People v. Collins

475 N.W.2d 684, 438 Mich. 8

• Court: Michigan Supreme Court
• Decided: August 22, 1991
• Docket: Docket 86690; Calendar 13
• Status: Published

Opinions

Griffin, J.

We are required to decide whether recorded evidence of conversations between this defendant and a police informant, electronically monitored by police with the informant’s consent, but without a valid search warrant, must be suppressed in defendant’s subsequent felony trial. In People v Beavers, 393 Mich 554; 227 NW2d 511 (1975), this Court ruled that the warrantless electronic monitoring by the police of a conversation, even though consented to by one of the conver-sants, violates art 1, § 11 of the Michigan Constitution, requiring the exclusion at trial of evidence thus obtained. Our examination of developments in the search and seizure jurisprudence since Beavers and our review of the history of the adoption of Const 1963, art 1, § 11 prompt us to reconsider the Beavers decision. Finding it now well settled that such participant monitoring¹ does not offend the Fourth Amendment of the United States Constitution,² and because we are not persuaded that compelling reason exists to impose a different, more restrictive construction upon the parallel provision of our Michigan Constitution, we overrule Beavers, and reverse the decision of the Court of Appeals.

i

After a preliminary examination, defendant W. C. Collins was bound over on a charge of obstruction of justice. MCL 750.505; MSA 28.773. The charge arose out of the following facts.

Earl Jordan, an acquaintance of defendant, approached a state police officer and reported that defendant had offered him $500 to present false testimony to a local district court judge presiding over an unrelated criminal proceeding involving defendant’s wife.³ Upon the basis of the information furnished by Jordan, a state police officer obtained a warrant purporting to authorize the participant monitoring and recording of conversations between Jordan and defendant.⁴ Thereafter, Jordan placed a telephone call to defendant from the state police office, and the conversation, which included incriminating statements by defendant, was monitored and recorded by the police with Jordan’s consent.⁵ Jordan also agreed to wear a concealed radio transmitter later that day when he was to meet and talk with defendant in the latter’s automobile. During the course of this conversation, defendant made more incriminating statements which were electronically overheard and recorded by the police.⁶

In circuit court, defendant moved to suppress the recorded evidence, asserting invalidity of the warrant. The judge ordered suppression on the authority of Beavers after determining that the affidavit provided to support the warrant did not conform to statutory requirements as determined by People v Sherbine, 421 Mich 502; 364 NW2d 658 (1984).⁷ On appeal, the Court of Appeals ordered briefing of the issue "whether a search warrant was required to listen to conversations where one party to the conversations consented to the recording.” However, finding the warrant defective and the case controlled by Beavers, the Court of Appeals affirmed the circuit court’s decision.⁸ We then granted leave to appeal. 434 Mich 900 (1990).

In this appeal the people do not challenge the ruling below that the warrant was invalid. However, we are urged to reconsider this Court’s holding in Beavers.9

n

We begin our analysis with an overview of the law pertaining to electronic surveillance as it had developed prior to April 7, 1975, the date when Beavers was decided by this Court over the vigorous dissent of Chief Justice Coleman.

A

Before the advent of radio, telegraph, and the telephone, eavesdropping was treated as a common-law nuisance.¹⁰ As Blackstone explained over two hundred years ago, the term then referred to the practice of listening "under walls or windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales . . ."¹¹

It is clear that eavesdropping was not the concern which motivated those who drafted and adopted the Fourth Amendment. Rather, they were reacting to the use of force by British officers under the guise of general warrants and writs of assistance to carry on unlimited searches of private homes.¹² It is not surprising then that the words employed by the drafters of the Fourth Amendment focus upon things tangible — the right of people to be secure "in their persons; houses, papers, and effects” against unreasonable searches and seizures.

In the first case involving electronic eavesdropping to come before the United States Supreme Court, Olmstead v United States, 277 US 438, 466; 48 S Ct 564; 72 L Ed 944 (1928), federal agents had obtained evidence against an accused bootlegger by tapping the telephone wire outside his home without a warrant and without the consent of either party to the intercepted conversation. Finding that there had been no physical trespass into a constitutionally protected area, the Court concluded that Fourth Amendment protection against search and seizure was not implicated. Declining to attribute any "enlarged or unusual meaning” to the words employed, the Court reasoned that the Fourth Amendment had been designed to protect citizens from searches for "material things — the person, the house, his papers or his effects.”¹³ However, the Olmstead Court, speaking through Chief Justice Taft, expressly recognized that Congress, if it wished to do so, could regulate the use of wiretap evidence in criminal trials. 277 US 464.

Later, the distinction between nonconsensual electronic surveillance (where none of the parties to a monitored conversation has consented), as in Olmstead, and participant monitoring (where one of the conversants is a consenting participant) was brought into sharp focus in On Lee v United States, 343 US 747; 72 S Ct 967; 96 L Ed 1270 (1952), and in Lopez v United States, 373 US 427; 83 S Ct 1381; 10 L Ed 2d 462 (1963).

In On Lee, a police officer listened outside with a radio receiver while a conversation took place within the defendant’s laundry between the defendant and a former employee who, in cooperation with the police, wore a concealed wireless transmitter. Finding no trespass, because the former employee had gained entrance to the laundry with the defendant’s consent, the Court ruled that the Fourth Amendment was not implicated. The Cburt took pains, however, to distinguish the participant monitoring in this case from the nonconsensual wiretapping in Olmstead. Foreshadowing, perhaps, its later shift to an "expectation of privacy” standard, the Court reasoned that the defendant

was talking confidentially and indiscreetly with one he trusted, and he was overheard. This was due to aid from a transmitter and receiver, to be sure, but with the same effect on his privacy as if [the police officer with the radio receiver] had been eavesdropping outside an open window. [343 US 753-754. Emphasis added.]

