State v. Albano

• Decision Date: 30 January 1981
• Docket Number: No. 80-63,80-63
• Citation: 394 So.2d 1026
• Parties: STATE of Florida, Appellant, v. James ALBANO, Appellee.
• Court: Florida District Court of Appeals

Page 1026

394 So.2d 1026

STATE of Florida, Appellant, v. James ALBANO, Appellee.

No. 80-63.

District Court of Appeal of Florida, Second District.

Jan. 30, 1981.

Rehearing Denied March 9, 1981.

Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellant.

W. C. McLain of Smith, Carta & Ringsmuth, Fort Myers, for appellee.

CAMPBELL, Judge.

The state appeals the trial court's order granting appellee's motion to suppress tangible evidence seized during a warrantless search of his person and a vehicle following his arrest. Appellee's arrest and the subsequent search resulted from surveillance of the vehicle undertaken because of information received from a court-ordered intercept of telephone conversations. Appellee was not a party to these conversations, nor was he a subject of the intercept. Appellee's motion to suppress did not attack the validity of the application for or the order of intercept but addressed only the validity of the warrantless search.

The information charging appellee was filed August 16, 1979. The parties undertook extended discovery procedures, and jury trial was set for January 8, 1980. On January 4, 1980, appellee filed his motion to suppress which was heard on the morning of January 9, 1980, the day the case actually came up for trial. At the suppression hearing, appellant sought to present testimony to support the seizure of the evidence sought to be suppressed. The testimony offered was that of an investigator for the state attorney's office who stated that the arrest of appellee and seizure of the evidence resulted from surveillance of a vehicle initiated because the vehicle was described in the intercepted telephone conversations. Appellee objected to introduction of the testimony on the sole ground that the state had not furnished him a copy of the court order of intercept and the accompanying application at least ten days prior to the hearing pursuant to Section 934.09(8), Florida Statutes. The court granted the motion to suppress, and the state timely appealed. We reverse.

On October 24, 1979, appellee moved for an order of court compelling appellant to disclose, among other things, all applications and orders for electronic or other surveillance of any wire or oral communications in which appellee was named or otherwise referred to. As far as the record shows that motion was never pursued by appellee, and no order was ever entered concerning it.

On November 14, 1979, appellant filed a notice of offer of stipulation in which it offered to stipulate to the entry of an order disclosing all of the wiretap materials "herein available" and moved at the same time for a waiver of the ten day period prescribed by Section 934.09(8). At a hearing on that motion to waive the ten day period, appellant stated it did not intend to use in its case-in-chief any wiretap material against appellee since his name was not mentioned in the wiretaps. Appellant then withdrew the motion to waive the ten day period. At that same hearing, counsel for appellee admitted that in these cases pending against appellee's co-defendants involving the same or similar charges and at times consolidated with appellee's case, he had the wiretap information, as appellant had furnished him the materials so that he could make copies of them in his office.

Appellee argues that even though his attorney had the information, because it was not specifically designated to be furnished in his case, appellant is precluded from using information derived from the wiretap, not only in appellant's case-in-chief, but also in sustaining its burden in appellee's suppression hearing directed toward the warrantless search. Such a position cannot be sustained. Nowhere does the record reveal how appellee was surprised or prejudiced by the failure of appellant to provide a copy of the application for and order of intercept in this particular case. Appellee's attorney not only had knowledge of the existence of the intercept but actually had possession of the wiretap material. The record, on the contrary, shows that appellee's counsel at the suppression hearing anticipates what the testimony offered will be, stating to the court, "but to be perfectly candid with the Court the testimony will reveal that he was acquainted with this vehicle as a result of a wire tap (sic) ...." This certainly does not appear to be a case of willful withholding by the state of the application and order of intercept. Cf., State v. King, 372 So.2d 1126 (Fla. 2d DCA 1979). (The court held that before dismissing an information because of a prosecutor's discovery violation, the court must find that the violation prejudiced the defendant or was willful.)

There are no Florida cases which we have found or have been referred to that address the effect of a failure to strictly comply with Section 934.09(8), Florida Statutes. However, 18 U.S.C. § 2518(9) is for all intents and purposes identical with Section 934.09(8), and there are several decisions of the federal courts construing that provision.

The leading case is United States v. Wolk, 466 F.2d 1143 (8th Cir. 1972), wherein the Court, in interpreting the notice provisions of 18 U.S.C. § 2518, analyzed the distinction between a conventional search and a wiretap intercept. In contrasting a conventional search, which is normally preceded by notice, to a wiretap, which to be an effective law enforcement tool depends on secrecy prior to the tap, the court reasoned that the statutory post-wiretap notice requirements were devised to insure that all persons against whom such wiretaps are used will become aware of their existence so that when proper the validity of the application and order for wiretap might be tested. ¹ In Wolk, supra, the record indicated that the appellee knew of the wiretaps and had access to the wiretap materials. In light of that knowledge the Court stated:

To us the statute is concerned with adequate notice and not formalities. The record demonstrates that the appellees were sufficiently aware of the wiretap so as to be able to seek suppression of the evidence on a number of grounds including the argument that the "probable cause" requirement of the statute had not been satisfied. The appellees had adequate notice in this case, and they have not shown that any prejudice resulted from the failure of the Government to formally serve them with the inventories. See United States v. LaGorga, 336 F.Supp. 190, 194 (W.D.Pa.1971); United States v. Lawson, 334 F.Supp. 612, 616-617 (E.D.Pa.1971).

Inasmuch as the statute has been substantially complied with in that the appellees had actual notice and the appellees have not been prejudiced by the delay in formal notification, the evidence should not have been suppressed. This is not to say that the notice requirements may be taken lightly in future cases. We hold only that "whatever violation occurred was surely insufficient in nature and extent to justify the drastic result dictated by the suppression doctrine." Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 418-419, 91 S.Ct. 1999, 2016, 29 L.Ed.2d 619 (1971) ....

466 F.2d at 1146.

Wolk, supra, was cited with approval by the court in United States v. Johnson, 539 F.2d 181 (D.C.Cir.1976), when it said:

(T)he record in this case makes clear that all Appellants had actual notice that their words had been intercepted in the 28 September wiretap. And as we read the precedents advanced by both sides, actual notice is a bar to any suppression argument based on non-compliance with the inventory requirement, at least where the failure to give formal notice was not a deliberate act of either the court or the Government.

It has been freely conceded throughout this proceeding that Mr. Coffman, then attorney for all Appellants, was provided in mid-October 1973, with copies of the affidavits supporting both the 28 September wiretap and the subsequent search warrants, as well as the court orders themselves. It has been further conceded that these materials reflected "what was done as far as the wire intercept was concerned," and that during the pre-indictment period "everybody knew there was a wiretap." In fact, the wiretap application contained the names of all but Appellant Matthews, as objects of the gambling investigation. The Government alleges further, and appellants do not contest, that a discovery meeting at which specific wiretap evidence was disclosed, took place well within the ninety day period. It was attended by all but Appellants Madre and Byers.

Moreover, Appellants concede, even as they come before this court, that actual notice of interception was not lacking as to any of them. Nowhere in their written and oral arguments do we find a claim that a lack of formal inventory notice denied any Appellant the opportunity to bring an early challenge to the wiretap procedure applied here. To the contrary, this third theory of appeal rests on a highly formalistic construction of the statute, which would exclude evidence for the most technical forms of non-compliance, however unintentional and however insignificant the effect on the rights of the persons involved. Because we see no purpose in suppressing the fruits of good faith investigative efforts for failure to give formal notice, where it is clear that actual notice has otherwise been timely received, we reject this argument as...