Petition — Michigan v. Artuso

, & Q - 1 Y 8 4 ) Oftrce-Suoren

Fil

No. MAY &

In the Supreme Court of the me

OCTOBER TERM, 1980

Tur PEOPLE OF THE STATE OF MICHIGAN, PETITIONER,

Vs.

ALFRED ARTUSO, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF THE

STATE OF MICHIGAN

WILLtAM L. CAHALAN

Prosecuting Attorney

Wayne County

State of Michigan

EDWARD REILLY WILSON

Principal Attorney, Appeals

By: Timotuy A. BAUGHMAN (P-24381)

Assistant Prosecuting Attorney

12th Floor, 1441 St. Antoine

Detroit, MI 48226

(313) 224-5794

QUESTION PRESENTED

WHERE AGENTS OF THE FEDERAL BUREAU OF INVE

GATION, PURSUANT TO A WHOLLY FEDERAL INVE

GATION, ENGAGE IN CONSENSUAL ELECTRONIC §

VEILLANCE: THAT IS, MAKE AUDIO-VISUAL RECC

INGS OF THE CONSUMMATION OF A CRIME (THE S

OF STOLEN PROPERTY) WHERE THE PURCHAS

PARTY IS AN UNDERCOVER AGENT, THEREBY SATI.

ING 18 USC 2510(2)(c), DOES A STATE COURT HOLD

THAT SUCH RECORDING IS UNLAWFUL AS VIOLAT

THE STATE CONSTITUTION, RENDERING THE RECO

INGS INADMISSIBLE IN STATE COURT, CONFL

SQUARELY WITH 18 USC 2517(3) AND CONSEQUEN

VIOLATE THE SUPREMACY CLAUSE OF THE UNI

STATES CONSTITUTION?

ii

TABLE OF CONTENTS

Question Presented.....-.---+sseeerererrrerees

Index of Authorities ........--:e eee eeeeereeeeee

Opinions Below........----sssserrrrerrstsrt es

Statement of Jurisdiction ........-+++ssererrere

Constitutional Provisions and Statutes Involved ... .-.

Statement of Facts ......---seseeeeeeeeerereees

Reasons for Granting the Writ.....-----++ssss00s

Consensual and Non-Consensual Electronic Surveil-

OP ee WP ag rae Pee ee

iii

INDEX OF AUTHORITIES

CASES

Commonwealth v Vitello, 327 NE 2d 819 (1975) .

People v Conklin, 522 P2d 1049 (Cal, 1974) ....

United States v Hall, 543 F2d 1229(1976) ......

United States v Horton, 601 F2d 319(1979).....

United States v Marion, 535 F2d 697 (1976)

United States v Nelligan, 573 F2d 251 (1978)... .

United States v White, 401 US 745(1971) ......

OTHER AUTHORITIES

MO EMUSONINAD © Sicords ceive vor kars ss

Ne i aE RT OL Bey

PRMNOIR ey, ites ak. des ass

AICO OMII 2. i igs cds discus coon she.

No.

Jn the Supreme Court of the Anitei

OCTOBER TERM, 1980

THE PEOPLE OF THE STATE OF MICHIGAN, PETI

VS.

ALFRED ARTUSO, RESPONDENT.

PETITION FOR A WRIT OF CERTIO)

TO THE COURT OF APPEALS OF 7

STATE OF MICHIGAN

NOW COME the People of the State of Mic

WILLIAM L. CAHALAN, Prosecuting Attorney for |

ty of Wayne; EDWARD REILLY WILSON, Prin

torney, Appeals; and TIMOTHY A. BAUGHMAN,

Prosecuting Attorney, and prays that a writ of certi

to review the judgment of the Court of Appeals of tl

Michigan entered in the above-entitled cause on C

1980, rehearing denied by the Court of Appeals on I

13, 1980, and leave to appeal denied by the

Caaenmaemma fF accet im A. dawtt FO 24 Setimne Bleed 2

OPINIONS BELOW

The opinion of the Michigan Court of Appeal

at 100 Mich App 398; ___. NW 2d (198(

pended as Appendix A. The Michigan Court

order denying rehearing is appended as Apper

order of the Michigan Supreme Court denying le

is appended as Appendix C.