In Lopez, the defendant attempted to bribe an agent of the Internal Revenue Service. Later, the agent obtained incriminating evidence which was offered at trial by using a concealed device to tape-record a conversation with the defendant in the latter’s office. Finding no trespass because the agent had been invited into the defendant’s office, the Court ruled that the warrantless recording did not offend the Fourth Amendment. The Court stressed that the agent could have testified about the conversation even if it had not been taped, and stated:

Stripped to its essentials, [the defendant’s] argument amounts to saying that he has a constitutional right to rely on possible flaws in the agent’s memory, or to challenge the agent’s credibility without being beset by corroborating evidence that is not susceptible of impeachment. For no other argument can justify excluding an accurate version of a conversation that the agent could testify to from memory. We think the risk that [the defendant] took in offering a bribe to [the agent] fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording. [373 US 439.]

Although Hoffa v United States, 385 US 293; 87 ; 17 L Ed 2d 374 (1966), did not involve participant monitoring, as will be seen, the reasoning employed would prove to be crucial in the Court’s subsequent analysis of the participant monitoring issue. In this case, a close associate of defendant Hoffa decided to become a government informant. While posing as Hoffa’s friend, the informant was invited into Hoffa’s hotel suite and became privy to conversations involving plans to bribe jurors in an upcoming trial. Rejecting a Fourth Amendment challenge to the informant’s subsequent testimony, the Court 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. [385 US 302.]

As Justice Boyle later observed in People v Catania, 427 Mich 447, 456; 398 NW2d 343 (1986), "The Hoffa opinion essentially held that citizens assume the risk that their associates may be undercover agents.”

Finally, in Katz v United States, 389 US 347, 353; 88 S Ct 507; 19 L Ed 2d 576 (1967), the Court abandoned its Olmstead rationale and declared that "the 'trespass’ doctrine there enunciated can no longer be regarded as controlling.”¹⁴ In that case, federal agents attached a listening and recording device to the outside of a public telephone booth, and evidence of the defendant’s end of telephone conversations, overheard electronically without the knowledge of defendant or any of those with whom he spoke, was admitted at trial.

Finding this activity unconstitutional in the absence of a warrant, the Katz Court declared that "the Fourth Amendment protects people, not places,” 389 US 351, and stressed that its reach "cannot turn upon the presence or absence of a physical intrusion into any given enclosure.” 389 US 353. Shifting its analytical focus, the Court declared that Fourth Amendment interests are implicated when the government infringes upon an individual’s justifiable or legitimate expectation of privacy. The test which emerged from Katz for determining when an expectation of privacy is constitutionally justifiable was articulated by Justice Harlan in his Katz concurrence:¹⁵

[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.” [389 US 361.][¹⁶]

Shortly after the Katz decision, Congress debated and passed the Omnibus Crime Control and Safe Streets Act of 1968, 18 USC 2510 et seq., which includes title III, legislation designed to regulate and make available to law enforcement personnel the use of wiretapping as a tool in the battle against organized crime.¹⁷ Significantly, Congress drew a sharp distinction between two types of law enforcement activity: (1) nonconsensual electronic surveillance (where none of the parties to a conversation has consented), and (2) participant monitoring (where one of the conversants is a consenting participant). While Congress in title III recognized the Fourth Amendment’s application to nonconsensual electronic surveillance (as in Olm-stead and Katz), it imposed no restrictions on participant monitoring (as in On Lee, Lopez, and Beavers). Indeed, title III expressly exempts participant monitoring from the scope of its regulation:

It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception. [18 USC 2511(2)(c). Emphasis added.][¹⁸]

Of course, the recognition by Congress of this distinction did not remove participant monitoring from constitutional scrutiny, and in the wake of Katz the question remained whether On Lee and Lopez were still viable.¹⁹

It was not long after the enactment of title III, however, that the Supreme Court took up and considered the effect of Katz upon participant monitoring. In United States v White, 401 US 745; 91 S Ct 1122; 28 L Ed 2d 453 (1971), conversations related to the sale of narcotics between a police informant and the defendant in the latter’s home were electronically monitored with the informant’s cooperation. Four members of a sharply divided Court, speaking through Justice White, declared that On Lee and Lopez were still good law.²⁰ After noting the absence in Katz of a consenting participant, the White plurality²¹ reasoned from the Hoffa "assumed risk” analysis and concluded that because the defendant had no "justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police” (401 US 749), the defendant similarly had no justifiable expectation that such conversations would not be monitored or recorded.

Justice White explained:

Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter’s Fourth Amendment rights. Hoffa v United States, 385 US 300-303. For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v United States, supra; [or] (2) . . . carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v United States, supra. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks. [401 US 751.]

Four justices, each writing separately, expressed a contrary view that warrantless electronic monitoring, though consented to by one of the parties to the conversation, violates the Fourth Amendment.²² Dissenting, Justice Harlan reasoned that this activity

goes beyond the impact on privacy occasioned by the ordinary type of "informer” investigation .... Much off-hand exchange is easily forgotten and one may count on the obscurity of his remarks, protected by the very fact of a limited audience, and the likelihood that the listener will either overlook or forget what is said .... All these values are sacrificed by a rule of law that permits official monitoring of private discourse .... [401 US 787-789.]

As a result of the six-opinion division in White, the validity of Lopez and On Lee continued to be challenged in the lower federal courts. See, e.g., United States v Santillo, 507 F2d 629 (CA 3, 1975).

