People v. Perry , 91 Mich. App. 79 ( 1979 )

91 Mich. App. 79 (1979) 282 N.W.2d 14

PEOPLE
v.
PERRY

Docket Nos. 78-620, 78-621.

Michigan Court of Appeals.

Decided June 20, 1979.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and David A. King, Assistant Prosecuting Attorney, for the people.

Charles Drukis, for defendant on appeal.

Before: D.C. RILEY, P.J., and V.J. BRENNAN and G.W. CROCKETT, JR.,^[*] JJ.

PER CURIAM.

Defendant was convicted in two separate trials of delivery of a controlled substance, heroin, contrary to MCL 335.341(1)(a); MSA 18.1070(41)(1)(a). He appeals as of right.

On September 29, 1975, Washtenaw County police officers placed a transmitter and tape recorder on the person of police informant William Bruce O'Neal. O'Neal then went to the 100 block of Ann Street in Ann Arbor where he purchased a small quantity of heroin from defendant. He returned on September 30, 1975, and made another purchase from defendant. These tapes were played at defendant's trials, over his objections.

In People v Hall, 88 Mich. App. 324; 276 NW2d 897 (1979), this Court relied on People v Beavers, 393 Mich. 554; 227 NW2d 511 (1975), cert den 423 U.S. 878; 96 S. Ct. 152; 46 L. Ed. 2d 111 (1975), and People v Livingston, 64 Mich. App. 247; 236 NW2d 63 (1975), to hold that a search warrant is required where an informant records a conversation with a defendant. The intrusion of privacy incurred where a participant transmits a conversation to a third party is equally present as where a participant records the conversation. Thus, defendant is entitled to the same protection from unreasonable searches and seizures. Const 1963, art 1, § 11.

Since no search warrant was procured in this case, it was reversible error to play the tape recordings into evidence. The defendant's convictions must be reversed.

NOTES

[*] Former Recorder's Court judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.