Mozo v. State

• Decision Date: 19 January 1994
• Docket Number: No. 92-0280,92-0280
• Citation: 632 So.2d 623
• Parties: , 19 Fla. L. Weekly D141 Joyce MOZO, and Edgardo Mozo, Appellants, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 623

632 So.2d 623

62 USLW 2530, 19 Fla. L. Weekly D141

Joyce MOZO, and Edgardo Mozo, Appellants, v. STATE of Florida, Appellee.

No. 92-0280.

District Court of Appeal of Florida,

Fourth District.

Jan. 19, 1994.

Rehearing and Rehearing En Banc Denied March 22, 1994.

J. David Bogenschutz of Bogenschutz & Dutko, P.A., Fort Lauderdale, for appellants.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol Cobourn Asbury, Asst. Atty. Gen., West Palm Beach, for appellee.

ANSTEAD, Judge.

This case presents the question of whether the police may randomly intercept and listen to private conversations emanating from a person's home over a cordless telephone. We find such conversations are protected by the Florida Constitution and reverse and remand.

FACTS

The Mozos were arrested and informed against for possession of cocaine, possession of cannabis, and possession of drug paraphernalia. They moved to suppress evidence seized from their home in a search and claimed the search resulted from the government's illegal interception of private telephone calls in their home. After taking testimony and hearing argument, the court denied the motion, finding that the police acted lawfully in intercepting the cordless phone calls. The Mozos subsequently pleaded nolo contendere but reserved the right to appeal the court's ruling because a contrary ruling on the legal issue involved would be dispositive of the state's case against them.

The hearing on the Mozos' motion to suppress disclosed the following facts. On June 20, 1991, Detectives Mike Kapo and Patrick McGowan of the Plantation Police Department were in the area of the Harbor Town Apartment Complex using an electronic scanning device to monitor private telephone calls. It is not clear from the record why the detectives chose to surveil this particular complex. Their goal was to use the scanning device to scan frequencies at random hoping to come across some kind of illegal activity. According to Detective McGowan, this could be done by tuning the device in to different frequencies so various radio transmissions, such as from cordless phones, could be overheard. Detective Kapo purchased the scanner, made by Realistic, at Radio Shack on June 17, three days before the date in question. The purchase was made with funds furnished by the Plantation Police Department and, according to Detective Kapo, was approved by his sergeant for the express purpose of monitoring cordless phone calls.

On the night of June 20, the detectives intercepted numerous phone calls, including a phone call in which a female named "Joyce" was speaking to an unidentified male by cordless telephone. The male asked Joyce if "she had the same stuff that she had last The detectives continued to monitor the same frequency throughout the evening, eventually hearing a female say, "[C]ome to my apartment. The entrance code is 120." The next day, June 21, 1991, the detectives learned entrance code 120 corresponded with an apartment rented to appellant Edgardo Mozo. Upon gathering this information, they began to visually surveil the apartment. In addition, they continued to monitor the same frequency, and even began to tape record the intercepted phone conversations. Once again, these procedures were followed without obtaining a warrant or court order. Furthermore, all calls were intercepted without the knowledge or consent of the callers. Eventually, after following the same procedures and intercepting a number of calls for one more day, Detective McGowan left to obtain a search warrant. He recited the above information, and added he observed a pattern of people arriving at the apartment and leaving shortly thereafter. Finding probable cause, the judge issued a search warrant for the Mozos' residence.

                night."   Joyce then turned away from the receiver and asked an unidentified person, "Do you have the same stuff as last night?"   After receiving an answer, she responded into the receiver, "No, just has powder.  No rock."   At no time after eavesdropping in on this call did the officers attempt to obtain a court order to continue to monitor that frequency.  Both detectives testified the reason they did not obtain such an order was because they believed that Florida's Security of Communications Act, Chapter 934, Florida Statutes (1989) did not apply, and therefore, they were legally entitled to intercept cordless phone conversations without one
                

The detectives executed the warrant later that night and recovered an extensive list of physical evidence, including several contraband items. Mrs. Mozo was present in the apartment, along with three others, but Mr. Mozo was not.

