Clinton County Prosecutor v. 65th District Judge

T. M. Burns, J. Phillip Greer (hereinafter defendant) was charged with various violations of the controlled substances act including possession of marijuana with intent to deliver, MCLA 335.341(l)(c), MSA 18.1070(41)(l)(c). On April 2, 1975, a search warrant was issued directing the search of defendant’s home. The warrant was based on the affidavit of a police officer which asserted that a confidential informer was fitted with a hidden transmitter by police officers and sent to defendant’s home. The affiant had a receiver and listened to conversations between the informer and the defendant in defendant’s home. What was heard in this fashion by the officer constituted the justification for the warrant’s issuance. At the preliminary examination on May 13, [52] 1975, defense counsel moved to quash the search warrant and suppress the evidence seized. The district judge entered an order so providing. The people brought a complaint for a writ of superintending control in the circuit court seeking reversal of the district court order. The circuit court issued an order reversing the district court. Defendant was permitted to intervene for the purpose of bringing this appeal. The district court’s decision was based on the ruling in People v Beavers, 393 Mich 554; 227 NW2d 511 (1975). There, a police officer listened via a radio receiver to a conversation between a suspect and a police informant equipped with a concealed radio transmitter used without the suspect’s knowledge. The Supreme Court held inadmissible the testimony of the listening police officer because the police action constituted a search and seizure conducted without a search warrant in violation of the Michigan Constitution. The rule adopted in Beavers was expressly made prospective in application. 393 Mich at 568. The argument in this case is whether the rule applies to police conduct after the release of Beavers or to trials commenced after Beavers. We hold that the rule is to be applied in any proceedings occurring after release of the Beavers opinion. The warrantless monitoring was done on April 2, 1975. Beavers was released on April 7, 1975. The preliminary examination was held on May 13, 1975. Upon reconsideration of the reasoning in People v Livingston, 64 Mich App 247; 236 NW2d 63 (1975), we find the rule stated therein unsatisfactory. It is difficult to accept the proposition that the primary purpose of the exclusionary rule is to "punish” the police and thereby discourage subse [53] quent invasions of individuals’ rights. The purpose is to do justice, Fundamental fairness requires that information gained in violation of basic freedoms be suppressed. Exclusion of such tainted evidence vindicates the wrong done the individual and it strengthens the right by reaffirming the significance with which it is regarded by the courts. It is far more than a rule of evidence or regulation of police conduct.1 The primary purpose of the rule stated in People v Beavers, supra, to uphold the rights of privacy and freedom from unreasonable searches and seizures, calls for its application to all proceedings commenced after its decision. Other factors in determining the applicability of the new rule, reliance on the previous rule by law enforcement officials and consequences for the administration of justice, do not weigh heavily against application of Beavers in the case at bar. The ruling of the district court is, therefore, affirmed. J. E. McDonald, J., concurred. Footnotes [1] See McCormick, Evidence (2d ed), § 166, p 368.