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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ELIAS HERNANDEZ-FREIG, Defendant-Appellant.

UNPUBLISHED March 13, 1998

No. 192479 Jackson Circuit Court LC No. 95-072823-FH

Before: Markey, P.J., and M.J. Kelly and Whitbeck, JJ. PER CURIAM. Following a jury trial, defendant was convicted of unlawful manufacture or delivery of 45 or more kilograms of marihuana, MCL 333.7401(2)(d)(i); MSA 14.15(7401)(2)(d)(i), and conspiracy to commit the same, MCL 750.157a; MSA 28.354(1). He was sentenced to two concurrent terms in prison of eight to fifteen years and appeals as of right. We affirm. This case arises out of a drug transaction in Jackson between defendant, five coconspirators from Mexico and Arizona, and one undercover police officer. The drug transaction was accomplished after a series of telephone conversations between the undercover officer and one of the coconspirators about possible marihuana sources. At trial, the prosecution's theory was that defendant supplied 300 of the 539 pounds of marihuana confiscated in this case. In contrast, defendant maintained that he was at the scene of the transaction because he had accompanied one of the conspirators as an interpreter, not because he was personally conspiring to deliver marihuana. I Defendant first argues that his convictions should be reversed and his indictment dismissed because of police misconduct surrounding his post-arrest confession. Although the facts regarding this issue were not fully developed below, defendant argues that the police obtained lengthy statements from him and other suspects in violation of Miranda.1. The prosecution acknowledges, or at least does not contest, that these statements were taken in violation of Miranda. The trial court suppressed defendant's confession from being offered against him for any purpose. Neither were the other

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confessions directly used as evidence against defendant. Defendant contends, however, that evidence derived from some or all of these confessions was used as substantive evidence of his guilt at trial. In Oregon v Elstad, 470 US 298, 306-308; 105 S Ct 1285; 84 L Ed 2d 222 (1985), and Michigan v Tucker, 417 US 433, 443-446; 94 S Ct 2357; 41 L Ed 2d 182 (1974), the United States Supreme Court explained that the Miranda exclusionary rule is a preventive or prophylactic measure that provides broader protection than the Fifth Amendment. Thus, a statement taken in violation of Miranda is not necessarily taken in violation of the Fifth Amendment itself. Elstad, supra at 470 US 306-307.2 Where statements are taken in violation of Miranda but are actually voluntary

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