State v. Muscara, 75--1126

• Decision Date: 02 June 1976
• Docket Number: No. 75--1126,75--1126
• Citation: State v. Muscara, 334 So.2d 167 (Fla. App. 1976)
• Parties: The STATE of Florida, Appellant, v. Anthony MUSCARA, Appellee.
• Court: Florida District Court of Appeals

Page 167

334 So.2d 167

The STATE of Florida, Appellant, v. Anthony MUSCARA, Appellee.

No. 75--1126.

District Court of Appeal of Florida, Third District.

June 2, 1976.

Richard E. Gerstein, State's Atty., and Milton Robbins, Asst. State's Atty., for appellant.

Angus M. Stephens, Jr., Miami, for appellee.

Before BARKDULL, C.J., and HAVERFIELD, J., and CHARLES CARROLL (Ret.), Associate Judge.

BARKDULL, Chief Judge.

The appellant, prosecution in the trial court, seeks review of an order of the trial court suppressing tapes of a telephone conversation with the appellee and a third party, and tapes made of conversations between police officers and the appellee. The appellee was charged with buying, receiving, and concealing stolen property.

On August 17, 1974, one Henry Isom was arrested; he gave the police certain information involving the appellee. Thereafter, on August 19, 1974 at about 4:24 P.M., Isom made a call to the appellee to set a meeting with police officers LaVoie and Cataldo to allegedly purchase stolen shoes; this conversation was taped. At approximately 6:00 P.M. on the same date, the meeting took place as arranged, at which time the officers were wired with transmitters and the conversations were recorded. Price and quantity were agreed upon, and a meeting was set for the next day to consummate the sale. The meeting took place and the conversations were again recorded. When the sale was consummated, the appellee was arrested and charged with buying, receiving, and concealing stolen property.

The cause ultimately came on for non-jury trial, at which time the appellee objected to admissibility of the tapes of the aforementioned conversations, on the ground said conversations were not recorded pursuant to a warrant and that Isom did not appear to testify as to his consent to the recording of his original telephone call; therefore, the tape of that call and subsequent tapes or evidence obtained through the initiation of that call were inadmissible. The trial court ordered suppression of all these tapes and this interlocutory appeal follows. ¹

The appellant concedes that Isom's failure to appear and testify as to his consent to recording of the original telephone conversation would render said recording inadmissible; however, his failure to testify does not affect the admissibility of those recorded conversations between the officers and the appellee. United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380; Washburn v. State, 19 Md.App. 187, 310 A.2d 176. Therefore, the appellant contends it was error to suppress those recordings and the evidence derived therefrom.

The appellee contends that the trial court was correct, on the ground that the recording of the initial telephone conversation was clearly inadmissible under the holding of Tollett v. State, Fla.1973, 272 So.2d 490, and that the second and third were likewise inadmissible under the same decision. We agree that, under Tollett v. State, supra, the initial taped conversation was inadmissible without Isom's testimony. But the tapes made by the police officers at the time of the second conversation were admissible, as the officers were available to testify and They never had an...