Tollett v. State

• Decision Date: 10 January 1973
• Docket Number: No. 40993,40993
• Citation: 272 So.2d 490
• Parties: Ted C. TOLLETT, Petitioner, v. The STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 490

272 So.2d 490

Ted C. TOLLETT, Petitioner, v. The STATE of Florida, Respondent.

No. 40993.

Supreme Court of Florida.

Jan. 10, 1973.

Tom E. Gilman, Tallahassee, for petitioner.

Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for respondent.

ERVIN, Justice.

By petition for writ of certiorari we have for review a decision of the District Court of Appeal, First District, holding certain recordings of conversations between Petitioner and another person were properly played for the jury during Petitioner's trial. Tollett v. State, Fla.App.1971, 244 So.2d 458. We have jurisdiction to consider the cause by virtue of a conflict with Walker v. State, Fla.App.1969, 222 So.2d 760. Article V, Section 4(2), Florida Constitution, F.S.A.; Rule 4.5(c), F.A.R., 32 F.S.A.

Petitioner Ted Tollett, while incarcerated in the Leon County Jail on a possession of marijuana charge, became friendly with a cellmate, one Jess Davis. Captain Campbell, ¹ of the Leon County Sheriff's Department, testified that he asked Davis 'if he would be willing to help me with Mr. Tollett on making a buy.' Davis refused at first; however, he later agreed to work with Campbell.

On four succeeding days following Tollett's release from jail, Davis, at Campbell's instruction, telephoned Tollett. Three of the calls were made from Campbell's office in the Leon County Courthouse. The fourth was made from the Leon County Jail. The conversations between Tollett and Davis made while the latter was in Campbell's office were recorded. The telephone call made while Davis was at the jail was not recorded; however, Campbell listened on an extension telephone.

Pursuant to the instructions given him during the telephone conversations, Tollett came to the jail allegedly for the purpose of selling drugs to Davis. He also went to a motel room to discuss with one posing as Ray Johnson from Tennessee the sale of Mrs. Tollett's unborn child. Johnson was actually Ray Frederick, a special agent with the Florida Bureau of Law Enforcement. The conversation between Tollett and the agent was also recorded.

Tollett and his wife were arrested and charged with attempting to sell an unborn baby and delivering and dispending contraband at the Leon County Jail. At trial, over defense objections, the recordings were played for the jury. Davis was not present as a witness. No explanation appears in the record as to why Davis was not called by the State as a witness or any reason given for his unavailability. Captain Campbell testified that Davis had consented to having his conversations with Tollett recorded. Both defendants were found guilty of attempting to sell the child; Petitioner was also found guilty of dispensing LSD and contraband to a prisoner.

Petitioner appealed to the First District Court of Appeal. In a 2--1 decision that court affirmed Petitioner's conviction, saying the recordings were properly played before the jury. The court cited Florida authorities holding such recordings admissible when made with the consent of one or more of the conversants. (I.e., Barber v. State, Fla.App.1965, 172 So.2d 857, and Giffith v. State, Fla.App.1959, 111 So.2d 282.) While Davis was not present to testify that he had consented to the wiretaps, the District Court majority said Capt. Campbell had properly testified as to Davis' consent and that Campbell's evidence enabled the jury to have 'reasonably concluded that Davis gave his express or implied consent to Campbell's tapping and recording of the telephone conversations with (Tollett) . . .'

This decision conflicts with the decision of the Third District Court of Appeal in Walker v. State, supra. The Third District Court in Walker referred to its earlier decision in Hajdu v. State, Fla.App.1966, 189 So.2d 230, and said such recordings could be introduced into evidence 'when the actual recipient of the conversation who himself carried the transmitting device was put on the stand.' Walker, supra, 222 So.2d at 762.

Respondent contends Petitioner's constitutional rights were not violated and in support of this position the State cites Florida and Federal cases holding recordings made under circumstances similar to those in this case may be properly played for juries. We do not feel those cases are controlling.

