a ruse entry such as the one in this case. Because we find no violation of the Michigan or the United States Constitution, we reverse.

I

PACTS

On March 10, 1981, the Berrien County Metro Narcotics Squad sent JoAnn Ward, an attractive young undercover police informant, to Donald Catania’s home to attempt to purchase drugs. She had been told that there was possible drug trafficking at his residence. Ward had worked as an informant at least thirty times before.

Around 7:30 p.m., Ward knocked at Catania’s back door and asked to use his telephone because of feigned car problems. She also gave a fictitious name for herself. After using the telephone, she said that she was on her way to a party, her car had overheated, and she just needed a little bit of time for it to cool down. After discussing the fact that she was going to a party and its location, Catania suggested that if she wanted to, they could smoke a "joint.” At that point, the defendant walked over to the kitchen counter and produced a tray upon which there was a plastic baggie containing suspected marijuana, a "roach clip,” and some cigarette rolling papers. He then rolled a cigarette of suspected marijuana and smoked it with Ward. While "smoking” the cigarette,¹ Ward asked the defendant if he lived at that house by himself, to which he replied, "Yeah.”

Before Catania produced the tray of marijuana, Ms. Ward had not discussed or asked for any drugs. The defendant initiated the talk about marijuana. Ward did not look for or see any marijuana before the defendant produced the tray.

After smoking the cigarette, Ward asked if she could possibly get a couple of "joints” for the road. The defendant declined because he didn’t have enough. Ward then asked if he knew whether there was any "coke” (cocaine) around, to which the defendant replied, "What do you think you fell into here?” Ward and defendant had some discussion about her possibly meeting him at a bar the next evening. She was in the defendant’s residence for a total period of approximately one-half hour.

On the basis of the information obtained by Ward, a complaint, affidavit, and search warrant were prepared by the Metro Narcotics Squad. Upon searching his home, the police found a variety of incriminating evidence: a large garbage bag filled with a bale of marijuana, a plastic bag of cocaine, several thousands of dollars in cash, and various drug paraphernalia.² This evidence was admitted at Catania’s trial, and he was convicted by a jury of one count of possession with intent to deliver cocaine and one count of possession with intent to deliver marijuana.

Defendant claims that his consent to Ms. Ward’s entry into his home was not voluntary and knowing and that Ms. Ward’s presence in his home was an unconstitutional search without a warrant. Therefore, Catania urges that the fruits of the search — the evidence obtained pursuant to a warrant based upon Ms. Ward’s investigation — be suppressed. A split panel of the Court of Appeals agreed. People v Catania, 140 Mich App 755; 366 NW2d 38 (1985). Because we find no violation of the Michigan and United States Constitutions, we reverse the decision of the Court of Appeals and reinstate the defendant’s conviction.

ii

The initial focus is upon whether either the Fourth Amendment of the United States Constitution or Const 1963, art 1, § 11 is implicated in this case. The Fourth Amendment provides:

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 .... [US Const, Am IV.]

The analogous provision of the Michigan Constitution provides:

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.]

Under "black letter” search and seizure law, a search without a warrant is considered unreasonable per se, and thus is invalid, unless it falls within "a few specifically established and well-delineated exceptions.”³ Mincey v Arizona, 437 US 385, 390; 98 S Ct 2408; 57 L Ed 2d 290 (1978).

One situation in which neither a warrant nor probable cause is required is where the police obtain the suspect’s consent to a search. In Schneckloth v Bustamonte, 412 US 218; 93 S Ct 2041; 36 L Ed 2d 854 (1973), the Court considered the nature of consent required under the constitution where known police agents conducted a search without a warrant after obtaining the permission of the suspect. Rejecting a requirement that the suspect make "an intentional relinquishment or abandonment of a known right,” id., p 235, the Court held that a showing of traditional voluntariness was sufficient:

[W]hen the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances .... [Id., pp 248-249.]

The primary concern of the Schneckloth Court was to ensure the suspect’s freedom from governmental coercion in agreeing to the search. Id., p 228.

