Franco v. State

• Decision Date: 25 September 1979
• Docket Number: Nos. 78-299,78-300,s. 78-299
• Parties: Albert Louis FRANCO and Oliver Eugene Coachman, Appellants, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1168

376 So.2d 1168

Albert Louis FRANCO and Oliver Eugene Coachman, Appellants, v. The STATE of Florida, Appellee.

Nos. 78-299, 78-300.

District Court of Appeal of Florida, Third District.

Sept. 25, 1979.

Stephen J. Kogan, Miami and Corey E. Hoffman, South Miami, for appellants.

Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty., Gen., for appellee.

Before HAVERFIELD, C. J., and HUBBART and KEHOE, JJ.

HAVERFIELD, Chief Judge.

Police officers Oliver Coachman and Albert Franco appeal their convictions for perjury for falsely testifying before a grand jury that they did not give drugs to confidential informants in exchange for information.

They first contend that the trial court erred in admitting into evidence electronic recordings of their conversations which were obtained without an intercept warrant.

Deputy John Leskin was one of several Broward County police officers that had observed officers Coachman and Franco deliver narcotics to two confidential informants in May, 1976. In June, 1976 Leskin was called to the Dade County State Attorney's office which was investigating Franco and Coachman for alleged improprieties. On November 10, at the request of the investigator for the State's Attorney, Leskin held a telephone conversation with Franco with reference to Franco giving narcotics to confidential informants. This conversation was recorded with the consent of Deputy Leskin. On November 11 Leskin again called Franco and arranged for a personal meeting. Leskin, wired for sound, met later that same day with Franco and Coachman and the conversation at the meeting as well as the telephone conversation earlier that day were recorded. At trial Leskin testified that he consented to have his conversations with Franco and Coachman recorded and further testified as to the contents of these conversations. The tapes of the conversations were then introduced into evidence and played for the jury. In these recorded conversations Franco and Coachman stated that they did give narcotics to confidential informants in exchange for information. Franco and Coachman argue that the prosecution was required to obtain intercept warrants before the conversations could be recorded and, therefore, the tapes were not admissible. We do not agree.

The law is well established that the use of secret informers by the government is not per se unconstitutional and the Fourth Amendment does not protect a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966); Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 347 (1966); see also Walker v. State,222 So.2d 760 (Fla. 3d DCA 1969) and cases cited therein. The above principle is applicable to Article I, Section 12 of the Florida Constitution (1968) and is codified in Section 934.03(2)(c), Florida Statute (1975):

"(c) It is lawful under this chapter for a law enforcement officer or a person acting under the direction of a law enforcement officer to intercept a wire or oral communication when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act."

However, Tollett v. State, 272 So.2d 490 (Fla.1973), the lead case with respect to the right of privacy protected by Article I, Section 12, requires that in keeping with the intent thereof the participant in a communication must himself take the witness stand and testify that he gave his consent to the interception as a predicate to the introduction of the electronic reproduction of the communication. As the court explained:

"This is so because it is an elementary rule of evidence that a party to a discussion or communication with a defendant may take the witness stand and testify, subject to cross-examination, as to the contents of his communication or discussion with a defendant and this can include as a logical concomitant to his testimony any tape or electronic recordings of such communications or discussions which he himself made or which he authorized (consented for) police officers to make. Such direct testimony easily falls in the class of those exceptions where establishment of probable cause and securance of a warrant or order are not required." 272 So.2d 494.

It is clear that if there is compliance with Section 934.03(2)(c) and Tollett, supra, electronic reproductions of communications between an informer and the accused may be introduced into evidence and the securance of an intercept warrant or order are not necessary regardless of whether there was sufficient time to obtain one. A wrongdoer who voluntarily speaks to another of his wrongdoings, only has the hope or expectation, not a constitutionally protected right, that the other person will not breach his confidence and testify as to the contents of their conversations. It logically follows then that recordings of such communications should be and are admissible after the individual in whom the accused has confided has testified (both as to his consent and the contents of his discussion) in that in the search for the truth it is by far the most reliable evidence possible. See Walker v. State, 222 So.2d 760, 762 (Fla. 3d DCA (1969), Supra. Conceivably these recordings may ultimately be favorable to the accused as the informer's testimony may not accurately reflect the conversations or quote statements out of context.

Finally to the extent that our holding herein may conflict with State v. Muscara, 334 So.2d 167 (Fla. 3d DCA 1976), we hereby recede from Muscara.

Turning to the instant case, the record reflects that Deputy Leskin took the witness stand and testified as to his consent to taping the conversations and then the contents thereof prior to the actual introduction of the tapes. For the reasons set out above we conclude the tapes were admissible. See Crespo v. State, 350 So.2d 507, 509 (Fla. 3d DCA 1977).

We also considered the second point on appeal and find no merit therein. See U. S. v. Gregono, 497 F.2d 1253 (4th Cir. 1974).

Affirmed.

HUBBART, Judge (dissenting).

I must respectfully dissent. I would reverse the convictions appealed from and remand the cause to the trial court with directions to order a new trial and to grant the defendants' motion to suppress the tape recordings herein for failure of the police to obtain a valid intercept warrant based on the authority of State v. Muscara, 334 So.2d 167 (Fla. 3d DCA 1976).

It seems clear from this record, and the court herein does not reach a contrary result, that the police had ample time to secure an intercept warrant prior to conducting the electronic surveillance in this case. All the taped conversations with the defendants herein were initiated by the police after a lengthy police investigation during which time there was more than a sufficient opportunity to have secured an intercept warrant.

In State v. Muscara, supra, this court held that the failure to secure an intercept warrant to electronically record, as here, a conversation between the defendant and a consenting police informer, under circumstances where it was practicable for the police to have secured such a warrant, rendered the electronic interception of such conversations "unreasonable" and the tape recordings thereof inadmissible in evidence within the meaning of Article I, Section 12, of the Florida Constitution. The result reached in Muscara was in no way changed by the fact that the police informer who participated in the conversation consented, as here, to the electronic surveillance of...