Doe v. State

Decision Date31 March 1994
Docket NumberNo. 79508,79508
Parties19 Fla. L. Weekly S149 John DOE, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

Tony C. Dodds, Law Office of T.W. Weeks, III, Lakeland, for petitioner.

Robert A. Butterworth, Atty. Gen., and Stephen A. Baker, Asst. Atty. Gen., Tampa, for respondent.

PER CURIAM.

We have for review State v. Doe, 592 So.2d 1121 (Fla. 2d DCA 1991), wherein the court recognized conflict with Saracusa v. State, 528 So.2d 520 (Fla. 4th DCA 1988). We have jurisdiction. Art. V, Sec. 3(b)(4), Fla. Const. We approve doe.

The state attorney's office in Lakeland served upon Shernequa Pace a "State Attorney's Investigative Witness Subpoena" on July 10, 1991, in the case of "State of Florida vs. John Doe," commanding Ms. Pace to appear at the state attorney's office to supply fingerprint samples and handwriting exemplars:

YOU ARE HEREBY COMMANDED TO be and appear at the State Attorney's Office, Lakeland Branch, Kress Building, 109 N. Kentucky Ave., Lakeland, Florida on:

DATE: JULY 25, 1991

TIME: 10:00 A.M.

ASA: MICHAEL P. CUSICK

to supply fingerprint samples and handwriting exemplars. IF YOU CANNOT OR WILL NOT APPEAR AS DIRECTED OR IF YOU HAVE ANY QUESTIONS YOU MUST CALL THE ASSISTANT STATE ATTORNEY LISTED ABOVE AT 534-4800 PRIOR TO THE REQUIRED TIME OF ATTENDANCE AND ADVISE HIM/HER OF YOUR INTENTIONS. YOU MAY ALSO APPEAR BEFORE A CIRCUIT COURT JUDGE TO CHALLENGE THIS SUBPOENA. IF YOU FAIL TO OBEY THIS SUBPOENA YOU MAY BE SUMMONED BEFORE A JUDGE OF THIS COURT AND THE STATE ATTORNEY MAY SEEK AN ORDER COMPELLING YOUR ATTENDANCE.

The trial court concluded that the subpoena violated Hayes v. Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985), wherein the United States Supreme Court ruled that the act of accosting a suspect for fingerprinting implicates constitutionally protected privacy interests:

There is no doubt that at some point in the investigative process, police procedures can qualitatively and quantitatively be so intrusive with respect to a suspect's ... privacy interests as to trigger the full protection of the Fourth and Fourteenth Amendments. And our view continues to be that the line is crossed when the police, without probable cause or a warrant, forcibly remove a person ... and transport him to the police station, where he is detained, although briefly, for investigative purposes.

Id. at 815-16, 105 S.Ct. at 1646-47 (citations omitted).

The Second District Court of Appeal granted the State's petition for certiorari and reversed, holding that a subpoena for fingerprinting and voice exemplars violates no constitutional rights. The court endorsed the ruling in Wyche v. State, 536 So.2d 272 (Fla. 3d DCA 1988) (no constitutional violation where petitioner subpoenaed to provide fingerprint samples without showing of reasonableness or probable cause), review denied, 544 So.2d 201 (Fla.1989), and recognized conflict with Saracusa v. State, 528 So.2d 520 (Fla. 4th DCA 1988) (constitutional violation where petitioner subpoenaed to appear in lineup and submit blood samples without probable cause). Pace sought review, which we granted based on certified conflict.

The State argues that the district court decision should be approved based on the reasoning in Wyche. According to the State, the United States Supreme Court in United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), has decided the constitutional issue in the State's favor.

We agree that the key federal case on this issue is Dionisio, 1 wherein the United States Supreme Court analyzed a federal grand jury subpoena for voice exemplars in terms of its impact on protected privacy interests Any [constitutional] violation in the present setting must rest on a lawless governmental intrusion upon the privacy of "persons".... [This] Court [has] explained the protection afforded to "persons" ... and concluded that "wherever an individual may harbor a reasonable 'expectation of privacy' ... he is entitled to be free from unreasonable governmental intrusion."

Dionisio, 410 U.S. at 8, 93 S.Ct. at 769 (citations omitted). The Court ruled that neither the directive compelling attendance to obtain the exemplars nor the actual obtaining of the exemplars violated protected privacy rights under the Fourth Amendment of the United States Constitution. According to the Court, compulsory attendance before the federal grand jury differs fundamentally from an arrest or investigative stop:

The latter is abrupt, is effected with force or the threat of it and often in demeaning circumstances, and, in the case of arrest, results in a record involving social stigma. A subpoena is served in the same manner as other legal process; it involves no stigma whatever; if the time for appearance is inconvenient, this can generally be altered; and it remains at all times under the control and supervision of a court.

Id. at 10, 93 S.Ct. at 770 (quoting United States v. Doe, 457 F.2d 895, 898 (2d Cir.1972), cert. denied, 410 U.S. 941, 93 S.Ct. 1376, 35 L.Ed.2d 608 (1973)). Further, the actual taking of the exemplars does not implicate privacy interests because an individual has no reasonable expectation of privacy in his or her voice. The Court noted that the same is true of fingerprints. Id. 410 U.S. at 15, 93 S.Ct. at 772.

We note that the State clearly has a strong interest in gathering information relevant to an initial inquiry into suspected criminal activity, whether through use of the grand jury subpoena power or that of the statutorily empowered 2 state attorney. Such initial information gathering is

"indispensable to the administration of justice." Without it criminal activity could be hidden behind a "wall of silence" that finds no justification in legal privilege, but is based simply on an individual's desire not to get "involved," fear of retaliation, dislike for the substantive law, or private code against "snitching."

