July 19, 1974, defendant moved to suppress the tapes, and the motion was denied by Judge Leonard. Thereafter, Judge Leonard was elected presiding judge of recorder's court, and this case was reassigned to Judge Crockett, Jr. April 16, 1976, defendant moved for rehearing on the motion to suppress on the authority of People v Beavers, 393 Mich. 554; 227 N.W.2d 511 (1975), and People v Plamondon, 64 Mich. App. 413; 236 N.W.2d 86 (1975). By order dated June 4, 1976, the tapes were suppressed.
A scheme may itself be constitutional, yet be applied in an unconstitutional manner. Yick Wo v Hopkins, 118 U.S. 356; 6 S Ct 1064; 30 L Ed 220 (1886), People v Plamondon, 64 Mich. App. 413, 426-427; 236 N.W.2d 86 (1975), rev'd on other grounds sub nom People v Drielick, 400 Mich. 559; 255 N.W.2d 619 (1977), cert den 434 U.S. 1047; 98 S Ct 893; 54 L Ed 2d 798 (1978). The defendant has not made out such a claim in this case.
On issue 2, we affirm for reasons different than the non-retroactivity rule of Beavers. In People v Plamondon, 64 Mich. App. 413; 236 N.W.2d 86 (1975), we held that warrantless secret tape recordings made even prior to the decisional date of People v Beavers, 393 Mich. 554; 227 N.W.2d 511 (1975), were inadmissible in evidence. But, the informant, Sergeant Jurkas, testified as to his face-to-face conversations with defendant.
Panels of this Court have split on the application of a warrant requirement to pre- Beavers electronic monitoring. One panel imposed such a requirement in People v Plamondon, 64 Mich. App. 413; 236 N.W.2d 86 (1975), lv granted 395 Mich. 813 (1975). Other panels have refused to do so.
Prior to Beavers, this Court consistently held the warrant requirement inapplicable to telephone conversations monitored and recorded with the consent of a participant, People v Drielick, 56 Mich. App. 664; 224 N.W.2d 712 (1974), People v Rappuhn, 55 Mich. App. 52; 222 N.W.2d 30 (1974), lvden 393 Mich. 808 (1975), People v Karalla, 35 Mich. App. 541; 192 N.W.2d 676 (1971), lv den 386 Mich. 765 (1971), and to third-party monitoring of face-to-face conversations, People v Patrick, 46 Mich. App. 678; 208 N.W.2d 604 (1973), People v Karalla, supra. We take note of a recent decision by another panel of this Court, People v Plamondon, 64 Mich. App. 413; 236 N.W.2d 86 (1975), which dictates the opposite result. Plamondon, a split decision, relying on Katz v United States, 389 U.S. 347; 88 S Ct 507; 19 L Ed 2d 576 (1967), held that the warrant requirement applied to pre- Beavers police monitoring of a telephone call with the consent of one of the participants. The Katz opinion had applied the warrant requirement to police bugging of a telephone booth.
Each state has power to require higher police practice standards than is imposed by the federal Constitution.People v. Plamondon, 64 Mich. App. 413, 236 N.W.2d 86 (1975); People v. Beavers, 393 Mich. 554, 227 N.W.2d 511 (1975); Breese v. Smith, 501 P.2d 159 (Alaska 1972); State ex rel Arnold v. County Court, 51 Wis.2d 434, 187 N.W.2d 354 (1971). See decisions collected at footnote 11, People v. Drielick, 400 Mich. 559, 255 N.W.2d 619 (1977).