Shaktman v. State

• Decision Date: 29 March 1988
• Docket Number: 86-1680,Nos. 86-1527,86-1528,86-1792 and 86-2730,86-1534,s. 86-1527
• Citation: 13 Fla. L. Weekly 1201,529 So.2d 711
• Parties: RICO Bus.Disp.Guide 6904, 13 Fla. L. Weekly 1201, 13 Fla. L. Weekly 839 Bernard SHAKTMAN, John J. DeBlasio, Alfred Mart, Robert Simon, Nick Satin, Lawrence Sokoloff, Lewis Allen Mart, Alan Scott Tabb, Milton Julius Shapiro, Sam Levanthal, Eli Lee Shapiro, Stuart Levanthal, Reuben Goldstein, Stanley Lawrence, Nicholas Sklaroff, and Lawrence Levine, Appellants, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 711

529 So.2d 711

RICO Bus.Disp.Guide 6904, 13 Fla. L. Weekly 1201,

13 Fla. L. Weekly 839

Bernard SHAKTMAN, John J. DeBlasio, Alfred Mart, Robert Simon, Nick Satin, Lawrence Sokoloff, Lewis Allen Mart, Alan Scott Tabb, Milton Julius Shapiro, Sam Levanthal, Eli Lee Shapiro, Stuart Levanthal, Reuben Goldstein, Stanley Lawrence, Nicholas Sklaroff, and Lawrence Levine, Appellants, v. The STATE of Florida, Appellee.

Nos. 86-1527, 86-1528, 86-1534, 86-1680, 86-1792 and 86-2730.

District Court of Appeal of Florida Third District.

March 29, 1988.

On Motion for Rehearing May 17, 1988.

Mel Black, Miami, Alan I. Karten, Coral Gables, Martin Saxon, Miami, Alan E. Weinstein, Miami Beach, Harvey N. Shenberg, Miami, Nathaniel Barone, Jr., Coral Gables, for appellants.

Robert A. Butterworth, Atty. Gen., and Michele L. Crawford, Asst. Atty. Gen., for appellee.

Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.

JORGENSON, Judge.

These are consolidated appeals by sixteen appellants from orders of the trial court denying their pretrial consolidated motions to suppress evidence derived from electronic surveillance and to dismiss the informations filed against them. For the reasons which follow, we affirm the trial court's orders denying the motions to suppress and the motions to dismiss the informations.

The appellants were charged with various offenses including violation of the Racketeer Influenced and Corrupt Organization statute [RICO], section 895.03, Florida Statutes (1983); RICO conspiracies in violation of section 895.03(3), Florida Statutes (1983); conspiracy to commit bookmaking; and bookmaking in violation of section 849.25, Florida Statutes (1983). The charges were the culmination of simultaneous investigations by the Miami Beach Police Department [Miami Beach] and the Metro-Dade Police Department [Metro-Dade] directed toward illegal gambling activities. The Miami Beach investigation was triggered by an informant's tip that Bernard Shaktman, who had prior bookmaking convictions, was involved in a bookmaking operation. Miami Beach commenced surveillance of Shaktman, and observed his close involvement with Alfred Mart who had prior arrests for bookmaking. Pen registers were installed on three telephone lines located in an apartment leased by Mart. The pen registers revealed a high level of telephone activity in the hours preceding the starting times of professional and collegiate sporting events. Calls were made from one of Mart's telephone numbers to a telephone number frequently used by John DeBlasio, the subject of a concurrent bookmaking investigation by Metro-Dade. DeBlasio's conversations had been intercepted by Metro-Dade through the wiretaps of two bookmaking suspects, Walter Kazakoff and Michael Elias. Because DeBlasio was implicated by both the Kazakoff and Elias wiretaps, Metro-Dade applied for and received authorization to wiretap DeBlasio's telephone. Miami Beach subsequently received authorization for a wiretap of Mart's telephones. At the conclusion of the investigation, the state filed informations against the sixteen appellants for RICO and bookmaking offenses.

The appellants filed consolidated motions to suppress all evidence gathered from the pen registers and the wiretaps. The trial court held an evidentiary hearing and, in a written order, denied the motions. The trial court specifically found that sufficient probable cause had been demonstrated by the Mart and DeBlasio affidavits. The appellants then moved to dismiss the informations based upon a claim that the statute under which they were charged, section 849.25, Florida Statutes (1983), was unconstitutional. Following a hearing, the trial court denied the motions.

The appellants subsequently reached plea agreements with the State. Pursuant to the agreements, the appellants entered pleas of nolo contendere to reduced charges, reserving their right to appeal the trial court's orders denying their motions to suppress and to dismiss. The State and the appellants stipulated that the outcome of these appeals would be dispositive of the cause, i.e., that a favorable ruling for the appellants on either the motions to suppress or the motions to dismiss would terminate this prosecution.

