Sarno v. State

Decision Date09 November 1982
Docket Number79-2126,80-983,80-136,80-12,80-123,80-151,80-150,80-349,80-1007 and 80-229,80-984,80-122,Nos. 79-2125,80-315,s. 79-2125
PartiesJoey SARNO, Francisco Riverol, Russell Leicht, Al Palange, Jorge Santana, Evelio Santana, Murray Sarno, Ivan Bordas, Charles Canella, Carlos Del Rio, William Thomas Flingos, Joseph Meyers, Salvador Magluta, and Augusto G. Falcon, Jr., Appellants, v. The STATE of Florida, Appellee. The STATE of Florida, Appellant, v. William GILLEY, Appellee.
CourtFlorida District Court of Appeals

Oteri & Weinberg and Martin Weinberg; Judith H. Mizner, Boston, Mass., Michael H. Blacker, Melvin S. Black, Robert L. Moore, Greene & Cooper and Sharon L. Wolfe, Miami, Varon & Stahl and H. Dohn Williams, Jr., Hollywood, Mary Louise Dennis, and Donald L. Ferguson, Miami, for appellants, for Case No. 79-2125, etc.

Jim Smith, Atty. Gen., and Paul Mendelson, Joel D. Rosenblatt, and Anthony Musto, Asst. Attys. Gen., for appellee, for Case No. 79-2125, etc.

Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellant, for Case No. 80-229.

Bennett H. Brummer, Public Defender, and Robert R. Schrank, Asst. Public Defender, for appellee, for Case No. 80-229.

Before SCHWARTZ, NESBITT and BASKIN, JJ.

NESBITT, Judge.

I. The Sting

These consolidated appeals arose out of a law enforcement operation dubbed the "Sting," apparently in reference to a motion picture of the same name. The tale of the investigation, commencing in the Florida Department of Alcoholic Beverages and Tobacco and culminating with more than a hundred arrests, most of them for various narcotics charges, could easily provide the substance for another Hollywood film.

In August of 1978, Sam Turko, a paid informant of the United States Drug Enforcement Agency, told federal officials that he could arrange a deal for the purchase of a truckload of illegal or untaxed cigarettes. The federal agents referred Turko to Agent Tim Douglas of the Florida Division of Alcoholic Beverages and Tobacco. After consulting with his superiors, Douglas reached an agreement with Turko whereby Turko would be paid $12,000 in exchange for supplying information and introducing state undercover agents into the cigarette negotiations. Turko was fitted with a body "bug" and his telephone conversations were taped, all with his consent.

Turko was able to set up meetings between state beverage agents and one Sam Goldfinger, a neighbor of Turko. Unbeknownst to anyone involved in the state investigation, Goldfinger was working as an undercover F.B.I. operative. In any event, one of the state agents, Tom Ilic, was able to infiltrate, through Goldfinger, to a Ron Braswell, the key to the cigarette deal. Ilic wore body "bugs" in all his meetings with Goldfinger and Braswell. Transcripts of tapes of these meetings formed the basis for the first court-ordered electronic surveillance in the investigation--the installation of a room "bug" in Braswell's business office on September 2, 1978. By this time, the State Attorney's Office was heavily involved in the operation and Ilic was sworn in as a special investigator for that office soon after the Braswell room "bug" was installed.

The investigation to this point was placed in serious jeopardy when, on September 6, 1978, Braswell discovered the transmitter and removed it from its hiding place in an air-conditioning vent. Almost immediately, Braswell was placed under arrest by several state agents, including Martin Dardis, Chief Investigator for the State Attorney's Office. Dardis was able to persuade Braswell to cooperate with the state and Braswell assented to the re-installation of the office "bug." In light of his involvement with narcotics dealers, Braswell's discovery of the first office "bug," instead of putting an end to a cigarette shakedown, eventually proved to be a significant stepping-stone to the breakup of a massive drug ring.

As part of his agreement with the state, Braswell consented to have his two office telephones wiretapped. Pursuant to these "taps," Braswell's telephone conversations were intercepted between September 13 and September 15, 1978. Based on Braswell's consent and information derived from the electronic surveillance, the state sought court authorization for the phone "taps" on September 18, 1978. A Dade circuit judge granted the state's application the same day. Conversations overheard on these telephones formed the predicate for court-authorized wire interceptions of other telephones, as well as for extensions of the authorizing orders. Eventually, the state was able to establish a small network of monitored telephone lines. Each of the appellants was overheard on one or more of the telephone wiretaps.

