State v. Wooten, 4D18-2636

• Decision Date: 28 November 2018
• Docket Number: No. 4D18-2636,4D18-2636
• Citation: 260 So.3d 1060
• Parties: STATE of Florida, Petitioner, v. Dacoby Reshard WOOTEN and the Palm Beach Post, Respondents.
• Court: Florida District Court of Appeals

260 So.3d 1060

STATE of Florida, Petitioner,
v.
Dacoby Reshard WOOTEN and the Palm Beach Post, Respondents.

No. 4D18-2636

District Court of Appeal of Florida, Fourth District.

[November 28, 2018]

Pamela Jo Bondi, Attorney General, Tallahassee, and Marc B. Hernandez, Assistant Attorney General, West Palm Beach, for petitioner.

Carey Haughwout, Public Defender, and Christine Geraghty, Assistant Public Defender, West Palm Beach, for respondent Dacoby Reshard Wooten.

L. Martin Reeder Jr. of Atherton McAuliffe & Reeder, PA, West Palm Beach, for respondent The Palm Beach Post.

Levine, J.

260 So.3d 1064

The state asks us to prevent the disclosure of information that it had redacted from search warrants and warrant applications related to this pending criminal prosecution. We deny the petition and require an unredacted disclosure of the search warrants and applications to the defendant. Due process mandates it.

We also deny the petition as to the other portion of the order and require that there be an unredacted disclosure to the public and third parties. As to the public disclosure, first, the state did not preserve any argument regarding section 119.071, Florida Statutes (2018) ; second, this case does not involve a public records request under section 119.071 ; third, the trial court did not abuse its discretion in finding that the state did not meet its burden to justify closure; and finally, there is a common law "right to access" judicial records where the state has failed to demonstrate a compelling governmental interest in non-disclosure.

Because the requirements for certiorari review have not been met, we deny the petition and require the unredacted disclosure of the search warrants and the accompanying applications to the defendant and the public.

The defendant allegedly committed a murder, shot at a witness to the murder, and then fled the scene. Law enforcement obtained search warrants authorizing electronic tracking of the defendant's cell phone and the cell phone of a friend with whom the defendant allegedly was hiding. The order authorizing the search warrants stated that the warrants and supporting documents would be "sealed until further Order of this Court." Law enforcement apprehended the defendant at the friend's apartment. The search warrants, applications, affidavits, return, and inventory were not filed with the clerk of court as required by chapter 933, Florida Statutes.¹

The defendant sought discovery regarding cell phone tracking, including requests for all warrants relating to his cellphone. The state eventually filed with the court unredacted versions of the warrant documents under seal. The state sought to provide only redacted versions of the search warrants and applications to the defense and to prevent dissemination to third parties. The redacted information related to the tracking of cell phones.

The defendant moved to unseal the documents. The Palm Beach Post filed a motion to intervene seeking to vacate the order limiting disclosure of the redacted documents and requesting public access to the unredacted documents.

The trial court held a hearing on the motion to unseal and the motion to intervene. The trial court explained that during a prior hearing it treated the state's request to limit the unsealing as a motion to determine confidentiality of court records

260 So.3d 1065

under Florida Rule of Judicial Administration 2.420. The trial court recognized that, under rule 2.420, warrants are court records. Rule 2.420(c)(6) exempts warrants and supporting documents from disclosure only until execution of the warrant or until it is determined that execution is not possible.

The state argued that "investigative techniques" should be deemed confidential to "protect a compelling governmental interest," referring to rule 2.420(c)(9)(A)(iii). The trial court stated that it had reviewed the unredacted materials in camera and concluded that the state's reasons for restricting disclosure did not amount to a compelling governmental interest.

The trial court granted the motion to unseal and ordered the unredacted records unsealed and made open to the public by a certain date. The trial court granted the Post's motion to intervene and denied the Post's motion to unseal as moot in light of the court granting the defendant's motion. The state petitioned this court for certiorari review. This court stayed the release of the unredacted documents pending our certiorari review.

