State v. Tsavaris

Citation382 So.2d 56
Decision Date06 March 1980
Docket NumberNo. 79-1160,79-1160
PartiesSTATE of Florida, Appellant, v. Louis J. TSAVARIS, Appellee.
CourtCourt of Appeal of Florida (US)

Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.

Gerald C. Surfus of Lee & Surfus, Sarasota, and Michael L. Kinney of Mulholland, Kinney & Anderson, Tampa, for appellee.

DANAHY, Judge.

Dr. Louis J. Tsavaris, a Tampa psychiatrist, was indicted for the first degree murder of one of his patients, Cassandra Ann "Sally" Burton. Anticipating that the state would introduce certain evidence against him, Dr. Tsavaris requested the trial judge to suppress that evidence on statutory and constitutional grounds. The trial judge did so and the state appeals. We affirm in part and reverse in part.

There has been no trial in this case; for purposes of this appeal, the parties accept the statement of facts set forth in Tsavaris v. Scruggs, 360 So.2d 745 (Fla.1977). As recited in that opinion, Dr. Tsavaris called the morgue in Tampa three times to inquire about the results of the Sally Burton autopsy. The trial judge suppressed a tape recording of the first of these conversations and all testimony regarding that conversation on the ground that the recording was an unlawful interception of a wire communication under Chapter 934, Florida Statutes (1979). 1 We affirm the suppression of the tape recording but hold that testimony as to the telephone conversation is admissible and reverse that part of the trial judge's order suppressing such testimony.

In Tsavaris v. Scruggs, supra, Dr. Tsavaris asserted unsuccessfully that he was immune from prosecution for the murder of Sally Burton because the state, as part of its investigation into her death, obtained and served subpoenas duces tecum on Dr. Tsavaris' secretary, who produced certain of his office records pursuant to the subpoenas. Following the supreme court's adverse ruling on the immunity claim in Tsavaris v. Scruggs, the trial judge granted Dr. Tsavaris' motion to suppress those records, holding that the state's acquisition of the records violated Dr. Tsavaris' rights under the Fourth Amendment to the United States Constitution. We hold that no provision of the United States Constitution or of the Florida Constitution requires suppression of the subpoenaed records and reverse the order suppressing them as evidence in this case.

We will discuss separately our reasoning with respect to the admissibility of evidence pertaining to the tape recorded telephone conversation and the admissibility of the office records produced pursuant to the state's subpoenas. We begin, however, with a common law rule applicable to both categories of evidence; the rule is that the means by which evidence is obtained whether lawful or unlawful, proper or improper does not affect its admissibility unless those means invoke legislation prohibiting the introduction of the evidence or unless the constitutional rights of the defendant require that the evidence be excluded. Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928); 8 Wigmore, Evidence, Section 2183 (McNaughton rev. 1961). We have found nothing in the decisions of our supreme court modifying this common law rule. Accordingly, in our review of the orders suppressing evidence in this case, we are required to determine whether there is any federal or state legislation prohibiting the introduction of the evidence or, in the absence of any such legislation, whether the constitutional rights of Dr. Tsavaris require that the evidence be excluded.

The Tape Recorded Telephone Conversation

Sally Burton was officially pronounced dead shortly after midnight on Saturday, Aprilil 19, 1975. On that Sunday morning, Aprilil 20, Detective Ronald Poindexter of the Hillsborough County Sheriff's Department went to the morgue at Tampa General Hospital to confer with Dr. John R. Feegel, who was the medical examiner for Hillsborough County, concerning the autopsy scheduled for that morning on Sally Burton's body. 2 He had just been told by a close friend of Miss Burton that Miss Burton and Dr. Tsavaris had been having an affair; that Miss Burton had become pregnant; that she had undergone an abortion only four weeks earlier; that she had not wanted the abortion, but Dr. Tsavaris insisted; that the couple's relationship was a stormy one; and that they had recently quarreled over Miss Burton's demand that Tsavaris obtain a divorce in order to marry her.