In cases where the government agent is undercover, the government coercion about which the Schneckloth Court was concerned is not present. Indeed, while Schneckloth assumed that a search occurred, commentators on the type of undercover activities involved in this case differ on whether a consensual ruse entry removes the activity from the protection of the Fourth Amendment altogether (no search) or is an exception to the warrant requirement. See, e.g., Gardner, Consent as a bar to Fourth Amendment scope — A critique of a common theory, 71 J Crim L & Criminology 443, 443-444 (1980); Warner, Comments, Governmental deception in consent searches, 34 U Miami L R 57 (1979). We believe that in cases of this sort, where entry by an undercover agent is effected solely by the invitation of the defendant, albeit under a misconception as to the agent’s identity and purpose, there is no Fourth Amendment or Const 1963, art 1, § 11, activity so long as the agent does not exceed the scope of the invitation. The majority of courts considering this question agree. See, generally, Anno: Officer's ruse to gain entry as affecting admissibility of plain-view evidence— Modern cases, 47 ALR4th 425, § 2(a).

A review of the relevant United States Supreme Court cases supports this view.⁴ Hoffa v United States, 385 US 293; 87 S Ct 408; 17 L Ed 2d 374 (1966), most clearly parallels the instant case. Partin, one of Hoffa’s Teamster associates, became a government informant. Under guise of friendship, Partin was privy to ostensibly private conversations in Hoffa’s hotel suite in which Hoffa planned to bribe the jurors in his trial for jury tampering. Partin relayed the conversations to the government and testified against Hoffa in the subsequent trial for jury tampering. A four-member majority⁵ in Hoffa found that there was no Fourth Amendment activity involved. Justice Stewart first described the scope of Fourth Amendment protection:

What the Fourth Amendment protects is the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile. There he is protected from unwarranted governmental intrusion. [Id., p 301.]

Then Justice Stewart turned to the crux of the Fourth Amendment consent question and said, “Neither this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” Id., p 302. The Hoffa opinion essentially held that citizens assume the risk that their associates may be undercover agents. Id., p 302.

In Lewis v United States, 385 US 206; 87 S Ct 424; 17 L Ed 2d 312 (1966), a case decided the same term as Hoffa, the Court rejected the argument that, absent a warrant, "any official intrusion upon the privacy of a home constitutes a Fourth Amendment violation and that the fact the suspect invited the intrusion cannot be held a waiver when the invitation was induced by fraud and deception.” Id., p 208. The brief majority opinion by Chief Justice Earl Warren focused on the specific facts of the Lewis case and held that there was no search because Lewis had converted his home into a commercial center, inviting clients to enter to conduct illegal business, and the agent had seen nothing that Lewis had not intended the agent to see. Id., p 210.

The next term, the Court considered the scope of Fourth Amendment protections, reaffirming the Hoffa and Lewis results. In Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967), the Court abandoned the physical trespass test⁶ for determining interests protected under the Fourth Amendment. Instead, the Court held that government monitoring of telephone calls made from a public telephone booth was a search requiring a warrant under the Fourth Amendment because the monitoring violated Katz’ reasonable expectation of privacy. The currently accepted test^{7 8}for determining whether governmental activity infringes upon a protected interest is set forth in Justice Harlan’s concurrence in Katz:

[T]here is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable.” [Id., p 361.[⁸]

The first requirement, a subjective actual expectation of privacy, is clearly implicated in cases like the one at bar. The Katz majority observed that "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Id., p 351 (citing Lewis). Justice White, concurring in Katz, observed in a footnote:

When one man speaks to another he takes all the risks ordinarily inherent in so doing, including the risk that the man to whom he speaks will make public what he has heard. The Fourth Amendment does not protect against unreliable (or law-abiding) associates. [Id., p 363. Citing Hoffa.]

The choice of Hoffa and Lewis to open their otherwise private areas to the view of an undercover informant can be thus viewed as creating an area outside the protection of the Fourth Amendment.

In United States v White, 401 US 745; 91 S Ct 1122; 28 L Ed 2d 453 (1971), the United States Supreme Court once again faced the question of evidence obtained by undercover government agents. In White, a government informant wore a concealed radio transmitter which enabled his conversations with the defendant to be monitored by government agents. One conversation occurred in the defendant’s home, one in a restaurant, and the rest in either the informant’s car or home. When the informant was unavailable to testify at trial, the agents who monitored the conversations were allowed to testify. The question in White was whether the electronic transmittal of the conversations was invalid under the Fourth Amendment. Again the Court upheld the activity, while failing to achieve agreement on why the activity was permissible.

