Schmitt v. State

• Decision Date: 14 November 1991
• Docket Number: No. 76317,76317
• Citation: 590 So.2d 404
• Parties: 16 Fla. L. Weekly S731 Kenneth D. SCHMITT, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 404

590 So.2d 404

16 Fla. L. Weekly S731

Kenneth D. SCHMITT, Petitioner, v. STATE of Florida, Respondent.

No. 76317.

Supreme Court of Florida.

Nov. 14, 1991.

Richard L. Jorandby, Public Defender and Cherry Grant, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for petitioner.

Robert A. Butterworth, Atty. Gen., Joan Fowler, Senior Asst. Atty. Gen. and John Tiedemann, Asst. Atty. Gen., West Palm Beach, for respondent.

PER CURIAM.

We have for review Schmitt v. State, 563 So.2d 1095 (Fla. 4th DCA 1990), which expressly declared valid subsections 827.071(1)(g) and 827.071(5), Florida Statutes (1987). We have jurisdiction. Art. V, Sec. 3(b)(4), Fla. Const.

I. Facts

In January 1988, the Martin County Sheriff's Office received information that Kenneth D. Schmitt was taking nude photographs of his twelve-year-old daughter. Deputies conducted an interview with the child, and based on that interview, a deputy applied for a warrant to search Schmitt's house. In their entirety, the factual allegations in the probable-cause affidavit state:

On this date, 1-7-88, your affiant interviewed juvenile Rachel Christine Schmitt, 4-6-75, of 300 E. Salerno Rd., Pt. Salerno, Fl. The interview revealed that the juvenile resides at the premises to be searched, along with her brother and father. She has lived at this residence for the past eight years. The juvenile revealed to your affiant that in 1983 her father, Kenneth Schmitt, had taken numerous nude photographs of her in various poses. These photo sessions started in 1983 and continued through 1987, the last photo session being shortly after Christmas. The juvenile was eight years of age when these photo sessions commenced. The juvenile victim revealed to your affiant that her father had a nude adult white female pose for nude photographs in her presence. The juvenile victim also stated that she has taken nude photographs of her father numerous times.

In December 1987, the father obtained a VHS video recording system. During this time, December 1987, the father utilized the camera to record the juvenile victim and a white female friend disrobe, or as the juvenile described it, stripping down to their panties. The juvenile victim also stated that she has reviewed this same video recording on the premises to be searched. During the same time frame, December 1987, the father utilized the same VHS camera to record the juvenile victim swimming in the nude.

Since 1983 the juvenile victim stated that the father has kept the photographs, films, cameras, VHS recording system, TV, and VCR at different locations inside the premises to be searched.

The above offenses did occur within the county of Martin, Martin County, Florida [sic].

The affidavit then alleged that these facts established probable cause for violations of four statutes. Two of those alleged violations are relevant to this opinion.

First, the affidavit alleged violation of section 827.071, prohibiting sexual performance by a child. In pertinent part, this statute prohibits the knowing possession of any depiction known to include "sexual conduct" by a child. ¹ Sec. 827.071(5), Fla.Stat. (1987). "Sexual conduct" is expressly defined as

actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.

Sec. 827.071(1)(g), Fla.Stat. (1987).

Second, the affidavit alleged violation of section 800.04, prohibiting lewd assaults or acts upon or in the presence of a child. In pertinent part, this statute outlaws the act of knowingly committing "any lewd or lascivious act in the presence of any child under the age of 16 years without committing the crime of sexual battery." Sec. 800.04(3), Fla.Stat. (1987).

Based on the affidavit, a warrant was issued and Schmitt's house was searched. During the search, deputies discovered videotapes and related material that later formed the basis of the state's case against Schmitt. Reserving the right to appeal Schmitt pled no contest to several of the charges, including violation of subsection 827.071(5). ²

On appeal, the Fourth District rejected Schmitt's argument that officers lacked probable cause to obtain the warrant. Although the Fourth District determined that subsection 827.071(1)(g) was overbroad on its face, the court adopted a narrowing construction by reading a lewdness element into the applicable portions of the statute. ³ On this basis, the court below upheld the constitutionality of the statute. Schmitt, 563 So.2d at 1098-1100.

