Summary
In People v Warner, 401 Mich. 186, 196, 207; 258 N.W.2d 385 (1977), the Court found that exigent circumstances existed when a telephone operator overheard one party say, "`I've got drugs'".
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Docket No. 57767.
Argued October 7, 1976 (Calendar No. 12).
Decided October 4, 1977.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Raymond L. Scodeller, Prosecuting Attorney, and Lee W. Atkinson, Chief Appellate Attorney, for the people.
State Appellate Defender Office (by F. Martin Tieber and Roger L. Wotila, of counsel) for defendant.
Defendant, charged with possession and attempted use of heroin, was arrested in a motel room as a result of a motel switchboard operator's divulgence to police of the contents of an intentionally intercepted telephone conversation. Defendant was neither shown to be a party to that conversation, nor present when it took place, and the police did not know or have reason to know that the interception was illegal.
Defendant in this Court contends that, under Michigan and Federal law, testimony of the woman who intercepted the message as well as testimony of police officers as to what they saw and heard outside the motel room should be suppressed along with the narcotics seized in the warrantless search of that room. He contends that the primary illegality was the intentional interception of the phone call, and that this precluded that testimony from being used in court and tainted the subsequent police action outside of and in the motel room.
As fall-back, defendant contends that even if the police did not know or have reason to know that the information given them at the time of search was illegal, they did know it at the time of the rehearing on the motion to suppress and therefore could not divulge it. Further defendant contends he has standing to invoke 18 U.S.C. § 2518(10)(a)(i) because "circumstantial evidence * * * indicates that [he] was" a party to the conversation and therefore an "aggrieved person" within the meaning of the Federal statute.
The prosecution claims that defendant does not have standing to challenge the illegal telephone interception, that there was no tainted nexus between the illegal intercept and the police raid and that there was probable cause for arrest for a felony being committed in the officers' presence, and for the seizure of the narcotics in connection therewith, and that there was not reasonable time to secure a warrant.
We hold that under Michigan and Federal statutory law, the interception of the telephone message was illegal, but defendant lacks standing to suppress it, and under Federal law, defendant lacks standing to challenge the divulgence and evidence resulting therefrom. We further hold that, although defendant has standing under Michigan law to challenge the resulting evidence based on lack of probable cause and failure to obtain a warrant, these challenges fail on the facts. The Court of Appeals is affirmed.
I — FACTS
Louise Auslander, co-manager of Motel 6, in connecting from the switchboard an outside call to room 235, registered to Nancy Witherspoon, overheard a female voice say, "I've got drugs", followed by the voice of the male caller.
Mrs. Auslander immediately called the Lansing police. When Sergeant Baylis arrived at the motel she advised him of overhearing the telephone call and that Nancy Witherspoon had been making and receiving numerous calls. Sergeant Baylis then called the prosecutor's office and reported what Mrs. Auslander had said. He was advised that due to the noon hour there was not time to get a warrant but that it "would be legally okay to go to the room and enter without the search warrant and seize the materials". Sergeant Baylis then called for uniformed police to assist him.
Sergeant Baylis subsequently got a pass key from Mrs. Auslander, walked past room 235 and let himself into room 231. As he did so, he saw Nancy Witherspoon admit defendant Warner into room 235. Although he had known Ms. Witherspoon through prior encounters, he had not seen her for over a year and did not recognize her at the time.
We adopt the Court of Appeals description of the facts from this point:
"The manager of the motel permitted Sergeant Baylis and three other officers to occupy room 231. Through the partially opened door of room 231, Sergeant Baylis saw a male person stop at room 235. The person rapped and was admitted. The police stationed themselves near the door of room 235 and they overheard conversation emanating therefrom concerning 'bags' or 'bindles', the price of a 'quarter' and the effect of a 'hit'. Water was heard running and they smelled something that smelled like something burning. These observations indicated to Sergeant Baylis that something related to drug traffic was going on in the room and he decided to enter.
"Sergeant Baylis inserted a passkey in the door of room 235 but before he turned it, he heard a female voice within say she had to go downstairs. Thereupon Sergeant Baylis stepped away from the door without turning the key and the door partially opened. It was immediately closed again and an officer said, 'Police, open up' and he kicked the door. Shortly, a voice within said 'I'll open the door'. It was opened and the officers entered.
"Inside, Officer Cross saw the bathroom door open partially and he saw a male person (later identified as defendant) peek out. Officer Cross approached the bathroom door; it closed and he forced it open. He observed defendant standing in front of the sink holding a syringe, a bottle cap and some tinfoil in his right hand. Defendant threw these articles toward the toilet and the syringe went into the toilet, but the bottle cap and tinfoil fell on the floor. Officer Cross retrieved all of the articles, and later the syringe proved to contain heroin. In plain view on a table, there was a small wooden box with the lid open. In it were visible small tinfoil packets which later proved to contain heroin.
"At the preliminary examination, defendant contested the admission in evidence of Mrs. Auslander's recitation of what she overheard of the telephone conversation between Nancy Witherspoon and the male caller and the subsequent use of that information by Sergeant Baylis. It was and is defendant's position that by monitoring that call Mrs. Auslander violated the Federal and state eavesdropping statutes, 18 U.S.C. § 2510 et seq.; MCLA 750.539 et seq.; MSA 28.807 et seq. Thus, defendant argues, the illegally obtained information was inadmissible, and under the 'fruit of the poisonous tree' doctrine, Sergeant Baylis could not legally use that information. If this evidence and the use thereof by Sergeant Baylis was barred, defendant contended there was no probable cause for the police to enter room 235, arrest defendant and seize the evidence in question.
"The district judge held that defendant was not an 'aggrieved person', as defined in 18 U.S.C. § 2510(11), and that under the limitation found in 18 U.S.C. § 2518(10)(a) defendant had no standing to raise the issue. The district judge further held that Mrs. Auslander overheard 'I've got drugs' accidentally and that MCLA 750.539e; MSA 28.807(5) did not bar the admission of that portion of the telephone conversation overheard by Mrs. Auslander. The balance of what Mrs. Auslander overheard was barred by the district judge under the state statute last referred to. The district judge found probable cause for the officers to enter room 235 and to arrest defendant and to seize the evidence in question which was received in evidence.
"At the conclusion of the first hearing on the motions to suppress and to quash, the trial judge affirmed the district judge on the issue of defendant not being an 'aggrieved person' under the Federal statute. Although expressing some doubts that Mrs. Auslander overheard any of the telephone conversation accidentally, the trial judge affirmed the district judge on the finding that 'I've got drugs' was overheard accidentally. This affirmance was based on the district judge's opportunity to see and hear the witness. For the foregoing reasons, the trial judge denied the motions to suppress and to quash.