Justice White’s plurality opinion⁹ affirmed the validity of Hoffa’s conclusion that citizens assume the risk that their associates may be government informants and that communications made to such agents are not within the protection of the Fourth Amendment:

Hoffa v United States, 385 US 293 (1966), which was left undisturbed by Katz, held that however strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with the authorities. In these circumstances, "no interest legitimately protected by the Fourth Amendment is involved,” for that amendment affords no protection to "a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” Hoffa v United States, at 302. No warrant to "search and seize” is required in such circumstances, nor is it when the Government sends to defendant’s home a secret agent who conceals his identity and makes a purchase of narcotics from the accused, Lewis v United States, 385 US 206 (1966), or when the same agent, unbeknown to the defendant, carries electronic equipment to record the defendant’s words and the evidence so gathered is later offered in evidence. Lopez v United States, 373 US 427 [83 S Ct 1381; 10 L Ed 2d 462] (1963). [Id., p 749.]

Since such encounters could constitutionally be written down or otherwise communicated by the agent to outsiders under the Court’s earlier opinions, Justice White reasoned that the simultaneous electronic broadcast of a conversation by a consenting participant to outside listeners was no different in a constitutional sense. Id., pp 751-752. The risk assumed is essentially the same:

Inescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police. If he sufficiently doubts their trustworthiness, the association will very probably end or never materialize. But if he has no doubts, or allays them, or risks what doubt he has, the risk is his. In terms of what his course will be, what he will or will not do or say, we are unpersuaded that he would distinguish between probable informers on the one hand and probable informers with transmitters on the other. [Id., p 752.]

Furthermore, the plurality was "not prepared to hold that a defendant who has no constitutional right to exclude the informer’s unaided testimony nevertheless has a Fourth Amendment privilege against a more accurate version of the events in question.”¹⁰ Id., p 753._

Since the spate of undercover cases which surfaced between 1966 and 1970, the United States Supreme Court has not directly faced the problem of the instant case. However, later cases indicate that the Hoffa and White assumption of risk analyses are valid in determining whether there is an invasion of a reasonable expectation of privacy. See, e.g., Smith v Maryland, 442 US 735; 99 S Ct 2577; 61 L Ed 2d 220 (1979) (no reasonable expectation of privacy in the numbers dialed on a home telephone) (five-member majority); United States v Miller, 425 US 435, 442-444; 96 S Ct 1619; 48 L Ed 2d 71 (1976) (no reasonable expectation of privacy in bank records) (seven-member majority). The various federal circuits and several state courts, however, have recently dealt with the validity of evidence obtained via a ruse entry without a warrant where the deceit involves the agent’s purpose as well as identity.

Generally, the federal circuit courts of appeal have upheld evidence obtained by virtue of ruse entries effectuated by undercover agents. Several circuits have rejected the very argument made in this case: that where entry is obtained by governmental deception concerning identity and the "purpose” of the entry, the entry is an unconstitutional search, and the fruits of the entry must be suppressed. For example, in United States v Wright, 641 F2d 602 (CA 8, 1981), the court upheld evidence obtained by a warrant supported with evidence of narcotics activity seen when the defendant opened his motel room to help the government agents who had claimed they were having car trouble. Likewise, in United States v Scherer, 673 F2d 176 (CA 7, 1982), the court upheld a search based upon evidence of firearm violations seen while undercover agents of the Bureau of Alcohol, Tobacco and Firearms were on the property purportedly to build duck blinds. In United States v Baldwin, 621 F2d 251 (CA 6, 1980), the court approved evidence obtained by an undercover agent who lived in the defendant’s home as an employee/associate of the defendant.

