Powe v. StatePowe v. State
Lead Opinion
Powe appeals from a drug trafficking conviction. He claims that the trial court erred in admitting, over objection, tape recordings of four telephone conversations between the defendant and one Robert Levesque, an informant who was participating with law enforcement officials in an undercover drug investigation. We affirm after considering this case en banc pursuant to
Two of the calls were placеd on October 8, 1980, by Levesque to Powe at his home in Miami. The next day, Powe telephoned Levesque and advised him that he was in Jacksonville prepared to do business. This call was not monitored or recorded by the detectives and is, therefore, not in dispute. After advising the lead detective of Powe’s call, Levesque placed the other two disputed telephone calls on October 9, 1980, to Powe at the latter’s motel rоom.
In addition to the tape recordings of the four conversations being received in evidence, Levesque testified at trial concerning such conversations and stated that the conversations were monitored and recorded with his consent. The trial court also admitted, over objection, Officer Prescott’s testimony in which he related the contents
Powe does not contend that the monitoring and recording of these calls without a court order were violative of Chapter 934, Florida Statutes, inasmuch as Section 934.-03(2)(c) purports to excuse any Chapter 934 authorization order under these circumstances:
It is lawful under this Chapter for a law enforcement officer or person acting under the direction of a law enforcement officer to intercept а 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 purposе of such interception is to obtain evidence of a criminal act.
Instead, Powe’s objections were based upon Article I, Section 12, of the Florida Constitution. That section, prior to its amendment effectivе January 4, 1983,
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.
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Articles or information obtained in violation of this right shall not be admissible in evidence, (emphasis supplied)
Powe relies upon State v. Sarmiento,
In State v. Sarmiento,397 So.2d 643 (Fla.1981), the defendant аnd undercover agent were in the defendant’s home when their conversation was transmitted outside the home by means of a “body bug” to police officers who monitored and recorded the conversation. The court held that the undercover agent could testify as to the contents of the conversation, but the police officers who monitored and recorded the conversation from outside the home could not tеstify as to the conversation, nor could the recording be introduced. Our reading of Sarmiento and of article I, section 12 is that they protect the person within the home and that this protection is not predicated on the physical location of the person who consents to the recording of the conversation. It matters not whether the consenting party is outside of the home, nor whether the means used to penetrate the privacy of the home is a “body bug, ” as in Sarmiento, or a telephone, as here. A “body bug” and a telephone are electronic devices which, by transmitting the human voice beyond the confines of the home, provide the means to intrude into the home. Both fall within the рhrase “by any means” in article I, section 12. In our view, Sar-miento is dispositive of all the issues posed here: the warrantless recordings of the telephone conversations from within the home must be suppressed, the warrantless recordings of the person-to-person conversations outside the home may be admitted; the police informant may testify as to the contents of all the conversations; and the fruits of all the conversations may be admitted. [420 So.2d at 405 ] [emphasis supplied]
We feel compelled to recede from the majority’s holding in Williams. It is one thing to hold, as in Sarmiento, that the Article I, Section 12, right of privacy is violated where a “bugged” police informant conversing with a suspect inside the
It matters not whether the consenting party is outside of the home, nor whether the means used to penetrate the privacy of the home is a “body bug,” as in Sarmiento, or a telephone, as here. [420 So.2d at 405 ]
To the contrary, we think there is a significant difference in terms of the reasonableness of a person’s privacy expectations between the situation involving conversations within the person’s home and the situation where the person chooses to converse with another who has not been admitted into the sanctity of the home. We agree with our sister court in Miller v. State,
Sarmiento is inapplicable in a situation where one of the pаrties to a telephone conversation is located outside the person’s home and is acting pursuant to Section 934.03(2)(c), Florida Statutes (1979).
See also State v. Vanyo,
Powe cán find no comfort in the pre-Sarmiento Florida Supreme Court decision of Tollett v. State,
Davis [the undercover agent] was not present as a witness. No explanation appears in the recоrd as to why Davis was not called by the State as a witness or any reason given for his unavailability. [272 So.2d at 492 ]
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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 requirеment for a search warrant absent clearly established consent is neither unfair nor impractical. [272 So.2d 493 ]
As previously noted in this opinion, Levesque was present and testified at trial
Although the Florida Supreme Court has not directly addressed the issue regarding the possible extension of its Sarmiento holding to telephone conversations as in the case sub judice, we are persuaded by a reading of the Sarmiento opinion and the post-Sarmiento expressions of the Florida Supreme Court that the overly broad construction of Article I, Section 12, urged by appellant and embraced by the majority in Williams v. State, supra, is not justified. In Sarmiento, the court stated:
Our colleague in dissent contends vigorously that the Florida Legislature recognizes the right of a police officer to intercept an oral communication when such person is a party to the conversation or where one of the parties to the communication has given prior consent to the interсeption. § 934.03(2)(c), Fla.Stat. (1977). Our response to this contention is simple; insofar as that statute authorizes the warrantless interception of a private conversation conducted in the home, it is unconstitutional and unenforceable. [emphasis in original]
Later, in Hill v. State,
The instant case is, however, distinguishable from Sarmiento because the instant tape recording was a conversation which occurred in appellant’s backyard, not in the home. We refuse to extend the reasoning in Sarmiento and the protections of article I, section 12, beyond the four walls of the home. We note Odom v. State,403 So.2d 936 (Fla. 1981), is also distinguishable from our holding in the instant case because that interception was in the home.
We, therefore, recede from the majority’s opinion in Williams v. State, supra, and hold that the trial court did not err in receiving in evidence the tape recording of the two October 8, 1980, telephone conversations resulting from Levesque’s calls to appellant at the latter’s home. We also hold that it was not error to receive Officer Prescott’s testimony relating those two conversations.
With respect to the two October 9, 1980, telephone conversations between Levesque and appellant whilе the latter was situated in a Jacksonville motel room, the trial court did not err in receiving in evidence the tape recordings of those conversations. We have previously held that a motel room is not the functional equivalent of a home insofar as the applicability of the Sarmiento ruling. Padgett v. State,
We have examined the remaining points asserted by appellant and find them to be without merit.
AFFIRMED.
Notes
. The amendment to Article I, Sectiоn 12, provides for that section to be construed, in conformity with the Fourth Amendment as interpreted by the United States Supreme Court. It further provides that evidence acquired in violation of that section shall be inadmissible if such еvidence would be inadmissible under United States Supreme Court decisions construing the Fourth Amendment. The State argues that we should apply the amendment retroactively to the case at bar. However, the Florida Suprеme Court recently determined the retroactivity question adversely to the State. State v. Lavazzoli,
. Even this "intrusion” is not deemed a violation of a person’s Fourth Amendment reasonable expectation of privacy. See United States v. White,
Concurrence Opinion
specially concurring.
I was in the process of preparing a dissent to the court’s opinion when the Florida Supreme Court’s decision in State v. Williams,