STATEMENT OF JURISDICT ION

The opinion of the Michigan Court of Appea

October 6, 1980, and rehearing was denied on N

1980. The Michigan Supreme Court denied lez

on April 13, 1981. The jurisdiction of this cou

under 28 USC 1257(3).

CONSTITUTIONAL PROVISIONS A

STATUTES INVOLVED

Article 6, clause 2 of the United States Const

in pertinent part:

This Constitution, and the laws of the Unit

which shall be made in pursuance thereof

be the supreme law of the land; and the.

every state shall be bound thereby, anythi

constitution or laws of any state to the cont

withstanding.

18 USC § 2510(2)(c) provides that:

It shall not be unlawful under this chapter

son acting under color of law to intercept

oral communication, where such person

to the communication, or one of the par

communication has given prior consent t

terception.

18 USC § 2517(3) provides that:

Any person who has received, by any mez

ized by this chapter, any information co

wire or oral communication, or eviden

therefrom intercepted in accordance wit!

sions of this chapter may disclose the «

that communication or such derivativ

while giving testimony under oath or affi

any proceedings held under the autho

United States or of any state or political :

thereof.

STATEMENT OF FACTS

The FBI in this case was operating a s

operation. The FBI had rented a front office

so that it appeared that the operation contr

warehouse. The supposed business was |

Distributors, Inc., located in Taylor, Michig.

FBI Agent Thomas Cupples portrayed him

fence, calling himself Thomas Kelley.

Agent Cupples and an agent named Fassa1

duced by a state police detective to an inform

Robinson, who arranged a meeting between

defendant Al Artuso (R-283). After it was est.

agents were fences of stolen property Artuso

he had a stolen flat bed trailer he wanted to s

trailer had been stolen six months earlier in

Artuso said he would sell it for $1,500.00 (R

Subsequently the agents met with Artuso a

Taylor to arrange to see the trailer and rea

(R-309). This was done (R-310-314; 316). |

that payment would occur at the FBI Iowa

fice, which was equipped with audio and

equipment with the express approval of the /

of the United States (R-320-333, 304). The ¢

the crime was taped, both audio and vide

played to the jury (335). Defendant was conv

of receiving and concealing stolen property

$100.00.

On October 6, 1980, the Court of Appeals

viction, because the FBI agents had not ob

before taping the crime, and had theref

Michigan Constitution. Rehearing was deni

13, 1980. The Michigan Supreme Court de

peal on April 13, 1981, 3 of 7 justices disse

REASONS FOR GRANTING TH!

The Michigan Court of Appeals has hel

made by FBI agents in compliance with ¢

Constitution and federal law (and therefor

federal prosecution) are violative of the M

tion and thus inadmissible in state prosec

submits that this holding is in conflict wit

Clause of the United States Constitution.

Article 6, Clause 2 of the United States C

in pertinent part:

This Constitution, and the laws of the |

which shall be made in pursuance the

be the supreme law of the land; and

every state shall be bound thereby, an

constitution or laws of any state to the

withstanding.

18 USC § 2510(2)(c) provides that:

It shall not be unlawful under this cha

son acting under color of law to inter:

oral communication, where such pe

to the communication, or one of the

communication has given prior cons

terception.

18 USC § 2517(3) further provides tha

Any person who has received, by any

ized by this chapter, any informatio:

wire or oral communication, or ev

therefrom intercepted in accordance

sions of this chapter may disclose t

that communication or such dertt

while giving testimony under oath or

any proceeding held under the autho

ted States or of any state or politi

thereof. (emphasis added)

The agents’ conduct in this case was co’

under United States v White, 401 U!

authorized by 18 USC § 2510(2)(c). Since

was in compliance with Title III, their

recordings were admissible in state cou

2517(3). 18 USC § 2517 (3) provides |

disclose the contents of lawfully intercept

any derivative evidence while testifying

Michigan Court of Appeals has held tha

under the Supremacy Clause, 18 USC § 2

“the judges in every state” notwithstandi

the contrary in the state constitution.

CONSENSUAL AND NON-COD

ELECTRONIC SURVEILL

Of course, it may be argued that state

more stringent requirements for electron

Anas Tietla TIT Indeed while it ie clear ee}

impose more stringent requirements ¢

federal prosecutions, see e.g., United .