In approving these ruse entries, the courts noted that the Fourth Amendment "does not protect wrongdoers from misplaced confidence in their associates,” id., p 252; that the defendants invited the agents to enter and, without exceeding the scope of the invitations, the agents saw illegal activities or evidence of such; Scherer, supra, p 182; Wright, supra, p 604. Because the agents saw only the illegal activities which were revealed by the defendants or which were in the plain view of the agents while within the scope of the invitations, there was no Fourth Amendment activity: "What a person knowingly exposes to the public even in his own home or office, is not a subject of Fourth Amendment protection.” Wright, supra, p 604 (quoting Katz). In Wright, the court quoted from a Ninth Circuit case finding no Fourth Amendment violation where an undercover agent entered allegedly to set up a narcotics deal:

[A]n officer may legitimately obtain an invitation into a house by misrepresenting his identity .... If he is invited inside, he does not need probable cause to enter, he does not need a warrant, and, quite obviously, he does not need to announce his authority and purpose. Once inside the house, he cannot exceed the scope of his invitation by ransacking the house generally, but he may seize anything in plain view. [Wright, supra, p 604. Quoting United States v Glassel, 488 F2d 143, 145 (CA 9, 1973). Citations omitted.]

Thus, these federal courts rejected arguments that ruse entries were invalid under the Fourth Amendment merely because the agents had engaged in deceit vis-á-vis the alleged purpose of the entry as well as their identities.¹¹

In State v Poland, 132 Ariz 269; 645 P2d 784 (1982), the Supreme Court of Arizona considered whether evidence obtained via a ruse entry without a warrant by undercover agents who entered for an ostensibly legitimate purpose was validly admitted. During surveillance of Poland’s home, the agents learned that the home Poland was renting was for sale. They contacted the realtor and, posing as prospective buyers, toured the home. During that tour, evidence was obtained which was used to furnish probable cause for a search warrant. Id., p 277. The Arizona court rejected the assertion that an agent’s initial entry violated the Fourth and Fourteenth Amendments because it was effected by "misrepresenting his identity and purpose . . . Id. In the view of that court, the true purpose of an undercover agent’s entry is always different than the suspect believes; the proper question is whether the government intrusion stays within the scope of the suspect’s consent:

[Defendant's reliance on the purpose as the distinguishing factor between permissible and impermissible searches is, we believe, misplaced. In the case of a deceitful entry, the law enforcement agent’s purpose will, by definition, be different than that contemplated by the suspect. In the instant case, the agent may see only what any prospective buyer would expect to see. To hold that the validity of the search in the case of deceitful entry depends upon whether the purpose of the agent in entering the premises was the same as the reason the suspect allowed him to enter, would make all deceitful entry searches unconstitutional. The distinction, then, between permissible and impermissible intrusions turns on what the suspect, as a result of the agent’s deceit, has chosen to show to the one entering the premises. [Id., pp 277-278. Emphasis added.]

Although the Arizona court reversed the conviction on other grounds, the evidence obtained via ruse entry was thus upheld because, under Katz, " '[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.’ ” Id., p 278 (citing Katz, supra). See also People v Nisser, 189 Colo 471; 542 P2d 84 (1975). But see State v Ahart, 324 NW2d 317 (Iowa, 1982) (ruse entry requires justifiable and reasonable belief that criminal activity is occurring) and Guidry v State, 671 P2d 1277 (Alas, 1983) (search upheld where no moral or legal compulsion occurred, entry to home was not intended, officers did not exceed scope of invitation, and the entry was not a random canvass).

Hi

In this case, Donald Catania invited agent Ward into his kitchen. Ward did not use any exercise of governmental power or authority to effect her entry. While in Catania’s home, Ward did not exceed the boundaries of the invitation extended to her. Catania displayed marijuana to Ward and invited her to smoke it with him. Under these circumstances, no search under the Fourth Amendment to the United States Constitution or art 1, § 11 of the Michigan Constitution occurred.

Donald Catania invited JoAnn Ward into his home and exposed his possession of marijuana to her. In Katz v United States, supra, p 351, the United States Supreme Court observed that "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Catania knowingly exposed marijuana to JoAnn Ward. The only thing that Catania did not know was that Ward was an undercover police informant. Should this Court invalidate the later search on this basis? We believe not. In Hoffa v United States, supra, p 302, the four-member majority opinion noted that "[njeither this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” So, too, in this case, Donald Catania’s misplaced belief that JoAnn Ward would not reveal his illegal activities is not protected by the United States or Michigan Constitutions. Catania, upon inviting Ward into his home, no longer had a reasonable expectation of privacy in what he revealed to her. In the Katz dichotomy, he no longer had either a subjective expectation of privacy or one that society recognizes as protected.

