State v. Shaktman, 79-1339

• Decision Date: 14 October 1980
• Docket Number: No. 79-1339,79-1339
• Citation: 389 So.2d 1045
• Parties: The STATE of Florida, Appellant, v. Bernard SHAKTMAN, Appellee.
• Court: Florida District Court of Appeals

Page 1045

389 So.2d 1045

The STATE of Florida, Appellant, v. Bernard SHAKTMAN, Appellee.

No. 79-1339.

District Court of Appeal of Florida, Third District.

Oct. 14, 1980.

Rehearing Denied Nov. 14, 1980.

Janet Reno, State's Atty., for appellant.

Melvin S. Black, Miami, for appellee.

Before HUBBART, C. J., and NESBITT and PEARSON, DANIEL S., JJ.

PEARSON, DANIEL S., Judge.

This is an appeal by the state from an order suppressing evidence obtained by the tape recording of telephone conversations between Shaktman and an undercover police officer.

The parties stipulated to the facts pertinent to the defendant's motion to suppress. The police, suspecting that the defendant was engaged in illegal betting, set the stage to obtain tape recorded evidence of the defendant placing bets with them. They had a telephone (to which they attached recording equipment) installed in an apartment rented and paid for by them. The undercover police officer then personally arranged with Shaktman that Shaktman would call him at the apartment number for the purpose of placing bets. Shaktman did exactly that, and his incriminating conversations were recorded with the consent of the police officer receiving the call. The police did not obtain any court order or warrant authorizing the recording of these conversations. There were no exigent circumstances which would have excused the failure to obtain a court order or warrant if one were required.

The rub, of course, is that no court order or warrant authorizing the police to tape record Shaktman's telephone conversations was required. The undercover officer's consent was enough to validate the recording. It is for that reason that we must reverse the trial court's order.

The trial court based its ruling on Tollett v. State, 272 So.2d 490 (Fla.1973); Sarmiento v. State, 371 So.2d 1047 (Fla. 3d DCA 1979); and State v. Muscara, 339 So.2d 167 (Fla. 3d DCA 1976). Its reliance on those decisions was misplaced. Tollett merely announces the evidentiary rule that as a predicate to the admission of the tape recording or a seized conversation, the consenting party must testify that he consented to the recording. As we later explained in Franco v. State, 376 So.2d 1168 (Fla. 3d DCA 1979), once that predicate requirement for admissibility is met, the tape recording between the consenting party and the accused may be introduced into evidence, and the absence of a warrant or order, the lack of probable cause, and the nonexistence of exigent circumstances are all without significance. ¹

To the extent that Sarmiento v. State, supra, retains life after Franco, but see State v. Scott, 385 So.2d 1044 (Fla. 1st DCA 1980), it is clearly limited to its discreet setting-that is, the monitoring by two police officers stationed outside of the defendant's home of a conversation between the defendant and another within the defendant's home, about which the monitoring officers, not the officer engaged in the conversation with the defendant, testified.

As to Muscara v. State, supra, there is no life after Franco. Muscara's holding that a recording made by undercover police officers of a conversation they had with the defendant was inadmissible because of the failure of the officers to secure an intercept warrant where there was ample time to do so was dealt a death blow by Franco. ²

The present case is controlled by Franco, and upon its authority we reverse. See also Jacobs v. State, 389 So.2d 1054 (Fla. 3d DCA 1980); State v. Steinbrecher, 389 So.2d 1043 (Fla. 3d DCA 1980); State v. Scott, supra.

Reversed.

HUBBART, Judge (dissenting).

