State v. Otte
| Decision Date | 07 October 2004 |
| Docket Number | No. SC03-330.,SC03-330. |
| Parties | STATE of Florida, Appellant, v. James OTTE, Appellee. |
| Court | Florida Supreme Court |
Charles J. Crist, Jr., Attorney General, Belle B. Schumann and Killie A. Nielan, Assistant Attorney General, Daytona Beach, FL, for Appellant.
Gerard F. Keating, Daytona Beach, FL, for Appellee.
In this case, we decide whether a Florida statute that authorizes wiretaps for the investigation of certain crimes conforms to a federal statute that also authorizes wiretaps, but only in certain circumstances. The federal statute preempts any state laws concerning wiretaps, although states may enact more restrictive provisions.
The State appeals State v. Fratello, 835 So.2d 312 (Fla. 5th DCA 2002),1 in which the district court declared invalid section 934.07, Florida Statutes (1999), to the extent that it authorizes law enforcement officials to intercept communications related to prostitution. Our jurisdiction is mandatory. See art. V, § 3(b)(1), Fla. Const. The precise question we must address is whether violations of Florida's Racketeer Influenced and Corrupt Organization (RICO) statute, § 895.03, Fla. Stat. (1999), constitute crimes "dangerous to life, limb, or property" under 18 U.S.C. § 2516(2) when the predicate acts are related to prostitution. As explained below, we hold that violations of the Florida RICO statute do constitute crimes "dangerous to life, limb, or property," and therefore section 934.07's authorization of wiretaps for such crimes is consistent with the federal statute.
The State filed an information alleging that appellee James Otte was employed by or associated with a business named Elegant Encounters, an escort service that provided prostitution services. It charged Otte with racketeering and conspiracy to commit racketeering in violation of Florida's RICO statute, § 895.03(3)-(4), Fla. Stat. (1999), and with deriving support from prostitution in violation of section 796.05, Florida Statutes (1999). The State obtained an order authorizing a wiretap on a telephone in Otte's home. The order was based on the State's allegation, and the court's finding, that probable cause existed to believe Otte was engaging in racketeering and money laundering in violation of Florida's RICO statute through his management and direction of prostitutes and their clients. Fratello, 835 So.2d at 313. Otte filed a motion to suppress evidence, contending that the wiretap order was illegal. The trial court granted the motion. On appeal, the Fifth District Court of Appeal affirmed, holding that the wiretap was not authorized under federal law. Id. at 316.
Id. (emphasis added). Therefore, the statute authorizes wiretaps to investigate certain enumerated offenses, as well as other, unspecified offenses that are dangerous to life, limb, or property and punishable by imprisonment for more than one year.
The federal wiretap statute preempts the field of wiretapping and electronic surveillance and limits a state's authority to legislate in this area. State v. Rivers, 660 So.2d 1360, 1362 (Fla.1995). It allows states to adopt similar procedures authorizing state law enforcement personnel to intercept communications in a criminal investigation. 18 U.S.C. § 2516(2) (2000). Although states are free to adopt more restrictive statutes, they cannot adopt less restrictive ones. Rivers, 660 So.2d at 1362.
§ 934.07, Fla. Stat. (1999) (emphasis added).2 While the Florida statute refers to both prostitution and Florida's RICO statute, the federal statute refers to neither.
We previously have held the Florida statute invalid in authorizing wiretaps to investigate prostitution because that crime is not identified in the federal statute and it is not a crime "dangerous to life, limb, or property." See Rivers, 660 So.2d at 1362. Now we must determine whether the authority in Florida's statute to use wiretaps to investigate RICO violations suffers from the same deficiency, at least as applied to RICO crimes (such as racketeering and money laundering) where the underlying offenses are related to prostitution. The issue presented is a pure question of law subject to de novo review. See State v. Glatzmayer, 789 So.2d 297, 302 n. 7 (Fla.2001) ().
In holding that the wiretaps were unauthorized under federal law because the underlying crimes were prostitution-related, the Fifth District Court of Appeal largely relied on our decision in Rivers.835 So.2d at 316. Therefore, we analyze exactly what we determined in that case. In Rivers, law enforcement investigated an alleged prostitution ring. They obtained a wiretap to gather evidence of "ongoing violations of Chapter 796, Florida Statutes, prohibiting prostitution." 660 So.2d at 1361. Based on the information obtained through the wiretap, the State charged the defendants with prostitution-related offenses and RICO violations. 660 So.2d at 1361. We first noted that the wiretap was obtained based solely on allegations of prostitution-related offenses and that the "RICO charges only materialized after the State obtained evidence through intercepting communications pursuant to the wiretap order." 660 So.2d at 1361 (emphasis added). Although "[a]dditional offenses discovered during the course of a proper intercept may be prosecuted regardless of the nature of the offense or the prescribed punishment," we stated that "evidence of other crimes revealed as the result of an invalid wiretap cannot redeem an otherwise invalid authorization." Id. Thus, the subsequently charged RICO violations, which did not serve as the basis for the wiretap order, could not validate the wiretap.
We recognized in Rivers that the federal statute did not specify prostitution as one of the offenses for which a wiretap was authorized. The question, therefore, was whether the Florida statute's authorization of wiretaps to investigate prostitution — the crime alleged in the request for a wiretap — fell within the federal statute's general grant of authorization to investigate crimes "dangerous to life, limb, or property." 660 So.2d at 1361. We concluded that as long as the offense was nonviolent, "Congress did not intend to include prostitution in the `dangerous to life, limb or property' category" and explained as follows:
Under the statutory construction rule of ejusdem generis, the general category of other crimes "dangerous to life, limb, or property, and punishable by imprisonment for more than one year," must be construed as applying only to crimes of the same kind as those precisely stated in the statute. Thus, the "dangerous to life" general category refers only to those crimes that are "intrinsically serious" or characteristic of the operations of organized crime.
660 So.2d at 1362 (citations omitted). We further noted that "Congress specifically provided that the `dangerous to life' general category `is intended to exclude such offenses as fornication and adultery, which do not involve danger to life, limb, or property.'" 660 So.2d at 1363 (quoting S.Rep. No. 90-1097 (1968)).
In Rivers, we warned that if the prostitution-related offenses under investigation were alleged to involve either violence or the threat of violence, then Florida's statute would conform to the federal statute's restrictions. 660 So.2d at 1363. Also, because the RICO charges were added after the wiretap at issue, we did not consider the statute's authority to investigate RICO violations. Our holding was limited to the statute's authorization to issue wiretaps to investigate prostitution. Therefore, although our analysis in Rivers certainly informs our decision here, its holding does not resolve the markedly different issue presented.
Unlike the order in Rivers, the wiretap order in this case was based on a judicial finding of probable cause to believe that the defendant was engaged in racketeering and money laundering activities in violation of Florida's RICO statute. That the predicate offenses of the RICO allegations were prostitution-related is not determinative; racketeering is a wholly separate crime from any underlying offenses. See § 895.03, Fla. Stat. (1999).
Otte contends that in obtaining the wiretap, the State had to allege that the offenses involved violence or the threat of violence or danger to...
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