We agree with the observation of the Arizona Supreme Court in State v Poland, supra, that a distinction between ruse entries where illegal purposes are apparent at the inception and entries with apparently legitimate purposes does not determine the validity of the entry. Even where an undercover agent purportedly enters for an avowedly illegal purpose, the true purpose of the agent — gathering evidence to convict those involved in the criminal activities — is, ideally, always concealed. The only reason for requiring an undercover agent to give "notice” ahead of time of an interest in the defendant’s illegal activities would be to give the defendant a "head start” on the search and seizure "game.”

There is no basis in this case for holding that the Michigan Constitution, art 1, § 11, permits greater protection than the United States Constitution.¹² In People v Smith, 420 Mich 1, 20-28; 360 NW2d 841 (1984), this Court adopted the "reasonable expectation of privacy” standard of Katz to define the interests protected under Const 1963, art 1, § 11. We find no basis in Const 1963, art 1, § 11 to conclude that Mr. Catania had a reasonable expectation of privacy in the activity he engaged in in Ms. Ward’s presence. In the instant case, Donald Catania assumed a risk when he offered drugs to a total stranger that she would communicate what she saw to the world. Since no persuasive reason has been advanced to interpret Const 1963, art 1, § 11 as prohibiting the activities allowed in this case under the Fourth Amendment,¹³ we decline such an interpretation in this case. See People v Nash, 418 Mich 196, 208-215; 341 NW2d 439 (1983).

The trial court, denying the defendant’s motions to suppress, applied the proper legal reasoning to the facts of this case:

There is an old adage that a secret is no longer a secret when more than one person knows it. A person’s secret and his privacy in regards thereto can be made public by his own voluntary actions.

Now, when a person voluntarily allows another person into his home, he waives secrecy and his privacy sofar as what that person may observe within the scope of the permission given. He takes that person for what he or she actually is; a "gossip,” a "snitch,” or in this case, an undercover agent. At that point, of course, upon entry, the plain view doctrine applies.

However, in the case before us, based on the record, the marijuana was not originally in plain view, but it was later voluntarily placed in plain view by Mr. Catania as a part of his hospitality. There is no evidence that at any time the undercover agent in anyway exceeded this scope of the permission given her, such as going into another room, opening a drawer or some similar action, or that she took anything out of the house.

Likewise, this is not a case where entry was obtained by use of some governmental force, such as the undercover agent posing and claiming right to entry as a building inspector. In fact, there was no assertion of right, contractual, governmental or otherwise, to entry by the undercover agent. She claims she had car trouble. She asked to enter to use the phone and was allowed in.

Therefore, this Court finds nothing which would constitute an unreasonable search in this case on this record.

IV

CONCLUSION

The entry of JoAnn Ward into Donald Catania’s home without a warrant was not a "search” under either the Fourth Amendment of the United States Constitution or art 1, § 11 of the Michigan Constitution. Ms. Ward entered the home with Mr. Catania’s permission, albeit for a hidden purpose. While in Catania’s home, Ward did not exceed the scope of the invitation extended by Catania. There was no forcible entry effected or attempted¹⁴ by exercise of governmental authority or power. Mr. Catania had no reasonable expectation of privacy to the extent he exposed his activities to Ms. Ward. Since no search occurred, no warrant was required, and no showing of cause was necessary. Therefore, the judgment of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for consideration of the remaining issues.

Williams, C.J., and Riley, J., concurred with Boyle, J. Brickley, J., concurred in the result only.

1 Ms. Ward testified that she merely simulated smoking the marijuana.

2 After Mr. Catania had been warned of his Miranda rights (Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 [1966]), he unsuccessfully tried to get the arresting officer’s help in surreptitiously disposing of the evidence:

Q. Subsequent to that, did Mr. Catania make any statement to you?

A. Well, immediately after that he said that he would tell us —or say anything that he wanted to say, and after that there was no conversation until he was taken outside. I, myself and Deputy Gast, who was assisting us there at the scene, took him outside the door and Deputy Gast went to get the patrol car to bring it up to the door to take Mr. Catania away.

