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

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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).

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 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.

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 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.

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 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

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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.

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 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.

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 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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