STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6106

November 23, 1982

CRIMINAL LAW:

Monitoring of conversation by law enforcement officer to protect safety of undercover officer

A police officer may monitor, without a search warrant, the conversation between an undercover police officer and a suspected law violator where the object of the monitoring is the safety of the undercover officer and not the purpose of obtaining evidence.

An undercover officer may, without a search warrant, transmit a conversation where the objective of the wearer of the transmitter is his or her personal safety and not for the purpose of obtaining evidence.

Colonel Gerald L. Hough

Director

Department of State Police

714 South Harrison Road

East Lansing, Michigan 48823

You have requested my opinion on the following question:

By participant monitoring you mean the use of a transmitter by a participant police officer or agent of a conversation with another person which is transmitted to a third person who is a police officer for the purpose of monitoring the personal safety of the participant officer.

By way of prologue, it is deemed appropriate to observe that your question places in juxtaposition the equality of the right of a suspected law violator to be nonmonitored, so to speak, on the one hand, and of the undercover officer to have his personal safety monitored, on the other hand. Within the context of the given facts out of which your question arises, it is readily apparent that a rule of evidence dealing with admissibility is subject to being equated with another person's physical well-being. In this connection, the latter's rights may not be overlooked in setting the stage for, and in responding to, your inquiry.

The criminality of such conduct may arise under either Michigan or federal law, as both Michigan and United States statutes declare interception of certain private conversations to be a crime in certain delineated contexts.

The federal statute which makes interception of private conversations a felony is Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 USC 2510-2520 (1968). That title deals with interception of wire communications and oral communications by the use of any electronic, mechanical or other device. 18 USC 2510, supra, provides, in pertinent part:

In 18 USC 2511, supra, Congress has provided:

'shall be fined not more than $10,000 or imprisoned not more than five years or both.

Thus, though participant monitoring--transmission of a conversation to a third party by a participant in the conversation--of a conversation without a warrant between an undercover police officer and a suspected criminal may render certain evidence inadmissable at trial [See, People v Beavers, 393 Mich 554; 227 NW2d 511 (1975), cert den, 423 US 878; 96 S Ct 152; 46 L Ed 2d 111 (1975)], because such police activity is under color of law and utilizes a participant in the conversation, it is clearly not a crime within the context of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. 18 USC 2511(2)(c), supra.

Determining whether such practice by the police is a crime under Michigan law requires analysis of 1931 PA 328, Sec. 539a et seq, as added by 1966 PA 319; MCLA 750.539a et seq; MSA 28.807(1) et seq, dealing with eavesdropping and surveillance. The statute makes eavesdropping upon private conversations a felony:

The Legislature has defined 'eavesdropping' for purposes of 1931 PA 328, Sec. 539a et seq, supra:

The police officer monitoring the conversation being transmitted by the undercover officer, by overhearing the private discourse of others, is eavesdropping within the definition of 1931 PA 328, Sec. 539a, supra. Unless the activity comes within one of the exceptions set forth at 1931 PA 328, supra, Sec. 539g, he or she is in violation of 1931 PA 328, Sec. 539c, supra.

The undercover officer who is transmitting the private conversation, by knowingly aiding the monitoring officer's violation of the statute, is also in violation of 1931 PA 328, Sec. 539c, supra, unless either he or she or the monitoring officer is within one of the exceptions of 1931 PA 328, Sec. 539g, supra.

The determination of whether use of a body transmitter without a warrant by police is a crime depends upon the construction given the underscored phrase contained in the only applicable exception in the eavesdropping statute, 1931 PA 328, Sec. 539g(a), supra:

This act shall not be construed to prohibit:

If the word 'law' in the phrase 'not otherwise prohibited by law' was intended to encompass only statutory proscriptions, then warrantless, police participant monitoring is not, of itself, a crime under 1931 PA 328, Sec. 539a et seq, supra. However, police activity which violates 1931 PA 328, Secs. 539a-539f, supra, would not be excepted by 1931 PA 328, Sec. 539g(a), supra, under this construction if it also violates a different prohibitory statute. For example, police eavesdropping through the wiretapping of a telephone would be a violation of 1931 PA 328, Sec. 539c, supra, if conducted in a manner otherwise prohibited by 1931 PA 328, supra, Sec. 540.