1229 (1976); United States v Nelligan,

United States v Horton, 601 F2d $19 (1!

for the proposition that state law can

dards than Title III to govern state offic

tions. See Hall supra; United States v

(1976); People v Conklin, 522 P2d lt

monwealth v Vitello, 327 NE 2d 819 (

however, is not inconsistent with petitic

Court of Appeals’ ruling in this case v

Clause.

There are, as it were, two sorts of

covered by Title III: First, what might

surveillance (18 USC § 2510(2)(c)) w

judicial authorization; and second, n

lance, which does require judicial at

ficers may not engage in non-consens

the prosecuting attorney of the approy

sion “is authorized by a statute of that

tion to the state court judge of compe

order authorizing or approving the i

oral communications. ...” 18 USC §

compliance with Title III is condition

state-enabling legislation, that legislati

than Title III itself, and there need be

tion only in the area of non-consensua

in Hall, supra:

To the extent that there is a cot

state and federal legislation ... |

controls under the Supremacy C

stitution ... The state law car

federal unless the federal act itsel

plication of state standards. 545

nhacic added)

Title III only sanctions the applicati

the area of non-consensual surveillar

with state standards is a prerequisit

compliance with Title III. Not so |

lance. Such surveillance is lawful 1

regard to state law, and the results a

under 18 USC § 2517(3). The Mic

holding to the contrary violates the $

United States Constitution. Michigz

FBI agents violated defendant's }

rights consistent with its fealty to the

tion. Congress had pre-empted the fi

ing. See Hall, supra.

CONCLUSIO

It is respectfully submitted th

Michigan Court of Appeals confli

Clause of the United States Const

review should be granted.

Respec

WILLI

Proseci

EDWA

Princiy

TIMO”

Assista

12th F

Detroi

Phone

™ sat, Aaa Of 1Oe%

APPENDIC

or participant monitoring of conversations as a mat-

ter of Federal constitutional law.

He would hold that participant recording should

not be held to require a search warrant under the

Michigan Constitution.

OPINION OF THE COURT

1. SEARCHES AND SEIZURES — SEARCH WARRANTS —

RECORDING TRANSACTIONS.

A search warrant is required where the police record a

transaction with a defendant.

2. EVIDENCE — CRIMINAL LAW — SIMILAR ACTS —

ADMISSIBILITY.

Evidence of similar acts, to be admissible in a criminal prose-

cution, must be probative of defendant's motive, scheme,

plan, system, intent or absence of mistake or accident on his

part in doing the act; furthermore, defendant's motive,

REFERENCES FOR POINTS IN HEADNOTES

[1] 68 Am Jur 2d, Searches and Seizures § 36.

[2] 29 Am Jur 2d, Evidence § 320 et seq.

Admissibility under Rule 404(b) of the Federal

Rules of Evidence, or evidence of other crimes,

wrongs, or acts similar to offense charged to show

preparation or plan. 47 ALR Fed 781.

[3] 29 Am Jur 2d, Evidence § 156.

Instructing on burden of proof as to defense of en-

trapment in federal criminal case. 28 ALR Fed

767.

[4, 7] 68 Am Jur 2d, Searches and Seizures § 46.

(5, 6] 68 Am Jur 2d, Searches and Seizures § 24.

Sa

scheme, plan, system or absence of mistake or accident m

be a issue.

8. CRIMINAL LAW — ENTRAPMENT -- OBJECTI

TEST — BURDEN OF PROOF.

Michigan has adopted the objective test for entrapme

which focuses solely on police conduct rather than on the

dividual defendant's predisposition to commit the offense

successful claim of entrapment must be proved by a prepc

derance of the evidence.

4. CONSTITUTIONAL LAW — SEARCHES Al

SEIZURES — CONVERSATIONS — PARTICIPANT R

CORDING — PARTICIPANT MONITORING — AMEN

MENTS,

Search warrants are not required for participant recordi

or participant monitoring of conversations as a matter

Federal constitutional law (US Const, Ams IV, XIV).

