656 Mich. 308 NORTH WESTERN REPORTER, 2d SERIES "(4) That on October 22, 1978, the affiant was informed of an investigation to locate, identify, and arrest persons soliciting for and involved in homosexual acts at the US-131/'D' Avenue rest area. That during the course of the investigation, two men were apprehended in the act of committing gross indecency and subsequently charged. "(5) That on October 24, 1978, the affiant was part of a team of officers assigned to investigate alleged homosexual activity to include soliciting for immoral purposes and homosexual acts at the rest area on US-131 at 'D' Avenue. That upon entering the mens room the affiant observed men loitering in stalls and the mens room proper. One of the men fit the description of a male subject loitering in the mens room on October 22, 1978. That an unidentified male asked the affiant to accompany him to his car. That the same men entered the restroom on numerous occasions, returning to their cars; not starting the motors. Further, the same subjects were seen walking in the parking lot and spending hours at the rest area. That while in the mens room, a male solicited the affiant for immoral purposes and was subsequently arrested and charged in a complaint and warrant for soliciting for immoral purposes, pleading guilty to the charge in the 8th District Court on October 25, 1978." A second affidavit provided: "(2) That as a Shift Commander he was informed of criminal activity in the County. That he was further informed men have been loitering in the mens room and parking areas at the US-181/'D' Avenue rest area, Alamo Township, Kalamazoo County. Further, there was information two men were seen leaving a stall located within the mens restroom at the rest area on October 18, 1978. Further, has received information that men have been soliciting for and involved in homosexual acts. "(8) That on October 22, 1978, with the background information the affiant initiated an investigation into alleged homosexual activity. At approximately 10:00 date, the affiant entered the mens room at the US-131/'D' Avenue rest area making himself familiar with the interior of the mens room. The affiant observed a hole in the partition separating stalls # 1 and # 2, approximately waist high. "(4) That while in the restroom, the affiant observed two stalls occupied and both occupant's feet facing forward. After pretending to leave the mens room, the affiant observed both sets of feet facing the hole in the partition and smacking, sucking type sounds coming from both booths. Upon investigating further he observed two males committing a homosexual act. Both subjects were subsequently arrested and warrants were authorized for gross indecency between males. Further, the affiant has observed several of the same men and vehicles at the rest area on October 22, 1978 and October 24, 1978." The third affidavit provided: "(2) That part of his regular duties he is briefed on criminal activities in the County. That as part of this briefing your affiant was informed there were men loitering in the mens room at the US-131/'D' Avenue rest area in Alamo Township, Kalamazoo County. Further, there was information that illegal sex acts were being performed between males in the restroom. "(3) That as part of your affiant's regular duties, he has gone out to the US-131/'D' Avenue rest area to determine whether there are any illegal activities going on. Your affiant has observed numerous local residents loitering in the rest area. The residence of these persons were learned by obtaining drivers licenses from these persons. These persons were told not to loiter in or about the rest areas. "(4) These activities were witnessed by this officer in May, 1978, while I was assigned to the 11:00 PM to 7:00 AM shift. During the month of May, 1978, there were numerous times when the same individuals were asked to leave the rest area. PEOPLE v. DEZEK “(5) Further, your affiant states that the same type of activity as listed in paragraphs #3 and # 4 were witnessed while on the 11:00 PM to 7:00 AM shift in August, 1978." [2] In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the court held that affidavits supporting a search warrant may be based on hearsay information and need not reflect the direct, personal observations of the affiant but that the magistrate must be informed of some of the underlying circumstances on which the informant based his conclusions and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was credible or that his information was accurate. See also People v. Peterson, 63 Mich. App. 538, 234 N.W.2d 692 (1975); People v. Johnson, 68 Mich.App. 697, 243 N.W.2d 715 (1976); and People v. Staffney, 70 Mich. App. 737, 246 N.W.2d 364 (1976). Here, each affidavit contained statements from unidentified informants. The affidavits contained nothing