I must respectfully dissent; I would affirm in all respects the trial court's order suppressing the tape recordings herein. In my view, the subject electronic eavesdropping constitutes an "unreasonable interception of private communications" condemned by Article I, Section 12 of the Florida Constitution because it was conducted without benefit of a valid intercept warrant under circumstances where it was admittedly practicable to have obtained one, and, accordingly, the fruits of such electronic eavesdropping were inadmissible in evidence. ¹

I continue to be profoundly disturbed that electronic eavesdropping by the state-which by common consent represents a serious assault on the personal privacy of all people ²-can take place without any judicial control whatever, without honoring any of the constitutional limitations imposed by Article I, Section 12 of the Florida Constitution on state-conducted electronic eavesdropping, so long as an agent of the state participates in the intercepted conversation and "consents" to the interception which he himself conducts to obtain evidence of a criminal act. Indeed, the court herein states that "once (the consent) predicate requirement for admissibility is met, the tape recording between the consenting party and the accused may be introduced in evidence, and the absence of a warrant or order, the lack of probable cause, and the non-existence of exigent circumstances are all without significance." (p. 1046). I take this to mean that a state agent may conduct the subject electronic eavesdropping at his unfettered discretion without benefit of a valid intercept warrant, without any exigent circumstances whatever, and without a shred of probable cause. With all due respect, I must protest such a sweeping grant of arbitrary authority to the state as it amounts, in effect, to an electronic writ of assistance and an unjustified invasion of personal privacy specifically prohibited by Article I, Section 12 of the Florida Constitution.

I

The law is well-settled that warrantless searches and seizures are per se "unreasonable" under the Fourth Amendment to the United States Constitution and Article I, Section 12 of the Florida Constitution, subject only to a few specifically established and well-delineated exceptions. These exceptions have been jealously and carefully drawn, and the burden is upon the state to demonstrate that the procurement of a warrant was not feasible because the exigencies of the situation made that course imperative. United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948); Norman v. State, 379 So.2d 643 (Fla.1980); Hornblower v. State, 351 So.2d 716 (Fla.1977); Haile v. Gardner, 82 Fla. 355, 359-61, 91 So. 376, 378 (1921); Taylor v. State, 355 So.2d 180 (Fla. 3d DCA), cert. denied, 361 So.2d 835 (Fla.1978); Miranda v. State, 354 So.2d 411 (Fla. 3d DCA), cert. denied, 364 So.2d 888 (Fla.1978); Britton v. State, 336 So.2d 663 (Fla. 1st DCA 1976); Shepard v. State, 319 So.2d 127 (Fla. 1st DCA), cert. denied, 328 So.2d 845 (Fla.1975); Hannigan v. State, 307 So.2d 850 (Fla. 1st DCA), cert. denied, 315 So.2d 195 (Fla.1975).

The law is equally well-settled that electronic eavesdropping constitutes a search and seizure within the meaning of the above constitutional provisions and, indeed, is specifically encompassed by Article I, Section 12 of the Florida Constitution. ³ Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). It is, therefore, abundantly clear that state-conducted electronic eavesdropping, like all other searches and seizures, is unreasonable when conducted without a valid intercept warrant absent exigent circumstances, and that its fruits are inadmissible in evidence. United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

Application of the above constitutional law renders, in my view, the electronic eavesdropping in the instant case unreasonable, and its fruits inadmissible in evidence. It is undisputed on this record that the subject electronic eavesdropping of the defendant's telephone conversations took place without benefit of a valid intercept warrant under circumstances where it was imminently practicable to have obtained one and, therefore, was conducted under non-exigent circumstances. As such, the subject electronic eavesdropping must fall under the established law.

We are told, however, that notwithstanding the above law, the subject electronic eavesdropping is beyond any constitutional limitation here because a state agent participated in the intercepted conversation and consented to the electronic interception which he joined in conducting for the purpose of investigating a crime. I fail to see why this fact makes the subject electronic eavesdropping any less unreasonable. Whether conducted with or without police "consent," we nonetheless deal with warrantless electronic eavesdropping performed by the state under non-exigent circumstances. Based on the established law, such electronic eavesdropping is unreasonable under Article I, Section 12 of the Florida Constitution.

Still, it must be conceded that the result here, which otherwise seems so clear under the law, is inexplicably clouded by an uncertain and conflicting line of authority. On the federal level, the electronic eavesdropping now under discussion was determined to be outside the scope of the Fourth Amendment in Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). Yet, in Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966), the Court approved the warrant requirement as a Fourth Amendment predicate for such electronic eavesdropping and quoted with approval from Mr. Justice Brennan's dissent in Lopez. Later, in United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), the Court approved the Lopez majority position without receding from Osborn ; moreover, the authority of the White Court's equivocal ruling is itself doubtful as it is a...