5. CONSTITUTIONAL LAW — SEARCHES Al

SEIZURES — CONVERSATIONS — PARTICIPANT MO!

TORING — ELECTRONIC DEVICE TRANSMISSIONS

SEARCH WARRANTS.

Participant monitoring of a conversation through the |

of an electronic device to transmit the exchange of words t

third party requires a search warrant to satisfy the consti

tional provisions governing searches and seizures in Michi

(Const 1968, art 1, § 11).

6. SEARCHES AND SEIZURES — CONVERSATIONS

RIGHT OF PRIVACY — PARTICIPANT MONITORING

PARTICIPANT RECORDINGS — DEFINITIONS.

Participant recording is distinguishable from particip

monitoring: participant monitoring involves simultane

4a

transmissions to third parties wherein the participant in

conversation has no control other than to turn off tt

monitor, everything and anything is automatically ar

simultaneously disclosed to the uninvited third ear and this

the feature of participant monitoring which makes it pa

ticularly offensive; participant recording, on the other han

does not involve these sanie concerns, there is no simultaneo

disclosure to third parties, the recording merely preserves t

conversation in a more reliable form and any disclosu

made will be because the participant decided to make the

after hearing the conversation.

7. CONSTITUTIONAL LAW — SEARCHES AD

SEIZURES — PARTICIPANT RECORDING.

Participant recording should not be held to requirec

search warrant under the Michgan Constitution.

FRANK J. KELLEY, ATTORNEY GENERAL, ROBERT

DERENGOSKI, SOLICITOR GENERAL, WILLIAM

CAHALAN, PROSECUTING ATTORNEY, APPEALS, A

DIANNE M. ODROBINA, ASSISTANT PROSECUTING «|

TORNEY, for the people.

William R. Stackpoole, for defendant.

Before: Bashara, P.J., and D.C. Riley and E.A. Quinne

JJ.

D.C. Riley, J. Convicted by a jury of receiving and conc

ing stolen property over the value of $100, contrary to M

750.535; MSA 28.808, and sentenced to serve two and «

half to five years in prison, defendant appeals raising

issues which we consider seriatim.

Prior to trial, defendant moved to suppress evidence

tained by FBI agents by means of electronic eavesdrop

devices. The pretrial evidentiary hearing reveals that Fec

5a

agents were running a bogus fencing operation out

warehouse in Taylor, in which they had installed a hic

audio and video recording equipment. The agents were

tacted by members of the Michigan State Police who inf

ed them that there was an individual who would introduc

agents to defendant, who had allegedly been selling s'

merchandise. Shortly thereafter, a meeting was arrange:

tween the informant, Robinson, the defendant and

agents, at which time defendant disclosed that he had a

to stolen property, including a flatbed trailer. A price

agreed upon and the following day defendant met wit

agent to discuss the details. Soon after, defendant met

the agents at the warehouse and advised them that he

dropped off the trailer. The audio and video tape nm

anisms recorded defendant receiving $1,300 and infor

the agents that he could deliver stolen meat as well as D

pickup trucks.

The trial court denied defendant's motion to suppress,

defendant's objection that no warrant permitting

monitoring was issued, and the tape was played to the.

In People v Beavers, 393 Mich 554; 227 NW2d 511 (1

the Supreme Court held that a participant to a convers

could not electronically monitor a conversation whi

transmitted to law enforcement officers unless specif

authorized to do so by a search warrant. Beavers specif

declined to consider conversations which a participant si

preserves for later dissemination:

“We do not address those situations which include <

ticipant himself recording the conversation or the use

electronic device by a third party only to eavesdrop u

conversation between two parties, one of whom is coope!

with the authorities.” (Emphasis in original.) Beavers, s

562-563, fn 2.

6a

Relying on People v Livingston, 64 Mich App 2

NW2d 63 (1975), this Court extended the rationale of

in People v Taylor, 93 Mich App 292; 287 NW2d 210

People v Perry, 91 Mich App 79, 80; 282 NW2d 14

and People v Hall, 88 Mich App 324; 276 NW2d 897

holding that the police violate the warrant requirer

failing to procure a warrant prior to recording a conv

that a participant simply preserves for later dissem

Admittedly, one panel has refused to extend the seat

rant requirement to participant monitoring. See /

Dubose, 91 Mich App 633; 283 NW2d 644 (1977). H

we are persuaded that the better reasoned analyses

adopt today is set forth in People v Perry, supra.

