Figueroa v. State, 5D03-1341.

• Decision Date: 08 April 2004
• Docket Number: No. 5D03-1341.,5D03-1341.
• Citation: 870 So.2d 897
• Parties: Carmelo I. FIGUEROA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

870 So.2d 897

Carmelo I. FIGUEROA, Appellant, v. STATE of Florida, Appellee.

No. 5D03-1341.

District Court of Appeal of Florida, Fifth District.

April 8, 2004.

James F. Cummins, Inverness, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellee.

MONACO, J.

The issue presented to us for consideration is whether certain cell telephone records obtained from a telephone service provider pursuant to an investigative subpoena, as opposed to a warrant, violates the Fourth Amendment proscription against unlawful searches and seizure. Because we conclude that obtaining the records did not amount to a search, we find no violation of the appellant's constitutional right and affirm.

Carmelo I. Figueroa was charged with conspiracy to traffic in cocaine in excess of 400 grams, trafficking in cocaine, and possession of cocaine. Mr. Figueroa moved to suppress certain evidence that was found in his vehicle after a traffic stop. His vehicle was searched incident to the arrest based on probable cause that was founded on information received in connection with the interception of information related to a cell phone number. An evidentiary hearing was held before the judge who denied the motion to suppress. Mr. Figueroa then pled nolo contendere to the charges as filed, reserving the right to appeal the denial of his motion to suppress, and was adjudicated guilty and sentenced to state prison.

The evidence at the suppression hearing reflected that Mr. Figueroa was identified by the Citrus County Sheriff's Office Special Investigations Unit as a suspect in a narcotics ring. In furtherance of the investigation the Special Investigations Unit requested certain cell telephone records from Nextel Communications, a wireless telephone company, by serving Nextel with an investigative subpoena. The foundation for the request was section 934.23(4), Florida Statutes (2000), a statute that authorized the State to use a subpoena to obtain information without first seeking the approval of a court. That subsection of the statute, which concerns the disclosure of customer communications or records by the provider of electronic communication services, reads¹:

(4)(a) Except as provided in paragraph (b), a provider of electronic communication service or remote computing service may disclose a record or other information pertaining to a subscriber or customer of such service, not including the contents of communication coveredby subsection (1) or subsection (2), to any person other than an investigative or law enforcement officer.

(b) A provider of electronic communication service or remote computing service shall disclose a record or other information pertaining to a subscriber to or customer of such service, not including the contents of communications covered by subsection (1) or subsection (2), to an investigative or law enforcement officer only when the investigative or law enforcement officer:

1. Obtains a warrant issued by the judge of a court of competent jurisdiction;

2. Obtains a court order for such disclosure under subsection (5); or

3. Has the consent of the subscriber or customer to such disclosure.

(c) A provider of electronic communication service or remote computing service shall disclose to an investigative or law enforcement officer the name, address, telephone toll billing records, telephone number or other subscriber number or identity, and length of service as a subscriber or customer of such service and the types of services the subscriber or customer used when the governmental entity uses a subpoena.

(d) An investigative or law enforcement officer who receives records or information under this subsection is not required to provide notice to a subscriber or customer."

(Emphasis added).

Subsections (4)(a) and (b) of the statute make specific reference to "contents of communication." The term, "contents," is defined in section 934.02(7), Florida Statutes (2000), as it relates to wire, oral or electronic communications, as including "any information concerning the substance, purport, or meaning of that communication." Section 934.22, Florida Statutes (2000), generally prohibits a person or entity who provides an electronic communication service or remote computing service to the public from knowingly divulging the contents of a communication, except under certain limited described conditions, one of which is pursuant to section 934.23. An "electronic communication" is defined by section 934.02(12), Florida Statutes (2000), as "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by use of a wire, radio, or electromagnetic ... system ..." It does not include, among other exclusions, a wire or oral communication, or communications made through a tone-only paging device.

The information subpoenaed by and received by the Special Investigations Unit from Nextel in the present case consisted of the numbers dialed from and received by a particular cell phone associated with an identified wireless telephone account (referred to as a "toll analysis"), and the name, address, telephone number, type of service and other similar information for the wireless account subscriber (referred to as "subscriber information"). No court order or warrant was obtained by the Special Investigations Unit in connection with the issuance of the subpoena, nor was Mr. Figueroa notified by law enforcement authorities or Nextel that the records were being requested.

The cell phone in question was in the possession of one James Morrell, and registered to Todd Puckett, both of whom are co-defendants of Mr. Figueroa. Using the information obtained from Nextel by the investigative subpoena, law enforcement then obtained a wiretap and a "dialed number recording device" (apparently, "Caller I.D."), pursuant to court orders. Based in part on the information gathered through the wiretap and Caller I.D., Mr. Figueroa and the others were arrested and charged with a variety of drug offenses.

At the hearing on the motion to suppress, the State conceded that Mr. Figueroa had standing to challenge the evidence sought to be suppressed because he was a participant in some incriminating conversations that were intercepted by virtue of the wiretap.² The probable cause underpinning the wiretap was, in part, information obtained from Nextel by use of the investigative subpoena. After considering the evidence presented, the trial court found that the toll analysis did not fall within the definition of "contents" of an "electronic communication," as contemplated by sections 934.02(7) and (12), Florida Statutes (2000), and was not protected by the Fourth Amendment. He held, accordingly, that the toll analysis and subscriber information were properly the subject of the investigative subpoena, and thus could be used to demonstrate probable cause to support the later wiretaps.

Mr. Figueroa's argument, reduced to its essence, is that a number transmitted from one cellular telephone to another, or to a cellular telephone company is "content" of an "electronic communication," and cannot be obtained by law enforcement authorities using only an investigative subpoena. His position is that the wiretap procedure, including court approval, must be utilized to acquire this information. We disagree.

We begin with consideration of Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). In that case the United States Supreme Court decided that information obtainable through the use of a pen register is not a search, and is, therefore, not within the constitutionally protected sphere of Fourth Amendment privacy. A pen register is essentially the opposite of Caller I.D. It is defined as a device that "records and decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted," but it does not include the contents of the communication. See § 934.02(20), Fla. Stat. (2000). Thus, when a pen register is installed at the offices of a telephone company, it will record the numbers dialed...