People v. Stone

                                                                        Michigan Supreme Court
                                                                        Lansing, Michigan 48909
_____________________________________________________________________________________________
                                                                C hief Justice                   Justices
                                                                Maura D. Cor rigan	              Michael F. Cavanagh




Opinion
                                                                                                 Elizabeth A. Weaver
                                                                                                 Marilyn Kelly
                                                                                                 Clifford W. Taylor
                                                                                                 Robert P. Young, Jr.
                                                                                                 Stephen J. Markman

____________________________________________________________________________________________________________________________

                                                                                 FILED JANUARY 30, 2001





                PEOPLE OF THE STATE OF MICHIGAN,


                        Plaintiff-Appellee,


                v	                                                                               No. 114227


                BRIAN JAMES STONE,


                     Defendant-Appellant.

                ___________________________________

                BEFORE THE ENTIRE BENCH 


                CAVANAGH, J.


                        This       criminal           prosecution                under    the         Michigan


                eavesdropping           statutes        requires            us   to   decide     whether         a


                conversation held on a cordless telephone is a “private


                conversation” as that term is used in the statutes.                                            We


                conclude that, although current technology may allow cordless


                telephone conversations to be intercepted, such conversations


                nonetheless           can      be      private            conversations         under         the


                eavesdropping statutes.                 Accordingly, we affirm the judgment

of the Court of Appeals.


                                 I


     The facts underlying this case occurred while the divorce


of defendant Brian Stone from Joanne Stone was pending.


During their marriage, the Stones lived next door to Ronald


Pavlik. In 1995, defendant became estranged from his wife and


moved out of the couple’s home, though Joanne continued to


live there.    After defendant moved from the couple’s home,


Pavlik told defendant that he owned a police scanner, and that


he could listen to, and had been recording, calls Joanne made


on her cordless telephone. Defendant asked for the tapes, and


told Pavlik to “keep on top of things, tape and find out what


was going on.”


     Joanne suspected that her calls were being monitored


because certain people had information about her that they


should not have had.    In one instance, a friend of the court


investigator   told    Joanne   that   defendant   had   told   the


investigator that he had a tape recording proving that Joanne


was pregnant and planning to leave the state.        According to


Joanne, she had only mentioned these matters in a telephone


conversation with a friend.      Because of her suspicions, in


1996, Joanne contacted the State Police.


     After interviewing several people, the police obtained


search warrants for both defendant’s and Pavlik’s residences.



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Between the two homes, they found approximately fifteen tapes


containing recordings of Joanne’s telephone conversations with


her family, her friends, and her attorney.


     Defendant was charged under the eavesdropping statutes


and was bound over for trial.           He brought a motion to quash


the information, which the circuit court granted because it


believed that a person conversing on a cordless telephone


could not reasonably expect her conversation to be a “private


conversation.”     The people appealed, and the Court of Appeals


reversed, reasoning that the circuit court erred by relying on


the concept of a reasonable expectation of privacy.           234 Mich


App 117; 593 NW2d 680 (1999). Initially, this Court held this


case in abeyance, pending our resolution of Dickerson v


Raphael, 461 Mich 851 (1999). Thereafter, we granted leave to


appeal.    461 Mich 996 (2000).


                                   II


        Because this case arrives here on defendant’s motion to


quash    the   information,   we   must    review   the   magistrate’s


decision to bind defendant over for trial.          A magistrate has


a duty to bind over a defendant for trial if it appears that


a felony has been committed and there is probable cause to


believe that the defendant committed that felony. MCL 766.13;


MSA 28.931.     Absent an abuse of discretion, reviewing courts


should not disturb a magistrate’s determination.             People v



                                   3

Doss, 406 Mich 90, 101; 276 NW2d 9 (1979).              In the instant


case, defendant argues that the magistrate’s decision to bind


him over was an abuse of discretion because his alleged


conduct does not fit within the scope of the eavesdropping


statutes. Determining the scope of a criminal statute is a


matter of statutory interpretation, subject to de novo review.


People v Denio, 454 Mich 691, 698; 564 NW2d 13 (1997).


                     A. THE EAVESDROPPING STATUTES


     Defendant was charged under MCL 750.539c; MSA 28.807(3),


which provides:


          Any person who is present or who is not

     present during a private conversation and who

     wilfully uses any device to eavesdrop upon the

     conversation without the consent of all parties

     thereto, or who knowingly aids, employs, or

     procures another person to do the same in violation

     of this section, is guilty of a felony punishable

     by imprisonment in a state prison for not more than

     2 years or by a fine of not more than $2,000.00, or

     both.