The trial court held individual plea colloquies. Of the sixteen appellants in this consolidated appeal, only five--Alfred Mart, Reuben Goldstein, Stuart Levanthal, Bernard Shaktman, and John DeBlasio--entered nolo contendere pleas to felony charges pursuant to section 849.25. The remaining eleven appellants entered pleas of nolo contendere to the misdemeanor offense of gambling in violation of section 849.08, Florida Statutes (1983). Sentences ranging from non-reporting probation and a fine to four years' imprisonment were imposed.

I. CONSOLIDATED MOTIONS TO SUPPRESS

A. Pen Registers.

The appellants argue that the electronic surveillance evidence should have been suppressed as the product of an illegal warrantless search because the wiretaps of both the Mart and DeBlasio telephone lines were based primarily on pen register information obtained in violation of their rights to privacy as guaranteed by article I, sections 12 and 23, of the Florida Constitution. We find no merit in the appellants' arguments that the use of pen registers abridged their constitutional rights. ¹

1. Article I, Section 12.

The appellants concede that the use of pen registers does not abridge the fourth amendment to the United States Constitution because the Supreme Court has held that the utilization of a pen register to obtain numbers dialed from a telephone does not constitute a search or necessitate a warrant. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). However, the appellants argue that the use of pen registers without a warrant subverts the broader scope of article I, section 12, of the Florida Constitution, which proscribes the "unreasonable interception of private communications by any means." ² We reject this argument. Florida courts, when construing the provisions of article I, section 12, are required by the plain language of section 12 to conform their decisions to follow fourth amendment analysis as set forth by the United States Supreme Court. The appellants' position that this court should afford section 12 a broader construction is, therefore, unavailing.

While other states have concluded that the use of a pen register without a warrant impermissibly intrudes into the privacy of individuals in violation of state constitutional provisions, e.g., People v. McKunes, 51 Cal.App.3d 487, 124 Cal.Rptr. 126 (1975); People v. Sporleder, 666 P.2d 135 (Colo.1983) (en banc); State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982); ³ Commonwealth v. Beauford, 327 Pa.Super. 253, 475 A.2d 783 (1984), appeal dismissed, 508 Pa. 319, 496 A.2d 1143 (1985); State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986) (en banc), Florida courts have explicitly repudiated such a conclusion. ⁴ See Winfield v. Division of Pari-Mutuel Wagering, Dep't of Business Regulation, 477 So.2d 544 (Fla.1985) (following United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), in holding that the subpoena by a state agency of a Florida citizen's bank records without notice does not offend privacy rights guaranteed by the Florida Constitution); Yarbrough v. State, 473 So.2d 766, 767 (Fla. 1st DCA 1985) (use of a pen register does not constitute a search or require a warrant under article I, section 12 of the Florida Constitution because Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), "delineates the parameters of the constitutional protection in Florida" regarding article I, section 12). We conclude that the use of a device which merely records the numbers dialed from a telephone does not amount to an unreasonable interception of a private communication prohibited by article I, section 12.

2. Article I, Section 23.

The appellants' alternative argument is that the right of privacy expressed in article I, section 23, of the Florida Constitution shields individuals from the type of intrusion presented by a pen register. ⁵ , ⁶ Because we believe that this question is one of first impression, we begin our analysis by ascertaining whether section 23 privacy interests are implicated by the use of pen registers. ⁷ Section 23 "expressly and succinctly provides for a strong right of privacy not found in the United States Constitution." Winfield, 477 So.2d at 548. It is "an independent, freestanding constitutional provision which declares the fundamental right to privacy." Id.

The section 23 privacy provision has been held operative in such disparate contexts as the denial of an AIDS victim's discovery request for the names and addresses of blood donors after he contracted AIDS following blood transfusions, Rasmussen v. South Florida Blood Serv., 500 So.2d 533 (Fla.1987), and the right of an incompetent patient to have a feeding tube removed so as not to maintain life artificially, Corbett v. D'Alessandro, 487 So.2d 368 (Fla. 2d DCA), rev. denied, 492 So.2d 1331 (Fla.1986). Conversely, the courts have failed to extend the constitutional right of privacy guarantee of section 23 to an individual's bank records subpoenaed by a state agency, Winfield, 477 So.2d 544 (Fla.1985), a bar application's requirement for disclosure of psychological and medical treatment, Florida Bd. of Bar Examiners re: Applicant, 443 So.2d 71 (Fla.1983), and to the criminalization of private possession of cannabis, Maisler v. State, 425 So.2d 107 (Fla. 1st DCA 1982), rev. denied, 434 So.2d 888 (Fla.1983).

We find that the appellants' interests in the numbers dialed from the Mart telephones fall within the zone of privacy protected by section 23. Our reading of Rasmussen, 500 So.2d 533 (Fla.1987), buttresses our determination that the warrantless use of pen registers in an ongoing criminal investigation involves the privacy safeguards ensured by section 23. In Rasmussen, ...