Wilson v. State, s. SS-233
| Decision Date | 13 November 1980 |
| Docket Number | Nos. SS-233,SS-417,s. SS-233 |
| Citation | 403 So.2d 982 |
| Parties | James Lewis WILSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael J. Minerva, Public Defender, Carl S. McGinnes, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
James Wilson appeals from his convictions of possession of heroin and cocaine. We reverse.
The record in this case reveals that officers of the Lake City Police Department conducted an investigation into the alleged possession of contraband by Wilson outside the city limits of Lake City. There is no evidence in the record of any action taken by Wilson inside the city limits. Pursuant to this investigation, an electronic listening device was placed on an informant and he was instructed to make two controlled purchases of drugs from a residence Wilson was known to frequent. Municipal officers directed and monitored these controlled buys. Based solely upon the information obtained as a result of these controlled buys, a municipal officer submitted an affidavit for a search warrant and the warrant was issued. A week later the warrant was executed by both city and county law enforcement officers, and drugs were discovered in the residence while Wilson was present.
Wilson filed a motion to suppress the contraband on the ground, among other things, that the municipal police officers were acting outside their jurisdiction in conducting the investigation and that one result of their having exceeded their jurisdiction was that the electronic eavesdropping violated Florida law. The trial court denied the motion to suppress and Wilson appealed.
The State contends that the municipal police officers were not outside their jurisdiction, relying on the testimony of one officer that he did have authority to conduct investigations outside the municipality. First, we note that an officer's statement as to his authority and jurisdiction is not proof of such. Second, we disregard the speculative comments in the State's brief to the effect that "perhaps this authority was pursuant to special appointment by the Sheriff of Columbia County...." There is no evidence to support such speculation. In fact, the evidence is to the contrary because the municipal police officers testified that they did not have authority to execute the warrant or make the arrests involved in this case. Third, it is not totally lacking in accuracy to state that a municipal police officer, acting as a police officer, may conduct investigations outside the city limits. Such investigations are, however, limited to those situations where the subject matter of the investigation originated inside the city limits, State v. Chapman, 376 So.2d 262 (Fla. 3d DCA 1979); Parker v. State, 362 So.2d 1033 (Fla. 1st DCA 1978). Fourth, case law supports the position that private citizens may investigate criminal activity. State v. Shipman, 370 So.2d 1195 (Fla. 4th DCA 1979). Thus, a municipal police officer acting as a private citizen may conduct investigations outside the municipality, and the officer's testimony that he had investigative authority outside the city could be true but irrelevant as to the issue framed by the facts of this case.
Since the officers here were acting outside their territorial jurisdiction, the investigation was proper, if at all, only if it could have been conducted by a private citizen. A reference to the statute governing interception of oral communications establishes that this investigation could not have been conducted by a private citizen.
Section 934.03(2)(c) and (d), Florida Statutes (1979), provides:
(c) 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.
(d) 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.
Since the officers here were not authorized to act as law enforcement officers under the facts here and since they were not operating under the direction of a law enforcement officer, it was not lawful for them to intercept an oral communication where only one party had given prior consent to the interception.
Having established that the electronic surveillance was unlawful,...
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