The record is devoid of any description of the Mozos' cordless phone or how it operates, although the record does indicate there is a sticker on the bottom of the base unit containing the following statement:

This cordless telephone system operates on the part 1568 FCC Rules. Privacy of communication may not be insured when using this phone. Operation is subject to two conditions: 1. it may not interfere with radio communications. 2. it must accept any interference received including that which may cause undesirable operation. Complies with parts 1568 FCC Rules, FCC registration number.

There is no evidence indicating the Mozos' knowledge of this sticker.

STANDING OF APPELLANT EDGARDO MOZO

Initially, a question arises whether Mr. Mozo has standing to challenge the interception of the cordless phone conversations. He maintains he had a reasonable expectation of privacy in those phone calls. However, there is no evidence in the record demonstrating he was ever a party to any of the intercepted cordless phone conversations. The only testimony taken at the motion to suppress hearing with reference to the intercepted conversations was that of Detective McGowan, who described each intercepted call. Almost without exception, he testified it was Mrs. Mozo receiving the calls. Only one phone call fails to identify who received it.

In order to have standing to challenge the interception of the conversations, Mr. Mozo had to be either a party to the conversations or one whose premises served as the site of the surveillance which resulted in the interception. See Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); see also State v. Eber, 502 So.2d 32 (Fla. 3d DCA) (where defendant was not an "aggrieved person," defined in section 934.02(9) as one "who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed," he lacked standing to challenge unlawful wiretap), rev. denied, 511 So.2d 299 (Fla.), and cert. denied, 484 U.S. 897, 108 S.Ct. 232, 98 L.Ed.2d 190 (1987); State v. Albano, 394 So.2d 1026 (Fla. 2d DCA 1981) (defendant lacked standing where he was not a party to any intercepted conversations nor were his premises the site of any electronic surveillance). Even though Mr.

Mozo was not a party to any of the conversations, the record shows the apartment from which the conversations emanated and the evidence seized was leased in his name. It is also apparently the state's position that Mr. Mozo's possession of the premises gives rise to his alleged possession of the illegal substances found therein. Thus, by virtue of his proprietary interest in the apartment, Mr. Mozo enjoyed a reasonable expectation of privacy that his apartment would not be under surveillance. Accordingly, we conclude he has standing to challenge the interception of cordless telephone conversations originating from the apartment rented under his name. ¹

LAW AND ANALYSIS

At issue is whether the privacy protections accorded traditional telephone usage should be extended to cordless telephones used in the privacy of one's home. Significantly, neither the United States Supreme Court nor the Florida Supreme Court has addressed the issue of whether the Fourth Amendment protects conversations on a cordless phone. In fact, the United States Supreme Court has declined to review a decision that ruled on this issue. See Tyler v. Berodt, 877 F.2d 705, 706-07 (8th Cir.1989), cert. denied, 493 U.S. 1022, 110 S.Ct. 723, 107 L.Ed.2d 743 (1990).

According to one source, nearly half of the 95 million United States households use cordless telephones. See United States v. Smith, 978 F.2d 171, 177 (5th Cir.1992) (citing Anthony Ramirez, More Range, Less Static in New Cordless Phones, N.Y. TIMES, Sept. 12, 1992, Sec. 1, at 11), cert. denied, --- U.S. ----, 113 S.Ct. 1620, 123 L.Ed.2d 179 (1993)). The recent explosion in cordless phone usage, coupled with the unique nature by which they function, has resulted in confusion over whether to characterize them as traditional telephones or radio transmitters. As stated by the Fifth Circuit Court of Appeals:

In one sense, the cordless telephone is just what the name implies, a telephone. It looks and sounds like a normal land line telephone. When you use a cordless phone, you dial a telephone number and talk to the party on the other end of the line. In actual operation, however, the cordless phone actually uses a radio signal. The typical cordless phone consists of a base unit, attached to the land-based telephone line, and a mobile unit which transmits and receives the radio signals that carry the actual conversation to and from the base unit.

Smith, 978 F.2d at 178. The Wisconsin Supreme Court described their operation in this way:

Weak signals are transmitted from the base unit and handset in all directions and may be intercepted within about one thousand feet by anyone who is listening with a scanner, compatible cordless telephone, or other radio receiver.

State v. Smith, 149 Wis.2d 89, 438 N.W.2d 571, 574 (1989).

The United States Supreme Court has long given explicit Fourth Amendment protection to private telephone conversations. In Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963), the Court retreated from its...