"At the first session on rehearing, two former employees of Motel 6 testified that Mrs. Auslander had admitted to them that she had on occasion deliberately listened to telephone conversations between guests and outside callers. At the second session held June 13, 1974, the prosecuting attorney conceded that Mrs. Auslander had deliberately monitored the outside call to Nancy Witherspoon for reasons which Mrs. Auslander and the prosecuting attorney believed to be legitimate. The information which led to this concession was learned by the prosecutor that day. On the strength of this concession, the trial judge held that the evidence obtained from the monitored telephone conversation was illegally obtained and it was inadmissible. Without the evidence there was no probable cause to enter room 235 and to arrest defendant and to seize the evidence in question. The motions to suppress that evidence and to quash the information were granted." People v Warner, 65 Mich. App. 267, 270-273; 237 N.W.2d 284 (1975).
The people appealed this decision and the Court of Appeals reversed and remanded. That Court, relying on MCLA 750.539e; MSA 28.807(5), found that Sergeant Baylis did not know or reasonably should know that Mrs. Auslander had illegally overheard "I've got drugs". The Court found that, prior to Mrs. Auslander advising the prosecuting attorney on June 13, 1974 that she had deliberately eavesdropped, there was nothing in the record indicating that what she did was other than an accidental and legal occurrence. As a result of this Sergeant Baylis had probable cause to proceed to room 235 for further investigation. The Court of Appeals further found that what was heard and observed outside room 235 established probable cause to enter the room and what they saw there in plain view was sufficient to justify the arrest and seizure of evidence.
II — ISSUES
The first question before us is whether, admitting the intentional interception by Mrs. Auslander was illegal, evidence of the contents of that conversation can be suppressed by defendant.
The second question is whether the illegality of the interception is a basis upon which defendant can challenge the evidence subsequently acquired by the police on the afternoon in question.
III — ILLEGALITY AND ADMISSIBILITY OF INTERCEPTED TELEPHONE CALL
It is clear that Mrs. Auslander's intentional eavesdropping violated both Michigan and Federal law. MCLA 750.539c; MSA 28.807(3) provides:
"Any person who * * * wilfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto * * * is guilty of a felony * * *".
We are not impressed with prosecutor's argument that a telephone switchboard is not included in "any device".
18 U.S.C. § 2511(1)(a) provides:
"any person who * * * willfully intercepts * * * any wire or oral communication * * * shall be fined * * * or imprisoned * * *".
In divulging what she overheard Mrs. Auslander violated MCLA 750.539e; MSA 28.807(5) ("Any person who uses or divulges") and 18 U.S.C. § 2511(1)(c) ("wilfully discloses"). More specifically, by testifying in court, Mrs. Auslander would violate 18 U.S.C. § 2515:
"Whenever any wire or oral communication has been intercepted * * * no evidence derived therefrom may be received in any trial * * * if the disclosure of that information would be in violation of this chapter."
18 U.S.C. § 2515 applies to evidence in a state as well as Federal trial. In Lee v Florida, 392 U.S. 378; 88 S Ct 2096; 20 L Ed 2d 1166 (1968), city police wiretapped Lee's telephone and used the evidence obtained to convict him and two colleagues. "In affirming the convictions, the state appellate court said that 'there were no state or federal statutes applicable in Florida which would make wiretapping illegal and inadmissible in evidence * * * '." 392 U.S. 378, 380. However, speaking of an earlier and much less specific statute, the Supreme Court said:
47 U.S.C. § 605:
"[N]o person not being authorized by the sender shall intercept any communication and divulge * * * such intercepted communication to any person * * *."
"We disagree. There clearly is a federal statute, applicable in Florida and every other State, that made illegal the conduct of the Orlando authorities in this case. And that statute, we hold today, also made the recordings of the petitioners' telephone conversations inadmissible as evidence in the Florida court." 392 U.S. 378, 380.
To the same effect, see People v Tebo, 37 Mich. App. 141; 194 N.W.2d 517 (1971). We hold, therefore, that at least as to the exclusion of evidence which is specifically covered by the Federal statute but not the Michigan statute, Congress has pre-empted the field.
However, in determining who can claim the exclusion of intercepted telephone conversation evidence, reference must be made not only to 18 U.S.C. § 2515, but to 18 U.S.C. § 2518(10)(a) and 18 U.S.C. § 2510(11). Section 2518(10)(a) provides that "[a]ny aggrieved person in any trial * * * may move to suppress * * *". Section 2510(11) reads "'aggrieved person' means a person who was a party to any intercepted wire or oral communication or a person against whom the interception was directed".
The normal rule of statutory construction requires that parts of a statute bearing on the same subject should be construed together. Furthermore, the legislative history of this statute confirms that 18 U.S.C. § 2518(10)(a) and 18 U.S.C. § 2510(11) were intended by the Congress to be considered together.
S Rep No. 1097, 90th Cong, 2d Sess (1968); 2 United States Code Cong Admin News (1968), p 2185 states in this regard:
"The provision [§ 2515] must, of course, be read in light of section 2518(10)(a) discussed below, which defines the class entitled to make a motion to suppress. It largely reflects existing law. It applies to suppress evidence directly (Nardone v United States, 302 U.S. 379; 58 S Ct 275 [ 82 L Ed 314] [1937]) or indirectly obtained in violation of the chapter. (Nardone v United States, 308 U.S. 338; 60 S Ct 266 [ 84 L Ed 307] [1939]). There is, however, no intention to change the attenuation rule. See Nardone v United States, 127 F.2d 521 (CA 2), cert den, 316 U.S. 698 (1942); Wong Sun v United States, 371 U.S. 471; 83 S Ct 407 [ 9 L Ed 2d 441] (1963). Nor generally to press the scope of the suppression rule beyond present search and seizure law."
See United States v Bynum, 513 F.2d 533, 535 (CA 2, 1975).
This reading of the code is consistent with the Fourth Amendment. As the United States Supreme Court said in Alderman v United States, 394 U.S. 165, 171-172; 89 S Ct 961; 22 L Ed 2d 176 (1969):
"The established principle is that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. Co-conspirators and codefendants have been accorded no special standing."
The right to suppression is personal to the one whose right to privacy was violated.
There is no testimony that defendant participated in the intercepted telephone call. The defendant's brief on appeal does not allege it in its statement of facts, saying only "Mrs. Auslander * * * received an outside call from a male caller * * *", and the people's brief charges defendant "would have this Court so infer without his having ever voiced or supported the claim below, and without specifically averring the same now".
Defendant nonetheless argues the fact that circumstantial evidence shows he was the male caller. He says "the male allegedly responded that he would be there (at the motel) in 15 minutes" in response to the female voice saying she had drugs and that Sergeant Baylis testified he was outside room 235 about 15 minutes. But there are two problems with this argument. First, it does not appear that what the male said is on the record. Second, a Greg Bailey was also in the room and he might have been the caller — Sergeant Baylis did not arrive immediately on the termination of the call. Finally, the trial court from its closer vantage after sympathetic review ruled defendant was not an aggrieved person and, in fact, had "not put himself in a position of admitting that he was a party to that intercepted telephone call".