In this review, Schmitt argues first that the affidavit quoted above was facially insufficient to support a finding of probable cause. Second, he argues that his conviction under subsection 827.071(5), Florida Statutes (1987), is unlawful because that statute is unconstitutional. We disagree with both arguments.

II. Florida Law on Probable Cause

As a legal concept, "probable cause" is not capable of a bright-line test. Rather, it involves a fact-intensive analysis that necessarily varies from context to context. In particular, the courts are required to weigh two interests that usually are in conflict: society's recognition that its police forces should be given discretion to investigate any reasonable probability that a crime has occurred, and the individual's interest in not being subjected to groundless intrusions upon privacy.

In the past, we have defined "probable cause" as a reasonable ground of suspicion supported by circumstances sufficiently strong to warrant a cautious person in the belief that the person is guilty of the offense charged. Dunnavant v. State, 46 So.2d 871 (Fla.1950). The reasons cited by the police must be sufficient to create a reasonable belief that a crime has been committed. Florida East Coast Ry. Co. v. Groves, 55 Fla. 436, 46 So. 294 (1908). As long as the neutral magistrate has a substantial basis for concluding that a search would uncover evidence of wrongdoing, the requirement of probable cause is satisfied. Polk v. Williams, 565 So.2d 1387 (Fla. 5th DCA 1990). In the same vein, the United States Supreme Court has noted:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for ... conclud[ing] that probable cause existed.

Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) (emphasis added) (quotation marks omitted).

Confining our inquiry entirely to the four corners of the affidavit, as required by law, e.g., State v. Bond, 341 So.2d 218 (Fla. 2d DCA 1976); see Sec. 933.18, Fla.Stat. (1989); Fla.R.Crim.P. 3.190(h)(1) (1990), the next question is whether the factual allegations created a substantial basis for concluding that probable cause existed. We believe they did.

III. Probable Cause in the Present Case

We note initially that the present case requires the drawing of a very fine line. On one hand, the law is now well settled that simple non-obscene ⁴ nudity in photographs or films is a protected form of expression under the first amendment. ⁵ New York v. Ferber, 458 U.S. 747, 765 n. 18, 102 S.Ct. 3348, 3359, 73 L.Ed.2d 1113 (1982); Jenkins v. Georgia, 418 U.S. 153, 161, 94 S.Ct. 2750, 2755, 41 L.Ed.2d 642 (1974). Nor is it a crime in Florida for a parent simply to appear unclothed in front of a child in the family home, or a child in front of a parent, with no lewd or abusive intent. Far too many entirely innocent situations would be criminalized by a contrary determination. ⁶ Thus, in such matters, families and home-dwellers have a legitimate privacy interest that the law must respect.

On the other hand, the Court must be mindful that sexual exploitation of children is a particularly pernicious evil that sometimes may be concealed behind the zone of privacy that normally shields the home. The state unquestionably has a very compelling interest in preventing such conduct.

The two pertinent statutes recited in the probable cause affidavit clearly are aimed at rooting out the sexual exploitation of children. First, section 827.071 (prohibiting sexual performances by a child) requires not merely nudity but depictions or representations of actual sexual intercourse, deviate sexual acts, bestiality, masturbation, sadomasochism, "lewd" exhibition of the genitals, the touching of a person's clothed or unclothed privates or buttocks, ⁷ or actual or simulated sexual battery. Sec. 827.071(1)(g), Fla.Stat. (1987). Of these requisite acts, the only relevant one is "lewd" exhibition of the genitals. We believe the affidavit did in fact create a substantial basis for the magistrate below to conclude that probable cause existed as to this particular crime.

Under Florida criminal law the terms "lewd" and "lascivious" are synonymous: Both require an intentional ⁸ act of sexual indulgence or public indecency, when such act causes offense to one or more persons viewing it or otherwise intrudes upon the rights of others. ⁹ Rhodes v. State, 283 So.2d 351, 356-57 (Fla.1973) (citing Chesebrough v. State, 255 So.2d 675, 678 (Fla.1971), cert. denied, 406 U.S. 976, 92 S.Ct. 2427, 32 L.Ed.2d 676 (1972)). The terms "lewd" and "lascivious" thus mean something more than a negligent disregard of accepted standards of decency, or even an intentional but harmlessly discreet unorthodoxy. See Chesebrough, 255 So.2d at 678. Acts are neither "lewd" nor "lascivious" unless they substantially intrude upon the rights of others....