In its most recent consideration of this question, the Supreme Court of the United States, in a sharply divided decision, held the Fourth Amendment to the United States Constitution does not firbid electronic surveillance made with the consent of one or more of the conversants. United States v. White, 1971, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453. The Court said such recordings could be played before a jury even though, as here, the consenting party was not available at trial. In reaching this decision, the Court said that since one speaking with a defendant could testify as to what the defendant said, a recording of such a conversation should also be permissible evidence. According to the Court, 'No different result should obtain where . . . the informer disappears and is unavailable at trial; for the issue of whether specified events on a certain day violate the Fourth Amendment should not be determined by what later happens to the informer.' (Emphasis added.) White, supra, 753--754, 91 S.Ct. 1127.

The result in White, as well as in the other cases relied upon by the State, is based upon an interpretation of the Fourth Amendment to the Constitution of the United States. The Amendment provides:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

Florida's Constitution, before it was revised in 1968, contained a virtually identical search and seizure provision. The provision was changed, however, when the Constitution was revised. We must look to the search and seizure provision of the 1968 Constitution and for this reason the Federal and pre-1968 Florida cases which are based upon the Fourth Amendment to the United States Constitution and the pre-1968 Florida Constitution and which are relied upon by Respondent cannot be considered controlling. The applicable Florida constitutional provision, found in Article I, is as follows:

' § 12. Searches and seizures.--The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the Unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, The communication to be intercepted, and the nature of evidence to be obtained. Articles or Information obtained in violation of this right shall not be admissible in evidence.' (Emphasis added.)

Thus Section 12 of Article I of the Constitution expressly provides that no warrant shall be issued to intercept a particular communication except upon probable cause supported by affidavit. In Florida, at least, the protection of privacy in the area of communications is constitutionally mandated in express language. This Court is not at liberty to relax this protection afforded by the State Constitution.

The interceptions in the instant case were unquestionably 'unreasonable.' Under the language of Section 12 of Article I of the 1968 Constitution, the recordings should not have been made by the officer unless he had first obtained an interception warrant, or had secured consent from one of the parties to the communication and established this fact under the safeguards and conditions hereinafter noted. Such a requirement for a search warrant absent clearly established consent is neither unfair nor impractical. The officer had sufficient time. The interceptions occurred over a four-day span. That they were to be made was decided long before they actually were. The officer conducting the interceptions had an office in the County Courthouse. He could have easily obtained a warrant If he had probable cause for suspecting Petitioner would discuss a particular illegal activity during certain conversations with Davis.

To allow police to indiscriminately place 'bugs' on telephones without first obtaining warrants is as much a violation of an individual's rights as to allow officers to arbitrarily enter homes without obtaining prior judicial approval. Time and again, courts have held individuals' rights cannot be sacrificed to enable officers to conduct 'fishing expeditions.'

It has been said that:

'The incidence of party monitoring or consent to overhearing is substantial and is almost certainly increasing. According to Professor Alan Westin, who has done a great deal of work on wiretapping and eavesdropping and has recently published a book on a variety of threats to privacy, 'A conservative estimate would be that more than 10,000 wiretaps and bugs are installed annually by local law-enforcement agencies. . . .' "(P)articipant recording," says Professor Westin, 'in which one participant in a conversation or meeting, either a police officer or a co-operating party, wears a concealed device that records the conversation or broadcasts it to others nearby' is done by law enforcement officers 'tens of thousands of times each year.'' 68 Col.L.Rev. 211--212.

We are concerned about such activity. If it is uncontrolled, it has no place in a free state. The right to freely enter into private conversations without fear of having those conversations overheard and recorded is an important one.

We take note of Chapter 934, F.S., enacted as Chapter 69--17 at the 1969 legislative session and particularly Section 934.01(4) thereof, which reads in part:

'(4) To...