On the other hand, if 'law' is construed, additionally, to include judicial interpretations of provisions contained in US Const and Const 1963, then warrantless participant monitoring arguably may be a violation of 1931 PA 328, Sec. 539c, supra, outside the exception created by 1931 PA 328, Sec. 539g(a), supra, based on the Beavers, supra, holding that warrantless participant monitoring by police for investigative purposes violates Const 1963, art 1, Sec. 11.

Michigan appellate courts have given 'law' a variety of constructions, usually based upon the context in which it is used. Several decisions have construed 'law' within a statutory use of that term as including only state legislation. Fennell v Common Council of Bay City, 36 Mich 186, 190 (1877); Delta County v City of Gladstone, 305 Mich 50, 53-54; 8 NW2d 908, 909 (1943); Lobaido v Department of Corrections, 37 Mich App 171, 174; 194 NW2d 444, 445 (1971). These cases also excluded ordinances from the scope of the term 'law.'

On at least one occasion, an appellate court has implicitly construed 'law' as it appeared in a statute as including constitutions as well as statutes. Lawrence v Department of Corrections, 88 Mich App 167; 276 NW2d 554 (1979), lv den 407 Mich 909 (1979).

'Law' as used in provisions of Const 1963 and US Const has been interpreted in some contexts as applying only to state legislation. Beech Grove Investment Co v Civil Rights Commission, 380 Mich 405, 418-419; 157 NW2d 213, 219 (1968). See also, OAG, 1975-1976, No 4917, p 222, 225 (December 24, 1975); OAG, 1977-1978, No 5128, p 153, 156 (June 20, 1977); OAG, 1977-1978, No 5395, p 705, 707 (December 11, 1978); OAG, 1979-1980, No 5728, p 827, 828 (June 16, 1980). In another constitutional context, 'law' has been defined as including either statutes or constitutional provisions. Kern v Arbeiter Unterstuetzungs Verein, 139 Mich 233, 245; 102 NW 746, 750 (1905). In American Youth Foundation v Benona Twp 8 Mich App 521, 529; 154 NW2d 554, 558 (1967), the Court of Appeals construed 'law,' as used in Const 1963, art 9, Sec. 4, as being the common law together with the statutory law. 'Law,' in the phrase 'civil rights guaranteed by law,' was determined to include statutes, constitutional provisions, and the common law. Beech Grove, supra, 380 Mich 405, 419, 438; 157 NW2d 213, 219-220, 229.

Thus, it is apparent that the phrase 'not otherwise prohibited by law,' as found in 1931 PA 328, Sec. 539g(a), supra, is amendable to varying interpretations. Statutory provisions that are clear and unambiguous must be enforced as written. Nordman v Calhoun, 332 Mich 460, 465; 51 NW2d 906, 909 (1952). However, where a section of a statute is not clear and unambiguous, such as 1931 PA 328, Sec. 539g(a), supra, the statute must be construed so as to give effect to the intention of the Legislature and the general purpose of the act taken as a whole. Metropolitan Council No 23, AFSCME v Oakland County Prosecutor, 409 Mich 299, 318; 294 NW2d 578, 585 (1980); Ballinger v Smith, 328 Mich 23, 31-32; 43 NW2d 49, 53 (1950).

Moreover, since we are here concerned with a penal statute, a fundamental rule of statutory construction requires that it be strictly construed in favor of an accused violator. People v Goulding, 275 Mich 353, 358; 266 NW 378, 380 (1936); People v Lockhart, 242 Mich 491, 494; 219 NW 724, 725 (1928). 'If there is doubt as to whether the act charged is embraced in the prohibition, that doubt is to be resolved in favor of the defendant.' People v Ellis, 204 Mich 157, 161; 169 NW 930, 931 (1918).

That the term 'law' encompasses state statutes may not be doubted. Every court construing 'law' recognizes that statutes are included. Whether the provisions of constitutions and judicial interpretations thereof are also within the ambit of 'law' is less clear. See, Beech Grove Investment Co, supra. It must, therefore, be determined whether the Legislature intended the use of the term 'law' to include constitutional provisions and judicial interpretations of constitutional provisions. Ballinger, supra.