“The intrusion of privacy incurred where a pat

transmits a conversation to a third party is equally p1

where a participant records the conversation. Thus

dant is entitled to the same protection from unre

searches and seizures.”

Since no search warrant was procured in this cas

reversible error to play the tape recordings to the jury

Defendant further asserts that the trial court erre

mitting evidence of similar acts committed by the de

The audio portion of the video tape contained stater

the defendant that he could deliver other stolen merc

Defendant contends he never placed his intent, m

scheme in issue and that, therefore, this evidence v

! The author wishes to acknowledge her former position

v Dubose. Having met this issue subsequently in Peopl

supra, however, she is convinced that the rationale in

Beavers, supra, is applicable to the fact situation hereit

7a

missible. MCL 768.27; MSA 28.1050 allows sit

testimony to be admitted under certain limites

stances:*

“In any criminal case where the defendant's moti

the absence of, mistake or accident on his part, or

dant’s scheme, plan or system in doing an act, is ma

like acts or other acts of the defendant which m:

show his motive, intent, the absence of, mistake o

on his part, or the defendant's scheme, plan or sys

ing the act, in question, may be proved, whether th

temporaneous with or prior or subsequent the

withstanding that such proof may show or tend t

commission of another or prior or subsequent cri

defendant.”

In People v Major, 407 Mich 394; 285 NW2d 6

the Supreme Court enunciated standards for admi

evidence of similar acts. To be admissible, the evic

be probative of either the statutory or judicial pu

this purpose must be material or “at issue” in the cz

supra, 399. Defense counsel placed defendant's int

during opening statement by maintaining defe:

2 See also MRE 404(b), effective March 1, 1978,

supersedes MCL 768.27; MSA 28.1050:

“Other crimes, wrongs, or acts, Evidence of ot!

wrongs, or acts is not admissible to prove the character

in order to show that he acted in conformity therewi

however, be admissible for other purposes, such ;

motive, opportunity, intent, preparation, scheme, pla:

in doing an act, knowledge, identity, or absence of mist

dent when the same is material, whether such o

wrongs, or acts are contemporaneous with, or prior or

to the crime charged.”

8a

pretending to possess a stolen trailer and pretendi

trailer at Robinson's behest. Therefore, it is cl

evidence was probative not only of defendant's i

his motive and plan as well.

We believe that the trial judge adequately cc

aspects of admissibility mandated by Major an

cases controlling at the time of trial. See People \

Mich App 260; 266 NW2d 781 (1978). Further,

weighed the probative value of the similar acts ¢

found it outweighed its prejudicial effect. S

Oliphant, 399 Mich 472; 250 NW2d 443 (1976)

defendant's argument that the testimony was im

mitted must fail.

Finally, defendant contends he was entrap

Robinson, the police informant, allegedly supp!

the contraband, pressured him and played on the

to involve him in the sale.

Michigan has adopted the objective test for

which focuses solely on police conduct rather th

dividual defendant's predisposition to commit

People v Turner, 390 Mich 7; 210 NW2d 336 (:

cessful claim of entrapment must be proved |

derance of the evidence. People v D'Angelo, 4

257 NW2d 655 (1977), and this Court will not

trial court's ruling unless clearly erroneous. D’A

183.

The facts gleaned from the pretrial evident’

reveal a conflict in testimony. According to test

FBI agent, defendant had tole Robinson he ha

wanted to sell and that he wanted Robinson to

Shortly thereafter, the meeting occurred, the de

and the exchange of money at the warehouse t

9a

Defendant offered a different story, con

unbeknown to the agents, Robinson had stolen

the trailer himself and inveigled the defendar

the sale so he might complete his “deal” with

maintained that Robinson had asked him t

Robinson himself had stolen because th

customers were friends of his and would “bea

price.” Further, he contended he neither own

the trailer but that he knew it was stolen.

The trial court, in finding that the police 2

constitute entrapment, found specifically th

rather than Robinson, had possession of t

wanted to unload it.