B

It was against this unsettled backdrop that the Beavers case came before our Court. There, a police informant, who wore a concealed radio transmitter, knocked on the rear door of the defendant’s apartment. When the defendant appeared, the two engaged in a conversation which culminated in the sale of heroin. Later, a police officer, who remained in a nearby unmarked car and listened to the conversation with the aid of a radio receiver, was allowed to testify regarding the defendant’s statements. Contending that Katz, supra, had expanded the right of privacy to preclude such monitoring activity in the absence of a warrant, the defendant argued that his constitutionally protected right to be free from unreasonable search and seizure had been violated.

The Beavers Court agreed with the defendant’s position and rationalized its decision by focusing exclusively on federal case law. Its analysis cited no Michigan authority, it made no reference to the history of the adoption of art 1, § 11 of the Michigan Constitution, and it placed no reliance on textual differences between the state and federal constitutions. Nevertheless, the Court stated that "[w]hile the result reached today reflects an analysis of Federal case authority, our conclusion is based upon the Michigan Constitution . . . .” 393 Mich 567-568.

Recognizing that the "identical issue” had been before the United States Supreme Court in the then recent case of United States v White, supra, the Beavers Court stressed that only three other justices had joined in the opinion by Justice White, and that four justices had registered strong disagreement. After reviewing the reasoning of Justices White and Harlan, the Beavers Court declared its preference for the latter’s position,

which recognizes a significant distinction between assuming the risk that communications directed to one party may subsequently be repeated to others and the simultaneous monitoring of a conversation by the uninvited ear of a third party functioning in cooperation with one of the participants yet unknown to the other. [393 Mich 565.]

The Beavers majority agreed with Justice Harlan that

one’s expectation of privacy should not be subjected to the possibility that communications directed to particular persons are simultaneously being intercepted by a third party [and] that such investigatory action constitutes a search and seizure which can be constitutionally justified only if a valid search warrant is issued. [Id., p 564.]

For several years following Beavers, the sharp division registered among members of the White Court continued to cast doubt upon the constitutionality of participant monitoring.²³ However, in 1979, any lingering uncertainty was finally put to rest when the Supreme Court decided United States v Caceres, 440 US 741; 99 S Ct 1465; 59 L Ed 2d 733 (1979). There, the defendant sought reversal of his conviction for bribing an irs agent after the agent, without a warrant, wore a concealed radio transmitter which allowed conversations between the two to be monitored and recorded by another agent not present in the room. Writing for a majority of seven, Justice Stevens first noted that

[w]hile Title III of the Omnibus Crime Control and Safe Streets Act . . . regulates electronic surveillance conducted without the consent of either party to a conversation, federal statutes impose no restrictions on recording a conversation with the consent of one of the conversants. [440 US 750.]

Then, he added, "Nor does the Constitution protect the privacy of individuals in respondent’s position/]

Referring to Lopez, supra, Justice Stevens continued,

[there] we held that the Fourth Amendment provided no protection to an individual against the recording of his statements by the irs agent to whom he was speaking. In doing so, we repudiated any suggestion that the defendant had a "constitutional right to rely on possible flaws in the agent’s memory, or to challenge the agent’s credibility without being beset by corroborating evidence that is not susceptible of impeachment,” concluding instead that "the risk that petitioner took in offering a bribe . . . fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording.” The same analysis was applied in United States v White, 401 US 745, to consensual monitoring and recording by means of a transmitter concealed on an informant’s person, even though the defendant did not know that he was speaking with a Government agent .... [Id.J[24]

In the light of Caceres, which made crystal clear that the Fourth Amendment requires no warrant in the circumstances of the case now before us, we turn to reconsider whether greater restrictions on law enforcement activities are required by the Michigan Constitution.²⁵

III

US Const, Am IV 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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Const 1963, art 1, § 11 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.

Discerning the intent of the framers and the people who adopted Const 1963, art 1, § 11, this Court has held, in a line of decisions since Beavers, that art 1, § 11 is to be construed to provide the same protection as that secured by the Fourth Amendment, absent "compelling reason” to impose a different interpretation.²⁶

In the leading case of People v Nash, 418 Mich 196, 209; 341 NW2d 439 (1983) (opinion of Brick-ley, J.),²⁷ this Court extensively reviewed the history of the adoption of Const 1963, art 1, § 11 and found its wording and purpose to be substantially the same as its predecessor, Const 1908, art 2, § 10, as amended. Originally, the 1908 version included no antiexclusionary proviso similar to that found in the third sentence of the current version.²⁸ However, as the Nash Court recounted, following a 1933 decision by this Court which excluded from evidence an illegally seized weapon,²⁹ the people reacted swiftly by adding a proviso for the obvious purpose of restricting the judiciary’s use of its exclusionary rule.³⁰

As the Nash Court found, there is no evidence that those who later framed and adopted the 1963 Constitution had any intention of expanding the protection provided under Michigan’s search and seizure provision beyond that secured by the Fourth Amendment of the federal constitution. In his review, 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

Ultimately, the convention rejected the committee’s proposal, as well as other proposals for substantive changes in the search and seizure provision then in effect.³² 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.³³

In the light of this history, as explained by Justice Brickley, "the common understanding of the people upon reading the proposed constitutional provision could be nothing but the belief that the search and seizure provision of the new constitution represented no change.” 418 Mich 213. The Nash Court concluded:

There is no indication that in readopting the language of Const 1908, art 2, § 10 in Const 1963, art 1, § 11 the people of this state wished to place restrictions on law enforcement activities greater than those required by the federal constitution. In fact, the contrary intent is expressed. [Id.]