The statutes define “eavesdrop” as “to overhear, record,


amplify or transmit any part of the private discourse of


others without the permission of all persons engaged in the


discourse.”      MCL 750.539a(2); MSA 28.807(1)(2).                In the


present case, the facts as alleged indicate that Joanne


Stone’s   cordless       telephone    conversations     were      wilfully


recorded by Ronald Pavlik, without her consent, at defendant’s


prompting.    Because this case involves such alleged wilful


“record[ing],”     the    statutory       prohibition   against    wilful


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“overhear[ing]” is not before us.                   Instead, the question


before     us    is    whether     defendant       is    correct      that   the


conversations         eavesdropped       on    could     not     be    “private


conversations” because they were held on a cordless telephone.


                  B. THE MEANING   OF   “PRIVATE CONVERSATION ”


       To answer this question, we must first define “private


conversation.”        Determining this phrase’s meaning requires us


to construe the eavesdropping statutes, and the primary goal


of     statutory      construction       is   to    give     effect     to   the


Legislature’s intent.         People v Morey, 461 Mich 325, 330; 603


NW2d 250 (1999).         To ascertain that intent, this Court begins


with     the    statute’s    language.          When     that    language     is


unambiguous, no further judicial construction is required or


permitted,       because    the    Legislature      is     presumed     to   have


intended the meaning it plainly expressed.                  Id.


       Here, the plain language of the eavesdropping statutes


does not define “private conversation.”                       This Court may


consult dictionaries to discern the meaning of statutorily


undefined       terms.     Id.      However,       recourse     to    dictionary


definitions is unnecessary when the Legislature’s intent can


be determined from reading the statute itself.                     Renown Stove


Co v Unemployment Compensation Comm, 328 Mich 436, 440; 44


NW2d 1 (1950).





                                        5

     Despite       the    Legislature          failing    to     define   “private


conversation” in the eavesdropping statutes, its intent can be


determined from the eavesdropping statutes themselves.                           This


is because the Legislature did define the term “private


place.”      A     “private      place”    is     “a     place    where    one    may


reasonably expect to be safe from casual or hostile intrusion


or surveillance.”              MCL 750.539a(1); MSA 28.807(1)(1).                  By


reading the statutes, the Legislature’s intent that private


places are places where a person can reasonably expect privacy


becomes clear.          Applying the same concepts the Legislature


used to define those places that are private, we can define


those     conversations         that   are      private.         Thus,    “private


conversation” means a conversation that a person reasonably


expects    to     be    free    from   casual     or     hostile    intrusion      or


surveillance.          Additionally, this conclusion is supported by


this Court’s decision in Dickerson v Raphael, in which we


stated that whether a conversation is private depends on


whether     the    person       conversing       “intended       and     reasonably


expected that the conversation was private.” Dickerson, supra


at 851.


        Although       this    definition       of     “private    conversation”


facially resembles standards that the United States Supreme


Court has used in Fourth Amendment cases, those standards


developed in the context of law enforcement activity seeking



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to detect criminal behavior.    See        Katz v United States, 389


US 347, 360; 88 S Ct 507; 19 L Ed 2d 576 (1967) (Harlan, J.).


However, our definition of “private conversation” emanates


from our eavesdropping statutes, which, by their own terms, do


not apply to law enforcement personnel acting within their


lawful authority. MCL 750.539g(a); MSA 28.807(7)(a). Because


of these differences, we do not rely on the Fourth Amendment


jurisprudence, and do not incorporate it into our statute.


Rather, we rely only on the eavesdropping statutes’ language


to define the term “private conversation.”


          C. PRIVATE CONVERSATIONS   ON   CORDLESS TELEPHONES


     Defendant invites this Court to hold that, as a matter of


law, a conversation held on a cordless telephone cannot be a


private conversation.   He relies on language in the Court of


Appeals decision in Dickerson v Raphael, 222 Mich App 185,


194; 564 NW2d 85 (1997), rev’d 461 Mich 851 (1999), to argue


that a cordless telephone works by sending a radio-like signal


from the telephone’s handset to its base, and that users of


cordless telephones know that these signals can be intercepted


by devices including other cordless telephones and police


scanners. This knowledge, he concludes, “renders unreasonable


an   expectation   of   privacy”      in     a   cordless        telephone


conversation.   Id.





                                7

     We    decline         defendant’s        invitation     because    such       an


interpretation would negate an express protection in the


eavesdropping        statutes.        Specifically,         MCL    750.539c;      MSA


28.807(3) protects private conversations against eavesdropping


accomplished through the wilful use of “any device.”                           This


protection indicates that the Legislature considered that a


conversation can be private, yet can also be susceptible to


eavesdropping through any device.                    Otherwise, it would have


had no need to protect private conversations against such an


intrusion. Indeed, were defendant correct that a conversation


that a person knows is susceptible to eavesdropping through


any device is not private, then the statutory protection


against eavesdropping accomplished through any device would be


null.       This      is    because      a    conversation        susceptible      to


eavesdropping         with    any     device      would,     because    of        that


characteristic, fall outside the protected class of private


conversations,        leaving       no   “private       conversation”        to    be


protected      from    eavesdropping          with    any   device.      Whenever


possible, courts must give effect to every word, phrase, and


clause in a statute.          Morey, supra at 330.          Therefore, to give


effect    to   the    statutory       protection       against      eavesdropping


accomplished through “any device,” we must reject defendant’s


position. 





