State v. Hume

• Decision Date: 10 September 1987
• Docket Number: 66704,Nos. 66691,s. 66691
• Citation: 512 So.2d 185,12 Fla. L. Weekly 464
• Parties: 12 Fla. L. Weekly 464 STATE of Florida, Petitioner, v. Robert William HUME, Respondent. Robert William HUME, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 185

512 So.2d 185

12 Fla. L. Weekly 464

STATE of Florida, Petitioner, v. Robert William HUME, Respondent.

Robert William HUME, Petitioner, v. STATE of Florida, Respondent.

Nos. 66691, 66704.

Supreme Court of Florida.

Sept. 10, 1987.

Robert A. Butterworth, Atty. Gen. and Gregory G. Costas, Asst. Atty. Gen., Tallahassee, for petitioner/respondent.

Thomas W. Kurrus and Larry G. Turner of the Law Offices of Turner, Kurrus & Griscti, P.A., Gainesville, for respondent/petitioner.

OVERTON, Justice.

Both the state and Robert William Hume petition this Court to review State v. Hume, 463 So.2d 499 (Fla. 1st DCA 1985), in which the district court construed article I, section 12, of the Florida Constitution (the new search-and-seizure section), and applied section 901.19, Florida Statutes (1985) (knock-and-announce statute). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We hold that it was error to suppress statements transmitted by an electronic eavesdropping device worn by a police undercover agent in Hume's home and to suppress contraband seized immediately following Hume's arrest.

The facts reflect that a police undercover agent knew Hume and had purchased cocaine from him. On January 10, 1983, the police obtained an arrest warrant for Hume based on his narcotics violations. One week later, the police undercover agent equipped himself with a "body bug," a device designed to record and transmit his conversations to fellow officers, and went to Hume's apartment to purchase a larger amount of cocaine. Hume invited the undercover agent to enter and escorted him to the bedroom, where Hume displayed plastic bags containing marijuana and cocaine. After seeing the illegal drugs, the undercover agent used a code word in their conversation to indicate to officers waiting outside that contraband was present. He then proceeded with Hume to the front door of the apartment. As the undercover agent opened the front door, the other officers, who possessed the warrant for Hume's arrest, immediately entered and arrested Hume. The undercover agent returned to the bedroom and seized the drugs and drug paraphernalia. Hume was charged with unlawful sale/delivery of cocaine, trafficking in cocaine, and unlawful possession of marijuana with intent to distribute.

This cause concerns two search and seizure issues: (1) the recorded conversation in Hume's home by the undercover agent and (2) the asserted failure of the arresting officers to comply with the knock-and-announce requirement of section 901.19, Florida Statutes.

Sarmiento: Electronic Eavesdropping in the Home

Hume moved to suppress the evidence of his conversation transmitted by the agent's body bug on the authority of State v. Sarmiento, 397 So.2d 643 (Fla.1981), which held that, under the then-existing provisions of article I, section 12, of the Florida Constitution, the interception and simultaneous transmission of personal conversations within a defendant's home violated the defendant's reasonable expectation of privacy and was prohibited by that section of the Florida Constitution. The trial court in the instant case granted the motion to suppress, but the district court reversed, holding that Sarmiento was no longer legal precedent because it did not survive the conformity amendment to article I, section 12. ¹ That amendment provides that the right of the people to be secure in their persons, houses, papers and effects against the unreasonable interception of private communications shall be construed in conformity with the fourth amendment to the United States Constitution, as interpreted by the United States Supreme Court. ² The district court concluded that, under United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), the surreptitious interception and transmission of conversations between an undercover agent and a defendant in the defendant's home does not violate the fourth amendment of the United States Constitution.

In this proceeding, Hume contends that the recent amendment to section 12 of article I does not affect our Sarmiento precedent. We disagree. In our view, the amendment to section 12 was intended, in part, to overrule our decision in Sarmiento. We conclude that, in United States v. White, the United States Supreme Court ruled directly on the Sarmiento factual situation of an uninvited third party's interception of conversations occurring within the sanctity of the home through electronic equipment. The issue in White was set forth as follows:

The issue before us is whether the Fourth Amendment bars from evidence the testimony of governmental agents who related certain conversations which had occurred between defendant White and a government informant, Harvey Jackson, and which the agents overheard by monitoring the frequency of a radio transmitter carried by Jackson and concealed on his person. On four occasions the conversations took place in Jackson's home.... Four other conversations-- one in respondent's home, one in a restaurant, and two in Jackson's car--were overheard by the use of radio equipment.

Id. at 746-47, 91 S.Ct. at 1123 (footnotes omitted; emphasis added). The opinion, written by Justice White, states:

Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter's Fourth Amendment rights. For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.

... If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State's case.

....

Nor should we be too ready to erect constitutional barriers to relevant and probative evidence which is also accurate and reliable. An electronic recording will many times produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent. It may also be that with the recording in existence it is less likely that the informant will change his mind, less chance that threat or injury will suppress unfavorable evidence and less chance that cross-examination will confound the testimony. Considerations like these obviously do not favor the defendant, but we are not prepared to hold that a defendant who has no constitutional right to exclude the informer's unaided testimony nevertheless has a Fourth Amendment privilege against a more accurate version of the events in question.

It is thus untenable to consider the activities and reports of the police agent himself, though acting without a warrant, to be a "reasonable" investigative effort and lawful under the Fourth Amendment but to view the same agent with a recorder or transmitter as conducting an "unreasonable" and unconstitutional search and seizure.

Id. at 751-53, 91 S.Ct. at 1125-27 (citations omitted). Chief Justice Burger and Justices Stewart and Blackmun joined in the opinion with Justice White. Justice Black concurred in result because he would hold, for the reasons he expressed in Katz v. United States, 389 U.S. 347, 364, 88 S.Ct. 507, 518, 19 L.Ed.2d 576 (1967), that eavesdropping carried on by electronic means does not constitute a search or seizure and is thus not violative of the fourth amendment. Further, the United States Supreme Court reaffirmed this holding in United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979). In a seven-to-two majority opinion, the Court cited White for the proposition that

"[i]f the conduct and revelations of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks."

440 U.S. at 751, 99 S.Ct. at 1471 (quoting 401 U.S. at 751, 91 S.Ct. at 1126).

We conclude that the White and Caceres decisions establish clear precedent that the recording of conversations between a defendant and an undercover agent in a defendant's home, such as occurred in the instant case, does not violate the fourth amendment of the United States Constitution and, accordingly, does not violate the newly adopted article I, section 12, of the Florida Constitution. We also agree with the state that our right-of-privacy provision, article I, section 23, of the Florida Constitution, does not modify the applicability of article I, section 12, particularly since the people adopted section 23 prior to the present section 12.

Statutory Knock-and-Announce Requirements

In the second issue, the trial court suppressed the seized contraband observed by the undercover agent in the bedroom because the arresting officers, in entering Hume's apartment with the arrest warrant, failed to comply with Florida's knock-and-announce statute, section 901.19(1), and because the warrantless seizure was not justified by any...