While recognizing that this Court may, where justified, construe our state constitution so as to impose different requirements than obtain under parallel provisions of the federal constitution, the Nash Court stressed that, "The history of Const 1963, art 1, § 11, and its plain import . . . suggest that its further expansion, with the concomitant expansion of the exclusionary rule to enforce it, should occur only when there is a compelling reason to do so.” 418 Mich 214 (emphasis added).

In decisions since Nash, this Court has adhered to the "compelling reason” standard in determining whether Const 1963, art 1, § 11 imposes requirements not encompassed by the Fourth Amendment.³⁴ Furthermore, this Court has looked to Nash for guidance in construing other provisions of the Michigan Constitution which parallel federal constitutional guarantees.³⁵

Although the reasoning of Justice White in United States v White, supra, was not preferred at the time by a Beavers majority, it is noteworthy that this Court later adopted the Hoffa principle upon which that reasoning rested. In People v Catania, supra, after an undercover police informant feigned car trouble and asked to use the telephone, she was invited by the defendant into his home. While there, the informant was asked by the defendant to join him in smoking marijuana. Later, defendant sought, on Fourth Amendment and state constitutional grounds, to suppress evidence of this and other activity observed by the informant in the defendant’s home which led to convictions for possession with intent to deliver cocaine³⁶ and marijuana.³⁷ Writing for a plurality,³⁸ Justice Boyle concluded that

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.

Citing with approval the decision in United States v White, Justice Boyle observed that the lead opinion of Justice White had

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 .... [427 Mich 458-459.]

After finding no Fourth Amendment violation, the Catania Court also determined that "[t]here is no basis in this case for holding that the Michigan Constitution, art 1, § 11, permits greater protection than the United States Constitution.” Noting that in People v Smith, supra, this Court had adopted the Katz "reasonable expectation of privacy” standard "to define the interests protected under Const 1963, art 1, § 11,” Justice Boyle reasoned that the defendant in Catania had no reasonable expectation of privacy because he "assumed a risk when he offered drugs to a total stranger that she [the informant] would communicate what she saw to the world. Since no persuasive reason [was] advanced to interpret Const 1963, art 1, § 11 as prohibiting the activities allowed . . . under the Fourth Amendment,” the Court declined to place a different construction upon the parallel provision of the Michigan Constitution. 427 Mich 466-467.

IV

In the light of Nash and its progeny, we turn now to consider whether in this case there is compelling reason to construe Const 1963, art 1, § 11 to prohibit law enforcement activity that otherwise is permissible under the Fourth Amendment. 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.³⁹ Surely, the beginning of consideration must be the axiomatic statement of this Court in Holland v Garden City Clerk, 299 Mich 465, 470; 300 NW 777 (1941): "It is a fundamental principle of constitutional construction that we determine the intent of the framers of the Constitution and of the people adopting it.” See also Burdick v Secretary of State, 373 Mich 578, 584; 130 NW2d 380 (1964).

We believe that compelling reason .for an independent state construction might be found if there were significant textual differences between parallel provisions of the state and federal constitutions, and, particularly, if history provided reason to believe that those who framed and adopted the state provision had a different purpose in mind. As already noted, the Beavers majority placed no reliance upon textual differences between the two constitutions. Moreover, the language of art 1, § 11 is substantially similar to that of the Fourth Amendment, except for the antiexclusionary proviso in the third sentence of § 11.

This textual difference, however, is the basis of an argument advanced by defendant. Pointing to the fact that the antiexclusionary language in § 11 mentions only certain items which are declared to be admissible in evidence, defendant contends that the failure to mention other items, such as conversations, must indicate an intent to afford the omitted items greater protection under our state constitution. However, this argument was rejected in Nash, where Justice Brickley explained, "Considering the history and language qf Const 1963, art 1, § 11, it would be an incredible act of illogic” to hold that there is a heightened standard regarding evidence not enumerated by art 1, § 11. 418 Mich 214.⁴⁰ As earlier noted, the historical record clearly indicates that the people of Michigan had no intention of imposing more stringent restrictions upon law enforcement than is mandated by the Fourth Amendment. 418 Mich 213.

One state, Alaska, found compelling reason for independent treatment of participant monitoring in the fact that its state constitution contains a separate provision which specifically protects a right of privacy.⁴¹ The Alaska Supreme Court concluded that its privacy right provision "affords broader protection than the penumbral right inferred from other constitutional provisions.” State v Glass, 583 P2d 872, 879 (Alas, 1978).⁴² Significantly, the Michigan Constitution contains no similar separate provision explicitly protecting a right of privacy.

In this appeal, defendant also argues that the availability of warrantless participant monitoring would chill the free speech rights of the law abiding public.⁴³ This echoes a concern expressed by the Beavers Court when it said, "Our laws must ensure that the ordinary, law-abiding citizen may continue to engage in private discourse, free to speak with the uninhibited spontaneity that is characteristic of our democratic society.” 393 Mich 566.

While such a concern is understandable, we have not been made aware of any evidence that the feared abuses have materialized either on the federal level or in those states which have no constitutional warrant requirement. Moreover, there is every reason to believe that citizen discourse continues to be as free and uninhibited as ever, even in the overwhelming majority of states which have followed the federal lead on this issue. In addition, the force of the "chilling effect” argument is undermined by the fact that for at least twenty years, the less restrictive federal standard has been applicable in Michigan and in all other states to federal law enforcement personnel.⁴⁴ Finally, we emphasize that nothing in our decision today will preclude the Legislature from adopting such controls and restraints, including restrictions on the use of evidence, as might be considered necessary to guard against the arbitrary or capricious use within the state system of this investigative technique.⁴⁵