                                             8

       Further, although a person who talks on a cordless


telephone may know that technology makes it possible for


others to overhear the conversation, that person also can


presume that others will obey the criminal law. See Papadimas


v Mykonos Lounge, 176 Mich App 40, 47; 439 NW2d 280 (1989);


Prosser & Keeton, Torts (5th ed) § 33, p 201.          Thus, although


the    victim   may   have   known   that    her   cordless   telephone


conversations could be wilfully intercepted with a device, she


also could presume that others would not eavesdrop on her


cordless telephone conversations using any device because


doing so is a felony under the eavesdropping statutes, and is


additionally prohibited by federal law.            See 47 USC 1001 et


seq.    As a matter of law, it was not unreasonable for her to


expect that her cordless telephone conversations were private.


       We recognize that our holding differs with many decisions


concluding that cordless telephone users cannot expect privacy


in their telephone conversations. See, e.g., People v Wilson,


196 Ill App 3d 997, 1009-1010; 554 NE2d 545 (1990); Salmon v


State, 206 Ga App 469, 470; 426 SE2d 160 (1993), superseded by


statute, Ga Code Ann § 16-11-66.1; McKamey v Roach, 55 F3d


1236, 1239-1241 (CA 6, 1995).             However, these cases were


decided under statutes with language different from that of


the Michigan eavesdropping statutes governing our decision in


this   case.     Notably,    other   state   courts   have    held   that



                                     9

cordless telephone users can expect privacy in their telephone


conversations when those states’ governing statutes have so


provided.    See, e.g., State v Faford, 128 Wash 2d 476, 486;


910 P2d 447 (1996); State v Bidinost, 71 Ohio St 3d 449, 460;


644 NE2d 318 (1994).    In addition, although certain federal


decisions, including McKamey, supra, held that there cannot be


an expectation of privacy in cordless telephone conversations,


federal law was subsequently amended to grant strict privacy


protections to cordless telephone conversations.     See 47 USC


1001.      Thus, although our decision differs with several


foreign authorities, it accords with current federal law, and


accords full meaning to the Michigan eavesdropping statutes.


        Under those statutes, whether a person can reasonably


expect privacy in a conversation generally will present a


question of fact.    See Dickerson, supra at 851.   For example,


although a person is not precluded from having a reasonable


expectation of privacy in a conversation held on a cordless


telephone, a person who converses on a party line may not


reasonably expect the conversation to be private because


perhaps that person should know that others will be able to


listen to the conversation.     Many such conversations may be


subject to “casual or hostile intrusion or surveillance,” MCL


750.539a(1); MSA 28.807(1)(1), but the final determination


will generally be for the factfinder.



                               10

                          D. THE INSTANT CASE


        In the instant case, we conclude that defendant was


properly bound over for trial.            Defendant argues that Joanne


Stone    could   not   have   expected      privacy      in     her   cordless


telephone     conversations       because     of     her      particularized


knowledge that Pavlik could intercept them.                     He bases his


argument on an averment in the warrant affidavit, which stated


that Pavlik had told Joanne that his scanner could intercept


cordless telephone conversations. However, Joanne’s testimony


at the preliminary examination was that Pavlik had told her


that he could listen to police signals, not cordless telephone


conversations.         Although    this     evidence       is   conflicting,


Joanne’s    testimony     provided    a    sufficient         basis   for    the


magistrate to find probable cause that defendant committed the


charged    felony.      The   conflicts     in     the   evidence     must    be


resolved by the trier of fact, not the magistrate. See People


v Hill, 433 Mich 464, 469; 446 NW2d 140 (1989).                  Because the


eavesdropping statutes do not preclude cordless telephone


conversations from being “private,” and because the evidence


at   the    preliminary    examination       was    sufficient        for    the


magistrate to find probable cause of defendant’s guilt, the


magistrate did not abuse his discretion by binding defendant


over for trial.





                                     11

                                 III


     In conclusion, although technology provides a means for


eavesdropping,      the     Michigan      eavesdropping       statutes


specifically     protect   citizens     against   such    intrusions.


Therefore, a person is not unreasonable to expect privacy in


a conversation although he knows that technology makes it


possible for others to eavesdrop on such conversations.             The


judgment of the Court of Appeals is affirmed.


     CORRIGAN , C.J., and WEAVER , KELLY , TAYLOR , YOUNG , and MARKMAN,


JJ., concurred with CAVANAGH , J.





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