Without opining whether or not the Federal statute pre-empts Michigan law as to the specific issue of standing, we find that the Michigan statute's silence on the subject cannot be presumed to obviate the necessity therefor. It must be assumed that the rule that Fourth Amendment rights are personal controls. United States v Hodge, 539 F.2d 898, 902 (CA 6, 1976); People v Joshua, 32 Mich. App. 581, 585; 189 N.W.2d 105 (1971). Therefore, the Michigan statute too can be asserted in favor of any person, even if indirectly affected by a violation, but only if his or her right to privacy has been invaded. We hold that these are the same individuals as those termed "aggrieved" under the Federal statute; defendant is not such a person.
In short, defendant's case on the record fails as to any proof that he was the male caller. The cases he cites relative to the standing of home owners and persons present have no relevance to the telephone call which, according to defendant, occurred before his presence in the room.
We must conclude that while Mrs. Auslander illegally intercepted a call, defendant had no standing to request the suppression of the message because there was no evidence that he was a party to that call and his rights to privacy therefore were not shown to be violated. The answer to the first question consequently is that the "I've got drugs" telephone message overheard by Mrs. Auslander was admissible into evidence.
IV — ADMISSIBILITY OF EVIDENCE OBTAINED PRIOR TO AND DURING THE SEARCH AND SEIZURE IN ROOM 235
In ruling upon the admissibility of evidence obtained subsequent to and as a result of the interception, as a matter of Federal law, we find that defendant Warner cannot attack indirectly that which he has no standing to attack directly. Alderman v United States, 394 U.S. 165, 174; 89 S Ct 961; 22 L Ed 2d 176 (1969).
Beginning with the initial interception and throughout the subsequent course of events, the only illegalities were in the intentional eavesdropping and divulgence of the intercepted message. Defendant does not become a person whose right to privacy was violated by these illegalities solely by the subsequent seizure from and introduction of evidence against him. Alderman v United States, supra, 171-172.
The second illegality, divulgence of the "I've got drugs" interception to the police, was more nearly a proximate cause of the evidence sought to be suppressed than the interception itself, and the divulgence too was a crime, 18 U.S.C. § 2511(1)(a) (willfully intercepts); 18 U.S.C. § 2511(1)(c) (willfully discloses). However, this analysis does not obviate the fact that while the statute provides that the person who willfully discloses an illegal intercept is equally guilty with the person who willfully makes the interception, it specifically provides for the suppression only in favor of an aggrieved person. 18 U.S.C. § 2518(10)(a) provides:
"Any aggrieved person in any trial, hearing, or proceeding in or before any court * * * may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom on the grounds that —
"(i) the communication was unlawfully intercepted * * *."
As we have already indicated, an aggrieved person "means a person who was a party to any intercepted wire or oral communication or a person against whom the interception was directed". 18 U.S.C. § 2510(11). The illegality violated no personal right of defendant and he is not an "aggrieved" person; removal of the activity a step beyond the actual interception does not give him standing.
Defendant cites Jones v United States, 362 U.S. 257; 80 S Ct 725; 4 L Ed 2d 697 (1960), for two tests regarding standing to challenge the legality of police action; namely, whether the search was conducted in the presence of the accused and whether the accused was charged with a possessory offense. The Jones Court held that one who was on the premises and had a right to be there had standing to attack the lack of probable cause for the issuance of a search warrant.
We do not question the correctness of that decision, and if there were some infirmity in the police action as it related to defendant Warner, there is no doubt that he would be in a position to attack it.
In relying on Jones, however, defendant ignores the fact that there was probable cause to conduct the search in the instant case. This probable cause is found not only in the substance of the message conveyed to Officer Baylis by Mrs. Auslander, which defendant had no standing to challenge, but also in the corroborating evidence adduced by Officer Baylis as he listened to the conversation from the room adjacent to room 235, see Draper v United States, 358 U.S. 307; 79 S Ct 329; 3 L Ed 2d 327 (1959).
In the instant case, the illegalities were ones which did not negate the adequacy of probable cause as to defendant because the illegalities were not personal to him. This can be demonstrated by three recent cases in which warrants were deemed invalid because of basic infirmities as to one defendant. Searches pursuant to these invalid warrants, however, uncovered either evidence directly against a second defendant or led to evidence which established probable cause for warrants against a second defendant. In each case the court held that the second defendant had no standing to suppress the evidence against him because he personally had no standing to challenge the initial illegality. See United States v Wright, 524 F.2d 1100 (CA 2, 1975); United States v Scasino, 513 F.2d 47 (CA 5, 1975), and Haina v State, 30 Md. App. 295; 352 A.2d 874 (1976). Defendant Warner is in the identical position to the second defendants in these cases.
Defendant does, of course, in addition to having standing to question probable cause, have standing under the Fourth Amendment to challenge the validity of the search as warrantless. This challenge, however, fails on the facts. The urgency of the situation, the transfer of possession and potential use of drugs being one which could and apparently did occur within 15 to 30 minutes from the time the police were originally called, in addition to the nature and potential destructibility of drugs, make this the type of case presenting sufficient exigent circumstances to obviate the necessity for a warrant. Compelling a search warrant in cases such as this would so hinder the police as to preclude successful investigation.
Defendant argues that whatever the Federal law may be, under Michigan law the evidence secured in room 235 should be suppressed in a Michigan court. The argument is first that Mrs. Auslander made an illegal intercept; second that Officer Baylis in receiving information from her knew or should have known that it was illegally obtained; and third that, without the illegally received information, Officer Baylis and his colleagues would not have been outside room 235 in a position to hear the information on which they based their entry and gathering of the evidence in question.
We have already discussed the first part of the argument. The critical part is the second, for, if it is factually correct, it is arguable that Officer Baylis illegally received information that tainted his subsequent action. However, there is no evidence on the record that Mrs. Auslander told Sergeant Baylis that she had received her information illegally or that Sergeant Baylis had reason to so believe. Any such inference would be strongly rebutted by the fact she did not admit to the prosecution until during the rehearing on the motion to suppress the evidence and to quash the information that she had eavesdropped intentionally and the district judge had found Mrs. Auslander had overheard the "I've got drugs" accidentally and the circuit court had affirmed this before the prosecutor introduced Mrs. Auslander's belated admission. Consequently we find that Officer Baylis received Mrs. Auslander's information legally. Further, the fact that the prosecutor knew at the time of the rehearing that the message was intentionally and therefore illegally obtained is not knowledge which would so taint the evidence as to warrant suppression, because it was too late to have in any way affected the action of the police in acquiring the evidence.
Because of the facts of this case, we are not required to consider whether art 1, § 11 of the Michigan Constitution of 1963 applies. Art 1, § 11, relative to search and seizure, provides in pertinent part:
"The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug * * * seized by a peace officer outside the cartilage of any dwelling house in this state."
Of course, reliance on this section of the Constitution is unnecessary, because, as already indicated, the evidence is admissible without it under general Michigan law.