If 'law' includes judicial interpretations of constitutions, the conduct prohibited by the eavesdropping statute is subject to change by the courts. For example, in 1966 when the eavesdropping provisions were added to the criminal code by 1966 PA 319, supra, eavesdropping without physical intrusion of a private place was not regarded as subject to the search and seizure clause of the United States Constitution. Silverman v United States, 365 US 505, 510-511; 81 S Ct 679, 682; 5 L Ed 2d 734, 738-739 (1961). Just one year after Michigan's criminal eavesdropping statute was passed, the United States Supreme Court ruled that the interception of a conversation in which the participants had a reasonable expectation of privacy was subject to the warrant requirements of the search and seizure clause of US Const, Am IV, even without any physical breach of a private place. Katz v United States, 389 US 347, 353; 88 S Ct 507, 512; 19 L Ed 2d 576, 583 (1967).

Another example is warrantless police participant monitoring of private conversations for investigative purposes which was ruled by the Michigan Supreme Court in 1975 to be an unconstitutional search and seizure, violating Const 1963, art 1, Sec. 11. Beavers, supra. The search and seizure arising from such monitoring occurring prior to the Beavers decision was not unconstitutional, as the Beavers rule was applied prospectively. Beavers, supra, 393 Mich 554, 568; 227 NW2d 511, 516.

Although the Katz and Beavers cases ruled certain eavesdropping conduct unconstitutional, the sole effect of such unconstitutionality was to render the evidence acquired by such conduct inadmissable in court, under the exclusionary rule. If 'law' in 1939 PA 328, Sec. 539g(a), supra, is construed to include constitutions, then conduct which otherwise rendered certain evidence inadmissable as a means of protecting citizens' rights will become a felonious violation of the Michigan eavesdropping statute, without any amendment of the statute by the Legislature.

'The Legislature, not the judiciary, is the proper body to define crimes and fix punishments.' People v Dillon, 87 Mich App 579, 581; 275 NW2d 28, 29 (1978), lv den 406 Mich 941 (1979). Moreover, the Legislature may not delegate the power to declare what shall constitute a crime to any other body unless authorized by the constitution. People v Hanrahan, 75 Mich 611; 42 NW 1124 (1889). Because Const 1963 does not authorize the Legislature to delegate the legislative function of defining crimes to the judicial branch of government, it is reasonable to conclude that this was not the intent of the Legislature. This conclusion comports with the bases for the rule of strict construction. One of the bases is to ensure a separation of powers of the different branches of government. Statutes are strictly construed in order to avoid judicial encroachment upon the legislative function. United States v Wiltberger, 18 US (5 Wheat) 76, 95; 5 L Ed 37 (1820); Anderson v Commonwealth, 182 Va 560; 29 SE2d 838 (1944).

Since statutes are to be construed to effectuate the intent of the Legislature, Ballinger, supra, and because the Legislature could not have intended a criminal statute to be subject to judicial amendment, it must be concluded that the term 'law' in 1931 PA 328, Sec. 539g(a), supra, does not encompass the provisions of US Const or Const 1963, or judicial interpretations thereof.

Research reveals no common law crimes nor federal statutes other than 18 USC 2510 et seq, supra, which could criminalize, so to speak, the conduct considered in this opinion. Therefore, determining whether the common law or federal statutes are included within the scope of 'law' in 1931 PA 328, Sec. 539g(a), supra, is unnecessary.

Thus, 'law,' as used in the police officer exception to the criminal eavesdropping provisions of the criminal code, 1931 PA 328, Sec. 539g(a), supra, means the statutes of this state, and nothing more. Hence, warrantless police protective participant monitoring is not, of itself, a crime under 1931 PA 328, Sec. 539c, supra.

It is my opinion, therefore, that it is not an unlawful act for a police officer to monitor, without a search warrant, the conversation between an undercover police officer and a suspected law violator, where the objective of the monitoring is the safety of the undercover officer and not for the purpose of obtaining evidence. It is my further opinion that under these circumstances, it is not an unlawful act for an undercover officer, without a search warrant, to transmit a conversation where the objective of the wearer of the transmitter is his or her personal safety and not for the purpose of obtaining evidence.

Frank J. Kelley