It is noteworthy that of the fifty states, only two others, Alaska⁴⁶ and Massachusetts,⁴⁷ interpret their state constitutions to require a warrant for participant monitoring, while the highest courts in the other twenty-four states in which the issue has been addressed have ruled that their constitutions do not require a warrant.⁴⁸ Originally, the Supreme Courts of Montana, Pennsylvania, and Louisiana held that their state constitutions required a warrant;⁴⁹ however, each of those decisions has now been overruled.⁵⁰

As a number of the state court decisions have emphasized, there are practical considerations which weigh heavily against the imposition of a constitutional warrant requirement. The Beavers Court conceded that participant monitoring "is practiced extensively throughout the country and represents a vitally important investigative tool of law enforcement.”⁵¹

As reported by a national commission formed by Congress to evaluate the electronic surveillance provisions of the Omnibus Crime Control and Safe Streets Act,⁵² participant monitoring is often crucial in establishing the credibility of an informant and probable cause.⁵³ Since "not all crimes are committed in the bright light of day before swarms of credible and respected citizens,” it has been pointed out that

it is often necessary for the police to resort to the use of informants of dubious character, reliability, and credibility. . . . Without tools such as electronic participant monitoring to corroborate the disclosures of such informants, reasonable suspicions might never be developed into probable cause, lawful arrest, and just conviction. [Commonwealth v Schaeffer, 370 Pa Super 179, 259; 536 A2d 354 (1987) (Kelly, J., concurring in part and dissenting in part).]

In most cases, the precondition of a warrant "would require officers to have probable cause to use a device for obtaining probable cause.” In situations "such as drug transactions, two meetings instead of one would be required: the first to acquire probable cause, the second to record the conversation.”⁵⁴

Moreover, strict adherence to warrant requirements may be impossible in the context of participant monitoring. For example, MCL 780.655; MSA 28.1259(5) requires that the officer executing the warrant give the individual from whom the property or things are seized a copy of the warrant "forthwith.” If such a requirement were met, of course, the suspect would be alerted and the purpose of the monitoring would be defeated.⁵⁵ Further, the warrant must set forth, with particularity, the items to be seized.⁵⁶ Of course, future conversations are nonexistent until they take place. As aptly noted by Chief Justice Coleman in her dissent in Beavers, "[h]ow does one specifically describe the conversation to be seized?” 393 Mich 581.⁵⁷

Chief Justice Coleman further stressed that the very nature of many criminal activities demands quick action. "Otherwise, the 'bird will have flown,’ the opportunity to listen to a 'buy’ will have been lost.” Id. Requiring the police to first find a magistrate and then go with the warrant to the scene "is designed for self-defeat.” Id. Chief Justice Coleman noted the particular need for warrantless participant monitoring in drug-related investigations. The police "are charged with risking their own lives to find and arrest the 'purveyors of death,’ ” and we "encourage citizens to help them.” Because of "the inherent necessity for privacy in drug sales and the small size of the product,” the police have "a uniquely difficult task.” Drug sales may "take place anytime, anywhere, and be invisible to the observer.” Thus, the inherent "nature of the illegal trafile demands the use of agents and informants if it is to be controlled.” But, these very agents "may make a 'buy’ ” and are "met in court by a series of witnesses who swear that the defendant was somewhere else and the purchaser is lying, perhaps to save his own skin. The buyer cannot usually bring anyone with him to verify his testimony. The lone buyer is also in physical danger.” 393 Mich 571.

Participant monitoring often serves "to protect the life of the agent or informant. He plays a deadly game and the microphone allows him speedy access to help.” 393 Mich 581. In this age of escalating crime, surely these concerns are at least as compelling today.

While participant monitoring does not favor the guilty, it will often protect the innocent. As another state Supreme Court has observed:

Society seeks to foster truth, not to suppress it. The presence of the electronic transmitter has but one effect. Instead of the informant committing the conversation to memory, a machine tapes each and every sentence of the communication. The machine notes the inflection of the voices and the context in which remarks are made. If the defendant speaks innocently, his own words will exculpate him. However, if he implicates himself, the recordings prevent him from denying his participation in the conversation. Surely, society would not consider reasonable an expectation of privacy which would result in a more inaccurate version of the events in question. [State v Reeves, 427 So 2d 403, 418 (La, 1982).]

Benjamin Franklin once cautioned that "[i]f you would keep your secret from an enemy, tell it not to a friend.” What a confidant who hears it chooses to do with a secret — whether he whispers it, records it, or broadcasts it — is beyond the control of the teller. We reject the notion that a wrongdoer has a constitutionally protected expectation that his confidant will be unable to repeat with accuracy and credibility the communicated secret. We agree with Justice White that courts should not be "too ready to erect constitutional barriers to relevant and probative evidence which is also accurate and reliable.” White, 401 US 753.

v

It is our conclusion that the warrantless participant monitoring in this case violated no reasonable expectation of privacy on the part of defendant, and that there is no compelling reason to interpret Const 1963, art 1, § 11 as affording greater protection for this defendant than is provided under the Fourth Amendment.

Accordingly, Beavers is overruled, the decision of the Court of Appeals is reversed, and this case is remanded to the circuit court for proceedings consistent with this opinion.

Brickley, Boyle, and Riley, JJ., concurred with Griffin, J.

1 We use the term "participant monitoring” to refer only to the electronic monitoring (whether or not recorded) by a law enforcement agent of a conversation where one of the parties to the conversation has previously consented to the activity.

2 United States v Caceres, 440 US 741; 99 S Ct 1465; 59 L Ed 2d 733 (1979); United States v White, 401 US 745; 91 S Ct 1122; 28 L Ed 2d 453 (1971).

3 According to testimony given by Jordan at defendant’s preliminary examination, defendant’s wife had been convicted of filing a false police report after she reported that an assailant had fired a shot at her at a local school. Defendant asked Jordan to tell the judge that he (Jordan) had observed a man running away from the school carrying a rifle, "[s]o it [the conviction] would get thrown out of court.”