Under these circumstances, there is no reason to exclude the evidence in question. Examination of the exclusionary rule dictates this result. The exclusionary rule has a dual purpose: (1) protection of the right to privacy, and (2) deterrence of police misconduct. Neither of these purposes would be served by extension of the rule in this case. First, as fully discussed, defendant on the record has shown no invasion of his right to privacy. Second, the deterrent aim of the rule would in no way be served by holding it applicable to this particular case. The most obvious reason for this is that the illegality was purely private and there was no police misconduct to deter. See People v Livingston, 64 Mich. App. 247, 255; 236 N.W.2d 63 (1975); People v Harry James Smith, 31 Mich. App. 366, 374; 188 N.W.2d 16 (1971). Officer Baylis, in fact, relied in good faith on information from a source he had no reason to question. Further, he took the additional precaution of calling the prosecutor to inquire about the necessity for a warrant.
Because of the facts of this case we need here consider neither the argument of the California Supreme Court [People v Martin, 45 Cal.2d 755; 290 P.2d 855 (1933)] that permission to use evidence against a party that was illegally obtained from third parties invites police invasion of the rights of third parties (see concurring opinion of then Judge LEVIN, People v Joshua, 32 Mich. App. 581, 588, 590; 189 N.W.2d 105 [1971]) nor the argument for limiting the exclusionary rule in that it is a unique procedural safeguard that precludes admission of evidence which is neither unreliable nor lacking in probative value as to the guilt of defendant and hence should not be extended (see dissent of Chief Justice Burger in Bivens v Six Unknown Named Federal Narcotics Agents, 403 U.S. 388, 411; 91 S Ct 1999; 29 L Ed 2d 619 [1971], and authorities therein cited; and Stone v Powell, 428 U.S. 465; 96 S Ct 3037; 49 L Ed 2d 1067 [1976], holding evidence admitted in state trials contrary to the Fourth Amendment no longer reviewable on Federal habeas corpus). See also Fishman, The Interception of Communications Without a Court Order: Title III, Consent, and the Expectation of Privacy, 51 St John's L Rev 41, 66-77 (1976), arguing that, under Federal law, evidence innocently or intentionally obtained by private parties should not be excluded.
Since an analysis of the Michigan law on this phase of the matter reaches the same result as the Federal law, there is no occasion to consider whether the Federal law in this area pre-empts the Michigan law.
V — CONCLUSION
Mrs. Auslander violated 18 U.S.C. § 2511(1)(a) and MCLA 750.539c; MSA 28.807(3) in willfully eavesdropping on the conversation between Nancy Witherspoon in room 235 and an outside caller. But defendant was not shown to be a party to the telephone call and hence, under 18 U.S.C. § 2518(10)(a) and 18 U.S.C. § 2510(11), has no standing to suppress evidence of it. We hold that the Federal statute here is pre-emptive but in any event Michigan law provides for no right of suppression. Const 1963, art 1, § 11.
The police raid as a consequence of the communication of the "I've got drugs" message is not illegal as to defendant and the seized evidence is admissible.
The Court of Appeals is affirmed.
I agree that the Court of Appeals should be affirmed. The police conduct does not warrant suppressing the evidence. They committed no illegal act. They had probable cause to investigate; they had probable cause to enter the room; they had probable cause to arrest defendant and seize the evidence.
Much has been written about the switchboard operator, Mrs. Auslander. For purposes of this case, it is not important whether she is criminally or civilly liable. What is important, as Judge QUINN noted for the Court of Appeals, is that she "was a private individual; she had no connection with the police, nor was her monitoring of the telephone conversation * * * authorized by any police agency". Also, even if her conduct violated a statute, defendant has not demonstrated that he has standing to challenge that violation.
RYAN, J., concurred with COLEMAN, J.
I respectfully dissent from the majority opinion which holds that defendant has no "standing" to challenge the interception of the telephone call and its attendant consequences.
I can summarize my views in no better manner than in the words of Judge Donald Reisig of the 30th Judicial Circuit, the trial judge in the case, whose well-reasoned opinion, delivered from the bench, I adopt as my opinion in this cause.
Following is Judge Reisig's opinion as delivered at the conclusion of the proceedings:
I think it is safe to say that the issues now framed before me at 3:12 this afternoon are significantly different than what issues were framed before the Court of Appeals and the issues as I thought they were going to be at 1:29 this afternoon.
Make no bones about it, Mr. Rasmusson [the prosecutor], since my secretary advised me yesterday afternoon that you had filed the writ of superintending control, I had hoped that they would have granted that writ, that they would have stayed my hand, that they would have superimposed their decisional processes on mine. Why? Because I'm not a brave man. Let them do what must be done. "You can get rid of a hot potato, Reisig, because people are not going to understand complexities of the issues of this case regardless of how you decide it."
I shy from pain. Most people do. There are many things that I have to do here that I would love to duck, and I hope you've given me an opportunity to duck them. But it is now 3:14 and we've not heard from the Court of Appeals and I cannot in conscience any longer run from carrying out my constitutional mandate to uphold the Constitution of the United States, the Constitution of this state, the laws of the United States and the laws of this state, regardless of how my decision may not be understood.
Earlier you and I discoursed, Mr. Rasmusson, about the law.
Mr. Thomas More was a great figure of history and has become a great figure of literature. He fought King Henry and King Henry's attempts to discard his wife. He lost his head for it.
In Robert Bolt's play A Man For All Seasons, Bolt discussed this issue of what is lawful and what is right and how things can be misunderstood in this context. The young man by the name of Rich, who historically as well as fictionally was the person who ultimately betrays Sir Thomas More by entering perjured testimony against More at More's trial, leaves the scene of a discussion with More when he seeks an appointment from More, and as Rich leaves the scene, More's son-in-law, Roper, says:
Bolt, A Man For All Seasons (New York: Vintage Books, 1962), Act 1, pp 37-38. — REPORTER.
"Arrest him.
" Alice: Yes!
" More: For what?
" Alice: He's dangerous!
" Rich: For libel; he's a spy.
" Alice: He is! Arrest him!
" Margaret: Father, that man's bad.
" More: There is no law against that.
" Roper: There is! God's law!
" More: Then God can arrest him.
" Roper: Sophistication upon sophistication!
" More: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal."
No, I didn't like that the first time I read it. I'm not so sure that I still do like it.
But let's go on.
" Roper: Then you set man's law above God's!
" More: No, far below, but let me draw your attention to a fact — I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of the law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God * * *
" Alice: While you talk, he's gone!
" More: And go he should, if he was the Devil himself, until he broke the law!
" Roper: So now you'd give the Devil benefit of law!
" More: Yes. What would you do? Cut a great road through the law to get after the Devil?
" Roper: I'd cut down every law in England to do that!
" More: Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast — man's laws, not God's — and if you cut them down — and you're just the man to do it — d'you really think you could stand up-right in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake."
Counsel know that is what the rule of law is all about. The rule of law and constitutional and legal protections for criminal defendants are not designed to spring guilty people from jail cells, to turn murderers and rapists and, yes, drug pushers loose upon the street to wreak havoc with the innocent populace. They are there, those laws, and those constitutional mandates, to protect your and my rights, to protect them against an intolerant tyrannical sovereign, to protect them, to protect us against the petty, narrow-minded bureaucrat.
