People v. Hall

276 N.W.2d 897, 88 Mich. App. 324, 1979 Mich. App. LEXIS 1978

• Court: Michigan Court of Appeals
• Decided: February 5, 1979
• Docket: Docket 77-834
• Status: Published

Opinions

Bronson, J.

Defendant was convicted by a jury of delivery of heroin contrary to MCL 335.341(l)(a); MSA 18.1070(41)(l)(a). He now appeals as of right. Although defendant raises numerous issues, our disposition of one of them makes consideration of the remaining questions unnecessary.

At trial, the court admitted, over defendant’s objection, a tape recording of a conversation between defendant and a police informant. No search warrant had been obtained authorizing the police to tape the conversation.

In People v Beavers, 393 Mich 554; 227 NW2d 511 (1975), cert den, 423 US 878; 96 S Ct 152; 46 L Ed 2d 111 (1975), the Michigan Supreme Court ruled that participant monitoring¹ by police is a search and seizure which must comply with the warrant requirement. In People v Livingston, 64 ; 236 NW2d 63 (1975), this Court extended the search warrant requirement to instances where the informer/participant recorded the conversation instead of transmitting it.

The dissent disagrees with this latest extension and seeks to differentiate participant monitoring from participant recording by declaring that the former is more intrusive of privacy because the disclosure of the conversation is simultaneous with the conversation itself. It is true that there is no simultaneous disclosure in participant recording; however, there is a countervailing consideration which makes participant monitoring equally intrusive, and that is the fact that with participant recording a permanent record of the conversation is made. See Greenawalt, The Consent Problem in Wiretapping and Eavesdropping: Surreptitious Monitoring With the Consent of a Participant in a Conversation, 68 Col L Rev 189, 225, fn 180 (1968). One does not need to go back too far in the history of this country to find instances where an innocent or innocuous statement when made, takes on grave and sinister overtones 10 or 20 years later when the social climate has changed. The fact that a recording of a conversation could be permanently stored and then produced long after the participants or their monitors forgot about the conversation makes participant recording just as intrusive of privacy as participant monitoring, and subject to the same restrictions on its use.

The rationale for requiring a search warrant in these situations was stated most eloquently by Justice Harlan in United States v White, 401 US 745, 787-789; 91 S Ct 1122; 28 L Ed 2d 453 (1971). Although these statements were directed at participant monitoring, we conclude that their logic applies equally as well to the analogous problem of participant recording.²

"The impact of the practice of third-party bugging, must, I think, be considered such as to undermine that confidence and sense of security in dealing with one another that is characteristic of individual relationships between citizens in a free society. * * *

"Authority is hardly required to support the proposition that words would be measured a good deal more carefully and communication inhibited if one suspected his conversations were being transmitted and transcribed. Were third-party bugging a prevalent practice, it might well smother that spontaneity—reflected in frivolous, impetuous, sacrilegious, and defiant discourse —that liberates daily life. 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, as well as the listener’s inability to reformulate a conversation without having to contend with a documented record. All these values are sacrificed by a rule of law that permits official monitoring of private discourse limited only by the need to locate a willing assistant.”

How different life in this state would be if everyone had to expect that their every conversation, their every careless phrase or ill-advised statement could be captured and preserved for all time. Such a life-style is not what is expected nor desired by the members in a free society. A rule which would allow government officials to record, at their unbridled discretion, the conversations of all citizens with whom they or their informants come into contact would impermissibly invade the individual’s right to privacy and constitute a violation of the Michigan Constitution’s prohibition against unreasonable searches and seizures.

Therefore, before the police may lawfully tape a conversation between an individual and a police informant, they must first obtain a search warrant authorizing the recording of the conversation.

The dissent seems to intimate that by requiring a search warrant we will be totally precluding the use of participant recording thus depriving the police of a valuable investigative tool.³ This assessment is not accurate. Under the rule announced here, the use of participant recording will not be precluded but merely limited to situations where the potential benefits to society in fighting crime outweigh the potential detriments to society from stifling free expression. The dissent would allow recording on the mere whim of any government official. It appears to sanction fishing expeditions based on no more than the hope that criminal activity can be found. This is unacceptable. Our constitution protects our citizens from the excesses caused by misguided or overzealous government officials. The inconvenience caused by requiring government officials to submit reliable information to a neutral magistrate for a determination that there is probable cause to believe criminal activity is under way will be more than made up by the increased sense of security and freedom such a rule will provide for citizens of this state. As our Supreme Court stated in Beavers:

"By interposing the search warrant requirement prior to engaging in participant monitoring, the risk that one’s conversation is being intercepted is rightfully limited to circumstances involving a party whose conduct has provided probable cause to an independent magistrate to suspect such party’s involvement in illegal activity. The warrant requirement is not a burdensome formality designed to protect those who would engage in illegal activity, but, rather, a procedure which guarantees a measure of privacy and personal security to all citizens. The interests of both society and the individual should not rest upon the exercise of the unerring judgment and self-restraint of law enforcement officials. 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.” Beavers, at 566.

Since the police in this case did not obtain a search warrant authorizing the recording of the conversation, the recording was the result of an illegal search and seizure and the trial court erred in admitting it into evidence.⁴ The defendant’s conviction must be reversed.

Reversed.

M. F. Cavanagh, J., concurred.

1 Participant monitoring refers "to the use of an electronic device by a participant of a conversation which transmits the exchange to a third party”. Beavers, supra, at 562, fn 2.

2 We are aware that eight years prior to White Justice Harlan upheld warrantless participant recording in Lopez v United States, 373 US 427; 83 S Ct 1381; 10 L Ed 2d 462 (1963). Justice Harlan himself acknowledged, however; that due to his opinion in White, the continued validity of Lopez might be open to question. White at 788, fn 24. We also note that there is a significant distinction between the participant recording in Lopez and the one that happened in the present case. In Lopez the recording was done by a person who the defendant knew was a government agent. Although we do not now need to decide whether this distinction would cause us to reach a different result, it must be recognized that there is a considerable difference in a person’s expectations concerning whether the contents of his conversation will go beyond the participants in instances where an individual knows he is talking to a government agent, and in situations where he thinks he is talking to a private citizen. Justice Harlan also recognized this distinction, and stated that it "may provide a focus for future distinctions [from Lopez]”. White at 788, fn 24. Therefore, given his strong stand in White and his recognition of the unique relationship of the parties in Lopez, Justice Harlan’s position in Lopez cannot be used as unequivocal support for all warrantless participant recordings.

3 The dissent seemingly believes that our opinion will prohibit police from recording calls that come into the police station or to emergency numbers. Again, however, one must look to the expectations of the nonrecording party. A person who initiates a call to a police department in order to obtain help or information expects that his call will be transcribed or otherwise recorded by the person called and then transmitted to whomever is necessary so that assistance may be forthcoming. An individual who engages in a private conversation with another does not expect that his conversation will be recorded and then broadcast to others. Therefore, nothing in this opinion will preclude police from recording phone calls to police stations and emergency numbers.

4 Since it is the recording, not the participant’s testimony which is inadmissible, the participant may still testify concerning the contents of the conversation. See Beavers, supra, at 567.