We were standing outside the residence and Mr. Catania looked at me and said something to the effect, "You look pretty cool, can you help me out?” I said, "What are you talking about?” Also, I said — he was giving us a hard time and arguing with us a lot and prior to that I told him, "Hey, be cool, just don’t argue with us and don’t give us a bad time and everything is going to be all right.” He said, "You look pretty cool, can you help me out?” And I says, "What do you mean?” He says, "There’s some shit in my bedroom.” I said, "What do you mean shit?” He says, "Grass. Can you get it out of there for me?” I said, "I am a police officer, don’t say anything more to me because it will be used against you in a court.”

At that time he was taken to the patrol car and put in.

Q. At the time that you said that he should not say anything further to you because you were a police officer, did he make any response to that?

A. Yes. Do you want his exact words?

Q. What did he say?

A. He said, "Well, fuck it then.”

3 Current commentators dispute this description of the warrant exceptions, and instead argue that they are many rather than few, and cloudy rather than clear. See, e.g., Haddad, Well-delineated exceptions, claims of sham, and fourfold probable cause, 68 J Crim L & Criminology 198 (1977) (cited in Grano, Perplexing questions about three basic Fourth Amendment issues: Fourth Amendment activity, probable cause, and the warrant requirement, 69 J Crim L & Criminology 425, 428, n 31 [1978]).

4 The dissent’s reliance upon Berger v New York, 388 US 41; 87 S Ct 1873; 18 L Ed 2d 1040 (1967), is misplaced. Berger dealt with a New York eavesdropping statute which was invalidated because it allowed searches and seizures based upon warrants which did not " 'particularly describ[e] the place to be searched, and the persons or things to be seized.’ ” US Const, Am IV; Berger, supra, pp 55-60. The Court particularly noted that the flaws of the New York statute occurred within the context of an unconsented entry: "[I]t permits unconsented entry without any showing of exigent circumstances.” Id., p 60. Since the instant case involves a consensual entry, Berger is not on point. There is no debate that an unconsented entry requires either a warrant or an exception to the warrant requirement.

5 Justices Stewart, Brennan, Harlan, and Black joined in the opinion of the Court. Chief Justice Warren dissented separately, while Justices Clark and Douglas believed that certiorari had been improvidently granted. Justices White and Fortas did not participate. The opinion of the Court was thus that of a four-person majority.

6 [F]or some years the Court was of the view that for there to be a Fourth Amendment search there must have been a physical intrusion into a "constitutionally protected area.” These areas were those enumerated in the Fourth Amendment itself: "persons,” including the bodies and attire of individuals; "houses,” including apartments, hotel rooms, garages, business offices, stores, and warehouses; "papers,” such as letters; and "effects,” such as automobiles. [1 LaFave & Israel, Criminal Procedure, § 3.2(a), p 162. Citations omitted.]

7 See, e.g., California v Ciraolo, 476 US —, —; 106 S Ct 1809, 1811; 90 L Ed 2d 210, 215 (1986):

The touchstone of Fourth Amendment analysis is whether a person has a "constitutionally protected reasonable expectation of privacy.” Katz v United States, 389 US 347, 360 (1967) (Harlan, J., concurring). Katz posits a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable? See Smith v Maryland, 442 US 735, 740 [99 S Ct 2577; 61 L Ed 2d 220] (1979).

8 Ironically, Justice Harlan would later retreat from the test which became the basis of later opinions. See United States v White, 401 US 745, 768-795; 91 S Ct 1122; 28 L Ed 2d 453 (1971) (Harlan, J., dissenting) and n 8.

9 Chief Justice Burger and Justices Stewart and Blackmun joined in Justice White’s opinion. Justice Black concurred in the result because intangibles like the spoken word were, in his view, outside the protection of the Fourth Amendment. 401 US 754 (citing Justice Black’s dissent in Katz, supra, p 364). Justice Brennan concurred in the White result because, in his view, Katz was inapplicable to behavior which occurred before the decision in Katz, p 755. However, Justice Brennan observed that after Katz any electronic monitoring should require a warrant. Id., pp 755-756.

