State v. Fratello
| Decision Date | 27 December 2002 |
| Docket Number | No. 5D02-503.,5D02-503. |
| Citation | 835 So.2d 312 |
| Parties | STATE of Florida, Appellant, v. Diane FRATELLO and James Otte, Appellees. |
| Court | Florida District Court of Appeals |
Richard E. Doran, Attorney General, Tallahassee and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
Gerard F. Keating, Daytona Beach, for Appellee James Otte.
No Appearance for Appellee Diane Fratello.
The State appeals the order entered by the trial court granting appellee James Otte's motion to suppress intercepts obtained by the police pursuant to a wiretap of his home phone.1 Concluding that the trial court properly determined that the wiretap intercepts were unauthorized under federal or state law, we affirm.
Otte was charged with racketeering, conspiracy to commit racketeering, and deriving support from prostitution. The information alleged that Otte was employed by, or associated with, a business operating under the name of Elegant Encounters. After the charges were filed, the State filed an application and affidavit for an order authorizing a wiretap on a phone located in Otte's home. The affidavit alleged that probable cause existed to believe that Otte's business constituted a criminal enterprise for the unlawful receipt of proceeds derived directly or indirectly from a pattern of racketeering activity through the illegal management of an escort service that provided prostitution services. The application further alleged that Otte's prostitution and money laundering activities constituted violations of Florida's RICO statute.2
Upon review, the trial court granted the State's application, finding that probable cause existed to believe Otte was violating Florida's RICO statute by virtue of his actions which included the management and direction of prostitutes and the clients of prostitutes. The police thereafter executed the wiretap and obtained oral intercepts from Otte's home phone.
Otte subsequently filed a motion to suppress the oral intercepts, as well as all fruits derived therefrom, as being illegally obtained. After conducting an evidentiary hearing thereon, the trial court granted the motion concluding that, as a matter of law, the police lacked the legal authority to obtain a wiretap in order to investigate the instant charges since the charges were all centered around alleged prostitution activities.
The State argues that the trial court erred in concluding that federal and state law prohibits the police from obtaining wiretap authorization for RICO prosecutions which are based upon the underlying predicate offense of prostitution. We disagree.
In State v. Rivers, 660 So.2d 1360 (Fla. 1995), our supreme court explained the dynamics of the law relating to wiretaps, and the interrelationship between state and federal laws in this area. The Rivers court explained that by enacting Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Congress enacted legislation which authorizes the interception of private wire and oral communications in circumstances where federal or state law enforcement officials are investigating certain specified crimes provided that they receive prior judicial authorization. To that end, the federal wiretap statute authorizes wiretap interception by law enforcement officials for purposes of investigating:
By enacting this legislation, Congress specifically preempted the field of interception of wire communications under its power to regulate interstate communications, yet at the same time authorized the individual states to adopt their own wiretap statutes so long as they were not less restrictive than the federal legislation. Pursuant to this grant of authority, the Florida Legislature enacted a wiretap statute, section 934.07 of the Florida Statutes (1999)3, which authorizes the interception of wire, oral, and electronic communications as follows:
§ 934.07, Fla. Stat. (1999)(emphasis added). Notably, the 1999 version of the wiretap statute specifically authorized wiretaps for investigations involving prostitution offenses. However, such authorization was successfully challenged as being beyond the scope of the federal mandate by the defendants in the Rivers case.
In Rivers, our supreme court reviewed a wiretap order that was issued during in the investigation of an alleged prostitution ring in Orlando. The defendants were subsequently charged with committing several crimes including prostitution, directing or transporting for the purpose of prostitution, and deriving support from the proceeds of prostitution. However, they moved to suppress the wiretap interceptions, arguing that the wiretap order was illegal because it was premised upon allegations of prostitution, a crime which was authorized under the Florida statute but one which was not specifically authorized under the federal statute. Upon review, the trial court granted the defendants' motion, concluding that "to the extent that [section] 934.07 [of the Florida Statutes] permits the authorization of wiretaps to investigate prostitution not involving the use of force or any danger to life, limb, or property, or interstate commerce, it contravenes the requirements of Title 18 U.S.C. Section 2516(2)." The Fifth District affirmed the trial court's ruling and the matter proceeded on to the supreme court wherein the suppression order was again affirmed:
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State v. Otte
...preempts any state laws concerning wiretaps, although states may enact more restrictive provisions. The State appeals State v. Fratello, 835 So.2d 312 (Fla. 5th DCA 2002),1 in which the district court declared invalid section 934.07, Florida Statutes (1999), to the extent that it authorizes......