PEOPLE OF MI V BRIAN JAMES STONE
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Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C hief Justice
Justices
Maura D. Cor rigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
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
eavesdropping
statutes
prosecution
requires
under
us
to
the
decide
Michigan
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
eavesdropping statutes.
private
conversations
under
the
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.
investigator
told
In one instance, a friend of the court
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.
2
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
decision to bind defendant over for trial.
the
magistrate’s
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.
3
People v
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
4
prohibition
against
wilful
“overhear[ing]” is not before us.
before
us
is
conversations
whether
Instead, the question
defendant
eavesdropped
on
is
correct
could
not
that
be
the
“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
Legislature’s intent.
NW2d 250 (1999).
with
the
is
to
give
effect
to
the
People v Morey, 461 Mich 325, 330; 603
To ascertain that intent, this Court begins
statute’s
language.
When
that
language
is
unambiguous, no further judicial construction is required or
permitted,
because
the
Legislature
is
intended the meaning it plainly expressed.
presumed
to
have
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
surveillance.
free
from
casual
or
hostile
intrusion
or
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
6
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
conversation.
of
privacy”
Id.
7
in
a
cordless
telephone
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
eavesdropping
is
because
with
any
a
conversation
device
would,
susceptible
because
of
to
that
characteristic, fall outside the protected class of private
conversations,
leaving
protected
eavesdropping
from
no
“private
with
conversation”
any
device.
to
be
Whenever
possible, courts must give effect to every word, phrase, and
clause in a statute.
effect
to
the
Morey, supra at 330.
statutory
protection
Therefore, to give
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.
the
victim
may
have
known
that
her
Thus, although
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.
seq.
See 47 USC 1001 et
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
9
courts
have
held
that
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.
1001.
See 47 USC
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.
Stone
could
telephone
not
have
Defendant argues that Joanne
expected
conversations
privacy
because
of
in
her
her
cordless
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.
Joanne’s
Although
testimony
this
provided
a
evidence
is
sufficient
conflicting,
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,
specifically
the
protect
Michigan
citizens
eavesdropping
against
such
statutes
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.
12
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