Opinion
Docket No. 29938.
Decided June 20, 1977. Leave to appeal applied for.
Appeal from Recorder's Court of Detroit, George W. Crockett, Jr., J. Submitted May 11, 1977, at Detroit. (Docket No. 29938.) Decided June 20, 1977. Leave to appeal applied for.
Nicholas Sacorafas was charged with bribery and willful neglect of duty. Defendant moved to suppress as evidence certain taped conversations. Motion denied. Defendant moved for a rehearing of the motion. Previous judge not available, and defendant's motion was granted by a subsequent judge assigned to the case. The people appeal by leave granted. Reversed and remanded.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Patrick J. Devlin and Robert C. Ward, Jr., Assistants Attorney General, for the people.
Lippitt, Harrison, Perlove, Friedman Zack, for defendant.
Before: BASHARA, P.J., and QUINN and BEASLEY, JJ.
The people appeal on leave granted from an order suppressing certain tape recordings made without prior search warrants. The tapes were to be offered in evidence in the prosecution of defendant on bribery charges and a willful neglect of duty charge. The tapes were made without defendant's knowledge but with the cooperation and consent of one Fish whose dealings with defendant gave rise to this prosecution. Fish was the other party to the recorded conversations with defendant.
Defendant was arrested April 16, 1974; preliminary examination was held April 26, 1974, and defendant was bound over for trial. 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.
The people state the first issue as:
"The lower court, lacking jurisdiction, erred in granting defendant's untimely motion to dismiss."
Because of our analysis of the basic question of whether the order of suppression was erroneous, we find it unnecessary to write to the timeliness question. However, this case was reassigned to Judge Crockett. He was acting on his own in granting the motion to suppress and was not reviewing or revising an order of another judge within the concept of MCLA 726.2; MSA 27.3552. We find that Judge Crockett had jurisdiction to act on the motion.
The fact that Judge Crockett had authority to act does not eliminate the possibility that the action was otherwise erroneous. It was error to order suppression for two reasons:
1. Judge Leonard's order denying suppression was never appealed. Defendant was not entitled to a second hearing on the same matter, People v Lenic, 255 Mich. 29; 237 N.W. 35 (1931). Sound policy dictates the rule; it is a necessary tool in controlling the length of litigation and assuring the termination thereof expeditiously. Here, defendant took an interlocutory appeal to the Supreme Court, but he did not question Judge Leonard's order denying suppression, nor did he seek a rehearing before Judge Leonard.
The only relaxation of the Lenic rule that has come to our attention is found in People v Olajos, 397 Mich. 629; 246 N.W.2d 828 (1976). There it was held that it was discretionary with the trial judge to allow renewal of a suppression motion after facts were more fully developed at trial. Here, there were no new facts but two new decisions.
2. All monitoring in this case was prior to April 7, 1975, the effective date of Beavers, supra. We recognize that Plamondon, supra, held Beavers to be retroactive in spite of the language of Beavers, but we decline to follow Plamondon. We find the reasoning of People v Livingston, 64 Mich. App. 247; 236 N.W.2d 63 (1975), supports the correct reading of Beavers and its inapplicability to the case before us. The monitoring here did not require prior search warrants, United States v White, 401 U.S. 745; 91 S Ct 1122; 28 L Ed 2d 453 (1971).
The conclusion that the suppression here was error obviates discussion of the remaining errors raised by the people, but we do respond to defendant's argument that the tapes must be excluded because of a violation of MCLA 750539. et seq.; MSA 28.807 et seq., (eavesdropping statute). People v Livingston, supra, decides this contention correctly and adversely to defendant. People v Warner, 65 Mich. App. 267; 237 N.W.2d 284 (1975), is not inconsistent with Livingston. In Warner, a factual difference made the statute inapplicable.
Reversed and remanded for trial.
BEASLEY, J., concurred.
I concur in the result reached by the majority opinion. However, I do not agree with all of the reasons cited therein.
I believe that defendant was entitled to a rehearing on his motion to suppress. It strikes me as incongruous to hold that Judge Crockett had jurisdiction to hear the motion, while at the same time implying that any disposition he made would have been meaningless because defendant was not entitled to the second hearing. The rule of People v Lenic, 255 Mich. 29; 237 N.W. 35 (1931), does not appear to me to deny a defendant a rehearing on a trial court motion.
It is evident from the record that defendant requested the rehearing based upon his belief that 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), lv granted, 395 Mich. 813 (1975), which were released subsequent to Judge Leonard's original denial of the motion, had changed the applicable Michigan law on warrantless electronic surveillance. I cannot agree that defendant is precluded from seeking a new ruling on a motion where intervening case law could affect the trial court's deliberation. To deny the rehearing would leave to this Court the decision on the merits when the trial court should first be given the opportunity to rule. Defendant sought the rehearing before Judge Leonard's successor and that rehearing was properly granted.
I agree with the majority that Judge Crockett erroneously granted the motion to suppress the tapes. However, I do not agree that the decision in Plamondon, supra, holds Beavers, supra, to be retroactive despite the clearly prospective holding in Beavers. My reading of Plamondon indicates that the Plamondon Court expressly recognized the prospective nature of Beavers and accordingly declined to use Beavers as precedent. While it is true that the Plamondon Court independently came to the same result as Beavers, it did not on its face hold Beavers to be retroactive.
I would hold that the suppression of the tapes was erroneous in the present case since no warrant was required prior to Beavers. See United States v White, 401 U.S. 745; 91 S Ct 1122;
28 L Ed 2d 453 (1971). I agree with the majority in declining to follow Plamondon, and instead apply the reasoning of People v Livingston, 64 Mich. App. 247; 236 N.W.2d 63 (1975), and People v Drielick, 56 Mich. App. 664; 224 N.W.2d 712 (1974), lv granted, 396 Mich. 813 (1976).