When he arrived at the morgue, Detective Poindexter relayed to Dr. Feegel the substance of the information he had just been given, particularly about the abortion, specifically mentioning that Dr. Tsavaris was Miss Burton's psychiatrist and possibly her lover, and that he was involved in the circumstances surrounding her death.

While Detective Poindexter was thus engaged in conversation with Dr. Feegel, Dr. Feegel's telephone rang. Dr. Feegel answered on his speaker phone, so that the voice of the caller was audible to both Dr. Feegel and Detective Poindexter. The caller asked "who is this?" and Dr. Feegel identified himself. The caller then said "this is Dr. Tsavaris." Hearing that, Detective Poindexter and Dr. Feegel exchanged glances, but did not otherwise communicate, and Dr. Feegel clicked on a recording device. 3 He asked the caller to identify himself again, whereupon the voice over the phone pronounced the name of Tsavaris and spelled it. That response and the remainder of the conversation were recorded. It is not disputed that the caller was in fact Dr. Tsavaris.

In the course of this first telephone conversation, Dr. Feegel said he did not yet have the Sally Burton autopsy results. Dr. Tsavaris asked if he could call back and Dr. Feegel suggested that he do so at 1:30 p. m. Dr. Tsavaris called back at 1:30, was told by Dr. Feegel that the cause of death had not been determined, and called a third time at 4:00 p. m. that day. Officers from the Sheriff's Department recorded the second and third conversations on Sheriff's Department recording equipment. The trial judge denied Dr. Tsavaris' motion to suppress those recordings and Dr. Tsavaris does not challenge that ruling on this appeal.

Although there is a federal law which regulates the interception of wire communications by means of electronic devices, neither that nor any federal statute imposes a restriction on the surreptitious recording of a telephone conversation by one of the participants. Furthermore, the United States Constitution offers no protection to a nonconsenting participant whose conversation is recorded without his knowledge by the party to whom he is speaking, even if that party is a government agent. United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979).

Thus we must look to Florida statutes and the Florida Constitution to determine whether there is any impediment to admitting evidence of the telephone conversation between Dr. Tsavaris and Dr. Feegel which Dr. Feegel recorded. The only possible statutory prohibition is Section 934.06, Florida Statutes (1979), which provides in part that:

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 . . . if the disclosure of that information would be in violation of this chapter. (Emphasis added)

Section 934.03(1)(c) makes it a crime to willfully disclose the contents of any wire communication knowing or having reason to know that the information was obtained through the interception of a wire communication in violation of Section 934.03(1). Section 934.03(1)(a) makes it a crime to willfully intercept a wire communication except as specifically permitted by Chapter 934. Our first inquiry, then, is whether Dr. Feegel's recording of his telephone conversation with Dr. Tsavaris was permitted under Chapter 934.

We have no difficulty with the listening in by Detective Poindexter, even though he was not a participant in the conversation and Dr. Tsavaris certainly was not aware that he was listening. An interception under Chapter 934 can only occur through the use of an electronic, mechanical or other device. Section 934.02(3). A telephone instrument furnished to a subscriber or user and being used by the subscriber or user in the ordinary course of business is specifically excluded from the scope of the words "electronic, mechanical or other device." Section 934.02(4). Dr. Feegel answered the telephone when Dr. Tsavaris called by using his speaker phone; in doing so he used his telephone equipment in the ordinary course of business. The result would be the same if he had answered first on the regular telephone receiver and then punched the speaker phone so that Detective Poindexter could hear.

There is a further reason why Detective Poindexter's hearing the conversation did not constitute a prohibited interception. Section 934.03(2)(c) provides that:

It is lawful under this chapter for a law enforcement officer or a person acting under the direction of a law enforcement officer to intercept a wire or oral communication when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act.

The state sought to bring Dr. Feegel's recording of the telephone conversation within the above provision by arguing that, under Florida statutes pertaining to the duties of a medical examiner, Dr. Feegel was a law enforcement officer; or, alternatively, that Dr. Feegel was acting under the direction of a law enforcement officer, Detective Poindexter, when he made the tape recording in question.

We agree with the trial judge that Dr. Feegel did not occupy the position of a law enforcement officer. Section 936.003(1), Florida Statutes (...

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