Their ambit is broad; their course is not always clear, their nuances, their wording, their syntax is often times confusing, and it takes a Philadelphia lawyer sometimes to find out their meaning. But when faced with a choice between moral aspects, where something can be said on either side — like More, Sir Thomas More — I have found in my life's experience, that attempting to do that which is lawful generally will end up being also that which is right.
Defendant's motion for rehearing is granted. The court considers the matter to have been fully submitted by counsel upon both their previous briefs and their oral presentations here today. I hope to be able to rule upon every issue raised hereon, not necessarily in the same logical fashion that I would if I were to write an opinion. But in light of my present schedule, such a written opinion could not follow in a timely fashion, and I believe it is essential, in the interests of all parties concerned here, that the matter be resolved by this court.
The record below contained in excess of 756 pages, continued what? — four, five days. The witness Louise Auslander was on the witness stand for what? — how long I'm unable to tell. But approximately 100 pages of testimony is my best estimate from looking at the transcript.
Through Mr. Rasmusson's candid admission today, we do know that one crucial and essential part of her testimony was false. We know that she deliberately intercepted the phone call made into room 235.
Without again characterizing her testimony as perjurious, without getting into her motivations, which undoubtedly could well have been the highest minded in the world, it is the function of this court at this time to ascertain the legal consequences of her act of deliberately intercepting a phone call between persons who had not consented to such an interception. Any discussion of this topic must, first of all, be directed to the act known as § 605 of the Federal Communications Act, 47 U.S.C. § 605.
That act indicates the concern of the Congress of the United States when it was adopted. In the findings made by the [Congress], the adoption of that act contained in § 801 of the act, Congress said: "In order to protect effectively the privacy of wire and oral communications, to protect the integrity of court and administrative proceedings, and to prevent the obstruction of interstate commerce, it is necessary for Congress to define on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized, to prohibit any unauthorized interception of such communications, and the use of the contents thereof in evidence in courts and administrative proceedings."
Omnibus Crime Control and Safe Streets Act, 82 Stat 197, 211, § 801. — REPORTER.
The broad dictates of § 605, Federal Communications Act, were made clearly applicable to the states by the decision of Lee v Florida, 392 U.S. 378; 88 S Ct 2096; 20 L Ed 2d 1166 (1968). Briefly reiterated here for the record, the facts of that situation were as follows:
"Upon trial in the Criminal Court of Record for Orange County, Florida, the defendants were convicted for violating the state lottery laws. During the trial, the prosecution was allowed to introduce in evidence recordings of the defendants' telephone conversations, which had been obtained by state police officers by having a telephone connected to the party line of one of the defendants without his knowledge, in such a way as to permit continuous surreptitious surveillance and recording of all conversations on the line. The convictions were affirmed by the District Court of Appeals of Florida for the Fourth District. * * *
"On certiorari, the Supreme Court of the United States reversed. In an opinion by Stewart, J., expressing the view of six members of the court, it was held that (1) § 605 of the Federal Communications Act, which provides that no person not authorized by the sender shall intercept any communication and divulge the existence or contents of such intercepted communication to any person, was applicable to the states, (2) the conduct of the state police officers in the case at bar constituted an 'interception' of the defendants' communications within the meaning of § 605, and (3) the statute prohibited the admission in evidence in state as well as federal criminal prosecutions of communications that had been intercepted in violation of the statute."
20 L Ed 2d 1166. — REPORTER.
In effect, the court overruled the case of Schwartz v Texas, 344 U.S. 199; 73 S Ct 232; 97 L Ed 231 (1952), which had ruled to the contrary. It is clear to the court from this decision that if there has been an illegal interception of a conversation without the consent of the parties thereto, or the sender, as the act says, that that communication cannot be divulged in state proceedings. The Court, in making its decision, cited with approval the case of Nardone v United States, 302 U.S. 379, 382; 58 S Ct 275; 82 L Ed 314 (1937).
"We nevertheless face the fact that the plain words of § 605 forbid anyone, unless authorized by the sender, to intercept a telephone message, and direct in equally clear language that 'no person' shall divulge or publish the message or its substance to 'any person.' To recite the contents of the message in testimony before a court is to divulge the message."
I repeat: "To recite the contents of the message in testimony before a court is to divulge the message."
"The conclusion that the act forbids such testimony seems to us unshaken by the government's arguments.
* * *
"Congress may have thought it less important that some offenders should go unwhipped of justice than that officers should resort to methods deemed inconsistent with ethical standards and destructive of personal liberty. The same considerations may well have moved the Congress to adopt § 605 as evoked the guaranty against practices and procedures violative of privacy, embodied in the Fourth and Fifth Amendments of the Constitution."
No person, no person shall divulge even in a court of law. Congress may have deemed it more important that a guilty person go unwhipped by justice than that this type of activity should be engaged in. The United States Supreme Court has ruled that is a value judgment Congress can make. It is not for Judge Donald Reisig of the Ingham Circuit Court to say to the contrary regardless again of my personal proclivities, feelings or attitudes toward the entire topic of wiretapping or toward the entire topic of drug abuse. Those same policies underlie the whole principle, the whole foundation of the Safe Streets Crime Control Act of 1968 reported in 18 U.S.C. § 2510.
There, upon the heels of the Katz decision, Katz v United States, 389 U.S. 347; 88 S Ct 507; 19 L Ed 2d 576 (1967), Congress authorized wiretapping under very limited and prescribed circumstances and conditions where warrants were sought. Congress detailed the procedures, passed the act for only a limited period of time, prescribed, ordered the filing of reports.
Since this act, as counsel is well aware, there have been constant judicial opinions in recent years with reference to abuses thereof, both at the local level, failure to apply for wiretaps as well as the failure of the attorney general of the United States to properly authorize applications to judges for wiretaps. There is no avowed policy in this country that the private conversations and discourses of others can be deliberately overheard — the avowed policy to the contrary. The exceptions to that avowed policy are just that: they are exceptions and they are exceptions under extremely limited situations: (1) inadvertence, as we discussed at our last meeting, counsel, which is no longer an issue in this case, and (2) when there has been a properly authorized search warrant or wiretap warrant.
The same consideration I have mentioned up to this point with reference to Federal law, § 605 of the FCC Act, and 18 U.S.C. § 2510, et seq., would also apply with application to the state law.
I firmly believe that under the Federal act that I referred to, that no state may make laws less stringent than the Federal regulations in this area. This is in keeping with all basic concepts of constitutional principle and of legislative pre-emption. It is imbued within our concept of twentieth century federalism.
The Michigan Legislature has declared the policy of this state in the Michigan act in no uncertain terms — I shouldn't say no uncertain terms, there are many uncertain terms therein — but in no uncertain terms, at least on this aspect of the controversy, MCLA 750.539a through 750.539i; MSA 28.807(1) through 28.807(9):
"Any person who uses or divulges any information which he knows or reasonably should know was obtained in violation of sections 539b, 539c or 539d is guilty of a felony." MCLA 750.539e; MSA 28.807(5).