In the meantime, the state was utilizing Braswell to make and arrange sales of marijuana, quaaludes, and cocaine with a constantly expanding group of narcotics dealers. In return for his services, Braswell was permitted to retain profits from at least some of the sales and to engage in the use of small quantities of cocaine. However, transactions taking place in Braswell's office were observed by the police through the use of a hidden video camera, in addition to the oral and wire surveillance.

The "Sting" operation reached its peak when, at the suggestion of Braswell, the state set up a private airstrip guarded by state agents posing as "crooked cops," in order to facilitate the importation of narcotics into this country and inspire confidence in Braswell among the drug smugglers. Federal authorities were present at the airport in a support capacity, having entered the "Sting" operation in late 1978 pursuant to an agreement between high-ranking state and United States Justice Department officials. But the federal government later withdrew from active participation in the "Sting."

The "Sting" operation itself was terminated in May, 1979. Employing information gleaned from the electronic surveillance devices, the bogus airstrip deals, and Braswell's personal knowledge, the state returned indictments and informations charging approximately 120 unsuspecting persons with various drug-related offenses.

A number of the "Sting" defendants filed motions to suppress the evidence against them. After a joint evidentiary hearing lasting more than seven court days, and after over eleven hours of legal argument of counsel, the trial court denied these motions. Several of the moving defendants entered pleas of nolo contendere, reserving their right to appeal the denial of their motions to suppress based on the state's stipulations of dispositiveness. Most of the issues on appeal were presented by way of a master brief, while certain of the defendants preserved error in individual appeals. Additionally, the state appealed the dismissal of the case against one of the defendants.

II. The Fruit and the Bugs

Appellants' first argument is based on the "fruit of the poisonous tree" doctrine as set forth in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and its progeny. They claim, for various reasons, that the body "bugs" worn by Sam Turko and Agent Ilic constituted unlawful invasions of privacy and, therefore, the entire "Sting" investigation was tainted fruit of the poisonous tree. However, none of the appellants were overheard on the Turko and Ilic body "bugs," nor was the employment of these devices directed at the appellants. Thus, none of them have standing to complain of the impropriety of these "bugs." United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); State v. Hutchinson, 404 So.2d 361 (Fla. 2d DCA 1981); pet. for review denied, 412 So.2d 466 (Fla.1982); State v. Albano, 394 So.2d 1026 (Fla. 2d DCA 1981). Only Goldfinger or Braswell could object to these "bugs" and they have not done so. Since the appellants lack standing to challenge violations of Goldfinger's or Braswell's constitutional rights, they cannot complain that evidence seized as a product of these alleged violations is inadmissible as tainted fruit. State v. Ferguson, 411 So.2d 963 (Fla. 3d DCA 1982).

Next, appellants assert the impropriety of the September 2, 1978 room "bug" authorization. 1 The state concedes that several of the appellants have standing to challenge the room "bug" since they were overheard on this device. These appellants argue that the affiant supporting the application for the "bug" wilfully and intentionally omitted a key exculpatory statement from the transcript attached to the application. The appellants claim that this omission was material to the probable cause issue and rendered the order invalid. United States v. Park, 531 F.2d 754 (5th Cir.1976); see Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

The alleged material omission was a statement by Braswell in regard to a truckload of cigarettes that "[t]he load's not hot." Section 934.07, Florida Statutes (1977), enumerates the offenses which may justify the interception of oral or wire communications. As it pertains to this issue, Section 934.07 would authorize such interceptions only to obtain evidence concerning the theft of cigarettes or dealing in stolen cigarettes. Appellants argue that had Braswell's statement that the cigarettes were not stolen been included in the transcript, there would have been no basis for a finding of probable cause. However, careful perusal of the transcript presented to the magistrate reveals that although the cigarettes may not have been "hot" during the time frame Braswell was referring to, the plan was to steal the cigarettes from the truck once it reached a designated location. With this record support, the trial court's finding that the cigarette deal was to involve stolen cigarettes must be affirmed. State v. Battleman, 374 So.2d 636 (Fla. 3d DCA 1979).

Additionally, both Ilic and Braswell testified that the deal was for stolen cigarettes and Ilic...

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5 cases
  • Shaktman v. State
    • United States
    • Florida District Court of Appeals
    • 29 Marzo 1988
    ...investigation by another law enforcement agency before seeking authorization for electronic surveillance. See, e.g., Sarno v. State, 424 So.2d 829, 831 (Fla. 3d DCA 1982) (where original affidavit was sufficient and subsequent affidavits revealed ongoing illegal transactions, subsequent aut......
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    • Florida District Court of Appeals
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    • Florida District Court of Appeals
    • 14 Octubre 1994
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    • Florida District Court of Appeals
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