Hajdu v. State

• Decision Date: 02 August 1966
• Docket Number: No. 65--598,65--598
• Citation: 189 So.2d 230
• Parties: George K. HAJDU, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 230

189 So.2d 230

George K. HAJDU, Appellant, v. The STATE of Florida, Appellee.

No. 65--598.

District Court of Appeal of Florida, Third District.

Aug. 2, 1966.

Rehearing Denied Aug. 29, 1966.

Hoffman & St. Jean, Miami Beach, for appellant.

Earl Faircloth, Atty. Gen., and Herbert P. Benn, First Asst. Atty. Gen., for appellee.

Before HENDRY, C.J., and BARKDULL and SWANN, JJ.

BARKDULL, Judge.

The appellant seeks review of a jury verdict finding him guilty of the unlawful practice of medicine, judgment and sentence thereon.

On August 21, 1964, one Claire White (an employee of a private detective agency which was working for the State Board of Medical Examiners) visited the appellant pursuant to orders from her employer. She carried a radio transmitter secreted in her purse. She told the appellant she thought she had cancer and he recommended her to a licensed physician. Thereafter, she made another appointment and again visited the appellant, carrying the radio transmitter in her purse. At this time she informed him she was suffering from an unwanted pregnancy. After some discussion regarding the situation, the appellant allegedly examined her and informed her she was, in fact, pregnant. During this visit and examination, Mrs. White's employer (Behrens) was stationed outside the appellant's apartment listening to the conversation over a radio receiver. An Information was filed against the appellant, charging him with unlawfully engaging in the practice of medicine by performing an internal pelvic examination upon Claire White while not holding a license from the State Board of Medical Examiners, in violation of §§ 458.13, 458.15, Fla.Stat., F.S.A. A jury trial was held on the charges, and the private detective (Behrens) was permitted to testify to the conversation he had heard broadcast from the secret transmitter to his receiver. This appeal ensued.

The appellant contends that the trial court erred in denying his motion to quash the Information, in that it failed to charge him with the violation of any law in Florida in that it was vague, indefinite and uncertain. We do not find this point to be well taken. See: Sweat v. Pettis,158 Fla. 104, 27 So.2d 827; Gibbs v. Mayo, Fla.1955, 81 So.2d 739; Drozewski v. State, Fla.1955, 84 So.2d 329; State v. Brown, Fla.App.1958,101 So.2d 599.

The appellant also contends the trial court erred in denying his motion for mistrial, on the grounds that the use of the word 'abortion' by the prosecution on voir dire and by a State witness in response to a question was prejudicial to him, thereby constituting grounds for a mistrial. We find no merit in this contention, particularly in light of the ultimate determination of this appeal; although it would appear that it would have been the better practice for the State not to have used the word 'abortion' on voir dire examination.

The appellant next contends that error was committed by the trial court in refusing to instruct the jury concerning the law of entrapment, in view of the evidence adduced by an investigator for the State Board of Medical Examiners. This point appears to be well taken, in light of the evidence that was introduced. See: Peters v. Brown, Fla.1951, 55 So.2d 334; Carter v. State, Fla.1963, 155 So.2d 787; Ivory v. State, Fla.App.1965, 173 So.2d 759.

Further, the appellant contends the trial court erred in failing to suppress testimony obtained through use of the secret radio transmitter, on the grounds that said evidence was obtained in violation of his State and Federal constitutional rights. It appears that this point is very well taken, and permitting the person outside the appellant's premises to relate the conversation he heard should not have been allowed, and it was prejudicial error for the trial court to permit its introduction. The use of such surreptitiously obtained information violates the right of privacy preserved by the Fourth Amendment of the United States Constitution, which is applicable to State proceedings (see: State v. Levenson, Fla.1963, 151 So.2d 283; Hicks v. State, Fla.App.1963, 156 So.2d 22; Mapp v. State of Ohio, 81 S.Ct. 1684, 367 U.S. 643, 6 L.Ed.2d 1081; United States ex rel. Manduchi v. Tracy, E.D.Penn.1964, 233 F.Supp. 423) and violates § 22 of the Declaration of Rights of the Florida Constitution, F.S.A.

The evidence was obtained by the use of a secret transmitter in the home of the defendant, which broadcast his comments to a person outside of his home who took the stand at the trial of this cause and testified as to the contents of the conversation. To condone this type of activity by any witness would be reprehensible, but it is particularly so when the activity was engaged in by a paid private investigator of a State agency.

The entry into private premises by an agent of the Government by stealth, fraud and deceit has been often condemned. Perhaps the best discussion of the law is cited in Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647, when Justice Clarke of the Supreme Court of the United States said:

'The prohibition of the Fourth Amendment is against all unreasonable searches and seizures and if for a government officer to obtain entrance to a man's house or office by force or by an illegal threat or show of force, amounting to coercion, and then to search for and seize his private papers would be an unreasonable and therefore a prohibited search and seizure, as it certainly would be, it is impossible to successfully contend that a like search and seizure would e a reasonable one if only admission were obtained by stealth instead of by force of coercion. The security and privacy of the home or office and of the papers of the owner would be as much invaded and the search and seizure would be as much against his will in the one case as in the other and it must therefore be regarded as equally in violation of his constitutional rights.

'* * * we cannot doubt that such decisions as there are in conflict with this conclusion re unsound, and that, whether entrance to the home or office of a person suspected of crime be obtained by a representative of any branch of subdivision of the government of the United States by stealth, or through social acquaintance, or in the guise of a business call, and whether the owner be present or not when he enters, any search and seizure subsequently and secretly made in his absence, falls within the scope of the prohibition of the Fourth Amendment. * * *'

In Silverman v. United States, infra (the famous 'spike mike' case), the Supreme Court of the United States, through Justice Stewart, observed:

'The Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. * * *

'This Court has never held that a federal officer may without warrant and without consent physically entrench into a man's office or home, there secretly observe or listen, and relate at the man's subsequent criminal trial what was seen or heard.' (Emphasis added)

In Cullins v. Wainwright, 5th Cir.1964, 328 F.2d 481, it was held that evidence procured by means of an electronic eavesdropping device was inadmissible as a violation of the Fourth Amendment to...