State v. McManus, 80-1092
| Decision Date | 02 September 1981 |
| Docket Number | No. 80-1092,80-1092 |
| Parties | STATE of Florida, Appellant, v. Ed McMANUS and Ludwell E. O'Quinn, Sr., Appellees. |
| Court | Florida District Court of Appeals |
Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellant.
Robert T. Adams, Marianna, for appellee-McManus.
P. D. Aiken, Fort Lauderdale, for appellee-O'Quinn.
GREEN, OLIVER L., Jr., Associate Judge.
The appellees were charged by information with criminal conspiracy to deliver cannabis in excess of 100 pounds. The trial judge granted the appellees' motion to suppress the evidence. The State appeals this order. We reverse.
On July 25, 1978, the State Attorney for the Seventeenth Judicial Circuit authorized an application for an order of interception to be made by Detective James P. Harn, of the Hollywood, Florida Police Department. Pursuant to the authorization, Detective James P. Harn and Detective William Matterly made a timely appearance before a circuit court judge, who read the application and then proceeded to administer an oath to the said Detective James P. Harn. Detective Harn signed his name to the application and affidavit in the presence of the circuit judge. The circuit judge, having thus reviewed the application and having administered the oath, neglected to sign his name thereon, to affix a jurat, the date, or his seal of office. The circuit judge signed an accompanying order of custody and order authorizing interception. Evidence in the form of cannabis was seized as a result of information obtained from the oral interception. This evidence was suppressed by order of the trial judge, who was not the judge that signed the intercept order.
There are two points on appeal. The first point is directed to a holding by the trial judge that the state attorney was without authority to authorize a municipal police officer to apply for an order of interception. This order was entered prior to our ruling in the case of State v. Birs, 394 so.2d 1054 (Fla. 4th DCA 1981), wherein it was held that the state attorney was empowered to authorize a police officer to make application for interception. (Also see State v. McGillicuddy, 342 So.2d 567 (Fla. 2nd DCA 1977)). A distinguishing factor is that in the Birs case, the officer was on special assignment to the state attorney's office, whereas, in this case, there is no reference to any such appointment.
While this opinion should not be read as an encouragement for state attorneys to designate their authority in this fashion, neither do we find that this arrangement is proscribed by 18 U.S.C. Section 2516(2) or Section 934.07, Florida Statutes (1975).
The second point on appeal is that the trial judge erred in suppressing the evidence even though the application and affidavit did not bear a jurat, the date, the issuing judge's signature, or his seal of office. Detective James P. Harn and Detective William Matterly testified in great detail about the circumstances under which they appeared before the circuit judge for the purpose of obtaining the order of intercept. The circuit judge before whom...
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