concerning the basis of the informant's conclusions and nothing from which the credibility of the informant or the accuracy of the information could be inferred. Mich. 657 trate and the reasonable inferences to be drawn therefrom created a substantial probability that the authorized invasion of privacy would be justified by discovery of the items sought from all persons present when the warrant was executed. In State v. Sims, 75 N.J. 337, 382 A.2d 638 (1978), the court stated that "presence" is a descriptive fact which satisfies the intent behind the Fourth Amendment only if there is good reason to believe that anyone present at the anticipated scene would probably be a participant in the crime. Even where there is police observation of known lawbreakers operating from a given location, a warrant permitting a search of all individuals found in that location would be impermissible if that location was actually a public place. See also People v. Tenney, 25 Cal.App.3d 16, 101 Cal.Rptr. 419 (1972), and Crossland v. State, 266 P.2d 649 (Okla.Crim.App., 1954). The warrant here could not authorize the search conducted by the officers. III [4] Evidence which is the product of an [3] In addition to this defect in the underlying affidavits, we cannot say that the warrant limited the search to "precise and discriminate circumstances" as required by the Court for warrants authorizing electronic surveillance in Berger v. New York, 388 U.S. 41, 63, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). Officers acting under the color of the warrant conducted a search which extended to every occupant of the stalls during the relevant period. The stalls were kept under constant surveillance through audio and video monitors. Yet the affidavits did not indicate that every one who used the stalls was likely to engage in illicit activity. In People v. Nieves, 36 N.Y.2d 396, 369 N.Y.S.2d 50, 330 N.E.2d 26 (1975), the court indicated that a warrant authorizing a search of “any person therein" was permissible only if the facts known to the magis 658 M the poli attenuat press th defenda In vie ssues, v raised b circuit firmed. in Thon are rev further opinion Fran COM F Rele bank The L Te preju Court action trust tion such close charg 1. B bank 658 Mich. 308 NORTH WESTERN REPORTER, 2d SERIES In view of our resolution of the foregoing issues, we need not address the other issues raised by appellants. The decisions of the circuit court in Medema and Dezek are affirmed. The decisions of the circuit court in Thompson, Petruska, Kelly, and Pletcher are reversed, and the cases remanded for further proceedings consistent with this opinion. of action, vested in the trustee and such right of action remained vested in trustee during bankruptcy proceedings even though the asset was not listed on the schedule of assets required to be filed with bankruptcy court. Bankr.Act, §§ 70, 70(a), 11 U.S.C.A. §§ 110, 110(a). 2. Bankruptcy 278 Once the right of action vests in a trustee, the only way that a bankrupt may bring suit on that right of action, at least during pendency of bankruptcy proceedings, is by showing abandonment or by receiving permission from the bankruptcy court. Bankr.Act, §§ 70, 70(a), 11 U.S.C.A. §§ 110, 110(a). KURIAKUZ v. COMMUNITY NAT. BANK OF PONTIAC Mich. 659 Cite as, Mich.App., 308 N.W.2d 658 Remo Del Greco, Detroit, for plaintiffsappellants. Kenneth R. Lango, Troy, for defendantappellee. Before BASHARA, P. J., and KAUFMAN and BANKS,* JJ. PER CURIAM. Plaintiffs Frank Kuriakuz and Great Savings Market appeal from an August 11, 1980, order entered in Oakland County Circuit Court granting summary judgment, pursuant to GCR 1963, 117, in favor of defendant Community National Bank of Pontiac. This order dismissed plaintiffs' complaint without prejudice. Plaintiffs filed their complaint on February 26, 1980. The complaint alleged that in 1977 defendant entered into an oral agreement with plaintiff Frank Kuriakuz (who was co-owner of Great Savings Market) whereby defendant was to make certain loans to Kuriakuz so that he could remain in business. It also alleged that plaintiff Kuriakuz detrimentally changed his position in reliance on this oral agreement and that the loan was subsequently denied by defendant without notice or satisfactory explanation. Kuriakuz contends that he was forced into bankruptcy because of his detrimental reliance. As one of its affirmative defenses, defendant alleged that plaintiff Kuriakuz is an adjudicated bankrupt, and, therefore, not the owner of the claim which forms the basis of this lawsuit. Defendant maintained that only the trustee in bankruptcy could assert this claim. Attached as an exhibit to defendant's motion for summary judgment was plaintiff Kuriakuz's voluntary petition for bankruptcy, filed in November of 1978, and the schedules listing all of his assets. The