Grand Jury Investigation, In re

• Decision Date: 05 December 1973
• Docket Number: Nos. 43644 and 43649,s. 43644 and 43649
• Citation: 287 So.2d 43
• Parties: In re GRAND JURY INVESTIGATION. In re Frank COBO, Movant.
• Court: Florida Supreme Court

Page 43

287 So.2d 43

In re GRAND JURY INVESTIGATIONIn re Frank COBO, Movant.

Nos. 43644 and 43649.

Supreme Court of Florida.

Dec. 5, 1973.

Tobias Simon and Elizabeth J. duFresne, Stephens & McMillen, Miami, for appellant-petitioner.

Robert L. Shevin, Atty. Gen., and Barry Scott Richard, Asst. Atty. Gen., for appellee-respondent.

PER CURIAM.

This cause is before us, both on direct appeal from the Circuit Court, Volusia County, ¹ and on petition for writ of certiorari to the District Court of Appeal, First District.² In response to the direct appeal, appellee has filed a motion to dismiss.As to the petition for writ of certiorari, we have ordered that action thereupon be deferred pending the disposition of the appeal.On September 11, 1973, this Court heard oral argument on the direct appeal and, on the basis of the record, briefs of counsel and said argument, we hereby dispense with further briefs, record and oral argument in Case No. 43,649.We have jurisdiction pursuant to Art. V, Sec. 3(b)(3), Florida Constitution, F.S.A.

The movant primarily questions denial by the Circuit Court of Volusia County of his motion to strike and suppress any and all evidence obtained in a Dade County authorized wiretap during 1972, where such evidence related to crimes other than those enumerated in F.S. § 934.07, F.S.A.

The First District Court of Appeal phrased movant's thrust on two points, as follows:

Point one was stated as follows:

'Does a witness summoned before a Grand Jury to testify concerning wiretap interceptions, have the right to challenge the legality of the interception by way of a pre-indictment hearing on a motion to suppress, prior to being interrogated?'

Point two was stated as follows:

'Where evidence is obtained by a court authorized wiretap of a crime which is not specifically enumerated in the wiretap law, is such evidence admissible in a court of law and can such evidence be used to obtained additional evidence of the same crime by investigative methods other than a wiretap?'

The First District Court of Appeal decided against the movant³ on the first point and therefore declined to rule on point two.Of course, a ruling on one point is inclusive of the other in this particular case.

Under consideration is F.S. Chapter 934, F.S.A., relating to Security of Communications.

F.S. § 934.06, F.S.A., provides as follows:

'Whenever any wire or oral communication has been intercepted, No part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, Or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, If the disclosure of that information would be in violation of this chapter.'(Emphasis supplied.)

F.S. § 934.09(9)(a), F.S.A., provides as follows:

'Any aggrieved person in any trial, hearing, Or proceeding in or before any court, department, officer, agency, regulatory body, or other authority May move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that:

'1.The communication was unlawfully intercepted;

'2.The order of authorization or approval under which it was intercepted is insufficient on its face; or

'3.The interception was not made in conformity with the order of authorization or approval.'(Emphasis supplied.)

The First District Court recognized that in a wiretap case under F.S. § 934.06, F.S.A., supra, the disclosure of any information derived therefrom in violation of Chapter 934 should not be received by a grand jury, but, nevertheless, concluded that the movant Had no standing as a witness (called to testify before the grand jury) to move to suppress such violative information because F.S. § 934.09(9)(a), F.S.A., supra, did not include the words 'grand jury'.This conclusion was arrived at by analogy to the United States Supreme Courtcase of Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179, decided in 1972.Gelbard was decided upon the Supreme Court's 'interpretation of intent' of the United States Congress' Omnibus Crime Control and Safe Streets Act.

The District Court's conclusion, however, overlooks several factors.First, our Legislature in 1969 could have simply through inadvertence failed to include the words 'grand jury' in F.S. § 934.09(9)(a), F.S.A., supra.Second, the Legislature could have deemed it not necessary to use 'grand jury' since it granted the right to move to suppress to any aggrieved person in a wiretap case in 'any . . . proceeding in or before any court . . .', which in turn then depends upon this State's interpretation of such language.

Clearly, the movant was an 'aggrieved person' within the definition of F.S. Chapter 934, F.S.A., which a casual review will reveal.Next follows the question: was the movant(aggrieved person) involved in any proceeding in or before any court?Answer: yes.

