Sarmiento v. State

• Decision Date: 17 April 1979
• Docket Number: No. 78-455,78-455
• Citation: 371 So.2d 1047
• Parties: Julian F. SARMIENTO, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1047

371 So.2d 1047

Julian F. SARMIENTO, Appellant, v. The STATE of Florida, Appellee.

No. 78-455.

District Court of Appeal of Florida, Third District.

April 17, 1979.

Rehearing Denied June 8, 1979.

Alvin E. Entin and Ronald A. Dion, Miami, Manuel W. James, Key West, for appellant.

Jim Smith, Atty. Gen. and Paul Mendelson, Asst. Atty. Gen., for appellee.

Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

HUBBART, Judge.

This is a criminal prosecution for unlawful sale of heroin in which the defendant was convicted as charged and sentenced in the Monroe County Circuit Court. The defendant appeals.

I

The central issue presented for review is whether the warrantless electronic eavesdropping by state agents of a conversation between the defendant and an undercover police officer in the privacy of the defendant's home (under circumstances where it was practicable for such agents to have applied for and obtained a prior intercept warrant) constitutes an unreasonable interception of the defendant's private communications in violation of Article I, Section 12, of the Florida Constitution. We hold that the above electronic eavesdropping constitutes such an unreasonable interception and reverse.

A

The facts pertaining to the above issue are as follows. On February 14, 1978, at approximately 5:00-6:00 p. m. Detective Charles Hitchins of the Monroe County Sheriff's Office working as an undercover narcotics officer was at a bar in The Raceway Inn, in Key West, Florida. Also present in the bar was the defendant Julian Sarmiento and a young girl reputed to be living with him. Detective Hitchins had a conversation at the bar with the girl in question to the effect that he was interested in purchasing some heroin. The girl thereupon left and had a conversation with the defendant outside the presence of the detective. She later returned to inform Detective Hitchins that he could make a buy of heroin at the defendant's house trailer which was located next door at 10:30 p. m. that night. Arrangements were made to meet at that location and time.

Detective Hitchins thereafter notified his superior officer, Detective Joseph Valdez of the Monroe County Sheriff's Office, of the proposed narcotics purchase who in turn alerted other law enforcement officers. Detective Hitchins was thereupon equipped with a hidden electronic "body bug" for the purpose of allowing the surveilling police officers to monitor any conversation Detective Hitchins might have with the defendant in the defendant's house trailer that night. No effort was made by any police officer connected with this case to apply for an intercept warrant for this electronic eavesdropping.

Detective Hitchins later went to the defendant's house trailer as planned with a confidential informer and made a purchase of heroin from the defendant. Several law enforcement officers were stationed nearby outside the house trailer pursuant to a pre-arranged police plan. Two of these officers, Lt. Robert Santana and Sgt. Carol Key of the Key West Police Department, monitored and overheard certain conversations inside the house trailer by means of the electronic "body bug" worn by Detective Hitchins. The conversations which they overheard in the house trailer tended to establish that the defendant had participated in selling a quantity of heroin to Detective Hitchins.

At trial, the defendant objected to and moved to suppress the testimony of Lt. Santana and Sgt. Key as to what they heard on the electronic monitor relating to The defendant was convicted as charged and sentenced to ten years in the state penitentiary. This appeal follows.

the conversations between the defendant and Detective Hitchins in the defendant's house trailer. He argued that such evidence was inadmissible as constituting an unreasonable interception of private communications because of the failure of the police to obtain a prior intercept warrant for the electronic surveillance in this case. The trial court denied the motion.

B

Article I, Section 12, of the Florida Constitution provides in relevant part as follows:

"The right of the people to be secure in their persons, houses, papers and effects against . . . the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, . . . the communication to be intercepted, and the nature of evidence to be obtained. Articles or information obtained in violation of this right shall not be admissible in evidence."

Central to invoking the protection of this constitutional right is a determination that there has been an "interception of private communications" by government agents. If so, a second determination must be made as to whether such interception was "unreasonable." If both prerequisites are met, the above constitutional right has been violated and any evidence obtained in violation of such right is inadmissible in evidence against the victim of the unreasonable interception.

Our first task, then, is to determine whether there has been an "interception of private communications" of the defendant by government agents in this case. All agree that the defendant's private communications in his home were overheard through an electronic listening device by government agents. The parties sharply disagree, however, as to whether such electronic eavesdropping can be termed an "interception" in the constitutional sense.

We take it that to "intercept" a private communication, government agents must necessarily invade one's reasonable expectation of privacy for such is the primary interest which this constitutional right was designed to shield. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Huffer v. State, 344 So.2d 1332 (Fla. 2d DCA 1977). Moreover, a person, such as the defendant herein, has the highest reasonable expectation of privacy when he is in his home for it is this sanctuary of privacy, above all else, that this constitutional privilege was designed to protect. Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961); Brown v. State, 62 So.2d 348, 349 (Fla.1952); Church v. State, 151 Fla. 24, 9 So.2d 164, 167 (1942); Jackson v. State, 87 Fla. 262, 99 So. 548, 549 (1924). We would not be true to the spirit or intent of this constitutional guarantee or its historical antecedents were we to hold otherwise.

In the instant case, it is clear that the defendant had a private conversation in the privacy of his home with an undercover police officer. The defendant without question assumed the risk that this officer might betray the defendant's trust and reveal, as he did, the contents of this conversation to the outside world. That, in our view, is a reasonable risk which any person assumes when he talks to anyone as the speaker has it within his power to gauge whether to take such a risk based on his personal assessment of the person to whom he is talking. As such, there was no invasion of the defendant's reasonable expectation of privacy (and thus no "interception" in the constitutional sense) for the officer to listen to and later testify, as he did, to the content of the defendant's conversation in the home. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966).

In our view, however, the defendant had a reasonable expectation of privacy that no one else was listening to his conversation in the home besides the undercover police officer and the other people present therein. We are unwilling to impose upon our citizens the risk of assuming that the uninvited ear of the state is an unseen and unknown listener to every private conversation which they have in their homes. That is too much for a proud and free people to tolerate without taking a long step down the totalitarian road. The home is the one place to which we can retreat, relax, and express ourselves as human beings without fear that an official record is being made of what we say by unknown government agents at their unfettered discretion. It is here that we most enjoy the serenity and spontaneity of private life with at times its serious, quiet, intimate, free-wheeling, defiant, frivolous, and even profane discourse which liberates daily life but which few, if any, would want spread on the public record. No free society can long remain free which places such private conversations in the home entirely beyond any constitutional protection. Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961); United States v. White, 401 U.S. 745, 468-483, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) (Harlan, J. dissenting).

It is for these reasons that this court in Hajdu v. State, 189 So.2d 230 (Fla. 3d DCA 1966), held that it was a violation of the Fourth Amendment to the United States Constitution and Section 22 of the Declaration of Rights of the Florida Constitution (the predecessor to Article I, Section 12, Fla.Const.) for government agents to electronically eavesdrop without a warrant on a private conversation between the defendant and an undercover police officer in the privacy of the defendant's home and thereafter to testify in court as to what they overheard. We reaffirm and follow that decision today in holding that such eavesdropping constitutes an "interception" of the defendant's private communications within the meaning of Article I, Section 12, of the Florida Constitution.

The state argues in effect that Hajdu is no longer good law because the subsequent passage of Sections 934.03(2)(c), ¹ 934.08(3), ² Florida Statutes (1977) impliedly overruled this decision by authorizing that electronic eavesdropping conducted in this case. We disagree. These statutes by their express terms do not apply to electronic eavesdropping in the home, as here,...