Dean v. State

• Decision Date: 31 October 1985
• Docket Number: No. 63711,63711
• Citation: 10 Fla. L. Weekly 580,478 So.2d 38
• Parties: 10 Fla. L. Weekly 580 Nathaniel DEAN, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 38

478 So.2d 38

10 Fla. L. Weekly 580

Nathaniel DEAN, Petitioner, v. STATE of Florida, Respondent.

No. 63711.

Supreme Court of Florida.

Oct. 31, 1985.

Bennett Brummer, Public Defender, and Michael A. Rosen, Sp. Asst. Public Defender, Eleventh Judicial Circuit, Miami, for petitioner.

Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Bureau Chief, Asst. Atty. Gen., Miami, for respondent.

ADKINS Justice.

We have been asked to review Dean v. State, 430 So.2d 491 (Fla. 3d DCA 1983), which expressly and directly conflicts with prior decisions of other district courts of appeal and this Court. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Petitioner Nathaniel Dean was president of Edison Little River Self-Help Community Council, Inc., a non-profit corporation. He and a co-defendant, Nimrod Harmon, treasurer of the same corporation, were charged by information with one count of conspiracy to commit grand larceny and thirty-eight counts of grand larceny. The state alleged in the information that petitioner and Harmon conspired to and appropriated sums of money from the corporation for petitioner's personal, family, or private business use. Petitioner went to trial and was subsequently convicted and sentenced on thirty counts of conspiracy and grand larceny.

On appeal to the Third District Court of Appeal, petitioner argued: first, that the trial court committed reversible error in refusing to allow his counsel the right to make the concluding argument before the jury as required by Florida Rule of Criminal Procedure 3.250; second, that the trial court committed reversible error in denying his motion for severance of defendants; third, that the trial court committed reversible error in denying, on the grounds of untimeliness, a particular requested jury instruction; and finally, that the trial court committed reversible error in denying his pre-trial motion to suppress certain evidence obtained pursuant to a subpoena duces tecum. The district court affirmed petitioner's conviction and sentence, finding no merit to any of these arguments. Petitioner has abandoned his third point on appeal in his petition to this Court. However, of the three remaining points on appeal, we hold that one has merit. Therefore, for the reasons expressed below, we remand to the Third District Court of Appeal for further remand to the trial court for a proper evidentiary hearing on petitioner's motion to suppress.

Petitioner Dean became the target of a criminal investigation for misappropriation of corporate funds in 1977. On November 7, 1977, a Dade County police officer served a subpoena to produce documents on the corporation. The subpoena, styled "State of Florida vs. Nathaniel Dean and Nimrod Harmon, Investigation Witness Subpoena Duces Tecum," commanded the custodian of records to produce All books and all records of Edison Little River Self-Help Community Council, a corporation, from January 1, 1975, through October 31, 1977, including general ledgers, accounts receivable ledgers, check stubs, cancelled checks, bank statements, receipts, invoices, all other records and documents, correspondence and memos relating to receipt of money, property and funds from Dade County, Florida, or any agency of the U.S. Government or State of Florida, directly or indirectly, and the disbursements or expenditures of said funds during the aforesaid time period.

After serving the subpoena on an employee of the corporation, the police officers immediately seized the documents named in the subpoena, as well as others that were not covered by the subpoena. At that point, two Dade County auditors who accompanied the police officers to the corporate offices transported the documents to the office of a government auditor, then eventually to the state attorney's office.

Prior to trial, petitioner timely filed a motion to suppress the evidence seized pursuant to the state's investigative subpoena as well as the other documents and statements which the state obtained as a result of examining the seized records. At a pretrial hearing on petitioner's motion, the trial court, without conducting an evidentiary hearing, denied petitioner's motion and ruled summarily that petitioner, as a corporate officer, lacked standing to contest a seizure of corporate records. The district court affirmed the ruling of the trial court on standing because, inter alia, petitioner based his argument below solely on the fact that his standing derived from his position as sole executive officer of the non-profit corporation against which the subpoena was issued. Petitioner argues in his brief to this Court that he does have standing based upon our decision in State v. Tsavaris, 394 So.2d 418 (Fla.1981).