4 The warrant stated that the police would be authorized

[t]o monitor, listen to, and tape record by use of a body transmitter or other recording device, any and all voice communications or conversations either in person or telephonically by and between the suspect, Dub Collins, and the informant, Earl Jordan . . . for a ten (10) day period ....

5 According to preliminary examination testimony by Jordan, he asked defendant in this telephone conversation what he (Jordan) would have to do if he were to be a witness in the criminal proceeding involving defendant’s wife. Defendant replied that Jordan would have to lie. Defendant also offered to pay Jordan $100 (of the $500 total) later that same day.

6 Jordan testified that while he was in defendant’s automobile, defendant traced the route which he wanted Jordan to tell the judge he took the night defendant’s wife reported the shooting. Defendant told Jordan that he should tell the judge he saw a man carrying a rifle across the road.

7 MCL 780.653; MSA 28.1259(3), as interpreted by this Court in Sherbine, required that an affidavit supporting a warrant be based on "reliable” information supplied by a "credible person.” It is noteworthy that subsequent to the circuit court’s decision in this case, the statute was amended, 1988 PA 80, to provide that when an informant is named, the affidavit need only contain "affirmative allegations from which the magistrate may conclude that the person spoke with personal knowledge of the information.”

8 Unpublished opinion per curiam of the Court of Appeals, decided March 22, 1989 (Docket No. 103047).

9 In the alternative, the people argue that we should avoid the Beavers result by fashioning a "good faith” exception to the exclusionary rule upon the basis of the rationale found in United States v Leon, 468 US 897; 104 S Ct 3405; 82 L Ed 2d 677 (1984). Since we reverse on other grounds, we do not consider this argument.

10 4 Blackstone, Commentaries, p 168. See also Berger v New York, 388 US 41, 45; 87 S Ct 1873; 18 L Ed 2d 1040 (1967).

11 Blackstone, n 10 supra.

12 Spritzer, Electronic surveillance by leave of the magistrate: The case in opposition, 118 U Pa L R 169, 170 (1969).

13 Justice Holmes dissented and wrote, "We have to choose, and for my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part.” 277 US 470.

14 The underpinnings of Olmstead had been eroded prior to Katz. For example, see Warden v Hayden, 387 US 294, 304; 87 S Ct 1642; 18 L Ed 2d 782 (1967); Wong Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963); Silverman v United States, 366 US 505; 81 S Ct 679; 5 L Ed 2d 734 (1961); Jones v United States, 362 US 257; 80 S Ct 725; 4 L Ed 2d 697 (1960).

15 See United States v Knotts, 460 US 276; 103 S Ct 1081; 75 L Ed 2d 55 (1983) (explaining the Katz test).

16 In People v Smith, 420 Mich 1; 360 NW2d 841 (1984), this Court adopted the Katz test for purposes of determining the interests protected by Const 1963, art 1, § 11.

17 S Rep No 1097, 90th Cong (2nd Sess), reprinted in 1968 US Code Cong & Admin News 2112, 2153-2157. See also id. at 2284-2285 (individual views of Senators Dirksen, Hruska, Scott, and Thurmond); United States v United States Dist Court for the Eastern Dist of Michigan, 407 US 297, 302; 92 S Ct 2125; 32 L Ed 2d 752 (1972).

18 Congress considered participant monitoring and recording to be an indispensable tool in criminal investigations. S Rep, n 17 supra at 2183, 2286.

19 Compare, e.g., United States v Jones, 292 F Supp. 1001 (D DC, 1968), and cases cited therein, with United States v Kaufer, 406 F2d 550 (CA 2, 1969).

20 Chief Justice Burger and Justices Stewart and Blackmun joined in the opinion of Justice White.

21 Justice Black concurred in the plurality’s result, but he did so on the ground that intangibles such as conversations are beyond the scope of the Fourth Amendment.

22 Justices Brennan, Marshall, Douglas, and Harlan.

23 See, e.g., People v Drielick, 400 Mich 559, 564; 255 NW2d 619 (1977) (addressing whether White was binding as a matter of federal law).

24 See also Smith v Maryland, 442 US 735; 99 S Ct 2577; 61 L Ed 2d 220 (1979) (citing White with approval) and United States v Karo, 468 US 705, 716, n 4; 104 S Ct 3296; 82 L Ed 2d 530 (1984) (citing White for the proposition that there is a significant distinction between eavesdropping with the consent of a party to the conversation and eavesdropping without the knowledge or consent of either party).

25 Note is taken of the people’s argument that Beavers does not control this case because defendant’s words were recorded, as well as monitored. While the Beavers Court sought to limit its ruling so as not to encompass "those situations which include a participant himself recording the conversation,” 393 Mich 562, n 2 (emphasis in original), we agree with the United States Supreme Court that there is no significant constitutional distinction between participant monitoring and participant recording. See United States v Caceres, and Lopez v United States, supra.

26 People v Perlos, 436 Mich 306; 462 NW2d 310 (1990); People v Chapman, 426 Mich 245; 387 NW2d 835 (1986); People v Catania, supra; People v Smith, n 16 supra; People v Nash, 418 Mich 196; 341 NW2d 439 (1983).

27 A majority of the Court concurred in Justice Brickley’s opinion concerning the history of Const 1963, art 1, § 11 and his analysis regarding the interpretation of that provision.

28 Const 1908, art 2, § 10, as originally adopted, provided:

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 ....