As long ago as 1900, this Court, in defining the nature of a grand jury proceeding in Craft v. State, 42 Fla. 567, 29 So. 418, 419, stated:

'We think that an investigation of a crime by a Grand jury that is within its jurisdiction to investigate and to indict for Is a judicial proceeding in a court of justice . . . under our judicial system a grand jury is an appendage or adjunct to the circuit court . . .'(Emphasis supplied)

Next, in State ex rel. Guyton v. Croom, 48 Fla. 176, 37 So. 303, 306(1904), our Court held:

'. . . under our judicial system a grand jury is an appendage or adjunct to the circuit court . . .'

Then, in Rivers v. State, 121 Fla. 887, 164 So. 544, 545, our Court further stated:

'. . . An investigation by a grand jury of a crime that is within its jurisdiction to investigate and to indict for Is a judicial proceeding in a court of justice.'(Emphasis supplied.)

For a fair and apt discussion of the function and nature of our grand jury system and its blood kinship to being a proceeding in or before a court, 15 Fla.Jur., Grand Jury, Secs. 2 and 3, states in pertinent part:

'. . . A grand jury is an agency of the state, and a part of its judicial system.It has been variously referred to as a coordinate branch of the judiciary, and as an arm, appendage, or adjunct of the circuit court.In essence, it is a creature of the court since it cannot constitute itself on its own initiative but can act as a grand jury, in accordance with the law, only when summoned, impaneled, and convened by the court. . . .'

'. . . Proceedings before a grand jury are characterized as judicial, although grand jury investigations are always ex parte, and the person investigated is never accorded the right to be heard before the grand jury . . . The grand jury is designed as a means not only of bringing to trial persons accused of public offenses on just grounds, but also of protecting citizens against unfounded accusations, whether they come from the government or are prompted by partisan passion or private enmity.

'In Florida, the grand jury system is derived from the common law, but has been modified by statute.'

Thus, we conclude that the movant in this case was an aggrieved party involved in a proceeding before a court and has status to move to suppress wiretap information violative of F.S. Chapter 934, F.S.A.

It may be argued that such a conclusion may impede justice by forestalling unencumbered inquiry; however, of equal weight to all people is the guarantee of the Fourth Amendment against the invasion of privacy.If this guarantee is enforced, it tends to destroy any excitement to commit an act designed to invade or destroy the right of privacy.

Notwithstanding our conclusion on this singular issue, another point remains patently clear.If as per the District Court of Appeal's conclusion, F.S. § 934.06, F.S.A., supra, that no unauthorized wiretap information is to be received by a grand jury, but F.S. § 934.09(9)(a), F.S.A., supra, does not permit an aggrieved person to question it prior to indictment or information, then who supervises the plain intent and meaning of F.S. § 934.06, F.S.A., supra, to prohibit unauthorized wiretap information going to the grand jury?Obviously, someone must have that responsibility.Otherwise, a dichotomy exists and our system of justice would be operating in a vacuum, unleashed and subjecting persons, and families, to embarrassment, humiliation and possible loss of jobs and reputations arising through unwarranted indictments or informations.Clearly, this responsibility lies with the officers of our courts, i.e. the judges and prosecutors primarily (because of the ex parte nature of a grand jury proceeding).Such should be and is the result sub judice which is as clear as an electrical impulse flashed to the eye.

Now, therefore, we can turn to the primary focal point in issue.The movant wishes to suppress or preclude presentment to the grand jury of any wiretap communication involving him or which could or might tend to involve him with any offense other than those specifically authorized under the wiretap statute by F.S. § 934.07, F.S.A.Is he entitled to this sanction or protection?Answer: yes.

That part of the Florida Statutes dealing with 'Security of Communications', Chapter 934, Florida Statutes, F.S.A., and more particularly F.S. § 934.07, F.S.A., authorizing interception of wire or oral communications of persons, is a statutory exception to the constitutional (federal and state) right to privacy.Therefore, as an exception to a constitutional right it must be strictly construed and narrowly limited in application to the uses delineated by the Florida Legislature.

Apropos, it is noted that the State, in its brief filed with the First District Court of Appeal, conceded, 'Petitioners accurately point out that the Florida wiretap statute is limited in its applicability to certain enumerated crimes.'

Thus, in determining...