The state argues that the trial court departed from the essential requirements of law by ordering the release of privileged surveillance techniques that are not subject to public disclosure under section 119.071(2)(d), Florida Statutes. The state contends that disclosure of "privileged surveillance techniques" will irreparably harm the state because it "will inform fugitives how to avoid lawful surveillance and to evade capture." The state alternatively argues that, even if the defendant is entitled to the unredacted documents, this court should find the unredacted documents are exempt from public disclosure.

To invoke certiorari jurisdiction, the state must show that the order complained of constitutes a departure from the essential requirements of law and causes the state material harm that cannot adequately be remedied on appeal. State v. Pettis , 520 So.2d 250, 252 (Fla. 1988). This extraordinary writ is reserved for situations where there is a "violation of a clearly established principle of law resulting in a miscarriage of justice." Id. at 254. We find that the trial court did not depart from the essential requirements of law in the present case.

I. PRESERVATION, JURISDICTION, AND STANDARD OF REVIEW

Initially, the state did not preserve the arguments raised in its petition. During the proceedings below, the state did not specifically assert a "surveillance technique privilege" under section 119.071(2)(d) or cite to any chapter 119 exemption. In fact, the state did not even use the term "surveillance." During the hearing, the trial court discussed Florida Rule of Judicial Administration 2.420. The state argued that "investigative techniques" should be deemed confidential to "protect a compelling governmental interest," referring to rule 2.420(c)(9)(A)(iii).² The state did not argue any other grounds for closure under rule 2.420. Further, at no point did the state put the trial court on

260 So.3d 1066

notice that it was in any way relying on section 119.071. The state did not cite this statute, track any language from the statute, or cite any cases involving that statute. See Tillman v. State , 471 So.2d 32, 35 (Fla. 1985) (stating that in order to preserve an issue for appellate review, the specific legal ground or argument relied upon for appeal must have been presented to the trial court).

Even if the state's arguments were preserved, the standard of review for all of the issues on appeal is abuse of discretion. "[I]t is within the sound discretion of the trial judge to grant or limit criminal discovery." State v. Kuntsman , 643 So.2d 1172, 1173 (Fla. 3d DCA 1994). "[T]he decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case." Nixon v. Warner Commc'ns, Inc. , 435 U.S. 589, 599, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). See also Miami Herald Pub. Co., a Div. of Knight-Ridder Newspapers, Inc. v. Morphonios , 467 So.2d 1026, 1029 (Fla. 3d DCA 1985) ("The trial court, upon ruling that a closure is warranted, must make findings of fact and must extend its order no further than the circumstances require."); Smithwick v. Television 12 of Jacksonville, Inc. , 730 So.2d 795, 798 (Fla. 1st DCA 1999) (applying abuse of discretion standard in ruling on motion to seal). The public right to access judicial records or documents under common law is also reviewed for abuse of discretion. See Nixon , 435 U.S. at 599, 98 S.Ct. 1306.

II. DISCLOSURE TO DEFENDANT

The defendant sought unredacted copies of the search warrants and applications. Florida Rule of Criminal Procedure 3.220, which governs discovery, provides that the state must disclose "whether there has been any search or seizure and any documents relating thereto." Fla. R. Crim. P. 3.220(b)(1)(H). Because the search warrants and applications were documents related to a search or seizure, the state was required to provide them to the defendant. See id.

"Florida's criminal discovery rules are designed to facilitate a truthful fact-finding process and to prevent surprise and trial by ambush. To ensure full and fair discovery, parties must both comply with the technical provisions of the discovery rules and adhere to the purpose and spirit of those rules in the criminal and civil contexts." Wilcox v. State , 143 So.3d 359, 375-76 (Fla. 2014) (citations omitted); see also Williams v. Florida , 399 U.S. 78, 81, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) (noting that "Florida law provides for liberal discovery by the defendant against the State"). A defendant has a due process right under both the federal and Florida constitutions to defend himself against criminal charges, see U.S. Const. amend. V ; Fla. Const. art. 1, § 9, and a discovery violation may prevent a...