29 In People v Stein, 265 Mich 610; 251 NW 788 (1933), the Court reversed the defendant’s conviction for carrying an unlicensed weapon, ruling that the weapon had to be excluded from evidence because it was unconstitutionally seized. Three years later the people of Michigan amended the constitution, adding what is now the third sentence of art 1, § 11 to provide that the judicially crafted exclusionary rule was not to be applied to certain types of evidence, including weapons, seized outside the curtilage of the home.

30 1935 Joint Resolution No 2, ratified November 3, 1936, reads as follows:

Provided, however, That the provisions of this section shall not be construed to bar from evidence in any court of criminal jurisdiction, or in any criminal proceeding held before any magistrate or justice of the peace, any firearm, rifle, pistol, revolver, automatic pistol, machine gun, bomb, bomb shell, explosive, blackjack, slungshot, billy, metallic knuckles, gas-ejecting device, or any other dangerous weapon or thing, seized by any peace officer outside the curtilage of any dwelling house in this state.

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

32 The convention’s address to the people stated that art 1, § 11 represented "No change from Sec. 10, Article II, of the present constitution except for improvement in phraseology.” 2 Official Record, Constitutional Convention 1961, p 3364.

33 Insight concerning the decision to retain the antiexclusionary language was revealed in remarks delivered by the delegate who proposed readoption of the provision:

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. [1 Official Record, Constitutional Convention 1961, p 496 (remarks of Delegate Kenneth Prettie).]

34 People v Smith, n 16 supra at 20 (no compelling reason that Const 1963, art 1, § 11 requires a standing requirement, for purposes of challenging the admissibility of evidence seized without a warrant, more liberal than that mandated by the United States Supreme Court’s interpretation of the Fourth Amendment); People v Catania, supra (plurality decision which followed the analysis set forth in Nash, supra, in holding that art 1, § 11 did not require suppression of evidence seized pursuant to a warrantless "ruse” entry by an undercover police agent into the defendant’s home because parallel federal constitutional provisions had been interpreted to permit the use of such evidence); People v Perlos, n 26 supra (MCL 257.625a[9]; MSA 9.2325[1][9] which permits chemical analysis of blood samples taken from a driver of a motor vehicle involved in an accident to be admitted into evidence in a subsequent criminal prosecution arising out of such accident, does not violate the Fourth Amendment of the federal constitution and there is "no compelling reason” to afford greater protection under Const 1963, art 1, § 11).

35 People v Collier, 426 Mich 23, 39; 393 NW2d 346 (1986) (no compelling reason to construe the due process and self-incrimination provisions of Const 1963, art 1, § 17 in a manner differently than the parallel provisions of the federal constitution); People v Hill, 429 Mich 382, 393; 416 NW2d 193 (1987) (no compelling reason to interpret Const 1963, art 1, § 17 to require Miranda warnings when the suspect becomes the focus of an investigation where parallel provision of the federal constitution had been interpreted to require warnings only when an individual is taken into custody), Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

Concerning evidence which is enumerated in the third sentence of art 1, § 11, this Court has held that we may not, under any circumstances, interpret the Michigan Constitution to afford greater protection to defendants than the Fourth Amendment. People v Chapman, n 26 supra at 254-255.

36 MCL 333.7401(1), (2)(a)(iv); MSA 14.15(7401X1), (2)(a)(iv).

37 MCL 333.7401(1), (2)(c); MSA 14.15(7401)0), (2)(c). The defendant was also convicted as a second felony offender. MCL 333.7413; MSA 14.15(7413).

38 427 Mich 454. Justice Riley and Chief Justice Williams concurred in the lead opinion of Justice Boyle. Justice Brickley concurred in the result only. Justice Levin also concurred in the result, but on the basis that the issue presented was one of entrapment rather than search and seizure.

39 In Catania, Justice Boyle noted that the Washington Supreme Court has suggested the following factors for consideration in determining whether a state constitution affords protection different from the federal constitution: 1) the textual language of the state constitution, 2) significant textual differences between parallel provisions of the two constitutions, 3) state constitutional and common-law history, 4) state law preexisting adoption of the relevant constitutional provision, 5) structural differences between the state and federal constitutions, and 6) matters of peculiar state or local interest. 427 Mich 466, n 12.

40 We are also urged by the people to distinguish Beavers on the basis that the conversations monitored there occurred within defendant’s home. We decline to do so. Although it is well settled that the home is accorded the full range of Fourth Amendment protection, Lewis v United States, 385 US 206, 211; 87 S Ct 424; 17 L Ed 2d 312 (1966), the Fourth Amendment protects people, not places. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz, 389 US 351. The United States Supreme Court has found no distinction between electronic surveillance conducted within or without the curtilage of defendant’s home. White, 401 US 757 (no distinction between conversations monitored in defendant’s home, informant’s home, informant’s automobile, and a restaurant). Even if a person’s home is where he has the most reasonable expectation of privacy, that expectation is no longer reasonable when the home becomes a site for planning criminal activity. Lewis, 385 US 211. See also Lee v State, 489 So 2d 1382, 1386 (Miss, 1986).

41 Art 1, § 22 of the Alaska Constitution provides:

The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section.

42 Cf. State v Lester, 64 Hawaii 659, 665; 649 P2d 346 (1982), where, despite a state constitutional right of privacy provision, the Hawaii Supreme Court, reasoning that a person assumes the risk that his confidant will broadcast his words, rules that there was no "compelling reason” to impose a warrant requirement under Hawaii’s search and seizure provision.

See also State v Brown, 232 Mont 1; 755 P2d 1364 (1988), and State v Reeves, 427 So 2d 403 (La, 1982), wherein the Supreme Courts of Montana and Louisiana reached a result similar to Hawaii despite a specific state constitutional guarantee of a right of privacy.

