State v. Tsavaris

• Decision Date: 12 February 1981
• Docket Number: No. 59098,59098
• Parties: STATE of Florida, Petitioner, v. Louis J. TSAVARIS, Respondent.
• Court: Florida Supreme Court

Page 418

394 So.2d 418

STATE of Florida, Petitioner, v. Louis J. TSAVARIS, Respondent.

No. 59098.

Supreme Court of Florida.

Feb. 12, 1981.

Rehearing Denied March 18, 1981.

Jim Smith, Atty. Gen., and Peggy A. Quince, Asst. Atty. Gen., Tampa, for petitioner.

Gerald C. Surfus of Lee & Surfus, Sarasota, for respondent.

PER CURIAM.

The District Court of Appeal, Second District, has certified the following question for our resolution:

Does the recording of a conversation by one of the participants constitute the interception of a wire or oral communication within the meaning of Chapter 934, Florida Statutes (1979)?

State v. Tsavaris, 382 So.2d 56, 65 (Fla. 2d DCA 1980). An additional issue is raised by Tsavaris on cross-notice for review regarding the validity of subpoenas directed to Tsavaris's secretary and the reversal of the trial court's suppression of the office records produced pursuant to these subpoenas.

We answer the certified question in the affirmative. As to Tsavaris's point on cross-notice, we hold that the district court correctly determined that only Tsavaris's secretary to whom the subpoenas were directed had standing to object to the form or service of process of the subpoenas and that, by failing to object, she waived any such defects. We also agree with the district court that suppression of the office records produced pursuant to the subpoenas was not required by the fourth amendment to the United States Constitution. ¹

Part I Wire Interception

Louis Tsavaris, who had been indicted for the first-degree murder of Cassandra Ann Burton, one of his patients, moved to suppress certain evidence against him. One of the items he sought to suppress was a tape recording of a telephone call he made to the medical examiner, Dr. Feegel, inquiring as to Miss Burton's autopsy results. Dr. Feegel answered this call on his speaker phone in the presence of a sheriff's detective who had just informed Dr. Feegel that Tsavaris was involved in the circumstances surrounding Miss Burton's death. The detective overheard the entire conversation over the speaker phone. Although not instructed by the detective to do so, when Tsavaris identified himself as the caller, Dr. Feegel turned on a recording device and asked Tsavaris to identify himself again. ² Tsavaris's response and the remainder of the conversation were recorded by Dr. Feegel. It is the admissibility of this recording which is now in issue. There is no dispute that the testimony regarding this conversation either by Dr. Feegel or by the detective who overheard the conversation is admissible. The district court so held, and Tsavaris does not contest this holding in his cross-review request.

The trial court granted Tsavaris's motion to suppress the recording of this telephone conversation on the basis that it was an unlawful interception of a wire communication in violation of chapter 934. The district court affirmed this ruling only because it felt compelled to do so in light of this Court's decision in State v. Walls, 356 So.2d 294 (Fla.1978).

Section 934.06, Florida Statutes (1979), provides:

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter.

(Emphasis supplied.) But for exceptions specifically spelled out in chapter 934, anyone who willfully intercepts a wire or oral communication or who discloses the contents of an unlawfully intercepted wire or oral communication is guilty of a felony in the third degree. § 934.03(1)(a) and (c). None of the exceptions listed in section 934.03(2) applies in the present factual situation. Therefore, if the recording of Tsavaris's conversation by Dr. Feegel constitutes an "interception," no part of the contents of such communication may be received into evidence.

Intercept is defined by section 934.02(3) to mean the "aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device." "Aural acquisition" means to gain control or possession of a thing through the sense of hearing. ³ Thus pursuant to section 934.02(3), "to intercept" means to gain control or possession of a communication through the sense of hearing and through the use of an electronic or mechanical device. ⁴ We think it is clear that Dr. Feegel's recording of his telephone conversation with Dr. Tsavaris fits the explicit terms of the statutory definition.

