Roberta JACKSON, Appellant, v. STATE of Florida, Appellee.
No. 92-01381.
District Court of Appeal of Florida, Second District.
May 13, 1994.
636 So.2d 1372
LAZZARA, Judge.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
LAZZARA, Judge.
Roberta Jackson appeals her judgment and sentence for trafficking in cocaine. She contends that the trial court erred in denying her amended motion to suppress. We agree and reverse.
In June of 1991, a detective with the Sarasota police department submitted a sworn ex parte application to a circuit judge for an order authorizing the duplication of Jackson‘s telephone pager. The judge granted the application and issued an order authorizing law еnforcement officers “to acquire a duplicate pager and intercept telephone numbers” called into Jackson‘s pager for a period of thirty days. He found that “[t]he information
Armed with this duplicate display pager, detectives began monitoring numbers called into Jackson‘s display pager. They determined that the numbers in sequence reflected a two or three digit code that identified the caller, the telephone number of the caller, and a two or three digit code that indicated the amount of drugs the caller wanted to purchase from Jackson. They also corroborated this information with visual surveillance of Jackson in her 1990 Nissan automobile. For example, on one occasion, after intercepting a series of digitized transmissions on their duplicate display pager while monitoring Jackson‘s display pager, the detectives followed Jackson to a restaurant where they observed her participate in what they characterized as a narcotics transaction.
In late August of 1991, a detective used the information derived from the duplicate display pager in an affidavit to obtain a search warrant for Jackson‘s automobile. During the course of the search, detectives discovered a quantity of cocaine and, as a result, Jackson was arrested and later informed against for trafficking in сocaine pursuant to
Jackson alleges that the search warrant was based primarily on communications illegally intercepted through the duplicate display pager and that without this tainted information the facts relied on to establish probable cause were otherwise stale. She argues that before a judge can authorize law enforcement to acquire and use such a device to intercept numbers called into the original display pager, the specific requirements of
The state‘s position is that a duplicate display pager is no more intrusive than a pen register and is not governed by these statutory requirements.1 Instead, it argues a judge need only adhere to the procedure outlined in
These statutes are exceptions to the federal and state constitutional rights to privacy and must be strictly construed. Copeland v. State, 435 So.2d 842 (Fla. 2d DCA 1983). To that end,
In cоntrast, the requirements for obtaining an order for the installation of a pen register under
With this background, the issue we confront is whether information intercepted by a duplicate display pаger constitutes the interception of a protected electronic communication under
We have held that Congress, through its legislation, has “preempted the field of the interception of wire communications under its power to regulate interstate communications.” State v. McGillicuddy, 342 So.2d 567, 568 (Fla. 2d DCA 1977). We have noted that although states are permitted to regulate wiretap warrants, their standards must be “at least as strict as those set forth in the federal act.” 342 So.2d at 568. Thus, as in McGillicuddy, we look to the applicable federal law. We also examine its interpretation by the federal courts under Florida‘s established rule of statutory construction “which recognizes that if a state law is patterned after a federal law on the same subject, the Florida law will be accorded the same construction as in the federal courts to the extent the construction is harmonious with the spirit of the Florida lеgislation.” O‘Loughlin v. Pinchback, 579 So.2d 788, 791 (Fla. 1st DCA 1991).
In United States v. Suarez, 906 F.2d 977 (4th Cir.1990), cert. denied, 498 U.S. 1070, 111 S.Ct. 790, 112 L.Ed.2d 852 (1991), the court, citing extensively to legislative history, summarized significant changes to the federal wiretap law that Congress enacted in 1986 that impact on this case. The court stated:
Title I of the Electronic Communications Privacy Act of 1986 (`the Act‘) amended Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (`Title III‘) to protect against unauthorized intеrception of `electronic’ communications. Congress found that amendments to Title III were needed `to update and clarify Federal privacy protections and standards in light of dramatic changes in new computer and telecommunications technologies.’ Voice communications transmitted via common carrier were рrotected under the 1968 act, but `there [were] no comparable Federal statutory standards to protect the privacy and security of communications transmitted by new noncommon carrier communications services or new forms of telecommunications and computer technology.’ The legislative history specifically refers to paging devices and makes clear that display
pagers are included within the Act‘s coverage.3
906 F.2d at 980 (citations and footnotes omitted) (emphasis added). The court also noted that:
The Act superseded state laws with respect to electronic communications, and states were required to enact statutes at least as restrictive as the new federal law before they could authorize their own courts to issue interception orders. Congress deemed it necessary to allow states two years to bring their laws into conformity with the new federal law because of the `substantial changes’ wrought by the Act.
906 F.2d at 981 (emphasis added).
Although the federal act does not define a display pager, it is clear from the legislative history that Congress was referring to a device “equipped with screens that can display visual messages, usually the telephone number of the person seeking to reach the person being paged.” S.Rep. No. 541, 99th Cong., 2d Sess. 10, reprinted in 1986 U.S.Code Cong. & Admin.News at 3555, 3564.4 Further, as explained in United States v. Meriwether, 917 F.2d 955 (6th Cir.1990):
The Senate Judiciary Committee illuminated what might be considered an `interception’ of a pager communication:
`Radio communications transmitted over a system provided by a common carrier are not readily accessiblе to the general public... . [T]he unauthorized interception of a display paging system, which includes the transmission of alphanumeric characters over the radio, carried by a common carrier, is illegal.’