This Court, in People v Stanley, 68 Mich

NW2d 684 (1976), held that under some circut

police supply contraband which is the basis of

entrapment may be found. If the informant st

traband the same result obtains, as the govert

ing an informant cannot disown his actions. .

564. Reviewing the record, we cannot say t!

finding that Robinson did not possess the trail

roneous.

In addition, neither Robinson nor the polic

kind of overzealous approach that would mat

of entrapment. See People v Duis, 81 Mich

NW2d 794 (1978), People v Asher, 67 Mich

NW2d 749 (1976).

Although defendant testified he initia

Robinson's offer to sell the trailer, he obliged,

mission, after only one or two demands. W

sympathy and exploitation of long-term frien

constitute entrapment, People v Soper, 57 Mic

10a

NW2d 691 (1975), we believe, on balance, th

friend for assistance in order to increase a pr‘

so reprehensible as to require a finding of e

Reversed and remanded for proceeding:

this opinion.

E.A. Quinnell, J., concurred.

Bashara, P.J. (dissenting). I respectfully |

majority holding that People v Beavers, 39

NW2d 511 (1975), should be extended to in

recording rather than the more limited par

ing upon which Beavers was based.

As to the cases cited by the majority from

peals, namely, People v Taylor, 93 Mich Ap

210 (1979), People v Perry, 91 Mich App 7

(1979), and People v Hall, 88 Mich App $2:

(1979), I decline to follow their reasoning.

rely on the reasoning of Judge Danhof's di:

Hall, supra, and People v Dubose, 91 Mi

NW2d 644 (1977).

People v Beavers, supra, relied on the dis

Mr. Justice Harlan in the plurality decision

White, 401 US 745; 91 S Ct 1122; 28 LI

Parenthetically, I feel that the Beavers C

Justice Harlan’s opinion was misplaced.

make clear that there is a significant distin

defendant's assumption of risk that a partic

sation may later repeat it, verbally or via a

simultaneous monitoring of a conversation

ple who are not a party to the conversatio

Beavers was a participant monitoring |

upon the proposition that only those who

lla

conversation can hear and repeat it. T!

distinguished from the case at bar where

not simultaneously transmitted to third

testified to the conversation. See Lopez v

US 427; 83 S Ct 1381; 10 L Ed 2d 462 (15

Drielick, 400 Mich 559; 255 NW2d 619 (1

US 1047; 98 S Ct. 893; 54 L Ed 2d 798 (1

Based upon the foregoing, I would affir

viction.

lb

APPENDIX B

AT A SESSION OF THE COURT OF AP!

OF MICHIGAN. Held at the Court of

Detroit, on the seventh day of Novem

Lord one thousand nine hundred and

Present the |

GEORGE N.

Presiding.

DOROTHY ¢

EDWARD A.

Judges

PEOPLE OF THE STATE OF MICHIG/

Plaintiff-Appellee,

De

v L.

ALFRED PETER ARTUSO,

Defendant-Appellant.

In this cause, an application for

plaintiff-appellee, and a motion for lea

is filed by the United States on behal

and an answer in opposition thereto

defendant-appellant, and due consid

been had by the Court,

IT IS ORDERED that the applicatio

the came is herebv DENIFD.

2b

IT IS FURTHER ORDERED that th

amicus curiae be, and the same is

moot.

Judge Bashara would vote to gran

STATE OF MICHIGAN — ss.

I, Ronald L. Dzierbicki, Clerk of

the State of Michigan, do hereby cert

true and correct copy of an order ent

cause; that I have compared the san

that it is a true transcript therefron

original order.

IN TESTIMONY WHEREOF, Ih

hand and affixed the seal of sai

at Lansing, this 13th day of Nov

our Lord one thousand nine hu

(s) Ronald L Dzierbicki

Clerk

le

APPENDIL

Supreme Cour

April 13 in the year of our Lord o

and eighty one,

Present

MARY

Chie

THOM.

G. MED

CR 32-41 JAMES

(32-41a) BLAIR

PEOPLE OF THE STATE OF MICE

Plaintiff-Appellant,

ALFRED PETER ARTUSO,

Defendant-Appelle:

On order of the Court, the n

amicus curiae brief in support of tl

leave to appeal is considered, and