Section 539c punishes the person who willfully uses any device to eavesdrop upon the conversation of others, which is the applicable provision here.
Lee v Florida, supra, said the divulgence which is prohibited is not only a private divulgence, a divulgence within law enforcement circles, but the divulgence from the witness stand in the courts. The court cannot and will not be a party to a violation of these legislative mandates. This theory is the theory of the Wisconsin case that Mr. Stafford [defense counsel] has so aptly cited in his brief and which I adopt by reference here.
State, ex rel Arnold v Rock County Court, 51 Wis.2d 434; 187 N.W.2d 354 (1971). — REPORTER.
Next the court turns to the issue again which I have previously ruled upon, as to whether or not under the provisions of 18 U.S.C. § 2510, et seq., the defendant Warner is an aggrieved party under the definition of that Federal act. Since I last discoursed on this topic with counsel, I have reread the act. I can find a possible construction under which Representative Warner is an aggrieved party, or an aggrieved person.
The act reads, again I read from subsection 11, 18 U.S.C. § 2510, "'aggrieved person' means a person who was a party to any intercepted wire or oral communication — " and it is clear here that defendant Warner has not put himself in a position of admitting that he was a party to that intercepted telephone call, "— or a person against whom the interception was directed".
The problem with that language is that, unfortunately what Congress really meant was where the police, either through a valid wiretap order which is not validly performed or through some other action, are specifically going after Reisig, let's say, then Reisig would be an aggrieved person. But because of the very nature of this situation, it cannot be said that Mrs. Auslander, when she intercepted, was necessarily going after any defined or described person, except, I think it's reasonable to say, that she did intend to intercept a conversation between somebody in room 235 and somebody else.
So, certainly, it could be argued that she, in her direct interception to somebody in that room, and maybe perhaps more specifically by way of dicta, to the person who occupied that room, under the Alderman decision, [Alderman v United States, 394 U.S. 165; 89 S Ct 961; 22 L Ed 2d 176 (1969)] can it also be said from this that she directed her interception to anybody else who might be on the line? I think it is at least arguable; it is at least arguable. But we are still then confronted with the problem that we don't know who else was on the line.
Basically it is my ruling that Representative Warner does not come under the clear congressional definition of an aggrieved person, as a person who can attack the tap directly. But we then must come to the other point of the dilemma, and that is: Is Representative Warner a person who may attack the search and seizure of room 235 itself? And this is where the law that Mr. Stafford and which counsel have all cited in their briefs — because it is very pertinent, from Jones [Jones v United States, 362 U.S. 257; 80 S Ct 725; 4 L Ed 2d 697 (1960)] on down to today.
Earlier, during the hearing, I asked Mr. Stafford to repeat the citation, the case he was citing, because I had a case right in front of me, and it was the same case, Brown v United States [ 411 U.S. 223; 93 S Ct 1565; 36 L Ed 2d 208 (1973)]. There the Burger Court ruled that an individual did not have standing, at least upon the record before that court. They found the defendant in that case met none of these elements.
In deciding this case, therefore, it is sufficient to hold that there is no standing to contest a search and seizure, where as here, the defendants (a) were not on the premises at the time of the contested search and seizure. Representative Warner was on the premises at the time of the contested search and seizure; (b) had no proprietary or possessory interest in the premises. By this it means that if I own the home and the search is made thereof even when I am not there, I would have standing. And finally (c) where the defendants were not charged with an offense that includes as an essential element of the offense charged possession of the seized evidence at the time of the contested search and seizure.
For the purposes of attacking the search and seizure, Representative Warner clearly has standing under conditions (a) and (c).
We then turn to the question of the illegality of the search and seizure, the question of how the initial information was obtained. We go back to the interception. A willful, illegal interception was made. In and of itself, Representative Warner was not an aggrieved person to attack that interception. I already ruled that way under the Federal act. But that information was thereafter divulged. It was thereafter disclosed by Mrs. Auslander to a police officer, and that police officer divulged it to others, and eventually that testimony came into this courtroom, or lower courtroom. But for the illegal interception, there would have been no search and seizure. The interception was the direct cause, the proximate cause, a foreseeable cause of the ultimate search and seizure. But for the divulgence of this information to Officer Baylis, there would have been no Officer Baylis standing out in the hallway, no Officer Baylis knocking on the door, or the door opening, no Officer Baylis and other officers entering the room into the activities inside that room. But for the divulgence of this information in the lower court, Representative Warner would not be standing charged with this offense at this time.
By way of dicta, whether or not the original taint in this matter, the illegal interception could have been isolated or insulated, whether or not the primary illegality, counsel, could have been isolated by application for search warrant is perhaps hypothetical, and certainly is dicta to me. But I could much more readily accept that type of argument, a willful interception made by a curious woman who didn't want prostitution to go on in her motel, or whatever might be intercepted. Perhaps divulgence at that time for the purposes of commencing judicial proceedings made the primary taint so attenuated that a valid search and seizure could have been made under a valid and legal search warrant. That the emergency here was not that type of an emergency which might be deemed if we were talking about kidnaping or a bank robbery or extortion or something of that nature.
Information was divulged that there were drugs in that room. Mrs. Witherspoon, I believe her name was, had been registered in that room for three or four days. There was no reason to believe that if a raid wasn't made in 15 or 20 minutes that the drugs somehow would have dissipated. The law prefers a search warrant.
Searches made otherwise are exceptions to the mandates of the Constitution that there shall be search warrants. Many of the exceptions have eaten up the original rule, but it is still the preferred method.
I repeat again — and I believe in history — that the first year that the Michigan search warrant law of 1967 was on the books, when I was prosecutor of this county, I used it 33 times, and I never had one of those warrants attacked in a court of law — and we hit every time, too. We obtained evidence every time.
It is a well-known fact in this county that judges eat lunches. It is also a well-known fact where most of us eat, or at least where some of us eat most of the time. So that the unavailability of judges during a luncheon hour may be a practical problem; it may be a practical hurdle, but it could have been overcome.
Why? Why this theory of law? Why this congressional policy against wiretapping, bugging, electronic surveillance? Why is it so bad, particularly when we catch somebody who may be a criminal? Perhaps it is imbued within our culture, within our heritage that we like our privacy — for good or for evil.
I don't think, unless one has ever been directly affected by this type of thing, followed, harassed, bugged, by forces of law or by forces of darkness, that one can probably really understand it. I know I can't. I have said I would gladly give up some of my freedoms that I never exercised anyway for a little more lawful society, which might also mean a little less work. But that's not the issue.
Katz v United States, which I cited earlier, protects, extends the protections of our Constitution to areas of privacy, broadly stated, to areas where we have a reasonable expectation of privacy. Eavesdropping, at common law, was a nuisance. Historically, to stand under the eaves of somebody else's roof and to listen was an awesome offense for which you could be docked and punished and placed on bond. Over the years the laws have changed a little bit, and we assume because you had to walk across somebody else's property you physically trespassed in order for this to be a crime.
