Opinion
Docket No. 146667.
Decided January 22, 1992, at 9:10 A.M.
Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, Wesley J. Nykamp, Prosecuting Attorney, and Gregory J. Babbitt, Assistant Prosecuting Attorney, for the people.
Balgooyen Law Offices, P.C. (by Gerald W. Gibbs), for the defendant.
Before: HOLBROOK, JR., P.J., and SAWYER and GRIFFIN, JJ.
ON REMAND
This case is once again before us, now on remand from the Supreme Court. We originally set aside defendant's conviction of possession of cocaine, MCL 333.7403(2)(a)(iii); MSA 14.15(7403)(2)(a)(iii), having concluded that the cocaine was illegally seized pursuant to a defective search warrant. People v Tejeda, 181 Mich. App. 450; 449 N.W.2d 908 (1989). In an opinion on rehearing, however, we concluded that defendant could be retried, as long as the illegally obtained evidence was suppressed. People v Tejeda (On Rehearing), 188 Mich. App. 292; 469 N.W.2d 77 (1991). The Supreme Court, in lieu of granting leave to appeal, has now remanded the matter to us for reconsideration in light of People v Collins, 438 Mich. 8; 475 N.W.2d 684 (1991). 439 Mich. 869.
In Collins, the Court overruled its prior decision in People v Beavers, 393 Mich. 554; 227 N.W.2d 511 (1975), which required a search warrant before police could engage in electronic participant monitoring. Our original decision in this matter was based on the conclusion that the warrant allowing participant monitoring in this case was defective under Beavers. Because Beavers has now been overruled, the fruits of the participant monitoring in the case at bar are now admissible.
I.e., electronic monitoring of a conversation where a participant to that conversation has consented to the monitoring.
Because the evidence obtained from the participant monitoring can now be deemed to have been lawfully obtained, we must reevaluate the validity of the third search warrant issued, which authorized the search of defendant's bookstore for the cocaine. We are persuaded that the evidence obtained from the electronic monitoring of the conversation between defendant and the informant, Raymond, established probable cause to issue the search warrant for the bookstore.
One last issue, which defendant raised in the original appeal but which we declined to address in our previous opinions, remains in this case. Defendant argues that the search warrant for the bookstore was defective because it was not issued by a neutral and detached magistrate. Specifically, defendant points to the fact that police officers waited in the magistrate's office while Raymond delivered the cocaine to defendant and other officers electronically monitored the conversation. The waiting officers then received a telephone call from the officers monitoring the conversation and filled in the remainder of the search warrant affidavit with the information obtained from the participant monitoring. The affidavit and warrant were then presented to the magistrate, who issued the final search warrant.
We see nothing improper with officers waiting in chambers to learn of the results of a controlled delivery so that they may proceed with obtaining a search warrant. Indeed, this is preferable to having the police proceed with a search on grounds of exigent circumstances because of delay that could be occasioned by taking time to obtain a warrant and the subsequent threat of a loss of evidence. The mere fact that police wait in court does not mean that the magistrate has injected himself into the investigatory process. We are satisfied that a judge may remain neutral and detached even with the presence of officers in chambers.
Defendant's conviction is reinstated.