10 In an extensive dissent, Justice Harlan apparently repudiated the subjective expectation test of Katz for protected areas of privacy. In his view, third-party electronic monitoring requires a warrant even if a participant to the conversation consents. Id., p 769. Criticizing the plurality’s "risk analysis,” Harlan wrote that "[t]he analysis must, in my view, transcend the search for subjective expectations or legal attribution of assumptions of risk.” Id., p 786. The subjective expectations of the citizenry, based upon "the customs and values of the past and present,” id., should not restrict the protection of the Fourth Amendment. Instead, in Harlan’s view, "[t]he critical question, therefore, is whether under our system of government, as reflected in the Constitution, we should impose on our citizens the risks of the electronic listener or observer without at least the protection of a warrant requirement.” Id. To make this determination, Harlan suggested a balancing test:

This question must, in my view, be answered by assessing the nature of a particular practice and the likely extent of its impact on the individual’s sense of security balanced against the utility of the conduct as a technique of law enforcement. For those more extensive intrusions that significantly jeopardize the sense of security which is the paramount concern of Fourth Amendment liberties, I am of the view that more than self-restraint by law enforcement officials is required and at the least warrants should be necessary. [Id., pp 786-787.]

In Harlan’s view, the balancing resulted in a warrant requirement for third-party eavesdropping because the effect on privacy was far greater than that involving informants, even those who recorded their own conversations. Justices Douglas and Marshall also dissented separately in White.

11 Other variations have been considered, with varying results. Where the government agent is known as a government agent by the defendant, but the agent obtains evidence by deceiving the defendant as to the agent’s purpose, the Fifth Circuit has suppressed the evidence where the agent intentionally deceived the defendant. See, e.g., Alexander v United States, 390 F2d 101 (CA 5, 1968). In recent cases, the Fifth Circuit has upheld admission of evidence where a determination is made that, under a totality of the circumstances, the consent to allow a search by a known government agent was voluntary despite being induced by deceit. See United States v Davis, 749 F2d 292 (CA 5, 1985); United States v Andrews, 746 F2d 247 (CA 5, 1984).

In the more "typical” situation involving an undercover agent who obtains evidence in the course of pursuing avowedly illegal purposes, the courts generally uphold admission of the evidence as obtained due to the defendant’s "misplaced confidence.” See, e.g., United States v Haden, 397 F2d 460 (CA 7, 1968) (drugs taken from defendant’s car at defendant’s direction); United States v Glassel, supra (cocaine purchase); United States v Harris, 713 F2d 623 (CA 11, 1983) ("narcotics meet” at defendant’s home). When the evidence is obtained via a search that exceeds the scope of the invitation, the evidence is suppressed. See, e.g., United States v Lyons, 227 US App DC 284; 706 F2d 321 (1983); Gouled v United States, 255 US 298, 306; 41 S Ct 261; 65 L Ed 647 (1921).

12 In a recent decision, the Washington Supreme Court set out the following criteria to guide the bench and bar in determining whether the state constitution provided an independent protection for the individual rights of citizens: 1) the textual language of the state constitution, 2) significant textual differences in parallel provisions of the federal and state constitutions, 3) state constitutional and common-law history, 4) state law preexisting the constitutional provision, 5) structural differences between the federal and state constitutions, and 6) matters of particular state interest or local concern. State v Gunwall, 106 Wash 2d 54, —; 720 P2d 808, 811-813 (1986). Similar considerations would aid this Court in future cases in determining the proper independent scope of our state constitution.

13 Where coercion or duress is alleged to have induced the commission of a crime, the proper "remedy” is the defense of entrapment. Under People v Turner, 390 Mich 7; 210 NW2d 336 (1973), this Court adopted an "objective” test for entrapment which considers whether reprehensible police conduct could have induced the commission of a crime by one not ready and willing to commit it. Whether entrapment occurred under the facts of this case should be considered on remand.

14 Cf. Marshall v Barlow’s, Inc, 436 US 307; 98 S Ct 1816; 56 L Ed 2d 305 (1978) (search without a warrant invalid because reasonable expectation of privacy in business premises vis-á-vis government osha inspector maintained despite entry of employees into work area).