But Boyd v United States [ 116 U.S. 616; 6 S Ct 524; 29 L Ed 746 (1886)], and cases since that time — and that's 1886 — have come out with the idea that it's not a property interest here. A man doesn't have to own or possess property in order to have protection, that one can be homeless, rootless, and moneyless, and still be a citizen in a free society, still have all the rights of all those who are wealthy and moneyed and propertied.
Again it is not for me to say. These dictates of our Constitution, as interpreted by the Supreme Court, are something that I must overlook here so that we can get after the devil.
In my allusions, both to the devil now and in reference to Thomas More, I make no reference to the personage of your client, Mr. Stafford. I'm talking rhetorically only.
The very concepts embodied here in the Federal Communications Act, as Mr. Stafford has pointed out, Michigan long ago adopted this principle, this concept, that we shall exclude from the courts of law illegally obtained evidence regardless of how probative it is. It is said in the Alderman case, supra, on this principle on search and seizure.
But let me make this point also. We exclude regardless of whether it is probative or not to protect the rights of us all. But we also have exclusionary rules which exclude evidence because it is the easiest way to deal with how probative evidence might be. We exclude coercive confessions, yes, because we don't want police agents, agents of the state, coercing people to get confessions. But also we know that those types of confessions are inherently unreliable.
I suggest we touch here upon the errant, unreliable taint and we are confronted with a record of some hundred pages, and we find that some months thereafter that that hundred pages of testimony is shaded by untruths or half truths.
If I have not concluded the standing issue, I find Representative Warner to have standing to attack the search and seizure of the motel room under the doctrine of Brown v United States, supra, and all the other supporting authority.
The primary taint of the illegal interception was not so attenuated as to free the search and seizure of that taint, that there never would have been a search and seizure of the room on that date but for the illegality.
One passing comment, conclusion to my ruling which I'm about to make, which is obvious to you all, leaves the issue of the defendant's ultimate complicity in this matter something for speculation. I don't know how he might personally feel about the matter, but perhaps put in his shoes I might well feel that I have lost my day in court.
Be that as it may, whether he be a Representative in the Legislature of the State of Michigan or the lowliest of our citizens, he is equally entitled to the protections of the rule of law. The consequences of this decision and of these events of some ten months ago is something which only he has any capacity to ascertain or to handle.
It is the order of this court, having granted rehearing, that my earlier decision, which has never been reduced to writing by order, based upon new facts is set aside, and I hereby order that the evidence seized in this matter as the result of the search on August 15, 1973, is suppressed. Having reviewed the record, this court finds no competent legal evidence exists or can be produced upon which the defendant Dale Warner can now be prosecuted. The information is quashed. An order may enter accordingly.
KAVANAGH, C.J., concurred with FITZGERALD, J.
Dale Warner is awaiting trial on charges related to the use and possession of narcotics. The circuit judge granted a motion to suppress physical evidence derived from information obtained by intercepting a telephone conversation. The issue is whether the derived evidence should, pursuant to statute, be suppressed.
While the telephone conversation was intercepted by a private citizen, not acting for the police, the Federal statute makes willful interception of a telephone conversation unlawful. The prosecutor formally conceded that the interception was "not inadvertent".
The statute provides that an "aggrieved person" may move to suppress evidence derived from an unlawful interception.
The Court of Appeals did not reach the question whether Warner was an aggrieved person; it ruled that the derived evidence, obtained when Warner was arrested as a result of further investigation by the police, is admissible because the police did not know that the telephone information had been unlawfully obtained.
The circuit judge reached the standing question. He declared that Warner was not an aggrieved person under the statute because he had not admitted that he was a party to the intercepted telephone conversation. He suppressed the evidence on the ground that Warner had standing to complain of the search and seizure, at the time of arrest, which yielded the derived evidence.
Warner did not testify at the evidentiary hearing. The standing question was, however, put in issue by the claim, supported by circumstantial evidence, of Warner's counsel that he was an aggrieved party.
The motion to suppress was decided by the circuit court on the record made at the preliminary examination, supplemented on rehearing to support the contention that the interception was purposeful. It is unusual for the defendant to testify at the preliminary examination and it is therefore not surprising that Warner did not testify at the time.
Warner's standing as an aggrieved party could be established through evidence other than Warner's testimony or admission. Contrary to a colleague's conclusion that "there was no evidence that [Warner] was a party to that call", there was sufficient circumstantial evidence to establish prima facie that Warner was a party to the telephone conversation.
The circuit judge, having concluded that an admission by Warner was prerequisite, made no factual findings on the question whether Warner was an aggrieved person under the statute. On remand there should be further fact finding and the derived evidence should be suppressed if it is found that Warner was a party to the intercepted conversation.
I
Louise Auslander, a motel desk clerk and co-manager, received an outside telephone call from a man for room 235 shortly before noon. She testified that she overheard a female voice say "I've got drugs". Auslander reported the conversation to the Lansing police. Sergeant Baylis arrived at 11:50 a.m. Auslander admitted Baylis to a room near room 235. Baylis observed Warner enter room 235 and then he positioned himself in the hallway in front of that room. After listening for about 15 minutes to the conversation emanating from that room, uniformed officers announced their presence and entered. Warner was observed holding narcotics paraphernalia, was arrested, and the paraphernalia, later proved to contain heroin, was seized.
At the preliminary examination Warner sought suppression of the seized evidence pursuant to the Federal and Michigan statutes. The statutes proscribe the "willful" interception of telephone communications. The district judge concluded that Auslander's interception was inadvertent and therefore not willful. He denied the motion to suppress and bound Warner over to circuit court on the narcotics charges.
18 U.S.C. § 2510 et seq.
MCLA 750.539 et seq.; MSA 28.807 et seq.
The Michigan statute parallels the Federal statute but does not provide explicitly regarding standing or suppression of evidence.
"Except as otherwise specifically provided in this chapter any person who —
"(a) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire or oral communication;
* * *
"(c) willfully discloses, or endeavors to disclose, to any other person the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subsection;
* * *
"shall be fined not more than $10,000 or imprisoned not more than five years, or both." 18 U.S.C. § 2511(1).
The circuit judge at first concluded that because the district judge had the advantage of seeing Auslander he should accept his conclusion that she was not purposefully attempting to overhear or intercept the conversation. On rehearing, Warner produced testimony tending to show that the interception was intentional, and then the prosecutor obtained further information which caused him formally to "concede that it was not inadvertent".
Both the district judge and the circuit judge were of the opinion that the conversation following "I've got drugs" necessarily was willfully intercepted and, accordingly, Auslander did not testify on the record to the rest of the conversation. It appears, however, from the circuit judge's opinion that the man's response was "I'll be there in 15 minutes". It further appears from Baylis' testimony that he was standing in the hallway for 15 minutes before he entered room 235 and arrested Warner at 12:20; Warner arrived at the motel shortly after noon, within 30 minutes of the intercepted telephone call which Auslander said came in shortly before noon.
The Court of Appeals also observed that, based on what she overheard, Auslander had given Sgt. Baylis to understand that a drug transaction would take place within a matter of minutes at room 235.