As noted by the district court, this Court need look no further than our recent opinion in State v. Walls to determine that Dr. Feegel's recording is an unlawful interception. In Walls a victim of extortion threats recorded a conversation he had with the extortionists in his home. At trial the alleged extortionists successfully sought to have the recordings suppressed because they were in violation of chapter 934. This Court affirmed the trial court suppression order and expressly held that the recordings were unlawful interceptions.

The Court reached a similar conclusion in Shevin v. Sunbeam Television Corp., 351 So.2d 723 (Fla.1977), appeal dismissed, 435 U.S. 920, 98 S.Ct. 1480, 55 L.Ed.2d 513 (1978). In that case various newspapers mounted a wholesale attack upon the constitutionality of section 934.03(2)(d), Florida Statutes (1979), which requires that all parties to a conversation give consent before that conversation may be lawfully intercepted. The newspapers complained that to prohibit a reporter from secretly recording conversations (such as telephone conversations) would unreasonably inhibit newsgathering activities protected by the first amendment. We rejected the newspapers' constitutional claim and upheld the state's right to require consent of all parties. While petitioner points out that the term "intercept" was not squarely in issue in Shevin, the entire controversy in that case was premised on the fact that the recording of telephone conversations and the like would constitute illegal interceptions. Moreover, had this Court believed that the recording of a conversation without the participants' consent did not fit within the term "interception," we most certainly would have decided the case on those grounds, for the Court will not pass upon a constitutional issue if the case can be decided on other grounds. Wooten v. State, 332 So.2d 15 (Fla.1976); Singletary v. State, 322 So.2d 551 (Fla.1975); Jones v. City of Sarasota, 89 So.2d 346 (Fla.1956).

The history and recent amendments to chapter 934 demonstrate that the act was intended to afford broad protection to private communications. Chapter 934, the Florida Security of Communications Act, was patterned after Title III of the Omnibus Crime Control Act of 1968, 18 U.S.C. § 2510, et seq. Prior to 1974 the Florida act, like its federal counterpart, permitted the interception of defined wire or oral communications when one party to the communication gave consent:

It is not unlawful under this chapter for a person not acting under color of law to intercept a wire or oral communication when such person is a party to the communication or when one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal act.

§ 934.03(2)(d), Fla.Stat. (1973). Effective October 1, 1974, however, chapter 74-249, Laws of Florida, amended the act to require all parties to a defined wire or oral communication to give prior consent:

It is lawful under this chapter for a person to intercept a wire or oral communication when all of the parties to the communication have given prior consent to such interception.

§ 934.03(d)(2), Fla.Stat. (1979). This amendment "was a policy decision by the Florida legislature to allow each party to a conversation to have an expectation of privacy from interception by another party to the conversation." Shevin v. Sunbeam Television Corp., 351 So.2d at 726-27. Accord, State v. News-Press Publishing Co., 338 So.2d 1313, 1316 (Fla. 2d DCA 1976). While the federal wiretapping legislation envisions that one's right to privacy must be subordinate to law enforcement interests when one party consents to the interception of a conversation, "(t)he (Florida) Legislature has determined as a matter of state public policy that the right of any caller to the privacy of his conversation is of greater societal value than the interest served by permitting eavesdropping or wiretapping." State v. Walls, 356 So.2d at 296 (quoting from Markham v. Markham, 265 So.2d 59 (Fla. 1st DCA 1972), affirmed, 272 So.2d 813 (1973)). Hence, the Florida act evinces a greater concern for the protection of one's privacy interests in a conversation than does the federal act.

Equally certain is the fact that the 1974 amendment to chapter 934 was designed to proscribe the method of interception used in this case. On the floor of the Florida House of Representatives, the only recorded debate on the two-party consent requirement of section 934.03(2)(d) was this comment by Representative Shreve:

(What this bill does) is to prevent, make it illegal, for a person to record a conversation, even though he's a party to it, without the other person's consent. ⁵

With no further debate, the bill passed the House 109-1. We regard this lone and uncontested comment as telling evidence of the unlawful nature of Dr. Feegel's recording.

The district court decision in Tsavaris goes to great lengths to convince this Court that State v. Walls was incorrectly decided and should be overruled. ⁶ We remain wholly unpersuaded. The district court rationale proceeds on two faulty premises. The first is that...