S.Rep. No. 541, 99th Cong., 2d Sess. 15, reprinted in 1986 U.S.Code Cong. & Admin. News 3555, 3569 (emphasis added).
Congress also provided enlightenment with regard to what constitutes an electronic communication. As noted in the legislative history:
As a general rule, a communication is an electronic communication protected by the federal wiretap law if it is not carried by sound waves and cannot be fairly characterized as containing the human voice. Communications consisting solely of data, for example, and all communications transmitted only by radio are electronic cоmmunications. This term also includes electronic mail, digitized transmissions, and video teleconferences.
S.Rep. No. 541, 99th Cong., 2d Sess. 14, reprinted in id. at 3568 (emphasis added).5
Significantly, however, Congress also made it clear that pen registers were not covered by the protections of the new act:
Subsection 101(b)(4) of the Electronic Communications Privacy Act amends subsection 2511(2) of title 18 to add a new paragraph (h) to that subsection. Proposed subparagraph (i) of paragraph (h) clarifiеs that the use of pen registers and trap and trace devices are not regulated by chapter 119 of title 18. The use of those devices will be regulated by new chapter 206 of title 18 as amended by the Electronic Communications Privacy Act.
S.Rep. No. 541, 99th Cong., 2d Sess. 20, reprinted in id. at 3574. Congress codified this clarification in
The Florida legislature followed Congress’ mandate and, in 1988, it substantially amended
The legislature also followed Congress’ lead by exempting pen registers from the protection of the amended wiretap law. Ch. 88-184, § 2, at 1022 (codified as amended at
Based on this historical background, we find the federal courts’ analysis in Suarez and Meriwether that a display pager is included within the new federal wiretap act to be persuasive. First, the courts were construing a federal law that preempts Florida‘s prototype. Second, their construction is harmonious with the spirit of Florida‘s wiretap legislation to safeguard privacy interests.
We note that the only reported state case we have found in which the court construed the provisions of the new federal wiretap law also concluded that display pagers were covered by the act. In Mauldin v. State, 874 S.W.2d 692 (Tex. Ct. App. 1993), the court determined that:
This 1986 statute clearly added digital display pagers to the devices that Congress considered to be covered by Title 18, UNITED STATES CODE sections 2510(12), 2511, 2516 and 2518 (West Supp. 1993). See S.Rep. No. 99-541, 99th Cong., reprinted in 1986 U.S.C.C.A.N. 3555 at 3569. The statute mandated procedures for the states to fоllow before they could intercept `electronic communications’ such as a digital display pager. 18 U.S.C.A. § 2516 (West Supp. 1993).
874 S.W.2d at 695 (emphasis added). However, the court found that at the time the police obtained authorization for the duplicate display pager used in that case, the two-year grace period allotted to the states to conform to the amended federal wiretap law had not expired. Thus, it based its decision on the federal statute existing at the time of the authorization that “did not forbid the intercept of the display pager‘s messages” and concluded that the use of the duplicate display pager was lawful. Id.
In so holding, we acknowledge Dorsey v. State, 402 So.2d 1178 (Fla. 1981), the primary case relied on by the state. In Dorsey, the police used a scanner to intercеpt messages sent to a beeper or pocket pager. The court rejected the argument that such messages were wire communications under
However, in this case, we are concerned with what constitutes an electronic communication under a law enacted after Dorsey was decided. Moreover, unlike the beeper messages in Dorsey, we are dealing with a communication that Congress has found is not readily accessible to the general public. Thus, we distinguish Dorsey.
As noted, the state concedes, and the record reflects, noncompliance with
After excluding from the affidavit the information derived from the duplicate display pager, see State v. Alphonse, 315 So.2d 506 (Fla. 4th DCA 1975), we conclude that the remaining facts are insufficient to establish probable cause. The last incident supporting a probable cause determination occurred approximately six and one-half months prior to the issuance of the warrant. This time lapse is clearly insufficient under the law to sustain the warrant. Hamelmann v. State, 113 So.2d 394 (Fla. 1st DCA 1959).
We, therefore, reverse Jackson‘s judgment and sentence for trafficking in cocaine and remand to the trial court with directions to grant her amended motion to suppress.7
However, because the issue presented is one of first impression in the state of Florida аnd because our decision impacts on law enforcement techniques relating to wiretaps, we certify the following question as one of great public importance:
DOES INFORMATION TRANSMITTED TO A DISPLAY PAGER CONSTITUTE AN ELECTRONIC COMMUNICATION AS DEFINED BY SECTION 934.02(12), FLORIDA STATUTES (1991), SUCH THAT TO LAWFULLY INTERCEPT SUCH INFORMATION THROUGH A DUPLICATE DISPLAY PAGER, THE STATE OF FLORIDA MUST FIRST SEEK AUTHORIZATION PURSUANT TO SECTIONS 934.07 AND 934.09, FLORIDA STATUTES (1991)?
Reversed and remanded with directions. Question certified.
CAMPBELL, A.C.J., and PARKER, J., concur.