In Tsavaris certain office records of Dr. Tsavaris were obtained pursuant to a subpoena duces tecum served upon Dr. Tsavaris' full-time secretary. Dr. Tsavaris had argued to the district court that the state attorney had obtained the subpoenaed office records in violation of his right to be free from unreasonable searches and seizures. He further contended that the records should be suppressed because the subpoenas were defective and improperly served.

In determining whether Dr. Tsavaris was entitled to claim the protection of the exclusionary rule with regard to these subpoenaed records, the district court relied on the concept of "standing." This Court likewise considered standing as a separate inquiry from the defendant's substantive claim of fourth amendment violation. Initially, we held that "[a]lthough Tsavaris did not have standing to challenge the form or service of process of the subpoenas, he did have standing to object to the subpoenas on the basis that they violated his fourth amendment rights." 394 So.2d at 425. We then traced the development of the United States Supreme Court's position on the application of the fourth amendment to a subpoena duces tecum and concluded that:

The use of a properly limited subpoena does not constitute an unreasonable search and seizure under the fourth amendment. All that is required is that the subpoenaed materials be relevant to the investigation being conducted and that the subpoena not be overly broad or burdensome. A proper subpoena is one that is properly limited in scope, relevant in purpose, and specific in directive so that compliance will not be unduly burdensome.

Id. at 426-27.

In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the United States Supreme Court discarded reliance on concepts of "standing" in determining whether a defendant is entitled to claim the protections of the exclusionary rule. The inquiry, after Rakas, is simply whether the defendant's rights were violated by the allegedly illegal search or seizure. United States v. Salvucci, 448 U.S. 83, 87 n. 4, 100 S.Ct. 2547, 2551 n. 4, 65 L.Ed.2d 619 (1980).

We did not adopt the single-treatment analysis expoused by the United States Supreme Court in Rakas in Tsavaris. As noted above, we regarded standing separately. However, in today's decision, we do adopt the Rakas analysis. We hold that the determination of whether the proponent of a motion to suppress is entitled to contest the legality of a search and seizure must take into consideration the substantive fourth amendment issues as well as the concept of standing. In so holding, we recede from that portion of Tsavaris treating standing as a separate inquiry to be determined before the substantive fourth amendment issues. This conformity with the United States Supreme Court on this issue is particularly appropriate in light of the amendment to Article I, section 12, Florida Constitution, adopted after the Tsavaris decision in 1982, which mandates that the right against unreasonable searches and seizures "shall be construed in conformity with the fourth amendment to the United States Constitution, as interpreted by the United States Supreme Court."

When considering petitioner Dean's fourth amendment claim under this analysis, his reliance on Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968), is not misplaced. In Mancusi, a subpoena duces tecum was served on a union local officer, calling upon it to produce certain union books and records. Upon noncompliance with the subpoena, the state officials searched the offices and seized the named records. DeForte, the vice president of the union, objected to the admission of these corporate records against him individually. The office from which the records were seized was one large room which DeForte shared with other union officials. The record did not show from what part of the office the records were taken, and DeForte did not claim that it was a part reserved for his exclusive personal use. The parties stipulated that DeForte spent a "considerable amount of time" in the office, and that he had custody of the papers at the moment of their seizure.

Upon these facts, the United States Supreme Court held that DeForte had standing to object to the seizure of the documents because he had a "reasonable expectation of freedom from governmental intrusion" in the union office.

Although the United States Supreme Court has subsequently held in Rakas that the separate question of standing is "more properly subsumed under substantive Fourth Amendment doctrine," the holding in Mancusi is still intact. The Supreme Court noted that had they earlier decided that the question of standing was properly a substantive fourth amendment analysis, "we can think of no decided cases of this Court that would have come out differently." Rakas, 439 U.S. at 139, 99 S.Ct. at 428.

In a footnote, the Court compared Mancusi, where the Court first considered the standing question, with Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), where the Court first focused on substantive fourth amendment law, and concluded, "[i]n both cases, however, the first inquiry was much the same." Id. 439 U.S. at 139 n. 7, 99...