Baylis testified that after reaching police head-quarters at 12:50, he asked Warner why he was in the motel room and he responded "that he had had earlier conversation in the day" with the female occupant of the motel room about his taking her to visit her husband.
II
The Federal statute provides that an "aggrieved person" in any trial, hearing or proceeding in any state or Federal court may move to suppress the contents of an intercepted communication "or evidence derived" therefrom on the ground that the communication was unlawfully intercepted. The term aggrieved person is defined as "a party to any intercepted" communication.
"Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that —
"(i) the communication was unlawfully intercepted." 18 U.S.C. § 2518(10)(a).
The statute also provides:
"Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter." 18 U.S.C. § 2515 (Emphasis supplied.)
In Alderman v United States, 394 U.S. 165, 175-176, fn 9; 89 S Ct 961; 22 L Ed 2d 176 (1969), reh den, 394 U.S. 939; 89 S Ct 1177; 22 L Ed 2d 475 (1969), the Court declared that the legislative history of the act indicates that the term aggrieved person "should be construed in accordance with existent standing rules".
The Supreme Court of California, in People v Martin, 45 Cal.2d 755, 760-761; 290 P.2d 855, 857 (1955), allowed a codefendant to raise the search and seizure issue. This rule was reaffirmed in Kaplan v Superior Court of Orange County, 6 Cal.3d 150, 153; 98 Cal.Rptr. 649, 650; 491 P.2d 1 (1971). Cf. United States v Valencia, 541 F.2d 618 (CA 6, 1976). The American Law Institute, in its proposed Model Code of Pre-Arraignment Procedure, has accepted the view that a motion to suppress things seized may be made by a codefendant who may himself be without standing. ALI, Model Code of Pre-Arraignment Procedure (Proposed Official Draft No 1, 1972), § 290.1(5).
Warner does not contend that he is a person "against whom the interception was directed", nor is it necessary in the present posture of the case to consider whether a person who is not an actual speaker may be a party to a conversation.
The circuit judge declared that Warner was not a party to the intercepted telephone conversation because "it is clear here that defendant Warner has not put himself in a position of admitting that he was a party to that intercepted telephone call".
Warner's counsel, in response to a question from the judge, said that "if you were to accept [the testimony of the people's witnesses], I think they have shown a prima facie case that would make the defendant an aggrieved person under that statute".
Contrast In the Matter of Berry, 521 F.2d 179 (CA 10, 1975), cert den 423 U.S. 928; 96 S Ct 276; 46 L Ed 2d 256 (1975), reh den 423 U.S. 1039; 96 S Ct 577; 46 L Ed 2d 414 (1975), where the United States Court of Appeals for the Tenth Circuit held that the defendant was not an aggrieved person because he had not claimed to be an aggrieved person and there was no evidence indicating the possibility of an illegal electronic surveillance. Similarly, see Sponick v Detroit Police Department, 49 Mich. App. 162, 197; 211 N.W.2d 674 (1973), where it was held that the defendants did not have standing because they did not allege that they were aggrieved persons and had not indicated "in any manner whatsoever just what evidence submitted against them was derived from illegal electronic surveillance".
In United States v Ransom, 515 F.2d 885 (CA 5, 1975), reh en banc den, 520 F.2d 944 (CA 5, 1975), cert den, 424 U.S. 944; 96 S Ct 1412; 47 L Ed 2d 349 (1976), reh den, 425 U.S. 945; 96 S Ct 1687; 48 L Ed 2d 189 (1976); United States v Armocida, 515 F.2d 29 (CA 3, 1975), cert den, 423 U.S. 858; 96 S Ct 111; 46 L Ed 2d 84 (1975); and United States v Bynum, 513 F.2d 533 (CA 2, 1975), cert den, 423 U.S. 952; 96 S Ct 357; 46 L Ed 2d 277 (1975), cited by the people, it was established that the defendant was not a party to the conversation.
It is manifest that Warner's standing as an aggrieved person could be shown by evidence other than his own testimony asserting that he was the "male voice". That he was the "male voice" could have been shown, for example, through the testimony of the "female voice" or Auslander or someone who was with Warner when he placed the call. His standing as an aggrieved person could also be established by circumstantial evidence without direct evidence or testimony.
The circuit judge erred in concluding, as a matter of law, that Warner was not an aggrieved person because he had not admitted he was a party to the conversation.
Compare People v D' Angelo, 401 Mich. 167; 257 N.W.2d 655 (1977), where this Court said "the defendant will not be required to admit the criminal act in order to raise the entrapment issue".
See, also, Simmons v United States, 390 U.S. 377, 393-394; 88 S Ct 967; 19 L Ed 2d 1247 (1968), where the United States Supreme Court said "[i]n these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another".
In United States v Banks, 374 F. Supp. 321, 328 (D SD, 1974), it was established that the FBI had unlawfully monitored telephone conversations and had heard the voices of various persons, including the voice of defendant Means or defendant Banks. In holding that both defendants had standing as "aggrieved persons", the court said:
Subsequent decisions relating to this prosecution do not concern this issue and for that reason are not cited.
"This indication that Means could have been overheard, plus the fact that unidentified male voices (which could have been Means') were heard by other FBI agents, both of which are unrefuted, support the Court's conclusion that both defendants have standing in this case." (Emphasis supplied.)
The circumstantial evidence in this case established a prima facie case that Warner was an aggrieved person. Auslander testified that a man had telephoned room 235 and the female occupant of the room said "I've got drugs". It appears from statements of counsel and the judge on the record that the man responded "I'll be there in 15 minutes". Even if it is thought that the portion of the intercepted conversation not formally of record may not be considered even for the purposes of the suppression motion (cf. United States v Banks, supra), there is the evidence that within 30 minutes of the statement "I've got drugs" Warner appeared at room 235 and his statement to Baylis that he had had a conversation with the occupant of the room earlier in the day. It would be reasonable to infer from the evidence of record that Warner was the "male voice".
Surely if we were considering whether an accused could be convicted of making an obscene telephone call there would be no doubt that there is sufficient evidence to make a jury-submissible question on a showing that an unidentified man had made an obscene telephone call to a woman who, in an effort to trap her caller, invited him to meet her and telephoned the police, and within 30 minutes the accused arrived proximately within the time and at the place designated.
MCLA 750.540e; MSA 28.808(5).
There was sufficient circumstantial evidence to warrant a finding that Warner was a party to the telephone conversation. The question whether to draw the inference that he was a party to the conversation is initially for the trier of fact, not this Court. On remand the circuit judge should make findings of fact on this question.
Because the circuit judge originally concluded that the derived evidence should not be suppressed if the interception was inadvertent and later decided to suppress the evidence on alternative grounds, the record was not fully developed. It would therefore be appropriate, in the exercise of the circuit judge's informed discretion, to permit supplementation of the record regarding the whole conversation overheard by Auslander and by such additional evidence as either party may wish to present.
BLAIR MOODY, JR., J., took no part in the decision of this case.