State v. Investigation
| Decision Date | 06 July 2001 |
| Docket Number | No. 2D00-4034.,2D00-4034. |
| Citation | 802 So.2d 1141 |
| Parties | STATE of Florida, Petitioner, v. INVESTIGATION, Respondent. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Petitioner.
John W. Persse, Sarasota, for Respondent.
The State of Florida filed a petition for certiorari seeking review of the trial court's order quashing its subpoena duces tecum that sought bank records pertaining to the client trust account of attorney John W. Persse. Because the subpoena was properly issued as part of an investigation into possible criminal activity and because the records at issue are not protected by attorney-client privilege, we grant the State's petition and quash the trial court's order.1
Prior to issuing the subpoena, the State Attorney's Office began conducting an investigation into possible charges of exploitation of the elderly against Terrence McDonough. The State had received information which led it to believe that funds received by McDonough from seventy-three-year-old Babette Holmes had been taken through either fraud or exploitation. The State obtained evidence that hundreds of thousands of dollars worth of checks had been written on Holmes's personal bank account to McDonough, a real estate agent who had earned only approximately $10,000 over the preceding four to five years from his real estate business. In addition, the State obtained evidence that several parcels of valuable property had been transferred from Holmes to McDonough by quitclaim deed using Persse's services. The State also found that insurance checks, directed to Holmes's guardian and intended to pay Holmes's bills, had been intercepted by McDonough and deposited into his personal account. Finally, the State had evidence that McDonough had obtained three checks totaling $46,000 from Holmes while hearings on her guardianship were pending and that these checks had been deposited into Persse's client trust account. Based on this information, the State issued a subpoena duces tecum to Harris Trust/Bank of Montreal for Persse's client trust account records to determine whether the $46,000 was still in the account and, if not, what had happened to it. The State also sought to determine through these records whether McDonough had used Persse's client trust account to launder other funds received from Holmes.
Persse learned of the State's subpoena and filed a petition for writ of prohibition in the trial court, arguing that the State's subpoena was not authorized, that the subpoena sought irrelevant and immaterial information, and that the records at issue were protected from disclosure by the attorney-client privilege. The trial court treated Persse's petition as a motion to quash the subpoena. At an initial hearing, the trial court questioned the State's authority to issue an investigative subpoena duces tecum. The trial court then held that the State had the burden to prove that the records it sought were relevant and material to its investigation. Because the State had not done so, the trial court granted the motion to quash.
The State then filed a motion for rehearing, offering to present evidence concerning the relevance and materiality of the records and providing authority to the trial court for its right to issue the subpoena. At the rehearing, the State had its investigator testify as to the details of the ongoing investigation, the identity of the investigation's targets, the State's theories supporting the investigation, and the specific reasons why Persse's client trust account records were needed. Persse argued that the State had not established that any criminal activity had occurred and therefore had failed to prove that his client trust account records were relevant or material. He also renewed his argument that even if the records were relevant, they could not be disclosed because they were protected by attorney-client privilege. After hearing the State's evidence and the arguments of both parties, the trial court found that the attorney-client privilege applied to the records and that, because the State had not established that any crime had been committed, the State had not shown a sufficiently compelling interest in the records to overcome the privilege. Based on these findings, the trial court denied the State's motion for rehearing. The State then filed a petition for writ of certiorari with this court. We conclude that the trial court's order departs from the essential requirements of the law in two respects and therefore grant the petition.
As an initial matter, the State does have the authority to issue an investigative subpoena duces tecum. The courts of this state have repeatedly held that the state attorney acts as a one-person grand jury in carrying out investigations into noncapital criminal conduct, and the state attorney must be granted reasonable latitude in that role. Doe v. State, 634 So.2d 613, 615 (Fla.1994); Imparato v. Spicola, 238 So.2d 503, 506 (Fla. 2d DCA 1970); State v. Nat'l Research Sys., Inc., 459 So.2d 1134, 1135 (Fla. 3d DCA 1984); Op. Att'y Gen. Fla. 94-86 (1994). In addition, section 27.04, Florida Statutes (2000), allows the state attorney to issue subpoenas duces tecum for records as part of an ongoing investigation. Imparato, 238 So.2d at 506; Nat'l Research Sys.,459 So.2d at 1135. Therefore, the State clearly had the authority to issue the investigative subpoena in this case.
Turning to the merits of the case, this court has already rejected the argument that the State must establish the materiality or relevance of the information it seeks as part of an ongoing investigation into possible criminal activity. Imparato, 238 So.2d at 507. In Imparato, the State served subpoenas duces tecum on various corporate officials, seeking all books, records, and documents of the corporation as part of an investigation into organized crime. Id. at 505. The officials moved to quash the subpoenas, arguing in part that the State had failed to establish that the requested records were material or relevant to an existing or anticipated investigation. Id. at 507. In rejecting this argument, this court stated:
In light of the fact that the subpoenas were issued at the specific direction of the State Attorney in connection with a presumably lawful investigation he was making in his official capacity, no such showing was necessary.... Even as the grand jury is immune from the requirement of showing materiality in compelling production of testimony and documentary evidence it desires, so is the State Attorney in his official sphere.
Id. See also In re Slaughter, 694 F.2d 1258, 1260 (11th Cir.1982)
(); Winfield v. Div. of Pari-Mutuel Wagering, 477 So.2d 544, 548 (Fla.1985) ().
A requirement that the State establish the relevancy and materiality of the information it sought by way of an investigative subpoena would unreasonably impede the state attorney's ability to conduct investigations into criminal activity. The purpose of an investigative subpoena is to allow the State to obtain the information necessary to determine whether criminal activity has occurred or is occurring. To require the State to prove that the information it seeks is both relevant and material to its investigation is to require the State to explain the purpose and targets of its investigation before that investigation is complete. The State should not be required to tip its hand in this manner. Further, the State cannot be required to prove that a crime has occurred before it can issue an investigative subpoena because the entire purpose of the investigative subpoena is to determine whether a crime occurred. To require the State to prove that a crime occurred before it can issue an investigative subpoena puts the State in an impossible catch-22.
In this case, the trial court initially quashed the State's investigative subpoena because the State had failed to prove the relevance and materiality of the information sought. On rehearing, the trial court reaffirmed that decision because the State had...
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