43 See, e.g., White, 401 US 768 (Harlan, J., dissenting).

44 As noted, 18 USC 2511(2)(c) sanctions participant monitoring. Further, 18 USC 2517(3) provides:

Any person who has received, by any means authorized by this chapter [18 USC 2510 et seq.], any information concerning a wire, oral, or electronic communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter [18 USC 2510 et seq.] may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of the United States or of any State or political subdivision thereof. [Emphasis added.]

45 MCL 750.539c; MSA 28.807(3) makes it a felony to "wilfully” use "any device to eavesdrop” upon a private conversation without the consent of all participants. While this statute clearly applies to private citizens, it does not prohibit eavesdropping or surveillance "not otherwise prohibited by law by a peace officer or his agent of this state or federal government while in the performance of his duties.” MCL 750.539g(a); MSA 28.807(7)(a).

When the statute was enacted as 1966 PA 319, warrantless participant monitoring was not "otherwise prohibited by law.” See On Lee v United States, Lopez v United States, supra, People v Maranian, 359 Mich 361; 102 NW2d 568 (1960), People v Sims, 38 Mich App 127; 195 NW2d 766 (1972), and People v Karalla, 35 Mich App 541; 192 NW2d 676 (1971). Only under Beavers (decided after the statute was enacted) is such monitoring prohibited. Thus, the statute does not reflect a legislative intent to preclude warrantless participant monitoring by a police officer or his agent while in the performance of his duties.

46 State v Glass, supra.

47 Commonwealth v Blood, 400 Mass 61; 507 NE2d 1029 (1987).

48 See, e.g., Hammond v State, 354 So 2d 280 (Ala Crim App, 1977), Smithey v State, 269 Ark 538; 602 SW2d 676 (1980), People v Phillips, 41 Cal 3d 29; 222 Cal Rptr 127; 711 P2d 423 (1985), People v Velasquez, 641 P2d 943 (Colo, 1982), State v Grullon, 212 Conn 195; 562 A2d 481 (1989), Morningstar v State, 428 So 2d 220 (Fla, 1982), cert den 464 US 821 (1983), Green v State, 250 Ga 610; 299 SE2d 544 (1983), State v Lester, n 42 supra, People v Richardson, 60 Ill 2d 189; 328 NE2d 260 (1975), Lawhorn v State, 452 NE2d 915 (Ind. 1983), State v Reeves, n 42 supra, State v Brown, n 42 supra, State v Kilgus, 128 NH 577; 519 A2d 231 (1986), Carrier v Commonwealth, 607 SW2d 115 (Ky App, 1980), Lee v State, n 40 supra, State v Engleman, 653 SW2d 198 (Mo, 1983), State v Levan, 326 NC 155; 388 SE2d 429 (1990), State v Geraldo, 68 Ohio St 2d 120; 429 NE2d 141 (1981), Commonwealth v Blystone, 519 Pa 450; 549 A2d 81 (1988), State v Ahmadjian, 438 A2d 1070 (RI, 1981), Clariday v State, 552 SW2d 759 (Tenn Crim App, 1976), State v Boone, 581 P2d 571 (Utah, 1978), and Blackburn v State, 290 SE2d 22 (W Va, 1982).

We further note that the American Bar Association has approved the use of participant monitoring by law enforcement personnel without court authorization. ABA Standards Relating to Electronic Surveillance, § 4.1, Approved Draft, 1971.

49 State v Brackman, 178 Mont 105; 582 P2d 1216 (1978); Commonwealth v Schaeffer, 370 Pa Super 179; 536 A2d 354 (1987); State v Reeves, n 42 supra.

50 State v Brown, n 42 supra; Commonwealth v Blystone, n 48 supra; State v Reeves, n 42 supra.

51 Beavers, supra, 393 Mich 566.

52 Electronic Surveillance, Report of the National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance, which was established by Congress, PL 90-351, § 804, June 19, 1968.

53 See also Goldsmith, The Supreme Court and title III: Rewriting the law of electronic surveillance, 74 J Crim L & Criminology 1, 46 (1983). According to the author, Congress had "sound tactical reasons” for authorizing warrantless participant monitoring and recording. "Consensual electronic surveillance often was used to protect informants and undercover police officers in cases in which there was no probable cause; indeed, such surveillance was often crucial towards corroborating the reliability of an informant or developing probable cause.”

54 Electronic Surveillance, n 52 supra at 117.

55 Amicus curiae suggested during oral argument before this Court that, generally, the issuing judge enters a clause in the warrant suppressing service for a certain period of time. We find no statutory or decisional law in this state approving such a practice which appears to contravene the statutory requirement that the individual be served with a copy of the warrant "forthwith.”

56 The Fourth Amendment of the United States Constitution and Const 1963, art 1, § 11 require warrants to "particularly describ[e] the place to be searched, and the persons or things to be seized. . Berger v New York, n 10 supra at 58; People v Secrest, 413 Mich 521; 321 NW2d 368 (1982); People v Taylor, 93 Mich App 292; 287 NW2d 210 (1979); People v Atkins, 96 Mich App 672, 679; 293 NW2d 671 (1980); People v Krokker, 83 Mich App 474, 477; 268 NW2d 689 (1978). MCL 780.654; MSA 28.1259(4) provides, inter alia, that, "[e]ach warrant shall designate and describe the . . . property or thing to be seized.”

57 Absent the availability of participant monitoring to establish probable cause, the police may be unable to secure a valid warrant, virtually assuring a credibility contest at trial between the uncorroborated testimony of the informant and the frequently corroborated testimony of the defendant. In Beavers, e.g., the defendant, supported by several witnesses, claimed to be somewhere else at the time of the alleged conversation and drug transaction.