Perdue v. State

• Decision Date: 02 February 2012
• Docket Number: No. 1D10–5496.,1D10–5496.
• Citation: 78 So.3d 712
• Parties: Robert Jason PERDUE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

78 So.3d 712

Robert Jason PERDUE, Appellant,

v.STATE of Florida, Appellee.

No. 1D10–5496.

District Court of Appeal of Florida, First District.

Feb. 2, 2012.

Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Jay Kubica and Thomas D. Winokur, Assistant Attorneys General, Tallahassee, for Appellee.

WETHERELL, J.

Robert Jason Perdue raises two issues in this direct appeal of his convictions and sentences: 1) that the trial court erred in denying his motion to suppress an audio recording made by a 911 dispatcher, and 2) that section 893.13, Florida Statutes, is facially unconstitutional. We affirm the second issue without further comment based on Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011), and we reverse the first issue for the reasons that follow.

On January 17, 2010, a dispatcher with the Escambia County Sheriff's Office, received a 911 call from a woman reporting a disturbance occurring at her daughter's house next door. The woman gave the dispatcher the telephone number for that residence, and the dispatcher called the number to see if anyone there needed police assistance. After the line was answered, the dispatcher heard screaming and yelling in the background. No one said anything on the line; the line was simply open, and the dispatcher could hear a male threaten to shoot everyone in the house and himself. This call was recorded.

A deputy was dispatched to the residence where, according to the arrest report, he could hear arguing inside the house but he could not make out what was being said. The deputy did not come in contact with Perdue until he exited the house. Perdue denied threatening anyone, but his wife told the deputy that Perdue threatened to shoot her and his mother. After securing a rifle inside the house, the deputy arrested Perdue for two counts of aggravated assault with a deadly weapon. Perdue was also charged with drug possession and introducing contraband into a county detention facility as a result of a Xanax tablet and marijuana found on him in a search incident to the arrest.

Perdue moved to suppress the recording of the outgoing 911 call. He argued that the recording violated section 934.01(4), Florida Statutes (2009), and his right to privacy. After a hearing at which only the 911 operator testified, the trial court denied the motion. The court determined that the recording fell within the exception in section 934.03(2)(g) 2, which the court broadly construed to allow an emergency agency to intercept and record any wire communication in order to acquire necessary information to render aid and assistance.

After the motion to suppress was denied, Perdue pled nolo contendere to the offenses, reserving the right to appeal the denial of the motion. The parties stipulated, and the trial court agreed, that the motion was “dispositive for purposes of appeal.” The trial court accepted the plea and, consistent with the negotiated plea agreement, sentenced Perdue to a downward departure sentence of 24 months of community control followed by 24 months of probation. This timely appeal follows.

The facts material to the motion to suppress are not in dispute. Accordingly, we review the trial court's ruling on the motion de novo. See Miles v. State, 60 So.3d 447, 450–51 (Fla. 1st DCA 2011).

Section 934.03 prohibits the intentional interception and disclosure of wire, oral, or electronic communications without the parties' consent or court authorization. However, an employee of an agency operating an emergency 911 system may lawfully intercept and record

incoming wire communications on designated “911” telephone numbers and published nonemergency telephone numbers staffed by trained dispatchers at public safety answering points only. It is also lawful for such employee to intercept and record outgoing wire communications to the numbers from which such incoming wire communications were placed when necessary to obtain information required to provide the emergency services being requested.

§ 934.03(2)(g) 2, Fla. Stat. (2009) (emphasis added).

Communications intercepted in violation of Chapter 934, Florida Statutes, are not admissible in judicial proceedings, subject to a limited exception not applicable here. See § 934.06, Fla. Stat. (2009). Accordingly, as the trial court recognized, the disposition of the motion to suppress turns on whether the recording of the outgoing 911 call falls within the exception in section 934.03(2)(g) 2.

The trial court interpreted the statutory language emphasized above to permit the recording of the dispatcher's outgoing call to the victim's residence even though it was a different number than the original 911 call. The court reasoned that the statute should be interpreted broadly to facilitate provision of emergency services to individuals in need. However, the court's broad interpretation of the statute is contrary to the plain language of the statute. It is also contrary to the legislative history of the statute.

The plain language of section 934.03(2)(g) 2 allows emergency agencies to record only (1) incoming 911 calls, and (2) outgoing call-backs by the 911 dispatcher to the number from which the incoming call was placed when the call-back is necessary to obtain information required for emergency assistance. The statute does not allow other outgoing calls by the 911 dispatcher to be recorded without the consent of the person being called, even if the outgoing call is in reference to or relates to an incoming 911 call.

The Attorney General reached the same conclusion in Advisory Opinion No.2002–56. There, the Attorney General was asked whether an employee of a municipal police department may record “an outgoing call made in reference to the recorded incoming call, if the outgoing call is made on the same line on which the incoming call is received.” See Op. Att'y Gen. Fla.2002–56 (2002). The Attorney General answered that “[a]n outgoing call may be recorded only when it is made to the telephone number from which an emergency assistance request call was made in order to obtain information required to provide the emergency services being requested or when a called party gives permission for the call to be recorded.” Id.

The legislative history of the language emphasized above provides further support for this “narrow” interpretation of the statute. Prior to this language being added to the statute in 1987,¹ section 934.03(2)(g) 2 authorized law enforcement agencies to record incoming 911 calls, but not outgoing calls. See § 934.03(2)(g) 2, Fla. Stat. (1985); see also Fla. S. Comm. on Judiciary–Crim., SB 154 (1987) ² Staff Analysis 1 (rev. Apr. 7, 1987) (on file with Fla. Dep't of State) (explaining that existing law only authorized incoming 911 calls to be recorded and that an amendment was needed because: “Law enforcement agencies routinely record incoming emergency calls from citizens. Follow-up calls by the agency are often needed to send aid to the caller or verify information from the caller. In some instances, these outgoing follow-up calls are currently being recorded by law enforcement agencies using a telephonic system that...