State v. McGillicuddy, 76--994

• Decision Date: 18 February 1977
• Docket Number: No. 76--994,76--994
• Parties: STATE of Florida, Appellant, v. Cornelius McGILLICUDDY, Jr., a/k/a Connie Mack, Jr., Appellee.
• Court: Florida District Court of Appeals

Page 567

342 So.2d 567

STATE of Florida, Appellant, v. Cornelius McGILLICUDDY, Jr., a/k/a Connie Mack, Jr., Appellee.

No. 76--994.

District Court of Appeal of Florida, Second District.

Feb. 18, 1977.

Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.

Archie M. Odom, of Farr, Farr, Haymans, Mosely & Odom, Punta Gorda, and Robert L. Weinberg, of Williams, Connolly & Califano, Washington, D.C., for appellee.

GRIMES, Judge.

The state brings this appeal from the suppression of wiretap evidence on the ground that the application for the order which authorized the interception did not meet the requirements of the applicable federal statute.

The application for the interception of wire communications consisted of an affidavit of Ralph Cunningham, an investigator in the State Attorney's office for the Twentieth Judicial Circuit. The application runs twenty-one pages and contains primarily an account by Cunningham of facts purporting to justify the issuance of the wiretap order. The application concludes with the words 'authorized by' followed by the signature of the state attorney. When the application was presented to him, Judge Schoonover, a circuit judge of the Twentieth Judicial Circuit, issued an order which authorized the interception of communications over a specific telephone in Lee County listed in the name of Glenn DeVore.

Thereafter, appellee filed a motion to suppress all evidence obtained from wiretapping his communications over the subject telephone. ¹ Following a suppression hearing, a different circuit judge entered an order prohibiting the state from using the contents of any intercepted communication obtained under Judge Schoonover's wiretap order. The basis for the suppression was that the wiretap application failed to comply with 18 U.S.C. § 2516 et seq. which provides for authorization to intercept wire or oral communications.

The parties agree that Congress in the passage of Title III of the Omnibus Crime Control and Safe Streets Act preempted the field of the interception of wire communications under its power to regulate interstate communications. State v. Farha, 218 Kan. 394, 544 P.2d 341 (1975). The states are also permitted to regulate wiretaps providing their standards are at least as strict as those set forth in the federal act. State v. Siegel, 13 Md.App. 444, 285 A.2d 671 (1971). Thus, in order to reach our conclusion, it is necessary to first look at the applicable federal statutes.

18 U.S.C. § 2516 reads in pertinent part as follows:

'(1) The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency 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--

'(2) 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.'

The enabling state legislation on the subject is Section 934.07, Florida Statutes (1975) which reads:

'934.07 Authorization for interception of wire or oral communications.--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 trial court interpreted the federal statute to mean that one of the statutorily described officers had to physically appear before the judge as an applicant to obtain the wiretap order. Since Mr. Cunningham was not one of those officers, the court held the order and the resulting wiretap to be invalid. We do not believe that Congress intended for its legislation to be given such a narrow construction.

It is evident that the use of wiretaps infringes upon the individual's right to privacy. Therefore, the federal statute establishes procedures which are designed reasonably to protect the right of privacy, while insuring that necessary wiretaps may be used for investigative purposes.

The purpose of the procedure set forth in 18 U.S.C. § 2516(2) is to place the responsibility for authorization in a specific and identifiable person who is answerable to the people. United States v. Lanza, 341 F.Supp. 405 (M.D.Fla.1972). Under the statute, it must be clear who has authorized and set into motion the application for wiretap. Florida has implemented the congressional intent by specifying that a state attorney may be an authorizing official. ²

In this case, there is no question that Cunningham was the affiant for the application, and he is referred to therein as the applicant. However, the application reflects that it was authorized by the state attorney, who is the principal prosecuting attorney of a political subdivision of the State of Florida as contemplated by 18 U.S.C. § 2516(2) and Section 934.07, Florida Statutes (1975). Mr. Cunningham's sworn statement provided sufficient information upon which the state attorney could rely in exercising his judgment to authorize the application. By authorizing this application in writing, the state attorney has certified that in the performance of his duties he has determined that the contents of the application warrant his office in seeking to obtain a wiretap order. No purpose would have been served for...