State v. Daniels
| Decision Date | 16 October 1980 |
| Docket Number | No. 57773,57773 |
| Citation | 389 So.2d 631 |
| Parties | STATE of Florida, Petitioner, v. Otis DANIELS and Lula Bell Phillips, Respondents. |
| Court | Florida Supreme Court |
Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for petitioner.
B. Kenneth Vickers of Vickers & Rohan, Jacksonville, for respondents.
This cause is before the Court on petition for certiorari to review the decision of the District Court of Appeal, First District, announced in an opinion reported at 381 So.2d 707. We have jurisdiction because the district court certified that its decision passed upon a question of great public interest. Art. V, § 3(b)(3), Fla.Const.
This case presents the question of whether national legislation regulating the practice of interception of wire and oral communications precludes a Florida assistant state attorney authorizing an application for a judicial wiretap order.
The respondents were convicted of conspiracy to sell illegal drugs. The evidence against them consisted principally of tapes of telephone conversations intercepted pursuant to judicial order. An assistant state attorney authorized a police investigative officer to apply for the order under section 934.07, Florida Statutes (1975). The respondents argued on appeal that the wiretap order was invalid because under title 18, United States Code, section 2516(2), only state attorneys, and not assistant state attorneys, may authorize applications for such orders.
The district court accepted the argument and held for the appellants, stating:
Based upon a reading of the federal statute and a consideration of the authorities above cited we are constrained to conclude that notwithstanding the construction which has been placed upon our own state statute by other District Courts of Appeal and by the Supreme Court of Florida, the applicable federal statute is preemptive and a careful reading of that statute can only lead to the conclusion that the "principal prosecuting attorney" authorized by 18 U.S.C. § 2516(2) to make application for an order authorizing or approving the interception of wire or oral communications cannot be construed to include an assistant state attorney.
Daniels v. State, 381 So.2d 707, 715 (Fla.1st DCA 1979). Upon petition by the state for rehearing, the district court certified the following question:
Does Title 18 U.S.C. Section 2516, requiring application by the "principal prosecuting attorney" for an order authorizing or approving the interception of wire or oral communications, preclude the exercise of that power by a general class of prosecutors who are assistant state attorneys in Florida?
Section 934.07, Florida Statutes (1975), provides:
The Governor, the Department of Legal Affairs, or any State Attorney may authorize an application to a judge of competent jurisdiction for, and such judge may grant in conformity with this chapter, an order authorizing or approving the interception of wire or oral communications by the Department of (Criminal) Law Enforcement or any law enforcement agency of this state or any political subdivision thereof having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, gambling (when the same is of an organized nature or carried on as a conspiracy in violation of the laws of this state), robbery, burglary, grand larceny, prostitution, criminal usury, abortion, bribery, extortion, dealing in narcotic drugs or other dangerous drugs, or any conspiracy to commit any violation of the laws of this state relating to the crimes specifically enumerated above.
The district court noted that its decision was in conflict with State v. Angel, 261 So.2d 198 (Fla.3d DCA 1972), aff'd, 270 So.2d 715 (Fla.1972). Petitioner the State of Florida would have us follow Angel. The state argues that since article V, section 17 of the Florida Constitution provides for the appointment of assistant state attorneys and section 27.181(3), Florida Statutes (1975), allows assistant state attorneys all the powers of state attorneys, except with regard to signing informations, we should hold that the assistant in this case had the power to authorize the application under section 934.07.
Title 18, United States Code, section 2516(2) provides:
The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire or oral communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the interception of wire or oral communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing such interception, or any conspiracy to commit any of the foregoing offenses.
Section 2516 is the codification of a part of title III of the Omnibus Crime Control and Safe Streets Act of 1968. Pub.L. 90-351, title III, § 802; 82 Stat. 216. Subsection (2) was the response of Congress to the United States Supreme Court decision in Berger v. New York, 338 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). The Court held there that a New York statute authorizing orders for electronic surveillance on the ex parte oath or affirmation of a police officer above the rank of sergeant was unconstitutional under the fourth amendment. The statute was held deficient for including (1) no requirement of a description of the conversation sought to be intercepted; (2) no limitation on the number of intrusions allowed on a single showing of probable cause; (3) no termination date once the conversation sought had been seized; and (4) no provision for notifying a suspect that an electronic search had been conducted. Congress drafted the Act to meet the Court's objections. See, State v. Siegal, 13 Md.App. 444, 285 A.2d 671 (Md.Ct.Spec.App.1971), aff'd 266 Md. 256, 292 A.2d 86 (Md.1972).
Congress intended the Act to be a uniform model to be followed by all the states. "Title III has as its dual purpose (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized." S.Rep.No.1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Ad.News, pp. 2112, 2153. As part of this uniformity Congress explicitly limited the type of state officials who could authorize applications for wiretaps in section 2516(2).
Paragraph (2) provides that the principal prosecuting attorney of any State or the principal prosecuting attorney of any political subdivision of a State may authorize an application to a State judge of competent jurisdiction, as defined in section 2510(9), for an order authorizing the interception of wire or oral communications. The issue of delegation by that officer would be a question of State law. In most States, the principal prosecuting attorney of the State would be the attorney general. The important question, however, is not name but function. The intent of the proposed provision is to provide for the centralization of policy relating to statewide law enforcement in the area of the use of electronic surveillance in the chief prosecuting officer of the State. Who that officer would be would be a question of State law. Where so such office exists, policy making would not be possible on a statewide basis; it would have to move down to the next level of government. In most States, the principal prosecuting attorney at the next political level of the State, usually the county, would be the district attorney, State's attorney, or county solicitor. The intent of the proposed provision is to centralize areawide law enforcement policy in him. Who he is would also be a question of State law. Where there are both an attorney general and a district attorney, either could authorize applications, the attorney general anywhere in the State and the district attorney anywhere in his county. The proposed provision does not envision a further breakdown. Although city attorneys may have in some places limited criminal prosecuting jurisdiction, the proposed provision is not intended to include them.
There is no suggestion in the Senate report or in the Berger opinion that the fourth amendment requires that applications be made by "principal prosecuting attorneys." The question to be decided, therefore, is whether Congress has the authority to determine which state officers may, and which may not apply for judicial orders for electronic surveillance.
We believe that, with regard to telephone communications, Congress enacted this legislation under the commerce clause. U.S.Const. art. I, § 8, cl. 3. With regard to interception of other oral communications, Congress acted under section 5 of the fourteenth amendment. The classic formulation of the test of Congressional authority under the necessary and proper clause of the constitution, U.S.Const. art. I, § 8, cl. 18, is the statement by Chief Justice Marshall: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but...
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