Lee v. State, 36

• Decision Date: 21 September 1966
• Docket Number: No. 36,36
• Citation: 191 So.2d 84
• Parties: Clyde Franklin LEE, Glen Dulen Brecheen and Cecil St. Clair Merritt, Appellants, v. STATE of Florida, Appellee. . Fourth District
• Court: Florida District Court of Appeals

Page 84

191 So.2d 84

Clyde Franklin LEE, Glen Dulen Brecheen and Cecil St. Clair Merritt, Appellants, v. STATE of Florida, Appellee.

No. 36.

District Court of Appeal of Florida. Fourth District.

Sept. 21, 1966.

Rehearing Denied Nov. 10. 1966.

Edward R. Kirkland, of Kirkland, Johnson, Smith & Ervin, and William A. Harmening, Orlando, for appellants.

Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.

FUSSELL, CARROLL W., Associate Judge.

Defendants appeal from their conviction for a violation of the lottery laws. Their principal contention is that the lower court committed an error in permitting taped recordings of a telephone conversation to be introduced into evidence at the trial. They maintain that these recordings were the result of wiretapping and are illegal and inadmissible in evidence.

The law on wiretapping in Florida was most thoroughly and clearly stated by Judge Carroll in Griffith v. State, Fla.App.1959, 111 So.2d 282, which was later followed and re-affirmed in Barber v. State, Fla.App.1965, 172 So.2d 857. Certiorari was denied by the Supreme Court in each of these two cases.

In the Griffith case, supra, the court observed that under the common law and general rule wiretapped evidence was admissible, and that, in order to change this rule, either a state or federal statute would be required or there must be a state or federal constitutional inhibition or the court must determine that wiretapping was in violation of the general principle of law.

In the Griffith case, supra, it was further determined that there were no state or federal statutes applicable in Florida which would make wiretapping illegal and inadmissible in evidence, but that wiretapping is illegal in Florida because it does violate Section 12 of the Declaration of Rights of the Florida Constitution, F.S.A., which provides:

' § 12. * * * No person shall be * * * compelled in any criminal case to be a witness against himself * * *.'

and also violated Section 22 of the Declaration of Rights of the Florida Constitution, which provides:

' § 22. * * * The right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches, shall not be violated * * *.'

The first case in Florida dealing with this subject was Perez v. State, Fla.1955, 81 So.2d 201, decided by the Supreme Court of Florida. In this case an informant purchased a lottery ticket over the telephone while an officer listened over an extension phone. The court held that this was sufficient as a basis for the officer to make his application for a search warrant.

The next case was Williams v. State, Fla.App.1959, 109 So.2d 379, decided by the Second District Court of Appeal. In this case the sheriff rented a party line and the deputy sheriff listened and recorded the conversations of the defendant thereon. The defendant had been told that the party line was being rented by a colored family, and the defendant did not know that the sheriff had rented the line. Recorded evidence of these conversations was held admissible.

The next case was the Griffith case, supra, decided by the First District Court of Appeal. In this case the officer rented a party line and then fixed it so that he could attach a long line to it and walk around the room without standing by the telephone at all times. Under this arrangement there was no tapping sound which would give alarm to the defendant that his conversation was being listened to. This was held not to be an illegal wiretap, and the officer was permitted to testify.

The last case, Barber v. State, Fla.App.1965, 172 So.2d 857, was also decided by the First District Court of Appeal. In this case a tape recording of a telephone conversation of the defendant with the prosecuting witness was admitted in evidence over the objection of the defendant that it was the result of wiretapping. The prosecuting witness had told the prosecuting officers of prior conversations with the defendant and consented to their making recordings of this conversation by means of wires attached by the deputy sheriff to the prosecuting witness' telephone receiver. The...