sole issue raised on appeal is whether a bankrupt is barred from bringing suit on a right of action which accrued prior to his filing for bankruptcy where the bankrupt J. L. Banks, 8th Judicial Circuit Judge, sitting an Court of Appeals by assignment pursuant to did not disclose the right of action on the asset schedules filed with the bankruptcy court. Section 70(a) of the old Bankruptcy Act, 11 U.S.C. § 110(a), provided in pertinent part: "(a) The trustee of the estate of s bankrupt and his successor or successon, if any, upon his or their appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition initiating a proceeding under this title, except insofar as it is to property which is held to be exempt, to all of the following kinds of property wherever located (6) rights of action arising upon contracts, or usury, or the unlawful taking or detention of or injury to his property [1] When plaintiff Kuriakuz filed ha petition for voluntary bankruptcy, all of hu assets, including the right of action which forms the basis of the instant suit, became vested in the trustee in bankruptcy by oper ation of law. Section 70. This right of action remained vested in the trustee dur ing pendency of the bankruptcy proceed ings; even though the asset was not listed on the schedule of assets plaintiff Kuriakur was required to file with the bankruptcy court. See, e. g., Moore v. Slonim, F.Supp. 524, 527-528 (D.Conn.1977), affe 562 F.2d 38 (CA 2, 1977); Scharmer v. Ca rollton Manufacturing Co., 525 F.2d 95 (CA 6, 1975); In re Thomas, 204 F.2d 788 (CA% 1953). [2, 3] Once a right of action vests in trustee, the only way that a bankrupt may bring suit on that right of action, at least during the pendency of the bankruptcy pr ceedings, is by showing abandonment or receiving permission from the bankruptcy court. See Taylor v. Swirnow, 80 F.R.D. 82 (D.Md.1978); Riverside Memorial Ma leum, Inc. v. Umet Trust, 469 F.Supp. 64 Const. 1963, Art. 6, Sec. 23, as amended 1988 APPLICATION OF ORDER AUTH. INTERCEPTION, ETC. and Arbuckle's motion for judgment not- It is therefore ORDERED that INA's motion to dismiss for want of jurisdiction, motion for judgment, or alternatively for judgment notwithstanding the verdict, motion to reopen the evidence, and motion for new trial be and hereby are in all things denied. It is further ORDERED that Arbuckle's motion for judgment notwithstanding the verdict and motion for a new trial be and hereby are in all things denied. Judgment shall be entered in accordance with this opinion. KEY NUMBER SYSTEM In the Matter of An Application of the MDB No. 80-353. Upon application by the United States for an order authorizing interception of oral communications and video surveillance, the • This memorandum was impounded by order of the court until May 8, 1981, when the court granted the government's motion to lift the impoundment order so that this memorandum, 421 District Court, Keeton, J., held that application would be granted, where substantive safeguards at least as rigorous as those required by title providing for interception of oral communications had been observed and, moreover, application represented that agents implementing video surveillance would be directed that video surveillance component be turned on after it had been determined from the audio component that communications involving illegal activities or illegal activity itself, within scope of the proposed investigation, was taking place and that the video component remain on only as long as and under the same constraints as were imposed on oral interception for the purpose of minimizing the intrusion consistently with the requirements of such title. Ordered accordingly. 1. Statutes 184 When Congress has not directly addressed and answered a question, courts in answering question by necessity, should nevertheless be guided by the aims, principles and policies that manifestly underly enacted statutes. 2. Telecommunications —496 Court would grant application for video surveillance, where substantive safeguards at least as rigorous as those required by title providing for interception of oral communications had been observed and, moreover, application represented that agents implementing the video surveillance would be directed that the video surveillance component be turned on after it had been determined from audio component that communications involving illegal activities or illegal activity itself, within scope of the proposed investigation, was taking place and that the video component remain on only as long as and under the same constraints as were imposed on oral interception for the purpose of minimizing the intrusion consist as well as the application for the surveillance order and supporting materials, could be released to the individuals indicted as a result of the government's investigation. |