Rodriguez v. State
| Citation | 297 So.2d 15 |
| Decision Date | 26 June 1974 |
| Docket Number | No. 44693,44693 |
| Parties | Roland RODRIGUEZ et al., Petitioners, v. STATE of Florida, Respondent. |
| Court | United States State Supreme Court of Florida |
Henry Gonzalez, Tampa, for petitioners.
Robert L. Shevin, Atty. Gen., and Charles Corces, Jr., Asst. Atty. Gen., for respondent.
Jurisdiction vests in this Court pursuant to Art. V, § 3(b)(3), Fla.Const., F.S.A. on the basis of direct conflict between the opinion of the Second District Court of Appeal, reported at 284 So.2d 1 (1973), and the cases of Borrego v. State, 62 So.2d 43 (Fla, 1952); White v. State, 47 So.2d 863 (Fla.1950); and Hamelmann v. State, 113 So.2d 394 (Fla.App.1st 1959).
Petitioners were convicted of aiding and assisting in the conducting of a lottery. In the course of their trial, evidence obtained from wiretaps conducted after obtaining an authorizing court order was admitted into evidence against petitioners. Petitioners had filed motions to quash the order authorizing the wiretaps and to suppress the evidence obtained from them, but these motions were denied. On appeal, the district court affirmed the convictions, holding that the affidavit upon which the wiretap order was based sufficiently established probable cause to support issuance of the order.
We are presented with two issues: whether the affidavit involved was sufficient to establish probable cause to support issuance of the order authorizing the wiretap on petitioners' home phones and, secondly, whether the wiretap recordings should have been suppressed for failure to conduct the tapping in such manner as would minimize interception of telephone conversations not within the scope of the intent of F.S. Ch. 934, F.S.A. We deal with these issues in turn.
F.S. § 934.09, F.S.A. provides the procedure under which a wiretap order may be issued; subsection (1)(b) requires a full and complete statement of the facts and circumstances relied upon to justify the applicant's belief that an order should be issued, including a number of particular required details. § 934.09(3) sets forth the matters which the judge must find to exist on the basis of the facts submitted by the applicant before a wiretap order can be issued. This section requires that the judge find: (1) probable cause to believe that an individual is committing, has committed or is about to commit an offense enumerated As the State has ably pointed out in its brief, the sufficiency of an affidavit to establish the necessary elements to support issuance of a wiretap order must be determined from a reading of the affidavit as a whole, not from bits and pieces read in isolation. We have thoroughly examined the affidavit involved here to determine its sufficiency in meeting the standards of F.S. § 934.09(3), F.S.A. After most carefully weighing its contents, we are impelled to conclude that the affidavit is insufficient due principally to 'staleness.' As can be readily seen from an examination of § 934.09(3), one of the matters which must be shown sufficiently to establish probable cause for belief is that the offense in question Is being committed or is About to be committed and that the phones sought to be tapped Are being used or Are about to be used in connection with the commission of such offense. F.S. § 934.09(3)(a) and (b), F.S.A. The affidavit in question here establishes probable cause for belief that the offense in question Had been committed in the past by the individuals in question and that the phones tapped Had been used in connection with the commission of the offense; however, the affidavit wholly fails to show probable cause to believe that these matters were still occurring or would occur in the near future.
in § 934.07 (); (2) probable cause to believe that particular communications concerning that offense will be obtained through such a wiretap; (3) that normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed it tried or to be too dangerous; and (4) probable cause to believe the facilities from which the communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person. It is this statutory standard which must be applied to determine whether the instant wiretap order was properly issued.
Reviewing the affidavit for indications of such present or near-future activity, we find: (1) the fact that there were three telephones in the house, each with a different number, and each listed to a bona fide occupant of the house; (2) a woman's statement that her husband worked for petitioner Roland Rodriguez as a bolita seller, made some 38 days prior to the date of the affidavit and flatly denied by her husband two days later; and (3) the statements, unconfirmed in any material detail, of a 17-year old former boyfriend of Petitioner Rodriguez' stepdaughter as to various gambling transactions he claimed to have seen in the house in question at some undisclosed past time or times. Aside from serious question as to the reliability of the ejected youth's statements (which includes his having been forbidden to return to this girlfriend's house) and the further fact that he was not a known, reliable informer, his statements (which Apparently were given to the law enforcement agent who swore out the affidavit some time after March 4, 1970, the affidavit being dated March 20, 1970) totally fail to show that the matters he spoke of were continuing on the date of the affidavit (on which date the order was issued) or were about to recur. The most generous possible interpretation of the affidavit is that placed on it by the State in its brief that Petitioner Rodriguez' two prior lottery convictions, together with other evidences of gambling transactions involving Rodriguez the preceding year (1969), the fact of the three telephone lines, the woman's statement of her husband's employment by Rodriguez as a bolita seller (made 38 days before the affidavit) and the statements of the ejected 17-year old former boyfriend, tended to show the existence of a large continuing gambling operation in which Rodriguez was involved. While this recitation of facts indicates grounds for Suspicion that Rodriguez was involved in a gambling operation using these telephones, the facts A brief review of the cases dealing with probable cause is in order, particularly with reference to 'staleness' and the distinction between 'probable cause to believe' and mere 'suspicion.' The subject of 'staleness' is exhaustively discussed, in connection with search warrants, in an excellent annotation at 100 A.L.R.2d 525, §§ 6 and 7. As the author of that annotation notes (footnote 12, p. 534), an interval of less than 4 days between occurrence of the facts relied on and issuance of the warrant has never been held so unreasonable as to vitiate a search warrant, but an interval of more than 49 days has always been held an unreasonably long delay. While we do not quarrel with the accuracy of this statement, we would note that the issue of 'staleness' cannot be solved by a simple application of numbers of days without consideration of the overall particular circumstances presented by the case.
shown are not sufficient to raise this suspicion to the level of Probable cause to believe that the offense was Still being committed or was About to be committed (§ 934.09(3)(a)) and that the telephones were Still being used or were About to be used in the commission of the offense as compelled by § 934.09(3)(d).
The leading authority on 'staleness' in this state is Hamelmann v. State, Supra, wherein it was said:
In the instant cause, the only matters mentioned in the affidavit which could come within this 30-day 'rule of thumb' are the statement of the 17-year old former boyfriend as to activities he claims to have observed (at a time not specified) in the house, and the existence of the three telephone lines. Even if we extend the 30-day period by another several months, the only additional information added is the woman's statement that her husband worked for Petitioner Rodriguez as a bolita seller, a statement flatly denied by the husband two days later. Probable cause cannot be built on such a shaky foundation. Nor can we find any 'extraordinary circumstances' to justify a finding of probable cause here. We reiterate that the 30-day period is not a hard-and-fast line, but only a 'rule of thumb'; nonetheless, the affidavit presented in the instant cause falls short of establishing probable cause due to its 'staleness.'
The State contends that the affidavit here involved is not so 'stale' as to fail to show probable cause in that it shows the existence of a large and continuing gambling operation, thus justifying an inference that the violation was continuing as of the date of the affidavit. It is true that the nature of the illegal activity has some bearing on the question of timeliness of the affidavit. See 100 A.L.R.2d 525, § 7. For example, an affidavit dealing with the offense of possession of marijuana in quantity less than five grams (F.S. § 893.13, F.S.A.) will become 'stale' quickly (in view of the possibility that the alleged offender will either dispose of this quantity quickly or consume it himself), whereas an affidavit dealing with the offense...
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