1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure Sec. 8.6 (1984) (footnote omitted). Further, Florida's state attorney acts in noncapital investigations as a one-person grand jury, as explained by Judge Pearson in Wyche, and in order to function effectively in that role must be granted reasonable latitude:

... [I]t is generally recognized that the state attorney, in carrying out [his or] her responsibility of investigating and prosecuting violations of the criminal laws of this state, acts as a one-person grand jury. While there are unquestionably differences between a federal grand jury and a state attorney acting as a one-person grand jury, those differences do not lie in the area of the powers of either to investigate crimes committed within their respective jurisdictions. Thus, because a federal grand jury investigating possible criminal violations plainly has the right to request the issuance of a subpoena for the purpose of compelling a person to provide nontestimonial physical evidence, there is no impediment to a state attorney compelling the production of the same evidence when acting as the State's counterpart to a federal grand jury.

Wyche, 536 So.2d at 274 (citations omitted).

Based on the foregoing, we approve the decision of the court below in Doe. We approve Wyche and disapprove Saracusa.

It is so ordered.

OVERTON, McDONALD, GRIMES and HARDING, JJ., concur.

BARKETT, C.J., dissents with an opinion, in which KOGAN, J., concurs.

SHAW, J., dissents with an opinion.

BARKETT, Chief Justice, dissenting.

The majority holds that when a person is compelled, under the threat of jail for contempt, to go to a prosecutor's office to give potentially self-incriminating evidence, that person has not been seized within the meaning of the Fourth Amendment. Because I cannot see the logic supporting such a conclusion, I dissent.

The Fourth Amendment permits the taking of fingerprints or handwriting exemplars when there has been a lawful Fourth Amendment seizure. I acknowledge that the taking of fingerprints or handwriting exemplars has not been deemed to be, in and of itself, a Fourth Amendment seizure, and that people legitimately seized could be compelled to give their fingerprints or handwriting exemplars. However, a person's seizure to give such evidence must comply with Fourth Amendment requirements. Hayes v. Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985) (police cannot transport suspect to stationhouse for fingerprinting without suspect's consent, probable cause, reasonable suspicion, or prior judicial approval); see also Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969).

I can find no logical basis to constitutionally distinguish a physical seizure from the coercive pressure of compelling compliance, under threat of jail, with a state prosecutor's investigative subpoena. This is especially true given recent decisions holding that a suspect is seized under the Fourth Amendment when that person merely submits to the State's assertion of authority. See California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); State v. Curry, 621 So.2d 410 (Fla.1993); Hollinger v. State, 620 So.2d 1242 (Fla.1993). I do not read United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), or United States v. Euge, 444 U.S. 707, 100 S.Ct. 874, 63 L.Ed.2d 141 (1980), as controlling precedent compelling a contrary conclusion. 3

KOGAN, J., concurs.

SHAW, Justice, dissenting.

I would decide this case under our state, not federal, constitution for two reasons. First, federal caselaw on this matter is inapposite since it is based on the federal system wherein only a grand jury--not a prosecuting attorney--can issue a subpoena. And second, the issue itself is far more amenable to analysis under our state privacy provision than under the federal search and seizure clause.

1. Dionisio Inapposite

The majority's reliance on United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), is...

To continue reading

Request your trial
9 cases
  • Spence-Jones v. State Attorney Katherine Fernandez Rundle, Case No. 12–24253–CIV.
    • United States
    • U.S. District Court — Southern District of Florida
    • December 20, 2013
    ...at 953. Florida courts have described the state attorney in non-capital cases as acting as a one-person grand jury. See Doe v. State, 634 So.2d 613, 615 (Fla.1994); Imparato v. Spicola, 238 So.2d 503, 506 (Fla. 2d DCA 1970). “Under Florida's Constitution, the decision to charge and prosecut......
  • Wyche v. State, 1D03-5211.
    • United States
    • Court of Appeal of Florida (US)
    • June 20, 2005
  • Russell v. Pasik
    • United States
    • Court of Appeal of Florida (US)
    • October 14, 2015
    ...636 So.2d 818 (Fla. 1st DCA 1994) ; Saracusa v. State, 528 So.2d 520 (Fla. 4th DCA 1988), disapproved on other grounds, Doe v. State, 634 So.2d 613 (Fla.1994). The final element of this court's ability to grant certiorari, requiring a departure from the essential requirements of the law, me......
  • Joseph v. State
    • United States
    • Court of Appeal of Florida (US)
    • September 9, 1994
    ...restraint, violating first amendment); Saracusa v. State, 528 So.2d 520 (Fla. 4th DCA 1988), disapproved on other grounds, Doe v. State, 634 So.2d 613 (Fla.1994) (fourth and fifth amendment violation reviewed by certiorari).2 Other cases involving a prayer cap, skull cap or "fez" religious ......
  • Request a trial to view additional results
1 books & journal articles
  • The prosecutor as investigator.
    • United States
    • Florida Bar Journal Vol. 77 No. 9, October 2003
    • October 1, 2003
    ...of individual rights and to safeguard against possible abuses of the far-reaching powers so confided. Id. at 506. In Doe v. State, 634 So. 2d 613, 615 (Fla. 1994), the Florida Supreme Court espoused a similar theme, upholding a state attorney's right to compel the production of fingerprints......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT