People v. Stone
People v. Stone
Opinion of the Court
Defendant was charged with eavesdropping on a private conversation, MCL 750.539c; MSA 28.807(3), and divulging unlawfully obtained information, MCL 750.539e; MSA 28.807(5). After defendant was bound over for trial on the charges, he filed a motion to quash the information. The trial court granted the motion on the basis that the intercepted conversations did not constitute “private conversations” within the meaning of the eavesdropping statute because the conversations were conducted
Defendant and his wife, Joanne Stone, lived next door to Ronald Pavlik during their marriage. When defendant and Joanne commenced divorce proceedings, defendant moved out of the home, but Joanne remained. During the pendency of the divorce, Pavlik informed defendant that he owned a police scanner and that he could use the scanner to intercept calls made by Joanne on her cordless telephone.
The prosecution argues that the trial court erred in determining that, because Joanne Stone was using a cordless telephone, her conversations were not “private conversations,” and, thus, their interception did not violate MCL 750.539c; MSA 28.807(3). We agree. Questions of statutory interpretation are questions of law, which we review de novo. People v Denio, 454 Mich 691, 698; 564 NW2d 13 (1997).
MCL 750.539c; MSA 28.807(3) 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.
MCL 750.539a(2); MSA 28.807(1)(2) defines the term “eavesdrop” as “to overhear, record, amplify or transmit any part of the private discourse of others
Whether conversations conducted with the use of a cordless telephone are protected by the eavesdropping statute is a question of first impression in Michigan. The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. People v Stanaway, 446 Mich 643, 658; 521 NW2d 557 (1994). The first criterion in determining intent is the specific language of the statute. People v Pitts, 216 Mich App 229, 232; 548 NW2d 688 (1996). The Legislature is presumed to have intended the meaning it plainly expressed. People v Roseburgh, 215 Mich App 237, 239; 545 NW2d 14 (1996).
First, we disagree with the trial court’s finding that Joanne Stone’s conversations were not protected by the eavesdropping statute because “a conversation does not include the reconstruction of a conversation from the interception of radio waves from a cordless telephone.”
The trial court’s finding that the interception of the radio waves produced by a cordless telephone is not the interception of a “conversation” was based on the decision of the United States Sixth Circuit Court of Appeals in McKamey v Roach, 55 F3d 1236 (CA 6, 1995), construing title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986, 18 USC 2510-2521 (1988). The federal statute at issue prohibited the nonconsensual interception of wire, oral, and electronic communication and the intentional disclosure or use of the contents of such communication with knowledge that the information was
In contrast to the federal statute, the Michigan eavesdropping statute does not differentiate between wire, electronic, and oral communications. Rather, the statute protects “private conversations.” Because the term “conversation” is not defined in the statute,
We further believe that the trial court erred in determining that, because Joanne Stone’s conversations were conducted with the use of a cordless telephone, the conversations were not private. The statutes at issue do not define the term “private.” However, in the context of the eavesdropping statute, this
The trial court reasoned that Joanne Stone could not have had a reasonable expectation of privacy in the cordless telephone conversations because of the ease of interception of such conversations. However, the trial court erred in relying on the concept of a “reasonable expectation of privacy.” The concept of a “reasonable expectation of privacy,” which arose in the context of the Fourth Amendment, is not applicable here, where the statutes at issue focus on conduct between private individuals and expressly exclude law enforcement officers acting within the scope of their authority. MCL 750.539g(a); MSA 28.807(7)(a); Dickerson, supra at 192-193. Rather, whether a conversation was private should depend on whether the conversation was “ ‘intended for or restricted to the use of a particular person or group or class of persons . . . [and is] intended only for the persons involved.’ ” Id. at 193 (citation omitted).
Reversed.
An understanding of the operation of a cordless telephone is required for the resolution of the issue presented in this case. In People v Fata, 159 AD2d 180, 183; 559 NYS2d 348 (1990), the New York Supreme Court, Appellate Division, explained:
Undoubtedly those who eryoy the convenience of a cordless telephone suffer a certain loss of privacy in their communications. A cordless telephone consists of a base unit, which is connected to an ordinary telephone wire, and a handheld unit. For an outgoing call, the handheld unit transmits the speaker’s voice over radio waves to the base unit. Incoming calls over the telephone wire are transmitted from the base unit to the handheld unit by radio waves. Such radio signals can pass through almost any material and ordinarily have a range of about 50 feet. Because the telephones operate on common radio frequencies, the conversations can be monitored with a standard radio or even a walkie-talkie. If two cordless telephones are physically close enough, a call to one of them could cause the other telephone to ring.
Joanne Stone is virtually blind. She testified that it was necessary for her to use the cordless telephone so that she could use an enlarger when she conducted business on the telephone.
The provisions in 18 USC 2510 expressly excluding the radio portion of a cordless telephone communication from the protection of the Electronic Communications Privacy Act were deleted in 1994 by PL 103-414, § 202(a)(1).
The dictionary defines the term “discourse” to include “conversation.” Random House Webster’s College Dictionary (1997).
The legislative histoiy of the 1994 amendment of 18 USC 2510, which deleted the express exclusion of the radio portion of a cordless telephone communication from the protection of the federal Electronic Communications Privacy Act, noted that “ ‘[t]he cordless phone, far from being a novelty item used only at “poolside,” has become ubiquitous . . [.] More and more communications are being carried out by people [using cordless phones] in private, in their homes and offices, with an expectation that such calls are just like any other phone call.’ ” HR Rep No 103-827, 103d Cong, 2d Sess (1994) reprinted in 1994 US Code Cong & Ad News 3489, 3497 (citation omitted).
Numerous other jurisdictions have construed their state eavesdropping statutes to prohibit the intentional interception of cordless telephone conversations. See State v Faford, 128 Wash 2d 476, 484-486; 910 P2d 447 (1996); State v Mozo, 655 So 2d 1115, 1116 (Fla, 1995); Bidinost, supra at 461-463; Fata, n 1 supra.
Concurring in Part
(concurring in part and dissenting in part). I generally concur with the majority’s analysis of this case, but I would limit the scope of today’s decision to the recording of cordless telephone conversations. Although I agree that the use of a scanner to record private cordless telephone conversations violates the statute in question, I feel that the question whether merely listening to these conversations as they are monitored by a scanner is also a violation of the statute is better left for another day.
I concur with the majority’s conclusion that the conversations in question were private discourse as defined by the statute.
My reluctance to join in the majority opinion stems in part from my uncertainty concerning precisely when in the course of Pavlik’s conduct he began “eavesdropping” for purposes of the statute. Was it at the moment that he turned his scanner on, the moment a voice came over the system and the system began to record, or at the moment when Pavlik actually listened to the recording? MCL 750.539c; MSA 28.807(3) concerns “wilfully” using a device to eavesdrop, indicating that the inadvertent interception of private conversations may be beyond the scope of the statute.
The police found approximately fifteen cassette tapes at the homes of defendant and Pavlik that included private conversations between Joanne Stone and her friends, family, and attorney. This abundance of recorded material demonstrates the persistent and intentional nature of the eavesdropping and the egregious nature of the intrusions.
The central issue addressed in the briefs concerns the term “private discourse.” It is beyond question that Joanne Stone’s conversations with her doctor or her attorney constitute private discourse within the meaning of the eavesdropping statute. The parties have neither briefed nor argued the constitutionality of the eavesdropping statute as it applies to individuals who use a scanner to listen to cordless telephone conversations. Thus, the question of the constitutionality of this statute as applied to listeners and recorders is not before this Court and therefore not appropriately addressed here.
Today there exist numerous affordable devices of sufficient sophistication as to allow almost any conversation (private discourse) to be intercepted and recorded. The ease, method, or process by which a conversation can be intercepted should not affect this Court’s determination whether a conversation is private discourse.
I express no opinion concerning whether merely listening to these conversations violates the statute.
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