Hicks v. State, EE-101

• Decision Date: 04 May 1978
• Docket Number: No. EE-101,EE-101
• Citation: 359 So.2d 475
• Parties: Phyllis HICKS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 475

359 So.2d 475

Phyllis HICKS, Appellant, v. STATE of Florida, Appellee.

No. EE-101.

District Court of Appeal of Florida,First District.

May 4, 1978.

Rehearing Denied June 28, 1978.

Donald G. Nichols, of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for appellant.

Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.

BOOTH, Judge.

This cause is before the Court on appeal from the judgment of the Circuit Court, Duval County, entered on a jury verdict finding Defendant guilty of conspiracy to commit a felony, to wit: sale or delivery of heroin, and sentencing her to five years imprisonment and a five thousand dollar ($5,000) fine.

Appellant contends that evidence against her obtained through telephone interceptions was improperly admitted because service of post-interception inventory was made more than 90 days after interception ceased. Specifically, Appellant complains of two 60-day extensions of time for service of post-interception inventory granted by the court on motion of Appellee under Florida Statute § 934.09(7)(e). ¹ The grounds stated in Appellee's motions for these extensions were that electronic surveillance pursuant to the court's order was continuing in one of four related cases against the co-conspirators; that an application for further interceptions was pending, and that service of an inventory in the instant case would prejudice the surveillance being conducted on those involved in the possession, delivery, manufacture and sale of controlled substances, who would be alerted to the fact of electronic surveillance on one Eddie Lee Rosemond.

Rosemond, an alleged wholesale trafficker in illegal drugs, was the boyfriend of Appellant Hicks. The telephone specified in the court-authorized interception was listed in the name of Appellant Hicks, but located in the home of Rosemond. More than 400 separate communications relating to the drug ring's illegal operations were intercepted during the electronic surveillance of the particular telephone in question. ²

Appellant contends that lack of strict compliance with post-interception procedures requires suppression of evidence which was otherwise obtained in full compliance with the act. No reported authority supports that contention. Under Florida Statute § 934.09 the trial court's discretion is properly exercised as to post-interception procedures, including extension of time for serving inventory. ³ In the absence of an affirmative showing of prejudice, subsection (8) of § 934.09 provides that even the minimum furnishing of copies of the court order and application for wiretap to a party ten days before the trial or hearing can be waived where it is not possible for the State to furnish such information.

Here the inventory was served on May 4, following service of the indictment against Appellant the preceding day. Hearing on motion to suppress was held July 10 and the trial was November 8, 1976. Appellant makes no claim of prejudice in the preparation of her defense, or otherwise, by the postponement of service of inventory.

In In Re Grand Jury Investigation Concerning Evidence Obtained by Court Authorized Wiretaps, 276 So.2d 234 (1st DCA 1973), this Court noted that the Florida Security of Communications Act, Florida Statute Chapter 934, "is in all substantial respects identical in its language to the Omnibus Crime Control and Safe Streets Act of 1968 adopted by the Congress of the United States", and that decisions of the federal courts are pertinent "for the legislative history of the federal statute of which ours is a counterpart."

In U. S. v. Donovan, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652, the Supreme Court considered the purpose for the federal counterpart of Florida Statute § 934.09(7)(e) ⁴ and held that failure to serve notice on all parties whose communications were intercepted did not invalidate the interceptions, stating:

"The legislative history indicates that postintercept notice was designed instead to assure the community that the wiretap technique is reasonably employed. But even recognizing that Congress placed considerable emphasis on that aspect of the overall statutory scheme, we do not think that postintercept notice was intended to serve as an independent restraint on resort to the wiretap procedure." (e. s.)

In U. S. v. Bohn, 508 F.2d 1145 (CA 8th 1975), cert. denied 421 U.S. 947, 95 S.Ct. 1676, 44 L.Ed.2d 100 (1975) the court held:

"(A)bsent a clear showing of prejudice, a failure to comply with the notice and inventory requirements of 18 U.S.C. § 2518(8)(d) does not require suppression of the wiretap evidence . . ."

In U. S. v. Lawson, 545 F.2d 557 (CA 7th 1975), Defendants did not receive notice and inventory for over two years after termination of the authorized interception period, and the court held:

". . . we believe that suppression is not required inasmuch as defendants received the inventory three months prior to the hearing on defendants' motion to suppress and furthermore appellants have not alleged any prejudice resulting from this noncompliance."

In U. S. v. Iannelli, 477 F.2d 999 (CA 3d 1973), aff'd 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975) the court held that defendants who were allegedly not served with an inventory were not prejudiced where they eventually received actual notice well in advance of the hearing on the motion to suppress.

In U. S. v. Rizzo, 492 F.2d 443 (CA 2nd 1974), cert. denied 417 U.S. 944, 94 S.Ct. 3069, 41 L.Ed.2d 665 (1974), the court affirmed the admission of wiretap evidence where actual prejudice was not claimed to have resulted from delayed service of inventory, stating:

"We believe . . . that...